RE DAR USMAN ALI

CACV 439/2018

[2019] HKCA 482

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 439 OF 2018

(ON APPEAL FROM HCAL NO. 1121 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 12 March 2019, this Court (Chu and Barma JJA) handed down our judgment[1] refusing the applicant’s application for relief from the sanction imposed by an unless order of this Court given on 16 November 2018.  Consequent upon the applicant’s failure to comply with the said unless order, his appeal against the decision of Deputy High Court Judge Josiah Lam given on 23 August 2018 was dismissed.     

2.  On 13 March 2019, the applicant filed a Notice of Motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant had also lodged a written submission in support of his application. 

3.  Having considered the applicant’s notice of motion, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of his notice of motion.

4.  The facts of this case have been set out in our judgment. We will not repeat them here.

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 Notice of Motion raised two principal points:

(1)  This Court did not exercise our discretion properly in that:

(a)   While the applicant was said to have twice failed to comply with the court’s direction, it was because the court staff had not been helpful and refused to answer the applicant’s questions and enquiries.

(b)  The applicant had never received any request for lodging written submission in connection with his application for relief against sanction.  The applicant had seen reference to this in the court’s request for bundles, and made enquires with the court staff what that meant but was dismissed on the spot. Similarly, when the applicant tried to submit documents after receiving the court’s letter, the court staff refused to accept them.

(2)  It was wrong to dismiss the applicant’s case without letting him elaborate on his points in person given that he had complained about the lack of language assistance.

7.  The applicant’s written submission essentially repeats the content of the Notice of Motion.    

8.  The points stated in the Notice of Motion and the written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal. 

9.  Firstly, the points 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, the points are not reasonably arguable.  While we did not find the applicant’s explanations for the non-compliance with the court’s directions and unless order satisfactory, our principal reason for refusing to grant relief from sanction was that the applicant’s appeal had no merits for the reasons set out in [17] and [18] of our judgment.  It is not open to the applicant to complain he had not been afforded the opportunity to elaborate his case in person when he had been given ample opportunity by the Deputy Judge to state his case for the intended judicial review.       

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

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