Re Esmerez Maria Nieva Gelito

CACV 200/2018

[2019] HKCA 58

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 200 OF 2018

(ON APPEAL FROM HCAL 743/2017)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.By a judgment dated 17 September 2018 (published as [2018] HKCA 611), this Court dismissed the applicant’s appeal from the decision of Deputy High Court Judge Josiah Lam dated 21 May 2018 refusing her leave to apply for judicial review.

2.The applicant seeks leave to appeal to the Court of Final Appeal by a notice of motion filed on 4 October 2018. The applicant relied on the following grounds of appeal:

(1)  It was procedurally unfair for this Court to lift the legal aid stay on 21 August 2018; and

(2)  This Court was wrong in concluding that the applicant had no basis to rely on the concept of state acquiescence.

3.The applicant lodged her written submissions on 19 October 2018. 

4.In accordance with the general practice stipulated under paragraph 3 of Practice Direction 2.1, we find it proper to deal with and determine this application on papers without an oral hearing.

5.In our judgment, none of the grounds of appeal set out in the notice of motion is meritorious.  In the present case, the applicant filed her notice of appeal on 1 June 2018. She filed an application to fix date for hearing on 3 July 2018 and the Court notified her on 11 July 2018 of the date of hearing of the appeal. She had applied for legal aid in the court below and legal aid had been refused. She did not apply for legal aid in respect of the appeal until 16 August 2018.  She gave no explanation for such delay. 

6.As regards state acquiescence, we have explained in [16] – [20] of the judgment why the applicant had no arguable basis to rely on that concept in the present case. The applicant fails in either the notice of motion or her skeleton submissions to demonstrate that, even on a reasonably arguable basis, we were wrong in that regard.  

7.The applicant failed to raise proper questions of great general public importance for submission to the Court of Final Appeal for determination.  We cannot see any basis for leave to be granted.  The statutory criteria set out in section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) are not met. 

8.For these reasons, we refuse to grant leave to the applicant to appeal to the Court of Final Appeal, and dismiss the notice of motion filed on 4 October 2018 accordingly.

The applicant acting in person