Re Mehmood Sajid

CACV 134/2022, [2024] HKCA 373

On Appeal From [2024] HKCA 138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 134 OF 2022

(ON APPEAL FROM HCAL NO 2538 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.By a judgment dated 7 February 2024 ([2024] HKCA 138) (“the Judgment”), this court dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 1 April 2022 ([2022] HKCFI 720), whereby the Deputy Judge refused his application for leave to apply for judicial review.

2.On 19 February 2024, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against the Judgment.

3.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.

4.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.

5.In his Notice of Motion, the applicant again repeated that if refouled he would be harmed or killed by his enemies and that internal relocation would not be possible as it would cause immeasurable hardship to live without his family members.  He also alleges that he has a son who is now studying in Hong Kong and that he wants the best for his son.

6.Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 4 March 2024.  In those submissions, he alleged that the Board overlooked the dangerous situation in Pakistan.  He further alleged that he would have to take care of his son and refoulement would be tantamount to “child abuse”.  He also alleged that the human rights situation in Pakistan is generally poor and Pakistan is notorious for police extra-judicial killings.  He also claimed that internal relocation would not be possible as he has no family or relatives who could support his life.  In the interests of him and his child, he requested that his application be granted.

7.In our view, the applicant’s application is plainly devoid of merit.  His assertions are all vague, bare and unsupported by any specific particular or evidence.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Save the assertions pertaining to his son, all his allegations are essentially a mere regurgitation of those submissions he previously made before this court in his appeal, which we had already considered and rejected: see [11] ‑ [18] of 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].  More importantly, he fails to identify any specific error in the Judgment.  Clearly, his assertions do not constitute proper grounds of appeal.

8.Insofar as his son is concerned, those submissions are new and not before the Judge or this Court in his earlier 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: see Re Orense Marian Masangkay [2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh[2021] HKCA 870 at [7].  We see no basis to entertain these submissions at this late stage of proceedings.

9.Further and in any event, even taking them at their highest, his allegations remain fact-specific and do not relate to any question of great general or public importance.

10.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.

11.For these reasons, the Notice of Motion is dismissed.