Re Shaekh Sagor

CACV 161/2018

[2021] HKCA 539

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 161 OF 2018

(ON APPEAL FROM HCAL NO. 651 OF 2017)

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Before : Hon Kwan VP, Cheung and Chu JJA in Court

Date of Decision : 21 April 2021

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

I. Leave to appeal

1.1This is the applicant’s notice of motion for leave to appeal to the Court of Final Appeal out of time against the judgment of this Court (Cheung CJHC, Cheung and Kwan JJA) handed down on 13 August 2018 ([2018] HKCA 506).  In that judgment we dismissed his appeal against the decision of Deputy High Court Judge Josiah Lam on 9 May 2018 ([2018] HKCFI 993) refusing him leave to apply for judicial review concerning his non-refoulement claim.  The applicant filed his notice of motion on 9 March 2021 for leave to appeal out of time to the Court of Final Appeal.  He was over 2 years late.

1.2The Registrar of Civil Appeals directed on 10 March 2021 that the notice of motion shall be determined on paper only without an oral hearing unless otherwise directed.  The applicant did not lodge his written submissions as directed by the stipulated time. Having considered his papers, we consider it appropriate to determine this application on paper and will proceed to do so.

II.  The applicant’s grounds

2.1The applicant stated in the notice of motion that :

‘ As the High Court Judges refused my application for leave to apply for judicial review and I have no way to return to my country Bangladesh. I want to go to the Court of Final Appeal.’

2.2The applicant stated in his supporting affirmation that he did not get any decision of the Court which explains his lateness in applying to the Court of Final Appeal.

III.  Analysis

3.1Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484), an 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.  Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making an application for leave to appeal.

3.2Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal, 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.

3.3In the present application, the applicant is more than two years late in lodging his application.  This is a substantial delay.  The relevant factors in considering whether an extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re  Rajaram Razeena [2019] HKCA 959 at paragraph 1.4).

3.4The applicant stated that the reason he was late in filing his notice of motion was because he did not get any decision from the Court.  This is a bare allegation without any elaboration of how he eventually came to know our decision.  The decision was sent to the address given by the applicant on his notice of appeal.  It is the duty of the litigant to give the Court an address which notice can come to his attention in a timely manner.  This responsibility falls squarely on the applicant : Re  Hasmi Rizwan Imran [2018] HKCA 439 at paragraph 15.  Further, the decision has been published.

3.5In any event, the applicant has not shown any merits in his intended application for leave to appeal to the Court of Final Appeal.  His grounds of appeal are bare assertions.  He has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b).  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b). 

3.6For the above reasons, we decline to grant an extension of time to the applicant to apply for leave to appeal to the Court of Final Appeal and dismiss the notice of motion filed on 9 March 2021.

Applicant, unrepresented, acting in person