RE SOUMANA ABDOULMAJID

CAMP 123/2018

[2019] HKCA 1016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 123 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 478 OF 2017)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.  By a judgment dated 14 December 2018 ([2018] HKCA 863), the Court of Appeal refused to grant an extension of time to the applicant to appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) dated 11 May 2018 in HCAL 478/2017 refusing to grant leave to him to apply for judicial review.

2.  By a notice of motion filed on 4 June 2019, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

(i)  the applicant’s case has a reasonable chance of success;

(ii)  the judgement under CAMP 123/2018 was unfair and unreasonable; and

(iii)  the applicant was not aware of the time restriction to appeal against the Judge’s decision in HCAL 478/2017 and he only received the said decision on 28 May 2019.

3.  In his supporting affirmation filed on 4 June 2019, the applicant further set out the following grounds of appeal:

“(a) that this application involves points of law of great and general importance, namely, whether lack of legal representation is a reasonable basis to challenge the fairness of the process;

 (b) whether there might be an additional basis for advancing a case on the BOR 2 risk separate from BOR 3 risk, torture risk and persecution (risk), and the reason for giving this application out of time is because I only got the judgement/order dated 14/12/2018 on 28/05/2019.”

4.  On 5 June 2019, the Registrar of Civil Appeals directed that the applicant to lodge with court his written submissions on or before 24 June 2019.  The Applicant failed to lodge his written submissions as directed.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on the papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

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.  Here, the applicant sought to re-argue the grounds and points for his delay in applying for an extension of time to appeal against the Judge’s decision which was canvassed and rejected at [14] of our judgment.  Further, the applicant provided no basis or particulars for his contention that our judgment was unfair and unreasonable.  Lastly, the applicant’s present complaint of lack of legal representation is a new argument. As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new fact-and-evidence sensitive points which were not ventilated at the lower court and for which leave has not been sought within time: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

6.  For the reasons that we gave in our judgment of 14 December 2018, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order. None of the questions raised by the applicant in the notice of motion involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

7.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.