RE ASGHAR ADNAN

CAMP 164/2018

[2019] HKCA 1436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 164 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 972 OF 2017)

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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 23 May 2019, this Court (Barma and Au JJA) handed down our judgment (“the Judgment”) [2019] HKCA 556, refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) given on 24 August 2018 (“the Deputy Judge’s Decision”).

2.  We dismissed the applicant’s summons on the basis that the intended grounds of appeal against the Deputy Judge’s Decision were totally unmeritorious and had no prospect of success and the Deputy Judge was correct in refusing to grant leave to apply for judicial review.

3.  The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.

4.  On 10 June 2019, the applicant filed a Notice of Motion accompanying a supporting affirmation to apply for leave to appeal against the Judgment to the Court of Final Appeal.  The applicant has also lodged his written submissions on 16 July 2019 to support his application pursuant to Master Au‑Yeung’s directions dated 11 June 2019.

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 applicant advanced the following grounds in the Notice of Motion:

“- The claims that the Judgment has made stated is no substance in the grounds of the application is not true.

    -   On the strength of the grounds not made a complain about the poor performance of his duty lawyer is due of fearing he will be picked out for misappropriating by the adjudicator.

    -   The applicant oftenly did not have enough time to address the bundle, rest of the grounds I will submit as soon as possible .” [sic]

7.  In his supporting affirmation filed on the same date, the applicant also listed the additional grounds in that: (a) the court was wrong in law in holding that there was no state acquiescence or involvement; and (b) the court failed to find out the clear details of the current situation of Pakistan.

8.  In his written submissions, he quoted some passages from ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289.  He also argued that the decision makers are under a duty to act fairly and quoted The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374; Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 in support.

9.  Having considered the applicant’s Notice of Motion and written submissions, pursuant to the Practice Direction 2.1, we regard it as appropriate to consider this application on paper without an oral hearing.

10.  In our view, this application is devoid of merit.

11.  First of all, nowhere in the applicant’s Notice of Motion or written submissions does he identify any errors in the Judgment.  As emphasized in the Judgment, the findings of fact, such as the state acquiescence or involvement and the country situation, are generally within the province of the responsibilities of the Board and the Director, but not within that of the court.  It is not a viable ground to challenge the Judgment on the bases as set out in the supporting affirmation.

12.  Secondly, those authorities cited by the applicant to support the complaint of procedural unfairness were not argued before this court.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the application before it[1] nor is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not previously argued in the Court of Appeal[2].

13.  In any event, those authorities do not assist the applicant as those were general principles governing the decision makers, ie, the Board or the Director.  The Deputy Judge concluded at [12] of the Deputy Judge’s Decision that the Board and the Director made no error of law or did not fail to apply high standards of fairness.  We agreed with his assessment and found that there was no error in the Deputy Judge’s Decision: see [26] of the Judgment.

14.  In the premises, none of the grounds raised by the applicant identified any errors in the Judgment.  These are not viable grounds of appeal.

15.  Further and in any event, none of the questions raised by the applicant in the Notice of Motion or in his written submissions involve any question of great general or public importance such that it ought to be submitted to the Court of Final Appeal for decision. Nor do we see any basis to grant leave on the “otherwise” limb.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance are not met.

16.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his Notice of Motion.