RE HAQUE AZIZUL

CACV 277/2018

[2019] HKCA 1068

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 277 OF 2018

(ON APPEAL FROM HCAL NO. 1153 of 2017)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  On 23 November 2018, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 22 June 2018 refusing him leave to apply for judicial review.     

2.  On 15 July 2019, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal. 

3.  Despite an unless order made by the Registrar of Civil Appeals on 15 August 2019, the applicant has not lodged his written submission in support of his application by the deadline of 2 September 2019.  Pursuant to the unless order, the applicant is debarred from putting forward any written submission and further deemed to be relying only on the matters stated in his notice of motion.    

4.  Having considered the applicant’s notice of motion and affirmation, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of his notice of motion.

5.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

6.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 (“the Ordinance”) 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 to be appealed from.     

7.  The applicant’s notice of motion was more than six months out of time.  While this Court has power under section 24(5) of the Ordinance to extend the time for the applicant to file the notice of motion, we are of the view that we should not do so in this case for the reasons set out below.

8.  Firstly, the delay in this case is more than six months, which is a serious delay.  The applicant stated in his affirmation that he was not aware of the proper procedure.  We, however, do not find this a satisfactory explanation, given the very long delay and the applicant’s failure to elaborate on what efforts he had made to find out what he should do if he intended to take his case further. 

9.  Secondly, the matters stated in the notice of motion do not amount to viable grounds for granting leave to appeal.  Under section 22(1)(b) of the Ordinance, 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.  In the notice of motion, the applicant put forward the following matters as his proposed grounds of appeal:

(1)  There is some error of law in the decision.

(2)  The decision maker relied on COI and previous facts that were in favour of rejecting the applicant’s claim.  The actual situation was different from what was mentioned in the COI.

(3)  The officer and the Court ignored the overwhelming evidence of violence towards minorities.

(4)  The decision betrayed a biased and formulaic approach, which unlikely had fairly assessed the danger to the applicant’s life, and was clearly unreasonable.    

11.  All these matters are directed at the assessment of the applicant’s claim, but does not involve any question of great general or public importance, or otherwise, that ought to be submitted to the Court of Final Appeal for determination.  The requirement for granting leave to appeal under section 22(1)(b) of the Ordinance is therefore not met.  Moreover, as we pointed out in [12] of our judgment, given that the Board had rejected the applicant’s claim as being untruthful, the applicant’s assertion of risks of danger to his life, and his complaints about COI are misplaced and unarguable.   

12.  For the above reasons, we will not extend the time for the applicant to apply for leave to appeal to the Court of Final Appeal.  The notice of motion is accordingly dismissed.