ALTAF AMIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 209/2020

[2022] HKCA 1107

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 209 OF 2020

(ON APPEAL FROM HCAL NO 1702 OF 2018)

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.  This is the applicant’s application by a Notice of Motion filed on 4 March 2022 for leave to appeal to the Court of Final Appeal against the “judgment of the Court of Appeal in CACV 209 of 2020 given on 2/11/2020”.

2.  The Court of Appeal did not give a judgment on 2 November 2020. Kwan VP made an unless order on that day that unless the applicant was to lodge three sets of the appeal bundle by 4 pm on 16 November 2020, the appeal would be dismissed immediately without further order (“the Unless Order”). As the applicant did not comply with the Unless Order, his appeal was dismissed on 16 November 2020.

3.  The Court of Appeal gave a judgment on 22 October 2021 dismissing the applicant’s subsequent application to set aside the Unless Order and refusing to grant relief from the sanction imposed by the Unless Order[1].

4.  We will treat the present Notice of Motion as an application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal on 22 October 2021.

5.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 11 March 2022 that the applicant shall lodge written submissions on or before 18 March 2022. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. As the court registry has been temporarily closed in the period of general adjournment of the court due to public health reasons, the Registrar of Civil Appeals extended the time for lodging written submissions to 21 days after the resumption of court business. The court business has resumed since 12 April 2022. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

Grounds of appeal

6.  In the Notice of Motion filed on 4 March 2022, the applicant stated that he did not have the Court of Appeal’s judgment but only got an order. He referred to an order given on 2 November 2020 and asked for a chance to go to the Court of Final Appeal.

7.  The applicant is strictly correct that the Court of Appeal only made an order on 2 November 2020, being the Unless Order. This has been overtaken by events in that he applied subsequently on 30 April 2021 to set aside the Unless Order and on 12 May 2021 to seek relief from the sanction imposed by the Unless Order. The Court of Appeal dismissed his subsequent applications in the judgment handed down on 22 October 2021. Hence, we have decided to treat his application for leave to appeal as against the judgment of this court on 22 October 2021.

Analysis and disposition

8.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484, “the Ordinance”), 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. Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

9.  Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, 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 of Final Appeal, 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 of Final Appeal for decision.

10.  The applicant has not given explanation for his substantial delay in filing the Notice of Motion so there is no good ground for the Court of Appeal to grant extension of time for him to file it. In any event, the Court of Appeal has already sufficiently explained why the Unless Order was appropriately made in the judgment dated 22 October 2021. The applicant failed to show that the Court of Appeal was wrong in granting the Unless Order and/or in rejecting his applications to set aside that order and refusing to grant relief from sanction imposed by that order.

11.  Besides, the applicant has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

12.  For the above reasons, we decline to exercise our discretion to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 4 March 2022.