Re Ahmad Shahzad

CACV 155/2021

[2021] HKCA 1877

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 155 OF 2021

(ON APPEAL FROM HCAL NO 1338 OF 2018)

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Before:  Hon Yuen and Chow JJA in Court

Date of Written Submissions: 29 October 2021

Date of Judgment: 15 December 2021

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JUDGMENT

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Hon Yuen JA (giving the Judgment of the Court):

1.This court (Yuen and Chow JJA) handed down judgment on 24 August 2021 ([2021] HKCA 1230) dismissing the applicant’s appeal against an order of DHCJ K W Lung (“the Judge”) given on 31 March 2021 refusing to grant an extension of time to the applicant to apply for leave for judicial review in respect of his non‑refoulement claim and dismissed the leave application (“the Judge’s Decision”).

2.On 9 April 2021, the applicant had filed a Notice of Appeal to appeal against the Judge’s Decision.  As mentioned earlier, in our judgment of 24 August 2021, we dismissed the applicant’s appeal.  The facts and issues in the appeal before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.On 15 October 2021, the applicants filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal.  However, it was out of time, as s.24(2) of Hong Kong Court of Final Appeal Ordinance (“HKCFAO”) Cap. 484 stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from.  The deadline for filing the Notice of Motion expired on 21 September 2021.

4.However, under s.24(5) and s.24(6) of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period.  In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party. 

5.In the present case, the applicant was late by more than 3 weeks.  In his affirmation dated 15 October 2021, he merely stated that he was out of time and did not offer any explanation for his delay. A significant delay of more than 3 weeks without any explanation is clearly inexcusable.

6.As to the merits of the intended appeal, the applicant advanced the following in the Notice of Motion:

“The High Court dismissed my leave to apply for judicial review which judicial review I made against the Torture Claims Appeal Board and Director of Immigration. After dismissal from the High Court, I came to the Court of Appeal. The Court of Appeal to dismiss my application. Now I want to go to the Court of Final Appeal.”

7.In compliance with the directions given by Registrar of Civil Appeals on 15 October 2021 and Practice Direction 2.1, the applicant lodged his written submissions on 29 October 2021.  In his written submissions, he reinstated the background of his case and repeated his complaints as set out in the Notice of Motion.

8.The Registrar further directed that the Notice of Motion shall be determined on paper only without an oral hearing.  As it is appropriate to do, we proceed to determine this application on paper. 

9.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that 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.

10.The applicant failed in his Notice of Motion and his written submission to point out any error of law or raise any discernible ground to reverse our judgment.  Having regard to the judgment of this court, the applicant’s intended appeal has no merits.  No question of great general or public importance has been identified as required by s.22(1)(b) of the HKCFAO.    

11.Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

12.By reason of the above, we decline to extend time and the Notice of Motion filed on 15 October 2021 is dismissed.

The applicant acting in person