RE RATHNAYAKE MUDIYANSELAGE YASOMENIKE

CAMP 392/2022, [2023] HKCA 1342

On appeal from [2022] HKCFI 664

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 392 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 586 of 2019)

__________________________

__________________________

________________

J U D G M E N T

________________

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

1.  On 8 August 2023, this Court handed down our judgment ([2023] HKCA 949) refusing to extend the time for the applicant to appeal the decision of Campbell-Moffat J given on 9 March 2022 which refused her application for leave to apply for judicial review.

2.  On 14 November 2023, 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. Despite directions given by the Registrar of Civil Appeals, she has not put in any written submission to support the application.

3.  Having considered the applicant’s 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 the notice of motion to apply for leave to appeal shall be filed within 28 days from the date of the judgment to be appealed from. Under section 24(5), the Court may extend the time for the filing of the notice of motion. In deciding whether to extend time, the Court will have regard to (1) the length of the delay; (2) the reasons for the delay; (3) the merits of the intended application; and (4) the prejudice that may occasioned to the other party if the time is extended.

6.  The applicant’s notice of motion was late by more than two months, not counting the month of August which is the summer vacation. This is a significant delay. The applicant said in her affirmation that she did not receive the judgment. The court’s record shows that our judgment was mailed to the address given in her summons and affirmation, which is the same address stated in her notice of motion and supporting affirmation. The judgment had not been returned by the Post Office. In these circumstances, we do not accept that the applicant has satisfactorily explained the delay.

7.  As to 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 only stated that the applicant did not get justice and wanted to go to the Court of Final Appeal for justice. It did not set out any grounds to support the application.

9.  The applicant has failed to show that the intended appeal involves any question of great general or public importance. We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b). 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.