RE HERMININGSIH SUCIPTO

CAMP 210/2020

[2022] HKCA 1434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 210 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1044 OF 2017)

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JUDGMENT

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

1.  This court handed down judgment on 14 March 2022 ([2022] HKCA 368) dismissing the applicant’s application to extend time to appeal against an order of Campbell-Moffat J given on 7 August 2020 in which she refused an extension of time for, and dismissed, the applications of the 1^st applicant and her son Herminingsih Sucipto Rafif Ar Haider (originally the 2^nd applicant) for leave to apply for judicial review in respect of their non‑refoulement claims.

2.  The facts and issues in the application before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.  On 29 April 2022, the 1^st applicant filed a Notice of Motion for leave to appeal this court’s 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 April 2022.

4.  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.

5.  In the present case, the 1^st applicant was late by more than 2 weeks which is not insignificant. In her affirmation she explained that the Registry was closed until 11 April 2022 due to the pandemic. The High Court Registry reopened on 12 April 2022 but the applicant only filed her Notice of Motion on 29 April 2022; she did not explain why she took more than 2 weeks to file it.

6.  In any event, the applicant has not shown any merits in her intended application for leave to appeal to the Court of Final Appeal. She said the following in the Notice of Motion:

“I would like to appeal against the court’s decision they disregard my dangerous situation. I am requested to Honourable Court could you please safe my life’s as a human being my life will be danger if I return back to Indonesia. I hope so court understand my real situation and safe my life in Hong Kong. Hong Kong peace and safe country and Hong Kong all department doing very good work bundle of thanks.”

7.  Pursuant to the directions of the Registrar of Civil Appeals given on 29 April 2022, the applicant should lodge her written submissions on or before 13 May 2022. She failed to do so. The Registrar further directed that in the event the applicant fails to lodge her written submissions, she will be deemed to have abandoned her right to rely on written submissions and the matter will be considered by the Court of Appeal based on the available materials. This Notice of Motion is therefore determined on paper without an oral hearing, which we consider appropriate.

8.  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.

9.  Having regard to the judgment of this court, 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.

10.  Nor do we see any basis for leave under the “or otherwise” limb under s.22(1)(b).

11.  By reason of the above, the Notice of Motion filed on 29 April 2022 is dismissed.