RE LAKHWINDER SINGH

CAMP 267/2021

[2022] HKCA 1801

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 267 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 320 OF 2018)

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JUDGMENT

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

1.  This court handed down judgment on 27 May 2022 ([2022] HKCA 737) (“the CA Judgment”) dismissing the applicant’s appeal against an order of DHCJ K.W. Lung (“the Judge”) given on 3 June 2020 refusing to grant leave to the applicant to apply for judicial review in respect of his non‑refoulement claim (“the Judge’s Decision”).

2.  The facts and issues in the appeal before this court, as well as the court’s reasons for dismissing it, are set out in the CA Judgment and will not be repeated here.

3.  On 17 June 2022, the applicant filed a Notice of Motion for leave to appeal this Court’s judgment to the Court of Final Appeal.

4.  The Notice of Motion contains the following grounds of appeal:

(1)  The Court of Appeal erred in determining that the Judge had not failed to appreciate the significance of his non-refoulement claim.  The lack of assistance amounted to error of law, procedural unfairness and/or a failure to adhere to a high standard of fairness.  Considering his vulnerability and disadvantage, and that non-refoulement claims are “life and limb cases”, his case should be assessed cautiously.

(2)  The applicant was unaware of the time limit for applying for extension of time.  Due to lack of assistance, the language barrier and his low level of education, he could not get enough information, which caused the delay.  He tried to seek help from his friends but could not get any proper help.

(3)  He was deprived of the right to make full grounds of appeal as the decision was not translated or read to him and the court would not accept grounds written in his language; otherwise he would have done so.

(4)  The fact that the Court arranged an interpreter for him at the oral hearing means the court recognized the importance of language assistance and such assistance should extend to assisting him to understand the judgment.  The lack of language assistance is contrary to high standards of fairness and deprived him of the right to seek further avenues of appeal.

(5)  The failure of the authorities to make reasonable arrangements to explain the judgment to him despite knowing his language incapacity is a wrongful exercise of case management power.

(6)  The applicant disagrees with [17] of the CA Judgment and explained that he could file documents in English only because he sought assistance from his friends.

(7)  A judgment made with lack of evidential consideration of issues raised in court should be deemed an erroneous judgment.

(8)  If a litigant has not been informed fully of his rights and allowed to be heard with assistance, then it cannot be said that the assistance could not be of any use, as it was not even granted in the first place.

(9)  The judges should not determine the prospect of success of his application at this stage as he has been deprived of making full grounds of appeal due to lack of language assistance.

(10)  The applicant requests for an oral hearing of his present application. 

5.  In compliance with the directions of the Registrar of Civil Appeals, the applicant lodged his written submissions on 4 July 2022.

6.  In his written submissions, he stated that the CA Judgment made no logical sense and his grounds of appeal had not been considered thoroughly.  The applicant repeated his complaints for lack of legal and language assistance for the hearing before the Torture Claims Appeal Board and subsequent proceedings. 

7.  On 17 November 2022 however, the applicant applied by letter to the court for leave to withdraw the Notice of Motion, stating he wants to return to his home county as soon as possible.

8.  The practice of this Court is to consider and if appropriate dismiss such application instead of merely granting leave to withdraw: see Rini Artini [2020] HKCA 709 at [9].

9.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that 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.

10.  Having regard to the CA Judgment, the applicant’s intended appeal has no merits.  His complaints of the lack of legal and language assistance have been canvassed and rejected by the Court of First Instance as well as on appeal before this Court.  He has not shown any error in the CA Judgment that merits leave to appeal to the Court of Final Appeal.  

11.  In all, the applicant has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). 

12.  Nor do we see any basis for granting leave on the “or otherwise” limb under section 22(1)(b).

13.  By reason of the above, the Notice of Motion filed on 17 June 2022 is dismissed.