RE EHSAN UL HAQ alias HAQ UL EHSAN

CAMP 44/2022, [2023] HKCA 1343

On appeal from [2020] HKCFI 2875

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 44 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2921 OF 2018)

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J U D G M E N T

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

1.  On 11 March 2022, this court handed down our judgment ([2022] HKCA 365) dismissing the applicant’s application to extend time to appeal the decision of Deputy High Court Judge P Li given on 12 November 2020 refusing his application for leave to apply for judicial review in respect of his non‑refoulement claim.

2.  On 24 October 2023, the applicant filed a Notice of Motion together with an affirmation to apply for leave to appeal this court’s judgment to the Court of Final Appeal. The applicant has also lodged a written submission in support of his application.

3.  Having considered the applicant’s Notice of Motion, affirmation and written submission, 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 the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment. We will not repeat them.

5.  The applicant’s Notice of Motion is late by more than 18 months, as section 24(2) of the Hong Kong Court of Final Appeal Ordinance 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.

6.  Under sections 24(5) and 24(6) of the Hong Kong Court of Final Appeal Ordinance, the Court of Appeal has a discretion to extend the appeal period. In the exercise of our discretion whether or not to extend the appeal period, we would 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.

7.  The applicant explained in his affirmation that he had been detained by the Immigration Department and he had no chance to make an application. He has however not provided any details of his detention and when he was released. We are not satisfied that he has satisfactorily explained the serious delay.

8.  As to the merits of the intended appeal, section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance 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.

9.  The Notice of Motion only stated that the applicant wished to appeal to the Court of Final Appeal, but did not set out any ground in support of the application. The written submission stated that the applicant was threatened by the people of certain foreign agency in his country, and that he came to Hong Kong in order to save his life.

10.  What was stated in the Notice of Motion and the written submission do not amount to viable grounds for giving leave to appeal. Importantly, no question of great general or public importance has been identified as required by section 22(1)(b) of the Ordinance. Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

11.  As the statutory requirements for giving leave to appeal are not met, it would be futile to extend the time to apply for leave to appeal. Accordingly, we refuse to extend the time for making the application and dismiss the Notice of Motion.