RE SHAH QADEER HUSSAIN

CAMP 139/2021

[2023] HKCA 190

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 139 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 686 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 18 March 2022 ([2022] HKCA 400)  dismissing the applicant’s application to extend time to appeal against an order of DHCJ Bruno Chan given on 9 September 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 17 May 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, 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.  The last day for filing the Notice of Motion expired on 19 April 2022. 

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 4 weeks which is substantial.  He explained in the supporting affirmation that the delay was “due to lack of knowledge and insufficient sources”.  It is trite that ignorance of law is no excuse and there are no grounds for the allegation of lack of resources for filing of the notice of motion.  Thus we do not consider that the applicant has provided good reasons for the substantial delay.

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

“Respected Sir/Madam, I am late for apply due to lack of knowledge and insufficient sources. Please accept my filling (sic)  application so that I can process my case further. I hope I will get your favour.”

7.  In compliance with the directions of the Registrar of Civil Appeals given on 17 May 2022, the applicant lodged his written submissions on 23 May 2022.  This Notice of Motion is determined on paper without an oral hearing, which we consider appropriate.

8.  In his written submissions, he advanced the following grounds:

(1)  Many aspects of his case were ignored and all the decisions were not transparent.  The actual situation of his country is different from what the decision-makers might think.

(2)  It is dangerous for him to return to his home country as his enemies are waiting for him.

(3)  The police and law authorities are corrupt and assistance would only be rendered to those who are powerful and rich.

(4)  He urged the court to help him stay in Hong Kong until his problem is solved.

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 17 May 2022 is dismissed.