Re Rahmat Saepulah

CAMP 259/2021

[2022] HKCA 1017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 259 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2299 OF 2018)

________________________

________________________

Before:  Hon Chu and Au JJA in Court

Date of Judgment:  14 July 2022

________________________

J U D G M E N T

________________________

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

1.On 23 February 2022, the applicant filed a Notice of Motion together with a supporting affirmation to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s (Chu and Au JJA)  judgment of 10 January 2022 (“the Judgment”)  ([2022] HKCA 13). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 19 March 2021, refusing his application for leave to apply for judicial review (“the Leave Decision”)  ([2021] HKCFI 741).

2.The facts and issues in the appeal, as well as this 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 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

4.Pursuant to section 24(2)  of the HKCFAO an appellant has 28 days from the date of the Judgment to seek leave to appeal to the Court of Final Appeal.  In the present case, the deadline for the applicant to seek leave to appeal against the Judgment fell on 7 February 2022.  Accordingly, the applicant was 16 days late in taking out his application for leave to appeal to the Court of Final Appeal.

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 applicant: see Re Imran Muhammad [2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the Court is entitled to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chances 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: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83 at [4] and the authorities cited therein.

6.In his Notice of Motion, the applicant stated:

“I would like to inform the Court of Final Appeal. There is some error in my law maker decision and authorities as well. I am strongly opposed the decision and disagree with the decision. The authorities is totally relaid on call information and my previous facts which is favor to reject my claim. Just because I do not know English. This is towards to my life still is in danger in my home land in Indonesia.” (sic)

7.In his supporting affirmation, the applicant stated:

“Affirmation for leave to apply my Notice of Motion out of time against the ordered of High Court on 10-Jan-2022. I did not aware of my time line to file my Notice of Motion.” (sic)

8.Contrary to Practice Direction 2.1, the applicant did not lodge any written submissions.

9.At the outset, the applicant’s delay of 16 days was substantial and he failed to provide any good reason or evidence in support for his delay.  Mere ignorance of the time limit is not a good reason for the delay.

10.More importantly, his allegations are wholly without substance.  The matters raised in his Notice of Motion are all vague and bare allegations without specific particulars or evidence in support.  General assertions of his fear to return to his home country do not constitute viable grounds of appeal.  Moreover, nowhere in his Notice of Motion or written submissions did he identify any error in the Judgment.  As such, there is simply no viable ground of appeal and his intended appeal must fail on this basis alone.

11.Further, regarding his contention that he did not know English, we have already considered and rejected the same at [20] - [21] of the Judgment.  The applicant did not point out any error in the Judgment.  It is well established that the Court of Appeal will not allow an application this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014)  at [2] and [3].

12.In any event, the applicant’s contentions are fact-specific and do not relate to any question of great general or public importance.

13.Accordingly, he has failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

14.For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion filed on 23 February 2022 is dismissed.

The applicant acting in person