Civil Appeals from the CA

• Leave must be sought from either the CA or directly from the CFA.¹ It is a precondition of an application for leave to the CFA that there should be an absence or refusal of leave from the CA.²
• Application for leave to appeal to the CFA in civil cases shall be made by motion within 28 days from the date of the judgment to be appealed from.
• The applicant shall give the opposite party 7 days notice of his intended application and such notice may be given at any time during the period of 28 days.³
• If an application for leave is refused by the CA, an application may be made to the CFA for leave and such application shall be made by motion within 28 days from the date on which the application for leave is refused.⁴
• The CA or CFA, as the case may be, may extend the period within which the applicant is required to file his appeal.⁵ The CA or CFA may also extend the period even though the application for extension is not made until after the expiration of that period.⁶
• Factors that may be relevant for the court's determination of whether an extension of time should be given include:
  (1) the length of the delay;
  (2) the reasons for the delay;
  (3) the chances of the appeal succeeding if an extension of time is granted; and
  (4) the degree of prejudice to the respondent if the application is granted.⁷
• Good grounds have to be shown before the court's discretion to grant an extension of time can be exercised.⁸ An extension of time may be refused if the proposed appeal is devoid of merit, even if there has been a slight delay that caused no prejudice to the other party.⁹ Meanwhile, a significant period of delay without satisfactory explanation may well be sufficient in itself to dispose of an application for an extension of time.¹⁰
• On the other hand, the CFA has no power to abridge time limits which are contained in the HKCFAO itself.¹¹
• Where the CA or the CFA decides to grant leave to appeal, it may grant leave subject to such conditions as it considers necessary, ¹² including but not limited to the following conditions: ¹³
  (a) that the appellant shall enter into good and sufficient security; and
  (b) such other conditions as to the time or times within which the appellant shall procure the preparation of the record.
• The CA or CFA may vary any conditions that it has imposed.¹⁴
• Similarly, if the appellant seeks to advance a ground of appeal other than those grounds in respect of which leave has been granted by the CA (whether or not such ground has been rejected by the CA), it would amount to an "absence" or "refusal" of leave from the CA and the appellant shall make a fresh application for leave to the CFA which has full discretionary powers to deal with it.¹⁵
• Where conditional leave has been granted, the appellant must then apply for final leave. An application for final leave to the CFA shall be made within 7 days after the expiry of any period fixed by the CFA for complying with the conditions attached to the conditional leave,¹⁶ which should be supported by an affidavit verifying the fulfilment of the relevant conditions.¹⁷ The CFA may determine such application without a hearing.¹⁸
• All leave applications to the CFA filed in the CA will be dealt with and determined on paper without an oral hearing.¹⁹ Application for final leave is dealt with by the Registrar of the CFA.²⁰ The application must be supported by an affidavit verifying that the conditions have been fulfilled.²¹

Civil Appeals from the CFI (leap frog procedure)

• An application for a certificate shall be made to a CFI judge (who shall, as far as is practicable and convenient, be the trial judge)²² within 14 days from the date on which the judgment is given or such other longer period as may be prescribed by the rules of court.²³ No appeal shall lie against the grant or refusal of a certificate.²⁴
• Where a certificate has been granted, any party to the proceedings may make an application to the CFA for leave by way of a notice of motion within 28 days from the date of grant of the certificate or such extended time as in any particular case the CFA may allow.²⁵
• Applications for leave are determined by the Appeal Committee, with or without a hearing, and leave may be granted if it appears to be expedient to do so.²⁶ The Appeal Committee may grant leave subject to such conditions as it considers necessary.²⁷ Where leave is granted for an appeal to be brought directly to the CFA, no appeal from the relevant CFI decision shall lie to the CA.²⁸

Criminal Appeals

• Application for leave to appeal to the CFA in criminal cases shall be made within 28 days from the date of the decision of the CA or the CFI, as the case may be.²⁹ Time starts to run from the date of the decision of the lower court appealed from, not from the date of certification of a point of law of great and general importance or from the date the order is sealed.³⁰
• If an applicant wishes to rely on both the "point of law of great and general importance" limb and the "substantial and grave injustice" limb, he should apply to the CA or CFI (as the case may be) for a certificate on the former limb. If granted, he should then apply to the CFA on the basis of the certificate and raise the latter limb. The CFA will then decide whether to grant leave on one or both limbs.³¹
• Even where the CA or CFI has certified a point of law of great and general importance, the Appeal Committee has a discretion on whether to grant leave. Leave may be refused if the lower court's decision on the certified point of law is plainly and obviously correct.³²
• Applications for a certificate to the CA or CFI that the decision involves a point of law of great and general importance should be made immediately after the judgment is given from which the appeal is to be brought. The applicant should provide the court with a written statement of the point of law involved. Submissions on the application will then be heard and determined. If either party requests for time to prepare the written statement or submissions and obtains an adjournment, an early date will be fixed for the resumed hearing.³³
• However, where a judgment is handed down, an application for a certificate should be made within 7 days of the handing down of the judgment.³⁴
• The CFA may, upon application made at any time by any party to the appeal, extend the time within which an application for leave may be made.³⁵ In deciding whether to grant an extension of time, the court may consider all circumstances of the particular case.³⁶
• Where an application for extension of time is made on the ground that the previous understanding of the law has subsequently been held to be incorrect, this does not by itself justify an extension of time. Exceptional circumstances must be shown to justify an extension of time.³⁷ Such circumstances must be so exceptional that the occasions when they would be held to exist would be very rare.³⁸

¹ s.23(1) HKCFAO

² ss.23(1) and 24(3) HKCFAO, See: Hong Kong Island Development Ltd v World Food Fair Ltd (2006) 9 HKCFAR 162, p. 168I per Ribeiro PJ

³ s.24(2) HKCFAO

⁴ ss.24(3) and (4) HKCFAO

⁵ s.24(5) HKCFAO

⁶ s.24(6) HKCFAO

⁷ C.M. Van Stillevoldt B.V. v E.L. Carriers Inc. [1983] 1 WLR 207 (as cited in Ip Tin Chee, Arnold v Ching Hing Construction Co. Ltd, unreported, CACV Nos. 183 and 184 of 2003, 8 July 2005, para. 7 per Rogers V-P)

⁸ Full Wisdom Holdings Ltd v Traffic Stream Infrastructure Company Ltd, unreported, CACV No. 266 of 2003, 27 July 2004, para. 7 per Ma CJHC

⁹ Ip Tin Chee, Arnold v Ching Hing Construction Co. Ltd (2005) 8 HKCFAR 382, p. 386E per Bokhary PJ

¹⁰ Wing Hang Bank Ltd v Crystal Jet International Ltd & Others, unreported, CACV No. 255 of 2002, 9 March 2006, para.7 per Ma CJHC

¹¹ Lo Siu Lan v Hong Kong Housing Authority (2004) 7 HKCFAR 631, p. 633F-H per Li CJ

¹² s.25(1) HKCFAO

¹³ s.25(2) HKCFAO

¹⁴ s.25(4) HKCFAO

¹⁵ Hong Kong Island Development Ltd v World Food Fair Ltd (2006) 9 HKCFAR 162, p. 169B-E per Ribeiro PJ

¹⁶ r.13(1) HKCFA Rules

¹⁷ r.13(2) HKCFA Rules

¹⁸ r.13(3) HKCFA Rules

¹⁹ Practice Direction 2.1

²⁰ Practice Direction 2.3

²¹ r.13(2) HKCFA Rules

²² s.27C(4) HKCFAO

²³ s.27C(3) HKCFAO

²⁴ s.27C(5) HKCFAO

²⁵ s.27D(1) HKCFAO

²⁶ s.27D(2) HKCFAO

²⁷ s.27E HKCFAO

²⁸ s.27D(2) HKCFAO

²⁹ s.33(1) HKCFAO

³⁰ Tang Siu Man v HKSAR (1997-98) 1 HKCFAR 4, p. 9J-10B per Li CJ

31 Zeng Liang Xin v HKSAR (1997-98) 1 HKCFAR 12, p.22 A-F per Li CJ

³² Lau Suk Han & Another v HKSAR (1997-98) 1 HKCFAR 150, p. 154C-F per Li CJ

³³ Practice Direction 2.2

³⁴ Practice Direction 4.3

³⁵ s.33(2) HKCFAO

³⁶ Chiu Wing Nam v HKSAR, (2006) 9 HKCFAR 850, p.855E-F per Li CJ

³⁷ HKSAR v Hung Chan Wan & Another (2006) 9 HKCFAR 614, p. 632A-B per Li CJ

³⁸ Ibid, p. 632G per Li CJ