Re Tahir Wasim

CACV 180/2022

[2023] HKCA 80

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 180 OF 2022

(ON APPEAL FROM HCAL NO 2214 OF 2018)

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Before:  Hon Cheung and Au JJA in Court

Date of Judgment: 18 January 2023

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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 24 November 2022, the applicant filed a Notice of Motion and a supporting affirmation to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s judgment of 23 September 2022 (“the Judgment”) ([2022] HKCA 1391). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 25 April 2022, by which the Deputy Judge refused to grant extension of time and dismissed his application for leave to apply for judicial review ([2022] HKCFI 1149).

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.  In the present case, the deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 21 October 2022.  Accordingly, the applicant was late for over a month 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:

“DIRECTOR OF IMMIGRATION AND TORTURE CLAIMS APPEAL BOARD DISMISSED MY NONREFOULEMENT CLAIM. THE HIGH COURT AND THE COURT OF APPEAL DISMISSED MY LEAVE TO APPLY FOR JUDICIAL REVIEW. ALL THIS JUDGEMETS ARE NOT GOOD FOR ME. I WANT TO GO TO C.F.A.” (sic)

7.In his supporting affirmation, the applicant further stated:

“APPLY OF NOTICE OF MOTION BUT OUT OF SCHEDULED TIME. PLEASE ACCEPT MY APPLY.” (sic)

8.Contrary to Practice Direction 2.1, the applicant failed to lodge any written submissions in support of his application for leave to appeal to the Court of Final Appeal.

9.In our view, the applicant’s delay of over one month is very substantial and he failed to give any reason, let alone good reason, for his delay.  More importantly, the applicant failed to identify any error in the Judgment.  As such, his application is a nonstarter and must fail as there is no proper ground of intended appeal.

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

11.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.

12.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 is dismissed.

The applicant acting in person