RE RAHEES BAVER KHAN

CAMP 136/2019

[2020] HKCA 846

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 136 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 381 of 2018)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.  On 18 November 2019, this Court (Chu and Au JJA) handed down our judgment[1] refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Bruno Chan given on 28 February 2019 refusing him leave to apply for judicial review.    

2.  On 28 September 2020, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  Despite directions given by the Registrar of Civil Appeals, the applicant has not put in any written submission to support his application.

3.  Having considered the applicant’s notice of motion and affirmation, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that 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.  Under section 24(5), the Court of Appeal may extend the time for the filing of the notice of motion.

6.  The applicant’s notice of motion is late by more than eight months, which is very serious delay.  The applicant has provided no explanation for his delay.  He only stated in his affirmation that he believed the merits of his ground of appeal constitute sufficient justifications for the court to exercise its discretion to allow him to appeal out of time.  This is hardly satisfactory.

7.  Further, for the reasons given below, we are also not satisfied that the applicant’s intended appeal to the Court of Final Appeal has any merits.

8.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, that 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.

9.  The notice of motion stated that: (1) the judges were wrong as a matter of law for not applying the principle or irrationality to the decision of the Director of Immigration in refusing the applicant’s application for judicial review; and (2) the judges were wrong as a matter of law for not applying the principle of procedural unfairness to the decision of the Director, who was required to give reason for his decision.

10.  These are not viable grounds for granting leave to appeal to the Court of Final Appeal.  No question of great general or public importance, as required by section 22(1)(b) has been identified.  Further, the complaints about errors of law are mere general assertions not supported by any particulars at all.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.  As the applicant has failed to explain his delay and the statutory requirement for giving leave to appeal is not met, there is no basis to extend the time for applying for leave to appeal. The Notice of Motion is dismissed.