Re Maqsood Ahmed

CACV 312/2018

[2018] HKCA 949

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 312 OF 2018

(ON APPEAL FROM HCAL NO 896 of 2017)

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JUDGMENT

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

1.On 29 October 2018, this Court (Chu JA and Poon J) handed down our judgment[1] (“the Judgment”) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 29 June 2018 refusing him leave to apply for judicial review.  

2.By a Notice of Motion dated 1 November 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.

3.On 14 November 2018, the applicant lodged a written submission in support of 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 and his written submission.

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, which were also repeated in the written submission:

(1)   The applicant did not argue that Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 is not good law.  Rather, his argument is that the high standard of fairness laid down in the case has not been implemented to its fullest.

(2)   There was no evidence that the Duty Lawyer Service has a policy of assessing a claim in terms of its merits when it comes to the BOR 2 assessment.  The Duty Lawyer Service would not be aware of the assessment and could not have rendered help if the case was not referred to it.

(3)   The applicant is uncertain whether it is appropriate for a judge of the Court of First Instance to preside over an appeal in the Court of Appeal.   

7.The grounds advanced by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  Firstly, they all relate to the circumstances of his case.  No question of great general or public importance is involved.

8.Secondly, the grounds are not reasonably arguable.  In respect of the first ground, as can be seen from [9] of the Judgment, we have not misunderstood the applicant’s arguments in the appeal.  Apart from arguing that there was procedural unfairness in that the high standard of fairness had not been adhered to, the applicant also contended that Secretary for Security v Sakthevel Prabakar was decided before the implementation of the Unified Screening Mechanism.  For the reasons given in [11] and [12] of the Judgment, we have rejected the arguments.

9.On the second ground, we have pointed out in [12] of the Judgment that it is for the applicant to approach the Duty Lawyer Service to seek further assistance in connection with his BOR 2 assessment.  Had he done that, the Duty Lawyer Service would assess the merits of his claim and other relevant circumstances and decide on whether to provide further assistance.

10.As for the third ground, it is provided in section 5(2) of the High Court Ordinance, Cap. 4 that a judge of the Court of First Instance may sit as an additional judge of the Court of Appeal, in which case he shall have all the jurisdiction and powers of a judge of the Court of Appeal.    

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

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

The applicant, unrepresented, acted in person.