MOHAMED YAQUB KHAN v. ATTORNEY GENERAL

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JUDGMENT

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Fuad, V.-P.:

1. This is an application by Mr. Mohamed Yaqub khan. for leave to appeal to Her Majesty in Council against a Judgment and order of this court dated 27th December 1990. His application for leave is out of time because rule 3 of the Order in Council regulating appeals from this court to the Privy Council requires application for leave to appeal to be made within 14 days of the date of the judgment to be appealed from. In the light of the size of Mr. Khan's claim there can be no doubt that his appeal would have been as or right under rule 2(a) of the Order in Council.

2. Although the Order in Council has been in force with minor amendments ever since 1909, it was only in 1980 that rule 3A was inserted into the Order to allow this court to extend the time within which an applicant must apply for the leave which is necessary whether the intended appeal would fall under paragraph (a) or paragraph (b) of rule 2.

3. Mr. Khan's application was filed on 14th March 1991, which is about 2 months out of time. He has made an affirmation in support of his application explaining the delay. In it he said that he had been trying to find out ever since our decision how he could appeal further, and the procedure for appealing. He had been refused legal aid. He could hot afford a lawyer's fees and so he was unable to find out the procedure. He does not say when it was, but affirms that he later found out that he could appeal to the Privy Council. He and that there was an Order in Council governing such appeals. He had then tried to obtain a copy of the Order in Council from friends who had helped him in the past. He eventually managed to get one from a friend in early February. When he read the Order he realised that his appeal would be as of right because of the size of his claim. What he did not realise at that time was that he needed first to obtain the leave of this court..

4. He went on to say in his affirmation that it was on 13th February that he wrote to the Registrar of this court asking him to send the record of the proceedings to the Registrar of the Privy Council. de had been told by the Registrar, through the Clerk of Court, by a letter dated 22nd February, that he needed to obtain leave from the Hong Kong Court of Appeal. He then wrote again to the Registrar on 26th February and received a reply oh 6th March. Meanwhile on 4th March, he had written to a London firm of solicitors who had replied, free of charge, confirming that he had to apply to this court for leave. As Mr. Khan put it: "This was the first time that I had been independently advised that this step was necessary." Thereupon, he said, he filed the present application on 14th March.

5. It seems to me that these reasons ate totally inadequate to justify an extension of the period within which Mr. Khan should have applied for leave. As he has pointed out to us, he has been engaged in this litigation for years and he must have realised, that whether he had an appeal as of right or not, all steps in court proceedings must be taken within some kind of time frame. Had he asked the Clerk of the Court or any other court official, he would have been told at once what the procedure and the time limits were, and his attention would have been drawn to the order in Council.

6. Although the appeal is as of right, when leave to appeal out of time is sought, before exercising our discretion it seems to me essential that we should consider the merits of the grounds upon which the intended appeal would be made to Her Majesty in Council, to see whether there are any circumstances that would make it desirable that leave to appeal should be given notwithstanding the very considerable and unjustified delay that has occurred. The only ground so far indicated by Mr. khan is that this court did not fully consider his grounds when we heard his appeal. He added that he hoped to be allowed to argue the same grounds before Her Majesty in Council.

7. I find no sufficient grounds to justify the indulgence Mr. Khan seeks. I will not deal with the other complaints Mr. Khan had made about the way he has been treated by the Government because, as I think he will probably appreciate if he thinks about it for a moment, they are quite irrelevant to the matter before us. I would, therefore, refuse leave to appeal out of time.

Penlington, J.A.:

8. I agree with the learned Vide-President that this application for leave to appeal out of time should be refused for the reasons he has given. Appeals to the Privy Council have only a prospect of success if the legal principles involved are matters of great public importance. This is a claim, essentially concerning the basis and the amount of pay which the appellant would have earned if he had hot been wrongfully dismissed from the RHKAPF. These are matters entirely relevant only to himself and the particular circumstances of his case. I cannot see that they can in any way be matters of great public importance.

Mayo, J.:

9. I agree and there. is nothing that I can usefully add.