RE APM

CACV 257/2017

[2018] HKCA 305

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 257 OF 2017

(ON APPEAL FROM HCAL NO 280 OF 2017)

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J U D G M E N T

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

1.  This Court (Lam VP and Barma JA) handed down the judgment dismissing the appeal on 27 March 2018.

2.  On 3 April 2018, the applicant issued a Notice of Motion seeking leave to appeal to the Court of Final Appeal.  In the notice, he explained why he failed to attend the hearing on 15 March and thereafter failed to comply with the direction to lodge written submissions.  Basically, he said he could not understand the directions without translation.

3.  Pursuant to Practice Direction 2.1, the applicant lodged submissions in support of his application on 26 April 2018. 

4.  We heard the Motion on 24 May 2018. At the hearing, the applicant showed us a document issued by the Department of Surgery, New Territories West Cluster regarding an operation which, according to the applicant, had been carried out on him. He said he wished to stay in Hong Kong for another 2 to 3 months so that he could attend a final review by the doctor. According to that document, the date of the next review is 31July 2018.  

5.  Having heard the applicant, we do not accept his explanation for non-compliance with the earlier directions for lodging written submissions.  He had the means and resources to procure assistance in lodging the notice of motion and the preparation of skeleton submissions in support of the motion (all of which were written in English) after the appeal had been dismissed.  We do not accept that he could not have obtained the necessary assistance in understanding the letter from the court of 15 March 2018 which set out clearly the consequence of the failure to comply with the requirement of lodging submissions by 19 March 2018.  

6.  In the judgment of 27 March 2018, the Court assessed the merits of the appeal by reference to the facts of this case.  This was a case and fact sensitive assessment.  For the reasons given, the appeal was wholly devoid of merit.

7.  The relevant criteria for granting leave to appeal to the Court of Final Appeal are set out in Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance Cap 484:

“ An appeal shall lie to the Court [of Final Appeal] at the discretion of the Court of Appeal or the Court [of Final Appeal], from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court [of Final Appeal], as the case may be, 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.”

8.  Having read the documents, we cannot find any basis for holding that leave to appeal should be granted pursuant to Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.  There is no question of great general or public importance in the intended appeal.  Nor is there any reason for leave to be granted on the “otherwise” limb.

9.  Further, it is not the proper exercise of our discretion to grant the applicant a period of stay in Hong Kong pending his medical review. We are obliged to determine the present application in accordance with law and the criteria in Section 22(1)(b). It is up to the Director of Immigration, not the courts, to decide if it is appropriate to grant indulgence to the applicant on humanitarian ground.

10.  The Notice of Motion of 3 April 2018 is therefore dismissed.