Case Document

100%Judiciary

CAMP 16/2019

[2019] HKCA 1041

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 16 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 168/2017)

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RE:

KHARSU NUMAN

Applicant

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Before: Hon Lam VP, Barma and Au JJA in Court

Date of Written Submissions: 18 July 2019

Date of Judgment: 16 September 2019

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JUDGMENT

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

1.On 6 June 2019, the Court (Lam VP and Barma JA) handed down a judgment ([2019] HKCA 626) refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Woodcock given on 18 August 2017.

2.On 10 June 2019, the applicant filed a Notice of Motion together with a supporting affirmation to apply for leave to appeal against the said judgment to the Court of Final Appeal. The applicant also lodged written submissions to support his application.

3.The Notice of Motion stated that: (i) it is not true that there is no substance in the grounds of the application; (ii) the applicant did not complain about the poor performance of the duty lawyer because he feared he would be picked out by the adjudicator for “misappropriating”; and (iii) the applicant genuinely did not have enough time to address the bundle.

4.The applicant’s affirmation set out two grounds to support his application, namely, (i) the Court was wrong in law in holding there was no state acquiescence or involvement; and (ii) the Court failed to establish the details of the current situation in Bangladesh.

5.At [25] of the judgment, the Court referred to Re Esmerez Maria Nieva Gelito [2018] HKCA 611 in holding that the concept of state acquiescence or involvement did not arise in the present case. In this connection, the relevant finding of the Board was at [88] to [89] of the Board’s Decision. The adjudicator had actually applied a test of reasonable protection at [90] which, as held in Re Esmerez Maria Nieva Gelito, supra, was more favourable to the applicant. The applicant failed to engage with the Court’s said reasoning for holding against him in the grounds advanced by him in the present application.

6.None of the matters stated in the Notice of Motion, the affirmation and the written submission constitutes reasonably arguable grounds for granting leave to appeal to the Court of Final Appeal.

7.Further, the applicant failed to identify any question of great general or public importance. The statutory thresholds for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484) are not met. Nor do we see any basis for granting leave on the “otherwise” limb under the section.

8.For these reasons, we refuse to grant leave to the applicant to appeal to the Court of Final Appeal. The notice of motion filed on 10 June 2019 is therefore dismissed.