RE LIBAO AURELIA PAZ BALMELERO

CAMP 91/2020

[2021] HKCA 3

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 91 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 883 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 9 November 2020, this Court (Cheung and Chu JJA) handed down our judgment[1] refusing to extend the time for the applicant to make a renewed application for leave to appeal the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 22 November 2019.  By that decision, the Judge refused to give her leave to apply for judicial review.     

2.  On 18 November 2020, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant also put in a written submission to support her application.

3.  Having considered the applicant’s notice of motion 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.  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.

6.  In the notice of motion, the applicant gave the following as her reasons for seeking leave to appeal to the Court of Final Appeal:

“I would like to appeal against the Court’s decision on refusing my leave. The Court refused my application just because they think my case has no prospect. By legal principle, I should be granted the right to appeal when the fault is not mine. On top of that, it would be too judgemental of the court to dismiss my case without allowing me to further appeal.”

7.  The written submission set out the following grounds of appeal:

“1. The judgement by the Court of First Instance to reject my request for the extension of time is not fair. I did not intend to skip the hearing. The reason was because my lawyer did not inform me there was supposed to be a hearing.

2. Because the lawyer had made a mistake in my address. And the court also made a spelling mistake on my address that’s why I never received any letter about my hearing and therefore I have never heard any news.

3. My original address is Yen Chow House, No. 219B Yee Kuk street; The lawyer mistakenly wrote Yee Kuk street as Yee Yuk street when submitted my document to the court. And then the court wrote Yem Chow House instead of Yen Chow house when sending documents to me.

4. As this all happens not because of my mistake but the administrative error of my lawyer and the court, I see no reason why my appeal for the extension of time should be rejected.

5. On top of that I was already being detained because I did not even know that my case was finished. The entire mishap was very unfortunate and I believe that my case has not been fairly judged and fairly treated.

6. As a result of the arguments above, I request the court to grant leave to appeal.”       

8.  We are of the view that the points and arguments advanced in the notice of motion and written submission do not constitute viable grounds for granting leave to appeal to the Court of Final Appeal.  Critically, they relate only to the circumstances of the applicant’s case, and do not involve any question of great general or public importance, as required by section 22(1)(b). 

9.  As to the complaint of unfairness arising from mistakes in the spelling of the applicant’s address, it cannot stand.  It is true that in HCAL 883/2018, the applicant’s address was mis-spelt as “Yee Yuk Street” in the notice of change of address signed by her and filed on 8 July 2019.  However, the address was correctly stated as “Yen Chow House, Yee Kuk Street” in the notice of hearing dated 25 July 2019 relating to the hearing for leave to apply for judicial review.  The Form CALL-1 notifying the applicant of the Judge’s decision refusing leave to apply for judicial review was also sent to the correct address (i.e. Yen Chow House, Yee Kuk Street).  Both documents had not been returned by the Post Office. Further, while the applicant’s address in the notice of handing down of the decision on the application for extension of time to appeal was mis-spelt as “Yem Chow House”, the applicant personally collected the decision from the Court.  In these circumstances, the applicant’s contention that she did not receive notice of hearing and had heard nothing about her case is not substantiated.  We also note that in the present application, although the applicant’s address in the Court’s letters dated 29 July and 20 November 2020 containing directions made by the Registrar of Civil Appeals was mis-spelt as “Yee Yuk Street”, the applicant had complied with the directions and filed her written submissions within the time imposed. 

10.  Moreover, as stated in [13] and [14] of our judgment, the primary reason for the Judge’s and this Court’s refusals to extend the time for the applicant to appeal the decision not to give leave to apply for judicial review is the lack of merits in the intended appeal.  The applicant has not provided any proposed ground of appeal or identified any error in the reasons given by the Judge (as stated in the Form CALL-1) for refusing leave to apply for judicial review.  This Court also does not discern any error or ground for disturbing the Judge’s decision.  As such, it would be futile to extend the time for appeal as the intended appeal is bound to fail.   

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

12.  As the statutory requirements for giving leave to appeal are not met, we dismiss the notice of motion.