RE JARJU BAKARY

CAMP 40/2020

[2021] HKCA 532

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 40 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 1106 OF 2017)

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J U D G M E N T

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

1.  By a judgment dated 14 January 2021 ([2021] HKCA 34), this Court (Yeung VP and Chu JA) dismissing the applicant’s application to extend time to appeal an order of Campbell-Moffat J (“the Judge”) given on 15 November 2018 in HCAL 1106/2017 refusing to give the applicant leave to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board/ Non-Refoulement Claims Petition Office (“the Board”) given on 21 July 2017 dismissing his petition/appeal from the decision of the Director of Immigration (“the Director”) given on 21 February 2017 rejecting his non-refoulement claim.

2.  On 16 February 2021, the applicant filed a notice of motion for leave to appeal this court’s judgment to the Court of Final Appeal.  However, it was out of time, as section 24(2) of the Hong Kong Court of Final Appeal Ordinance (“HKCFAO”) (Cap. 484) stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from.  The deadline for filing the notice of motion expired on 16 February 2021 (as 12 to 15 February 2021 were Lunar New Year holidays). 

3.  However, under section 24(6) of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period.  In the exercise of our discretion, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party, see: Re Rajaram Razeena [2019] HKCA 959 at para 1.4.

4.  In the present case, the applicant’s notice of motion is late by 1 day which is minimal.  The lack of explanation for the delay is not a weighty consideration. 

5.  As for the merit of the appeal, the notice of motion set out the following grounds:

“The High Court Judges refused my leave to apply for judicial review. On the other hand, I have no way to return to my country. If I return my enemy will kill me. So I want to go to the Court of Final Appeal for grant my leave and save my life. I wish my leave will accept (sic)”

6.  Pursuant to the directions made by the Registrar of Civil Appeals on 18 February 2021, the applicant should lodge his written submissions on or before 2 March 2021.  However, he failed to do so.

7.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

8.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

9.  Here, the applicant failed to raise any discernible grounds to disturb our judgment and nothing set out in the notice of motion can be constituted as viable ground of appeal. 

10.  For the reasons that we gave in our judgment of 14 January 2021, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the Notice of Motion involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

11.  As the intended application has no prospect of success, we will not extend the time for the applicant to apply for leave to appeal to the Court of Final Appeal.  Accordingly, we dismiss his notice of motion.