RE SHARDA AJAY

CAMP 310/2021, [2023] HKCA 486

On Appeal From [2020] HKCFI 1553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 310 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1882 OF 2018)

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J U D G M E N T

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

1.  This court handed down judgment on 3 August 2022 ([2022] HKCA 1134) dismissing the applicant’s application to extend time to appeal against an order of DHCJ K.W. Lung given on 15 July 2020 in which he refused the applicant’s application for leave to apply for judicial review in respect of his non‑refoulement claim.

2.  The facts and issues in the application before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.  On 3 November 2022, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal. However, it was out of time even excluding the Summer Vacation (1 - 31 August) as specified in section 31(1) of the High Court Ordinance (Cap. 4), as section 24(2) of the Hong Kong Court of Final Appeal Ordinance (“HKCFAO”) (Cap. 484) stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from.

4.  However, under sections 24(5) and 24(6) of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period. In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party.

5.  In the present case, the applicant was late by more than 1 month which is substantial. However, no reasons for the delay were given in the Notice of Motion or in his supporting affirmation.

6.  Moreover, the applicant has not shown any merits in this intended application for leave to appeal to the Court of Final Appeal. He advanced the following in the Notice of Motion:

“Director of Immigration and Torture Claims Appeal Board dismissed my non-refoulement claim. The High Court and the Court of Appeal dismissed my leave to apply for judicial review. All this judgments are not good for me. I want to go to CFA.”

7.  In compliance with the directions of the Registrar of Civil Appeals made on 3 November 2022, the applicant lodged his written submissions on 17 November 2022. As it is appropriate to do so, the Notice of Motion is determined on paper without an oral hearing.

8.  In his written submissions, he repeated the statements in the Notice of Motion. He further claimed that he still faces the same problem in his home country; however, nobody in Hong Kong tried to understand his problem and they only want to send him back to his home country. He requested this court to allow him to go to the Court of Final Appeal.

9.  Section 22(1)(b) of the HKCFAO 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.

10.  Having regard to the judgment of this court, the applicant’s intended appeal has no merit at all. No question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

11.  Nor do we see any basis for granting leave under the “or otherwise” limb under section 22(1)(b).

12.  By reason of the above, the Notice of Motion filed on 3 November 2022 is dismissed.