Re Gurwinder Singh

CACV 537/2019

[2020] HKCA 588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 537 OF 2019

(ON APPEAL FROM HCAL NO 2933 OF 2018)

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Before:  Hon Cheung, Chu JJA and G Lam J in Court

Date of Written Submissions:  3 June 2020

Date of Decision:  27 July 2020

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D E C I S I O N

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Hon G Lam J (giving the Decision of the Court):

Leave to appeal to Court of Final Appeal

1.On 13 May 2020, this Court (Cheung JA and G Lam J) handed down its judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge K W Lung given on 18 November 2019 in which he refused to grant leave to the applicant to apply for judicial review.

2.The facts and issues in the appeal before the Court of Appeal, as well as this Court’s reasons for dismissing it, are set out in our judgment.  We will not repeat them here.

3.The applicant now applies, by a notice of motion dated 20 May 2020, for leave to appeal against our judgment to the Court of Final Appeal.  We will deal with this application on paper.

4.The applicant stated in his notice of motion in summary that:-

(1)  the Judges have not addressed paragraphs (4) to (10) of his skeleton submissions dated 14 April 2020;

(2)  the Determination (which seems to be a reference to the decision of the Torture Claims Appeal Board) was not translated or read back to him which was unfair;

(3)  the applicant had to ask for translation assistance without the ability to verify what was translated;

(4)  the Court has not provided any explanation to him why language assistance was not given to him; the Court cannot prove that the applicant was made aware of the contents of the judgments against him; the Court cannot conclude that language assistance would not make a difference if it was not provided in the first place; and

(5)  the Judges should not assess the applicant’s prospects of success as without language assistance he had been deprived of the opportunity of a full appeal.

5.In the applicant’s written submissions dated 3 June 2020, he submitted in summary that:-

(1)  the Determination of the Torture Claims Appeal Board was not translated or read back to him which was unfair;

(2)  the Judgment of the Court of First Instance was not translated to him which was unfair; the burden should be on the Judges to determine the grounds of error;

(3)  the applicant was deprived of the right to an oral hearing.

Legal principles

6.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 will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

Our view

7.The matters stated by the applicant in his notice of motion and written submissions do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b).  Nor is there any such question apparent to us from the matters he has raised in his notice of motion and written submissions.

8.Our response to the applicant’s notice of motion and written submissions are as follows:-

(1)  In our judgment we have addressed the relevant parts of the applicant’s skeleton submissions of 14 April 2020; see paras §§15-18 of our judgment.

(2)  A high standard of fairness does not entail that interpretation services must be made available at any time the applicant desires.  All the court documents submitted by the applicant were in English. The applicant either understands English or had means and access to such language assistance as he needed: Gurnishan Singh [2018] HKCA 704 at §13.

(3)  It does not follow just because the applicant asked for language assistance from a friend, that he had no chance to verify the accuracy of the language assistance.

(4)  The burden lies with the applicant to prove his case, not the Court: AM v Director of Immigration [2014] 1 HKC 416 at 427.

(5)  The applicant was granted an oral hearing in open court both before the Deputy Judge for the application for leave to apply for judicial review and before this court for his appeal.

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

Disposition

10.For these reasons, the notice of motion dated 20 May 2020 is dismissed.

Written Submissions by the Applicant, unrepresented