RE PAHATE JOEL PERIDO

CACV 280/2022, [2023] HKCA 576

On Appeal From [2022] HKCA 1832

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 280 OF 2022

(ON APPEAL FROM HCAL NO 2663 OF 2018)

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J U D G M E N T

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

1.  On 14 December 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 8 December 2022 (“the Judgment”) ([2022] HKCA 1832). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan dated 15 July 2022, refusing to grant extension of time and dismissing his application for leave to apply for judicial review ([2022] HKCFI 2000).

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 his Notice of Motion, the applicant only stated:

“Reasons: (i) I am not satisfied with the decision of the appeal as I was not permitted to submit any new evidence I may have to provide to the court.”

5.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 23 December 2022.  In those submissions, he reiterated the factual basis of his non-refoulement claim and that he still has fear of returning to his home country.  He repeated that he had informed the High Court of his change of address and that he had proof that he went to the High Court.  Again, he attached a copy of the news article “Pampanga village chief running for councillor slain” published by the Philippine Star on 1 May 2022 and a copy of his change of address form dated 30 April 2019 (“the Change of Address Form”) for HCAL 2663/2018, both of which were previously submitted by the applicant to this Court in his appeal.

6.  In our view, his application is wholly without substance.  In his Notice of Motion and written submissions, he essentially repeated those grounds he had previously submitted before this Court which had already been considered and rejected by this Court: see the Judgment at [13] ‑ [24].  It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014) at [2] and [3]. More importantly, he did not identify any specific error in the Judgment with sufficient particulars.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  As such, nothing set out in his Notice of Motion or written submissions can be considered as viable grounds of appeal to the Court of Final Appeal.  Accordingly, the applicant’s intended appeal must fail.

7.  Further, even taking his case at its highest, his allegations are fact‑specific and do not relate to any question of great general or public importance.

8.  The applicant has therefore 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.

9.  For these reasons, we dismiss the Notice of Motion.