Re Sacdalan Mario Capistrano

CACV 419/2022,

[2024] HKCA 253

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 419 OF 2022

(ON APPEAL FROM HCAL NO. 710 OF 2019)

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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 23 January 2024, this court handed down a judgment ([2024] HKCA 51)  dismissing the applicant’s appeal against the decision of Deputy High Court Judge Lung given on 18 October 2022 refusing to give him leave to apply for judicial review.

2.On 6 February 2024, the applicant filed a Notice of Motion together with an affirmation to apply for leave to appeal this court’s judgment to the Court of Final Appeal.  Despite directions given by the court, he has not put in any written submission to support the application.

3.Having considered the Notice of Motion, 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 gave the following as grounds in support of the application:

“1. The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration refusing my application for Judicial Review.

2. There is some error of law in my decision. The decision maker just relied on COL information and my previous facts, which were favour on rejecting my claim.

3. Actual life occurs in different situations than COL information. Officers and courts prefer to ignore the overwhelming evidence of violence towards minorities, searching for unrealistic silver linings.

4,   The Judge did not apply the law properly.”  

7.In his affirmation, the applicant stated that he understood there was a good ground of appeal that was not necessarily considered at the stage of applying to the Court of Appeal, and that the merits of this ground constituted sufficient reason justifying the court to exercise its discretion to allow the appeal.  He however did not set out the ground of appeal nor elaborate on it.  

8.What was set out in the notice of motion and the applicant’s affirmation do not provide a proper basis for granting leave to appeal to the Court of Final Appeal.  Importantly, the applicant has failed to identify any question of great general and public importance, as required by section 22(1)(b)  of the Ordinance matters.  The matters put forward by the applicant are vague and general assertions and do not engage the reasons we gave for dismissing the appeal (see [[11] to [13] of our judgment].  They do not constitute viable grounds for the intended appeal.  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.