RE JAMAL

CAMP 246/2021

[2022] HKCA 190

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 246 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2457 of 2018)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.  On 19 October 2021, this Court handed down our judgment ([2021] HKCA 1519)  refusing to extend the time for the applicant to appeal the decision of Deputy High Court Judge Lung given on 8 May 2020 which refused to give him leave to apply for judicial review.     

2.  On 7 January 2022, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  Despite directions given by the Registrar of Civil Appeals, he has not put in any written submission to support his application.

3.  Having considered the applicant’s notice of motion and affirmation, 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 applicant’s claim 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 about seven weeks, which is substantial delay.  The applicant explained in his affirmation that he did not receive the court document. 

7.  We note from the court file that our judgment and the sealed court order were mailed to the applicant on 19 October 2021 at the address stated in the summons and affirmation filed on 9 July 2021 (i.e. Post Box #22, Ping Che, Fanling, New Territories).  They were, however, returned by the Post office for the reason that the address was incomplete.  In the notice of motion and the affirmation filed on 7 January 2022, the applicant’s address was stated to be “Post Box No #22, Shui Lau Hang Village, Ping Che, Fanling, New Territories”.  Evidently, it is entirely due to the incomplete address given by the applicant in the first place that the judgment and the court order could not reach him.  We are not satisfied that there is a good reason for the delay. 

8.  As to the merits of the intended appeal, 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.

9.  The notice of motion only stated that the applicant wanted to go to the Court of Final Appeal but did not provide any ground in support of the application. 

10.  In the circumstances, the applicant has failed to show that the intended appeal involves any question of great general or public importance.  There is no proper basis to grant leave to appeal. 

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

12.  As the statutory requirements for giving leave to appeal are not met, it is futile to extend the time for the filing of the notice of motion.  Accordingly, we dismiss the notice of motion.