RE KANDIAH MERCEY MATILDA

CACV 218/2021

[2021] HKCA 2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 218 OF 2021

(ON APPEAL FROM HCAL 1011 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

Applications before the court

1.  On 17 September 2021, this court gave judgment[1] (“Judgment”), dismissing the applicant’s appeal from the decision made by Deputy High Court Judge Bruno Chan on 23 April 2021[2] refusing her leave to apply for judicial review of the decision dated 14 January 2019 of the Torture Claims Appeal Board (“Board”)  concerning her non-refoulement claim.

2.  On 27 September 2021, the applicant issued a notice of motion (“First Motion”)  applying for leave to appeal against the Judgment to the Court of Final Appeal (“CFA”). 

3.  In breach of Practice Direction 2.1 and paragraph 1 of the directions of the same date by the Registrar of Civil Appeals (“Registrar”), the applicant failed to lodge any written submission in support of the First Motion, whether as directed or at all.

4.  Then, before the determination of the First Motion, on 8 October 2021, the applicant filed another notice of motion (“Second Motion”)  applying for the same relief as that sought under the First Motion.

Paper disposal appropriate

5.  Pursuant to the direction of the Registrar, unless this court otherwise directs, the said notices of motion (“Motions” collectively)  shall be determined on paper without an oral hearing.  Having considered the material available to us, we agree with the Registrar that a paper disposal is appropriate in both instances.

Statutory threshold for leave to appeal to the CFA

6.  Under s 22(1)(b)  of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”)  or the CFA from any civil judgment of the CA 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 CFA for decision.

7.  We shall deal with the Motions in turn. 

First Motion

8.  In seeking leave to appeal to the CFA, by the First Motion, the applicant simply expressed a desire to have her case heard by the CFA as she has not got justice at the screening stage or in the ensuing legal proceedings.  And the alleged reason why she thinks that she has not obtained justice is that her claim, application and appeal have all been dismissed.

9.  In our view, the applicant has not raised any issue for determination by the CFA, whether of great, general or public importance or otherwise. 

10.  Nor do we see any scope to grant leave under the “or otherwise” limb. 

11.  The applicant has failed to engage the reasons that we have given in the Judgment.

12.  As neither of the statutory criteria under s 22(1)(b)  for leave to appeal to the CFA is met, the First Motion should be dismissed on the merits.

Second Motion

13.  The Second Motion can be disposed of shortly.  It duplicated the First Motion for no or no apparent reason and was just an abuse of process that should be struck out.