Re Dangol Suresh Kumar

CACV 443/2022

[2023] HKCA 400

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 443 OF 2022

(ON APPEAL FROM HCAL NO. 2369 OF 2018)

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J U D G M E N T

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

1.On 19 January 2023, this court handed down a judgment ([2023] HKCA 72)  dismissing the applicant’s appeal against the decision of Deputy High Court Judge Lung given on 25 October 2022 refusing him leave to apply for judicial review.

2.On 13 February 2023, the applicant filed a Notice of Motion to apply for leave to appeal this court’s judgment to the Court of Final Appeal.  He has also put in a written submission to support the application.

3.Having considered the Notice of Motion and written submission, 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 has been set out in our judgment.  We will not repeat them.

5.Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, 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 Notice of Motion sets out the following grounds in support of the application:

(1)  The applicant did not request an oral hearing because he did not know the “legal jargon”, but he had wished to have a hearing so that he could make oral submission to the Judge.

(2)  The applicant lodged his notice of appeal with the help of a friend, and was not aware that he did not request an oral hearing.  He mistakably “clicked the wrong box of directions [about] dealing on paper”.  Due to insufficient information and lack of speaking skills in English, he could not submit the skeleton submission.

(3)  The authorities, despite knowing of the applicant’s language incapability, have not made reasonable arrangements to enable him to understand the judgments, thereby depriving him of the right to seek further avenues of appeal.  This is a wrongful exercise of case management power as case management should extend to how a judgment is delivered.

(4)  If a litigant has not been fully informed of his rights and allowed to be heard with assistance, it cannot be said that the assistance cannot be of any use when it was not given in the first place. 

7.The written submission made the following points:

(1)  The judgment of this Court does not make logical sense.  The applicant seeks a reconsideration of his case, and requires language and legal assistance.

(2)  Language assistance should not be confined to the screening and adjudication process, but should extend to the determination process such that the decisions of the Director of Immigration, the Torture Claims Appeal Board and the Court. 

(3)  It is not true that the applicant could have interpretation or translation assistance at all times. The Board and the Court owe a duty of care to unrepresented litigants.  The lack of language assistance is discriminatory and amounts to procedural unfairness. 

(4)  The Court has been too strict with non-refoulement claimants like the applicant, and has discriminated against people who have no legal representation as skeleton argument is something very technical that only lawyers know how to prepare. Non-refoulement claimants should be treated the same notwithstanding they are at different stages of their applications.   

8.The matters stated in the Notice of Motion and the written submission do not amount to viable grounds for the intended appeal.  They were broad and unparticularised statements that relate to the circumstances of his case.  Importantly, no question of great general and public importance has been identified, as required by section 22(1)(b)  of the Ordinance.  Further, for the reasons set out in [14] and [15] of our judgment, the matters put forward by the applicant are unarguable.  Critically, the applicant has not been able to indicate what were the elaborations and arguments that he would have raised had there been an oral hearing and/or had he been provided with language assistance.  We also do not see any basis for the “or otherwise” limb under section 22(1)(b). 

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

The applicant, unrepresented, acting in person.