BEGUM JAHANARA v. IAN CANDY, ESQ, ADJUDICATOR OF THE TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 3/2020

[2021] HKCA 83

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 3 OF 2020

(ON APPEAL FROM HCAL 428/2018)

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JUDGMENT

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

1.  On 7 December 2020, the Applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 6 October 2020.  In that judgment Lam VP and Cheung JA struck out and dismissed the Applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan on 23 December 2019 striking out and dismissing her application for leave to apply for judicial review.   

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

3.  Pursuant to Section 24(2) of the Ordinance an appellant has 28 days from the date of the judgment to seek leave to appeal to the CFA.  In the present case, the time for the Applicant to seek leave to appeal against this Court’s judgment of 6 October 2020, expired on 3 November 2020.

4.  As the Applicant did not apply for leave to appeal to the CFA within time, good and sufficient ground must be shown by the Applicant before the court will exercise its discretion to grant an extension of time: see: Section 24(5) of the Ordinance; 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 (unreported), CACV 191/2013, 29 January 2015.

5.  In the present case, the Applicant’s Notice of Motion was late by 34 days.  In one of her two supporting affirmations of 7 December 2020, the Applicant explained that due to the current COVID 19 pandemic, it was difficult for her to get help from anyone.  She further explained that due to her language problem, it took days for her to find help. Though the delay in filing the Notice of Motion is significant, the Applicant’s explanation for the delay seems plausible in the circumstances.  Thus we have proceeded to decide her application on its merits.

6.  In her Notice of Motion for leave to appeal to the CFA, the Applicant stated that it is not true that there is no substance to her application.  She also stated that she had not previously complained about the duty lawyer’s performance due to fear that the lawyer would be “picked out for misappropriating” by the Torture Claims Appeal Board.  Further, the Applicant stated that she did not have enough time to address the hearing bundle. 

7.  In her other supporting affirmation of 7 December 2020, the Applicant deposed that the grounds of her application are that the court was wrong in law in holding that there was no state acquiescence and that the court failed to find out the clear details of the current situation in Bangladesh.

8.  Notwithstanding the acknowledgment by the Applicant on 7 December 2020 of the requirement under Practice Direction 2.1 and the direction of the Registrar of Civil Appeals of 8 December 2020, the Applicant has not lodged any written submissions in support of this application. 

9.  In the judgment of 6 October 2020, this Court struck out and dismissed the Applicant’s appeal for abuse of process due to re-litigation.  As such, the grounds for leave to appeal raised in her supporting affirmation clearly bears no relationship with the reasoning in that judgment.

10.  The Applicant has not raised any reasonably arguable ground of appeal on the merit of her claim, or any discernible or arguable ground for disturbing our judgment.  

11.  In any event, in the circumstances, we do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

12.  For these reasons, we refuse to extend the time for the Applicant to apply for leave to appeal.  The Applicant’s Notice of Motion is dismissed accordingly.