RE AMRIT PAL SINGH

CACV 336/2022

[2023] HKCA 256

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 336 OF 2022

(ON APPEAL FROM HCAL NO. 2139 OF 2018)

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J U D G M E N T

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

1.  On 22 November 2022, this court handed down a judgment ([2022] HKCA 1734) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 12 August 2022 refusing him leave to apply for judicial review.

2.  On 17 January 2023, the applicant filed a Notice of Motion together with an affirmation to apply for leave to appeal this court’s judgment to the Court of Final Appeal. He has also put in a written submission to support the application.

3.  Having considered the Notice of Motion, affirmation and written submission, 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 the documents in the case.

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

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that an 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. Section 24(5) of the Ordinance further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.  The applicant’s notice of motion is late by four weeks, which is a significant delay. The applicant stated in his affirmation that he was not aware of the deadline for filing the notice of motion. While we note that the applicant is unrepresented and may not be familiar with the judicial process, in the absence of elaborations as to what efforts he had made to prosecute the application, we do not find the delay has been satisfactorily explained.

7.  We turn next to consider the merits of the intended application. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance 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.

8.  The Notice of Motion stated that the authorities relied on old source of news which is also not officially recognized, and should have taken into account the real procedural unfairness throughout the case. The public policy of disposing of non-refoulement claims as quickly as possible should be put aside.

9.  In his written submission, the applicant made the following additional points

(1)  His case has been determined unfairly.

(2)  There should be a proper and fair mechanism allowing unrepresented litigants to understand more about their case. Without knowing thoroughly how the case was determined, it was not easy for him to appeal.

(3)  He was never provided with language and legal assistance. Due to limited resources and language capability, it was burdensome for him to appeal. The failure to provide proper assistance is procedurally unfair.

(4)  It could not be said that the assistance would be of no use if it was not even granted in the first place.

10.  The matters put forward by the applicant do not amount to viable grounds for the intended appeal. Importantly, he has failed to identify any question of great general and public importance, as required by section 22(1)(b) of the Ordinance. Further, the complaints about procedural unfairness and lack of language and legal assistance were never raised before the Judge nor in the appeal. It is not open to the applicant to raise arguments that are fact-sensitive at this late stage.

11.  We also do not see any basis for the “or otherwise” limb under section 22(1)(b).

12.  As the statutory requirements for giving leave to appeal are not met, it is futile to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.