RE RAI KALPANA

CAMP 254/2022

[2023] HKCA 768

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 254 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 81 of 2021)

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J U D G M E N T

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Hon Chu VP giving the Judgment of the Court:

1.  On 17 February 2023, this Court handed down our judgment ([2023] HKCA 183) setting aside the order dated 5 October 2022 and dismissing the applicant’s renewed application to extend the time to appeal the decision of Deputy High Court Judge Patrick Li (“the Judge”) given on 23 February 2022 which refused to give her leave to apply for judicial review.

2.  On 27 March 2023, the applicant filed a notice of motion together with an affidavit to apply for leave to appeal against our judgment to the Court of Final Appeal. She has also put in a written submission to support the application.

3.  Having considered the applicant’s notice of motion, affidavit and written submission, 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 has 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. The deadline for the applicant to file a notice of motion is 17 March 2023. The applicant’s notice of motion is late by ten days.

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. In considering whether to extend time, the Court will normally have regard to (1) the length of the delay; (2) the reasons for the delay; (3) the merits of the intended application; and (4) the prejudice that may occasioned to the other parties if time is extended.

7.  The applicant explained in the affidavit that she lives in a sub-divided unit, the key to the letter box is kept by the landlord who will only pick up and distribute the letters at his convenience, and she only received the judgment on 24 March 2023. In our view, the reason given for the delay is not implausible. Further, the delay of ten days, though not insignificant, is not substantial. In the circumstances, we will focus on the merits of the intended appeal, which is the most important consideration.

8.  Section 22(1)(b) of the Hong Kong 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 stated the following in support of the application:

“(1) There is some error in law in my decision. The decision maker just relied on COL information any my previous facts, which were favour on rejecting my claim.

(2) The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration refusing my application for Judicial Review.

(3) Actual life occur different situation then mentioned COL information. Officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

(4) The Judge did not apply the law properly.”

10.  The written submission is the same as the one lodged on 28 July 2022 in support of the renewed application for extension of time to appeal the Judge’s decision: see [24] of our judgment.

11.  We are of the view that the matters set out in the notice of motion and the written submission do not afford any basis for granting leave to appeal. Importantly, they all concern the applicant’s claim and personal circumstances, and do not show that the intended appeal involves any question of great general or public importance. Further, the grounds in the notice of motion are general and vague, unsupported by any particulars. As to the written submission, for the reasons given in [25] of our judgment, the points made in it are unarguable. We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

12.  As the statutory requirements for giving leave to appeal are not met, it is futile to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.