RE BAH MAMADOU HABIB

CAMP 91/2019

[2020] HKCA 414

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 91 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 1098 OF 2017)

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J U D G M E N T

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

1.  On 16 December 2019, this Court (Barma and Au JJA) handed down our judgment (“the Judgment”) [2019] HKCA 1409, refusing to give leave to the applicant to appeal out of time against the decision of Campbell-Moffat J (“the Judge”) given on 14 September 2018 ([2018] HKCFI 1752) (“the Judge’s Decision”).

2.  We dismissed the applicant’s summons on the basis that the court was not persuaded by his explanation for delay and that, in any event, none of his intended grounds of appeal were viable grounds to challenge the Judge’s Decision.

3.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.

4.  By a Notice of Motion dated 18 December 2019, the applicant applied for leave to appeal against the Judgment to the Court of Final Appeal.

5.  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.

6.  In the Notice of Motion, the applicant only stated that he intended to contest against the Judgment.  In his written submissions dated 27 December 2019, he repeated his explanations for delay with attachments of a magnetic resonance imaging report dated 18 May 2019 and two handwritten letters for his alleged notifications of change of address respectively dated 15 March 2019 and 12 April 2019.  None of these documents were presented before the Judge or before us.

7.  Having considered the applicant’s Notice of Motion and written submissions, pursuant to the Practice Direction 2.1, we did not find any exceptional circumstance in this application to deviate from the usual practice and thus proceeded to consider this application on papers without any oral hearing.

8.  In our view, this application is devoid of merit.

9.  First, the applicant merely repeated his explanations for delay which we had dealt with at [15]-[20] of the Judgment.  He has failed to identify any errors in our reasons for rejecting explanation.  The new documents submitted with his written submissions do not assist him.  Both the MRI report (which stated to be related to back pain (not knee pain)) and the alleged notifications of change of address (one sent to the Department of Justice and the other the High Court Registry) are all dated in 2019, which are all well after the date of the Judge’s Decision.  They are therefore unrelated to the delay in appealing against the Judge’s Decision.

10.  Second, the applicant has also failed to identify any error in the Judgment at [20]-[21] relating to our reasons in concluding that his intended appeal had no merits.

11.  These are therefore not viable grounds of appeal against the Judgment.

12.  In any event, the applicant failed to identify in the Notice of Motion or the written submissions any question of great general or public importance that ought to be submitted to the Court of Final Appeal for decision.  Nor do we see any basis to grant leave on the “otherwise” limb.

13.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484) are not therefore met.  Accordingly, we refuse to grant leave to the applicant to appeal to the Court of Final Appeal and dismiss his Notice of Motion.