RE ALCANTARA LOLITA SERRATO

CAMP 110/2018

[2019] HKCA 404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 110 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 723 OF 2017)

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J U D G M E N T

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

1.  On 23 November 2018, this Court (Chu and Poon JJA) handed down our judgment[1] (“the Judgment”) refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 25 April 2018.

2.  On 13 February 2019, the applicant filed a Notice of Motion together with a supporting affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant has also lodged a written submission to support her application. 

3.  Having considered the applicant’s notice of motion, affirmation 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 papers before us.

4.  The Notice of Motion stated:

“The court have not consider the real situation of the applicant and make a mistake of sending the letter to the applicant. The applicant see her name on the newspaper that her case is rejected, before that she have not receive any letter from the court.”

5.  The applicant further stated in her affirmation that:

“I am late to apply because I have no money to apply for the application and because I cannot work, I need to borrow from friends.”

6.  In her written submission, the applicant put forward the following broad grounds of appeal:

(1)  She will be in danger if refouled to the Philippines because her husband has vowed to kill her.

(2)  Her two children are permanent residents of Hong Kong, and she will be separated from them. She cannot bring them with her to the Philippines because her husband will also harm them since they are not his children.

(3)  Her husband is protected by the Vice Mayor. The government is far from able to protect women from domestic violence. The police are in fact notorious for extrajudicial killings.  

7.  Under section 24(2) of the Court of Final Appeal Ordinance, Cap. 484, 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.  The notice of motion in this case was filed more than two months late.  The delay is substantial.  We note the explanation given by the applicant in her affirmation, and we are prepared to accept that as her reason for the delay.

9.  The more important consideration in deciding whether to extend time is the prospect of the applicant’s intended application for leave to appeal to the Court of Final Appeal.  

10.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, 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.

11.  What was put forward in the notice of motion and the written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  Firstly, they all relate to the applicant’s personal circumstances, and do not involve any question of great general or public importance.  Secondly, they merely repeat the applicant’s case, and do not relate to this Court’s reasons for refusing to give leave to the applicant to appeal the Judge’s decision out of time.  As pointed out in [16] to [19] of our judgment, since the applicant had not given any ground for her intended appeal against the Judge’s decision, there is no basis upon which the Judge’s decision could be disturbed by the Court of Appeal.   

12.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

13.  In the circumstances, the intended application for leave to appeal to the Court of Final Appeal has no prospect of success.  This being the case, it would be futile to extend the time for making the application.  Accordingly, we refuse to extend the time and dismiss the Notice of Motion.