RE BALJINDER SINGH

CACV 290/2021

[2022] HKCA 162

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 290 OF 2021

(ON APPEAL FROM HCAL NO 1035 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 13 December 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal (“the CFA”) against this Court’s (Au JA and Lisa Wong J) judgment of 20 October 2021 (“the Judgment”) ([2021] HKCA 1539). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 25 May 2021, by which the Deputy Judge refused to grant extension of time to the applicant for his application for leave to apply for judicial review, and further dismissed his application for leave to apply for judicial review ([2021] HKCFI 1485).

2.  The facts and issues in the appeal, as well as this 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 paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“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.

4.  Further, pursuant to section 24(2) of 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 17 November 2021.  The applicant was therefore late for almost one month with his application for leave to appeal to the CFA.

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: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83, per Lam VP (as his Lordship then was) at [4] and the authorities cited therein.

6.  In his Notice of Motion, the applicant stated:

“THE HIGH COURT DISMISSED MY LEAVE TO APPLY FOR JUDICIAL REVIEW, WHICH JUDICIAL REVIEW I MADE AGAINST THE TORTURE CLAIMS APPEAL BOARD AND DIRECTOR OF IMMIGRATION. AFTER DISMISSAL FROM THE HIGH COURT I CAME TO THE COURT OF APPEAL THE COURT OF APPEAL TO DISMISSED MY APPLICATION. NOW I WANT TO GO TO THE COURT OF FINAL APPEAL.” (sic)

7.  In his supporting affirmation dated 13 December 2021, he only stated:

“AFFIRMATION FOR APPLY FOR NOTICE OF MOTION BUT I WAS LATE. PLEASE GIVE ME PERMISSION.” (sic)

8.  Contrary to Practice Direction 2.1, the applicant failed to lodge any written submissions in support of the present application.

9.  In our view, the applicant’s application is devoid of merits.  Not only did he fail to give any reason for his substantial delay of almost one month before bringing the present application, he also failed to raise any ground of appeal or identify any specific error in the Judgment in his Notice of Motion or supporting affirmation.

10.  Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

11.  For these reasons, the intended appeal has no merit at all.  We will not extend time for a hopeless appeal to be pursued.  Accordingly, the Notice of Motion filed on 13 December 2021 is dismissed.