RE JALLOW MOMODOU Y

CAMP 428/2021

[2022] HKCA 1015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 428 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2946 OF 2018)

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J U D G M E N T

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

1.  On 25 May 2022, the applicant filed a Notice of Motion together with a supporting affirmation to apply for leave to appeal out of time to the Court of Final Appeal against this Court’s (Au and G Lam JJA)  judgment of 17 February 2022 (“the Judgment”)  ([2022] HKCA 240). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 7 January 2020, refusing his application for leave to apply for judicial review (“the Leave Decision”)  ([2020] HKCFI 114).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

4.  Pursuant to section 24(2)  of the HKCFAO, an appellant has 28 days from the date of the Judgment to seek leave to appeal to the Court of Final Appeal.  In the present case, the deadline for the applicant to seek leave to appeal against the Judgment fell on 17 March 2022.  Accordingly, the applicant was over two months late in taking out his application for leave to appeal to the Court of Final Appeal.

5.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5)  of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad [2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the Court is entitled to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chances of the appeal succeeding if an extension of time is granted; and (d)  the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83 at [4] and the authorities cited therein.

6.  In both of his Notice of Motion and supporting affirmation, the applicant stated:

“Respected Sir/Madam, I am late for apply due to lock of knowledg and insufficient sources. Please accept my filling application so that I can process my case further. I hope I will get your favour.” (sic)

7.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 6 June 2022.  In those submissions, he claimed that his life would become worse if he returned to his country and that he was not satisfied with all the decisions given on his case.  He claimed that the Board ignored many things related to his case as the actual situation in his home country was different from what the Board thought.  He asserted that in his country, torture and deaths were common in police custody and that it was difficult to get justice in a corrupt environment and that people like him were living under threat due to strong enemies.  It is noted that these are all general and bare assertions unsupported by specific particulars or evidence in support.

8.  At the outset, the applicant’s delay of two months was substantial and he failed to provide any reason, let alone good and sufficient reason, for his delay.

9.  More importantly, nowhere in the Notice of Motion, supporting affirmation or written submissions did he identify any error in the Judgment.  The matters raised in his written submissions are essentially a mere regurgitation of those submissions he previously made before this Court: see [13] of the Judgment.  It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014)  at [2] and [3]. His arguments had already been fully considered and rejected by this Court at [14] - [19] of the Judgment and the applicant failed to identify with specific particulars any error in the Judgment.  As such, nothing set out in the Notice of Motion can be considered as viable grounds of appeal to the Court of Final Appeal.

10.  In any event, the applicant’s contentions are fact-specific and do not relate to any question of great general or public importance.

11.  Accordingly, the applicant had failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

12.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion filed on 25 May 2022 is dismissed.