RE CELSO NOEL ABENOJAR

CAMP 421/2021

[2022] HKCA 814

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 421 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 456 OF 2019)

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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 13 April 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Au and Chow JJA)  judgment of 10 March 2022 (“the Judgment”)  ([2022] HKCA 355). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge CP Pang (“the Deputy Judge”)  dated 26 January 2021, refusing his application for leave to apply for judicial review (“the Leave Decision”)  ([2021] HKCFI 169).

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 his Notice of Motion, the applicant stated:

“I would like to reject and review the decision made by the court and Torture Claims Appeal Board. They disregard my dangerous situation in my home country. I would face danger of my life should I return to my home country.”

5.  In his written submissions lodged on 21 April 2022, the applicant mainly repeated those written submissions previously lodged before this Court on 18 October 2021 in support of his reapplication for extension of time to appeal.

6.  In our view, the applicant’s intended appeal has no merit at all.  General assertions of his fear if refouled do not constitute proper ground of appeal.  It is also 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].  His arguments had already been fully considered and rejected by this Court at [14] - [20] of the Judgment and the applicant failed to identify with specific particulars any error in the Judgment.  As such, nothing set out in the Notice of Motion or written submissions can be construed as viable ground of appeal to the Court of Final Appeal.

7.  In any event, even taking his arguments at the highest, his contentions are fact-specific and do not relate to any question of great general or public importance.

8.  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.

9.  For the above reasons, the application for leave to appeal to the Court of Final Appeal is refused and the Notice of Motion filed on 13 April 2022 dismissed.