RE ARSHAD MUHAMMAD

CAMP 169/2021

[2023] HKCA 205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 169 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 181 OF 2019)

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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 handed down judgment on 18 March 2022 ([2022] HKCA 401)  dismissing the applicant’s application to extend time to appeal against an order of DHCJ K.W. Lung given on 5 August 2020 in which he refused the applicant’s application for leave to apply for judicial review in respect of his non-refoulement claim.

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 13 May 2022, 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.  The last day for filing the Notice of Motion expired on 19 April 2022, so it was not affected by the court’s General Adjournment Period (7 March 2022 to 11 April 2022).   

4.  However, under sections 24(5)  and 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 applicant was late by nearly a month (19 April 2022 to 13 May 2022)  which is substantial.  He did not give any explanation for the delay in his supporting affirmation.

6.  Moreover, the applicant has not shown any merits in this intended application for leave to appeal to the Court of Final Appeal.  He advanced the following in the Notice of Motion:

“I would like to [inform] the Honourable Court that there is some error in law in my decision. Decision maker just relied on COI Information and my previous facts which were in favour while rejecting my claim. Actual life occur different situation then what is mentioned in COI Information. The Officer and [court] prefers to ignore the [overwhelming] of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is [betray] a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

7.  In his supporting affirmation, he reiterated that he came to Hong Kong to save his life and he will face risk of loss of life if he goes back to his home country.  He requested the court to reconsider his non-refoulement claim.

8.  Pursuant to the directions of the Registrar of Civil Appeals given on 13 May 2022, the applicant should lodge his written submissions on or before 27 May 2022 in support of the Notice of Motion.  He failed to do so.  The Registrar further directed that upon the expiry of the time for taking the aforementioned steps, and unless otherwise directed, the Notice of Motion shall be determined on paper only without an oral hearing.  As we consider it appropriate, this Notice of Motion is determined on paper without an oral hearing.

9.  Section 22(1)(b)  of the HKCFAO 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.

10.  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 section 22(1)(b)  of the HKCFAO.

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

12.  By reason of the above, the Notice of Motion filed on 13 May 2022 is dismissed.