RE MANJEET SINGH

CAMP 429/2021

[2022] HKCA 1045

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 429 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1307 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 27 April 2022, the applicant filed a Notice of Motion together with a supporting affirmation to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s (Au and Chow JJA)  judgment of 10 March 2022 (“the Judgment”)  ([2022] HKCA 357). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 26 March 2021, refusing his application for leave to apply for judicial review (“the Leave Decision”)  ([2021] HKCFI 732).

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.  Pursuant to section 24(2)  of the HKCFAO, an appellant has 28 days from the date of the Judgment to seek leave to appeal to the Court of Final Appeal.  In the present case, the original deadline for the applicant to seek leave to appeal against the Judgment fell on 7 April 2022.  Due to the closure of the High Court Registry during the General Adjournment Period (arising from the COVID-19 Pandemic)  from 7 March 2022 up to 11 April 2022, the period was automatically extended to 12 April 2022.  Accordingly, the applicant was 15 days late in taking out his application for leave to appeal to the Court of Final Appeal.

5.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5)  of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad [2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the Court is entitled to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chances of the appeal succeeding if an extension of time is granted; and (d)  the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83 at [4] and the authorities cited therein.

6.  In his Notice of Motion, the applicant stated:

“THE HIGH COURT AND THE COURT OF APPEAL DISMISSED MY LEAVE TO APPLY FOR JUDICIAL REVIEW BUT I WISH THE COURT OF FINAL APPEAL WILL CONSIDER MY LEAVE TO APPLY FOR JUDICIAL REVIEW.” (sic)

7.  In his supporting affirmation, the applicant stated:

“AFFIRMATION FOR APPLY OF NOTICE OF MOTION BUT NOT OF SCHEDULED TIME PLEASE ACCEPY MY APPLY.” (sic)

8.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 11 May 2022.  In those submissions, he only repeated the procedural history of his non-refoulement claim and that he had a life threat in his home country.

9.  At the outset, the applicant’s delay of 15 days was not insignificant and he failed to provide any good reason for his delay.

10.  More importantly, his allegations are wholly without substance.  The matters raised in his Notice of Motion and written submissions are all vague and bare allegations without specific particulars or evidence in support.  General assertions of his fear to return to his home country do not constitute viable grounds of appeal. More importantly, nowhere in his Notice of Motion or written submissions did he identify any error in the Judgment.  As such, there is simply no viable ground of appeal and his intended appeal must fail on this basis alone.

11.  In any event, the applicant’s contentions are fact-specific and do not relate to any question of great general or public importance.

12.  Accordingly, he has 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.

13.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion filed on 27 April 2022 is dismissed.