Re Suyati

CAMP 76/2019

[2019] HKCA 1447

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 76 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 211 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.On 5 September 2019, this Court (Cheung and Chu JJA) handed down our judgment[1] refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Josiah Lam given on 24 September 2018 refusing her leave to apply for judicial review.     

2.On 7 November 2019, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  Despite the directions given by the Registrar of Civil Appeals, the applicant has not put in a written submission to support his application.

3.Having considered the applicant’s notice of motion and affirmation, 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 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.  Under section 24(6), this Court may extend the time for making the application.

6.In the present case, the applicant’s notice of motion was more than one month late.  The delay is not insubstantial.  The applicant has given no explanation for the delay.    

7.As to the merits of the intended appeal, under section 22(1)(b) of the Court of Final Appeal Ordinance, 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.In the notice of motion, the applicant stated that: (1) it was not true that there was no substance in her grounds of application, (2) she did not complain about the poor performance of the duty lawyer for fear of being picked out by the adjudicator for “misappropriating”, and (3) she did not have enough time to address the bundle.  The applicant further stated in her affirmation that: (1) the Court was wrong to hold that there was no state acquiescence or involvement, and (2) the Court failed to find out the details of the current situation in Indonesia.

9.The grounds advanced in the notice of motion and the affirmation do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  Firstly, they relate only to the circumstances of the applicant and her claim, and do not involve any question of great general or public importance, as required by section 22(1)(b). Secondly, we had pointed out in [14] of our judgment that state acquiescence or involvement was not raised before the Judge and there was no mention of this in the Judge’s reasons.  There is therefore no basis for the argument that the Judge erred in finding there was no state acquiescence or involvement. Thirdly, the matters put forward in the notice of motion and the issue about country of origin condition were also not raised in the Form 86 or supporting affirmation or in the application for leave to appeal out of time.  It is not open to the applicant to raise these new points in the application for leave to appeal.  They are in any event general assertions wholly lacking in particulars.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.In the circumstances, the intended application for leave to appeal has no prospect of success.  It would be futile to extend the time for making the application.  Accordingly, we refuse to extend the time for the applicant to apply for leave to appeal, and dismiss the Notice of Motion.  

The applicant, unrepresented, acted in person.