Re Choi Matarr

CACV 309/2022, [2023] HKCA 579

On Appeal From [2022] HKCA 1836

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 309 OF 2022

(ON APPEAL FROM HCAL NO 2277 OF 2018)

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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 3 January 2023, 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 1836). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung dated 2 August 2022, refusing his application for leave to apply for judicial review ([2022] HKCFI 2357).

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 stated:

“Dear Sir/Madam,

I would like to infomr the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favour while rejecting my claim. Acual life occur different situation then what is mentioned in COL information. The Officer and cours prefers to ignore the overheming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.” (sic)

5.Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 13 January 2023.  In those submissions, he repeated the procedural history of his non-refoulement claim.  He also cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim.  He submitted that the Board had acted in a procedurally unfair manner without properly assessing his credibility.  He also referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably. He further referred to section 37ZT of the Immigration Ordinance, Cap 115, which relates to the late filing of notice of appeal to the Board but failed to point out its relevance to his case.  It is noted that his submissions were all general propositions and the applicant failed to show specifically how they were relevant to his case.

6.In our view, his application is wholly without substance.  His Notice of Motion and written submissions essentially repeated the grounds he had previously submitted before this Court which had already been considered and rejected by this Court: see the Judgment at [9] ‑ [19].  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 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.