RE ASHWANI KUMAR

CAMP 548/2021

[2023] HKCA 157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 548 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1513 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court)  :

I.  Leave to appeal to the Court of Final Appeal

1.  On 4 May 2022, this Court (Cheung and Chu JJA)  handed down a decision ([2022] HKCA 623)  dismissing the applicant’s application to extend time to appeal against the decision of Deputy High Court Judge Bruno Chan refusing to grant leave to the applicant to apply for judicial review.

2.  On 7 July 2022, the applicant filed a Notice of Motion together with a supporting affirmation, seeking leave to appeal against our decision to the Court of Final Appeal.  The applicant filed his written submissions on 21 July 2022.

3.  Doing our best to understand the applicant’s Notice of Motion, the applicant made the following points therein :

1)  He did not have any knowledge about the judicial review system in Hong Kong, did not receive assistance such as translation, and did not know that failure to lodge the skeleton submissions would ‘cost [him] an oral hearing’.  It appears that his complaint is that he did not receive an oral hearing even though he ‘specifically requested’ one.

2)  The ‘judges’ were ‘procedurally unfair’ because the applicant did not have knowledge about the judicial review system and did not receive assistance from the Legal Aid Department.

3)  The Torture Claim Appeal Board (the ‘Board’)  should not have rejected his claim because it was genuine and he could have provided more proof if they had asked him.  In particular, the Board erred in finding that he could relocate within India.

4)  The Court of First Instance did not give him a chance to speak and did not ask any questions about the affirmation he submitted at the hearing.  The fact that the applicant was late in submitting his application was not a valid reason for dismissing his summons.

4.  In his supporting affirmation, the applicant merely stated that he was ‘out of time’ because ‘I really don’t have idea about notice of motion’.

5.  In his written submissions, the applicant recited case authorities and statutory references for general principles in non-refoulement claims without explaining how those principles were relevant to his case.

6.  Having considered the applicant’s Notice of Motion, supporting affirmation and written submissions, we see no reason to depart from the usual practice of determining applications for leave to appeal (out of time)  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.

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

II.  Legal principles

8.  Section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘HKCFAO’)  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 / decision to be appealed from.  Section 24(5)  further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

9.  The applicant’s present application is out of time by over five weeks.  The only ‘explanation’ given by the applicant is the bare assertion that he did not ‘have idea about the notice of motion’.  This is wholly unsatisfactory for a serious delay of over five weeks.

10.  Further, under section 22(1)(b)  of the HKCFAO, leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

III.  Our view

11.     The matters stated by the applicant in his Notice of Motion, supporting affirmation and written submissions do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b)  of the HKCFAO.  Nor is there any such question apparent to us from the matters he has raised in his document.

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

IV.  Disposition

13.  As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the Notice of Motion.  Accordingly, we dismiss the Notice of Motion.