RE MOTAHAR HOSSEN alias TITU alias MONIR ALI ALIAS ALI MONIR

CACV 430/2019

[2020] HKCA 819

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 430 OF 2019

(ON APPEAL FROM HCAL NO 1717 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  On 3 July 2020, the applicant applied by Notice of Motion for leave to appeal to the Court of Final Appeal (“CFA”) against this Court’s (Au JA and ST Poon J) judgment of 21 May 2020 (“the Judgment”) [2020] HKCA 333.

2.  In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung on 5 September 2019 [2019] HKCFI 2190 refusing leave to apply for judicial review.

3.  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, pursuant to paragraph 3 of Practice Direction 2.1, we see no reason to deviate from the usual practice and proceed to consider this application without an oral hearing.

4.  Pursuant to section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the HKCFAO”), the present 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 18 June 2020.  The applicant is therefore 15 days out of time.

5.  As the applicant did not apply for leave to appeal to the CFA 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: Hong Kong White Book 2020, paragraph E2/24/1 and the authorities cited therein.

6.  In considering the merits of this application, section 22(1)(b) of the HKCFAO provides that an appeal shall lie to the CFA at the discretion of this Court or the CFA 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 CFA for decision.

7.  In the applicant’s Notice of Motion and supporting affirmation filed on the same date, he simply stated that he was dissatisfied with the Judgment and that he requested an extension of time to appeal the Judgment.  He did not provide any explanation for the delay or any grounds of appeal against the Judgment. Further, he did not lodge his written submissions as directed by the Registrar of Civil Appeals on 6 July 2020.

8.  There are therefore no viable grounds of appeal, and the intended appeal clearly has no merits.  It would be futile to extend time.

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

10.  For these reasons, we refuse to grant extension of time for the applicant to apply for leave to appeal, and dismiss the applicant’s Notice of Motion accordingly.