RE ARSHAD MIAH

CAMP 33/2021

[2021] HKCA 1706

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 33 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2891 OF 2018)

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J U D G M E N T

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

1.  On 15 June 2021, this court handed down judgment ([2021] HKCA 837) dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge Lung given on 10 August 2020 refusing to extend the time for him to apply for judicial review in respect of his non‑refoulement claim.

2.  On 19 October 2021, the applicant filed a Notice of Motion together with an affirmation applying for leave to appeal this court’s judgment to the Court of Final Appeal.  Despite directions given by the Registrar of Civil Appeals, the applicant has not lodged a written submission.

3.  Having considered the applicant’s Notice of Motion and affirmation, 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 have been set out in our judgment.  We will not repeat them.

5.  The applicant’s Notice of Motion is out of time, as section 24(2) of Hong Kong Court of Final Appeal Ordinance Cap. 484 stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from.  The deadline for filing the Notice of Motion expired on 13 July 2021. 

6.  Under sections 24(5) and 24(6) of the Hong Kong Court of Final Appeal Ordinance, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period.  In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party. 

7.  In the present case, the applicant’s notice of motion is late by more than 3 months, which is substantial.  The applicant has given no explanation for the delay. 

8.  As to the merits of the intended appeal, 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.

9.  The Notice of Motion merely stated that after the dismissal of his application for leave to apply for judicial review, the applicant appealed to the Court of Appeal and the appeal was dismissed, hence he wants to appeal to the Court of Final Appeal.  The supporting affirmation stated that the application was out of time and asked that it be accepted.

10.  What was put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b) of the Ordinance.     

11.  Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

12.  As the intended appeal has no prospect of success, it would be futile to extend the time for the applicant to appeal.  Accordingly, we refuse to extend the time for the applicant to appeal to the Court of Final Appeal and dismiss the Notice of Motion.