RE SHAFIQUE

CACV 565/2020

[2021] HKCA 1041

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 565 OF 2020

(ON APPEAL FROM HCAL 404/2018)

__________________________

RE:

SHAFIQUE

Applicant

__________________________

Before:

Hon Lam VP and Au JA in Court

Date of Judgment:

22 July 2021

________________________

JUDGMENT

________________________

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

1.  On 31 May 2021, the Applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal (“CFA”) against this Court’s judgment of 27 April 2021. In that judgment we struck out and dismissed the Applicant’s appeal because he failed to apply for extension of time to bring the appeal despite repeated reminders.

2.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides that an appeal shall lie to the CFA at the discretion of this Court or the CFA 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 CFA for decision.

3.  In the Notice of Motion for leave to appeal to the CFA, the Applicant stated that the Director of Immigration and the Torture Claims Appeal Board dismissed his non-refoulement claim, that he applied to the court for leave, and that he did not get justice on the total process. However, he did not state any grounds for leave to appeal to the CFA. He did not explain why he did not apply for extension of time to appeal.

4.  Despite the acknowledgment by the Applicant on 31 May 2021 of the requirement under Practice Direction 2.1 and the directions of the Registrar of Civil Appeals on 1 June 2021, the Applicant did not lodge any written submissions in support of this application. 

5.  The Applicant has not raised any reasonably arguable ground of appeal on the merit of his claim, or any discernible or arguable ground for disturbing our judgment.

6.  In our judgment, there is no question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

7.  For these reasons, we refuse to grant leave to appeal to the CFA and dismiss the Applicant’s Notice of Motion accordingly.

(M H Lam)	(Thomas Au)
Vice President	Justice of Appeal

The applicant acting in person

 

CACV 565/2020

[2021] HKCA 525

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 565 OF 2020

(ON APPEAL FROM HCAL 404/2018)

____________________

RE:

SHAFIQUE

Applicant

____________________

Before:  Hon Lam VP and Au JA in Court

Date of Judgment:  27 April 2021

________________________

JUDGMENT

________________________

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

1.  The applicant filed a notice of appeal on 20 October 2020 seeking to appeal against the decision of DHCJ Bruno Chan of 20 January 2020. The Judge refused to grant leave to him the apply for judicial review.

2.  Since the appeal is brought outside the 14-day time limit under Order 53 Rule 3(4), he has to seek extension of time to do so.

3.  He obtained an extension of time from the Judge on 27 August 2020.  By that order, the Judge gave him 14 days from the date of the order to bring an appeal.  No consideration was given to the merit of his intended appeal in that decision since the delay was partly occasioned by the General Adjournment Period of the court.

4.  As we have seen, he did not appeal within the extended time.  Thus, he need to have a further extension of time before an appeal can be properly brought.  In such application, he would have to explain for his further delay and the court will also assess the merit of his proposed appeal.

5.  The Registrar of Civil Appeals directed repeatedly to the applicant that he should make the application for further extension of time before the Court of Appeal.  Despite such directions on 30 November 2020 and 7 January 2021, the applicant did not do so.

6.  An appeal brought out of time is incompetent and will be struck out.

7.  In our judgment, sufficient reminders have been given to the applicant for taking out an application for further extension of time.  His failure to do so is evidence that he has no intention to prosecute the appeal in accordance with the directions of the court.

8.  We see no good reason why we should not strike out the appeal as being incompetent and leave the applicant to make a proper application for further extension of time afresh by way of CAMP proceedings. If he could obtain such further extension, he could bring a fresh appeal. 

9.  We therefore order that this appeal be struck out and dismissed on the ground that it is incompetent.

(M H Lam) Vice President

(Thomas Au) Justice of Appeal

The applicant acting in person