Re Gurung Kapil

CAMP 192/2019

[2020] HKCA 389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 192 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 561 of 2017)

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Before:  Hon Cheung, Chu and Barma JJA in Court

Date of Judgment: 3 June 2020

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.On 22 January 2020, this Court (Cheung and Chu JJA) handed down our judgment[1] refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Bruno Chan given on 1 February 2019 refusing him leave to apply for judicial review.     

2.On 16 March 2020, the applicant filed a notice of motion and an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  Despite the direction of the Registrar of Civil Appeals, the applicant has not put in any written submission to support his 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 documents in the case.

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.  Due to the public health risks caused by COVID-19, the registries of the High Court were closed between 29 January and 8 March 2020.  By reason of section 71(1A) of the General Clauses and Interpretation Ordinance, Cap. 1, the time for the applicant to file a notice of motion expired on 9 March 2020 when the High Court registries reopened.  Section 24(5) further provides that 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 a week, which is not very serious.  He explained in his affirmation that since the Chinese New Year he had not been able to file the notice of motion as the court registries were closed.  Having regard to the unusual circumstances since 29 January 2020 and the fact that the applicant is a litigant in person, we are prepared to extend the time for the applicant to file the notice of motion.        

6.We turn next to consider the merits of the application.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

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

8.The notice of motion set out two broad grounds of appeal. First, the Court failed to apply the principle of irrationality in that (i) the decision maker only relied on country of origin information (“COI”) and facts that favour the rejection of the applicant’s claim; the country situation was different from the COI; and (ii) the officer and the court had ignored the overwhelming evidence of violence committed on the minorities.  Second, the Court failed to apply the principle of procedural fairness in that there was no fair assessment of the danger to the applicant and the Director of Immigration and the Torture Claims Appeal Board were required to give reasons for their decisions.       

9.We are of the view that the points and arguments advanced by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  They relate only to the circumstances of the applicant, and do not involve any question of great general or public importance, as required by section 22(1)(b).  Further, the proposed grounds were not argued in the appeal before us.  It is not open to the applicant to raise them in this application.  The proposed grounds are in any event vague and not particularised.   

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

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

The applicant, unrepresented, acted in person.