Re Alam Khan

CAMP 315/2019

[2020] HKCA 1056

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 315 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 361 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.On 31 July 2020, this Court (Cheung and Au JJA) handed down our judgment (“the Judgment”) [2020] HKCA 652, refusing to grant extension of time to the applicant to appeal against the decision of Deputy High Court Judge Josiah Lam given on 5 October 2018 ([2018] HKCFI 2138) (“the Deputy Judge’s Decision”).

2.We dismissed the applicant’s summons on the basis that his explanation for a 11-month delay was without proof and lacked specifics and, in any event, the intended grounds of appeal contained no viable grounds of appeal against the Deputy Judge’s Decision.

3.The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.

4.On 11 August 2020, the applicant filed a Notice of Motion to apply for leave to appeal against the Judgment to the Court of Final Appeal.  The applicant was directed by the Registrar of Civil Appeals on 13 August 2020 to lodge his written submissions on or before 25 August 2020.  Nevertheless, he lodged his written submissions late on 26 August 2020.  Although the delay was insignificant, the applicant’s written submissions were the same as those of 9 January 2020 put forward before this Court: see [17] of the Judgment.  Given the 1-day delay, we would take into account the written submissions for the present purpose.  However, we had explained why these arguments would not assist the applicant at paragraph 26 of the Judgment.

5.Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), leave to appeal to the Court of Final Appeal may be granted 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 Court of Final Appeal for decision.

6.In the applicant’s Notice of Motion, he stated that:

“The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the director of immigration and the adjudicator.

I would like to inform the Honourable court that there is error in my decision, The decision maker relied on COL information and my previous facts which were in favour on rejecting my claim.

The office and court prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining.

The Judge did not apply the law properly.

Procedural unfairness.” [sic]

7.Having considered the applicant’s Notice of Motion and the written submissions, pursuant to the Practice Direction 2.1, we did not find any exceptional circumstance in this application to deviate from the usual practice and thus proceeded to consider this application on papers without any oral hearing.

8.In our view, this application is devoid of merit.

9.Nowhere in the applicant’s Notice of Motion and the written submissions has he identified any errors in the Judgment.  The grounds in his Notice of Motion either targeted at the Board or at the Deputy Judge.  We had explained at paragraphs 24 - 28 of the Judgment why we dismissed the applicant’s summons for extension of time to appeal the Deputy Judge’s Decision.  The applicant failed to identify any errors in our reasons. These are therefore not viable grounds to challenge the Judgment.  On this basis alone, we will dismiss this application.

10.In any event, none of the questions raised by the applicant in the Notice of Motion involve any question of great general or public importance such that it ought to be submitted to the Court of Final Appeal for decision.  Nor do we see any basis to grant leave on the “otherwise” limb.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance are therefore not met.

11.Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his Notice of Motion.

The applicant acting in person