RE DHARAM PAL

CACV 349/2018

[2019] HKCA 318

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 349 OF 2018

(ON APPEAL FROM HCAL NO. 1156 of 2017)

______________________

______________________

________________

J U D G M E N T

________________

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

1.  On 20 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 16 July 2018 refusing him leave to apply for judicial review.     

2.  On 7 January 2019, the applicant filed a Notice of Motion together with a supporting affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant had also lodged a written submission to 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 that: (i) it is not true that there is no substance in the grounds of the application; (ii) the applicant did not complain about the poor performance of the duty lawyer because he feared he would be picked out by the adjudicator for “misappropriating”; and (iii) the applicant genuinely did not have enough time to address the bundle.

6.  The applicant’s affirmation set out two grounds to support his application, namely, (i) the Court was wrong in law in holding there was no state acquiescence or involvement; and (ii) The Court failed to establish the details of the current situation in India. 

7.  The applicant’s 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 [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 Ltd [1999] 2 HKLRD 243, 253C-D; and Rowse v Secretary for the Civil Service & Ors [2008] 5 HKLRD 217.    

8.  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. 

9.  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 complaint in the Notice of Motion about not having sufficient time to address the hearing bundle was neither argued before the Judge nor in the appeal before this Court.  Likewise, most of the content of the written submission had not been argued before the Judge or in the appeal before this Court.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it.[2]  Nor is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]  Thirdly, for the reasons given in [15], [17] and [18] of our judgment, there are no merits in the argument about state acquiescence or involvement and the complaint about the duty lawyer.  Fourthly, the arguments in the written submission are directed at the Board, and not directed at the Judge’s decision and reasons.  Nor are they related to our judgment.       

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

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