Case Document

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CAMP 53/2019

[2020] HKCA 338

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 53 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 103/2017)

________________________

RE:

MA

Applicant

________________________

Before:

Hon Lam VP, Barma and Au JJA in Court

Date of Written Submissions:	25 November 2019
Date of Judgment:	21 May 2020

________________________

J U D G M E N T

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

1.On 10 September 2019, the Court (Lam VP and Au JA) handed down a judgment ([2019] HKCA 1020) dismissing the applicant’s renewed application for leave to appeal out of time against the decision of Deputy High Court Judge Woodcock given on 29 September 2017.

2.About 6 weeks after the handing down of the judgment, the applicant filed a notice of motion on 23 October 2019 seeking leave to appeal to the Court of Final Appeal against it. In the notice, the applicant advanced the following grounds of appeal:

“ - The claims that the judgment has made stated is no substance in the grounds of the application is not true.

On the strength of the grounds not made a complain about the poor performance of his duty lawyer is du[e] of fearing he will be picked out for misappropriati[ng] by the adjudicator.

The applicant gently did not have enough time to addr[ess] the bundle. Rest of the grounds I will submit as soon as possible.” (sic)

3.In his affirmation filed on the same day, the applicant explained that he was uneducated with no knowledge about the court procedure. As a result, he needed more time to obtain advice and assistance from his friend.

4.In compliance with the directions of the Registrar of Civil Appeals, the applicant lodged his written submissions on 25 November 2019. After repeating the factual background of his case, he cited various international and local human right instruments, and quoted passages from a number of legal authorities. He submitted that high standard of fairness was required in determining a torture claim, and that there was minimum standard of procedural fairness in the decision-making process.

5.Pursuant to section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the Ordinance”), an appellant has 28 days from the date of the judgment to seek leave to appeal to the Court of Final Appeal. In the present case, the time for the applicant to seek leave to appeal against the judgment expired on 8 October 2019. The applicant was late for over 2 weeks.

6.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, see: section 24(5) of the Ordinance. See also: 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.

7.The delay of over 2 weeks is not insubstantial. Ignorance of law cannot be a reasonable excuse for the delay: see Re Qadir Sher [2018] HKCA 972.

8.More importantly, we do not find any merits (let alone good and sufficient ground) in this application. First of all, at [20] – [23] of the judgment, the Court explained why the applicant’s intended appeal had no prospect of success. In this application, the applicant failed to engage with the Court’s reasons in dismissing his summons. He has not pinpointed any error in the judgment.

9.Secondly, the applicant had never hitherto raised complaints regarding the performance of the duty lawyer and the delivery of the bundle. It is not open to the applicant to raise fresh fact and evidence sensitive grounds on appeal: see Ageas Insurance Co (Asia) Ltd v Lam Hau Wah Inneo CACV 65/2014, unreported, 19 May 2015, at [7] ‑ [9]; and The Law Society of Hong Kong v A Solicitor CACV 78/2014, unreported, 10 July 2015, at [4] ‑ [7].

10.Finally, the applicant did not raise any question of great general or public importance. There is no basis to grant leave on the “or otherwise” limb. The statutory criterion for granting leave to appeal to the Court of Final Appeal is not met: section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484).

11.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.