RE RAHMAN AZIZUL

CAMP 72/2019

[2020] HKCA 1075

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 72 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 995 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  On 19 June 2020, this Court (Cheung and Au JJA) handed down our judgment (“the Judgment”) [2020] HKCA 492, refusing to grant extension of time to the applicant to appeal against the decision of Deputy High Court Judge KW Lung given on 15 March 2019 ([2019] HKCFI 621) (“the Deputy Judge’s Decision”).

2.  We dismissed the applicant’s summons on the basis that he failed to provide any explanation for the delay and, in any event, the intended grounds of appeal contained no viable grounds of appeal against the Deputy Judge’s Decision.

3.  The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, pursuant to paragraph 3 of Practice Direction 2.1, we see no reason to deviate from the usual practice and proceed to consider this application without an oral hearing.

4.  The applicant filed the Notice of Motion and supporting affirmations on 7 September 2020 to apply for leave to appeal against the Judgment to the Court of Final Appeal.  Pursuant to section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the HKCFAO”), the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for filing the present application expired on 17 July 2020.  The applicant is therefore almost two months out of time.  He further failed to lodge his written submissions as directed by the Registrar of Civil Appeals on 9 September 2020.

5.  Under section 22(1)(b) of the HKCFAO, leave to appeal to the Court of Final Appeal will only 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.

6.  Further, as the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the court has a discretion to extend time under section 24(5) of the HKCFAO only if good and sufficient grounds are shown by the applicant.  In deciding whether there are such good grounds, the court is entitled to take into account (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if an extension of time is granted; and (d) the degree of prejudice to the respondent if the application is granted.  See: Hong Kong Civil Procedure 2020, Vol 1, paragraph E2/24/1 and the authorities cited therein.

7.  For the following reasons, the applicant has failed to show good grounds for an extension of time to be granted.

8.  The delay of more than one month is a significant one, in particular when considered in the context that the statutory period for the Notice of Motion to be filed is itself only 28 days.

9.  In the applicant’s supporting affirmation, he explained that he received the Judgment but, due to his health condition and the pandemics, he was unable to get language assistance and hence the delay. Nevertheless, this explanation lacks specifics and is without any documentary proof.

10.  Further, we are of the view that the grounds set out in the applicant’s Notice of Motion are entirely without merits.  In the Notice of Motion, the applicant advanced the following grounds:

“-The claims that the Judgment has made stated is no substance in the grounds of the application is not true.

- on the strength of the grounds not made a made a complain about the poor performance of his duty lawyer is due of fearing he will be picked out for misappropriating by the adjudicator.

- The application gently did not have enough time to address the bundle. Rest of the grounds I will submit as soon as possible” [sic]

11.  These are either bare assertions or not advanced before this Court.  All of them failed to identify any errors (let alone any particularised errors) in the Judgment to support the intended appeal.  In his supporting affirmation, the applicant also argued that the Court was wrong in law in holding that there was no state acquiescence or involvement and that the Court failed to find out the clear details of current situation in Bangladesh.  These two arguments are also devoid of merits.  We have considered the argument on state involvement and rejected it with reasons at [29] - [30] of the Judgment.  His submission on the assessment of country of origin information is a new argument that would not be entertained, and in any event the assessment is within the province of the decision makers and not that of the court: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at [12]; Re Md Iqbal [2019] HKCA 912 at [13(3)], Re Sudimah [2019] HKCA 1030 at [12(3)], and Re Marshall Bill O [2019] HKCA 1031 at [13(3)]; Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

12.  These are therefore not viable grounds of appeal, and the intended appeal has no prospect of success. It would be futile to extend time.

13.  In the premises, and in any event, the applicant has failed to identify any question of great general or public importance that ought to be submitted to the Court of Final Appeal for decision.  Nor do we see any basis to grant leave on the “otherwise” limb. Plainly, the statutory requirements under section 22(b) of the HKCFAO are not met.

14.  Accordingly, we refuse to extend the time for the applicant to apply for leave to appeal to the Court of Final Appeal, and dismiss the Notice of Motion.