RE GURUNG SAGAR

CACV 597/2018

[2019] HKCA 1026

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 597 OF 2018

(ON APPEAL FROM HCAL NO. 113 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.  By a judgment dated 25 June 2019 ([2019] HKCA 658), the Court of Appeal dismissed the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) dated 12 December 2018 in HCAL 113/2018 refusing to grant leave to him to apply for judicial review.

2.  By a notice of motion dated 28 June 2019, the applicant now seeks leave to appeal to the Court of Final Appeal.  

3.  In the notice of motion, the applicant complained that:

(i)  the hearing for his appeal against the Judge’s decision was vacated despite he had filed his written submissions; and

(ii)  there was a lack of language assistance which should be considered as discriminatory and procedurally unfair.

4.  On 4 July 2019, the Registrar of Civil Appeals (“the Registrar”) directed the applicant to lodge with the court his written submissions on or before 12 July 2019.  The court only received the applicant’s written submissions dated 11 July 2019 by post on 16 July 2019.  We are prepared to excuse the delay and allow the late lodging of the applicant’s written submissions.  In his written submissions, he merely repeated what he had set out in the notice of motion.

5.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on paper only without an oral hearing.  As it is appropriate to do so, this application shall be determined on paper accordingly.

6.  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. 

7.  We note that the oral hearing for the applicant’s appeal was vacated due to his failure to lodge his written submissions within the prescribed time limit (on or before 4 March 2019).  Although his written submissions was dated 28 February 2019, the court only received the same by post on 29 March 2019 which was 2 days before the hearing.  The applicant should shoulder the responsibility to lodge his written submissions as directed and to bear the consequence of his substantial delay.  Further, the applicant’s complaint on lack of language assistance was canvassed and rejected at [12] of our judgment.  The grounds and complaints now put forward by the applicant in the notice of motion and his written submissions do not constitute grounds for granting leave to appeal to the Court of Final Appeal. 

8.  For the reasons that we gave in our judgment of 25 June 2019, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s order.  None of the questions raised by the applicant in the notice of motion or his written submissions involves an arguable point or a question of great general or public importance.  Nor do we see any basis to grant leave under the “otherwise” limb.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) are not met.

9.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.