RE KAZI AFSAR UDDIN AHMED AND OTHERS

CACV 87/2023, [2023] HKCA 878

On Appeal From [2023] HKCA 751

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 87 OF 2023

(ON APPEAL FROM HCAL NO 2712 OF 2019)

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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 23 June 2023, the applicants filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this court’s judgment of 16 June 2023 (“the Judgment”)  ([2023] HKCA 751). In the Judgment, we dismissed the applicants’ appeal against the decision of Deputy High Court Judge To dated 9 March 2023, dismissing their application for leave to apply for judicial review ([2023] HKCFI 742).

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 their Notice of Motion, the applicants contended that there is an error of law and facts in the Judgment and that the Judgment is unreasonable and has violated natural justice.  The applicants asserted that this court did not consider the fact and fear that they had raised in their application.  They repeated that they would face problems in their home country and asserted that there had been a failure to provide a fair hearing.  The applicants did not agree with the Judgment and further contended that they “could argue that new evidence has come to light after the lower court’s decision that would have changed the outcome of the case”.  However, the applicants’ complaints are all bare and vague assertions. They have also failed to identify what the claimed new evidence is.

5.  Pursuant to Practice Direction 2.1, the applicants lodged their written submissions on 3 July 2023.  In those submissions, the applicants contended that their lives would be in danger if they returned to their home country and that their daughter is a stateless person and does not belong anywhere.  They further alleged that the Torture Claims Appeal Board did not inquire into their fear and that their enemies would still be a threat to them.  They also reiterated that their claim was based on a true story of their lives and their problem was not a personal or private one but one that was political in nature.

6.  In our view, the matters raised in their Notice of Motion and written submissions are all general and bare allegations without any specific particulars.  Further, their written submissions are in essence a repetition of those submissions made previously before this court in the appeal, which had all been considered and rejected by this court: see the Judgment at [19] - [34].  The applicants have failed to identify any specific error in the Judgment.  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]. Moreover, general assertions of their fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Accordingly, their allegations do not constitute proper grounds of appeal.

7.  In any event, even taking their case at its highest, their allegations are fact-specific and do not relate to any question of great general or public importance.

8.  Accordingly, the applicants have 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, the applicants’ intended appeal has no merit.  Accordingly, the Notice of Motion is dismissed.