RE ALI HASNAIN

CAMP 8/2018

[2018] HKCA 533

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO CAMP 8 OF 2018

(ON APPEAL FROM HCAL 282 OF 2017)

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J U D G M E N T

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

1.  By a judgment dated 27 April 2018, this court (Lam VP and Barma JA) dismissed the applicant’s application for leave to appeal out of time against the decision of Deputy High Court Judge Woodcock of 1 December 2017 refusing him leave to apply for judicial review. By a notice of motion dated 3 May 2018, the applicant applied for leave to appeal against the judgment to the Court of Final Appeal.

2.  We have duly considered the applicant’s notice of motion and his written submission dated 23 May 2018.  He submitted that he did not receive any assistance in the judicial review application.  His explanation for the delay in making an appeal against the decision of DHCJ Woodcock’s decision should have been accepted.  The Court of Appeal ought not to have gone into the merit of the intended appeal because this is a matter for the first instance judge. In any event, the court should have recognized that his English proficiency is low.

3.  Notwithstanding the applicant’s request for an oral hearing, application for leave to appeal to the Court of Final Appeal is usually processed on the papers as provided for by paragraph 3 of Practice Direction 2.1 on Application for Leave to Appeal to the Court of Final Appeal filed in the Court of Appeal in Civil Cases which states that leave applications shall be dealt with and determined on paper unless the court directs otherwise.  Having considered the applicant’s notice of motion and skeleton submissions, we do not see any justification for departing from such usual practice.  We consider that the application can be properly disposed of without an oral hearing, and have proceeded to consider the application on paper.  We now hand down our judgment.

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.  For the reasons that the court gave in the judgment of 27 April 2018, we do not see any prospect of success in the applicant’s intended appeal against the judge’s order.  The prospects of success are a crucial consideration in applications for leave to appeal out of time.  Based on the observations at [14] of the judgment, the court concluded that the applicant had access to language assistance.  At [15], the court concluded that the applicant failed to identify any real prejudice from the matters he complained of.  The applicant could not demonstrate any error at [14] and [15] of the judgment. 

6.  None of the matters relied on by the applicant amount to questions of great, general or public importance.  The applicant has failed to meet the threshold imposed by section 22(1)(b) to enable him to obtain leave to appeal to the Court of Final Appeal.

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