RE HUSSAIN RIZWAN

CAMP 275/2023, [2024] HKCA 621

On Appeal From [2024] HKCA 344

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 275 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 692 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 24 May 2024, the applicant filed a Notice of Motion and a supporting affirmation to apply for leave to appeal to the Court of Final Appeal out of time against this court’s judgment of 25 April 2024 (“the Judgment”)  ([2024] HKCA 344).  In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”)  dated 8 April 2021, by which the Judge dismissed his application for leave to apply for judicial review ([2021] HKCFI 922).

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 23 May 2024.  The applicant was therefore one day late in taking out his application for leave to appeal to the Court of Final Appeal.

5.  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: 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 his Notice of Motion, the applicant stated:

“THE COURT OF APPEAL DISMISSED MY APPLICATION FOR LEAVE BUT I DON’T WANT TO AGREE. I WANT TO GO TO THE COURT OF FINAL APPEAL FOR JUSTICE.” (sic)

7.  In his supporting affirmation, the applicant stated:

“I AM VERY SORRY AS I FAILED TO APPLY NOTICE OF MOTION BECAUSE I WAS IN TAI TAM PRISON. I DID NOT GET THE LETTER FROM THE COURT. I KNOW THE RESULT FROM THE REPORTING OFFICER OF IMMIGRATION. I WISH THE COURT WILL PERMIT ME TO GO TO THE COURT OF FINAL APPEAL.” (sic)

8.  Contrary to Practice Direction 2.1, the applicant failed to lodge his written submissions.

9.  At the outset, the applicant’s delay of one day was not substantial and for present purpose, we would focus on the merits of his intended appeal.

10.  In our view, his application is a nonstarter.  The applicant has failed to give any intended ground of appeal.  He only asserts his disagreement with the Judgment without giving any specific particulars as to any error in the Judgment.  His allegations therefore do not constitute proper grounds of appeal and are in any event devoid of merit.

11.  Further and in any event, even taking them at their highest, those allegations remain fact-specific and do not relate to any question of great general or public importance.

12.  Accordingly, the applicant fails 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.

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