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Reflecting the general support for this proposal by consultees and the practice that has
long been in place in other jurisdictions, the Working Party recommends that a
requirement for leave to appeal should be introduced for interlocutory appeals from
the CFI judge to the Court of Appeal. Excepted from this rule should be cases where
the interlocutory decision is decisive of a party's substantive rights (involving
summary judgments, striking-out orders and the like) and also specially exempted
cases (such as orders for contempt, refusals of habeas corpus, refusals of leave to bring
judicial review proceedings, and so forth). Appeals from the master to the CFI judge
should continue to be available as of right.
Procedures designed to avoid separate oral hearings for applications for leave to
appeal should be introduced. Where the Court of Appeal refuses leave, such refusal
should be final, with no right to apply for leave to appeal to the Court of Final Appeal.
Where, however, the Court of Appeal grants leave and determines the appeal, leave to
appeal to the CFA may be granted under section 22(1) of the Hong Kong Court of
Final Appeal Ordinance where the question involved is one which, by reason of its
great general or public importance, or otherwise, ought to be submitted to the Court
for decision.
It is not recommended that a requirement for leave to appeal should be introduced in
respect of final (as opposed to interlocutory) judgments at first instance.
Where leave to appeal is required, leave should only be granted where the court
considers that the appeal would have a reasonable prospect of success (understood to
mean something more than a prospect of success which is "not fanciful", but without
having to be "probable"). Leave should also be granted where there is some other
compelling reason why the appeal should be heard.
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