Re Rai Dil Kumari

CACV 317/2020

[2021] HKCA 1159

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 317 OF 2020

(ON APPEAL FROM HCAL NO 293 OF 2018)

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Before:  Hon Au JA and Coleman J in Court

Date of Judgment:  10 August 2021

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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.On 9 June 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Au JA and Coleman J)  judgment of 9 April 2021 (“the Judgment”)  [2021] HKCA 481.  In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan dated 16 July 2020, refusing her leave to apply for judicial review.

2.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, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance (Cap 484)  (“HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal (“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.

4.Further, pursuant to section 24(2)  of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for filing the present application expired on 7 May 2021.  The applicant is therefore more than one month out of time.

5.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 applicants.  In deciding whether there are such good grounds, the court is to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chance 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: Begum Jahanara v Ian Candy, Esq [2021] HKCA 83, per Lam VP at [4] and the authorities cited therein.

6.In her Notice of Motion, the applicant simply reiterated the facts that the Court of First Instance and the Court of Appeal refused her leave application and the subsequent appeal respectively and that she wished to go to the CFA.  Other than that, she did not advance any grounds of appeal against the Judgment in the Notice of Motion and her supporting affirmation.  Further, she failed to lodge her written submissions as directed by the Registrar of Civil Appeals.  In the premises, the applicant has not raised any viable grounds of appeal.

7.We also do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

8.For these reasons, it will be futile to extend time.  We therefore refuse to grant leave to appeal to the CFA out of time, and dismiss the application.

The applicant acting in person