Re Amrik Singh and Another

CAMP 134/2020

[2021] HKCA 784

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 134 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 838 of 2017)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Chu JA giving the Judgment of the Court:

1.On 16 March 2021, this Court (Chu and Au JJA) handed down our judgment[1] refusing to give leave to the 1^st and 2^nd applicants to appeal out of time against the decision of Campbell-Moffat J given on 19 December 2018 refusing their and their son’s application for leave to apply for judicial review.    

2.On 11 May 2021, the applicants filed a notice of motion and an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  They also put in a written submission on 24 May 2021 to support their application, pursuant to the directions given by the Registrar of Civil Appeals.

3.Having considered the applicants’ notice of motion, affirmation and written submission, 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 applicants’ application on the basis of the documents in the case.

4.Section 24(2) of the Hong Kong 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(5), the Court of Appeal may extend the time for the filing of the notice of motion.  Generally, the court will only extend the time when satisfied that there is good cause for doing so.

5.The applicants’ application is late by one month.  It is not insubstantial.  The applicants had given no explanation for their delay.  They merely requested in their affirmation that they be allowed to appeal even though they were out of time.  No good reason has been shown for the delay.    

6.We turn next to consider the merits of the application.  The background to this case and the applicants’ claim have been set out in our judgment.  We will not repeat them.

7.Under section 22(1)(b) of the Hong Kong 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.The notice of motion only stated that the applicants wished to be permitted to appeal to the Court of Final Appeal, but contained no proposed grounds of appeal.

9.In their written submission, the applicants reiterated that the leaders in their society do not accept their inter-caste marriage, and they are regarded as having sinned and broken the social law.  They stated that their three children, who were born in Hong Kong, were regarded as illegitimate children and had no rights under their social norms.  It was said that it was not possible for them to return to India as all five of them risked being killed by the leaders of their society. 

10.The matters stated in the applicants’ written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  They relate solely to the circumstances of the applicants and their family, and do not involve any question of great general or public importance, as required by section 22(1)(b).  Further, as pointed out in [24] and [25] of our judgment, the applicants have not identified any error in the judge’s reasons for refusing their application for leave to bring judicial review, or advanced any substantial or proper ground for challenging the judge’s decision.  Their intended appeal therefore has no reasonable prospect of success and it would be futile to extend the time for appealing the judge’s decision.   

11.We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

12.As the statutory requirements for giving leave to appeal are not met, the application for leave to appeal to the Court of Final Appeal is bound to fail.  In the circumstances, it is futile to extend the time for making the application.  Accordingly, we refuse to extend the time for applying for leave to appeal to the Court of Final Appeal and dismiss the notice of motion.  

The 1^st and 2^nd applicants, unrepresented, acted in person.