RE AKTHER LIMA

CACV 532/2019

[2021] HKCA 24

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 532 OF 2019

(ON AN APPEAL FROM HCAL NO. 427 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 17 August 2020, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 13 November 2019 refusing her leave to apply for judicial review.     

2.  On 5 October 2020, the applicant filed a notice of motion together with two affirmations to apply for leave to appeal against our judgment to the Court of Final Appeal.  Despite directions given by the Registrar of Civil Appeals, she has not put in any written submission to support her application.

3.  Having considered the applicant’s notice of motion and affirmations, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Section 24(5) further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.  The applicant’s present application is late by about three weeks, which is not an insubstantial delay.  In one of her supporting affirmations, the applicant stated that she only received the judgment on 28 September 2020 and as she was unwell she did not leave home. She also explained that as she was uneducated and because of the Coronavirus situation and her language problem she had difficulty getting help promptly.  We note that there were no elaborations on why she could not have received the judgment earlier and what steps she had taken to seek help.  We do not consider the applicant has provided satisfactory explanation or good reason for her delay.

7.  As to the merits of the intended appeal to the Court of Final Appeal, 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.

8.  The notice of motion set out the following as grounds of appeal:

(1) It is not true that there is no substance in the grounds of application.

(2) On the strength of the grounds, no complaint was made about the poor performance of the duty lawyer because of fear of being picked out for misappropriating by the adjudicator.

(3) The applicant did not have enough time to address the bundle.

9.  The applicant’s affirmation set out two further grounds of appeal as follows:

(1) The Court was wrong in law in holding there was no state acquiescence or involvement.

(2) The Judges also failed to find out the details of the current situation of Bangladesh.

10.  The grounds contained in the notice of motion and the affirmation do not constitute proper grounds for granting leave to appeal to the Court of Final Appeal.  Importantly, they do not involve any question of great general or public importance, as required by section 22(1)(b).  Further, as pointed out in [17] of our judgment, the Judge struck out the applicant’s application on the ground of abuse of process because this was a second application made after the dismissal of an earlier application for leave to apply for judicial review against the same decision of the Board and on almost identical grounds.  The grounds for the intended appeal as set out in the notice of motion and supporting affirmation bear no relevance to the Judge’s reasons for his decision.  Neither the Judge’s decision nor this Court’s judgment had dealt with the appeal process before the Board, or state acquiescence or involvement or country conditions.        

11.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

12.  In conclusion, the statutory requirements for giving leave to appeal is not met.

13.  Having regard to the absence of good cause for the delay, and the lack of merits of the intended appeal, there is no basis for us to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.