Re Marshall Bill O

CACV 246/2019

[2020] HKCA 89

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 246 OF 2019

(ON APPEAL FROM HCAL NO 524 OF 2018)

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Before:  Hon Lam VP, Chu JA and Bharwaney J in Court

Date of Judgment:  28 May 2020

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J U D G M E N T

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Hon Bharwaney J (giving the Judgment of the Court):

1.On 17 September 2019, the Court (Lam VP and Bharwaney J) handed down a judgment ([2019] HKCA 1031) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 24 May 2019 ([2019] HKCFI 750). In the latter decision, the Judge refused leave for the applicant to apply for judicial review.

2.By a notice of motion filed on 23 September 2019, the applicant sought leave to appeal against the Court’s judgment to the Court of Final Appeal.  It was stated in the notice of motion that:

“1) The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration on the 17 September 2019 refusing my application for Judicial Review.

2) There is some error in law in my decision. The decision maker just relied on COL information any my previous facts, which were favour on rejecting my claim.

Actual life occur different situation than mentioned COL information. Officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

3) Procedural unfairness.

4) The Judge did not apply the law properly.” (sic)

3.Notwithstanding that he was directed to do so, the applicant failed to lodge any written submission in support of this application.

4.Plainly, nothing in the notice of motion constitutes valid grounds of appeal.  The allegation relating to the decision-makers’ handling of the COI materials (paragraph 2 of the notice of motion) has been raised in neither the leave proceedings before the Judge nor the substantive appeal before the Court.  As explained in Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 824 at [9] and Re Zaman Muhammad [2018] HKCA 859 at [7], 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; nor would leave be granted on new fact-sensitive points not argued at the court below.

5.The remaining paragraphs are general assertions without any particulars in support.

6.In this application, the applicant failed to raise any question of great general or public importance, as required under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484).  Nor can we see any basis to grant leave on the “otherwise” limb.  Accordingly, the statutory thresholds for granting leave to appeal to the Court of Final Appeal are not met.

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

The applicant acting in person