RE GUANZON NOEL TORRES

CACV 617/2020

[2022] HKCA 982

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 617 OF 2020

(ON AN APPEAL FROM HCAL NO 1431 OF 2018)

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JUDGMENT

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Hon Mimmie Chan J giving the Judgment of the Court:

1.  On 23 August 2021, this Court handed down our judgment ([2021] HKCA 1207) dismissing the applicant’s appeal against the decision of Deputy High Court Judge CP Pang given on 11 November 2020, whereby leave to apply for judicial review was refused.

2.  On 1 June 2022, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal. The applicant has also put in a written submission to support his application.

3.  Having considered the applicant’s notice of motion, affirmation and written 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 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.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, 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) of the Ordinance further provides that the Court of Appeal may extend the time for the filing of the notice of motion. In considering whether to extend the time, we will have regard to (i) the length of the delay; (ii) the reasons for the delay; (iii) the merits of the intended application; and (iv) the prejudice to the other parties if time was extended.

6.  The applicant’s notice of motion is late by more than eight months, which is a serious delay. The applicant explained in his affirmation that he never received any letter or the Judgment from the High Court. We note from the court file that the Judgment and the sealed court order were mailed to the applicant on 23 August 2021 at the address provided. The applicant did not inform the Court that he had moved, nor did he provide the Court with his changed address.

7.  The applicant also relies on the fact that the Court had been closed in March and April 2022 because of Covid, that he had tested positive himself, and hence had not been able to file his notice of motion within time.

8.  The merits of the intended appeal are amongst the matters to be considered, in deciding whether to grant time to the applicant. 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 only 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.  On the merits, the notice of motion stated that the Court had disregarded the applicant’s dangerous and inhuman situation.

10.  In his written submission lodged on 15 June 2022, the applicant stated that he would be in grave danger should he be returned to the Philippines, and that the Board had overlooked the fact or was misguided to believe, that Philippines would practise the rule of law, when in actual fact, he cannot be protected. He pointed out that the Philippines is notorious for police extra-judicial killings, the government and those in power could exercise brutal measures and be protected by the government, and that he could not be relocated internally, as he could be easily tracked down. The applicant claimed that he would have to live and hide like a fugitive and would not be able to lead a normal life.

11.  The matters put forward by the applicant do not afford any basis for granting leave to appeal. Importantly, they all relate to the applicant’s own claim and his personal circumstances. It has not been shown that the intended appeal involves a question of great general or public importance.

12.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

13.  As the statutory requirements for giving leave to appeal are not met, it is futile to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.