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CACV 412/2018
[2019] HKCA 666
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 412 OF 2018
(ON APPEAL FROM HCAL 1079/2017)
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| RE: |
SUBHASH KUMAR |
Applicant |
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Before: Hon Barma, McWalters JJA and B Chu J in Court
Date of Judgment: 17 June 2019
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J U D G M E N T
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Hon Barma JA (giving the Judgment of the Court):
1. On 1 February 2019, this court (Barma, McWalters JJA and B Chu J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 17 August 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non‑refoulement claim.
2. The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.
3. The applicant subsequently applied, by a Notice of Motion dated 12 February 2019, for leave to appeal to the Court of Final Appeal. The applicant stated in his Notice of Motion that
“The claims that the judgment has made stated is no substance is the grounds of the application is not true.
On the strength of the grounds not made a complain about the poor performance of his duty lawyer is due of fearing he will be picked out for misappropriating by the adjudication.
The applicant gently did not have enough time to address the bundle. Rest of the grounds 1 will submit as soon as possible”
4. In the affirmation filed on the same day in support of the leave application, the applicant contended that:
“[the judges were] wrong in law in holding that there was no state acquiescence or involvement.
[the judges] failed to find out the clear details of the current situation of India”
5. Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 26 February 2019, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.
6. Having considered the applicant’s Notice of Motion, we see no reason to depart from the usual practice of determining an application of this kind on the papers. We have, therefore, determined the applicant’s application on the basis of his Notice of Motion.
7. The matters stated by the applicant in his Notice of Motion and the supporting affirmation do not constitute grounds for granting leave to appeal to the Court of Final Appeal. The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484. Nor is any such question apparent to us from the matters he has raised in his Notice of Motion.
8. The grounds in the Notice of Motion are vague. The first ground lacks particulars and is not reasonably arguable. As for the second ground, the applicant did not make any complaint in the appeal before us regarding the representation by the duty lawyer. As we have explained before, 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 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.[3]
9. As for the grounds in the affirmation, we have dealt with the issue of state acquiescence at [16] of our judgment. In relation to the alleged failure to find out the details of the current situation in India, as we have stated at [17], the court’s role is not to act as an avenue of further appeal. It is not necessary for this court (or the judge) to come to a view on the current situation in India. These grounds are also not reasonably arguable.
10. We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).
11. For these reasons, the Notice of Motion dated 12 February 2019 is dismissed.
| (Aarif Barma) |
(Ian McWalters) |
(Bebe Pui Ying Chu) |
Justice of Appeal
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Justice of Appeal
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Judge of the Court of
First Instance |
The applicant acting in person
[1] See [2019] HKCA 152
[2] See Ageas Insurance Co (Asia) Ltd v Lam Hau Wah Inneo, CACV 65/2014, unreported, 19 May 2015, at [7] to [9]; and The Law Society of Hong Kong v A Solicitor, CACV 78/2014, unreported, 10 July 2015, at [4] to [7].
[3] See Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356 at [39].
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