RE MITHUN KUMAR

CACV 273/2021

[2022] HKCA 902

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 273 OF 2021

(ON APPEAL FROM HCAL NO 984 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 2 November 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Au JA and Lisa Wong J)  judgment of 20 October 2021 (“the Judgment”)  ([2021] HKCA 1537). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 20 May 2021 refusing the applicant’s application for leave to apply for judicial review ([2021] HKCFI 1423).

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 his Notice of Motion, the applicant alleged that his life would still be in danger and that he would face hardship in his own country and that the Court failed to consider all applicable grounds of his non-refoulement claim.

5.  The applicant lodged his written submissions on 15 November 2021.  In those submissions, the applicant cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility.  He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  It is however noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case.

6.  In our view, the applicant’s intended appeal has no merit at all.  None of the matters raised in his Notice of Motion has identified any specific error in the Judgment.  General assertions of his fear to return to his home country simply do not constitute viable grounds of appeal.  The matters raised in his Notice of Motion are all general and bare allegations unsupported by specific particulars or evidence.  Clearly, they do not constitute proper grounds of appeal.

7.  Moreover, none of the arguments raised in his written submissions were argued before the Deputy Judge or before this Court in his earlier reapplication for extension of time to appeal.  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; nor generally 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: see Re Orense Marian Masangkay [2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh [2021] HKCA 870 at [7].  In any event, the applicant’s new arguments are all general and bare assertions unsupported by particulars.  He has also failed to show how the legal propositions as stated in his written submissions relate to his case.  More importantly, none of his submissions has identified any error in the Judgment.  As such, they are not viable grounds of appeal.

8.  The applicant’s contentions are also fact-specific and do not relate to any question of great general or public importance.

9.  Accordingly, the applicant has also 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 application for leave to appeal to the Court of Final Appeal is refused and the Notice of Motion filed on 2 November 2021 dismissed.