RE WASEEM BAIG

CACV 323/2021

[2022] HKCA 903

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 323 OF 2021

(ON APPEAL FROM HCAL NO 2737 of 2018)

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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 18 November 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Au JA and Lisa Wong J)  judgment of 5 November 2021 (“the Judgment”)  ([2021] HKCA 1640). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge To (“the Deputy Judge”)  dated 17 June 2021 refusing the applicant’s application for leave to apply for judicial review ([2021] HKCFI 1736).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

4.  In his Notice of Motion, the applicant alleged that there was procedural unfairness and a failure to adhere to a high standard of fairness given the lack of legal and language assistance, and that he was deprived of the right to make full grounds for appeal as the decision of the Board was not translated to him.  He further claimed that he “was not aware with the hearing date so [he] could not submit skeleton as [he] received the Notice of Hearing letter and was not aware the dealing for submitting the skeleton submission is 14 September 2021” (sic).

5.  The applicant lodged his written submissions on 2 December 2021.  In those submissions, the applicant asserted that the Court did not consider his grounds of appeal thoroughly and the Judgment was unreasonable given his lack of language and legal assistance before the Board and the Court of First Instance.

6.  In our view, the applicant’s intended appeal has no merit at all.  It is well established that the Court of Appeal will not allow an application this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014)  at [2] and [3].  The matters raised in his Notice of Motion were essentially the same as those arguments raised in his Notice of Appeal previously filed on 25 June 2021 before this Court.  Those arguments had already been fully considered and rejected by this Court at [11] - [19] of the Judgment and the applicant failed to identify with specific particulars any error in the Judgment.  As such, nothing set out in the Notice of Motion can be construed as viable ground of appeal to the Court of Final Appeal.

7.  As to the applicant’s allegation that he was not aware of the deadline for submitting his skeleton submissions for his appeal previously before this Court, he did not provide any specific particulars or evidence in support of his contention.  The Notice of Hearing dated 18 August 2021 clearly reminded the applicant that the deadline for lodging his skeleton submissions was 14 September 2021[1]; and according to the Court record, the Notice of Hearing was sent to the applicant on the same day and the post was not returned as undelivered.

8.  In any event, the applicant’s contentions are fact-specific and do not relate to any question of great general or public importance.

9.  Accordingly, the applicant has also failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

10.  For these reasons, the application for leave to appeal to the Court of Final Appeal is refused and the Notice of Motion filed on 18 November 2021 dismissed.