H v. DIRECTOR OF IMMIGRATION

CACV 5/2017

[2019] HKCA 712

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 5 OF 2017

(ON APPEAL FROM HCAL 172/2015)

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JUDGMENT

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

1.  By a Notice of Motion of 5 June 2019, solicitors for the Applicant applied for leave to appeal to the Court of Final Appeal in respect of the decision of this Court of 29 October 2018.

2.  The decision of 29 October 2018 was a decision refusing to grant leave under Section 14AA of the High Court Ordinance for an appeal to be brought against the judgment of Chow J on 3 November 2016, refusing to extend time to the Applicant to apply for judicial review for a decision of 8 October 2013 (confirmed on 11 August 2014).

3.  By a summons of 18 June 2019, the Applicant sought an extension of time to lodge submissions.

4.  There was no affidavit evidence in support of the summons.  In a letter of 18 June 2019, the solicitors acting for the Applicant merely stated that the Applicant’s legal aid application was pending.  They asked for an extension of time (or a stay) pending a final decision of the Director of Legal Aid.

5.  We do not see any good reason for granting the extension or the stay. 

6.  First, it should be noted that the Notice of Motion is irregular.  Pursuant to the time limit for making an application for leave to appeal to the Court of Final Appeal set out in Section 24(2) of the Honk Kong Court of Final Appeal Ordinance, the Notice of Motion should be filed within 28 days from the date of the judgment to be appealed from.  It is further provided in that sub-section that the applicant shall give the opposite party 7 days’ notice of his intended application.

7.  In the present case, the Notice of Motion was filed on 5 June 2019, more than 7 months since this Court’s decision of 29 October 2018.  However, the Applicant did not seek any extension of time to lodge the Notice of Motion.  The Court only received a notice of application for legal aid on 17 April 2019.  By now, the legal aid stay arising from the application of 17 April 2019 have already expired.  Given the long lapse of time between our judgment of 29 October 2018 and that notice, the Applicant should account for the substantial delay. 

8.  However, the Applicant did not file any evidence (nor advance reason by way of submission) to account for the delay in the filing of Notice of Motion.  In default of compliance with the practice discussed by Chow J in BH v Director of Immigration [2015] 4 HKC 107 at [103] which was endorsed by this Court in BI v Director of Immigration [2016] 2 HKLRD 520 at [131], which had been reiterated by Chow J in his judgment in the present case at [58], neither the Applicant nor his solicitors provided the Court with a chronology on the progress of his legal aid application since the handing down of our judgment. 

9.  Second, the unexplained delay is particularly remarkable when the subject matter of the appeal is the decision of Chow J’s refusal to extend time.  There had already been very substantial delay before the Applicant made his application at the court below. 

10.  Third, our striking out of the appeal is based on our refusal to grant leave under Section 14AA.  So far, the Applicant had not advanced any submission to explain how an appeal can be brought to the Court of Final Appeal notwithstanding the effect of Section 14AB of the High Court Ordinance.

11.  Fourth, despite the absence of legal aid, the Applicant had the service of his solicitors in the preparation of the Notice of Motion.  Since his lawyers must have given due considerations to the formulation of the grounds to seek leave in the drafting of the Notice of Motion, the additional works for the preparation of submissions for the leave application should not be that onerous. 

12.  Since the Applicant saw fit to issue the Notice of Motion without the coverage of legal aid, we do not attach much weight to the claim for concern for potential costs consequence in the absence of legal aid coverage.    

13.  We therefore dismiss the summons of 18 June 2019.  We will however give the Applicant another opportunity to lodge submissions.  The Applicant should lodge submissions in support of the Notice of Motion by 3 July 2019.  If he does not do so, the Court will dispose of the Notice of Motion based on the existing materials before the Court.