RE UDDIN ARMAN ZIA

CAMP 33/2018

[2019] HKCA 1140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 33 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 396 of 2017)

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J U D G M E N T

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

1.  On 1 June 2018, this Court (Chu and Barma JJA) handed down our judgment[1] refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Woodcock given on 5 March 2018 refusing him leave to apply for judicial review.     

2.  On 7 August 2019, the applicant filed a notice of motion together with two affirmations to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant had also put in a written submission to support his application.

3.  Having considered the applicant’s notice of motion, affirmations 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 the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 (“the Ordinance”) provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.     

6.  The applicant’s notice of motion was filed out of time.  While this Court has power under section 24(5) of the Ordinance to extend the time for the applicant to file the notice of motion, we are of the view that we should not do so in this case for the reasons set out below.

7.  Firstly, the delay in this case is more than 13 months, which is very serious delay.  The applicant stated in one of his affirmations that he did not know about the court’s refusal of his application until after he came to the court on 5 August 2019 and was given a copy of the court order.  He explained he approached the court after receiving a telephone call from an immigration officer.  We do not find this a satisfactory explanation for the delay. This is because a copy of the judgment was posted on 1 June 2018 to the address provided by the applicant in the summons and affirmation filed for his application for leave to appeal, and it has not been returned by the post office.  The applicant, however, has not explained why the judgment did not reach him.

8.  Secondly, the matters stated in the notice of motion do not amount to viable grounds for granting leave to appeal.  Under section 22(1)(b) of the Ordinance, 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.

9.  In the notice of motion, the applicant put forward the following matters as his proposed grounds of appeal:

(1)  It is not true that there is no substance in the application.

(2)  He did not make a complaint against the poor performance of the duty lawyer because he would be “picked out for misappropriating by the adjudicator”.

(3)  He did not have enough time to address the appeal bundle. 

10.  In one of his affirmations, the applicant out forward two additional grounds, namely,

(1)  The Court was wrong in law to hold there was no state acquiescence or involvement.

(2)  The Court failed to find out the clear details of the current situation in Bangladesh.         

11.  As to the written submission, it set out the applicant’s personal background, various provisions of the International Covenant on Civil and Political Rights, Hong Kong Bill of Rights Ordinance, Cap. 383, Basic Law, United Nations Convention Against Torture, and passages from cases on the duty to act fairly, Wednesbury unreasonableness and state acquiescence.  It argued that the high standards of fairness applied in that the decision had the effect of finally disposing of the applicant’s claim and that, under the common law, the decision maker was under a duty to act fairly and to observe minimum standard of procedural fairness.   

12.  All the matters put forward by the applicant are directed at the assessment of his claim, but do not involve any question of great general or public importance, or otherwise, that ought to be submitted to the Court of Final Appeal for determination.  The requirement for granting leave to appeal under section 22(1)(b) of the Ordinance is therefore not met.  Further, all the proposed grounds and arguments are new points not raised in the application for leave to appeal.  It is not open to the applicant to advance them at this application for leave to appeal to the Court of Final Appeal.                 

13.  For the above reasons, we will not extend the time for the applicant to apply for leave to appeal to the Court of Final Appeal.  The notice of motion is accordingly dismissed.