RE MONIRUL ISLAM

CAMP 320/2019

[2020] HKCA 884

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 320 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 798 OF 2017)

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J U D G M E N T

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

1.  This court (Hon Yuen and Au JJA) handed down judgment on 5 August 2020 ([2020] HKCA 635) dismissing the applicant’s application to extend time to appeal an order of Campbell-Moffat J (“the Judge”) given on 19 November 2018 refusing to grant an extension of time and dismissing his application for leave to issue judicial review in respect of his non-refoulement claim.

2.  On 3 April 2019, the applicant filed a summons for leave to appeal out of time, which the Judge dismissed on 30 May 2019.

3.  On 27 December 2019, the applicant filed a summons in this court, which as mentioned earlier we dismissed on 5 August 2020. The facts and issues in the intended appeal before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

4.  On 30 September 2020, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal. However, it was out of time, as s.24(2) of Hong Kong Court of Final Appeal Ordinance (“HKCFAO”) 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.  Excluding the Summer Vacation (1 - 31 August) as specified in Order 3 rule 3 Rules of the High Court, the deadline for filing the Notice of Motion expired on 28 September 2020.

5.  However, under s.24(6) of the HKCFAO, 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.

6.  In the present case, the delay is 2 days which is minimal.

7.  No reasons for the delay were given in the Notice of Motion or affirmation. However, as the delay is minimal, the lack of reasons is not that significant.

8.  As for the merits of the intended appeal, the Notice of Motion only said that “The Court of Appeal Judges give a judgment against me on 5 August 2020. I do not agree with that judgment.  So I want to go to the Court of Final Appeal to get justice. The Judges decision are not favour for tortured people like me”. No proper ground of appeal has been disclosed.

9.  On 5 October 2020, the Registrar of Civil Appeals directed that the applicant shall lodge his written submissions on or before 14 October 2020, and the Notice of Motion shall be determined on paper only without an oral hearing. We agree it is appropriate to determine this application on paper. The applicant did not file any written submissions.

10.  The applicant’s intended appeal has no merit at all. No question of great general or public importance has been identified as required by s.22(1)(b) of the HKCFAO.

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

12.  By reason of the above, the Notice of Motion filed on 30 September 2020 is dismissed.