RE MOHAMED CASSIM JAWFAR

CAMP 16/2020

[2022] HKCA 1412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 16 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 142 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 5 August 2020 ([2020] HKCA 633)  dismissing the applicant’s application to extend time to appeal from an order of DHCJ Bruno Chan (“the judge”)  given on 16 October 2019 in which the judge refused to give an extension of time for, and dismissed, the application for leave to apply for judicial review in respect of his non-refoulement claim.

2.  The facts and issues in that application, as well as the court’s reasons for dismissing it, have been set out in our judgment and will not be repeated here.

3.  On 8 December 2021, the applicant filed a Notice of Motion (mistakenly dated 8 December 2020)  for leave to appeal this court’s judgment to the Court of Final Appeal.  However, it was out of time, as s.24(2)  of 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.  

4.  However, under s.24(5)  and s.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 15 months.  In the Notice of Motion, he said he was late as he did not have money. That unparticularized allegation is not a good reason for the substantial delay.

6.  In any event, the applicant has not shown any merits in his intended application for leave to appeal to the Court of Final Appeal.  In the Notice of Motion, he said only that he could not go back to his country at the moment, he needed the help of the court and he wanted to save his life.  There was no attempt to challenge the reasons given by the court in our judgment.

7.  Pursuant to the directions of the Registrar of Civil Appeals made on 8 December 2021, the applicant should lodge his written submissions in support of the Notice of Motion on or before 22 December 2021.  He failed to do so.  The Registrar further directed that in the event the applicant failed to lodge his written submissions, he would be deemed to have abandoned his right to rely on written submissions, and the matter would be considered by the Court of Appeal based on the available materials.  This Notice of Motion is therefore determined on paper without an oral hearing, which we consider appropriate. 

8.  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.  Even assuming that the Notice of Motion had been filed in time or the delay could have been reasonably explained, the applicant’s intended appeal has no merit at all.  No question of great general or public importance has been identified as required by s.22(1)(b)  of the HKCFAO.    

10.  Nor do we see any basis for leave on the “or otherwise” limb under s.22(1)(b).

11.  By reason of the above, the Notice of Motion filed on 8 December 2021 is dismissed.