RE EDI SUBAGIO

CACV 96/2019

[2019] HKCA 1131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 96 OF 2019

(ON APPEAL FROM HCAL NO. 1186 OF 2018)

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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) :

1.  Leave to appeal to Court of Final Appeal

1.1  On 19 June 2019, this Court handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung given on 15 February 2019 in which he refused to grant leave to the applicant to apply for judicial review (‘Decision of the Judge’).

1.2  The facts and issues in the appeal before the Court of Appeal, as well as the Court’s reasons for dismissing it, are set out in our judgment.  We will not repeat them here.

1.3  The applicant now applies, by a notice of motion and affirmation dated 24 June 2019, for leave to appeal against our judgment to the Court of Final Appeal.

1.4  The contents of the applicant’s notice of motion is generally undecipherable.  It seems that the applicant is raising the following grounds : the contents of the judgment is not true when it criticized his claims are without substance and that he did not complain about the poor performance of his duty lawyer because he was afraid to be picked out.  He reiterated that he did not have time to address the bundles before the Board.  All of these complaints lacked any meaningful particulars.

1.5  The applicant’s affirmation exhibited copies of the Court’s judgment and order.  It contains complaints that the judges were wrong in law to hold that there was no state acquiescence, and that they failed to account for the current situation in Indonesia.  However, in reality, these are complaints against the Board, not the judges.

1.6  The applicant failed to comply with the Court’s directions of 9 July 2019 to lodge with the Court his written submissions by 4 pm on 25 July 2019.  The Court’s directions of 9 July 2019 were made on an ‘unless’ basis.  We are aware that the applicant had on 7 August 2019 lodged with the Court his written submissions, but due to his non‑compliance with the Court’s directions, we will not consider his written submissions in our determination of this application.

2.  Legal principles

2.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘HKCFAO’) leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

3.  Our view

3.1  The matters stated by the applicant in his notice of motion and affirmation do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the HKCFAO.  Nor is there any such question apparent to us from the matters he has raised in his notice of motion or affirmation.

3.2  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

4.  Disposition

4.  For these reasons, the notice of motion dated 24 June 2019 is dismissed.

Applicant, unrepresented, acting in person

CACV 96/2019

[2019] HKCA 690

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 96 OF 2019

(ON APPEAL FROM HCAL NO. 1186 OF 2018)

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J U D G M E N T

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

1)  The appeal

1.1  This is an appeal by the applicant against the decision of Deputy High Court Judge K. W. Lung given on 15 February 2019 in which he refused to grant leave to the applicant to apply for judicial review.

1.2  This appeal was scheduled to be heard on 18 June 2019.  Despite the directions contained in the letter from the High Court to the applicant dated 20 March 2019, the applicant failed to lodge the skeleton argument by 21 May 2019.  Accordingly the hearing was vacated and we will deal with this appeal on paper.

2)  Factual background

2.1  The applicant is a national of Indonesia.  He came to Hong Kong as a visitor on 11 July 2013 but he overstayed.  On 11 August 2013, the applicant was arrested by the Police.  He raised a non-refoulement claim on 13 August 2013.

2.2  The basis of the applicant’s claim is that he would be harmed or killed by Sri Rahayu, a loan shark, from whom he had borrowed money.

2.3  The background facts have been summarized in the decision of the Judge at [2] and [3].

3)  The Director’s Decision

3.  The Director decided against the applicant’s torture claim on 30 August 2017.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (risk of life) risk (‘BOR 2’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 9 May 2018, the Board dismissed the applicant’s appeal on 21 June 2018 (‘the Board’s Decision’).

4.2  The Board found that the applicant presented a very vague picture of his stories.  He had not made out his case on torture risk, persecution risk, BOR 3 or BOR 2. The alleged torturer could not be regarded as a state actor.

5)  Decision of the Judge

5.  The Judge addressed the grounds relied upon by the applicant.  He stated that when the applicant was appearing before him, he admitted that the grounds for seeking leave for judicial review were not written by him, but by his friend.  The applicant confirmed that he received his hearing bundle shortly before the Board hearing. He confirmed that his friend explained the contents of the bundle to him.  He admitted that he was not confused when he attended the hearing before the Board.  He neither had complaints against the Director nor the Board.  The Judge held that there was no evidence to support his grounds to seek leave for judicial review. 

6)  Grounds of appeal

6.1  The applicant in the notice of appeal referred to his grounds of appeal in his supporting affirmation.

6.2  The applicant in his supporting affirmation gave bare assertions that the Judge was wrong in holding that there was no state acquiescence, and that the Judge failed to give detailed reasons.

7)  Our view

7.1  We are of the view that the applicant’s appeal is without merits.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors of law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu[2018] HKCA 451 at [38] and [39].  None of these errors exists in this case.

7.2  Accordingly, the appeal is dismissed.