Re Nduk Ning and Another

CAMP 64/2021

[2022] HKCA 118

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 64 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1991 OF 2018)

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Before: Hon Chu and Barma JJA in Court

Date of Judgment: 26 January 2022

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J U D G M E N T

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

1.On 15 November 2021, this court handed down our judgment ([2021] HKCA 1678) dismissing the applicants’ application to extend time to appeal an order of Deputy High Court Judge Bruno Chan given on 19 August 2020 refusing their application for leave to apply for judicial review.

2.On 24 December 2021, the applicants filed a Notice of Motion together with an affirmation applying for leave to appeal this court’s judgment to the Court of Final Appeal.  The applicants have also lodged a written submission.

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.The background to this case and the applicants’ claims have been set out in our judgment.  We will not repeat them.

5.The applicants’ Notice of Motion is out of time, as section 24(2) of Hong Kong Court of Final Appeal Ordinance 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 13 December 2021.

6.Under sections 24(5) and 24(6) of the Hong Kong Court of Final Appeal Ordinance, 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. 

7.In the present case, the applicant’s notice of motion is late by ten days, which is not substantial.  The applicant apologised for the delay in his affirmation but did not provide any explanation for it.

8.As to the merits of the intended appeal, 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.

9.Neither the Notice of Motion nor the affirmation set out any ground in support of the application.  In the written submission, the applicants assert that it is not possible for them to return to Indonesia.  They also state that the Director of Immigration and the Torture Claims Appeal Board had made many mistakes, and they want to go to the Court of Final Appeal. 

10.What was put forward by the applicants do not constitute viable grounds for giving leave to appeal.  Importantly, they do not show that the intended appeal involves any question of great general or public importance, as required by section 22(1)(b) of the Ordinance.  Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

11.As the intended appeal has no prospect of success, it would be futile to extend the time for the applicant to appeal.  Accordingly, we refuse to extend the time for the applicant to appeal to the Court of Final Appeal and dismiss the Notice of Motion.

The applicant, unrepresented, acting in person.