RE GURUNG SANTA BAHADUR

CAMP 177/2021

[2022] HKCA 1488

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 177 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1791 OF 2018)

__________________________

__________________________

___________________

J U D G M E N T

___________________

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

1.  This court handed down judgment on 1 April 2022 ([2022] HKCA 490) (“the CA Judgment”) dismissing the applicant’s application (“the Application”) to extend time to appeal against an order of DHCJ KW Lung (“the Judge”) given on 30 June 2020, in which he refused to grant leave to the applicant to apply for judicial review in respect of his non‑refoulement claim.

2.  The facts and issues in the Application before this court, as well as the court’s reasons for dismissing it, are set out in the CA Judgment and will not be repeated here.

3.  After the handing down of the CA Judgment, by a letter dated 8 Aril 2022 to the Court, the applicant requested this Court to reconsider the Application at an oral inter-partes hearing (“the Request”). He further stated that the Request was based on his understanding of the procedures set out in the “Civil Justice Reform – Guide to General Civil Proceedings in the High Court – No 1 Booklet on ‘How to Appeal’ on page 11, point No 38 Part C: Civil Appeal to the Court of Appeal”.

4.  By a letter dated 1 June 2022, Yuen JA directed that the Court was functus officio and had no power to deal with the Request as the Court had dismissed the Application by way of the CA Judgment and the order had been sealed.

5.  On 14 June 2022, the applicant filed a Notice of Motion dated 3 June 2022 for leave to appeal to the Court of Final Appeal against both the CA Judgment and the Court’s “decision” not to accede to the Request.

6.  In compliance with the directions of the Registrar of Civil Appeals made on 14 June 2022, the applicant lodged his written submissions in support of the Notice of Motion on 27 June 2022.

7.  In his written submissions, he stated that an oral hearing is important so that he would be able to put forward evidence to substantiate and explain his arguments properly, as his oral English was much better than his written English. He complained that there was a lack of legal assistance for him to deal with the proper procedure for his appeal. He repeated his reasons for his delay in filing his Notice of Appeal against the Judge’s order and said that delay in any event had caused no prejudice to the “Respondent” (ie TCAB) and the “Interested Party” (ie Director of Immigration). Lastly, he complained that this Court was biased in endorsing the Judge’s decision as it was the task of “fact finder” to review the evidence in rounds and assess them with reference to all the statements made by the applicant. In support, he quoted some general principles set out in a UK case[1] without, however, showing how these principles specifically relate to any errors in the CA Judgment.

8.  He also put forward in the written submissions the following question (“the Question”) to be considered by the “Appeals Court”:

“It should be brought to the court’s attention that it is purely my lack of knowledge in dealing with the proper procedures. I cannot find any proper assistance inside the prison as no one would offer me legal advice here, even calling a lawyer is difficult. I respectfully ask this Honourable Court to make an order allowing me to have the ‘Ex-parte’ Motion/Notice of Motion accepted by the Courts in the fairness of Justice” (sic)

9.  After reading the Notice of Motion and the written submissions, we consider it appropriate, in accordance with the usual practice, to determine this Notice of Motion on paper without an oral hearing.

10.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (“HKCFAO”) Cap. 484 provides that 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.

11.  Insofar as the intended appeal against the Court’s “decision” not to deal with the Request is concerned, it is plainly without merits as the applicant has failed to point to any errors therein and how the intended “appeal” against that “decision” could satisfy the requirements under s.22(1)(b) of the HKCFAO. Leave is not granted in relation to this part of the Notice of Motion.

12.  Insofar as the intended appeal against the CA Judgment is concerned, it was made out of time, as s.24(2) of HKCFAO stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from. In relation to the CA Judgment, the period for filing the Notice of Motion expired on 29 April 2022.

13.  However, under s.24(5) and s.24(6) of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension of time 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.

14.  In the present case, the applicant was late for about 6 weeks in filing the Notice of Motion, which is significant. He stated in the Notice of Motion that he had made the Request within 7 days after receiving the CA Judgment. He further claimed that he had waited for several weeks but there was no reply.

15.  The proper way to appeal against the CA Judgment is by way of filling a Notice of Motion and the applicant had failed to do so within time. The fact that the applicant had made the Request within time does not amount to a good reason for the delay. As we have said at [13] of the Judgment (in rejecting his then reasons given to explain why he had failed to appeal the Judge’s order within time), it is well-established that ignorance or misunderstanding of the law and lack of legal assistance are not excuses for delay.

16.  In any event, more importantly, the applicant has not shown any merits in his intended appeal against the CA Judgment.

17.  What he has set out in his written submissions and the Notice of Motion are plainly unarguable and in any event do not satisfy the requirements of s.22(1)(b) of the HKCFA.

18.  First, none of the matters he has stated in the written submissions and the Notice of Motion identify with particulars any errors in the CA Judgment. On this basis alone, they are not viable grounds of appeal.

19.  Second, his claim that he has evidence to substantiate his case by way of oral submissions is nothing but a mere assertion, as he has not even indicated in the written submissions the nature of this “evidence” and the reasons why he did not produce or advance it when he attended the oral hearing before the Judge.

20.  Third, the complaint that this Court was “biased” is again nothing but an assertion not supported by any particulars.

21.  Lastly, the Question posed is clearly not a question of great general or public importance as the law on procedures is well settled and in any event, his complaint is fact-specific only to his case.

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

23.  For the above reasons, his intended appeal to the Court of Final Appeal is plainly without merits and also does not satisfy any of the statutory requirements for granting leave to appeal. It is therefore futile to grant him any extension of time. We therefore dismiss the Notice of Motion.