Re Abakwam Obinna Alias Kwesi Remigius

CACV 308/2022, [2023] HKCA 578

On Appeal From [2022] HKCA 1835

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 308 OF 2022

(ON APPEAL FROM HCAL NO 99 OF 2019)

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J U D G M E N T

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

1.On 16 December 2022, 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 8 December 2022 (“the Judgment”) ([2022] HKCA 1835). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan dated 22 July 2022, refusing his application for leave to apply for judicial review ([2022] HKCFI 2236).

2.The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

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

4.In his Notice of Motion, the applicant alleged that there were errors and/or procedural unfairness or irrationality in the decisions of the Director, the Board and the Court, as they failed to take into proper consideration the basis that he would harmed or killed just like his mother by his mother’s creditor, who was an influential politician, upon his return to his home country.  He claimed that his life would be in great danger owing to the lack of state protection and that internal relocation would be untenable.  He further reiterated that he suffered a partial stroke and was currently receiving treatment in Hong Kong.  He claimed that his critical health condition should override or supersede his non-refoulement claim and review application since his health should take priority over whether or not he should be allowed to remain in Hong Kong.

5.Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 21 December 2022.  In those submissions, he repeated the allegations as stated in his Notice of Motion and again stated that he would be harmed or killed by his mother’s creditor and that there were fear and life-threatening situations in Nigeria.  He also claimed that the lack of legal representation was procedurally unfair to him.

6.In our view, his application is wholly without substance.  His Notice of Motion and written submissions essentially repeated those grounds he had previously submitted before this Court which had already been considered and rejected by this Court: see the Judgment at [11] ‑ [22].  It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014) at [2] and [3]. More importantly, he did not identify any specific error in the Judgment with sufficient particulars.  As to his allegations concerning the lack of legal representation, this was not raised before the Deputy Judge or this Court in his earlier appeal.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it; nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal: see Re Orense Marian Masangkay [2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh [2021] HKCA 870 at [7].  In any event, high standards of fairness also 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 such, nothing set out in his Notice of Motion or written submissions can be considered as viable grounds of appeal to the Court of Final Appeal.  Accordingly, the applicant’s intended appeal must fail.

7.Further, even taking his case at its highest, his allegations are fact‑specific and do not relate to any question of great general or public importance.

8.The applicant has therefore failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

9.For these reasons, we dismiss the Notice of Motion.