RE SHAN MUHAMMAD

CAMP 89/2021

[2022] HKCA 129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 89 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 350 OF 2017)

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J U D G M E N T

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

1.  On 22 December 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Chu and Au JJA) judgment of 22 November 2021 (“the Judgment”) ([2021] HKCA 1727). In the Judgment, we dismissed the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge Woodcock dated 15 December 2017 refusing to grant leave to the applicant to apply for judicial review.

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

4.  Further, pursuant to section 24(2) of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for filing the present application expired on 20 December 2021.  The applicant was therefore late for two days with his application for leave to appeal to the Court of Final Appeal.

5.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5) of the HKCFAO only if good and sufficient grounds are shown by the applicant.  In deciding whether there are such good grounds, the Court is entitled to take into account (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if an extension of time is granted; and (d) the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83, per Lam VP (as his Lordship then was) at [4] and the authorities cited therein.

6.  In his Notice of Motion, the applicant stated:

“THE DIRECTOR OF IMMIGRATION REJECTED MY NON-REFOULEMENT CLAIM. THE ADJUDICATOR OF TORTURE CLAIMS APPEAL BOARD TOO REJECTED MY CLAIM. THE HIGH COURT AND THE COURT OF APPEAL REFUSED MY LEAVE TO APPLY FOR JUDICIAL REVIEW. I WANT TO GO TO THE COURT OF FINAL APPEAL” (sic)

7.  In his affirmation in support dated 22 December 2021, he only stated:

“AFFIRMATION FOR APPLY OF NOTICE OF MOTION BUT OUT OF SCHEDULE TIME.” (sic)

8.  In our view, the applicant’s application is devoid of merits.  Not only did he fail to give any reason for his delay in bringing the present application, he also did not raise any ground of appeal or identify any specific error in the Judgment in his Notice of Motion or affirmation in support.

9.  Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

10.  For these reasons, the intended appeal has no merit at all.  We will not extend time for a hopeless appeal to be pursued.  Accordingly, the Notice of Motion filed on 22 December 2021 is dismissed.