RE RIGAN MITRA

CAMP 95/2019

[2019] HKCA 1256

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 95 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 1063 of 2017)

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JUDGMENT

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

1.  On 5 September 2019, this Court (Cheung and Chu JJA) handed down our judgment[1] refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Bruno Chan given on 7 December 2018 refusing him leave to apply for judicial review.

2.  On 9 September 2019, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant had also put in a written submission to support his application.

3.  Having considered the applicant’s notice of motion, affirmation and written submission, 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 the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Under section 22(1)(b) of the 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.

6.  In the notice of motion, the applicant stated that: (1) it was not true that there was no substance in his grounds of application, (2) he did not complain the poor performance of the duty lawyer for fear of being picked out by the adjudicator for “misappropriating”, and (3) he did not have enough time to address the bundle.

7.  The applicant further stated in his affirmation that: (1) the Court was wrong to hold there was no state acquiescence or involvement, and (2) the Court failed to find out the details of the current situation in Bangladesh.

8.  The written submission recited the background and basis of the applicant’s claim, some provisions in the International Covenant on Civil and Political Rights, the United Nations Convention Against Torture, the Hong Kong Bill of Rights Ordinance, Cap. 383 and the Basic Law as well as passages in cases on state acquiescence and Wednesbury unreasonableness. It also cited ST v Director of Immigration[2] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and submitted that high standards of fairness are required because the decision had the effect of finally disposing of the applicant’s claim, making him liable to be removed. It further argued that under the common law there are minimum standards of procedural fairness, and a decision maker was under a duty to act fairly, citing Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 383D; Pearl Securities Limited v Stock Exchange of Hong Kong Limited [1999] 2 HKLRD 243, 253C-D; and Rowse v Secretary for the Civil Service & Ors [2008] 5 HKLRD 217.

9.  All the matters stated in the Notice of Motion, the affirmation and the written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.

10.  Firstly, the points put forward by the applicant relate only to the circumstances of the case, and do not involve any question of great general or public importance, as required by section 22(1)(b). Secondly, the applicant’s application for leave to apply for judicial review was dismissed on the ground of abuse of process as he had previously made a similar application failed. The matters advanced in the notice of motion, affirmation and written submission are totally misplaced.

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

12.  As the statutory requirements for giving leave to appeal are not met, we dismiss the Notice of Motion.