Case Document

100%Judiciary

CACV 92/2018

[2018] HKCA 824

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 92 OF 2018

(ON APPEAL FROM HCAL 417/2017)

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RE:

MUDANNAYAKALAGE CHAMINDA PUSHPA KUMARA

Applicant

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Before: Hon Lam VP, Cheung and Kwan JJA in Court

Date of Written Submissions: 4 September 2018

Date of Judgment: 16 November 2018

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.By our judgment dated 18 July 2018 ([2018] HKCA 400), we dismissed the applicant’s appeal from the decision of Deputy High Court Judge Woodcock dated 23 March 2018 ([2018] HKCFI 589) refusing leave to the applicant to apply for judicial review.

2.The applicant now seeks leave to appeal to the Court of Final Appeal.

3.In his notice of motion dated 14 August 2018, the applicant put forth the following grounds for seeking leave to appeal to the Court of Final Appeal:

“ 1. The Court has failed to take into account the real risk of torture, especially given my submission that I might be perceived by the Navy as a suspect who had leaked information to the enemy, as such would be subject to torture and interrogation.

2. The issue has never been considered thoroughly given that the adjudicator considered and rejected this issue, finding there to be no evidence of a risk of this if refouled. I respectfully submit that the finding has been procedurally unfair and biased.

3. Deputy High Court Judge Woodcock refused to take the letter sent to me from Sri Lanka from my village given that such evidence was not before the TCAB. However, there was a reasonable explanation for the delay in producing the document and such document should be taken into account given there has been new facts, unless the Court is prepared to allow me to submit the documents to the Torture Claims Appeal Board for consideration, yet as far as I am concerned the Torture Claims Appeal Board is not prepared to take any further action regarding my case.

4. Furthermore, the fact there was a lack of oral appeal hearing explains the reason why the evidence was not before the TCAB. The Determination was out before I even had a chance to approach the Board.

5. I therefore seek a reconsideration of my case because I do not think that my case has been determined fairly. I also request that a hearing to be arranged.”

4.In his written submissions lodged on 4 September 2018, in addition to repeating the matters stated in the notice of motion, the applicant also asserted that the authorities had not conducted sufficient inquiry into the country of origin information regarding the treatment of ex-members of Navy in Sri Lanka who were suspected to be traitors.

5.Notwithstanding the applicant’s request for an oral hearing, application for leave to appeal to the Court of Final Appeal is usually processed on the papers: see paragraph 3 of Practice Direction 2.1. Having considered the applicant’s notice of motion and written submissions, we do not see any justification for departing from such usual practice. We consider that this application can be properly disposed of without an oral hearing, and have proceeded to consider it on paper.

6.It was the Torture Claims Appeal Board’s conclusion that the applicant had failed to establish a case for non-refoulement protection. Neither the Court of First Instance nor this Court find any reason on public law grounds to interfere with that conclusion. A bare and general assertion that the board did not consider the case thoroughly would not constitute a valid ground of appeal to the Court of Final Appeal. Hitherto, the applicant had not relied upon the ground relating to the alleged insufficient inquiry into the country of origin information. No particulars had been given by him.

7.Nor had he pursued the ground relating to the judge’s refusal to admit the letter from his village in the appeal before us. Even now, he has not produced the letter he referred to.

8.There is no explanation from the applicant as to why he did not raise these grounds earlier.

9.It is simply too late for these grounds to be raised. It is not the practice of this Court to grant leave to appeal on new points that were not canvassed at the substantive appeal before us: 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]. Further, leave would not be granted on new fact-sensitive points not argued at the court below: see Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356 at [39].

10.In any event, the proposed grounds stated in the notice of motion and the applicant’s written submissions are fact-and-evidence sensitive, and do not involve any questions of great general or public importance. The applicant’s application does not satisfy the statutory threshold under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) for leave to appeal to the Court of Final Appeal to be granted.

11.For these reasons, we refuse to grant leave to the applicant to appeal to the Court of Final Appeal, and dismiss the notice of motion accordingly.