RE SHAIKH QUTUBUDDIN

CAMP 76/2020

[2021] HKCA 331

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 76 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 358 OF 2018)

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J U D G M E N T

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

1.  This court (Hon Yuen and Au JJA) handed down judgment on 23 December 2020 ([2020] HKCA 1051) dismissing the applicant’s application to extend time to appeal an order of DHCJ Bruno Chan (“the Judge”) given on 22 October 2019 refusing an extension of time for the application for leave to apply for judicial review in respect of the applicant’s non‑refoulement claim (“the Judge’s Decision”).

2.  On 24 October 2019, the applicant had filed a summons before the Court of First Instance for leave to appeal the 22 October 2019 decision, which the Judge dismissed on 18 June 2020. As explained in our judgment of 23 December 2020, following H v Director of Immigration and AH v Director of Immigration [2020] HKCFA 22, decided on 14 July 2020, the applicant was entitled to appeal the Judge’s Decision and order refusing an extension of time as of right and accordingly, this Court treated the summons in CAMP 76/2020 filed on 2 July 2020 as an application for extension of time to appeal the Judge’s Decision.

3.  As mentioned earlier, in our judgment of 23 December 2020, we dismissed the applicant’s summons.  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.

4.  On 26 January 2021, 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 deadline for filing the Notice of Motion expired on 21 January 2021. 

5.  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. 

6.  In the present case, the applicant was late by only 5 days, which is insignificant.

7.  No reasons for the delay were given in the Notice of Motion or affirmation.  However, as the delay is minimal, the lack of reasons is not that weighty a consideration.

8.  As to the merits of the intended appeal, the applicant advanced the following in the Notice of Motion:

“The High Court Judges refused my apply for judicial review which is not correct. I have no way to return home, to stay in Hong Kong I want to apply to the Court of Final Appeal.”

9.  On 27 January 2021, the Registrar of Civil Appeals directed that the applicant shall lodge his written submissions on or before 9 February 2021.  However he failed to do so. This Notice of Motion is therefore determined on paper without an oral hearing, which we consider appropriate.

10.  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.

11.  The applicant’s intended appeal has no merits.  No question of great general or public importance has been identified as required by s.22(1)(b) of the HKCFAO.     

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

13.  By reason of the above, the Notice of Motion filed on 26 January 2021 is dismissed.