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In the Working Party's view, the test should be more stringent than merely having to
show that the appeal is arguable and "not fanciful", but considerably less stringent
than having to show a "probability" of success. Although similar problems could arise
with the parties attributing different meanings to any phrase chosen, the Working
Party considers it desirable to adopt as the test for granting leave a requirement "that
the appeal has reasonable prospects of success". It is hoped that this would convey
the notion that the prospects of succeeding in the appeal must be "reasonable" and
therefore more than "not fanciful", without having to be "probable"
– just
"reasonable". As pointed out in the Interim Report, this was the sense attributed to the
phrase "reasonable prospects of success" in the Court of Appeal cases discussing the
differences, if any, between the test for refusing summary judgment and for setting
aside a default judgment.
It appears to the Working Party that such a threshold would be fair. If an applicant
cannot show that the proposed interlocutory appeal has reasonable prospects of
success, a refusal of leave does him no injustice. Most interlocutory decisions are
discretionary and it is well-established that an appellate tribunal will not interfere with
a discretionary decision of the court below unless it is wrong in principle or is plainly
wrong, even if the appellate court might itself have made a different decision.
Accordingly, a refusal of leave to appeal where there are no reasonable prospects of
success will often be a kindness to the applicant, saving him the costs of arriving at the
same result after a full hearing of the appeal.
There should also be a discretion to grant leave to appeal for cases which may not pass
the reasonable prospects of success test but where "there is some other compelling
reason why the appeal should be heard". For instance, the Court of Appeal may wish
to take the opportunity to provide much needed clarification in an area of the law or to
entertain an argument that the law ought to be changed, even though it is questionable
whether the appellant has less than reasonable prospects of success.
Notes
See Yeu Shing Construction Co Ltd v Pioneer Concrete (HK) Ltd [1987] 2 HKC 187 at 191, per
Silke VP; and Premier Fashion Wears Ltd v Li Hing-chung [1994] 1 HKLR 377 at 383, per Godfrey
JA.
See HKCP 2002, 59/1/49.
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