RE LASMINI AND ANOTHER

CAMP 324/2021

[2023] HKCA 355

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 324 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 535 OF 2019)

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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 12 December 2022, the applicants filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s judgment of 11 November 2022 (“the Judgment”) ([2022] HKCA 1687). In the Judgment, we dismissed the applicants’ reapplication for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 12 May 2020, by which the Deputy Judge refused to grant extension of time and dismissed their application for leave to apply for judicial review ([2020] HKCFI 763).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

4.  Further, pursuant to section 24(2) of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 9 December 2022.  Accordingly, the applicants were three days late in taking out their application for leave to appeal to the Court of Final Appeal.

5.  As the applicants 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: see Re Imran Muhammad [2021] HKCA 482 at [9] and the authorities cited therein.  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: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83 at [4] and the authorities cited therein.

6.  In their Notice of Motion, the applicants stated:

“DIRECTOR OF IMMIGRATION AND TORTURE CLAIMSN APPEAL BOARD DISMISSED MY NON REFOULEMENT CLAIM. I WAS NOT SATISFIED. I CAME TO THE HIGH COURT FOR LEAVE TO APPLY FOR JUDICIAL REVIEW THE HIGH COURT AND THE COURT OF APPEAL DISMISSED MY APPEAL. I WANT TO GO TO THE CFA.” (sic)

7.  In the supporting affirmation filed by the 1^st applicant on 12 December 2022, she stated:

“APPLY OF NOTICE OF MOTION BUT OUT OF SCHEDULED TIME. PLEASE ACCEPT OUR APPLY.” (sic)

8.  Contrary to Practice Direction 2.1, the applicants did not lodge any written submissions.

9.  Although the applicants’ delay of three days is not substantial, it is clear that their application is wholly without any merit.  The applicants only repeated the procedural history of their non-refoulement claim without giving any ground of appeal.  More importantly, they also failed to identify any specific error in the Judgment with particulars.  Clearly, their assertions are not viable grounds of appeal.

10.  In any event, even taking their case at its highest, their allegations are fact‑specific and do not relate to any question of great general or public importance.

11.  Accordingly, the applicants have failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

12.  For these reasons, the applicants’ intended appeal has no merit and it will be futile to grant them extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion is dismissed.