Shove Sherpa v. The Director of Immigration

CACV 221/2018

[2020] HKCA 776

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 221 OF 2018

(ON APPEAL FROM HCAL NO. 6 OF 2014)

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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.By a judgment dated 26 August 2019 ([2019] HKCA 947) (“the Judgment”), this court (Hon Lam VP, Barma and Au JJA) dismissed the applicant’s appeal against the decision of Zervos J (“the Judge” as he then was) dated 31 May 2018 refusing leave to apply for judicial review.

2.The intended judicial review is to challenge the decision of the Director of Immigration (“the Director”) made on 1 December 2000 rejecting the applicant’s application for Verification of Eligibility for Permanent Identity Card (“VEPIC 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 filed the Notice of Motion (dated 10 December 2019) on 16 January 2020 to apply for leave to appeal against the Judgment to the Court of Final Appeal.  Under 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. The deadline for filing the present application expired on 23 September 2019. The applicant is therefore around four 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 White Book 2020, paragraph E2/24/1 and the authorities cited therein.

7.In the Notice of Motion, the applicant advanced the following grounds:

“1. I was born on 1981 in Hong Kong. Therefore where is my motherland.

2. Why all my fundamental right has been taken away, since Hong Kong is the human right country.

3. Chinese people born in ‘USA’, are treat extremely and utmost respect as American Chinese. And they are given all the equal opportunity right to enjoy (i.e.) The permanent residents ‘greencard’. If Chinese person either he/she those who were born in ‘USA’ and are been issued the deportation order. Then I don’t think so, that they will accept the consequence”. [sic]

8.On 21 May 2020, the Registrar of Civil Appeal directed that the applicant’s written submissions received by the court on 29 April 2020 did stand in light of the 2^nd general adjournment of court proceedings and that the respondent and the 1^st and 2^nd interested parties should submit the written submissions in opposition on or before 8 June 2020, which was further extended to 29 June 2020 upon the respondent and the interested parties’ request. They lodged the written submissions on 26 June 2020.  The applicant failed to lodge his written submissions in reply by 31 July 2020 as directed.  Further, the applicant requested respectively on 30 July 2020 and 6 August 2020 for his case to be adjourned pending his application for the Bar Association’s Free Legal Advice and such request was rejected by this Court on 24 August 2020.

9.In his written submissions, the applicant did not identify any errors in the Judgment.  Instead, he merely regurgitated his arguments against the Judge: he submitted that the Judge erred in holding that the categories under Article 24(2) of the Basic Law (“BL 24(2)”) were the exclusive source to acquire right of abode (“ROA”) since the Judge failed to consider the applicant’s ROA was carried forward by virtue of BL 160.  He again elaborated that the applicant’s previously acquired ROA was preserved and carried over after 1 July 1997 because (a) the non‑exhaustive wording in BL 24(1) in describing “Hong Kong residents”; (b) the BL’s objectives of preserving the previous way of life, and of ensuring smooth transition with minimum discontinuity; and (c) the sovereign and legislative facts such as the recognition of ROA by way of endorsement in the BNO passports and the enactment of paragraph 6 of schedule 1 to the Immigration Ordinance (Cap 115) (“the IO”)[1]. Further, he also argued that the Judge erred in dismissing the application on the ground of delay[2].

10.After considering the applicant’s Notice of Motion and his written submissions, we are of the view that the applicant has failed to show any good grounds for an extension of time to be granted.

11.First, the delay of four 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.

12.Second, the applicant has not provided any cogent explanations for the delay.  The applicant seemed to suggest that he was detained in Hei Ling Chau and thus he was unable to receive the Judgment on time.  However, as shown in the court record, the Judgment was sent to the applicant’s residential address on 26 August 2019.  Nevertheless, it was not until 21 November 2019 did the applicant write to the court that he wished to obtain the Judgment and provided an updated address.  By then he was already late in filing the Notice of Motion.  As this Court has repeatedly emphasized, it is the duty of litigants to give to the court a correct address at all times so that correspondence or notice from the court can come to their attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant: see Re Hasmi Rizwan Imran [2018] HKCA 439 at [15] and Caramat Virginia Lobeban v Torture Claims Appeal Board [2020] HKCA 668, per Kwan VP, at [10].  Hence, the applicant’s explanation would not justify the delay in filing the Notice of Motion.

13.Finally, the intended appeal to the Court of Final Appeal is clearly hopeless.  As mentioned before, the applicant simply repeated the grounds he advanced but failed before the Judge.  We have already dealt with these arguments in the Judgment.  At paragraph 37 of the Judgment, we agreed with the Judge that the ROA under BL 24(3) is only granted to the exhaustive list of Hong Kong permanent resident (“HKPR”) provided under BL 24(2).  Also at paragraphs 39 to 40, we rejected the applicant’s argument before the Judge that his ROA could be carried forward after 1 July 1997 without first obtaining HKPR under BL 24(2).  Furthermore, we dealt with the issue of delay and the transitional provision as prescribed at paragraph 6 of schedule 1 of the IO at paragraphs 41 to 42 of the Judgment.  The applicant has not identified any errors (let alone any particularised errors) in these conclusions.  These are not viable grounds of appeal, and the intended appeal has no prospect of success. It would be futile to extend time.

14.Further, and in any event, the applicant has 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.  Plainly, the statutory requirements under section 22(b) of the HKCFAO are not met.

15.Accordingly, we refuse to extend the time for the applicant to apply for leave to appeal, and dismiss the Notice of Motion with costs to the respondent and the 1^st and 2^nd interested parties, to be taxed if not agreed.

The applicant acted in person

Ms Jenny Cheung, Senior Government Counsel (Ag) of the Department of Justice, for the respondent and the 1^st and 2^nd interested parties