RE MD WAHID

CACV 128/2019

[2022] HKCA 631

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 128 OF 2019

(ON APPEAL FROM HCAL 1560 OF 2018)

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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 7 February 2022, the applicant filed a Notice of Motion and a supporting affirmation to apply for leave to appeal out of time to the Court of Final Appeal against this Court’s (Cheung, Chu and Au JJA)  judgment of 19 September 2019 (“the Judgment”)  ([2019] HKCA 1056). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 8 March 2019 refusing the applicant’s application for leave to apply for judicial review ([2019] HKCFI 551).

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 17 October 2019.  The applicant was therefore late for almost two years and four months 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 at [4] and the authorities cited therein.

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

“Detailed grounds of this appeal will be submitted at a later stage. Justice has been erred in concluding that there was no failure to adhere to a high standard of fairness at Common law, there are minimum standard of procedural fairness required in decision making process. The decision maker is under a duty to act fairly. The Learned Judge failed to make sufficient enquiry before finalizing the decision. The Learned Judge concluded that the applicant’s grounds for leave to apply for Judicial Review or both the decisions of the Immigration department and adjudicator were very broad and vague without advising and/or inviting the applicant for further elaboration. The Board did not take into consideration the risk of harm to the applicant, rather found the applicant’s account implausible and unreliable and that the only reason to travel to Hong Kong was to flee Bangladesh due to political unrest and the threats complained was localized, the board did consider the political threat, how can a person live in a country with constant threat and fear, especially when one is persecuted on political grounds.” [sic]

7.  In his affirmation in support dated 7 February 2022, the applicant only stated:

“Late filing as I was not aware that it was not filed.” [sic]

8.  Contrary to Practice Direction 2.1 and the directions made by the Registrar of Civil Appeals on 7 February 2022, the applicant did not lodge any skeleton submissions in support of his application.

9.  In our view, a delay of two years and four months is extremely excessive and the applicant failed to provide any reason, let alone any good reason, for his inordinate and inexcusable delay.  More importantly, his intended appeal has no merit at all.  The matters raised in his Notice of Motion are all general and bare allegations without any specific particulars or explanation.  The applicant has also failed to identify any specific error in the Judgment with particulars.  Clearly, his arguments do not constitute proper grounds of appeal.

10.  In any event, the matters raised in his Notice of Motion are essentially a mere regurgitation of those submissions he previously made before this Court: see [14] of the Judgment.  It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014)  at [2] and [3].  His arguments had already been fully considered and rejected by this Court at [15] - [19] of the Judgment and the applicant failed to identify with specific particulars any error in the Judgment.  As such, nothing set out in the Notice of Motion can be construed as viable ground of appeal to the Court of Final Appeal.

11.  Further, even taking the applicant’s arguments at the highest, his contentions are still fact-specific and do not relate to any question of great general or public importance.

12.  Accordingly, the applicant has also 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.

13.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him extension of time to pursue a hopeless appeal.  Accordingly, we dismiss the Notice of Motion filed on 7 February 2022.