RE LAMA BIKASH

CAMP 109/2019

[2021] HKCA 136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 109 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 247 OF 2018)

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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 9 June 2020, this Court (Cheung and Au JJA) handed down our judgment (“the Judgment”) [2020] HKCA 450, refusing to give extension of time to the applicant to appeal against the decision of Deputy High Court Judge Bruno Chan given on 25 January 2019 ([2019] HKCFI 79) (“the Deputy Judge’s Decision”).

2.  We dismissed the applicant’s summons on the basis that he failed to provide any explanation for his delay and, in any event, the intended grounds of appeal contained no viable grounds of appeal against the Deputy Judge’s Decision.

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.  The applicant first filed a notice of intended application for leave to appeal on 24 June 2020 and then filed the Notice of Motion and a supporting affirmation on 16 October 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 19 October 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 6 July 2020.  The applicant is therefore more than two months out of time.

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: Hong Kong Civil Procedure 2021, Vol 2, paragraph E2/24/1 and the authorities cited therein.

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 a significant one, in particular when considered in the context that the statutory period for the Notice of Motion to be filed is by itself only 28 days.

9.  Further, the grounds in the applicant’s Notice of Motion are hopelessly without merits. He simply stated that his late filing was due to lack of knowledge and insufficient sources.  The same is repeated verbatim in his supporting affirmation.  Nevertheless, this is not a satisfactory explanation for his delay, as it lacked specifics and without documentary proof.  Meanwhile, he also did not provide any grounds of appeal against the Judgment.

10.  In the premises, there is plainly no viable grounds of appeal, and the intended appeal has no prospect of success. It would be futile to extend time.

11.  In any event, the applicant 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.