RE DHALIWAL BALJIT SINGH

CACV 578/2019

[2020] HKCA 590

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 578 OF 2019

(ON APPEAL FROM HCAL NO 1086 OF 2018)

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D E C I S I O N

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Hon G Lam J (giving the Decision of the Court):

Leave to appeal to Court of Final Appeal

1.  On 13 May 2020, this Court (Cheung JA and G Lam J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 2 November 2019 in which he refused to grant leave to the applicant to apply for judicial review.

2.  The facts and issues in the appeal before the Court of Appeal, as well as the Court’s reasons for dismissing it, are set out in our judgment.  We will not repeat them here.

3.  The applicant now applies, by notice of motion dated 25 May 2020, for leave to appeal against our judgment to the Court of Final Appeal.  We will deal with this application on paper.

4.  The applicant stated in his notice of motion in summary:-

(1)  the Court has been too strict with the applicant who did not have legal representation;

(2)  the Determination (it being unclear which determination is being referred to) was not translated back to him which was unfair;

(3)  the applicant had to ask for help to translate without the ability to verify what was translated;

(4)  the Court has not provided any explanation to him why language assistance was not given to him; the Court cannot prove that the applicant was made aware of the contents of the judgments against him; the Court cannot conclude that language assistance would not make a difference if it was not provided in the first place; and

(5)  the Judges should not determine the applicant’s prospects of success at this stage as without language assistance he had been deprived of the opportunity of a full appeal.

5.  In the applicant’s written submissions dated 8 June 2020, he submitted in summary that:-

(1)  his ground of appeal was that the Deputy Judge erred in claiming that the applicant could find someone to help him with translation;

(2)  the Determination of the Torture Claims Appeal Board was not translated back to him which was unfair;

(3)  the Judgment of the Court of First Instance was not translated to him which was unfair; the burden should be on the Judges to help determine the grounds of error; and

(4)  no legal assistance was given to the applicant at the appeal against the decision of the Director.

Legal principles

6.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

Our view

7.  The matters stated by the applicant in his notice of motion and written submissions do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b). Nor is there any such question apparent to us from the matters he has raised in his notice of motion and written submissions.

8.  Our response to the applicant’s notice of motion and written submissions are as follows:-

(1)  It is trite that the high standard of fairness applicable does not mean an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14.

(2)  A high standard of fairness does not entail that translation or interpretation services be made available at any time as the applicant desires.  All court documents of the applicant were in English.  The applicant either understands English or had means and access to such language assistance as he needed: Gurnishan Singh [2018] HKCA 704 at §13.

(3)  The Deputy Judge in his decision never held that the applicant had translation or interpretation assistance “at all material times”.  This is factually incorrect.

(4)  It does not follow that just because the applicant asked for language assistance from a friend, he had no chance to verify the accuracy of the language assistance.

(5)  The burden is with the applicant to prove his case, not the Court: AM v Director of Immigration [2014] 1 HKC 416 at 427.

9.  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

Disposition

10.  For these reasons, the notice of motion dated 25 May 2020 is dismissed.