HCMP 3295/2013
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 3295OF 2013
(On an intended Appeal from HCAL No. 141 of 2012)
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IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW BY THE APPLICANT UNDER ORDER 53, RULE 3 OF THE RULES OF THE HIGH COURT, CAP 4A
AND
IN THE MATTER OF the Applicant’s Torture Claim under Articles 1 and 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”)
AND
IN THE MATTER OF the Determination of the Director of Immigration on the Applicant’s Torture Claim made under CAT
AND
IN THE MATTER OF the Decision of the Adjudicator (Torture Petitions) of the Petition Team of the Security Bureau on the Applicant’s Petition to the Chief Executive of the Hong Kong Special Administrative Region Government under Article 48(13) of the Basic Law
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Before : Hon Lam VP, Barma JA and Au J in Court
Date of Written Submissions : 3 September 2014
Date of Judgment : 18 September 2014
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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):
1. On 25 March 2014, we refused to grant an extension of time to the applicant to appeal against the decision of Chung J on 8 November 2012. By that decision, Chung J refused to grant leave to the applicant to apply for judicial review in respect of the decision of an adjudicator of 20 September 2012 on a petition on the applicant’s torture claim.
2. On 9 April 2014, the applicant issued a Notice of Motion seeking leave to appeal against our decision to the Court of Final Appeal. In that notice, the applicant relies on two different limbs of Section 22(1) of the Hong Kong Court of Final Appeal Ordinance to seek leave: (a) that the intended appeal raised questions of great general or public importance [“the GPI limb”]; (b) leave to be granted on the “otherwise limb”.
3. In a letter of 22 April 2014, solicitors for the applicant indicated that the application should be dealt with on papers. However, no written submission has been filed for a substantial period of time. This court therefore issued an unless order on 27 August 2014. The applicant lodged his skeleton submissions on 3 September 2014.
4. In the skeleton submissions, Mr Dykes SC (together with Mr Ngan representing the applicant in this application) made no reference to the GPI limb. With respect, this is a perfectly proper course to take as the questions framed in the Notice of Motion are clearly questions on the facts of this particular case and they do not raise any GPI questions.
5. Having considered the submissions of Mr Dykes, we do not consider this to be a proper case to grant leave on the “otherwise limb”. Quite apart from the practice that such leave should only be granted in exceptional cases and, in general, leave would only be granted on such limb by the Court of Final Appeal, it is also doubtful whether a refusal to grant extension of time for leave to appeal is appealable: see HLF v MTC [2004] 3 HKLRD 241; Wong Yu Cho Rolly v Ho Chi Sum HCMP 1394 of 2007, 29 July 2008.
6. In any event, we refused to extend time mainly because the substantive merits of the applicant’s case in terms of his fear of persecution or risk of safety to his person should properly be canvassed in his USM proceedings which, we were told, were on foot, see paras 9 to 11 of our judgment of 25 March 2014. Even if the applicant were successful on his intended challenge based on the refusal of the adjudicator to grant him any oral hearing, it would only end up with an order of mandamus directing the adjudicator to hear the matter afresh with an oral hearing. But he can already have the merits of his claims heard by, first the Director, and on a petition by an adjudicator, in the USM proceedings. If he fails in the USM proceedings, it is difficult to see how he could succeed in his CAT claim. Viewed thus, the challenge based on the lack of oral hearing in the context of state involvement or acquiescence is a matter of little moment.
7. Thus, even taking account of the high degree of scrutiny which the court must exercise in these types of cases, we did not think there was anything to be gained by entertaining the appeal in the present circumstances.
8. As far as the relevant legal principles on oral hearing are concerned, the law has been clarified in ST v Betty Kwan CACV 115 of 2013, 26 June 2014.
9. We therefore, do not see any good reason for granting leave to take this matter to the Court of Final Appeal. We accordingly refuse to grant leave. We also order the applicant’s own costs be taxed in accordance with the Legal Aid regulations.
(M H Lam)
(Aarif Barma)
(Thomas Au)
Mr Philip Dykes, SC and Mr Francis Ngan, instructed by John M Pickavant & Co (DLA), for the Applicant