Re Shahzad Khurram

CAMP 582/2021

[2022] HKCA 1705

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 582 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2632 OF 2018)

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Before:  Hon Au and G Lam JJA in Court

Date of Judgment:  16 November 2022

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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 20 September 2022, the applicant filed a Notice of Motion together with a supporting affirmation to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 1 September 2022 (“the Judgment”) ([2022] HKCA 1283). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 29 April 2021, by which the Deputy Judge refused his application for leave to apply for judicial review ([2021] HKCFI 1139) (“the Decision”).

2.The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

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

4.In both his Notice of Motion and supporting affirmation, the applicant stated:

“Respected Sir/Madam, I am late for apply due to [lack] of [knowledge] and insufficient sources. Please accept my [filing] application so that I can process my case further. I hope I will get your favour.” (sic)

5.Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 27 September 2022.  Those submissions are the same as his written submissions dated 31 December 2021 before this Court which the applicant relied on in support of his reapplication for extension of time to appeal against the Decision.

6.At the outset, pursuant to section 24(2) of the HKCFAO, the application for leave to appeal to the Court of Final Appeal should be made within 28 days from the date of the judgment to be appealed from.  The deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment thus fell on 29 September 2022.  As such, the applicant is within time in taking out his present application.

7.That said, in our view, his intended appeal is clearly without substance.  The assertions in his Notice of Motion, supporting affirmation and written submissions had already been considered and rejected by this Court at [13] ‑ [19] of the Judgment and the applicant failed to identify with specifics or particulars any error in the Judgment.  It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014) at [2] and [3].  As such, nothing as stated in the Notice of Motion, supporting affirmation or written submissions can be regarded as viable grounds of appeal. Accordingly, the applicant’s intended appeal plainly has no merit.

8.In any event, even taking his case at its highest, his allegations are fact‑specific and do not relate to any question of great general or public importance.

9.Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

10.For these reasons, the applicant’s intended appeal has no merit.  Accordingly, the Notice of Motion filed on 20 September 2022 is dismissed.

The applicant acting in person