RE BADAL DAS

CACV 287/2022, [2024] HKCA 430

On Appeal From [2022] HKCA 1833

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 287 OF 2022

(ON APPEAL FROM HCAL NO 1027 OF 2019)

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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.  By a judgment dated 8 December 2022 ([2022] HKCA 1833)  (“the Judgment”), this court dismissed the applicant’s appeal against the decision of Deputy High Court Judge To (“the Deputy Judge”)  dated 13 July 2022 ([2022] HKCFI 2085), whereby the Deputy Judge refused to grant the applicant extension of time and dismissed his application for leave to apply for judicial review.

2.  On 20 December 2023, the applicant filed a Notice of Motion out of time to apply for leave to appeal to the Court of Final Appeal against the Judgment.

3.  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.

4.  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.

5.  Further, pursuant to section 24(2)  of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 5 January 2023.  Accordingly, the applicant was late for almost a year in taking out his application for leave to appeal to the Court of Final Appeal.

6.  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.

7.  In his Notice of Motion, the applicant complained that this court failed to apply the principles of procedural fairness and rationality and there were errors of law in the Judgment.  The applicant further complained that the decision maker failed to consider all aspects of his case and that actual life situation was different from those in the Country of Origin information.  He again repeated that his life would be in danger if refouled.

8.  In his supporting affirmation filed on 20 December 2023, the applicant claimed that he had previously withdrawn his appeal under CACV 287/2022 from the High Court owing to health issues which required immediate attention.  The circumstances had evolved since then and that he saw it necessary to continue to pursue his legal rights in Hong Kong.  He further claimed that, if refouled, the current situation in his home country would pose significant threat to his well-being.  He alleged that it is imperative for him to stay in Hong Kong where he could receive the necessary medical treatment and that he had applied for a dependent visa which is under review.

9.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 3 January 2024.  In those submissions, he cited various legal authorities on the principles of high standard of fairness and Wednesbury unreasonableness but failed to elaborate on his assertions or how the authorities were relevant to his case.  He further alleged that the Board acted in a procedurally unfair manner.

10.  At the outset, it is noted that the applicant failed to provide any good reason for his extremely substantial and inordinate delay of almost a year in taking out his application. Upon checking the court’s record, the applicant never made any application to withdraw his appeal under CACV 287/2022.  Although he claimed that he had health issues, no supporting evidence was furnished by the applicant to support his allegations.

11.  More importantly, his intended appeal has no merit at all.  The matters raised in his Notice of Motion are all general and bare allegations without any specific particulars or explanation.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  His allegations are essentially a mere regurgitation of those submissions he had previously made before this court in his appeal, which we had already considered and rejected: see [12] - [19] 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]. More importantly, he fails to identify any specific error in the Judgment.  Clearly, his assertions do not constitute proper grounds of appeal. 

12.  In any event, even taking his case at its highest, his allegations are fact-specific and do not relate to any question of great general or public importance.

13.  Accordingly, the applicant has 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.

14.  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 is dismissed.