RE HOSSAIN MOHAMMED NUR

CACV 236/2019

[2019] HKCA 1090

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 236 OF 2019

(ON APPEAL FROM HCAL 1190/2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Lisa Wong J (giving the Judgment of the Court):

Application

1.  Before the court is a notice of motion filed on 3 September 2019 by the abovenamed applicant, applying for leave to appeal to the Court of Final Appeal (“CFA”) against the judgment dated 30 August 2019[1] (“Judgment”) of this court, dismissing the applicant’s appeal from a decision dated 31 January 2019[2] (“Form CALL-1”) by Deputy High Court Judge K W Lung (“Judge”), refusing him leave to apply for judicial review of the decision dated 20 June 2018 of the Torture Claims Appeal Board (“Board”).

Paper disposal appropriate

2.  Pursuant to the direction of the Registrar of Civil Appeals, unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing. We agree with the Registrar that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

3.  Under s 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA, from any judgment of the CA in any civil cause or matter, whether final or interlocutory, if, in the opinion of the CA or the CFA, as the case may be, 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 CFA for decision.

Applicant’s contentions in support of leave to appeal to CFA

4.  In seeking leave to appeal to the CFA, the applicant asserted in the notice of motion as follows (sic):

“ON 30 AUGUST 2019 THE HONOURABLE JUDGES ORDERED MY APPEAL BE REFUSED. I HAD TOO MUCH HOPE THAT I WOULD GET A GOOD RESULT ON COURT OF APPEAL BUT NOT, MY HONOURABLE JUDGES NEVER CONSIDER MY POINTS, IN THE BOARD THE ADJUDICATOR NOT GAVE ME LAWYER. IT IS MY RIGHT TO TAKE HELP FROM A LAWYER. MY INTERVIEW TIME IS TO SHORT. I FAILED TO TELL ALL MY SPEECH TO THE ADJUDICATOR.

MY PREPARATION TIME WAS ALSO SHORT.

AT THIS MOMENT I WISH TO GET A GOOD RESULT FROM THE COURT OF FINAL APPEAL.”

5.  In breach of paragraph 1 of the directions given by the Registrar on 5 September 2019, the applicant failed to lodge any written submission in support of his notice of motion on or before 18 September 2019. We shall determine this application on the basis of the aforesaid notice of motion.

Discussion

6.  The applicant has plainly not raised any issue for determination by the CFA, whether of great, general or public importance or otherwise.

7.  Nor do we see any scope to grant leave under the “or otherwise” limb. In this regard, the applicant mentioned 4 points in the notice of motion:

(1)  He had the right to be, but was not, provided with legal representation for the appeal before the Board.

(2)  The preparation time and the hearing time for the appeal before the Board were insufficient. He did not get to tell his whole story to the Board.

(3)  The CA had not considered all his points.

(4)  He had hoped for, but did not get, a good result before the CA. He is hoping for better luck in the CFA.

8.  Each of these contentions can be answered shortly as follows:

(1)  As discussed in [12] of the Form CALL-1, as set out at [13] of the Judgment, a non-refoulement claimant has no absolute right to legal representation at all stages of the screening process. And the applicant has not identified any specific prejudice that he had suffered in his appeal to the Board as a result of the lack of legal representation.

(2)  The complaint about the length of time for preparation for, and the hearing of, the appeal before the Board was not raised before the Judge: see [12] of the Judgment. The applicant has not given any particulars of what part of his story he did not get to relate to the Board due to the alleged lack of time at the hearing. Indeed, the applicant had confirmed to the Judge that he had no problem at the hearing before the Board: see [13] of the Judgment quoting [13] of the Form CALL-1.

(3)  We have at [14] to [16] of the Judgment set out all the points made before us by the applicant. We believe we have considered and dealt with all such points fairly and adequately at [17] to [22].

(4)  That the outcome of the proceedings has fallen short of the litigant’s expectation is, in the absence of any or any valid ground of appeal, never a reason for leave to appeal.

9.  The proposed appeal to the CFA is utterly devoid of merit.

10.  Neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met. Accordingly, we dismiss the notice of motion.