RE DIANA DAMAYANTI

CACV 559/2020

[2021] HKCA 1646

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 559 OF 2020

(ON APPEAL FROM HCAL NO. 573 of 2018)

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JUDGMENT

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

1.  On 19 July 2021, this Court handed down our judgment[1] dismissing the applicant’s application for relief from the sanction imposed by an unless order made on 26 February 2021 (“Unless Order”).  As a result of the applicant’s non-compliance with the Unless Order, her appeal against the decision of Deputy High Court Judge Bruno Chan dated 4 August 2020, which refused to give her leave to apply for judicial review, was dismissed on 16 March 2021.  

2.  On 11 October 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.  The applicant has also lodged a written submission to support her application on 1 November 2021. 

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 papers in this application.

4.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, 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 to be appealed from.  Under section 24(5), the Court of Appeal may extend the time for the filing of the notice of motion.

5.  The applicant’s notice of motion is late by about four weeks, which is not substantial.  The applicant’s affirmation apologised for the delay but did not give any explanation for the delay. 

6.  As to the merits of the intended appeal, pursuant to section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, 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.

7.  The notice of motion did not set out any grounds for seeking leave to appeal.  It only stated that the applicant wants to appeal to the Court of Final Appeal.  No question of great general or public importance as required by section 22(1)(b) has been identified.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b). 

8.  In the circumstances, the statutory requirements for giving leave to appeal are not met.  As the intended application has no prospect of success, it would be futile to extend the time for applying for leave to appeal to the Court of Final Appeal.  Accordingly, we refuse to extend the time for making the application and dismiss the Notice of Motion.