Re Shakhil Hussain

CAMP 305/2021

[2022] HKCA 941

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 305 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1843 OF 2018)

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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)  :

1.On 30 December 2021, this Court handed down judgment ([2021] HKCA 2007)  dismissing the applicant’s application to extend time to appeal an order of Judge KW Lung given on 14 July 2020 who refused his application for leave to apply for judicial review in respect of his non-refoulement claim.

2.On 14 February 2022 (being late for over two weeks), the applicant filed a notice of motion and affirmation applying for leave to appeal this Court’s judgment to the Court of Final Appeal.  The applicant has also lodged a written submission on 28 February 2022.

3.Having considered the applicant’s notice of motion, affirmation and written submissions, 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 applicant’s application on the basis of the documents in the case.

4.The background to this case and the applicant’s claim have been set out in [6] of our judgment.  We will not repeat them.

5.Section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’)  (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.  Section 24(5)  further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.The applicant’s present application is out of time for over two weeks.  The applicant did not provide any explanation for the delay and simply stated he wishes to appeal in his affirmation.

7.As to the merit of the intended appeal, section 22(1)(b)  of the HKCFAO 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.

8.The notice of motion only states that the applicant wants to appeal to the Court of Final Appeal.  As for the applicant’s written submissions, he repeats his claim to seek asylum in Hong Kong. 

9.Under section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (Cap. 484, ‘the Ordinance’), 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 application for leave to appeal. 

10.The applicant’s notice of motion was more than two weeks late and no explanation was provided. Therefore, there is no ground for the Court to grant extension of time for him to seek leave to appeal in the present application.

11.In any event, we are of the view that the grounds and arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal.  More importantly, no question of great general or public importance has been identified as required by section 22(1)(b)  of the HKCFAO.  Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

12.As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the notice of motion.  Accordingly, we dismiss the notice of motion.

Applicant, unrepresented, acting in person