RE MOHAMMAD SABIR

CACV 159/2018

[2019] HKCA 59

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 159 OF 2018

(ON APPEAL FROM HCAL NO 979 of 2017)

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JUDGMENT

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

1.  On 12 November 2018, this Court (Chu and Barma JJA) handed down our judgment[1] (“the Judgment”) dismissing the applicant’s summons applying for relief from the sanction imposed by the unless order dated 13 July 2018.  

2.  By a Notice of Motion dated 15 November 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal. 

3.  Pursuant to the directions given by the Registrar of Civil Appeals, the applicant has lodged a written submission dated 26 November 2018 to support his application.

4.  Having considered the applicant’s notice of motion and written submission, 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.

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 the following grounds:

(1)   The applicant’s failure to lodge appeal bundle as directed was because he had wrongly trusted his friend.

(2)   There was no reason for the Court not to believe the applicant, and the Court did not find his reason to be untruthful.

(3)   He had not been in touch with the friend and he did not know whether he had returned from India.

(4)   There should not be an assessment of the merits of the case in considering whether to grant relief from sanction. 

(5)   The applicant should be given the benefit of the doubt.  This is a highly sensitive case, involving the safety of the applicant.  It is different from a normal civil case where only money is involved. 

7.  The written submission essentially repeats the grounds stated in the notice of motion.

8.  The grounds advanced by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  Firstly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b).  The matters raised in the notice of motion only relate to the circumstances of the applicant’s case.

9.  Secondly, none of the grounds is of assistance to the applicant.  Apart from the reservations we have about the applicant’s failures to comply with the directions of the Registrar of Civil Appeals and the unless order (see [12] and [13] of the Judgment), an important reason for our refusal to grant relief from the sanction imposed by the unless order is the lack of merits of the appeal.  We have set out in [14] to [17] of the Judgment the reasons for our conclusion that the appeal is bound to fail. When the court considers whether to grant relief from the sanction of dismissal of appeal, the merits of the appeal must be an important factor to be taken into account because it would not be in the interests of the administration of justice[2] to grant relief from sanction if the appeal is bound to fail.      

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

11.  For the above reasons, the statutory requirements for giving leave to appeal is not met.  Accordingly, we dismiss the Notice of Motion.