RE PRAMANIK BILLAL

CAMP 69/2018

[2019] HKCA 1075

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 69 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 354 of 2017)

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JUDGMENT

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

1.  On 1 August 2018, this Court (Chu and Barma JJA) handed down our judgment[1] dismissing the applicant’s application for leave to appeal out of time the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 9 March 2018 refusing him leave to apply for judicial review.     

2.  On 25 July 2019, the applicant filed a notice of motion together with two affirmations to apply for leave to appeal out of time against our judgment to the Court of Final Appeal. 

3.  After the Registrar of Civil Appeals made an unless order on 27 August 2019, the applicant lodged a written submission in support of his application on 3 September 2019.    

4.  Having considered the applicant’s notice of motion, affirmations and submission, 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 papers provided to the Court in this application.

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

6.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 (“the Ordinance”) 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.     

7.  The applicant’s present application is more than ten months out of time.  While this Court has power under section 24(5) of the Ordinance to extend the time for the applicant to file the notice of motion, we are of the view that we should not do so in this case for the reasons set out below.

8.  Firstly, the delay in this case is more than ten months, which is a very serious delay.  The applicant explained in his affirmation that he had not received the judgment and order of 1 August 2018, and it was after an immigration officer called him on 22 July 2019 that he went to the court to make enquiry and eventually obtained a copy of the judgment.  We can see from the court record that the judgment and the sealed order were respectively posted on 2 and 6 August 2018 to the address provided by the applicant in a notice of change of address filed on 19 July 2018.  They had not been returned by the post office.  The applicant has not satisfactorily explained why despite being sent to the address provided by him, the judgment and the order had not reached him.  We further note that the address stated in the notice of motion is slightly different from that previously provided by the applicant; the room number is “Room A, Flat A, 8/F” whereas the one provided previously is “Room 8A1, Flat A, 8/F”.  We have not been made aware of the reason for the difference.  However, even if this suggests that the applicant has moved, it will be incumbent on him to promptly inform the court.  In short, we are of the view that the applicant has not satisfactorily explained the very serious delay in making the present application.     

9.  Secondly, the intended grounds of appeal do not amount to viable grounds for granting leave to appeal.  Under section 22(1)(b) of the Ordinance, 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.

10.  In the notice of motion, the applicant put forward the following proposed grounds of appeal:

(1) It is not true that there is no substance in the grounds of his application.

(2) He did not make a complaint against the duty lawyer’s performance for fear of being picked out by the Board for “misappropriation”.

(3) He did not have sufficient time to address the appeal bundle.

11.  Two further grounds were advanced in the applicant’s affirmation as follows:

(1) The Court was wrong in law in holding there was no state acquiescence.

(2) The Court failed to find out the detail of the current situation in Bangladesh.

12.  The written submission raised three arguments.  The first is that the Board and the Judge had failed to consider certain provisions in the International Covenant on Civil and Political Rights, the Hong Kong Bill of Rights Ordinance, Cap. 383, the Basic Law and the United Nations Convention Against Torture that were set out in the written submission.  Second, the decision-maker should apply high standards of fairness because the decision had the effect of finally disposing of the applicant’s claim and rendered him liable to be removed.  Third, there are minimum standards of procedural fairness under the common law and the decision-maker was under a duty to act fairly.

13.  All the proposed grounds of appeal and arguments are directed at the assessment of the applicant’s claim, but do not involve any question of great general or public importance, or otherwise, that ought to be submitted to the Court of Final Appeal for determination.  The requirement for granting leave to appeal under section 22(1)(b) of the Ordinance is therefore not met.  Further, the complaint about the duty lawyer and not having sufficient time to deal with the appeal bundle, and the issue of state acquiescence are new matters that had not been raised in the proceedings before the Judge or in the application before this Court.  It is not the practice of the Court of Appeal to grant leave to appeal on new points not previously canvassed in hearing before it.[2] Nor generally is Court of Final Appeal’s practice to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]  Moreover, for the reasons given in [20] of our judgment, the assertion of risk of danger to the applicant’s life and the complaint about the assessment of country of origin information are irrelevant and unarguable.                 

14.  For the above reasons, we will not extend the time for the applicant to apply for leave to appeal to the Court of Final Appeal.  The notice of motion is accordingly dismissed.