RE NAHID MOHAMMAD

CAMP 309/2019

[2021] HKCA 798

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 309 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 1006 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 2 September 2020, this Court (Cheung and Au JJA) handed down our judgment (“the Judgment”) [2020] HKCA 735, refusing to extend time to the applicant to appeal against the decision of Deputy High Court Bruno Chan (“the Deputy Judge”) given on 28 June 2019 ([2019] HKCFI 1069) (“the Deputy Judge’s Decision”).

2.  We dismissed the applicant’s summons on the basis that the applicant’s failure to disclose a previous unsuccessful judicial review application before the Deputy Judge amounted to an abuse of process and thus his intended appeal ought to be struck out.  In any event, the applicant failed to advance any viable grounds of appeal against the Deputy Judge’s Decision.

3.  The applicant filed the Notice of Motion and a supporting affirmation on 7 December 2020 to apply for leave to appeal against the Judgment to the Court of Final Appeal.  He failed to lodge his written submissions as directed by the Registrar of Civil Appeals on 8 December 2020.  Pursuant to section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“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 30 September 2020.  The applicant is therefore more than two months out of time.

4.  The facts and issues in the appeal, as well as the 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 papers pursuant to paragraph 3 of Practice Direction 2.1.

5.  Under section 22(1)(b) of the HKCFAO, leave to appeal to the Court of Final Appeal will only 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.

6.  Further, 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.  See: Re Villano Maricar Tabita [2020] HKCA 998; Full Wisdom Holdings Ltd v Traffic Stream Infrastructure Co Ltd CACV 266/2003, 27 July 2004; Bowlstar (HK) Ltd v Ho Kwai Po CACV 156/2006, 10 July 2007; Elijah Saatori v Raffles Medical Group CACV 109/2008, 11 March 2009; and Tsit Wing (Hong Kong) Company Limited & Others v TWG Tea Company Pte Ltd & Another (unreported) CACV 191/2013, 29 January 2015.

7.  For the following reasons, the applicant has failed to show good grounds for an extension of time to be granted.

8.  The delay of more than two months is significant and the applicant failed to provide any explanations.  Further, we are of the view that the proposed grounds of appeal are without merits.

9.  In the Notice of Motion, the applicant advanced the following grounds of appeal:

“THE HIGH COURT AND THE COURT OF APPEAL REFUSED MY JUDICIAL REVIEW. I HAVE NO WAY EXCEPT GOING TO COURT OF FINAL APPEAL. I HAVE NO WAN TO RETURN BANGLADESH. IF I RETURN MY ENEMY WILL KILL ME. MAY BE THE COURT OF FINAL APPEAL WILL GRANT ME LEAVE” [sic]

10.  Neither the Notice of Motion nor the supporting affirmation pinpointed any specific errors of the Judgment.  Plainly, there are no viable grounds of appeal against the Judgment, and the intended appeal has no prospect of success.  It would be futile to extend time.

11.  In any event, the applicant has failed to identify any question of great general or public importance that ought to be submitted to the Court of Final Appeal for decision.  Nor do we see any basis to grant leave on the “otherwise” limb. The statutory requirements under section 22(b) of the HKCFAO are not met.

12.  Accordingly, we refuse to extend the time for the applicant to apply for leave to appeal to the Court of Final Appeal, and dismiss the Notice of Motion.