RE ZAFAR MUAZAM

CACV 2/2018

[2018] HKCA 267

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 2 OF 2018

(ON APPEAL FROM HCAL NO 275 OF 2017)

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JUDGMENT

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

1.  On 23 March 2018, we handed down our judgment (“the Judgment”) dismissing the applicant’s appeal against the decision of M Poon J (“the Judge”) given on 5 December 2017 refusing him leave to apply for judicial review.

2.  On 28 March 2018, the applicant filed in these proceedings a Notice of Motion applying to the Court of Final Appeal for an order that the Judgment be set aside on the grounds set out therein.  On 25 April 2018, the applicant lodged with the court a written submission in support of the Notice of Motion.

3.  The applicant’s Notice of Motion is defective.  First, while it seeks relief from the Court of Final Appeal, it was filed in the High Court.  Second, in so far as it is an application to this Court, there is no proper basis, and it is not open to the applicant, to seek from us an order setting aside the Judgment.  On these bases alone, the Notice of Motion would have to be dismissed.

4.  As the applicant is acting in person, it is possible that he is mistaken about the procedure and is in fact seeking leave to appeal the Judgment to the Court of Final Appeal.  Accordingly, we will also consider the application assuming it was intended to be an application for leave to appeal to the Court of Final Appeal.

5.  Under section 22(1)(c) of the 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 for decision.  

6.  The grounds set out in the Notice of Motion are directed at: (1) this Court’s refusal to admit the documents he handed up at the hearing before us as new evidence in his appeal (Grounds 1 to 4); and (2) the observation in [22] of the Judgment that the applicant had the benefit of legal representation in presenting his case to the Director (Ground 5).  

7.  The applicant’s Notice of Motion has not identified any question of great general or public importance.  The law on admission of new evidence on appeal is well settled: see Ladd v. Marshall [1954] EWCA Civ 1, 1 WLR 1489.  Its application in an appeal involving torture claimant has been considered in Hounkpedji Messanh v. Torture Claims Appeal Board CACV 164/2017, [2018] HKCA 152 at [14].  The applicant does not dispute these legal principles.  His complaint, as appears from the Notice of Motion and his written submission, is directed at this Court’s conclusion on the circumstances of this case, that he fails to meet the legal requirements set out in Ladd v. Marshall, and there are no exceptional circumstances justifying a relaxation or departure from the Ladd v. Marshall requirements.

8.  In any event, the applicant’s grounds are not reasonably arguable.  We have at [17] of the Judgment explained why we consider the applicant fails to show that the new documents could not have been obtained with reasonable diligence for use before Poon J.  We have also at [18] of the Judgment explained why the new documents would not have affected the Judge’s conclusion that the applicant’s intended judicial review has no reasonable prospect of success.  Importantly we pointed out that the new documents have no impact on the conclusion of the Director and the Board that the applicant’s case does not amount to a claim of torture risk, persecution risk, BOR 2 risk or BOR 3 risk.  The applicant’s grounds and submission have not addressed this at all.

9.  The applicant’s disagreement that he already had legal representation in presenting his case to the Director is also fact specific and does not involve any question of great general or public importance.  We also see no merit in his argument that the legal representation was only in relation to the torture, persecution and BOR 3 risk claims: see [22] of the Judgment and the reasons given by the Judge, quoted in [9] of the Judgment.

10.  For these reasons, we would have refused leave to appeal to the Court of Final Appeal if the Notice of Motion was intended to be an application to this Court for leave to appeal.

11.  For the above reasons, we dismiss the Notice of Motion.