Re Tulachan Prem Prasad

CACV 438/2018

[2019] HKCA 583

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 438 OF 2018

(ON APPEAL FROM HCAL NO. 807 of 2017)

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J U D G M E N T

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Hon Chu JA (giving the Judgment of the Court):

1.On 4 April 2019, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 24 August 2018 refusing him leave to apply for judicial review.     

2.On 10 April 2019, the applicant filed a Notice of Motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant has also lodged a written submission to support his application. 

3.Having considered the applicant’s notice of motion, 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 his notice of motion.

4.Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, 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.

5.The Notice of Motion contains the following grounds:

(1)  The applicant had only about ten days to lodge the written submission in support of his appeal before this Court, which was insufficient for an unrepresented litigant.  It was therefore unfair to vacate the hearing of the appeal and to deprive him of an oral hearing consequent upon the applicant’s failure to lodge a written submission.

(2)  The Court has been too strict with non-refoulement claimants and has discriminated against people who do not have legal representation because the preparation of written submission is very technical and is something that for lawyers.  It is unfair and unlawful that they are not given sufficient time to prepare the written submission.

(3)   The Judge ignored the grounds of appeal despite being informed of the applicant’s language disability.  At the hearing before the Judge, the applicant had answered questions put to him, but they were not recorded which shows the Judge was not the least concerned about his grounds of appeal and only wanted to dismiss his case.         

6.The written submission basically repeated what was set out in the Notice of Motion.

7.The grounds set out in the Notice of Motion, and repeated in the written submission, all relate to the applicant’s case and do not involve any question of great general or public importance, as required by section 22(1)(b). 

8.Further, the grounds put forward by the applicant are unarguable.  Firstly, the Registrar of Civil Appeal’s direction dated 1 November 2018[2] already provided that skeleton submission must be lodged with the Court no later than 28 days before the hearing of the appeal.  The applicant therefore well knew long before receiving the Notice of Hearing dated 18 January 2019 that he had to prepare and lodge with the court a written submission in respect of his appeal.  The complaint that there was insufficient time to prepare the written submission has no merit.  Secondly, the applicant has not particularised in what way the Judge had failed to consider his grounds or what he said during the hearing.  There is no proper basis for the complaint that the Judge ignored his grounds.      

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

10.As the statutory requirements for giving leave to appeal are not met, we dismiss the Notice of Motion.

The applicant, unrepresented, acted in person.