RE AAMIR ALI

CACV 314/2021

[2022] HKCA 1213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 314 OF 2021

(ON APPEAL FROM HCAL NO 2687 OF 2018)

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J U D G M E N T

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

1.  On 10 May 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Au and Chow JJA) judgment of 19 April 2022 (“the Judgment”) [2022] HKCA 527.  In the Judgment, we dismissed the applicant’s application for relief from sanction for failing to comply with an unless order to lodge his appeal bundles (“Unless Order”).

2.  The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here. After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal (“CFA”) at the discretion of this Court or the CFA 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 CFA for decision.

4.  In his Notice of Motion, the applicant asserted that the lack of legal and language assistance provided to him amounted to procedural unfairness and that he was not aware of the time limit for applying for extension of time.  He further asserted that the lack of language assistance deprived him of the right to seek a further avenue of appeal and amounted to a wrongful exercise of case management power.  He then contended that the Judgment had been made with the lack of evidential consideration of issues raised in Court. 

5.  In his written submissions of 24 May 2022 filed pursuant to Practice Direction 2.1, the applicant repeated the matters raised in his Notice of Motion.  He further asserted that the lack of language and legal assistance before the Torture Claims Appeal Board / Non-refoulement Claims Petition Office and the Deputy Judge amounted to procedural unfairness and unreasonableness and that he was traumatised by the problems in his home country.

6.  In our view, the applicant’s application is totally without merits.  In the Judgment, we dismissed the applicant’s application on the basis that he failed to provide a cogent explanation as to why he failed to comply with the Unless Order to lodge the appeal bundles.[1] We also found that his appeal had no merits and therefore declined to exercise our discretion to lift the sanction.[2]  His allegations fail to pinpoint with particulars any error in the Judgment.

7.  Further, his allegations in relation to the lack of language and legal assistance before the Board and the Deputy Judge are all new and not raised before the judge or in the Notice of Appeal.  It is not the practice of the Court of Appeal to entertain appeal on new points that were not canvassed in the hearing before it; nor generally 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: see Re Orense Marian Masangkay [2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh [2021] HKCA 870 at [7].  In any event, his arguments are general and bare assertions unsupported by particulars.  High standards of fairness do not entail free legal representation at all stages of the proceedings or interpretation service being made available at any time the applicant desires: Barroga Escolastica Tejero [2021] HKCA 279 at [3].

8.  In any event, even taking his case at its highest, his allegations are fact‑specific and do not relate to any question of great general or public importance.

9.  Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

10.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him leave to appeal to pursue a hopeless appeal. Accordingly, the Notice of Motion filed on 10 May 2022 is dismissed.