SATNAM SINGH v. DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 567/2018

[2020] HKCA 883

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 567 OF 2018

(ON APPEAL FROM HCAL NO 167 OF 2018)

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BETWEEN

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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 (Hon Lam VP and Yuen JA) handed down judgment on 11 April 2019 ([2019] HKCA 433) (“the Judgment”) dismissing the applicant’s appeal against an order of Deputy High Court Judge Josiah Lam given on 20 November 2018 refusing his application for leave to apply for judicial review concerning his non-refoulement claim. The facts and issues in the appeal before the Court of Appeal, as well as the court’s reasons for dismissing it, are set out in our Judgment and will not be repeated here.

2.  On 30 July 2020 the applicant filed a Notice of Motion for leave to appeal the Judgment to the Court of Final Appeal.  However, it was out of time, as s.24(2) of 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.  Therefore, in the present case, the deadline for filing the Notice of Motion had expired on 9 May 2019. 

3.  However, under s.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. 

4.  In the present case, the delay is more than 16 months which is a very substantial delay, given that the appeal period is 28 days.

5.  As for the reasons for the delay, in his affirmation filed on the 30 July 2020, the applicant said that “I am late for apply due to [lack] of knowledge and insufficient sources.  Please accept my [filing] application so that I can process my case further.  I hope I will get your favour.”.  In our view, no adequate reason has been provided. Anyone who wishes to appeal against a judgment can ascertain the time limit for doing so by checking the relevant legislation online, or orally making inquiries with the unrepresented litigants resource centre at the High Court Building.  

6.  As for the merits of the intended appeal, no grounds have been stated either in the Notice of Motion or in his affirmation.

7.  On 3 August 2020, the Registrar of Civil Appeals directed that the applicant shall lodge his written submissions on or before 13 August 2020, and the Notice of Motion shall be determined on paper only without an oral hearing.  We agree it is appropriate to determine this application on paper.  The applicant did not file any written submissions. 

8.  Section 22(1)(b) of the HKCFAO provides that leave to appeal to the Court of Final Appeal shall be granted at the discretion of the Court of Appeal or the Court of Final Appeal if the question involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

9.  No question (whether of great general or public importance or at all) has been identified in the Notice of Motion.

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

11.  By reason of the above, the Notice of Motion dated 30 July 2020 is dismissed.