RE DE SILVA ANTHONY MENEKA KUMARASENA

CACV 532/2020

[2021] HKCA 1947

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 532 OF 2020

(ON APPEAL FROM HCAL NO 445 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  This court (Hon Lam VP as he then was, Yuen JA and Lok J)  handed down judgment on 12 July 2021 ([2021] HKCA 958)  dismissing the applicant’s appeal against an order of DHCJ Bruno Chan (“the Judge”)  given on 18 September 2020 refusing to give the applicant leave to apply for judicial review in respect of his non-refoulement claims (“the Judge’s Decision”).

2.  On 30 September 2020, the applicant filed a Notice of Appeal to appeal against the Judge’s Decision. As mentioned earlier, in our judgment of 12 July 2021, we dismissed the applicant’s appeal.  The facts and issues in the appeal before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.  On 23 July 2021, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal on the following grounds:

“I wold (sic)  like to tell that my court of appeal was dismissed by appeal court at 12 July 2021 but I am not satisfied because in my country situation now more danger by Covid 19 and ruling party acting like terrorist killing people in police custody (custodial death)  beating protesters like animals, for student, old women, monks they behave like tugs after this government state to rule again while van for abducting people. In my past I gave my document to court, immigration interview (USM)  petition team to all this movement I can’t take but I will try my best before my oral hearing.”

4.  Pursuant to the Direction of the Registrar of Civil Appeals dated 23 July 2021 and Practice Direction 2.1, the applicant lodged his written submissions on 6 August 2021.  The Registrar further directed that the Notice of Motion shall be determined on paper only without an oral hearing.  As it is appropriate to do so, we proceeded to determine this application on paper. 

5.  In the applicant’s written submissions, he stated that he still faces risk of harm from his rival political party if he were to return to his home country.  He attached two documents to support his case: (i)  a copy letter purportedly written by Danasiri Amaratunge, Mayor J.P.U.M. Municipal Council, Dehiwala – Mount Lavinia dated 23 September 2005 saying that the applicant “had confronted with a severe life threat due to political reasons” and requested Hong Kong to grant him permission for permanent stay and (ii)  a copy letter from Ravi Karunanayake, Member of Parliament (Colombo District)  dated 28 September 2005 saying the applicant “has been subjected with severe life threats by his opponents resulting him to de-camp the country”.  

6.  The first document is a new document that the applicant did not produce either before the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”)  or the Judge in pursing his claim.  The applicant did not explain why he failed to produce the said letter dated 2005 at an earlier stage and he cannot now produce it without the leave of the Court.  Leave would not be granted as he had not fulfilled the conditions in Ladd v Marshall [1954] 1 WLR 1489.  The second document was considered by the Adjudicator at the Board’s hearing and rejected for the reasons that it was not a contemporaneous document but was sought specifically for the purpose of the applicant’s non-refoulement claim and the letter did not mention any attack of the applicant by the rival political party so it would not take his case any further.[1]

7.  S. 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance provides that leave to appeal to the Court of Final Appeal may be granted 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.

8.  Having regard to the judgment of this court, the applicant’s intended appeal has no merits.  No question of great general or public importance has been identified as required by s. 22(1)(b)  of the HKCFAO.   

9.  Nor do we see any basis for the “or otherwise” limb under s. 22(1)(b).

10.  By reason of the above, the Notice of Motion filed on 23 July 2021 is dismissed.