RE ALAM SAHDAB

CAMP 197/2021

[2022] HKCA 628

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 197 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 295 OF 2019)

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J U D G M E N T

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

1.  On 10 February 2022, the applicant filed a Notice of Motion and a supporting affirmation to apply for leave to appeal out of time to the Court of Final Appeal against this Court’s (Au and Chow JJA)  judgment of 9 December 2021 (“the Judgment”)  ([2021] HKCA 1851).

2.  In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 25 May 2021 ([2021] HKCFI 1418), by which the Deputy Judge refused the applicant’s application for extension of time to appeal against the Deputy Judge’s earlier order dated 25 May 2020, whereby the Deputy Judge refused to grant extension of time to the applicant to apply for judicial review and dismissed his application for leave to apply for judicial review ([2020] HKCFI 478)  (“Leave Decision”).

3.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here. After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

4.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

5.  Further, pursuant to section 24(2)  of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for filing the present application expired on 6 January 2022.  The applicant was therefore late for over one month with his application for leave to appeal to the Court of Final Appeal.

6.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5)  of the HKCFAO only if good and sufficient grounds are shown by the applicant.  In deciding whether there are such good grounds, the Court is entitled to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chances of the appeal succeeding if an extension of time is granted; and (d)  the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83 at [4] and the authorities cited therein.

7.  In his Notice of Motion, the applicant claimed that he did not want to return back to his home country and that his life would still be in danger in his home country.  He further claimed that the Board had “significantly relied on the source of news which was not significantly recognised”.  In his supporting affirmation, he further claimed that he could not receive any letter of decision from the Court so he “took [his] decision from the Court late”.

8.  The applicant lodged his written submissions on 23 February 2022.  In his written submissions, he cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility.  He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  It is also noted that his submissions were all general propositions and the applicant failed to show specifically how they were relevant to his case.

9.  At the outset, we are of the view that the applicant’s delay of one month is substantial.  According to the Court’s record, the Judgment and the sealed order dated 9 December 2021 were sent to the latest address provided by the applicant, which was the same as the one provided in his Notice of Motion.  The post was however returned to the Court on 24 January 2022.  On 25 January 2022, the Court Clerk called the applicant notifying him of the Judgment and sealed order and that the post was returned to the Court.

10.  In the premises, we do not accept the applicant’s excuse for his delay.  It is well-established that it is the duty of a litigant to give the Court an address to which correspondence or notice can come to his attention in a timely manner.  The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant: see Re Ahmed Zakar [2019] HKCA 566 at [19]; Said Umair v Torture Claims Appeal Board [2018] HKCA 82 at [9] and Re Ram Ishver Dass [2019] HKCA 27 at [16].

11.  In any event, the applicant’s intended appeal is wholly without substance.  As a start, the arguments made in his Notice of Motion are general and vague allegations without any specific particulars.  General assertions of his fear if refouled do not constitute proper ground of appeal.

12.  The arguments in his written submissions are also general and bare allegations and the applicant did not show with sufficient particulars how they are relevant to his case.  In any event, his submissions are new grounds not raised before the Deputy Judge or this Court previously.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it; nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal: see Re Orense Marian Masangkay [2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh [2021] HKCA 870 at [7].  As such, these new grounds will not be entertained and accordingly, there is no viable ground of appeal.

13.  Further, even taking the applicant’s submissions at the highest, his arguments remain fact-specific and do not relate to any question of great general or public importance.

14.  Accordingly, the applicant has also failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

15.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion filed on 10 February 2022 is dismissed.