RE AHMED KHAWAJA

CAMP 245/2022, [2023] HKCA 1372

On Appeal From [2022] HKCFI 575

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 245 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2343 OF 2018)

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J U D G M E N T

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

1.  This court handed down judgment on 19 June 2023 ([2023] HKCA 773) (“the CA Judgment”) dismissing the applicant’s application to extend time to appeal against an order of DHCJ K.W. Lung given on 2 March 2022, in which he refused to give the applicant leave to apply for judicial review in respect of his non-refoulement claim.

2.  The facts and issues in the application before this court, as well as the court’s reasons for dismissing it, are set out in the CA Judgment and will not be repeated here.

3.  On 17 August 2023, the applicant filed a Notice of Motion for leave to appeal the CA 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 17 July 2023. 

4.  However, under sections 24(5) and 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 whether or not to extend the appeal period, 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. 

5.  In the present case, the applicant was late by about one month, which is substantial.  In the applicant’s supporting affirmation filed on 17 August 2023, he explained that his delay was caused by not having anyone help him file his Notice of Motion on time in Tai Tam Gap Correctional Institution where he is presently detained.  In his written submissions attached to his affirmation, he reiterated the procedural history of his case and claimed to have been misled by someone who helped him lodge his non-refoulement claim and appeal.  He did not provide any details or particulars as to how and by whom he was misled.  In the absence of these particulars, we do not accept the applicant’s excuse for the delay.

6.  In any event, as for the merits of the intended appeal, the applicant advanced the following in the Notice of Motion filed on 17 August 2023:

“1. The learned judge were wrong as a matter of law for not having applied the principle of immationality (sic) to the decision made by the Director of Immigration refusing my application for judicial review.

2. There is some error in law in my decision. The decision maker just relied on COL information any my previous facts, which were favour on rejecting my claim.

3. Actual life occur different situation then mentioned COL information. Officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

4.   The judge did not apply the law properly.”

7.  On 17 August 2023, the Registrar of Civil Appeals directed that the applicant lodge his written submissions on or before 31 August 2023, and that the Notice of Motion be determined on paper only without an oral hearing.  We agree it is appropriate to determine this application on paper.

8.  After the directions from the Registrar of Civil Appeals, the applicant lodged another written submission on 28 August 2023, in which he merely repeated the factual background of his case.   

9.  Section 22(1)(b) of the HKCFAO provides that leave to appeal to the Court of Final Appeal may be granted 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.

10.  The applicant failed in his Notice of Motion or in any of his written submissions to point out any error of law or raise any discernible ground to reverse the CA Judgment.  Having regard to that judgment, we do not see any merit in the applicant’s intended appeal.  No question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.    

11.  Nor do we see any basis for granting leave under the “or otherwise” limb under section 22(1)(b).

12.  By reason of the above, the Notice of Motion filed on 17 August 2023 is dismissed.