RE ADUMEKWE ROWLAND EJIKE

CAMP 24/2019

[2020] HKCA 121

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 24 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 924/2017)

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JUDGMENT

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

1.  On 28 June 2019, the Court (Lam VP and Barma JA) handed down a judgment ([2019] HKCA 702) refusing leave for the applicant to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 7 September 2018 ([2018] HKCFI 1970) out of time. In the latter decision, the Judge refused leave for the application to apply for judicial review.

2.  Over 3 months after the handing down of the judgment, the applicant filed a notice of motion on 3 October 2019 seeking leave to appeal to the Court of Final Appeal against the Court’s judgment.  The applicant put forth the following matters in the notice of motion:

(a)  The delay was due to his current “ailment”, which was attributed to “spiritual and emotional attack”.  The “ailment” was said to have affected the applicant’s memory in respect of dates and appointment.  It might also lead to Alzheimer's disease.

(b)  The Adjudicator erred in law in rejecting the applicant’s claim simply based on the lack of evidence.

3.  The applicant filed an affidavit dated 3 October 2019 in support of this application.  It was exhibited thereto a document entitled “Letter of Attestation” by a Rev Gervais Baudry of St Peter and Paul Church stating that the applicant’s past experiences had affected him spiritually and emotionally.

4.  Notwithstanding that he was directed to do so, the applicant did not lodge any written submission in support of this application.

5.  Pursuant to section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the Ordinance”), an appellant has 28 days from the date of the judgment to seek leave to appeal to the Court of Final Appeal against it.  In the present case, the time for the applicant to seek leave to appeal against the judgment expired on 26 July 2019.  The applicant was late for over 2 months. 

6.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, good and sufficient ground must be shown by the applicant before the court will exercise its discretion to grant an extension of time for him to do so, see: section 24(5) of the Ordinance.  See also: Full Wisdom Holdings Ltd v Traffic Stream Infrastructure Co Ltd CACV 266/2003, 27 July 2004; Bowlstar (HK) Ltd v Ho Kwai Po CACV 156/2006, 10 July 2007; Elijah Saatori v Raffles Medical Group CACV 109/2008, 11 March 2009; and Tsit Wing (Hong Kong) Company Limited & Others v TWG Tea Company Pte Ltd & Another CACV 191/2013, 29 January 2015.

7.  The delay of over 2 months is substantial.

8.  In absence of any medical proof, we are not able to accept that the delay was due to medical condition as described by the applicant.  We do not accept that the delay was excusable.

9.  At [21] of the judgment, the Court found that the applicant’s delay in seeking leave to appeal was both substantial and inexcusable.  At [22], it was further explained that the intended appeal had no prospect of success.  In this application, the applicant failed to engage with the Court’s reasoning.  The applicant fails to pinpoint anything with cogency that the Court was wrong in these conclusions.

10.  In the circumstances, the applicant fails to put forward any ground of substance meriting the submission to the Court of Final Appeal for consideration.

11.  In our view, the applicant did not raise any question of great general or public importance. There is no basis to grant leave on the “or otherwise” limb.  The statutory criterion for granting leave to appeal to the Court of Final Appeal is not met: section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484).

12.  There is no good ground in this application that justifies the exercise of our discretion to grant an extension of time to appeal to the Court of Final Appeal.

13.  For these reasons, we refuse to extend time for the applicant to seek leave to appeal to the Court of Final Appeal.  The notice of motion filed on 3 October 2019 is dismissed accordingly.