RE BEPARI MASUD

CACV 20/2019

[2019] HKCA 816

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 20 OF 2019

(ON APPEAL FROM HCAL NO. 205 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1)   Leave to appeal to Court of Final Appeal

1.1   On 17 May 2019, this Court handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 11 January 2019 in which he refused to grant leave to the applicant to apply for judicial review.

1.2   The facts and issues in the appeal before the Court of Appeal, as well as the Court’s reasons for dismissing it, are set out in our judgment.  We will not repeat them here.

1.3   The applicant now applies, by a notice of motion dated 23 May 2019, for leave to appeal against our judgment to the Court of Final Appeal.  We will deal with this application on paper.

1.4   The applicant stated in his notice of motion that there was ‘error of law’ in his decision.  The basis of his argument was that he was not afforded an opportunity before the Court of Appeal for an oral hearing.  He stated that he had to submit further evidence at the oral hearing before the Court of Appeal.

1.5   It is trite that there is no absolute right to an oral hearing as the question must depend on the standard of fairness required, the nature of the decision making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representation: ST v Betty Kwan [2014] 4 HKLRD 277 at para 26, as applied in the Court of Appeal in Riaz Yasmeen [2018] HKCA 576 at paras 21-22.

1.6   More importantly, the applicant did not comply with the directions of the Registrar of Civil Appeals of 31 January 2019 by failing to lodge any skeleton submission, see our judgment at paragraph 1.2.  The original hearing before the Court of Appeal was hence vacated.  The absence of an oral hearing for the applicant was due to his own making.

1.7   As for the applicant’s intention to adduce further evidence at the Court of Appeal level (the nature of which he still has not identified), it is trite that room to allow new evidence or new arguments is limited at the appellate stage.  The applicant is required to satisfy the requirements in Ladd  v Marshall [1954] 1 WLR 1489 for adducing new evidence.  For new arguments generally, the appellate courts will not entertain new arguments which have not been canvassed at the Court of First Instance for which leave has not been sought within time: Nupur Mst [2018] HKCA 524 at para 14(3) and (4).

1.8   In any event, none of these complaints of the applicant in his notice of motion raises any grounds of great general or public importance.

2)  Legal principles

2.   Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘HKCFAO’) leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

3)  Our view

3.1   The matters stated by the applicant in his notice of motion do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the HKCFAO.  Nor is there any such question apparent to us from the matters he has raised in his notice of motion.

3.2   We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

4)  Disposition

4.   For these reasons, the notice of motion dated 23 May 2019 is dismissed.