RE SALINA THAPAMAGAR

CAMP 236/2021

[2022] HKCA 183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 236 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 607 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Au JA (giving the Judgment of the Court):

1.  On 8 December 2021, 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 2 December 2021 (“the Judgment”)  ([2021] HKCA 1807). In the Judgment, we dismissed the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 15 December 2020, by which the Deputy Judge refused to grant extension of time to the applicant to apply for leave to apply for judicial review, and further dismissed her application for leave to apply for judicial review ([2020] HKCFI 2600).

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 her Notice of Motion, the applicant contended that there was a lack of language and legal assistance provided to her which was an error of law and was procedurally unfair.  Because of her language incapacity and lack of legal assistance, she did not understand the Judgment and the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 24 May 2016 completely and was unable to point out the legal errors in it.

5.  The applicant lodged her written submissions on 22 December 2021.  In her written submissions, she requested a reconsideration of her case on the grounds of procedural unfairness and unreasonableness and she further complained about the lack of language and legal assistance before the Board and the Court.

6.  In our view, the applicant’s intended appeal is wholly devoid of merit.  As a start, the arguments made in her Notice of Motion and written submissions are all new grounds not raised before the Deputy Judge or this Court previously.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it; nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal: see Re Orense Marian Masangkay [2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh [2021] HKCA 870 at [7].  As such, these new grounds would not be entertained and accordingly, there is no viable ground of appeal.

7.  In any event, her arguments are without any merit.  It is trite that the high standards of fairness required by law do not necessarily entail free legal representation at all stages of the proceedings or interpretation service being made available at any time the applicant desires: see Barroga Escolastica Tejero v Torture Claims Appeal Board & Another [2021] HKCA 279 at [3] and the authorities cited therein.

8.  Further, even taking the applicant’s submissions at their highest, her arguments remain fact-specific and do not relate to any question of great general or public importance.

9.  Accordingly, the applicant has also 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.

10.  For these reasons, the Notice of Motion filed on 8 December 2021 is dismissed.