RE MD REPON MONSE

CACV 426/2019

[2020] HKCA 898

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 426 OF 2019

(ON APPEAL FROM HCAL NO 1693 OF 2018)

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J U D G M E N T

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Hon Toh J (giving the Judgment of the Court):

1.  This is the applicant’s application for leave to appeal to the Court of Final Appeal against the judgment of this Court (Cheung JA, Toh and Lisa Wong JJ) handed down on 7 May 2020 ([2020] HKCA 91).  We dismissed his appeal against the decision of Deputy High Court Judge K.W. Lung on 5 September 2019 ([2019] HKCFI 2191) who refused to grant leave to apply for judicial review concerning his non-refoulement claim. The applicant filed his present application on 13 July 2020. He was out of time for over one month.  This is in substance an application for extension of time to apply for leave.

2.  The Registrar of Civil Appeals directed on 15 July 2020 that the application shall be determined on paper only without an oral hearing.  The applicant lodged his written submission on 17 August 2020.  Having considered his submission, we consider it appropriate to determine this application on paper and will proceed to do so. 

The applicant’s grounds

3.  The applicant stated in the Notice of Motion that:-

(1)  It is not true that his application does not have substance;

(2)  He did not complain about the poor performance of his duty lawyer because he feared that he will be picked out for misappropriating by the adjudicator;

(3)  He did not have enough time to address the bundle.

4.  What the applicant stated in his affirmations and written submission may be summarized as follows:

(1)  In his first affirmation, he stated that he only received the Court of Appeal’s judgment of 7 May 2020 on 20 June 2020, and it took him time to take out an application because of his language problem, the situation of the virus and that he was scared;

(2)  In his second affirmation, he stated that the Court was wrong to hold there was no state acquiescence, and that the Court did not find out details of the situation in India;

(3)  His 10 page written submission cited legal authorities and principles that are used in non-refoulement applications without giving particulars on how they applied to his case.

Analysis

5.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (‘the Ordinance’), an application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making an application for leave to appeal.

6.  Section 22(1)(b) of the Ordinance 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, 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.

7.  In the present application, the applicant was late for over a month. The delay is not insubstantial. Good grounds have to be shown by the applicant to explain the delay. The relevant factors in considering whether an extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

8.  The applicant explained in his affirmation that his delay was due to his language problem, and that he only received this Court’s judgment on around 20 June 2020.  No details were provided as to how it was that he only received the judgment over a month later.  

9.  In any event, the applicant has not shown any merits in his intended application for leave to appeal to the Court of Final Appeal. His grounds of appeal are bare assertions.  He has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b).  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b). 

10.  For the above reasons, we decline to grant the applicant extension of time to apply for leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 13 July 2020.