Re Mohammed Khan Shamim

CAMP 103/2023, [2025] HKCA 660

On Appeal From [2021] HKCFI 2672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 103 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 173 OF 2020)

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DECISION

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Hon Cheung JA (giving the Decision of the Court) :

I.  Leave to appeal to the Court of Final Appeal

1.On 17 January 2024, this Court handed down the decision ([2024] HKCA 43) dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge KW Lung given on 9 September 2021 refusing his application for leave to apply for judicial review in respect of his non‑refoulement claim. 

2.On 10 October 2024, the applicant filed a notice of motion and affirmation applying for leave to appeal this Court’s order to the Court of Final Appeal out of time.  The affirmation consists of 49 pages of enclosures of which pages 19 to 21 are submissions.  The applicant has not lodged any written submissions.  The Registrar of Civil Appeals on 5 November 2024 has directed that as the applicant was in violation of Practice Direction 2.1 at [3(a)] and [3(f)], the Court will only consider the applicant’s submissions at pages 19 to 21.  The other pages of the affirmation will not be considered.  We agree with the Registrar’s directions[1]. 

II.  Our view

3.Having considered the applicant’s 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 applicant’s claim have been set out in our decision.  We will not repeat them.

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

6.The applicant’s present application is out of time by over seven months.  The applicant did not provide any reason for the delay.

7.As to the merit of the intended appeal, section 22(1)(b) of the HKCFAO 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 simply stated matters such as the background in how the applicant came to withdraw his case then eventually applying to re-open his case.

9.The three‑page submission by the applicant stated that liberty is a fundamental right, the applicant has no risk of absconding, it is unfair that the applicant as a non‑permanent resident is detained longer than those permanent residents who had served their sentence for their crime and the applicant is punished twice for his criminal record.

10.We are of the view that the grounds and arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

11.Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

III.  Disposition

12.As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.