Re Heti Wihani and Another

CACV 519/2020

[2022] HKCA 756

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 519 OF 2020

(ON APPEAL FROM HCAL NO. 869 OF 2018)

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Before :  Hon Cheung and Yuen JJA in Court

Date of Judgment :  26 May 2022

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J U D G M E N T

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

I.  Leave to appeal to the Court of Final Appeal

1.On 17 September 2021, this Court (Cheung JA and Lisa Wong J) handed down a judgment dismissing the applicants’ appeal against the decision of Deputy High Court Judge Bruno Chan given on 21 September 2020 in which he refused to grant leave to the applicant to apply for judicial review.

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

3.The applicants now apply, by a notice of motion filed on 15 October 2021, for leave to appeal against our judgment to the Court of Final Appeal.  The applicants stated in the notice of motion in summary the following points :

(1.) to (6.), (8.) to (9.) : Lack of language assistance.  He was unable to understand the judgments.  This is discriminatory and unlawful.

(7.) : Lack of evidential consideration of the issues.

(10.) : The 2^nd applicant who is a minor was not legally and separately represented by a lawyer.  The lack of legal and language assistance to the 2^nd applicant was a main error.

4.The applicants stated in their written submissions in summary the following points :

(2.) to (4.) : Judgments illogical, unfair, unreasonable and did not deal with his grounds.

(5.) : Lack of legal assistance.

(6.) to (10.) : Lack of language assistance.  Documents were not translated to their native language.

II.  Our view

5.Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘Ordinance’) 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.

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

7.The arguments in the applicants’ notice of motion and written submissions are new grounds that were not raised previously.  It is not the practice for this Court to entertain new grounds not canvassed in the Court below: Orense Marian Masangkay [2022] HKCA 33 at [7].  High standards of fairness do not entail free legal representation at all stages of the proceedings or interpretation service being made available at any time the applicant desires: Barroga Escolastica Tejero [2021] HKCA 279 at [3]. As for the minor’s position, this had been separately considered in the judgment of 17 September 2021.  The arguments remain fact sensitive and do not relate to any question of general or public importance.

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

III.  Disposition

9.For these reasons, the notice of motion dated 15 October 2021 is dismissed.

1^st and 2^nd Applicants, unrepresented, acting in person