RE MIAH MOHAMMAD SHAMIM

CACV 386/2018

[2019] HKCA 423

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 386 OF 2018

(ON APPEAL FROM HCAL NO. 226 of 2017)

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J U D G M E N T

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

1.  On 28 January 2019, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Campbell-Moffat J (“the Judge”) given on 10 August 2018 refusing him leave to apply for judicial review.     

2.  On 29 January 2019, the applicant filed a Notice of Motion together with a supporting affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  Despite the directions given by the Registrar of Civil Appeals, the applicant has not lodged a written submission in support of his application. 

3.  In the Notice of Motion, the applicant requested that an oral hearing be held to hear his application.  As provided in paragraph 3 of Practice Direction 2.1, the practice of this Court is to deal with and determine applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  Having considered the applicant’s notice of motion and affirmation, we see no reason to depart from this practice.  We have therefore proceeded to determine the applicant’s application on the basis of his notice of motion and affirmation.

4.  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.

5.  The Notice of Motion stated that: (i) the judgment of this Court is unfair and has not properly considered the country of origin information of Bangladesh; (ii) this Court has turned a blind eye to the poor quality of the service of the duty lawyer scheme and the assigned lawyer; and (iii) the applicant was not represented before the Board and he is of low education level, but this Court did not look into the appeal before the Board.

6.  The applicant’s affirmation further set out two grounds to support his application, namely, (i) the Court was wrong in law in holding there was no state acquiescence or involvement; and (ii) The Court failed to establish the details of the current situation in Bangladesh. 

7.  The matters stated in the Notice of Motion and the affirmation do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  Firstly, they relate only to the circumstances of the case, and do not involve any question of great general or public importance, as required by section 22(1)(b).  Secondly, other than the ground about state acquiescence, all the other grounds in the Notice of Motion and the affirmation were not raised in the appeal 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 appeal before it.[2] Nor is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]  Thirdly, as pointed out in [13] of our Judgment, the ground about state acquiescence is unarguable.      

8.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

9.  As the statutory requirements for giving leave to appeal are not met, we dismiss the Notice of Motion.