Re Hussain Mushtaq

CAMP 100/2023, [2024] HKCA 551

On Appeal From [2024] HKCA 270

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 100 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2951 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 2 April 2024, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this court’s judgment of 20 March 2024 (“the Judgment”) ([2024] HKCA 270). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge To (“the Judge”) dated 19 August 2022, by which the Judge dismissed his application for leave to apply for judicial review ([2022] HKCFI 2574).

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 of considering 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 his Notice of Motion, the applicant complained that the lack of language and legal assistance provided to him amounted to errors of law and procedural unfairness.  He further complained that the court did not adhere to the high standard of fairness as he failed to understand everything and that he was not provided with an opportunity to present his case given the lack of oral hearings.  He further submitted that although the documents submitted by him were in English, he was unable to identify errors in those decisions and that he had to resort to seek help from others who were not professionals.

5.Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 16 April 2024.  In those submissions, he again repeated his complaints that there was no language and legal assistance rendered to him and that he was thus deprived of the “right to make a full appeal”.  Thus, he argued that there had been procedural unfairness and that the Judgment did not make logical sense to him.

6.There is no merit in his submissions.  The matters raised in his Notice of Motion and written submissions are all general and bare allegations without any specific particulars or explanation. General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Moreover, 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 [14] ‑ [26] 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]. Specifically, his Notice of Motion and written submissions are written in English and clearly the applicant is either himself conversant with the English Language or has access to language assistance of his own.  He also had ample opportunities to present his case through written submissions before this court and the court below.  There is plainly no substance in his arguments.  More importantly, he fails to identify any specific error in the Judgment.  His assertions do not constitute proper grounds of appeal and are in any event devoid of merit.

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

8.Accordingly, the applicant fails 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.

9.For these reasons, the applicant’s intended appeal has no merit.  Accordingly, the Notice of Motion is dismissed.

The applicant acting in person