WEWALDENI KANKANAMALAGE SAMAN PUSHPA KUMARA v. THE PETITION TEAMS (SECURITY BUREAU)

CAMP 183/2020

[2021] HKCA 1154

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 183 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 492 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 Chu JA) handed down on 5 May 2021 ([2021] HKCA 623). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 27 July 2020 ([2020] HKCFI 1697) 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 4 June 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submissions on 16 June 2021.  Having considered his written submissions and the papers, we consider it appropriate to determine this application on paper.

3.  The applicant is a national of Sri Lanka.  He entered Hong Kong illegally on 12 September 2009 and was arrested by the police on 14 September 2009.  He lodged a torture claim on 17 September 2009 on the basis that if he returns to Sri Lanka he will be harmed or killed by the supporters of the rival political party United People’s Freedom Alliance.

4.  DHCJ Bruno Chan granted an extension of 14 days for the applicant to file his notice of appeal but the applicant failed to file his notice of appeal within the extended deadline.  On 5 October 2020, he took out a renewed application in the Court of Appeal for extension of time to file his notice of appeal against the judge's decision of 27 July 2020.  The application was dismissed by the Court of Appeal on 5 May 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

5.  The applicant’s ground of appeal stated in the Notice of Motion is that his application was dismissed by the court as he was not able to submit supporting documents and this was caused by the fact that the government offices are closed in his country during the Covid-19 pandemic. 

6.  The contentions in his written submissions may be summarized as follows:

(1)  The ruling party in Sri Lanka is doing so much harm to the people.  They sometimes arrest people, make fake cases and detain them for a long time under police custody;

(2)  If he goes home, something could happen to him.  There are many deaths in custody in the Sri Lankan police department.  Even in this month, more than three people under police custody were killed by the police;

(3)  He could not submit any supporting document because his father has passed away and he cannot ask anybody to get the documents for him.  It is also not possible to get the documents from his country now because of the lockdown under the Covid-19 pandemic.

Analysis and disposition

7.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  The Court of Appeal may extend the time for making the application under section 24(5).

8.  Good grounds have to be shown by the applicant for the court to grant him an extension of time.  The relevant factors in considering whether an extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

9.  Section 22(1)(b) of the Ordinance 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.

10.  The applicant was late for two days in filing his notice of motion.  He explained in his affirmation that he was unable to submit his Notice of Motion in time because he lost the letter box but only found it later. 

11.  In any event, the applicant’s grounds of appeal and submissions are untenable.  In particular, his excuses for his failure to obtain supporting documents are wholly unacceptable as his non‑refoulement claim was lodged way back in 2009 and his application for leave to bring judicial review was made in 2018, well before the pandemic. 

12.  Furthermore, he has not put forward any viable ground to show that the judge was wrong in dismissing his application.  He has failed to identify 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).

13.  For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 4 June 2021.