RE OTI GOZEC

CAMP 28/2022

[2022] HKCA 1399

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 28 OF 2022

(ON AN APPEAL FROM HCAL NO. 1317 OF 2018)

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J U D G M E N T

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

1.  On 18 March 2022, this court handed down a judgment ([2022] HKCA 379) dismissing the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 4 May 2021, which refused to give him leave to apply for judicial review.

2.  On 16 August 2022, the applicant filed a Notice of Motion together with an affidavit to apply for leave to appeal this court’s judgment to the Court of Final Appeal out of time.  He has also put in a written submission to support the application.

3.  Having considered the Notice of Motion, the affidavit and written submission, 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 documents in the case.

4.  The background to this case and the application for relief from sanctions have been set out in our judgment.  We will not repeat them.

5.  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.  Section 24(5) of the Ordinance further provides that the Court of Appeal may extend the time for the filing of the notice of motion.  In considering whether to extend the time, we will have regard to (i) the length of the delay; (ii) the reasons for the delay; (iii) the merits of the intended application; and (iv) the prejudice to the other parties if time was extended.  

6.  The applicant’s Notice of Motion is late by almost four months, which is serious delay.  The applicant explained that he did not receive the judgment and only came to learn of the judgment upon being informed by the immigration officer.  The Court’s record shows that the judgment was mailed to the applicant but it was returned undelivered by the Post Office. According to the address stated in the applicant’s summons and affidavit filed herein on 20 January 2022, the street number should be “240” Chatham Road North.  However, owing to a typo, the address to which the judgment was mailed was stated to be “240-242 Chatham Road North”.  Consequently, the judgment could not be delivered by the Post Office as No. 240 and No. 242 are two different buildings.  In the circumstances, we accept there is a good reason for the late application since the delay is due to no fault on the applicant’s part. 

7.  We turn next to consider whether there is proper basis for this Court to give leave to appeal to the Court of Final Appeal.  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.

8.  The Notice of Motion stated that the applicant is under threat in his country, where terrorism is more deplorable than before, and that he needs protection.

9.  The written submission in substance repeats what was stated in the written submission previously lodged on 31 January 2022 in support of the renewed application for extension of time to appeal.  It stated that the applicant is under threats from many enemies, including Boko-Haram, Fulani Herdsmen, the Nigerian army, Islamic State West African Province (ISWAP), unknown gunmen, banditry, kidnappers as well as oppression by the current Nigerian government due to his status as an Igbo Christian.  It also asserted that the applicant’s fear and risks are genuine and implored the Court to conduct research about Nigeria before concluding on his case.

10.  The matters stated in the Notice of Motion and the written submission do not constitute viable grounds for the application. Importantly, no question of great general and public importance has been identified, as required by section 22(1)(b) of the Ordinance, had been identified.  Further, for the reasons we gave in [18] of our judgment, they are not reasonably arguable.

11.  We also do not see any basis for the “or otherwise” limb under section 22(1)(b). 

12.  As the statutory requirements for giving leave to appeal are therefore not met, we dismiss the Notice of Motion.