NUPE ARACHCHIGE NIROSHANA DAMINDA alias MOHAMED NALEEM MOHAMED v. TORTURE CLAIMS APPEAL BOARD

CACV 551/2019

[2020] HKCA 851

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 551 OF 2019

(ON APPEAL FROM HCAL 441/2018)

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BETWEEN

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  On 31 August 2020, the Applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal (“CFA”) against this Court’s judgment of 21 August 2020. In that judgment we struck out and dismissed the Applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan on 22 November 2019.

2.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides that an appeal shall lie to the CFA at the discretion of this Court or the CFA 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 CFA for decision.

3.  In his Notice of Motion, the Applicant stated that he was deprived of the right to make full grounds for appeal.  He stated that he could not understand the system and did not receive proper help, that he was not aware that he made two applications of the same nature, and that he did not understand until now that he had not complied with the court’s directions as he does not understand English. 

4.  The Applicant lodged his written submissions in support of his application on 11 September 2020.  In those submissions, the Applicant reiterates the matters set out in his Notice of Motion, and states that there has been procedural unfairness in the determination and that the judges have been presumptuous about his situation.  In particular, the Applicant asserts that it is not true that he has no reasonable prospect of success in his intended application for judicial review. 

5.  We note that in the materials lodged by the Applicant, he has singularly failed to provide any proper explanation for his re-litigation in respect of the same Board decision.  We do not accept the Applicant’s difficulty in understanding the court’s judgments and directions as an excuse for his abuse in re-litigating the matter.  All the documents submitted by the Applicant were written in English and he obviously had assistance from someone who could read and write English.  From the contents of those documents, it is plain that the person who assisted the Applicant in preparing the second judicial review application was someone who was familiar with this kind of litigation and the procedure for challenging the Board’s decision by way of judicial review.

6.  There is no reason why the Applicant did not inform such person of his unsuccessful first judicial review application when he sought assistance for the preparation of the second judicial review application.  There is equally no good reason why the person who assisted him should omit any reference to his failure in the first judicial review application if he had informed that person of it. 

7.  It is noteworthy that his second judicial review application was made on 19 March 2018, shortly after the court rejected his first judicial review application on 9 March 2018.  It is plain from this chronology that his second judicial review application was a response by him to the dismissal of his first judicial review application.

8.  In the circumstances, the Applicant has failed to raise any reasonably arguable ground of appeal to disturb our judgment (and the judgment below) that his second application is an abuse of process. 

9.  Further, we do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

10.  For these reasons, we refuse to grant leave to appeal to the CFA, and dismiss the Applicant’s Notice of Motion.