RE AMARJEET SINGH

CACV 382/2018

[2019] HKCA 218

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 382 OF 2018

(ON APPEAL FROM HCAL NO. 124 of 2018)

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J U D G M E N T

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Hon Barnes J (giving the Judgment of the Court):

1.  On 24 December 2018, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 30 July 2018 refusing him leave to apply for judicial review.

2.  By an undated Notice of Motion filed on 7 January 2019, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.  The applicant had also lodged a written submission in support of his application.

3.  Having considered the applicant’s notice of motion, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of his notice of motion.

4.  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 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.

5.  The Notice of Motion stated:

“1. I did not have sufficient assistance throughout the whole case. It is not true that I have had help at all material times. The decisions or judgment have never been read to me and without knowing the full picture of the reasons behind the objection, I could not have appealed properly.

2. I have mentioned over and over again how it has been unfair with regards to lack of representation. For example, if I were to be given legal representation, the Director may not have excused himself at the Board hearing. I did not raise my non-refoulement claim ground with regards to my Sikh religion until later on out of fear and trauma. The Director has therefore never even heard of such grounds and therefore the lack of assistance has been detrimental to my case.

3. Furthermore, the Judges have erred in concluding that there is no obligation on the part of the Director to cause the said letter to be sent by way of registered post. The Director should have the obligation to ensure the letter gets to me as well as to ensure that I understood the content of the letter without being properly advised (There was not even an information session of a successful service of such letter to notify me of the ground and the legal definition of such) I could not have properly informed.

4. It is not true that it should be for me to approach the Duty Lawyer Service because this has not been the case properly.  The Director had only considered my claim on BOR2 (which has not been rejected), I should have been entitled to legal representation as that is the only fair way to do so.  There has been no explanation in so far as to whether there is a difference in the treatment between all other applicable ground and BOR2 grounds if they are all before the Director.  There is a procedural unfairness and the fact that the Judges have failed to acknowledge that is unfair.”

6.  In his written submission the applicant reiterated the alleged threats and painful treatment he would receive in the hands of the Hindu Indians in power if he were to return to India because of his Sikh religion.  The applicant basically relies on the same grounds that had been submitted before the Judge and before this court.  The applicant also claimed that he has since learnt that his good friend had been killed and he was warned that his home was not safe for him to return to.  He promised he would return to India when it is no longer dangerous to do so.

7.  All the matters stated in the Notice of Motion and the written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has not identified any question of great general or public importance, as required by section 22(1)(b).

8.  Further, it is not the court’s functions in judicial reviews and an appeal to assess the merits of the claims and the wishes desired by the applicant. 

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

10.  For the above reasons, the statutory requirements for giving leave to appeal are not met.  Accordingly, we dismiss the Notice of Motion.