RE SHRESTHA MUKESH DAS

CACV 208/2019

[2019] HKCA 1257

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 208 OF 2019

(ON APPEAL FROM HCAL NO. 1021 of 2018)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  On 30 August 2019, this Court (Cheung and Chu JJA) handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam given on 17 April 2019 refusing him leave to apply for judicial review.

2.  On 23 September 2019, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal. On 24 September 2019, the Registrar of Civil Appeals directed the applicant to lodge his written submission on or before 8 October 2019. However, it was only on 14 October 2019 that the applicant lodged a written submission to support his application. Despite being late, we will exceptionally take the written submission into consideration.

3.  Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing. We have therefore proceeded to determine the applicant’s application on the basis of his notice of motion.

4.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, leave to appeal to the Court of Final Appeal may be granted if 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.

5.  The notice of motion and the written submission advanced the following grounds of appeal:

(1) It was unfair that the applicant was deprived of an oral hearing despite he had complained of lack of language assistance and had stated he did not understand English.

(2) As the applicant had to seek help to understand the letter from the Court and to provide the written submission, the hearing of his appeal should not have been vacated. Alternatively, this court should have exercised its discretion to restore the hearing.

(3) It did not make sense that the Court believed the applicant did not require language assistance when interpretation service was previously provided to him.

(4) The issue of language assistance was particularly important given that the focus of the appeal was said to be the correctness of the trial judge’s decision, and the applicant had to identify proper grounds of appeal.

(5) The applicant’s complaints about hearing bundle and issues of adding memory were related to the Board’s decision, not the Judge’s decision. Had this Court held an oral hearing to hear his appeal, this would have been clarified.

6.  For the reasons set out below, we are of the view that the application for leave to appeal has no merits.

7.  First, the matters stated in the notice of motion and the written submission relate only to the circumstances of the case, and do not involve any question of great general or public importance, as required by section 22(1)(b).

8.  Second, we had in [3] of our judgment explained the importance of the requirement to lodge written submission and the reasons for treating an applicant’s failure to comply with the requirement, despite being warned of the consequence of default, as abandonment of the right to an oral hearing. In the present case, the applicant had twice been informed of the requirement to lodge a written submission by 8 July 2019 and the consequence if he failed to do so (see [2] of our judgment). There was considerable time from the 17 May 2019, being the Court’s first letter, to the deadline of 8 July 2019. The applicant had not explained why he only mailed his submission to the Court on 11 July 2019, by which time his appeal hearing had already been vacated. The applicant had not sought an extension of time from this Court to lodge his written submission. Nor had he applied to this Court to restore his appeal hearing. In the circumstances, the complaints concerning the appeal hearing being vacated cannot stand. Similarly, the complaints about the applicant’s language difficulty and the lack of language assistance is irrelevant.

9.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.  As the statutory requirements for giving leave to appeal are not met, we dismiss the Notice of Motion.