RE SHAIKH SARFARAZ

CAMP 344/2021

[2023] HKCA 387

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 344 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2659 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court)  :

I. Leave to appeal to the Court of Final Appeal

1.  On 31 December 2021, this Court (Cheung and Au JJA)  gave the decision dismissing the applicant’s extension of time to appeal against the decision of Deputy High Court Judge K W Lung given on 10 May 2021 in which he refused to grant leave to apply for judicial review against the decision of the Torture Claims Appeal Board.

2.  The applicant now applies, by a notice of motion, a supporting affirmation both filed on 16 September 2022 and a written submission lodged on 30 September 2022, for leave to appeal against our decision to the Court of Final Appeal out of time. 

3.  Having considered the applicant’s documents, 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 applicant’s notice of motion is glaringly late.  According to section 24 of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’), the applicant’s notice of motion ought to have been filed with the Court within 28 days of our extension decision.  The applicant is over seven months late.  The applicant stated in his affirmation that he did not receive the judgment within the time stipulated for appeal.  No further details were provided.  This is a bare allegation unsupported by any explanation.  We will not accept the applicant’s reasons for the delay.

5.  The applicant’s notice of motion stated the following :

‘ Dear Sir/Madam,

I would like to infomr the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL information and my previous facts which were in favor while rejecting my claim. Acual life occur different situation then what is mentioned in COL information. The Officer and cours prefers to ignore the overwheming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrayed a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.’  [sic]

6.  In the applicant’s written submissions, he generally cited statutory and case authorities that are commonly used in non - refoulement claims without explaining how those authorities applied specifically to his case.

II.  Legal principles

7.  Under section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘HKCFAO’)  leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

III.  Our view

8.  The matters stated by the applicant in his notice of motion do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b)  of the HKCFAO.  Nor is there any such question apparent to us from the matters he has raised in his documents.

9.  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

IV.  Disposition

10.  For these reasons, the notice of motion is dismissed.