RE HABIB MUHAMMAD

CAMP 202/2019

[2020] HKCA 634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 202 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 1158 OF 2017)

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JUDGMENT

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

1.  This court (Hon Yuen and Barma JJA) handed down judgment on 10 January 2020 ([2020] HKCA 34) dismissing the applicant’s application to extend time to appeal an order of DHCJ Josiah Lam (“the Judge”) given on 30 July 2018 refusing to give leave for judicial review in respect of his non‑refoulement claim. The applicant had taken out a summons on 11 September 2018 for extension of time to appeal, which the Judge dismissed on 9 August 2019. The facts and issues in the appeal before the Court of Appeal, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

2.  Under the rules, the deadline for the applicant to file a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal was 28 days from our judgment of 10 January 2020 (i.e. 7 February 2020).  The applicant subsequently filed his Notice of Motion on 12 May 2020.  He stated in his affirmation filed on the same day that his filing was out of time because the court was closed and he had come several times for filing of the Notice of Motion. 

3.  As the appeals registry was closed from 29 January 2020 to 3 May 2020 due to the public health situation in Hong Kong, we shall deduct this period from the calculation of time, with the result that his Notice of Motion was filed on time.

4.  However, the applicant did not comply with the directions given by the Registrar of Civil Appeals on 20 May 2020 to file written submissions by 26 May 2020, nor did he comply with the Unless Order given by the Registrar of Civil Appeals on 27 May 2020 which extended the time for him to file written submissions by 12 June 2020.  As explained in the Unless Order, the applicant is consequently debarred from lodging any written submissions, and this Notice of Motion is therefore determined on paper without an oral hearing, which we consider appropriate.     

5.  In the applicant’s Notice of Motion, he complained that the Determination (presumably meaning the 2018 Decision as defined in para. 2 of our Judgment) was not translated or read back to him, and he had been deprived of the chance to put forward his grounds in his own language.  We have dealt with this complaint in para.18 of our Judgment and will not repeat it here.

6.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) provides that leave to appeal to the Court of Final Appeal may be granted at the discretion of the Court of Appeal or the Court of Final Appeal if the question involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal. 

7.  No question of great general or public importance has been identified in the Notice of Motion. 

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

9.  By reason of the above, the Notice of Motion filed on 12 May 2020 is dismissed.