Re Kolambage Prathbhath Purnaka

CACV 206/2020

[2021] HKCA 311

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 206 OF 2020

(ON APPEAL FROM HCAL 1666/2018)

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Before:  Hon Lam VP, Barma JA and G Lam J in Court

Date of Written Submissions: 13 January 2021

Date of Judgment: 18 March 2021

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JUDGMENT

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

1.On 30 December 2020, the Applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 15 December 2020. In that judgment Lam VP and G Lam J dismissed the Applicant’s appeal against the decision of Deputy High Court Judge K W Lung on 9 June 2020 dismissing his application for leave to apply for judicial review.

2.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides that an appeal shall lie to the Court of Final Appeal (“CFA”) at the discretion of this Court or the CFA 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 CFA for decision.

3.In his Notice of Motion for leave to appeal to the CFA, the Applicant pointed out a mistake in our judgment: at [4], reference was made to Pakistan instead of Sri Lanka.  As can be seen from the rest of the judgment, we had all along intended to refer to Sri Lanka where the Applicant came from, see [3] and the references to the facts at [4] and the discussion at [19] to [27] were those related to the Applicant concerning events and the political situation in Sri Lanka.

4.The reference to Pakistan at [4] is a clerical error which can be rectified by a corrigendum.

5.The Applicant stated in his Notice of Motion that his supporting documents submitted at his screening interview and at his oral hearing were disregarded.  He also averred that all his documentation is true, and stated that if he were to return to his country, his life would become uncertain.

6.The Applicant had not raised a ground in his Form 86 nor in his Notice of Appeal and submissions advanced at the substantive appeal before us that the relevant documentary evidence had been disregarded. As far as we can gather from the decision of the Board, all the evidence advanced before the Board had been duly considered and the rejection of some of the allegations in the evidence of the Applicant does not mean that his evidence had not been considered.  

7.Pursuant to the Court’s directions of 31 December 2020, the Applicant lodged his written submissions in support on 13 January 2021.  He attached some documents to those submissions.  Those documents were not submitted previously in the court proceedings and it is not clear if he had submitted the same to the Board.

8.We have to reiterate that fresh evidence cannot be admitted on appeal without leave and an application for leave to appeal to the Court of Final Appeal is not the proper occasion for evidence to be submitted for the first time.

9.The Applicant did not explain why he failed to submit these documents earlier and how the documents advanced his case as previously run in the Court of First Instance and in the substantive appeal. We are unable to discern from these documents any assistance to the advancement of the Applicant’s grounds for judicial review which had previously been advanced.  

10.In the submissions of 13 January 2021, he stated that he still has problems in his country, Sri Lanka, and that he is very afraid because the present government there can do harmful things with impunity. 

11.This is a departure from the stance he adopted before the Board. At paragraph 74 of the Board’s Decision, it was recorded as follows:

“ 74. I further note the Appellant clearly indicated at the hearing he does not fear the Sri Lankan authorities as a whole, albeit much of Mr Tibbo's submissions, to my view, were skewed toward that being the case. The Appellant clearly disavowed at the hearing those parts of his claims where it is suggested the former Sri Lankan president, the Sri Lankan military, paramilitary, CID or police targeted the Appellant, his family or friends for harm. The Appellant clearly expressed his fear is of Mr K and the influence of Mr F and Mr FN.”

12.His contentions in the judicial review proceedings had always been directed towards the Board’s assessment of his evidence concerning the risk of harm coming from Mr K with the support of F and FN, not the risk of harm from the Sri Lankan government.

13.The Applicant did not explain why he chose to change his focus at this stage.  In any event, an application for leave to appeal to the CFA is not the proper occasion for such change as the Applicant did not provide the proper basis for the appeal and the application at the Court of First Instance to address the case in that manner.  

14.In the circumstances, the Applicant has not raised any reasonably arguable ground of appeal on the merit of his claim, or any discernible or arguable ground for disturbing our judgment.  

15.Further, we do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

16.For these reasons, we refuse to grant leave to appeal to the CFA, and dismiss the Applicant’s Notice of Motion.

The applicant acting in person