RE SWAPON SHUBASH MAJUMDER

CAMP 59/2017

[2019] HKCA 1072

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 59 OF 2017

(ON AN INTENDED APPEAL FROM HCAL 121/2017)

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J U D G M E N T

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Hon Lam Ag CJHC (giving the Judgment of the Court):

1.  On 18 January 2018, the Court (Cheung CJHC, as Cheung PJ then was, and Lam VP) handed down a judgment ([2018] HKCA 25) refusing to grant an extension of time for the applicant to appeal against the decision of Deputy High Court Judge Woodcock dated 15 September 2017 refusing leave to apply for judicial review.

2.  Over 1½ years later, the applicant filed a notice of motion on 25 July 2019 seeking leave to appeal to the Court of Final Appeal against the judgment.  In the notice, the applicant set out the background of his claim.  It was stated therein that it would be dangerous for him to return because of the current political situation in Bangladesh.  The applicant further submitted that the judge failed to consider the lawfulness or fairness of the Torture Claims Appeal Board’s (“the Board”) decision-making.

3.  In his affirmation filed on 25 July 2019, the applicant explained that the delay was due to his inability to write or read English, and the lack of financial resources to hire a lawyer to advise him. 

4.  As the applicant did not apply for leave to appeal to the Court of Final Appeal 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 for him to do so, see: section 24(5) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“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.  The delay of 1½ years in seeking leave to appeal to the Court of Final Appeal is a very substantial one.  The matters deposed in the applicant’s affirmation do not provide a reasonable excuse for the delay.

6.  The applicant has no reasonably arguable ground of appeal.  His claim for non-refoulement protection was rejected because of the Board’s finding of the complete lack of credibility of the claim.  After rigorous examination and anxious scrutiny, the judge found no public law ground to reverse the Board’s decision.  After reviewing all the documents available before the Court, it was found that the intended appeal had no reasonable prospect of success. 

7.  Also, the applicant failed to raise any questions of great or general importance that merit the submission to the Court of Final Appeal for determination. There is no basis for us to grant leave on the “otherwise” limb.  The statutory criteria set out in section 22(1)(b) of the Ordinance are not met.

8.  For these reasons, we refuse to extend time for the applicant to seek leave to appeal to the Court of Final Appeal, and dismiss the application for leave accordingly.