RE KHAN MOHAMMAD SHADAB

CAMP 75/2018

[2019] HKCA 129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 75 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO.625 OF 2017)

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JUDGMENT

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

1. On 4 December 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 Campbell-Moffat J (“the Judge”) given on 16 March 2018.

2. By a Notice of Motion dated 13 December 2018, the applicant applied for leave to appeal against 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 to support his application.

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 set out the following grounds:

(1)  The applicant did not have an oral hearing for his application for leave to apply for judicial review.

(2)  This is essential because the applicant missed the hearing before the Board due to miscommunication.  The applicant should not have to request for an oral hearing owing to the difference in nature of the hearing before the Judge and that before the Director or the Board.

(3) The Court of Appeal should have granted the applicant an oral hearing since he did not have an oral hearing for the application for leave to apply for judicial review as a result of the mistake of the applicant who was not legally represented.

7. The grounds set out in the Notice of Motion do not constitute grounds for granting leave to appeal to the Court of Final Appeal. 

8. Firstly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b).  The proposed grounds of appeal relate only to the circumstances of the applicant’s case. 

9. Secondly, the proposed grounds are unarguable.  Under Order 53 rule 3(3) of the Rules of the High Court, Cap. 4A, the Judge may determine the application for leave without a hearing, unless a hearing was requested in the notice of application.  The applicant did not request an oral hearing.  The Judge was fully aware that the applicant failed to attend the oral hearing arranged by the Board.  In light of the matters set out in the applicant’s application for leave to apply for judicial review, there is no proper basis to overturn the Judge’s decision to determine the application on paper without holding an oral hearing.  As for the application to this Court for leave to appeal the Judge’s decision out of time, the practice of this Court is to deal with such application on paper.  Having considered the papers filed by the applicant for his application, we did not see any basis to depart from the usual practice and had proceeded to determine the application on paper. 

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.