Re Aashiq Khan

CACV 195/2018

[2019] HKCA 5

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 195 OF 2018

(ON APPEAL FROM HCAL NO. 792 of 2017)

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Before:  Hon Chu and Barma JJA and M Poon J in Court

Date of Judgment:  7 January 2019

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J U D G M E N T

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

1.On 29 October 2018, this Court handed down our judgment[1] (“the Judgment”) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 21 May 2018 refusing him leave to apply for judicial review.  

2.By a Notice of Motion dated 7 November 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal. 

3.Despite the directions given by the Registrar of Civil Appeals, the applicant has not lodged any written submission to support his application.

4.Having considered the applicant’s notice of motion, 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 did not raise new grounds.  All the grounds fall under the complaint of lack of language and legal assistance.

(2)  The judges wrongfully exercised the discretion and dismissed the case.  Realistically speaking, the applicant could not have complained to the Board about the lack of translation of the Board’s determination.

7.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.  Secondly, the grounds are unarguable.  We have in [12] and [13] of our judgment pointed out how the applicant’s complaint about lack of language assistance in his ground of appeal to this Court differed in scope and substance from that in the ground for judicial review argued before the Judge. The applicant’s present complaint of no translation of the Board’s determination is yet another expansion of, and deviation from, his complaint in the ground for judicial review and the ground of appeal.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not argued in the appeal[2]. It is also not the general practice of the Court of Final Appeal to grant leave on new fact-sensitive points that had not been argued in the Court of Appeal[3].     

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

9.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.