RE UMAR SHAHZAD

CAMP 93/2020

[2021] HKCA 1409

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 93 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 152 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 Barma JJA)  handed down judgment on 14 January 2021 ([2021] HKCA 49)  (“the Judgment”)  dismissing the applicant’s application to extend time to appeal against an order of DHCJ Josiah Lam given on 3 September 2019 refusing to give an extension of time for, and dismissing, his application for leave to apply for judicial review in respect of a non-refoulement claim (“the CFI’s 2019 Decision”).

2.  On 17 September 2019, the applicant filed a summons before the Court of First Instance for an extension of time to appeal, which DHCJ K W Lung dismissed on 2 July 2020 (“the CFI’s 2020 Decision”). 

3.  On 10 July 2020, the applicant filed a summons in CAMP 93/2020 before this court for leave to appeal against the CFI’s 2020 Decision.  As explained in the Judgment, 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 CFI’s 2019 Decision and order refusing an extension of time as of right and accordingly, this Court treated the summons in CAMP 93/2020 filed on 10 July 2020 as an application for extension of time to appeal the CFI’s 2019 Decision.

4.  For reasons set out in our Judgment, we dismissed the applicant’s summons. 

5.  On 4 March 2021, the applicant filed a Notice of Motion for leave to appeal the 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 last day for filing the Notice of Motion expired on 11 February 2021. 

6.  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. 

7.  In the present case, the applicant was late by 3 weeks which is substantial.  In the applicant’s supporting affirmation filed on 4 March 2021, he said he was late as he did not receive any letter from the court.  We noted from the court file that the Judgment was posted on 14 January 2021 to the applicant’s address which is the same as that stated in the Notice of Motion.  If, for any reason, he did not receive the Judgment, he has not explained when and how he first became aware of it.  We do not accept the applicant’s excuse for the delay. 

8.  In any event, the applicant has not shown any merits in his intended application for leave to appeal to the Court of Final Appeal.  He advanced the following in the Notice of Motion filed on 4 March 2021:

“The High Court Judges refused all my application about leave to apply for judicial review. At present I have no way to return home. Because my enemy are waiting for me to kill. So for the interest of my life safety I do not want to return, I want to go to the Court of Final Appeal.”

9.  Pursuant to the directions of the Registrar of Civil Appeals made on 5 March 2021, the applicant should lodge with the court two sets of written submissions in support of the Notice of Motion on or before 18 March 2021.  Despite the letter sent to the applicant by the court on 8 March 2021 informing him of the court’s directions, he failed to do so.  The Registrar further directed that the Notice of Motion shall be determined on paper only without an oral hearing.  We agree it is appropriate to determine this application on paper. 

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 merit at all.  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 4 March 2021 is dismissed.