RE AMBUROSE EDWARD

CAMP 9/2019

[2019] HKCA 1172

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 9 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 185/2018)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  On 12 June 2019, the Court (Lam VP and Au JA) handed down a judgment ([2019] HKCA 649) dismissing the applicant’s summons filed on 21 January 2019. In the summons, the applicant sought to challenge the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 16 November 2018 ([2018] HKCFI 2433) refusing to grant an extension of time for him to file a notice of appeal against the decision of Deputy High Court Judge Josiah Lam dated 13 September 2018 ([2018] HKCFI 2053).

2.  Over 2 months after the handing down of the judgment, the applicant filed a notice of motion on 15 August 2019 seeking leave to appeal to the Court of Final Appeal against the judgment. 

3.  The applicant also filed an affirmation on the same day explaining that the delay was due to the change of his address[1]. 

4.  In his skeleton submission lodged on 27 August 2019, the applicant alluded to the factual background of his claim.  He reiterated his willingness to return to his own country when his problem there was resolved.

5.  Pursuant to section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the Ordinance”), an appellant has 28 days from the date of the judgment to seek leave to appeal to the Court of Final Appeal against it.  In the present case, the time for the applicant to seek leave to appeal against the judgment expired on 10 July 2019.  The applicant was late for over 5 weeks.  

6.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, good and sufficient ground must be shown by the applicant before the court will exercise its discretion to grant an extension of time for him to do so, see: section 24(5) of the Ordinance.  See also: Full Wisdom Holdings Ltd v Traffic Stream Infrastructure Co Ltd CACV 266/2003, 27 July 2004; Bowlstar (HK) Ltd v Ho Kwai Po CACV 156/2006, 10 July 2007; Elijah Saatori v Raffles Medical Group CACV 109/2008, 11 March 2009; and Tsit Wing (Hong Kong) Company Limited & Others v TWG Tea Company Pte Ltd & Another (unreported) CACV 191/2013, 29 January 2015.

7.  The delay of over 5 weeks is substantial. 

8.  Having considered the explanation stated in the applicant’s affirmation, we do not accept that the delay was excusable.  It has been repeatedly held that the consequence of any delay occasioned by the ineffectiveness of an address would fall on the shoulder of the litigant: see Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017, at [9]; Said Umair v Torture Claims Appeal Board [2018] HKCA 82 at [9]; Re Ahmed Syed Rafiq [2018] HKCA 178 at [19]; and Re Ram Ishver Dass [2019] HKCA 27 at [16].

9.  The matters stated in the notice of motion and the applicant’s skeleton submission failed to pinpoint any reasonably arguable ground for reversing the decision of the Court.  His criticism against the decision of the Board had been dealt with by the judge below which was upheld by this Court for the reasons set out in the judgment of 12 June 2019.

10.  The applicant did not raise any question of great general or public importance.  There is no basis to grant leave on the “or otherwise” limb.  The statutory criterion for granting leave to appeal to the Court of Final Appeal is not met: section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484).

11.  For these reasons, we refuse to extend time for the applicant to seek leave to appeal to the Court of Final Appeal, and dismiss the application for leave accordingly.