RE UDDIN MD NASIR

CAMP 166/2021

[2022] HKCA 495

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 166 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1491 OF 2018)

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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.  Leave to appeal to the Court of Final Appeal

1.  On 25 October 2021, this Court handed down a decision ([2021] HKCA 1572)  (the ‘CA Decision’)  dismissing the applicant’s application for an extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 24 August 2020 refusing to grant leave for judicial review of the decision of the Torture Claims Appeal Board dated 4 June 2018.

2.  The facts and issues in the appeal before the Court of Appeal, as well as the Court’s reasons for dismissing it, are set out in the CA Decision.  We will not repeat them here.

3.  On 10 December 2021, the applicant filed a notice of motion (the ‘Notice of Motion’).  However, it was out of time, as section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’)  (Cap. 484)  stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of judgment to be appealed from.  The deadline for filing the Notice of Motion expired on 22 November 2021.

4.  Under section 24(5)  and section 24(6)  of the HKCFARO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period.  In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party.

5.  The applicant did not provide any reason for his delay.  He only stated in his affirmation dated 10 December 2021 that: ‘For apply for notice of motion but I failed to apply in schedule time. Please accept my [sic]’.  We are not satisfied that an extension of time should be granted.

6.  As to the merits of the intended appeal, no discernible grounds were mentioned in his Notice of Motion or his affirmation dated 10 December 2021.

7.  In his written submissions lodged on 24 December 2021, the applicant repeated his claims that the current ruling party and government in Bangladesh were his enemies and that he was lucky that he was not killed by the Police.  The Board found that his evidence was fabricated (see [9] of the CA Decision).

8.  The applicant did not point to any error in the CA Decision or to any matter of great general or public importance.

9.  Pursuant to the direction of the Registrar of Civil Appeals (the ‘Registrar’), unless this Court otherwise directs, the Notice of Motion shall be determined on paper without an oral hearing.  We agree with the Registrar that a paper disposal is appropriate in this case.

II.  Legal principles

10.  Under section 22(1)(b)  of the HKCFAO, leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

III.  Our view

11.  The matters stated by the applicant in his Notice of Motion and written submissions do not constitute grounds for granting leave to appeal to the Court of Final Appeal.

12.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b)  of the HKCFAO. We are unable to see any such question being involved in the proposed appeal.

13.  None of the Notice of Motion, the affirmation or the written submissions identify any error in the CA Decision and they raise no ground that is reasonably arguable before the Court of Final Appeal.

14.  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b)  of the HKCFAO.

IV.  Disposition

15.  For these reasons, the Notice of Motion dated 10 December 2021 is dismissed.