RE RANAPEHALI PRIYA

CACV 418/2019

[2020] HKCA 894

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 418 OF 2019

(ON APPEAL FROM HCAL NO. 20 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 11 June 2020, this Court (Chu and Barma JJA) handed down our judgment[1] dismissing the applicant’s application for relief from the sanction imposed by the unless order made on 13 December 2019.

2.  On 18 August 2020, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  With an extension of time granted by this court, the applicant has put in a written submission to support her application.

3.  Having considered the applicant’s notice of motion and affirmation, 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 the materials before us.

4.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Under section 24(5), the Court of Appeal may extend the time for the filing of the notice of motion.

5.  The applicant’s notice of motion is late by almost six weeks, which is not insubstantial.  The applicant has given no explanation for the delay. 

6.  As to the merits of the intended appeal, section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that 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.

7.  The notice of motion and the applicant’s affirmation contain the following grounds of appeal:

(1)     It is not true that there is no substance in the grounds of application.

(2)     The applicant did not complain about the poor performance of her duty lawyer due to fear of being picked out for “misappropriating” by the adjudicator.

(3)     The applicant genuinely did not have enough time to address the bundle.

(4)     The judges were wrong in law in holding that there was no state acquiescence or involvement.

(5)     The judges failed to find out the details of the current situation in India.

8.  The applicant’s written submission gives the background to the applicant’s background, then sets out provisions from the International Covenant on Civil and Political Rights, Hong Kong Bill of Rights Ordinance, Basic Law and United Nations Convention against Torture and also passages from several judgments relating to country of origin conditions, extended meaning of acquiescence, medical and psychological evidence and evidence of injuries, and Wednesbury unreasonableness.  The written submission also states that high standards of fairness are required because of the serious impact of the decision on the applicant, and that the Board erred in approaching the applicant’s appeal not as a rehearing but as an ordinary civil appeal and failed to consider the country of origin conditions.  It also states that in common law, there are minimum standards of procedural fairness required in decision making process, which is a constitutional duty.   

9.  We are of the view that the grounds contained in the notice of motion and affirmation and the content of the written submission do not constitute viable grounds for granting leave to appeal to the Court of Final Appeal.  Importantly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b).  Further, all these grounds and arguments do not address this Court’s reasons for not granting relief from the sanction imposed by the unless order. As stated in [22] to [24] of our judgment, the applicant’s appeal, which is an appeal against the dismissal of a second identical application for leave to apply for judicial review, is an abuse of the court process and is liable to be struck out.  The applicant has not identified any error in this Court’s conclusion that it would be futile to grant the relief from sanction, given that the appeal is liable to be struck out.  Accordingly, the applicant’s intended appeal to the Court of Final Appeal is unarguable. 

10.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.  As there is no explanation for the delay and the grounds of the intended appeal do not meet the statutory requirements for giving leave to appeal is not met, it is futile to extend the time for the filing of the notice of motion.  Accordingly, we dismiss the notice of motion.