RE NAV RAJ MANANDHAR

CAMP 316/2019

[2021] HKCA 505

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 316 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 319 of 2017)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 3 June 2020, this Court (Chu and Barma JJA) handed down our judgment[1] refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Bruno Chan given on 13 June 2019 refusing him leave to apply for judicial review.

2.  On 10 March 2021, the applicant filed a notice of motion and 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 had not put in a 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.  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.  Under section 24(5), the Court of Appeal may extend the time for the filing of the notice of motion.

5.  The applicant stated in his affirmation that he only received this court’s judgment on around 28 January 2021, and due to the covid situation it was difficult for him to get help.  He also said that because he was an uneducated person and had language problem, it took him days to find help.

6.  The Court record shows that the applicant was in Castle Peak Immigration Centre when he filed the summons in this case.  Accordingly, the 3 June 2020 judgment and the sealed order were mailed to the applicant at the Castle Peak Immigration Centre.  They were returned undelivered for the reason that the applicant had left the centre in January 2020.  It is the duty of a litigant to provide the Court with an address at which documents and correspondences could be effectively served on him.  The applicant should have informed the Court of his new address after he left Castle Peak Immigration Centre.  It is because of his failure to do so that the judgment and order did not reach him timely.  In these circumstances, we do not consider the applicant has good reason for the delay.

7.  We turn next to consider the merits of the application.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

8.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, 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 stated the following grounds of appeal:

(1) It is not true that there is no substance in the grounds of the application.

(2) The applicant did not complain the performance of his duty lawyer because he feared he would be picked out for “misappropriating” by the Board.

(3) The applicant did not have enough time to address the bundle.

(4) The rest of the grounds would be submitted as soon as possible.

10.  We are of the view that these do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  They relate only to the circumstances of the applicant, and do not involve any question of great general or public importance, as required by section 22(1)(b).  Further, none of these grounds had been raised before the Judge or in the application for extension of time before us.  It is not permissible for the applicant to put forwards new grounds in an application for leave to appeal to the Court of Final Appeal.  In any event, these are general assertions unsupported by particulars.

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, the application for leave to appeal is bound to fail.  In the circumstances, it is futile to extend the time for making the application.  Accordingly, we refuse to extend the time for applying for leave to appeal to the Court of Final Appeal and dismiss the notice of motion.