莊裕安 v. 特首李家超 and Another

CACV 151/2023, [2024] HKCA 209

On Appeal From [2023] HKCFI 1178

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 151 OF 2023

(ON APPEAL FROM HCAL NO. 1264 OF 2022)

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JUDGMENT

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Hon Anthony Chan J (giving the Judgment of the Court) :

1.This is the Applicant’s Notice of Motion filed on 5 February 2024 for leave to appeal to the Court of Final Appeal (“CFA”) against the Judgment of this Court dated 1 November 2023 (“Judgment”).

2.The Notice of Motion contains 9 paragraphs setting out the reasons for application (“Reasons”).  Pursuant to the directions of this Court dated 8 February 2024 (“Directions”), written submissions were filed by the Applicant on 14 February 2024.  

3.On 20 February 2024, the Department of Justice (“DOJ”), representing the Putative Respondents, wrote to this Court stating their neutral stance to this application as well as making some observations about the leave application.  In particular, it was pointed out that the Applicant had failed to identify any question for consideration by the CFA.

4.On 23 February 2024, the Applicant filed his response to the letter of the DOJ (“Response”).

5.Pursuant to paragraph 6 of the Directions, any request for an oral hearing to advance the submissions of the parties is to be stated in their written submissions.  No such request was made in the Applicant’s written submissions or the Response.  We are of the view that it is appropriate to deal with this application on paper and we do so.   

6.It was pointed out in paragraph 1 of the Directions that this application is out of time.  Pursuant to s.24(2) of the Court of Final Appeal Ordinance, Cap 484 (“Ordinance”), a notice of motion for leave to appeal to the CFA shall be filed within 28 days from the date of the judgment to be appealed from.  This application is out of time by over 2 months. 

7.There is no proper attempt by the Applicant to explain the delay.  We do not consider that the Applicant’s submissions on his failed attempts to obtain legal aid are relevant for explaining the delay.  The lack of legal aid would not have hindered the Applicant in filing his notice of motion.  He has extensive experience as a court user and had in the past made numerous applications acting in person.

8.Despite the observation of the DOJ, the Applicant has not identified any question involved in his intended appeal, let alone one of great general or public importance, fit for consideration by the CFA.  This is a basic requirement for granting leave to appeal (see s.22(1)(b) of the Ordinance) and this failure is fatal to the present application.

9.Apart from referring to his failure to obtain legal aid, Applicant’s submissions, Response as well as the Reasons merely seek to re-argue his case for judicial review.  There is no attempt to identify any error in the Judgment. 

10.We are unable to see any merits in this application.  Accordingly, the Notice of Motion is dismissed with no order as to costs.