RE MASUM

CAMP 98/2018

[2019] HKCA 118

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 98 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 50 OF 2017)

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JUDGMENT

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

1. On 18 October 2018, 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 Woodcock (“the Judge”) given on 11 August 2017.

2. On 25 October 2018, the applicant filed a Notice of Motion together with an affirmation to apply for leave to appeal our judgment to the Court of Final Appeal. 

3. Despite the directions given by the Registrar of Civil Appeals, the applicant has not lodged any written submission.

4. Having considered the applicant’s notice of motion, 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.

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. The Notice of Motion stated that: (i) it is not true that there is no substance in the grounds of the application; (ii) the applicant did not complain about the poor performance of the duty lawyer because he feared he would be picked out by the adjudicator for “misappropriating”; and (iii) the applicant genuinely did not have enough time to address the bundle.

7. In the affirmation, the applicant further stated that his grounds for the application were: (i) the court was wrong in holding that there was no state acquiescence or involvement; and (ii) the court had failed to find out the current situation in Bangladesh. 

8. The matters stated in the Notice of Motion and the affirmation do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  Principally, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b).  The matters raised in the notice of motion only relate to the circumstances of the applicant’s case.  Further, the matters stated in the Notice of Motion were repetitions of the grounds put forward in support of the intended judicial review, and the Judge had rejected them for the reasons given in the Form CALL-1 dated 11 August 2017.  In his summons applying for leave to appeal out of time, the applicant had advanced no proposed ground of appeal.

9. As to the two grounds contained in the affirmation, they were misplaced. First, the applicant did not give any proposed ground of appeal in his application to this court for leave to appeal out of time.  We have therefore made no holding on whether there was state acquiescence or involvement.  Second, it is not the function of the court to ascertain the country of origin condition.  Assessment of the evidence and making findings of fact are matters for the Director and the Board, who are the primary decision makers. 

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

11. For the above reasons, the statutory requirements for giving leave to appeal is not met.  Accordingly, we dismiss the Notice of Motion.