RE KAWALJIT SINGH

CAMP 491/2021

[2022] HKCA 1628

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 491 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 297 OF 2021)

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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):

1.  On 14 March 2022, this Court handed down a decision ([2022] HKCA 419)  dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge K W Lung given on 25 May 2021 refusing his application for extension of time for leave to apply for judicial review in respect of his non-refoulement claim.

2.  On 4 May 2022, the applicant filed a notice of motion applying for leave to appeal this Court’s decision to the Court of Final Appeal out of time.  The applicant lodged written submission on 20 May 2022.

3.  Having considered the applicant’s notice of motion and written submissions, we see no reason to depart from the usual practice of determining applications for leave to appeal (out of time)  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 decision.  We will not repeat them.

5.  Section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’)  (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 / decision to be appealed from.  Section 24(5)  further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.  The applicant’s present application is out of time by around 23 days, i.e. over three weeks.  The applicant did not explain in his documents about his delay.

7.  As to the merit of the intended appeal, section 22(1)(b)  of the HKCFAO 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.

8.  The notice of motion stated the following in summary :

1)  There was a lack of assistance provided by the Court to the applicant.  For this reason, the applicant was out of time to take out a judicial review application;

2)  The applicant does not read or write English.  He does not understand legal jargon. For this reason, the applicant could not explain errors of the Board.  The applicant was detained in custody;

3)  Despite knowing the applicant’s language incapability, the authorities did not make arrangements to help him understand the judgments.  No translations were provided; and

4)  The applicant had no legal representative.

9.  The written submissions stated the following in summary :

1)  The applicant seeks for language and legal assistance;

2)  The applicant was unable to understand the Board’s decision.  The applicant had no legal representative before the Board;

3)  The applicant’s lack of language assistance caused him being unable to lodge a proper appeal;

4)  Interpretation service was not available at appellate level; and

5)  The applicant was detained while applying for leave for judicial review.  The Court was ignorant of this so the burden shifts to the Court.

10.  We are of the view that the grounds and arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b)  of the HKCFAO.

11.  Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

12.  As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.