RE ARIS AYUK WAHYUNINGTYAS

CAMP 18/2020

[2021] HKCA 1235

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 18 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 23 of 2018)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  On 30 March 2021, this Court (Yeung VP and Chu JA) 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 17 June 2019 refusing her leave to apply for judicial review.     

2.  On 28 July 2021, the applicant filed a notice of motion together with 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, the applicant has not put in a written submission to support her 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.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 (“the Ordinance”) 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) of the Ordinance, the Court may extend the time for the filing of the notice of motion, but good grounds must be shown before the Court's discretion can be exercised.  An important consideration in this regard is the merits of the intended appeal: Full Wisdom Holdings Limited & Ors v Traffic Stream Infrastructure Co Ltd & Ors, CACV 266/2003, 27 July 2004 at [7] and [10]. 

6.  The applicant’s notice of motion was out of time by three months.  This is a substantial delay.  The applicant explained in her affirmation that she was admitted to hospital, she has not been well and she had been in Kwong Wah Hospital for 12 days.  Although she has not provided any documentary proof, we are prepared to accept, on her statement made under oath, that she suffers from poor health and had been hospitalised for 12 days.  However, that is insufficient to explain the delay of three months.

7.  We next consider the merits of the intended appeal.  Under section 22(1)(b) of the 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.

8.  In the notice of motion, the applicant stated that her life will be in great danger if she returns to Indonesia.  It is said that her family would kill her for having given birth to a baby in Hong Kong as an unmarried mother, and both she and her daughter would not be accepted by her family.

9.  What was stated by the applicant relates to her personal circumstances and the assessment of risk in her case, but does not involve any question of great general or public importance that ought to be submitted to the Court of Final Appeal for determination.  The requirement for granting leave to appeal under section 22(1)(b) of the Ordinance is therefore not met. 

10.  Further, as pointed out in our judgment at [23] and [24], given that the applicant has not put forward any grounds of appeal against the judge’s decision refusing leave to apply for judicial review, her intended appeal to this Court and to the Court of Final Appeal have no prospect of success.                

11.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

12.  For the above reasons, we will not extend the time for the applicant to apply for leave to appeal to the Court of Final Appeal.  The notice of motion is accordingly dismissed.

[1] [2021] HKCA 342.