RE ANOZIE CHIDI FRANKLINE

CAMP 160/2022, [2023] HKCA 806

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 160 OF 2022

(ON AN APPEAL FROM HCAL NO. 2791 OF 2018)

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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 20 April 2023, this court handed down our judgment ([2023] HKCA 539) dismissing the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung given on 30 July 2021, which refused to give him leave to apply for judicial review.

2.  On 5 June 2022, the applicant filed a Notice of Motion together with an affidavit to apply for leave to appeal this court’s judgment to the Court of Final Appeal out of time. He has also put in a written submission to support the application.

3.  Having considered the Notice of Motion, the 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 application for relief from sanctions 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. 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 the time, we will have regard to (i) the length of the delay; (ii) the reasons for the delay; (iii) the merits of the intended application; and (iv) the prejudice to the other parties if time was extended.

6.  The applicant’s Notice of Motion is late by more than two weeks, which is not an insubstantial delay. The applicant explained that he did not receive any letter from the court without providing any particulars, such as when and how did he come to learn of this Court’s judgment. The Court’s record shows that the judgment was mailed to the applicant and it has not been returned by the Post Office. While we do not consider the applicant has satisfactorily explained the delay, we will focus on the merits of the intended application, which is the more important consideration.

7.  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.

8.  The Notice of Motion did not set out any ground to support the application. It merely stated that the High Court did not give the applicant true justice, so he wanted to go to the Court of Final Appeal for justice.

9.  The written submission stated that the applicant’s life is in danger and non-refoulement protection should be afforded to him under the BOR 2 risk and torture risk grounds. In gist, it asserted that: (1) the applicant, who is a Christian from the Igbos tribe, will be at risk of being pursued and persecuted by the Nigerian government, which is led by Muslims and intends to Islamise all Christians; (2) the applicant is at risk of being killed by Udoka, who had killed his wife and child; (3) state protection is not available to the applicant as Udoka may bribe the police and there is no rule of law or justice in his country; and (4) internal relocation is not a viable option as the applicant has no family ties in other regions of Nigeria and the country is generally unsafe due to terrorism.

10.  The matters stated in the Notice of Motion and the written submission do not constitute viable grounds for the application. Importantly, no question of great general and public importance has been identified, as required by section 22(1)(b) of the Ordinance, had been identified. Further, for the reasons we gave in [18] of our judgment, they are not reasonably arguable.

11.  We also do not see any basis for the “or otherwise” limb under section 22(1)(b).

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