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In taking the above approach the Working Party has taken account of the recent
decision of the Court of Final Appeal in A Solicitor v The Law Society of Hong Kong
(presently Unreported, FACV No 7 of 2003, 19 December 2003) laying down the
approach to determining the validity of statutory provisions which seek to accord
finality to decisions of courts other than the CFA. It was there held that :-
(a)
where the legislature seeks to limit the Court of Final Appeal's power of final
adjudication, the legislative provision is reviewable for consistency with Art 82
of the Basic Law (which vests such power in the CFA);
(b)
the limiting provision cannot be imposed arbitrarily, but will be upheld if it
pursues a legitimate purpose and if a reasonable proportionality exists between
the limitation and the purpose sought to be achieved;
(c)
to identify the purpose of the limitation with a view to determining whether it is
legitimate, the CFA will look at the subject-matter of the disputes in question:
"......
whether it concerns fact or law, whether it relates to substantive rights and obligations
or only procedural matters, what is at stake, the need for speedy resolution and the cost
implications of dispute resolution, including any possible appeals, will have to be considered.
The legitimacy of any proposal will depend on whether it is consistent with the public
interest, which of course has many facets, including the proper administration of justice.
Then, in considering whether the limitation is reasonably proportionate to the legitimate
purpose, it will be necessary to examine the nature and extent of the limitation." (at para 33)
The proposed limitation of rights to appeal under discussion relates to purely
interlocutory questions which have already been considered by a master and a judge at
first instance and which are considered by at least two Justices of Appeal to lack any
reasonable prospect of success on appeal. Making a refusal of leave to appeal final in
such circumstances would, in the Working Party's view, be valid. The decision
sought to be appealed does not involve substantive rights and the objective of the
limitation is the legitimate and proportional promotion of cost-effective and speedy
dispute resolution.
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