RE ALI AKBAR

CACV 432/2023, [2025] HKCA 1059

On appeal from [2023] HKCFI 3283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 432 OF 2023

(ON APPEAL FROM HCAL NO. 2173 of 2020)

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JUDGMENT

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Hon Chu VP giving the Judgment of the Court:

1.  On 18 February 2025, this Court handed down a judgment ([2025] HKCA 124) dismissing the applicant’s appeal against the decision of Deputy High Court Judge To given on 14 December 2023 which refused to grant him leave to apply for judicial review.

2.  On 5 September 2025, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  He has also lodged a written submission to support his application.

3.  Having considered the notice of motion 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 his notice of motion.

4.  The background to this case and the applicant’s claim 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) further provides that the Court of Appeal may extend the time for the filing of the notice of motion.  In deciding whether to extend time, the court will have regard to (i) the length of delay; (ii) the reasons for the delay; (iii) the merits of the intended application; and (iv) the prejudice to the other parties if time extension was granted.

6.  The applicant’s present application is late by more than five months, which is a serious delay.  The applicant has not provided any explanation for the delay.  

7.  As to the merits of the application, 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 did not set out any ground in support of the intended application.  The applicant only stated that he was not satisfied with the dismissal of his appeal.  He also said that because he was detained in the immigration centre when he lodged his appeal, he could not submit his supporting documents and he would submit all the documents at the hearing. 

9.  In his written submission. The applicant stated that (i) he truly has problem in his country and will be taken into police custody if he were to be refouled; (ii) the police can inflict any harm and torture before taking him to court and abuse of power and violation of human rights are common among the police in India; (iii) his brothers have now been placed on bail after being held in custody for ten years, but in his case he will be detained forever because he had escaped before arrest and had also been imprisoned twice in Hong Kong for illegal employment; and (iv) he is now mentally unwell.  The applicant attached to the written submissions nine exhibits that comprise charge sheets, records of examination of police witnesses and police reports.  The applicant said that these documents are proofs of his being wanted by the police for the murder case fabricated by his enemy.       

10.  We are of the view that the matters put forward in the notice of motion and the written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  Critically, they all relate to the facts of the applicant’s claim and do not involve any question of great general or public importance, as required by section 22(1)(b).  Further, as pointed out in [15] of our judgment, there is no proper basis to interfere with the finding of the Torture Claims Appeal Board that, even accepting the applicant’s factual assertions, his case does not meet the legal requirements for non-refoulement protection.  The written submission and the documents attached to it do not advance the applicant’s case.    

12.  We also do not see any basis for the “or otherwise” limb under section 22(1) (b).  In conclusion, the statutory requirements for giving leave to appeal are not met. 

13.  Having regard to the unexplained delay and the lack of merits of the present application, there is no basis for us to extend the time for the filing of the notice of motion.  Accordingly, we dismiss the notice of motion.