RE MASUM MADBAR

CAMP 188/2018

[2019] HKCA 473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 188 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 762 OF 2017)

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JUDGMENT

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

1.  On 15 May 2019, this Court (Chu and Barma JJA) handed down our judgment^[1] (“the Judgment”) refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 12 June 2018.

2.  On 16 May 2019, the applicant filed a Notice of Motion together with a supporting affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  Despite the directions of the Registrar of Civil Appeals, the applicant has not lodged any written submission to support his application. 

3.  Having considered the applicant’s notice of motion and affirmation, 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 gave the grounds of the appeal to be: (i) the judgment is unreasonable and unfair; (ii) the applicant did not complain about the poor performance of the duty lawyer due to fear that he would be picked out for “misappropriating” by the adjudicator; and (iii) the applicant genuinely did not have enough time to address the bundle.

6.  The applicant’s affirmation set out two grounds to support his application, namely, (i) the Court was wrong in law in holding there was no state acquiescence or involvement; and (ii) The Court failed to find out clear details of the current situation of Bangladesh. 

7.  The matters stated in the Notice of Motion and the affirmation do not constitute viable grounds for granting leave to appeal to the Court of Final Appeal. 

8.  Firstly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b).  Secondly, other than ground (i) in the affirmation, all the other grounds in the Notice of Motion and the applicant’s affirmation were not raised in the application to this Court for leave to appeal out of time.  The complaint about the performance of the duty lawyer was further not even argued before the Judge.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the application before it.[2]  Nor is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]  Thirdly, for the reasons given in [16] of this Court’s judgment, ground (i) in the affirmation relating to state acquiescence is not arguable.           

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.