RE GHARU MANPREET SINGH

CAMP 41/2018

[2018] HKCA 510

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 41 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 627 of 2017)

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JUDGMENT

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

1.  On 7 June 2018 this Court (Chu and Barma JJA) handed down our judgment dismissing the applicant’s application for leave to appeal out of time against the decision of Campbell-Moffat J (“the Judge”) given on 16 March 2018 refusing him leave to apply for judicial review.

2.  By a Notice of Motion dated 25 June 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal. Pursuant to directions given by the Registrar of Civil Appeals, the applicant had lodged written submission in support of his application.

3.  The applicant has asked for an oral hearing to hear his application.  Paragraph 3 of Practice Direction 2.1 on Application for Leave to Appeal to the Court of Final Appeal filed in the Court of Appeal in Civil Cases provides that: “Subject to any direction or order made by the Court, all leave applications will be dealt with and determined on paper without an oral hearing.”  Having considered the Notice of Motion and the written submission, we do not consider it is necessary to hear the application in an oral hearing.  We have proceeded to consider the application on paper and this is our decision on the application.

4.  Under section 22(1)(b) of the Court of Final Appeal Ordinance, Cap. 484, this Court may grant leave to appeal to 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.

5.  In the Notice of Motion, the applicant stated that this Court should not have taken into consideration the prospect of success of his intended appeal, which should be separately considered by the Court that hears his appeal.     

6.  The grounds set out in the Notice of Motion does not amount to question of great, general or public importance.  Whether to allow an appeal to be brought out of time is a matter of the court’s discretion.  The law on how the court should exercise the discretion is clear and well established.  Paragraphs 13 and 15 of this Court’s judgment refusing the applicant’s application have set out the relevant law and the matters that the court shall take into account.  The prospect of success of the intended appeal is a crucial consideration when the court decides whether to exercise its discretion to extend the time for appealing.  

7.  Further, in the light of the well-established legal principles, the ground stated in the Notice of Motion is not arguable. 

8.  The applicant stated in the written submission that he was advised that the summons was to seek extension of time for filing of notice of appeal only and that he did not know he had to state the grounds of his intended appeal.  We see no merits in these contentions.  In the summons for application for leave to appeal out of time that the Judiciary provides to litigants, there is a section beginning with these words: “The grounds of the proposed appeal will be as follows” with a note in the margin informing the applicant to use a separate paragraph for each ground of appeal and to number the grounds in consecutive numbers.  There is also a “Guidance for applicant(s)” section, which states that the leave application should be supported by a statement setting out the reasons why leave should be given, and accompanied by a draft grounds of appeal.     

9.  The other matters that the applicant stated in his written submission also do not amount to arguable grounds of appeal against the Judge’s decision to refuse him leave to apply for judicial review.  In his application for leave to apply for judicial review, he did not request for an oral hearing.  It is not open to him to now say he would have put forward complaints on procedural unfairness had he been given an oral hearing before the Judge.

10.  Given that no question of great, general or public importance is involved in the applicant’s intended appeal, and there is no other reason for submitting the proposed appeal to the Court of Final Appeal for decision, the conditions for giving leave to appeal are not met.

11.  Accordingly, we dismiss the applicant’s Notice of Motion.