Hounkpedji Messanh v. Torture Claims Appeal Board

CACV 164/2017

[2018] HKCA 734

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 164 OF 2017

(ON APPEAL FROM HCAL 105/2017)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.By a judgment dated 16 March 2018, this court (Cheung CJHC and Lam VP) dismissed the applicant’s appeal from the decision of Chung J dated 7 July 2017 refusing him leave to apply for judicial review.

2.From that judgment, the applicant now seeks leave to appeal to the Court of Final Appeal on the ground, which was also said to be a matter of great general and public importance, that the high standards of fairness as laid down by the courts rendered the applicant to be entitled of free legal representation in the appeal before the Torture Claims Appeal Board.

3.Mr Sutherland, counsel for the applicant, lodged his submissions on 24 August 2018.  In the submissions, counsel argued that the lack of legal representation in the appeal before the board was not in accordance with the high standards of fairness as prescribed by the Court of Final Appeal in Saktevel Prabakar v Secretary of Justice (2004) 7 HKCFAR 187 and by the Court of First Instance in FB v Directory of Immigration [2009] 2 HKRD 346.

4.As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, good and sufficient ground must be shown by the applicant before the court will exercise its discretion to grant an extension of time for him to do so: section 24(5) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), see: Full Wisdom Holdings Ltd v Traffic Stream Infrastructure Co Ltd CACV 266/2003, 27 July 2004; Bowlstar (HK) Ltd v Ho Kwai Po CACV 156/2006, 10 July 2007, Elijah Saatori v Raffles Medical Group CACV 109/2008, 11 March 2009, and Tsit Wing (Hong Kong) Company Limited & Others v TWG Tea Company Pte Ltd & Another (unreported) CACV 191/2013, 29 January 2015. 

5.Surprisingly, Mr Sutherland did not advance any submission to support the applicant’s case on seeking an extension of time for the applicant to seek leave to appeal to the Court of Final Appeal.

6.The applicant was late by almost 4 months in seeking leave to appeal to the Court of Final Appeal.  The delay is significant. 

7.The applicant explained in his Affidavit dated 8 August 2018 that “[i]n view of the complexity of my case, I needed legal advice before taking any further steps”.  We do not accept that that is a reasonable excuse for the delay.

8.On his own admission, the applicant was aware of the time limit for making this application.

9.Previously, he had been able to lodge the application for judicial review in the court below and his subsequent appeal to this Court on his own. He had also raised the argument on legal representation in his documents lodged previously. We are not persuaded that he could not have brought an application for leave to appeal within the prescribed time.  

10.The argument on legal representation has been addressed at [12] of our main judgment. Mr Sutherland’s submissions failed to persuade us that it is reasonably arguable that we are wrong in that regard. 

11.Nor did Mr Sutherland identify any matters that would allow us to grant leave on the “otherwise” limb under section 22(1)(b). We do not see any basis for us to do so either.

12.For these reasons, we refuse to extend time for the applicant to seek leave to appeal to the Court of Final Appeal, and dismiss the application for leave accordingly.

Mr Mark R C Sutherland, instructed by T H Koo & Associates for the applicant