RE MANJIT SINGH AND OTHERS

CACV 388/2021

[2023] HKCA 172

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 388 OF 2021

(ON APPEAL FROM HCAL NO. 1548 OF 2018)

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DECISION

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Hon Cheung JA (giving Decision of the Court)  :

1)  Leave to appeal to the Court of Final Appeal

1.  On 11 May 2022, this Court (Cheung JA and Cheng J)  handed down a decision ([2022] HKCA 649)  (‘Decision’)  dismissing the applicants’ appeal against the decision of Deputy High Court Judge Bruno Chan refusing to grant leave to the applicants to apply for judicial review.

2.  On 17 June 2022, the applicants filed a Notice of Motion together with a supporting affirmation, seeking leave to appeal against our Decision to the Court of Final Appeal.  The applicants filed their written submissions on 4 July 2022.

3.  In the Notice of Motion, the applicants claimed that there is ‘some error in law’ in the decision made in their case.  They claimed that the Board relied on country of origin information which did not reflect the real life situation, that the Board and the Courts ignored overwhelming evidence of ‘this violence towards minorities’, and that the decision ‘[betrays] a bias and formula [sic] approach’, did not fairly assess their case and were ‘clearly not reasonable’.

4.  In his supporting affirmation, the 1^st applicant claimed that the applicants had to seek leave to file the Notice of Motion out of time because they did not receive the Decision within the time stipulated for appeal.  He did not provide any particulars or corroborating evidence.

5.  In the written submissions, the applicants repeated the case authorities and statutory reference for the general principles of non-refoulement (which were identical to the written submissions filed for the appeal before us), but again failing to explain how those principles were relevant to their case.

6.  Having considered the applicants’ Notice of Motion, supporting affirmation and written submissions, we see no reason to depart from the usual practice of determining applications for leave to appeal (out of time)  to the Court of Final Appeal on paper without an oral hearing.  We have, therefore, proceeded to determine the applicants’ application on the basis of the documents in the case.

7.  The background to this case and the applicants’ claim have been set out in our Decision.  We will not repeat them.

II.  Legal principles

8.  Section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘HKCFAO’)  provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment / decision to be appealed from.  Section 24(5)  further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

9.  The applicants’ present application is out of time by over one week.  They have failed to provide any satisfactory explanation for the delay.  Nevertheless, we shall focus on the merits of the intended appeal.

10.  Under section 22(1)(b)  of the HKCFAO, leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

III.  Our view

11.  The matters stated by the applicants in their Notice of Motion, supporting affirmation and written submissions do not constitute grounds for granting leave to the Court of Final Appeal.  The applicants have failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b)  of the HKCFAO.  Nor is there any such question apparent to us from the matters they have raised in the documents.

12.  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

IV.  Disposition

13.  As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the Notice of Motion.  Accordingly, we dismiss the Notice of Motion.