RE ALIM ABDUL

CACV 498/2018

[2019] HKCA 1258

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 498 OF 2018

(ON APPEAL FROM HCAL NO. 875 of 2017)

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JUDGMENT

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

1.  On 10 April 2019, this Court (Chu and Au JJA) handed down our judgment[1] refusing the applicant’s application for relief from the sanction imposed by an unless order of the Court given on 4 January 2019. Consequent upon the applicant’s failure to comply with the unless order, his appeal against the decision of Deputy High Court Judge Bruno Chan given on 28 September 2018 was dismissed.

2.  On 5 September 2019, the applicant filed a Notice of Motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal. Despite the directions of the Registrar of Civil Appeals, the applicant has not lodged any written submission to support his application.

3.  Having considered the applicant’s notice of motion and affirmation, 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 his notice of motion.

4.  The facts of this case have been set out in our judgment. We will not repeat them here.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Section 24(5) further provides that the Court of Appeal may on such terms as it considers appropriate extend the time for making the application.

6.  The applicant’s notice of motion was late by more than seven months. For the reasons set out below, we are of the view that we should not extend the time for the applicant to apply for leave to appeal.

7.  First, the delay in question is rather serious. The applicant, however, has given no explanation at all.

8.  Second, and more importantly, the application for leave to appeal has no merits.  In the notice of motion, the applicant stated it was not true that there was no substance in his grounds of application, he did not complain the poor performance of the duty lawyer for fear of being picked out by the adjudicator for “misappropriating” and he did not have enough time to address the bundle. The applicant further stated in his affirmation that the Court was wrong to hold there was no state acquiescence or involvement, and also failed to find out the details of the current situation in Bangladesh. None of the points raised by the applicant involves any question of great general or public importance, as required by section 22(1)(b) of the Court of Final Appeal Ordinance. We also find no basis for granting leave on the “otherwise” limb under section 22(1)(b).  As the statutory requirements for giving leave to appeal are not met, it would be futile to extend the time for making the application for leave to appeal.

9.  Accordingly, we refuse to extend the time for applying for leave to appeal to the Court of Final Appeal. We dismiss the Notice of Motion.