XIE JING FENG v. DIRECTOR OF IMMIGRATION AND ANOTHER

CAMP 28/2017

[2018] HKCA 555

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 28 OF 2017

(ON AN INTENDED APPEAL FROM HCAL NO. 202 OF 2016)

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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. The application

1.1 By a decision dated 13 March 2018, this Court (Cheung and Kwan JJA) refused to grant extension of time to the applicant to appeal against the decision of Patrick Li J.  The principal reason for refusing extension was that the applicant had no merit in his intended appeal.

1.2 On 29 June 2018, the applicant issued a Notice of Motion with supporting affirmation and accompanying exhibits to seek leave to appeal against our decision to the Court of Final Appeal out of time.  The1^st PutativeRespondentmadenoresponsetothe applicant’s application.  The 2^nd Putative Respondent maintains a neutral stance as explained in its letter of 25 July 2018. 

1.3 We will now deal with the application on paper.

II. Legal principles

2.1 Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘HKCFAO’) sets out the requirement for leave to be given for appeal to the Court of Final Appeal :

‘ 22. (1) An appeal shall lie to the Court (Court of Final Appeal)-…

(b) at the discretion of the Court of Appeal or the Court, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court, as the case may be, 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 for decision…’  (emphasis added)

2.2 The Court has a discretion under section 24(5) of the HKCFAO to grant an extension of time for a party to apply for leave to appeal.  In considering whether extension of time should be given, the relevant factors are :

1) length of the delay;

2) reason for the delay;

3) merits of the proposed appeal; and

4) prejudice to the other party.

III. Discussion

1) Delay and reason for delay

3.1 In the applicant’s affirmation of 6 June 2018, he explains that his delay in seeking leave to appeal was because he was unrepresented and as a result he made an incorrect application to the Court of Final Appeal when it should have been to the Court of Appeal.

3.2 Pursuant to section 24 of the HKCFAO, the applicant had 28 days from the date of this Court’s decision of 13 March 2018 to apply for leave to appeal to the Court of Final Appeal.  The deadline was 10 April 2018.  But it was not until 29 June 2018 that the applicant filed his Notice of Motion which is more than 2½ months of delay.

3.3 The explanation of the delay was essentially that he was acting in person and that he did not know the proper procedure.  This Court notes that this is not the first time that the applicant had made applications for extension of time.  This happened before in the applicant’s application for extension of time to seek leave to appeal against the decision of Patrick Li J.  The applicant, even if he was in person, should observe the procedural time requirement.  However, bearing in mind he is acting in person, this Court will focus on the merits of the application.

2) Grounds of appeal

3.4 The applicant has not formulated any question which is said to be of great general or public importance or falls within the ‘or otherwise’ grounds.  Instead one may identify the following arguments from his submissions :

(1) The prison conditions in India are poor and abhorrent, suspects were unlawfully detained for extended periods before a charge is laid (‘Poor Prison Conditions argument’);

(2) Despite there being adverse COI findings in the Director’s Decision / the Board’s Decision, the Decisions do not explain why the case was decided against the applicant when there are these adverse COI findings present (‘Adverse COI argument’);

(3) The applicant lists out his disagreement with various findings of facts.  He insists that he was subject to physical and mental abuse in Indian prison; he insists that he was forced into confessions of crime; he insists that a certain consular letter supports his case (‘Finding of Fact argument’);

(4) However deplorable the conduct of the applicant may be, if there is a finding of torture, or degrading and inhuman treatment in India, the applicant cannot be subject to deportation according to case law (‘Torture argument’);

(5) The Board’s Decision was an error of law.  The Board erred in concluding that India was not a relevant consideration.  The applicant insists that there was an intention of the Board to unjustly influence the Chief Executive to deport him under the Fugitive Offenders Ordinance (Cap. 503) (‘FOO’).  The applicant believes he is protected from being surrendered to the Indian authorities under Section 13 of the FOO, as there is conflict between the surrendering mechanism and the refoulement mechanism.  The Board was biased in taking into account certain evidence that points to the applicant for being a fugitive, or that he was using a fake passport(‘Board’s error of law argument’);

(6) There is a conflict of interest if the quasi‑judicial authorities that are dealing with the applicant’s torture claim are the same group of people that are dealing with the applicant’s extradition matters under the FOO.  The result of the unsuccessful torture claim would unfairly influence the decision of the Chief Executive to extradite the applicant under the FOO. The applicant contends that the Chief Executive powers trumps the torture claims rulings / decisions, i.e. Section 13 of the FOO trumps the current erroneous Director’s Decision and Board’s Decision (‘Conflict of Interest argument’); and

(7) The applicant cites an Indian Supreme Court case to show inhuman and degrading prison conditions in India (‘Indian authority argument’).

3.5 We are of the view that these arguments are not reasonably arguable.  They are repetitions of the arguments that he had advanced and considered by the Director, the Board, the Judge and also by us.  The Indian Supreme Court case showed that the Supreme Court of India had made recommendations on the prison situation, one of which is the early release of prisoners waiting trial, a point already considered by the Director.

IV. Disposition

4. Accordingly the application is refused.