RE MD NAHID

CAMP 290/2019

[2021] HKCA 135

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 290 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 938 OF 2018)

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J U D G M E N T

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

1.  On 18 September 2020, this Court (Cheung and Au JJA) handed down our judgment (“the Judgment”) [2020] HKCA 774, refusing to extend time to the applicant to appeal against the decision of Deputy High Court Josiah Lam given on 30 July 2019 ([2019] HKCFI 1902) (“the Deputy Judge’s Decision”).

2.  We dismissed the applicant’s summons on the basis that the intended grounds of appeal contained no viable grounds of appeal against the Deputy Judge’s Decision.

3.  The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, pursuant to paragraph 3 of Practice Direction 2.1, we see no reason to deviate from the usual practice and proceed to consider this application without an oral hearing.

4.  The applicant filed the Notice of Motion and two supporting affirmations on 27 October 2020 to apply for leave to appeal against the Judgment to the Court of Final Appeal.  He failed to lodge his written submissions as directed by the Registrar of Civil Appeals on 28 October 2020.  Pursuant to section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the HKCFAO”), the application should be made within 28 days from the date of the judgment to be appealed from. Thus, the deadline for filing the present application expired on 16 October 2020. The applicant is therefore 10 days out of time.

5.  Under section 22(1)(b) of the HKCFAO, leave to appeal to the Court of Final Appeal will only 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.

6.  Further, as the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the court has a discretion to extend time under section 24(5) of the HKCFAO only if good and sufficient grounds are shown by the applicant.  In deciding whether there are such good grounds, the court is entitled to take into account (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if an extension of time is granted; and (d) the degree of prejudice to the respondent if the application is granted.  See: Re Villano Maricar Tabita [2020] HKCA 998; 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.  For the following reasons, the applicant has failed to show good grounds for an extension of time to be granted.

8.  The delay of 10 days is not insignificant.  Although in the applicant’s supporting affirmation, he explained that he received the Judgment but, due to his health condition and the pandemics, he was unable to get language assistance and hence the delay.  However, this explanation lacks specifics and is not supported by any documents.  We therefore do not accept this explanation.

9.  Further, we are of the view that the proposed grounds of appeal are without merits.

10.  In the Notice of Motion, the applicant advanced the following grounds of appeal:

“The claims that the Judgment has made stated is no substance in the grounds of the application is not true.

on the strength of the grounds not made a made a complain about the poor performance of his duty lawyer is due of fearing he will be picked out for misappropriating by the adjudicator.

The application gently did not have enough time to address the bundle. Rest of the grounds I will submit as soon as possible” [sic]

11.  These are either bare assertions or allegations not advanced before this Court.  While he advanced these grounds before the Deputy Judge (see [30] of the Deputy Judge’s Decision), the Deputy Judge rejected the said arguments at [46] and [52] to [56] of the Deputy Judge’s Decision.  Nevertheless, the applicant did not challenge the Deputy Judge’s findings on these regards before this Court.  As this Court has repeatedly said, in an appeal of this nature, new arguments would not generally be entertained: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at [12]; Re Md Iqbal [2019] HKCA 912 at [13(3)]; Re Sudimah [2019] HKCA 1030 at [12(3)]; and Re Marshall Bill O [2019] HKCA 1031 at [13(3)]. These are therefore not viable grounds.

12.  Insofar as the arguments in the applicant’s affirmations are concerned, the applicant said the Court was wrong in law in holding that there was no state acquiescence or involvement and that the Court failed to find out the clear details of current situation in Bangladesh.  These two arguments are also devoid of merits.  We have considered the argument on statement involvement and rejected it with reasons at [28] of the Judgment.  The applicant has not shown any grounds to say why we are wrong in the reasons.  Further, his argument on the assessment of country of origin information is again a new argument that would not be entertained also.  In any event, such assessment is within the province of the decision makers and not that of the court: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

13.  Plainly, there are no viable grounds of appeal against the Judgment, and the intended appeal has no prospect of success.  It would be futile to extend time.

14.  In any event, the applicant has failed to identify any question of great general or public importance that ought to be submitted to the Court of Final Appeal for decision.  Nor do we see any basis to grant leave on the “otherwise” limb. The statutory requirements under section 22(b) of the HKCFAO are not met.

15.  Accordingly, we refuse to extend the time for the applicants to apply for leave to appeal to the Court of Final Appeal, and dismiss the Notice of Motion.