RE RINA WATININGSIH AND ANOTHER

CAMP 250/2021

[2023] HKCA 359

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 250 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1336 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.  On 24 November 2022, the applicants filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s judgment of 23 September 2022 (“the Judgment”) ([2022] HKCA 1386). In the Judgment, we dismissed the applicants’ reapplication for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 30 March 2021, by which the Deputy Judge refused their application for leave to apply for judicial review ([2021] HKCFI 782).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

4.  Further, pursuant to section 24(2) of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 21 October 2022.  Accordingly, the applicants were over a month late in taking out their application for leave to appeal to the Court of Final Appeal.

5.  As the applicants did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5) of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad [2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the Court is entitled to take into account (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if an extension of time is granted; and (d) the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83 at [4] and the authorities cited therein.

6.  In their Notice of Motion, the applicants stated:

“I would like to inform to Court of Final Appeal. There is some error in my decision maker authorities. There is no such investigation in my case the Director of Immigration and the Adjudicator of Torture Claims Appeal Board just relied on some outdated news which is not officially recognized as well. My and my daughter still suffering from danger of life.” (sic)

7.  In the supporting affirmation filed by the 1^st applicant on 24 November 2022, she stated:

“Affirmation for leave to apply time extension for my Notice of Motion against the Order of High Court on 23 September 2022. I did not aware of my deadline to file my Notice of Motion seeking time extension.” (sic)

8.  Pursuant to Practice Direction 2.1, the applicants lodged their written submissions on 8 December 2022.  In those submissions, the applicants complained about the lack of language assistance with regards to their BOR2 risk claim and further contended that the basic right of a litigant to understand contents of the litigation process or judgment could or should be deprived.  The applicants asserted that the lack of sound judgment and fairness throughout the non-refoulement claim process is appalling and should not be tolerated and that this Court should stand to investigate, point out and correct such misbehaviour in the decision maker authorities.

9.  At the outset, it is noted that the applicant failed to provide any reason, let alone any good reason, for their substantial delay of over a month in making their application for leave to the Court of Final Appeal.  Ignorance of the deadline does not constitute a good reason for their substantial delay.  But more importantly, their intended appeal has no merit at all.  The matters raised in their Notice of Motion and written submissions are all general and bare allegations without any specific particulars or explanation.  General assertions of their fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  The applicants have also failed to identify any specific error in the Judgment with particulars.  Clearly, their arguments do not constitute proper grounds of appeal.

10.  In any event, the applicants’ arguments are the same as those previously raised before this Court, which had been fully considered and rejected at [16] ‑ [28] of the Judgment.  The applicants have failed to identify any specific error in the Judgment with particulars.  It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014) at [2] and [3].  Accordingly, the applicants’ submissions are not viable and their intended appeal plainly has no merit.

11.  Moreover, even taking their case at its highest, their allegations are fact‑specific and do not relate to any question of great general or public importance.

12.  Accordingly, the applicants have failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

13.  For these reasons, the applicants’ intended appeal has no merit and it will be futile to grant them extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion is dismissed.