RE PALASH BAKCHI

CAMP 200/2019

[2020] HKCA 611

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 200 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 170 of 2012)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 22 January 2020, this Court (Chu and Barma JJA) handed down our judgment[1] refusing to give leave to the applicant to appeal out of time against the decision of Fung J on 5 February 2013 refusing him leave to apply for judicial review.     

2.  On 2 July 2020, the applicant filed a notice of motion and an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  Despite the direction of 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.  Due to the public health risks caused by COVID-19, the registries of the High Court were closed between 29 January and 8 March 2020.  By reason of section 71(1A) of the General Clauses and Interpretation Ordinance, Cap. 1, the time for the applicant to file a notice of motion expired on 9 March 2020 when the High Court registries reopened.

6.  Section 24(5) of the Ordinance further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

7.  The applicant’s notice of motion is late by more than three months, which is substantial delay.  He stated in his affirmation that he had missed the time, but did not provide any explanation for it.          

8.  As for the merits of the application, section 22(1)(b) of the Court of Final Appeal Ordinance provides that leave to 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 did not set out any proposed grounds of appeal.  It merely stated that the judgment was not fair and the applicant wanted to go to the Court of Final Appeal and wished he would get justice there.  The applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b) of the Ordinance.  We also do not see any basis for granting leave to appeal on the “otherwise” limb under section 22(1)(b).  Accordingly, the intended appeal to the Court of Final Appeal has no prospect of success, and it would be futile to extend the time for applying for leave to appeal.

10.  Having regard to the substantial and unexplained delay as well as the lack of merits in the intended appeal, we would not extend the time for applying for leave to appeal to the Court of Final Appeal.  The notice of motion is therefore dismissed.