Re Hasmi Rizwan Imran

CACV 79/2018

[2020] HKCA 794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 79 OF 2018

(ON APPEAL FROM HCAL 706/2017)

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Before:  Hon Lam VP, Barma and Au JJA in Court

Date of Judgment:  30 September 2020

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JUDGMENT

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

1.On 18 August 2020, the Applicant applied by a Notice of Motion for leave to appeal to the Court of Final Appeal (“CFA”) against this Court’s judgment of 26 July 2018. In that judgment, we refused leave to appeal, and struck out and dismissed the Applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) on 16 March 2018.

2.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 of the Court of Appeal to seek leave to appeal to the CFA against it.  In the present case, taking account of summer vacation, the time for the Applicant to seek leave to appeal against the judgment expired in September 2018.  The applicant was late for almost 2 years.  

3.As the Applicant did not apply for leave to appeal to the CFA 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.

4.The delay of the Applicant is very serious and he did not provide any explanation for the same. He had notice of the judgment of 26 July 2018 as he filed a Notice of Intended Application for leave to appeal on 17 August 2018.  However, he did not take the application further until he filed the Notice of Motion on 18 August 2020.

5.Section 22(1)(b) of the Ordinance 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.

6.In his Notice of Motion, the Applicant stated that he strongly believed there is a direct threat to himself if he were to return to Pakistan, and that all the information provided on his case was not looked into properly or considered properly.

7.Notwithstanding the acknowledgment by the Applicant on 18 August 2020 of the requirement under Practice Direction 2.1 and the direction of the Registrar of Civil Appeals of 19 August 2020, the Applicant has not lodged any written submissions in support of this application.

8.We are of the view that the Applicant has not raised any reasonably arguable ground of appeal on the merit of his claim, or any discernible or arguable ground for disturbing our judgment.

9.Though it has recently been held by the CFA in H v Director of Immigration [2020] HKCFA 22 that an applicant did not need Section 14AA[1] leave to appeal to this Court in respect of a refusal of extension of time to bring an application for leave to judicial review, and technically an appeal can be brought to this Court by way of appeal out of time, it cannot assist the Applicant in this instance because:

(a)  The present application is made in respect of our judgment on refusal of Section 14AA leave and it serves no purpose for an appeal to the CFA regarding such refusal of leave.  The reversal of our decision on Section 14AA leave would not automatically lead to success in his appeal against the Judge’s decision of 16 March 2018.  To achieve that he needs to bring an appeal to this Court;

(b)  Due to lapse of time, the Applicant needs an extension of time to bring an appeal to this Court and if he made such application, the Court will have regard to the merits of his intended appeal in deciding if extension should be granted;

(c)  Having regard to our views on the lack of merit in his intended appeal as set out at [16] to [27] of our judgment of 26 July 2018, the Court will not grant extension of time for a futile appeal to be brought.

10.In the circumstances, we do not consider that there is any question of great general or public importance or otherwise which ought to be submitted to the CFA for determination. 

11.For these reasons, we refuse to grant extension of time to the Applicant to seek leave to appeal to the CFA.  We dismiss the Applicant’s Notice of Motion accordingly.

The applicant acting in person