Re Tumini Nevia Sari and Another

CAMP 433 of 2021, [2023] HKCA 1242

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDING NO.433 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2627 OF 2018)

____________________

____________________

AND

(ON AN INTENDED APPEAL FROM HCAL NO. 582 OF 2020)

____________________

____________________

(Consolidated pursuant to the Order of
Deputy High Court Judge Bruno Chan dated 8 September 2020)

________________________

JUDGMENT

________________________

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

1.On 20 April 2023, this Court handed down our judgment ([2023] HKCA 549) refusing to extend the time for the 1^st applicant in both HCAL 2627 of 2018 and HCAL 582 of 2020 (“the 1^st applicant”) and the 2^nd applicant in HCAL 582 of 2020 (“the 2^nd applicant”) to appeal the decision of Deputy High Court Judge Bruno Chan given on 25 September 2020 which refused to give them leave to apply for judicial review.

2.On 20 September 2023, the 1^st applicant filed a notice of motion on behalf of herself and the 2^nd applicant together with an affirmation made by her to apply for leave to appeal against our judgment to the Court of Final Appeal.  Despite directions given by the Registrar of Civil Appeals, the applicants have not put in any written submission to support the application.

3.Having considered the notice of motion and affirmation, 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 two applicants’ claim has been set out in our judgment.  We will not repeat them.

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

6.The notice of motion in this case is late by more than four months, which is serious delay.  The 1^st applicant stated in her affirmation that she did not know the court has made a decision.  We, however, note from the court record that our judgment was posted to the address given by the applicants in their summons and has not been returned by the post office.  We do not accept that the delay has been satisfactorily explained.  In any event, the most important consideration is the merits of the intended application for leave to appeal.

7.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.

8.The notice of motion does not set out any ground in support of the application or the intended appeal.  It merely states that the 2^nd applicant was born in Hong Kong and the 1^st applicant has big hope that her baby should get leave and she therefore wants to go to the Court of Final Appeal.

9.We are of the view that what is stated in the notice of motion does not afford any basis for granting leave to appeal.  It has not been shown that the intended appeal involves any question of great general or public importance.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.As the applicants’ intended appeal has no prospect of success, it would be futile to extend the time to apply for leave to appeal.  Accordingly, we dismiss the notice of motion dated 20 September 2023.

The 1^st and 2^nd applicants, unrepresented, acted in person.