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CAMP 109/2018
[2019] HKCA 315
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 109 OF 2018
(ON AN INTENDED APPEAL FROM HCAL NO. 325 OF 2017)
__________________________
| RE: |
GURDEV SINGH |
Applicant |
__________________________
| Before: |
Hon Cheung, Chu and Poon JJA in Court |
| Date of Judgment: |
4 April 2019 |
________________________
J U D G M E N T
________________________
Hon Chu JA (giving the Judgment of the Court):
1. On 4 December 2018, this Court (Chu and Poon JJA) handed down our judgment[1] (“the Judgment”) refusing to give leave to the applicant to appeal out of time against the decision of Li J (“the Judge”) given on 15 January 2018.
2. On 28 January 2019, the applicant filed a Notice of Motion together with a supporting affirmation to apply for leave to appeal out of time against our judgment to the Court of Final Appeal. The applicant also lodged a written submission to support his application.
3. Having considered the applicant’s notice of motion, 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.
4. Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that the notice of motion to apply for leave to appeal to the Court of Final Appeal shall be issued within 28 days from the date of the judgment to be appealed from. The applicant’s notice of motion was late by 28 days.
5. The applicant explained in his affirmation that he did not receive the judgment. We note from the case file that on 14 December 2018, two letters from the Court to the applicant were returned undelivered by the post office. The first was a notice of handing down of judgment. The second was a letter enclosing this Court’s Judgment and the sealed order of this Court. These letters were sent to the address[2] given in the summons to apply for leave to appeal out of time and the applicant’s affirmation in support. They were returned undelivered for the reason that the address was incomplete/incorrect. A different address was given in the Notice of Motion and affirmation in support of the Notice of Motion. The applicant has also, after the filing of the Notice of Motion, filed a notice of change of address, giving the address in the Notice of Motion as his new address. The applicant is under a duty to inform the Court of any change or error in the address he provided to the Court for service of documents. Clearly, he had failed to. Nevertheless, we accept that he had not received the Judgment.
6. We turn next to consider the applicant’s intended appeal to the Court of Final Appeal. Under section 22(1)(b) of the Hong Kong Court of Final Appeal 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.
7. The Notice of Motion stated:
“I am not satisfied with the decision because I have problem with some powerful person and they have strong political backup. Please help me to stay in Hong Kong until I have problem.”
8. The written submission reiterated that it was not safe for the applicant to return to his country, and that the applicant would be tortured or killed by his enemies, who had bribed the police. It was said that the applicant had no resources to seek protection and there was no justice in the country.
9. What was put forward in the Notice of Motion and the written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal. The applicant has not set out any question for determination by the Court of Final Appeal, let alone question of great general or public importance, as required by section 22(1)(b).
10. We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).
11. As the statutory requirements for giving leave to appeal are not met, we dismiss the Notice of Motion.
| (Peter Cheung) |
(Carlye Chu) |
(Jeremy Poon) |
| Justice of Appeal |
Justice of Appeal |
Justice of Appeal |
The applicant, unrepresented, acted in person.
[1] [2018] HKCA 830.
[2] This is also the address given in the Form 86 and the affirmation in support. The Form CALL-1 and the Judge’s order sent to this address were also returned undelivered: see [12] of this Court’s Judgement.
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