Hong Kong Regulations

THE RULES OF THE HIGH COURT - ORDER 59

APPEALS TO THE COURT OF APPEAL

Caution: This is a past version. See the current version here.

1. Application of Order to appeals (O. 59, r. 1)

This Order applies, subject to the provisions of these rules with respect to
particular appeals, to every appeal to the Court of Appeal (including so far
as it is applicable thereto, any appeal to that Court from a master or other
officer of the High Court or from any tribunal from which an appeal lies to
that Court under or by virtue of any enactment) not being an appeal for which
other provision is made by these rules and references to "the court below"
apply to any Court, tribunal or person from which such appeal lies.

(25 of 1998 s. 2)

2. Application of Order to applications for new trial (O. 59, r. 2)

This Order (except so much of rule 3(1) as provides that an appeal shall be by
way of rehearing and except rule 11 (1)) applies to an application to
the Court of Appeal for a new trial or to set aside a verdict, finding or
judgment after trial with or without a jury, as it applies to an appeal to
that Court, and references in this Order to an appeal and to an appellant
shall be construed accordingly.

GENERAL PROVISIONS AS TO APPEALS

3. Notice of appeal (O. 59, r. 3)

(1) An appeal to the Court of Appeal shall be by way of rehearing and must be
brought by motion, and the notice of the motion is referred to in this Order
as "notice of appeal".

(2) Notice of appeal may be given either in respect of the whole or in respect
of any specified part of the judgment or order of the court  below; and every
such notice must specify the grounds of the appeal and the precise form of the
order which the appellant proposes to ask the  Court of Appeal to make.

(3) Except with the leave of the Court of Appeal or a single judge, the
appellant shall not be entitled on the hearing of an appeal to rely on any
grounds of appeal, or to apply for any relief, not specified in the
notice of appeal. (L.N. 404 of 1991)

(5) A notice of appeal must be served on all parties to the proceedings in
the court below who are directly affected by the appeal; and, subject to rule
8, it shall not be necessary to serve the notice on parties not so affected.

(6) No notice of appeal shall be given by a respondent in a case to which rule
6(1) relates.

4. Time for appealing (O. 59, r. 4)

(HK)(1) Except as otherwise provided by these rules, every notice  of appeal
must be served under rule 3(5) not later than the expiration of the following
period beginning on the date immediately following the date on which the
judgment or order of the court below was sealed or otherwise perfected, that
is to say- (L.N. 165 of 1992)

   (a)  in the case of an appeal from an interlocutory order (not being such
        an order as is mentioned in sub-paragraph (b)) and in the case of an
        appeal from a judgment or order given or made under Order 14 or Order
        86, 14 days;

   (b)  in the case of an appeal from an order or decision made or given in
        the matter of the winding up of a company, or in the matter of any
        bankruptcy, 21 days;

   (c)  in any other case, 6 weeks.

(3) Where leave to appeal is granted by the Court of Appeal upon an
application made within the time limited for serving notice of appeal under
paragraph (1), a notice of appeal may, instead of being served within that
time, be served within 7 days after the date when leave is granted.

5. Setting down appeal (O. 59, r. 5)

(1) Within 7 days after the later of (i) the date on which service of the
notice of appeal was effected, or (ii) the date on which the judgment or order
of the Court below was sealed or otherwise perfected, the appellant must lodge
with the Registrar-

   (a)  a copy of the said judgment or order, and

   (b)  two copies of the notice of appeal, one of which shall be indorsed
        with the amount of the fee paid, and the other indorsed with a
        certificate of the date of service of the notice.

(2) Upon the said documents being left, the Registrar shall file one copy of
the notice of appeal and cause the appeal to be set down in the list of
appeals; and the appeal shall come on to be heard according to its order in
that list unless the Court of Appeal or a judge of that Court otherwise
orders.

(4) Within 4 days after an appeal has been set down, the appellant must give
notice to that effect to all parties on whom the notice of  appeal was served.

6. Respondent's notice (O. 59, r. 6)

(1) A respondent who, having been served with a notice of appeal, desires-

   (a)  to contend on the appeal that the decision of the court below should
        be varied, either in any event or in the event of the appeal being
        allowed in whole or in part, or

   (b)  to contend that the decision of the court below should be affirmed on
        grounds other than those relied upon by that court, or

   (c)  to contend by way of cross-appeal that the decision of the 
        court below was wrong in whole or in part, must give notice to that
        effect, specifying the grounds of his contention and, in a case to
        which sub-paragraph (a) or (c) relates, the precise form of the order
        which he proposes to ask the Court to make.

(2) Except with the leave of the Court of Appeal or a single judge, a
respondent shall not be entitled on the hearing of the appeal to apply for any
relief not specified in a notice under paragraph (1) or to rely, in support of
any contention, upon any ground which has not been specified in such a notice
or relied upon by the court below. (L.N. 404 of 1991) (HK)(3) Any notice given
by a respondent under this rule (in this Order referred to as a "respondent's
notice") must be served on the appellant, and on all parties to the
proceedings in the court below who are directly affected by the contentions of
the respondent, and must be served-

   (a)  where the notice of appeal related to an interlocutory order, within
        14 days, and

   (b)  in any other case, within 21 days, after the service of the
        notice of appeal on the respondent.

(4) A party by whom a respondent's notice is given must, within 2 days after
service of the notice, furnish 2 copies of the notice to the Registrar.

7. Amendment of notice of appeal and respondent's notice (O. 59, r. 7)

(1) A notice of appeal or respondent's notice may be amended-

   (a)  by or with the leave of the Court of Appeal or a single judge at any
        time; (L.N. 404 of 1991)

   (b)  without such leave, by supplementary notice served not less than three
        weeks before the date fixed for the hearing of the appeal.

(2) A party by whom a supplementary notice is served under this rule must,
within 2 days after service of the notice, furnish two copies of the notice to
the Registrar.

8. Directions of the Court as to service (O. 59, r. 8)

(1) The Court of Appeal or a single judge may in any case direct that a
notice of appeal or respondent's notice be served on any party to the
proceedings in the court below on whom it has not been served, or on any
person not party to those proceedings. (L.N. 404 of 1991)

(2) Where a direction is given under paragraph (1) the hearing of the appeal
may be postponed or adjourned for such period and on such terms as may be just
and such judgment may be given and such order made on the appeal as might have
been given or made if the persons served in pursuance of the direction had
originally been parties.

9. Documents to be lodged by appellant (O. 59, r. 9)

(1) Not less than 7 days before the appeal is likely to be listed for hearing
the appellant must cause to be lodged with the Registrar the number of copies
for which paragraph (2) provides of each of the following documents, namely-

   (a)  the notice of appeal;

   (b)  the respondent's notice;

   (c)  any supplementary notice served under rule 7;

   (d)  the judgment or order of the court below;

   (e)  the originating process by which the proceedings in the court  below
        were begun, any interlocutory or other related process which is the
        subject of the appeal, the pleadings (including particulars), if any,
        and, in the case of an appeal in an Admiralty cause or matter, the
        preliminary acts, if any;

   (f)  the transcript of the official shorthand note, if any, of the judgment
        or order of the court below or, in the absence of such a note, the
        judge's note of his reasons for giving the judgment or making the
        order;

   (g)  such parts of the transcript of the official shorthand note, if any,
        of the evidence given in the court below as are relevant to any
        question at issue on the appeal or, in the absence of such a note,
        such parts of the judge's note of the evidence as are relevant to any
        such question;

   (h)  any list of exhibits made under Order 35, rule 11, or the schedule of
        evidence, as the case may be; (HK)(i) such documents, affidavits,
        exhibits, or parts of exhibits, as were in evidence in the court below
        and as are relevant to any question at issue on the appeal.

(2) Unless otherwise directed the number of copies to be lodged in accordance
with paragraph (1) is three copies except-

(a) where the appeal is to be heard by two judges in which case it is two
copies; or

   (b)  in the case of an appeal in an Admiralty cause or matter, in which
        case it is four copies or, if the Court of Appeal is to hear the
        appeal with assessors, six copies.

(2A) When the transcripts, if any, referred to in items (f) and (g) of
paragraph (1) have been bespoken by the appellant and paid for, the number of
such transcripts required in accordance with paragraph (2) shall be sent by
the official shorthand writer or transcriber direct to the Registrar.

(3) At any time after an appeal has been set down in accordance with rule 5
the Registrar may give such directions in relation to the documents to be
produced at the appeal, and the manner in which they are to be presented, and
as to other matters incidental to the conduct of the appeal, as appear best
adapted to secure the just, expeditious and economical disposal of the appeal.

(4) The directions referred to in paragraph (3) may be given without a hearing
provided always that the Registrar may at any time issue a summons requiring
the parties to an appeal to attend before him and any party to an appeal may
apply at any time for an appointment before the Registrar.

10. General powers of the Court (O. 59, r. 10)

(1) In relation to an appeal the Court of Appeal shall have all the powers and
duties as to amendment and otherwise of the Court of First Instance. (25 of
1998 s. 2)

(2) The Court of Appeal shall have power to receive further evidence on
questions of fact, either by oral examination in court, by affidavit, or by
deposition taken before an examiner, but, in the case of an appeal from a
judgment after trial or hearing of any cause or matter on the merits, no such
further evidence (other than evidence as to matters which have occurred after
the date of the trial or hearing) shall be admitted except on special grounds.

(3) The Court of Appeal shall have power to draw inferences of fact and to
give any judgment and make any order which ought to have been given or made,
and to make such further or other order as the case may require.

(4) The powers of the Court of Appeal under the foregoing provisions of this
rule may be exercised notwithstanding that no notice of  appeal or
respondent's notice has been given in respect of any particular part of the
decision of the court below or by any particular party to the proceedings in
that court, or that any ground for allowing the appeal or for affirming or
varying the decision of that court is not specified in such a notice; and
the Court of Appeal may make any order, on such terms as the Court thinks
just, to ensure the determination on the merits of the real question in
controversy between the parties.

(5) The Court of Appeal may, in special circumstances, order that such
security shall be given for the costs of an appeal as may be just.

(6) The powers of the Court of Appeal in respect of an appeal shall not be
restricted by reason of any interlocutory order from which there has been no
appeal.

(7) Documents impounded by order of the Court of Appeal shall not be delivered
out of the custody of that Court except in compliance with an order of that
Court: Provided that where a Law Officer or the Director of Public
Prosecutions makes a written request in that behalf, documents so impounded
shall be delivered into his custody. (L.N. 362 of 1997)

(8) Documents impounded by order of the Court of Appeal, while in the custody
of that Court, shall not be inspected except by a person authorized to do so
by an order of that Court.

(9) In any proceedings incidental to any cause or matter pending before
the Court of Appeal, the powers conferred by this rule on the Court may be
exercised by a single judge: (L.N. 404 of 1991) Provided that the said powers
of the Court of Appeal shall be exercisable only by that Court or a single
judge in relation to-

   (a)  the grant, variation, discharge or enforcement of an injunction, or an
        undertaking given in lieu of an injunction; and

   (b)  the grant or lifting of a stay of execution or proceedings.

11. Powers of the Court as to new trials (O. 59, r. 11)

(1) On the hearing of any appeal the Court of Appeal may, if it thinks fit,
make any such order as could be made in pursuance of an application for a new
trial or to set aside a verdict, finding or judgment of the court below.

(2) The Court of Appeal shall not be bound to order a new trial on the ground
of misdirection, or of the improper admission or rejection of evidence, or
because the verdict of the jury was not taken upon a question which the judge
at the trial was not asked to leave to them, unless in the opinion of
the Court of Appeal some substantial wrong or miscarriage has been thereby
occasioned.

(3) A new trial may be ordered on any question without interfering with the
finding or decision on any other question; and if it appears to
the Court of Appeal that any such wrong or miscarriage as is mentioned in
paragraph (2) affects part only of the matter in controversy, or one or some
only of the parties, the Court may order a new trial as to that part only, or
as to that party or those parties only, and give final judgment as to the
remainder.

(4) In any case where the Court of Appeal has power to order a new trial on
the ground that damages awarded by a jury are excessive or inadequate,
the Court may, in lieu of ordering a new trial-

   (a)  with the consent of all parties concerned, substitute for the sum
        awarded by the jury such sum as appears to the Court to be proper;

   (b)  with the consent of the party entitled to receive or liable to pay the
        damages, as the case may be, reduce or increase the sum awarded by the
        jury by such amount as appears to the Court to be proper in respect of
        any distinct head of damages erroneously included in or excluded from
        the sum so awarded; but except as aforesaid the Court of Appeal shall
        not have power to reduce or increase the damages awarded by a jury.

(5) A new trial shall not be ordered by reason of the ruling of any judge that
a document is sufficiently stamped or does not require to be stamped.

12. Evidence on appeal (O. 59, r. 12)

Where any question of fact is involved in an appeal, the evidence taken in
the court below bearing on the question shall, subject to any direction of
the Court of Appeal or a single judge, be brought before that Court as
follows-

   (a)  in the case of evidence taken by affidavit, by the production of a
        true copy of such affidavit;

   (b)  in the case of evidence given orally, by a copy of so much of the
        transcript of the official shorthand note as is relevant or by a copy
        of the judge's note, where he has intimated that in the event of an
        appeal his note will be sufficient, or by such other means as
        the Court of Appeal or a single judge, may direct. (L.N. 404 of 1991)

12A. Non-disclosure of payment into court (O. 59, r. 12A)

(1) Where-

   (a)  any question on an appeal in an action for a debt, damages or salvage
        relates to liability for the debt, damages or salvage or to the amount
        thereof, and

   (b)  money was paid into court under Order 22, rule 1, in the proceedings
        in the court below before judgment, neither the fact of the payment
        nor the amount thereof shall be stated in the notice of appeal or
        the respondent's notice or in any supplementary notice or be
        communicated to the Court of Appeal until all such questions have been
        decided. This rule shall not apply in the case of an appeal as to
        costs only or an appeal in an action to which a defence of tender
        before action was pleaded.

(2) For the purpose of complying with this rule the appellant must cause to be
omitted from the copies of the documents lodged by him under rule 9(d) and (f)
every part thereof which states that money was paid into court in the
proceedings in that court before judgment.

13. Stay of execution, etc. (O. 59, r. 13)

(1) Except so far as the court below or the Court of Appeal or a single judge
may otherwise direct-

   (a)  an appeal shall not operate as a stay of execution or of proceedings
        under the decision of the court below;

   (b)  no intermediate act or proceeding shall be invalidated by an appeal.

(2) On an appeal from the Court of First Instance, interest for such time as
execution has been delayed by the appeal shall be allowed unless the Court
otherwise orders.

(25 of 1998 s. 2)

14. Applications to the Court of Appeal (O. 59, r. 14)

(1) Unless otherwise directed, every application to the Court of  Appeal or a
single judge which is not made ex parte must be made by summons and such
summons must be served on the party or parties affected at least 2 clear days
before the day on which it is heard or, in the case of an application which is
made after the expiration of the time for appealing, at least 7 days before
the day on which the summons is heard. (L.N. 404 of 1991)

(1A) In support of any application (whether made ex parte or inter partes) the
applicant shall lodge with the Registrar such documents as the 
Court of Appeal or a single judge may direct, and rule 9(3) and (4) shall
apply, with any necessary modifications, to applications as they apply to
appeals. (L.N. 404 of 1991)

(2) An application to the Court of Appeal for leave to appeal shall-

   (a)  include, where necessary, any application to extend time for
        appealing; and

   (b)  be made ex parte in writing setting out the reasons why leave should
        be granted and, if the time for appealing has expired, the reasons why
        the application was not made within that time, and the Court may grant
        or refuse the application or direct that the application be renewed in
        open court either ex parte or inter partes. (L.N. 363 of 1990)

(2A) If an application under paragraph (2) is refused otherwise than after a
hearing in open court, the applicant shall be entitled, within 7 days after he
has been given notice of the refusal, to renew his application; such renewal
application shall be made ex parte in open court. (L.N. 363 of 1990)

(2B) If an application under paragraph (2) is granted otherwise than after a
hearing inter partes, notice of the order shall be served on the party or
parties affected by the appeal and any such party shall be entitled, within 7
days after service of the notice, to apply to have the grant of leave
reconsidered inter partes in open court. (L.N. 363 of 1990)

(3) Where an ex parte application has been refused by the court  below, an
application for a similar purpose may be made to the Court of  Appeal ex parte
within 7 days after the date of the refusal.

(4) Wherever under these rules an application may be made either to
the court below or to the Court of Appeal, it shall not be made in the first
instance to the Court of Appeal, except where there are special circumstances
which make it impossible or impracticable to apply to the  court below.

(5) Where an application is made to the Court of Appeal with regard to
arbitration proceedings before a judge-arbitrator or judge-umpire which would,
in the case of an ordinary arbitrator or umpire, be made to the  Court of
First Instance, the provisions of Order 73, rule 5, shall apply as if, for the
words "the Court", wherever they appear in that rule, there 
were substituted the words "the Court of Appeal" and as if, for the words
"arbitrator" and "umpire", there were substituted the words "judge-arbitrator"
and "Judge-umpire" respectively. (25 of 1998 s. 2)

(6) Where an application is made to the Court of Appeal under section 23(5) of
the Arbitration Ordinance ( Cap 341) (including any application for leave),
notice thereof must be served on the judge-arbitrator or judge-umpire and on
any other party to the reference. (HK)(6A) In this rule "judge-arbitrator"
(法官仲裁員) and "Judge-umpire" (法官公斷人) mean a judge appointed
as sole arbitrator or, as the case may be, as umpire by or by virtue of an
arbitration agreement.

(7) An application, not being an application for leave to appeal, which may be
heard by a single judge, shall, unless otherwise directed, be heard in
chambers.

(8)-(9) (Repealed L.N. 404 of 1991)

(10) A single judge may refer to the Court of Appeal any matter which he
thinks should properly be decided by that Court, and, following such
reference, that Court may either dispose of the matter or refer it back to a
single judge or the Registrar, with such directions as that Court thinks fit.

(11) (Repealed L.N. 404 of 1991)

(12) An appeal shall lie to the Court of Appeal from any determination by a
single judge, not being the determination of an application for leave to
appeal, and shall be brought by way of fresh application made within 10 days
of the determination appealed against: Provided that an appeal shall not lie
to the Court of Appeal without the leave of that Court in respect of a
determination of the Registrar which has been reviewed by a single judge.

15. Extension of time (O. 59, r. 15)

Without prejudice to the power of the Court of Appeal or a single judge under
Order 3, rule 5, to extend or abridge the time prescribed by any provision of
this Order, the period for serving notice of appeal under rule 4 or making
application ex parte under rule 14(3) may be extended or abridged by
the court below on application made before the expiration of that period.
(L.N. 404 of 1991)

SPECIAL PROVISIONS AS TO PARTICULAR APPEALS

16. Appeal against decree nisi (O. 59, r. 16)

(1) The following provisions of this rule shall apply to any appeal to
the Court of Appeal in a matrimonial cause against a decree nisi of divorce or
nullity of marriage.

(2) The period of 6 weeks specified in rule 4 shall be calculated from the
date on which the decree was pronounced and rule 15 shall not apply in
relation to that period.

(3) The appellant must, within the period mentioned in paragraph

(2) produce to the Registrar a sealed copy of the decree appealed against and
leave with him a copy of that decree and two copies of the notice of  appeal
(one of which shall be indorsed with the amount of the fee paid and the other
indorsed with a certificate of the date of service of the notice); and the
appeal shall not be competent unless this paragraph has been complied with.
(L.N. 404 of 1991)

(4) For the purposes of rule 5 the leaving of the said copies shall be
sufficient for the setting down of the appeal and rule 5(1) shall not apply.

(5) A party who intends to apply ex parte to the Court of Appeal to extend the
period referred to in paragraphs (2) and (3) must give notice of his intention
to the appropriate Registrar before the application is made; and where any
order is made by the Court of Appeal extending the said period, it shall be
the duty of the Registrar forthwith to give notice of the making of the order
and of the terms thereof to the  appropriate Registrar.

(6) In this rule "the appropriate Registrar" (適當的司法常務主任)
means-

   (a)  in relation to a cause pending in a district court, the registrar of
        that court.

19. Appeal from District Court (O. 59, r. 19)

(1) The following provisions of this rule shall apply to any appeal to
the Court of Appeal from a District Court other than an appeal against a
decree nisi of divorce or nullity of marriage.

(2) The notice of appeal must be served on the registrar of the District Court
as well as on the party or parties required to be served under rule 3.

(3) In the relation to the appeal-

   (a)  rule 4(1) shall have effect as if for the words "the date on which the
        judgment or order of the court below was sealed or otherwise
        perfected" there were substituted the words "the date on which leave
        to appeal has been granted under section 63 of the
        District Court Ordinance ( Cap 336)". (L.N. 39 of 1999)

(4) It shall be the duty of the appellant to apply to the judge of the
District Court for a signed copy of any note made by him of the proceedings
and of his decision, and to furnish that copy for the use of
the Court of Appeal; and in default of production of such a note, or, if such
note is incomplete, in addition to such note, the Court of Appeal may hear and
determine the appeal on any other evidence or statement of what occurred
before the judge of the District Court which appears to the Court  of Appeal
to be sufficient. Except where the Court of Appeal or a single judge otherwise
directs, an affidavit or note by a person present in the District Court shall
not be used in evidence under this paragraph unless it was previously
submitted to the judge for his comments. (L.N. 404 of 1991)

(4A) Rule 12A shall apply in any case where money was paid into court by the
defendant before judgment in district court proceedings in satisfaction of the
plaintiff's cause of action or of one or more causes joined in one action or
on account of a sum admitted by the defendant to be due to the plaintiff.

(5) Rule 13(1)(a) shall apply subject to the provisions of section  66 of the
District Court Ordinance ( Cap 336).

20. Appeals in cases of contempt of court (O. 59, r. 20)

(1) In the case of an appeal to the Court of Appeal against an order of
committal or other punishment for contempt of Court made by a judge of
the Court of First Instance, the notice of appeal must be served on the
Registrar as well as on the party or parties required to be served under rule
3. (See App. A, Form 99) This paragraph shall not apply in relation to an
appeal to which rule 19 applies. (25 of 1998 s. 2)

(2) Where, in the case of such an appeal as is mentioned in paragraph (1), the
appellant is in custody, the Court of Appeal may order his release on his
giving security (whether by recognizance, with or without sureties, or
otherwise and for such reasonable sum as that Court may fix) for his
appearance within 10 days after the judgment of the Court  of Appeal on the
appeal shall have been given, before the court from whose order or decision
the appeal is brought unless the order or decision is reversed by that
judgment.

(3) An application for the release of a person under paragraph (2) pending an
appeal to the Court of Appeal must be made by motion, and the notice of the
motion must, at least 24 hours before the day named therein for the hearing,
be served on the Registrar and on all parties to the proceedings who are
directly affected by the appeal. (Enacted 1988) "judge-arbitrator"
(法官仲裁員) and "Judge-umpire" (法官公斷人) "the appropriate
Registrar" (適當的司法常務主任)