Case Document

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CACV 118/2019

[2019] HKCA 1098

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 118 OF 2019

(ON APPEAL FROM HCAL NO. 347 of 2018)

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RE

GONI MOHAMMAD OSMAN

Applicant

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Before:

Hon Lam VP, Au JA and Andrew Chan J in Court

Date of Judgment:

4 October 2019

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JUDGMENT

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Hon Andrew Chan J (giving the Judgment of the Court):

1.By a judgment dated 19 July 2019, the court (Lam VP and Andrew Chan J) dismissed the applicant’s appeal from the decision of Deputy High Court Judge Bruno Chan dated 28 February 2019 refusing leave to apply for judicial review.

2.By a notice of motion filed on 24 July 2019, the applicant sought leave to appeal to the Court of Final Appeal against the said judgment of the court. In it, the applicant stated that:

(1) The court did not explain the cause of refusal of his claim, but only recited the history thereof. During the hearing, the court stopped him when he tried to explain his problem in Bangladesh, and only asked him if there was any additional point regarding legal errors; and

(2) There was lack of legal assistance in the proceedings before the judge and the Torture Claims Appeal Board (“the Board”).

3.In his written submission lodged on 8 August 2019, the applicant, after reciting the factual background of his case, reiterated the complaint regarding the lack of legal assistance. It was further submitted that the court has taken the opposition stance in dealing with his claim.

4.At [14] – [17] of the judgment, the court explained that the appeal was dismissed because the applicant did not put forth any viable ground to reverse the judge’s decision. The court also explained at [13] that it was not the role of the court to assess the applicant’s claim afresh in the absence of any public law grounds in reversing the decision of the Board. In the present application, the applicant neither engaged with the court’s reasons in dismissing his appeal nor advanced any argument that the court was wrong in this respect. Ground (1) has no merits.

5.The complaint about the lack of legal assistance (Ground (2)) was neither canvassed in the proceedings before the judge nor relied upon in the appeal to the Court of Appeal. It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it; nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal. In any event, this complaint is not reasonably arguable, see: Re Zunariyah [2018] HKCA 14 at [18], Re Tariq Farhan [2018] HKCA 17 at [11], and Re Lopchan Subash [2018] HKCA 37 at [13].

6.It is the applicant’s mere assertion that the court has taken the opposition stance. No particular was given in this respect. There is no evidential basis for us to accept that.

7.In our view, nothing stated in the notice of motion or in the written submission constitutes viable ground of appeal. More importantly, the matters stated therein do not involve any question of great general or public importance. Nor do we see any reason to grant leave on the “or otherwise” limb. The statutory criterion for granting leave to appeal to the Court of Final Appeal is therefore not met: section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484).

8.For these reasons, we dismiss the application for leave to appeal to the Court of Final Appeal.