ONG SIU SIN KEVIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 250 /2020

[2022] HKCA 9

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 250 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 33 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and G Lam JA) handed down on 30 July 2021 ([2021] HKCA 1066). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 11 December 2019 ([2019] HKCFI 2481) refusing to grant leave to apply for judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 24 August 2021 that the Notice of Motion shall be determined on paper without an oral hearing and the applicant shall lodge written submissions on or before 7 September 2021. The applicant wrote to apply for an extension of 30 days for him to lodge written submissions for the reason that he was waiting for some important information from Singapore. As the applicant has not provided any reason to explain why such documents were not available previously, the Registrar of Civil Appeals refused to grant an extension of 30 days and made an unless order requiring the applicant to lodge written submissions on or before 14 September 2021, failing which the applicant shall be deemed to have abandoned his right to rely on written submissions. The applicant failed to lodge his written submissions as directed. Having read the papers of this case, we consider it appropriate to determine this application on paper.

3.  The applicant is a national of Singapore. He arrived in Hong Kong on 13 October 2001 as a visitor. He subsequently married a Hong Kong resident and was then permitted to remain as a dependant until their divorce in 2008. A deportation order was issued against him on 27 August 2014 and he raised a non-refoulement claim on 9 September 2014. His claim was made on the basis that if he returns to Singapore he would be harmed or killed by his cousin who was said to be an Assistant Director of Prosecutions for trying to expose a crime committed by his cousin of having stolen millions of dollars from his grandmother’s account.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. His application was late by seven months. It was refused by the judge on 1 December 2020^[1].

5.  The applicant renewed his application to the Court of Appeal on 22 December 2020. The application was dismissed by the Court of Appeal on 30 July 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

6.  The following grounds of appeal are stated in the Notice of Motion:

(1)  The applicant does not possess his Singaporean passport and is unable to get it replaced, causing him to be unable to obtain necessary documentary proof to substantiate his case. It has been impossible to obtain the needed documentary proof due to the privacy laws of Singapore and the prevention against fraud measures. The Board and the judge failed to see the practicality of the issues at hand.

(2)  The duty lawyer who had represented the applicant had never assisted him in writing to the various parties to obtain the required proof.

(3)  The applicant had not refused to answer the questionnaires sent to him and had in fact answered every questionnaire that the solicitor had put before him and they were all duly returned to the best of his knowledge.

(4)  The applicant did not know he has the right to make a request for an oral hearing.

(5)  The judges rejected the claim because there is no documentary evidence in support. Thus, the applicant intends to prove to the court at the oral hearing there is evidence to show that he is unable to obtain the necessary documentary proof due to his lack of a passport and the inability to get a replacement.

(6)  The delay in lodging the appeal was because the applicant did not receive the judgment till July 2020.

7.  These grounds are substantially the same as his intended grounds of appeal previously put before the Court of Appeal.

Analysis and disposition

8.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

9.  The applicant’s intended grounds of appeal were sufficiently dealt with by the Court of Appeal in the judgment dated 30 July 2021. In the present application, the applicant failed to demonstrate that the Court of Appeal was wrong in dismissing his application for extension of time to appeal. Besides, he has not identified any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

10.  For the above reasons, we refuse to give leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 24 August 2021.

[1]  [2020] HKCFI 2896