ABOAGYE RICHARDSON v. DIRECTOR OF IMMIGRATION

CAMP 162/2020

[2022] HKCA 900

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 162 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 386 OF 2017)

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J U D G M E N T

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Hon Kwan Ag CJHC (giving the Judgment of the Court):

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Chu JA) handed down on 28 April 2021 ([2021] HKCA 562). The Court of Appeal refused to grant extension of time for the applicant to appeal against the decision of Deputy High Court Judge Woodcock dated 29 March 2018 ([2018] HKCFI 677) dismissing the application for leave to apply for judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 17 February 2022 that the applicant should lodge written submissions in support of his Notice of Motion on or before 3 March 2022 and that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the direction or the expiry of the time for the compliance of the direction. The applicant did not lodge any written submission as directed. As the time for compliance with the said directions has expired, having considered the papers, it is appropriate to determine this application on paper.

3.  The applicant is a national of Ghana. He first arrived in Hong Kong on 25 July 2006. He had overstayed since the expiry of his visa on 29 August 2006. He surrendered to the Immigration Department on 19 March 2007. He was convicted of the offence of overstaying and sentenced to 21 days’ imprisonment suspended for 18 months. The applicant did not report to the Immigration Department as required for repatriation on 2 April 2007. He was arrested by the police on 25 May 2008. He lodged a torture claim on 27 May 2008 on the basis that he will be harmed or killed by his uncle if he returns to Ghana because of a land dispute.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by DHCJ Bruno Chan on 20 August 2020[1].

5.  The applicant renewed his application to the Court of Appeal for extension of time to appeal on 11 September 2020. The application was dismissed by the Court of Appeal on 28 April 2021 as the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.  The grounds written by the applicant in the Notice of Motion filed on 17 February 2022 would appear to be as follows. The applicant complained that he did not have enough time or legal expertise to make a proper presentation of the facts of the matter and he did not have enough time to seek proper legal advice and representation. He claimed that the judge’s decision was not based on the correct facts and was “an absurd contradiction”.

Analysis and disposition

7.  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.

8.  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).

9.  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.

10.  The applicant was late for nearly eight months in filing his Notice of Motion. The delay is very substantial. He stated in his affirmation of 17 February 2022 that there is a lack of legal advice and proper presentation of his case and there is insufficient time for him to prepare for his case due to the pandemic. His explanation is lacking in particulars and cannot justify the very substantial delay.

11.  In any event, the applicant did not provide any particulars or evidence to demonstrate that the Court of Appeal was wrong in refusing to grant extension of time. Furthermore, he has failed to identify any question of great general or public importance which 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).

12.  We refuse to grant an extension of time for leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 17 February 2022.