Re Chongbang Shree Prasad

CAMP 303/2021

[2022] HKCA 1212

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 303 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2894 OF 2018)

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Before:  Hon Au and Chow JJA in Court

Date of Judgment:  22 August 2022

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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 26 April 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s (Au and Chow JJA) judgment of 28 January 2022 (“the Judgment”) ([2022] HKCA 187). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 7 August 2020, by which the Deputy Judge refused his application for leave to apply for judicial review ([2020] HKCFI 1882).

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.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 the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 25 February 2022.  The applicant was therefore late for over two months 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 complained that the lack of language and legal assistance provided to him amounted to errors of law or procedure or procedural unfairness.  He claimed that given his language incapacity, he was unable to understand the content of the Judgment which deprived him of the right to seek further avenues of appeal.  He further claimed that although he asked his friend to translate the Judgment to him, he was only given a gist of the content and could not reply to every accusation or observation made by the Court.  He then asserted that the Judgment had been made with a lack of evidential consideration of issues raised in the Court and should be deemed an erred judgment.  As to the delay in making his present application, he claimed that he was not aware of the time limit for applying for extension of time.  He also claimed that he received “the decisions” in the second week of March and could not lodge his Notice of Motion on time as the Court was closed.

7.In his supporting affirmation filed on 26 April 2022, the applicant stated:

“I did not receive the decision till my case officer of Immigration Centre informed me about the decision. I just do not know why my decision was failed to deliver.” (sic)

8.Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 10 May 2022.  In those submissions, he contended that the Judgment did not make logical sense and that this Court had not considered his grounds of appeal thoroughly.  He then repeated his assertions in relation to the lack of language and legal assistance, in that his lack of understanding of English and the legal jargons used before the Board and the Court deprived him of his right to lodge an appeal proper which was procedurally unfair to him.

9.At the outset, the applicant’s delay of over two months was very substantial and he failed to provide any good reason or evidence in support for his delay.  Mere ignorance of the deadline as asserted is not a good reason for the delay.

10.Further, according to the Court record, the Judgment was sent by post on 31 January 2022 to the applicant’s last reported addressed as provided by him to the Court in his Summons filed on 29 July 2021.  The same was however returned as undelivered post on 7 March 2022.  As the Court of Appeal has repeatedly stressed, it is the duty of a litigant to give the court a correct address so that correspondence or notice sent to his address can come to his attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulders of the litigant: see Re Hasmi Rizwan Imran [2018] HKCA 439 at [15].

11.More importantly, his intended appeal has no merit at all.  His complaints in relation to the lack of language and legal assistance had already been considered and rejected by this Court at [21] ‑ [22] of the Judgment and the applicant failed to identify with specifics or particulars any error in the Judgment.  It is well established that the Court of Appeal will not allow an application of 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].  As such, nothing set out in the Notice of Motion or written submissions can be construed as viable ground of appeal to the Court of Final Appeal.

12.In any event, even taking his case at its highest, his allegations are fact‑specific and do not relate to any question of great general or public importance.

13.Accordingly, the applicant 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 26 April 2022 is dismissed.

The applicant acting in person