RE RUHUL QUDDUS SWAPHAN ALIAS S KUDDAS ALIAS RUHUL QUDDUS SWAPAN

CACV 284/2020

[2021] HKCA 1341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 284 OF 2020

(ON APPEAL FROM HCAL NO. 1831 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving Decision of the Court)  :

I.  Leave to appeal to Court of Final Appeal

1.  On 19 March 2021, this Court (Cheung JA, B Chu and S T Poon JJ)  handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge K W Lung given on 13 July 2020 in which he refused to grant leave to the applicant to apply for judicial review.

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

3.  The applicant now applies, by a notice of motion filed out of time on 24 May 2021, for extension of time for leave to appeal against our judgment to the Court of Final Appeal.  He was over two months late.  The applicant stated in his notice of motion that he has no way to return to his country.

4.  In the applicant’s supporting affirmation, he made a bare allegation that he did not ‘get result’ without any details or explanation of how that was so.

5.  Pursuant to the Registrar of Civil Appeal’s directions of 25 May 2021, written submissions were to be lodged by the applicant on or before 7 June 2021.  As the applicant has failed to do so, we will consider his notice of motion on paper only without an oral hearing for the purpose of this application.

II.  Legal principles

6.  Under section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (‘the Ordinance’)  (Cap. 484), 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)  of the Ordinance further provides that the Court of Appeal may, if it considers appropriate, extend the time for making an application for leave to appeal.

7.  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.

8.  In the present application, the applicant was over two months late.  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]).

III.  Our view

9.  No merits are shown in the applicant’s intended application.  The matters stated by the applicant in his notice of motion do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b)  of the Ordinance.  Nor is there any such question apparent to us from the matters he has raised in his notice of motion. 

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

IV.  Disposition

11.  For these reasons, we decline to grant an extension of time to the applicant to file an application for leave to appeal to the Court of Final Appeal and dismiss the notice of motion filed on 24 May 2021.