RE RASHEL BAPARI

CAMP 105/2018

[2019] HKCA 305

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 105 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 804 OF 2017)

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JUDGMENT

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

1.  On 4 December 2018, this Court (Cheung and Chu JJA) handed down our judgment^[1] (“the Judgment”) refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 8 June 2018.

2.  On 17 December 2018, 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 also lodged a written submission to support 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 Bangladesh. 

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 Limited [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 applicant has not identified any question of great general or public importance, as required by section 22(1)(b).  Secondly, other than the argument on high standard of fairness, all the matters or grounds set out in the notice of motion, supporting affirmation and written submission were neither argued before the Judge nor before this Court in the application for leave to appeal out of time.  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, the arguments in the written submission are primarily 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.