MD MOJAMMAL alias MD MOJMMAL ALIAS MOJAMMAL v. MRS SYDELLE MULING, ESQ.,TORTURE CLAIMS APPEAL BOARD

CAMP 262 /2020

[2022] HKCA 451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 262 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1279 OF 2018)

________________________

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1.  This is the applicant’s Notice of Motion for leave to appeal out of time to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Au JA) handed down on 23 August 2021 ([2021] HKCA 1202). The Court of Appeal refused to grant extension of time for the applicant to appeal against the decision of Deputy High Court Judge Bruno Chan dated 9 June 2020 ([2020] HKCFI 542) refusing to grant leave to apply for judicial review concerning the applicant’s non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 11 October 2021 that the Notice of Motion shall be determined on paper without an oral hearing.  The applicant lodged his written submissions on 25 October 2021.  Having considered his written submissions and the papers, it is considered appropriate to determine this application on paper.

3.  The applicant is a national of Bangladesh.  He arrived in Hong Kong on 28 May 2006 as a visitor and subsequently overstayed.  He was arrested by the police on 18 November 2009.  He raised a torture claim on 20 November 2009 which was rejected by the Director of Immigration (“the Director”) on 14 January 2013.  He then lodged a non-refoulement claim on 11 July 2013.  His claim was made on the basis that he will be harmed or killed by a fellow villager due to a land dispute if he returns to Bangladesh.

4.  He took out a summons for extension of time to appeal against the decision of the judge at the court below on 28 July 2020.  His application was dismissed by the judge on 19 November 2020[1].

5.  The applicant renewed his application to the Court of Appeal on 30 December 2020.  The application was dismissed by the Court of Appeal on 23 August 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

6.  In the Notice of Motion filed on 11 October 2021, the applicant stated the following as his grounds of appeal:

“I would like to infomr [sic] the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL [sic] information and my previous facts which were in favor while rejecting my claim. Acual [sic] life occur different situation then what is mentioned in COL [sic] Information. The Officer and cours [sic] prefers to ignore the overwheming [sic] of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary [sic] a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

7.  The applicant reiterated his background and cited various provisions of the International Covenant on Civil and Political Rights, the Hong Kong Bills of Rights Ordinance, the Basic Law as well as the United Nation Covenant Against Torture.  In gist, his written submissions may be summarised as follows:

(1)     Any delay was not due to anything the applicant or his legal representative had done or failed to do.

(2)     The leave application involves question of great general and public importance.  The legal issues raised are complex, which have not yet been argued in full and not been adjudicated upon by any court.  The outcome will affect not only the applicant but around 2,000 torture claimants in Hong Kong as well as the practice and procedure by the Immigration Department and the Board.

(3)     High standards of fairness are required in the determination of a torture claim on the part of the decision maker.

(4)     The decision maker is under a duty to act fairly.

Analysis and disposition

8.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484, “the Ordinance”), 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 application for leave to appeal. 

9.  Good grounds have to be shown by the applicant for the court to grant an extension of time.  The relevant factors in considering whether 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).

10.  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 in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

11.  The applicant was late for 3 weeks in filing his Notice of Motion.  He explained that he was living in a subdivided flat with other tenants and needed to wait for the landlord to distribute the letters to him so he has just got the judgment recently.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at [15]).

12.  Before handing down the judgment, on 16 August 2021 the court had sent a notice of handing down of judgment notifying the applicant the date of handing down and that the judgment would be uploaded to the Judiciary website within the same day of handing down.  The judgment was also sent to the applicant’s address by post on 23 August 2021.  Under these circumstances, the applicant’s explanation for the delay is not justifiable.

13.  In any event, the applicant has not demonstrated that the Court of Appeal was wrong in dismissing his application.  His grounds and submissions are just bare assertions without particulars or evidence in support and there is no elaboration as to how they relate to his intended appeal.  He alleged there are question of great general and public importance and complex legal issues which have not yet been adjudicated by any court but failed to identify the particular questions which are of great general or public importance that 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).

14.  We therefore refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 11 October 2021.