RE GURPREET SINGH

CAMP 253/2022

[2024] HKCA 346

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 253 OF 2022

(ON AN APPEAL FROM HCAL NO. 2825 OF 2018)

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J U D G M E N T

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

1.  On 27 April 2023, this court handed down our judgment ([2023] HKCA 590)  dismissing the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung given on 21 March 2022, which refused to extend the time for him to apply for judicial review and dismissed his application for leave to apply for judicial review.

2.  On 14 March 2024, the applicant filed a Notice of Motion together with an affirmation to apply for leave to appeal this court’s judgment to the Court of Final Appeal out of time.  The applicant had lodged a written submission dated 25 March 2024, which reached the Court on 2 April 2024.

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 application for relief from sanctions 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 deciding whether to extend time, the Court will have regard to (1)  the length of the delay; (2)  the reasons for the delay; (3)  the merits of the intended application; and (4)  the prejudice that may occasioned to the other party if the time is extended.

6.  The applicant’s notice of motion is late by more than nine months, which is very serious delay.  The applicant stated in the Notice of Motion that the delay was due to his various detention, lack of knowledge about court process and the fact that he is illiterate.  We do not accept that the delay has been satisfactorily explained.  In particular, we note that despite being detained in the establishment of the Correction Services Department, the applicant was able to arrange for the Notice of Motion to be filed on his behalf. 

7.  As to the merits of the application, 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 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.

8.  The Notice of Motion does not set out any ground to support the application.  The applicant’s affirmation states that the applicant is not satisfied with this Court’s judgment and wants an opportunity to prove that his no-refoulement claim is true.  In his written submission, the applicant complains that his continued detention[1] is unreasonable and unlawful because the Security for Security or the Director of Immigration should only detain a person due to be deported for a reasonable period and if it becomes apparent that deportation will not take place before the expiry of the reasonable period then the power of detention should not be exercised.

9.  We are of the view that the matters put forward by the applicant do not constitute viable grounds for the application. Importantly, no question of great general and public importance has been identified, as required by section 22(1)(b)  of the Ordinance, had been identified.  Further, whether the applicant’s current detention is lawful or otherwise has no bearing on his intended appeal to the Court of Final Appeal against this Court’s dismissal of his renewed application for leave to appeal.

10.  We also do not see any basis for the “or otherwise” limb under section 22(1)(b). 

11.  As the statutory requirements for giving leave to appeal are therefore not met, we dismiss the Notice of Motion.