RE MOHAMMAD BALLI

CAMP 84/2021

[2022] HKCA 1449

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 84 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 807 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 25 February 2022 ([2022] HKCA 276) dismissing the applicant’s application to extend time to appeal against an order of DHCJ Bruno Chan given on 1 September 2020 refusing to grant leave 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 our judgment and will not be repeated here.

3.  On 26 April 2022, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal. However, it was out of time, as s.24(2) of 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 the judgment to be appealed from. The last day for filing the Notice of Motion expired on 25 March 2022. That fell during the High Court pandemic general adjournment period, which terminated on 11 April 2022. He should therefore have filed the Notice of Motion the following day, 12 April 2022.

4.  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 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.  In the present case, the applicant was late by 2 weeks. He did not explain his delay in the Notice of Motion or supporting affirmation.

6.  In any event, the applicant has not shown any merits in his intended application for leave to appeal to the Court of Final Appeal. He only said the following in the Notice of Motion:

“The High Court and the Court of Appeal dismissed my leave to apply for judicial review but I wish the Court of Final Appeal will consider my leave to apply for judicial review.”

7.  Pursuant to directions of the Registrar of Civil Appeals made on 26 April 2022, the applicant should lodge his written submissions on or before 10 May 2022. He failed to do so. The Registrar further directed in the event the applicant fails to lodge his written submissions, he will be deemed to have abandoned his right to rely on written submissions and the matter will be considered by the Court of Appeal based on the available materials. This Notice of Motion is therefore determined on paper without an oral hearing, which we consider appropriate.

8.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance 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.

9.  There are no valid grounds for the applicant’s intended appeal. No question of great general or public importance has been identified as required by s.22(1)(b) of the HKCFAO.

10.  Nor do we see any basis for leave under the “or otherwise” limb under s.22(1)(b).

11.  By reason of the above, the Notice of Motion filed on 26 April 2022 is dismissed.