Re Rakhim Mudassar

CACV 508/2018

[2019] HKCA 394

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL

CIVIL APPEAL NO 508OF 2018

(ON APPEAL FROM HCAL 1137/2017)

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Before: Hon Lam VP, Au JA and B Chu J in Court

Date of Written Submissions: 21 January 2019

Date of Judgment: 8 April 2019

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JUDGMENT

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Hon B Chu J (giving the Judgment of the Court):

1.By a notice of motion filed on 8 January 2019, the applicant sought leave to appeal to the Court of Final Appeal against the order of this Court made on 3 January 2019 dismissing the appeal for want of prosecution.

2.The appeal was against the decision of Campbell-Moffat J (“the Judge”) dated 5 October 2018 refusing leave to apply for judicial review.

3.The appeal was listed for hearing on 3 January 2019 at 11:30 am.  The relevant notice of hearing was sent to the applicant at his last known address, which we note was the same address as stated in his notice of motion.  The applicant also lodged two sets of skeleton submissions on 26 November 2018 in compliance with the direction contained in the notice of hearing.  We are satisfied that the applicant was duly notified of the date and time of the hearing.

4.Notwithstanding that, the applicant did not appear at the hearing as scheduled.  This Court (Lam VP and B Chu J) therefore dismissed the appeal at 11:50 am.

5.In the notice of motion, the applicant stated that he could not go back to his country because he would not be safe there. In his written submissions lodged on 21 January 2019, he elaborated on the situation of his country such that it would not be safe for him to return.

6.As this Court (differently constituted) explained in Choy Bing Wing v President of Hong Kong Institute of Engineers (HKIE) CACV 172/2013, 19 February 2014, at [15] & [18], the Court is under a duty to supervise the procedure and to ensure that the appeals are to be disposed of efficiently and expeditiously.  Want of prosecution is a form of abuse of process; and this Court has the power to strike out an appeal on that ground.

7.In this application, the applicant failed to explain why he did not attend the hearing on 3 January 2019.  Nor did he give any reason why this Court had wrongly exercised the power of striking out.  We do not see any reasonably arguable ground to challenge this Court’s decision to strike out based on the want of prosecution.

8.In any event, the applicant’s appeal has no merits. In the present case, the Torture Claims Appeal Board (“the Board”) rejected his claim for non-refoulement protection based on the implausibility of his account.  The Judge, after having a careful consideration of the materials, did not find any public law grounds that warrant the court’s interference with the Board’s decision.

9.Plainly, nothing lodged by the applicant for the appeal constituted valid grounds of appeal.  In essence, what the applicant tried to do in the appeal was to invite this Court to reassess the merits of his claim afresh.  As this Court repeatedly explained (see: Re Sunar Mina [2019] HKCA 317 at [16], and Halim Abdul v Kay Ransome [2019] HKCA 354 at [20(2)]), this approach cannot avail the applicant on appeal.

10.The applicant also submitted in his written submissions lodged on 26 November 2018 that his enemies could bribe the police and could exert political power to inflict torture on him. However, this submission had not been canvassed in the Court of First Instance before. Indeed, the applicant had not even advanced these matters before the Director of Immigration or the Board.  As explained in Halim Adbul (supra) at [20(3)], this Court will not generally entertain new argument that is fact-and-evidence sensitive. 

11.Having considered the appeal materials available before us, as well as the applicant’s skeleton submissions lodged for the appeal, we cannot find any ground that justifies a reversal of the Judge’s decision.  In our view, the Judge’s observations are fully justified.  The Judge was entirely correct to refuse to grant leave to apply for judicial review.  The applicant’s appeal was doomed to failure.

12.The matters raised by the applicant in his notice of motion and written submissions for this application do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  He has failed to identify any question of general or public importance for the Court of Final Appeal to determine.  Nor do we see any basis for granting leave on the ‘or otherwise’ limb.  The statutory criteria under section 22(1)(b) of Hong Kong Court of Final Appeal Ordinance (Cap. 484) for granting leave to appeal to the Court of Final Appeal are therefore not met.

13.For these reasons, we dismiss the notice of motion filed on 8 January 2019.

The applicant acting in person