RE MD ZAKIR

CAMP 433/2022, [2024] HKCA 666

On Appeal From [2022] HKCFI 914

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 433 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 1870 OF 2018)

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DECISION

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Hon Cheung JA (giving the Decision of the Court):

1.  On 31 July 2023, this Court handed down decision ([2023] HKCA 907) dismissing the applicant’s application to extend time to appeal the order of Deputy High Court Judge Bruno Chan given on 31 March 2022 refusing his application for leave to apply for judicial review in respect of his non-refoulement claim.

2.  On 27 October 2023, the applicant filed a notice of motion and affirmation applying for leave to appeal this Court’s order to the Court of Final Appeal out of time by around one month.

3.  Pursuant to the directions of the Registrar of Civil Appeals also dated 27 October 2023, the applicant was to lodge and serve on or before 10 November 2023 written submissions failing which he will be deemed to have abandoned his right to rely on written submissions and the matter will be considered by this Court based on the available materials. The applicant has not lodged or served written submission by the stipulated deadline.

4.  Having considered the applicant’s documents, 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.

5.  The background to this case and the applicant’s claim have been set out in our decision. We will not repeat them.

6.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (Cap. 484) provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Section 24(5) further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

7.  The applicant’s present application is out of time by around one month. The applicant in the supporting affirmation simply stated in brief that he was out of time and he attached to his affirmation a copy of our decision together with certain evidence of marriage certificate, recognizance forms and police report without further explanation or particulars. According to Court record, our decision was sent by ordinary mail to the applicant’s last known address on 31 July 2023. The applicant cannot explain his delay.

8.  As to the merit of the intended appeal, section 22(1)(b) of the HKCFAO 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 stated the following:

‘ The High Court and the Court of Appeal dismissed my leave to apply for judicial review. I did not get justice. I want to go to the Court of Final Appeal for justice.’

10.  We are of the view that no question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

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

12.  As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.