RE HUSSAIN SADA

CACV 258/2020

[2021] HKCA 934

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 258 OF 2020

(ON APPEAL FROM HCAL NO. 1036 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.  By a judgment dated 29 December 2020 ([2020] HKCA 1083), this Court (Yeung VP and Toh J)  dismissed the applicant’s appeal against the decision of DHCJ Bruno Chan (“the Judge”)  given on 2 July 2020 in HCAL 1036/2018 refusing to grant him leave to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board/Adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  given on 25 May 2018 dismissing his petition/appeal from the decision of the Director of Immigration (“Director”)  given on 17 August 2017 rejecting his non-refoulement claim.

2.  On 15 March 2021, the 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 section 24(2)  of the 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 and the deadline for filing the Notice of Motion expired on 26 January 2021. 

3.  However, under section 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, good cause has to be shown.  We will 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. 

4.  In the present case, the applicant’s notice of motion is late by almost 7 weeks, which is substantial.  In his supporting affirmation, he explained that he was late “due to lack of knowledge and insufficient sources”.  We do not accept it is a good reason for the delay.

5.  As to the merit of the intended appeal to the Court of Final Appeal, the Notice of Motion dated 15 March 2021 set out the following grounds:

“Respected Sir/Madam, I am late for apply due to lack of knowledge and insufficient sources. Please accept my filling application so that I can process my case further. I hope I will get your favour.”

6.  In compliance with the directions made by the Registrar of Civil Appeals on 16 March 2021, the applicant lodged his written submissions on 24 March 2021.  The applicant repeated his written submissions as advanced before this Court for his appeal against the Judge’s decision which are as follows:

(1)  His life will become worse if refouled and he was not satisfied with all the decisions made in his case.

(2)  The points in his case was ignored and the decisions were not transparent.  The situation of his country is much different as the decision-makers might think and it is hard for him to live and stand in front of his enemies.

(3)  He was playing into the hands of Pakistani police and other law making authorities as they are using their political influence for which he does not have strength to fight against.

(4)  Any person who tries to stand or be a witness against the police and the law making authorities may disappear or be killed.

(5)  It is difficult to get justice in the corrupt environment unless one is rich and politically powerful.

(6)  He is living under the threat of his enemies and he did not know when his enemies would come to him.

(7)  Torture and deaths are common in police custody in Pakistan and the police would just give support to those who bribe them.

(8)  It is impossible for him to go back to work and even if he files a report to the police, the police would just inform those powerful people of the same.

(9)  He urged the court to understand his problem and allow him to stay in Hong Kong

7.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

8.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance (Cap. 484)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.  Here, the applicant failed to raise any proper grounds of appeal to pinpoint any error of law in our judgment and nothing mentioned in the Notice of Motion and the written submissions can be construed as viable grounds of appeal to the Court of Final Appeal.  As explained at [12] of our judgment, the applicant’s case was rejected by Board that his story lacked logic and was incredible and we found no basis to intervene the Board’s decision.  In our judgement, there is simply no merit in the applicant’s intended appeal.

10.  For the reasons that we gave in our judgment of 29 December 2020, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the Notice of Motion and the written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b)  either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

11.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal out of time and dismiss his Notice of Motion.