Re Baraily Bikash

CAMP 42/2022

[2022] HKCA 1695

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 42 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2653 OF 2018)

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Before : Hon Cheung and Barma JJA in Court

Date of Decision :  14 November 2022

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D E C I S I O N

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

I.  Leave to appeal to the Court of Final Appeal

1.On 28 June 2022, this Court handed down a decision ([2022] HKCA 954) dismissing the applicant’s renewed application to extend time to appeal an order of Deputy High Court Judge To given on 8 June 2021 refusing his application for leave to apply for judicial review in respect of his non‑refoulement claim. 

2.On 20 July 2022, the applicant filed a notice of motion applying for leave to appeal this Court’s judgment to the Court of Final Appeal.  On 3 August 2022, the applicant lodged his written submissions.  On 31 October 2022, the applicant filed into this Court a Request for Dismissal of the notice of motion (‘Request for Dismissal’).

3.Having considered the applicant’s documents, 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.The background to this case and the applicant’s claim have been set out in our decision.  We will not repeat them.

5.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (Cap  484) provides that 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.

6.The grounds of appeal stated in the notice of motion are in summary as follows :

1)  There is error of law in the lack of assistance provided to the applicant.

2)  The applicant does not have good English and did not receive help in his appeal.  He also received the order late.

3)  The applicant does not understand legal jargons, and so he was unable to point out legal errors.

4)  The applicant would have been able to show legal error if he had legal representation.

5)  The applicant would be able to write proper submissions if he had legal assistance.

6)  The authorities have not made reasonable arrangements to enable the applicant to understand the judgment contents.

7)  The applicant was not given a translation of the judgment.

8)  Without legal representation, the applicant cannot identify legal error.

9)  The judgment lacked evidential consideration of issues.

10)  The applicant has not been informed fully of his rights.

7.In short, the applicant’s main grounds are that he is a lay person and does not understand the contents of decisions or judgments that were ruled against him as English was not his native language.  Without understanding what he was facing, he was unable to point out legal errors and make proper submissions.  This was considered to be legal error.

8.The applicant’s written submissions contain in summary the following :

1)  The judgment does not make sense.

2)  The Judges have not considered the applicant’s grounds of appeal.

3)  The applicant seeks for reconsideration of his case based on unfairness and unreasonableness.

4)  The applicant was unable to understand the Board and court hearings as he did not have legal assistance.

5)  The Board decision was never translated to the applicant.

6)  The Courts owe duty of care to litigants.

7)  It is unlawful that there was no language assistance to the applicant to enable him to understand his claim.

8)  Till this day, the Form CALL-1 has not been explained to the applicant.

9)  The applicant was deprived of an oral hearing.

10)  The Court did not explain why no assistance can be provided to the applicant.

11)  The Court has been too strict.

9.In short, the matters contained in written submissions are a repetition of what were already contained in the notice of motion.  We have already expressed our view to these points in our decision of 28 June 2022.

II.  Our view

10.We are of the view that the grounds put forward by the applicant do not constitute viable grounds for giving leave to appeal. Importantly, no question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

11.Nor do we see any basis for the granting leave under ‘or otherwise’ limb under section 22(1)(b).

12.As the statutory requirements for giving leave to appeal are not met, we will dismiss the notice of motion irrespective of the applicant’s Request for Dismissal.

The applicant, unrepresented, acting in person