RE SIH MAKARTININGTYAS

CAMP 398/2021

[2022] HKCA 911

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 398 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2739 OF 2018)

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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 12 April 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Barma and Au JJA)  judgment of 4 March 2022 (“the Judgment”)  ([2022] HKCA 340). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 28 June 2021, by which the Deputy Judge refused her application for leave to apply for judicial review ([2021] HKCFI 1660).

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.  Pursuant to section 24(2)  of the HKCFAO an appellant has 28 days from the date of the Judgment to seek leave to appeal to the Court of Final Appeal.  In the present case, the original deadline for the applicant to seek leave to appeal against the Judgment fell on 1 April 2022.  Due to the closure of the High Court Registry during the General Adjournment Period (arising from the COVID-19 Pandemic)  from 7 March 2022 up to 11 April 2022, the period was automatically extended to 12 April 2022.  Accordingly, the Notice of Motion filed on 12 April 2022 was within time.

5.  In her Notice of Motion, the applicant alleged that the Court had erred as there had been a lack of legal and language assistance and procedural unfairness in determining her non-refoulement claim.  She asserted that she was not aware of the time limit to apply for extension of time to appeal and it was unfair to expect her, being unrepresented and without language assistance, to know the legal requirements. She also claimed that the authorities had failed to make reasonable arrangements to enable her to understand the content of the judgments and deprived her of the right to seek further avenues of appeal.  She also did not understand the Judgment completely and was not given a translation of such.

6.  Pursuant to Practice Direction 2.1, the applicant lodged her written submissions on 26 April 2022.  In her written submissions, she repeated her allegations regarding the lack of language and legal assistance and sought a reconsideration of her case.  She claimed that she did not understand legal jargons and that the lack of language assistance deprived her right to lodge a proper appeal.  She asserted that the Board’s Decision was not translated to her and owing to the lack of language assistance, she did not know the reasons behind the dismissal of her claim before the Deputy Judge, which was procedurally unfair.

7.  In our view, her application is devoid of merit.  Her complaints essentially centred on the lack of language and legal assistance, which she had previously raised before this Court in her reapplication for extension of time to appeal.  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].  Her arguments had already been considered and rejected by this Court at [12], [13], [19] and [20] of the Judgment and the applicant failed to identify with specific particulars any error in the Judgment.  As such, nothing set out in the Notice of Motion or written submissions can be construed as viable ground of appeal to the Court of Final Appeal.

8.  Even taking her case at its highest, her allegations are fact-specific and do not relate to any question of great general or public importance.

9.  Accordingly, the applicant has 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.

10.  For these reasons, the Notice of Motion filed on 12 April 2022 is dismissed.