RE SUKIYAH

CAMP 170/2021

[2021] HKCA 1825

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 170 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NOS.
2546 OF 2018 AND 3356 OF 2019 (CONSOLIDATED))

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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 24 September 2021, this court handed down judgment ([2021] HKCA 1389)  dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge Lung given on 11 August 2020 refusing her two applications for leave to apply for judicial review in respect of her non-refoulement claim. 

2.  On 5 November 2021, the applicant filed a Notice of Motion together with an affirmation to apply for leave to appeal this court’s judgment to the Court of Final Appeal.  The applicant has also lodged a written submission on 18 November 2021.

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 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.  The applicant’s Notice of Motion is out of time, as section 24(2)  of the Hong Kong Court of Final Appeal Ordinance 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.  The deadline for filing the Notice of Motion expired on 22 October 2021.

6.  Under sections 24(5)  and 24(6)  of the Hong Kong Court of Final Appeal Ordinance, 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. 

7.  In the present case, the applicant’s notice of motion is late by about two weeks, which is not insubstantial.  The applicant only acknowledged in her affirmation that she was out of time, but offered no explanation for the delay.

8.  As to the merits of the intended appeal, 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 did not set out any ground in support of the application.  It only stated that the applicant wants to go to the Court of Final Appeal as her application for leave to apply for judicial review was refused and her application to the Court of Appeal was dismissed.

10.  The written submission asserted that the applicant came to Hong Kong to save her life.  It stated that the applicant’s husband is her enemy, and together with his creditor, they have spoiled the applicant’s life and she cannot return to her country.    

11.  We are of the view that the matters put forward by the applicant do not constitute viable grounds for giving leave to appeal. Importantly, no question of great general or public importance has been identified as required by section 22(1)(b)  of the Ordinance.  Further, in light of the rejection of the factual basis of her claim by the Torture Claims Appeal Board, and the reasons we gave at [20] of our judgment, there is no basis for the assertion that the applicant will face harm or danger to her life on her return to her country.   

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

13.  As the statutory requirements for giving leave to appeal are not met, we accordingly dismiss the Notice of Motion.