No more civil appeals from the Court of Appeal to Court of Final Appeal as of right and other changes brought in by Administration of Justice (Miscellaneous Provisions) Ordinance 2014

No more civil appeals as of right to Court of Final Appeal

The Administration of Justice (Miscellaneous Provisions) Ordinance 2014 came into effect on 24 December 2014 and amends various Ordinances, one of the most significant amendments being the repeal of section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance (Cap.484) (HKCFAO).

Previously (by virtue of section 22(1)(a) of the HKCFAO) an appeal lay from a final judgment of the Court of Appeal in any civil cause or matter to the Court of Final Appeal as of right, where the matter in dispute on appeal amounted to or was of the value of HK$1million or more. For other cases (i.e. those not meeting the HK$1 million threshold), by virtue of section 22(1)(b) of the HKCFAO, an appeal lay to the Court of Final Appeal from any interlocutory or final judgment of the Court of Appeal, only if in the opinion of the Court of Appeal or Court of Final Appeal (as the case may be) the question involved in the appeal was one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

This was unsatisfactory as it meant that the right of appeal to the Court of Final Appeal depended on an arbitrary financial limit, giving litigants involved in litigation with a claim of a monetary value of HK$1million or more, in effect, more rights than other litigants with smaller claims, regardless of the merit of their cases. The repeal of section 22(1)(a) means that leave of the Court of Appeal or Court of Final Appeal must now be obtained for all appeals to the Court of Final Appeal from any Court of Appeal judgment (whether final or interlocutory) in any civil cause or matter and leave will only be granted where in the opinion of the Court of Appeal or Court of Final Appeal (as the case may be) the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision. This change applies to Court of Appeal final judgments (whether pronounced orally or in writing) made on or after 24 December 2014.

This will allow the Court of Appeal and Court of Final Appeal to look at all relevant circumstances of the case, including merits, in deciding whether leave to appeal should be granted. This will no doubt prevent unmeritorious appeals being brought and thereby save judicial time and resources.

Changes in the Labour Tribunal

The Administration of Justice (Miscellaneous Provisions) Ordinance 2014 has also made some significant amendments to the Labour Tribunal Ordinance and its subsidiary legislation, with a view to improving the Labour Tribunal's operation.

Clarification of jurisdiction

The Labour Tribunal Ordinance refers to the Labour Tribunal having jurisdiction to inquire into, hear and determine claims for "a sum of money". Amendments have been made to make it clear that jurisdiction extends to both claims for unliquidated damages (i.e. damages that are at large and fall to be assessed by the Tribunal according to general principles of law) as well as claims for liquidated damages (i.e. damages of an amount contractually agreed between parties or fixed by statute).

Enhanced case management Powers

To prevent parties abusing the adjudication process by employing delaying tactics or making groundless applications for review of tribunal awards, the Tribunal’s case management powers have been enhanced. The Tribunal now has a general power to order a party to give security for the payment of an award or order (by payment of a sum onto the Tribunal or otherwise) at any time during the proceedings or after a party has applied for review of an award or order, if the Tribunal considers it just and expedient to do so. Circumstances in which the Tribunal may order a party to give security include where it is satisfied that :-

1. there is a real risk that payment of an award or order that has been or may be made will be obstructed or delayed because a party has disposed of, removed or lost control of (or is about to dispose of, remove or lose control of) assets belonging to the party or there is a real risk of such;
2. the party has conducted the proceedings in a manner that delays determination of the case or his conduct otherwise constitutes an abuse of the process; or
3. the party has, without reasonable excuse, failed to comply with any award, order or direction.

If a party fails to give security as ordered, the Tribunal can dismiss that party’s claim, enter judgment against him or stay the proceedings.

12 month time limit for registration of award for enforcement abolished

To enforce a Labour Tribunal award, a person had to obtain a certificate of the award from the Tribunal and then have it registered at the District Court. Once registered, it took effect as and could be enforced as a District Court judgment. Section 12 (2) of the Labour Tribunal (General) Rules (Cap 25A) provided that the registration had to be made within 12 months after the award was made. Those not registered, could only be enforced by way of a separate claim in the Small Claims Tribunal, District Court or Court of First Instance, depending on the amount of the award or order in question.

The 12 month time limit for registration of the award has now been abolished.

Changes in criminal proceedings

Evidence taking by live television links in criminal proceedings

The definition of "live television link" in section 79A of the Criminal Procedure Ordinance has been broadened so that for evidence-taking in criminal proceedings, suitable audio-visual facilities (such as video conferencing facilities) other than a closed circuit television system may now be adopted, subject to the Chief Justice's approval.

District Court Judge no longer required to orally deliver reasons for verdict in criminal proceedings

Section 80 of the District Court Ordinance has been amended to dispense with the requirement for a District Court Judge to orally deliver the reasons for a verdict in a criminal case, thereby giving flexibility to hand down the reasons in writing direct in appropriate cases. The Judiciary has also issued a new Practice Direction 33, setting out, amongst other things, the matters to be taken into account by a District Court judge in deciding whether the reasons for a verdict should be delivered orally or in writing.