RE MOKTAN BIJAY BAHADUR

CACV 273/2018

[2020] HKCA 110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 273 OF 2018

(ON APPEAL FROM HCAL 528/2017)

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JUDGMENT

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

1.  On 23 October 2018, the Court (Lam VP and E Toh J) handed down a judgment ([2018] HKCA 746) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) dated 14 June 2018 ([2018] HKCFI 1267). In the latter decision, the Judge refused leave for the applicant to apply for judicial review.

2.  On 10 September 2019, the applicant filed a notice of motion seeking leave to appeal to the Court of Final Appeal against the judgment.  It was stated in the notice that:

“ 1) The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration on the 23 October 2018, refusing my application for judicial review.

2) There is some error in my decision. The decision maker just relied on COL information and my previous facts which were favour on rejecting my claim. Actual life occur different situation than mentioned COL information, officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

3) The Judge did not apply the law properly.

4) Procedural unfairness.” (sic)

3.  In the affirmation filed on 10 September 2019, the applicant explained that he did not apply for leave on time because he did not receive the judgment and he was recently detained in the Castle Peak Bay Immigration Centre.

4.  He did not give much details about his detention in his affirmation.  In particular, he did not state when his detention had commenced.

5.  In an earlier letter of 27 August 2019, he claimed to have been serving a sentence of 15 months before his detention at the Castle Peak Immigration Centre.

6.  However, in his Notice of Appeal of 28 June 2018, he put down an address at 165 Queen’s Road West as his address for service.  There had not been any suggestion that he was imprisoned.  In a letter of 9 July 2018 to the Court, he also used 165 Queen’s Road West as his address.  Directions sent to that address for preparation of appeal bundle and submissions were complied with.  Notice of hearing and the judgment of 23 October 2018 were sent to the address of service.

7.  The applicant did not explain how he would be able to lodge the Notice of Appeal and chose to use the address at Queen’s Road West as his address for service if he had actually been imprisoned.

8.  Due to the lack of reliable evidence concerning his incarceration, we cannot accept that he did not receive the judgment in the usual course of post after the Court had sent it on 23 October 2018.

9.  The applicant was therefore seriously out of time.

10.  The applicant lodged his written submission on 27 September 2019.  In it, the applicant quoted some passages from ST v Director of Immigration[1] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on the “high standards of fairness” required of a decision-maker in the determination of a non‑refoulement claim.  He further submitted that the Adjudicator acted in a procedurally unfair manner and failed to access his credibility properly.  He also complained about the Wednesbury unreasonableness of the decision-makers, citing Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence exp Smith [1996] QB 517 in support. Finally, the applicant referred to section 37ZT of the Immigration Ordinance (Cap 115).

11.  In this application, the delay of over 10 months is no doubt substantial.  For the reasons canvassed above, we are unable to accept the applicant have provided adequate explanation for such delay.  We shall proceed on the basis that the delay was inexcusable.

12.  We cannot find good grounds for exercising our discretion to extend time: see section 24(5) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), see also: Full Wisdom Holdings Ltd v Traffic Stream Infrastructure Co Ltd CACV 266/2003, 27 July 2004; Bowlstar (HK) Ltd v Ho Kwai Po CACV 156/2006, 10 July 2007, Elijah Saatori v Raffles Medical Group CACV 109/2008, 11 March 2009, and Tsit Wing (Hong Kong) Company Limited & Others v TWG Tea Company Pte Ltd & Another CACV 191/2013, 29 January 2015.

13.  All the grounds in the notice of motion are general assertions without supporting particulars.  They do not constitute valid grounds of appeal.

14.  We cannot see how the legal authorities cited by the applicant in his written submission can avail him in this application.  Nor can we discern the relevance of section 37ZT which concerns the late filing of notice of appeal to the Torture Claims Appeal Board.

15.  In any event, the applicant failed to raise any questions of great general or public importance for the Court of Final Appeal to determine.  There is no basis to grant leave on the “otherwise” limb.  The statutory criteria set out in section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) are not met.

16.  For these reasons, we refuse to extend time for the applicant to seek leave to appeal to the Court of Final Appeal, and dismiss the application for leave accordingly.