Re Khan Zabit

CACV 569/2019

[2020] HKCA 585

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 569 OF 2019

(ON APPEAL FROM HCAL 1154/2018)

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Before:  Hon Lam VP, Yuen JA and S T Poon J in Court

Date of Written Submissions:  18 June 2020

Date of Judgment:  22 July 2020

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JUDGMENT

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

1.On 5 June 2020, the Applicant applied by Notice of Motion for leave to appeal to the Court of Final Appeal against this Court’s (Lam VP and ST Poon J) judgment of 25 May 2020.

2.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides that an appeal shall lie to the Court of Final Appeal (“CFA”) at the discretion of this Court or the CFA 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 CFA for decision.

3.The matters set out in the Notice of Motion for leave to appeal to the CFA are factually incorrect and could not give rise to arguable grounds for appeal:  

“1) I did not Failure to lodge skeleton submission would cost me on appeal hearing. i suppose relied too muchon my friends as no translation was given to me. i was unable to hire a private lawyer to help me continue case and granted my judicial review. i just asked help from my friend to lodge a written submission and other appeals.

2) Judges were procedurally unfair because there was a significant in the part where I could not explain during my hearing. because i missed my torture claims appeal board hearing. this is of particular importance as the board did not find me a credible witness.

3) now when i going to explain to the judges why i missed my TCAB appeal hearing and i want to explain the particular signicance then judges do not want to heard.  then just asked few questions likes about name, address etc.” [sic]

4.On (1), the applicant had oral hearings before the Judge as well as in the appeal before this Court.

5.On (2) and (3), the applicant did not miss any hearing of the Appeal Board.  As mentioned at [19] of the judgment of 25 May 2020, the Board did not find it necessary to hold any oral hearing and the Court found nothing amiss in that regard.  Nor did the Board find the applicant to be an unreliable witness.  Instead the Board accepted his version of fact.

6.Further, the applicant did not attempt to explain to us (Lam VP and ST Poon J) at the appeal hearing why he missed the Board hearing.  Nor did he raise such allegation against the Judge at the hearing before us.  

7.The Applicant’s written submissions of 18 June 2020, save for the penultimate and final paragraphs, are largely copied verbatim from his written submissions of 7 January 2020.  We had already dealt with those arguments in our judgment of 25 May 2020.  The new paragraphs at the end of the Applicant’s submissions do not take his case further.  The alleged attack on his father had not been raised before and there is no evidence in support of such assertion.

8.We do not consider that the intended appeal raised any question of great general or public importance or otherwise ought to be submitted to the CFA for decision.

9.For these reasons, we refuse to grant leave to appeal to the CFA.  We would dismiss the Applicant’s Notice of Motion.

The applicant acting in person