RE CHOPRA AMIT

CAMP 253/2021

[2022] HKCA 913

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 253 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1794 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 19 April 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Barma and Au JJA)  judgment of 4 March 2022 (“the Judgment”)  ([2022] HKCA 341). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 30 June 2020, by which the Deputy Judge refused his application for leave to apply for judicial review ([2020] HKCFI 1373).

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.  Pursuant to section 24(2)  of the HKCFAO an appellant has 28 days from the date of the Judgment to seek leave to appeal to the Court of Final Appeal.  In the present case, the original deadline for the applicant to seek leave to appeal against the Judgment fell on 1 April 2022.  Due to the closure of the High Court Registry during the General Adjournment Period (arising from the COVID-19 Pandemic)  from 7 March 2022 up to 11 April 2022, the period was automatically extended to 12 April 2022.  Accordingly, the applicant was one week 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:

“I am the applicant herein. In the order give to the Court there i some error in my decision Decision maker just relied on COI information and my previous facts which were favor on reject my claims. Actual life occur different situation the mentioned COI information Immigration officer and Hong Kong High Court’s prefers to ignore the overwhelming of the evidence of the violent towards minorities searching for unrealistic silverlining The decision is betray bias and formula approach unlikely fairly access the danger of my life and ele calcute to reject my claims Also I am requested to Court I don’t have legal representatives could you please provide me and consider my real situation and safe my life’s as a human being Bundle of thanks” (sic)

7.  In his supporting affirmation filed on 19 April 2022, the applicant further stated:

“I am the applicant herein I am requested to Honourable Court I am late filing because Hong Kong High Court closed till 11 April 2022 that’s why I am deley Apply my Notice of Motion I am requested to Court could you please accept my application bundle of thanks.” (sic)

8.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 29 April 2022.  In those submissions, he asserted that the Board’s Decision was determined without a hearing and was Wednesbury unreasonable or irrational and that the Board failed to give any or had given insufficient reason for dismissing the appeal without hearing.  He further asserted that the Board failed to make sufficient enquiry before finalising the decision and he could not go back to India because his life would be in great peril.  He also claimed that the same level of threat still existed in India and he feared to return to his home country “because of domestic violence or sexual assault that [he] experienced there”.

9.  While a delay of one week in taking out his application is not substantial, in our view, his application is wholly devoid of merit.  The matters raised in his Notice of Motion and written submissions are essentially a mere regurgitation of those submissions he previously made before this Court: see [14] of the Judgment.  It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014)  at [2] and [3]. His arguments had already been fully considered and rejected by this Court at [15] - [22] of the Judgment and the applicant failed to identify with specific particulars any error in the Judgment.  As such, nothing set out in the Notice of Motion can be construed as viable ground of appeal to the Court of Final Appeal.

10.  Further, as noted at [7] of the Judgment, the Board held an oral hearing on 6 March 2018 and the applicant attended the same with his legal representatives and gave evidence.  The Board also gave detailed reasons for its decision by way of its written determination dated 17 August 2018.  Accordingly, his assertions are wholly misplaced.

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

12.  Accordingly, the applicant has 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.

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 filed on 19 April 2022 is dismissed.