RE SOHEL AND OTHERS

CAMP 214/2019

[2020] HKCA 857

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 214 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 488 OF 2018)

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J U D G M E N T

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

1.  By a judgment dated 11 June 2020 ([2020] HKCA 411), this Court (Yeung VP and Pang JA) refused to grant an extension of time for the 1^st, 2^nd and 3^rd applicants (collectively called “the applicants”) to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 24 May 2019 in HCAL 488/2018 in which the Judge refused to extend time for the applicants’ late applications for leave to apply for judicial review. The applicants sought to review the two decisions of the Torture Claims Appeal Board (“the Board”) both dated 24 August 2017, one against the 1^st applicant and the other one against the 2^nd and 3^rd applicants.

2.  By a notice of motion dated 19 June 2020, the applicants now seek leave to appeal to the Court of Final Appeal on the following grounds:

“On 11 June 2020 the Honourable Judges dismissed my appeal for leave for judicial review. I do not agree with this decision. The Judges failed to show any good cause to dismiss my leave. We want to go to the Court of Final Appeal.”

3.  On 3 August 2020, Yeung VP directed the applicants to lodge their written submissions in support of the Notice of Motion on or before 17 August 2020, the applicants failed to do so.  Yeung VP further directed that the notice of motion shall be determined on paper only without an oral hearing and so we did.

4.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, 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.  The complaints set out in notice of motion was nothing more than a mere disagreement to the court’s refusal of the applicants’ applications and such complaints cannot amount to viable ground of appeal to the Court of Final Appeal. 

5.  Though it has recently been held by the Court of Final Appeal in H v Director of Immigration [2020] HKCFA 22 that an applicant did not need to seek leave under Section 14AA of the High Court Ordinance (Cap. 4) (“Section 14AA”) to appeal to this Court in respect of a refusal of extension of time to bring an application for leave to judicial review, and technically an appeal can be brought to this Court by way of appeal out of time, it cannot assist the applicants in this instance because:

(a)  the present application is made in respect of our judgment on refusal of Section 14AA leave and it serves no purpose for an appeal to the Court of Final Appeal regarding such refusal of leave.  The reversal of our decision on Section 14AA leave would not automatically lead to success in their appeals against the Judge’s decision of 24 May 2019.  To achieve that they need to bring an appeal to this Court;

(b)  due to lapse of time, the applicants need an extension of time to bring an appeal to this Court and if they made such applications, the Court will have regard to the merits of their intended appeal in deciding if extension should be granted; and

(c)  having regard to our views on the lack of merit in the intended appeal as set out at [23] to [25] of our judgment of 11 June 2020, the Court will not grant an extension of time for a futile appeal to be brought.  

6.  For the reasons that we gave in our judgment of 11 June 2020, we do not see any prospect of success in the applicants’ intended appeal against the Judge’s decision and order.  None of the questions raised by the applicants in the notice of motion involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

7.  Accordingly, we refuse to give the applicants leave to appeal to the Court of Final Appeal and dismiss their notice of motion.