HITINAYAKA MUDIYANSELAGE NALINDA SARATH BANDARA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 297/2022

[2025] HKCA 910

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 297 OF 2022

(ON APPEAL FROM HCAL NO 1103 OF 2019)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  On 30 December 2022, 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 19 December 2022 (“the Judgment”)  ([2022] HKCA 1859). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung dated 21 July 2022, refusing his application for leave to apply for judicial review ([2022] HKCFI 2217).

1.  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.

2.  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.

3.  In his Notice of Motion, the applicant stated:

“I am writing this grounds regarding my notice of appeal was dismissed by court of appeal but I would like to say that still I have problem and life threaten by my enemies and I was submit my supporting document to court too and I was met many problem in my life when I was in my country still I am very scared to go I am requesting justice for protect my life I will explain in my oral hearing about my real problem in my country.” (sic)

4.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 9 January 2023.  In those submissions, he repeated those same submissions he had already made previously before this Court in his appeal.  In essence, he claimed that his enemies were very powerful and that they had connections with the ruling party, gangsters and the police and that it would be dangerous for him to return to his home country.  Again, he attached the extract from the Information Book of Wellawa Police Station dated 25 September 2013 (and an English translation thereof)  which he previously submitted to this Court during his appeal.

5.  In our view, his application is wholly without substance.  In his Notice of Motion and written submissions, he essentially repeated those grounds he had previously submitted before this Court which had already been considered and rejected by this Court: see the Judgment at [9] to [18].  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].  More importantly, he did not identify any specific error in the Judgment with sufficient particulars.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  As such, nothing set out in his Notice of Motion or written submissions can be considered as viable grounds of appeal to the Court of Final Appeal.  Accordingly, the applicant’s intended appeal must fail.

6.  Further, even taking his case at its highest, his allegations are fact‑specific and do not relate to any question of great general or public importance.

7.  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.

8.  For these reasons, we dismiss the Notice of Motion.