RE MANJU

CAMP 193/2020

[2023] HKCA 342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 193 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 624 OF 2018)

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D E C I S I O N

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

1)  Leave to appeal to the Court of Final Appeal

1.  On 14 May 2021, this Court gave the decision to strike out the applicant’s application and dismissed his application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 21 May 2020 in which he refused to grant extension of time for leave to apply for judicial review against the decision of the Torture Claims Appeal Board on the ground of abuse of process.

2.  The applicant now applies, by a notice of motion, supported by an affirmation and a written submission, for leave to appeal against our decision to the Court of Final Appeal out of time. 

3.  Having considered the applicant’s documents, 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 applicant’s notice of motion is glaringly late.  According to section 24 of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’), the applicant’s notice of motion ought to have been filed with the Court within 28 days of our extension decision.  The applicant is over one year and three months late.  The applicant simply stated in his affirmation that he was out of time and asks for acceptance.  No further details were provided.  This is a bare allegation unsupported by any explanation.  We will not accept the applicant’s reasons for the delay.

5.  In the notice of motion, the applicant stated that because his claim was rejected by the Director, the Board, the High Court and the Court of Appeal, he now applies to the Court of Final Appeal.

6.  In the applicant’s written submission, he stated that there were mistakes in the Board’s decision.  He stated that the High Court and the Court of Appeal did not like his arguments.  He wishes to go to the Court of Final Appeal.

2)  Legal principles

7.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘HKCFAO’) leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

3)  Our view

8.  The matters stated by the applicant in his notice of motion do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the HKCFAO.  Nor is there any such question apparent to us from the matters he has raised in his documents.

9.  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

4)  Disposition

10.  For these reasons, the notice of motion is dismissed.

CAMP 193/2020

[2021] HKCA 716

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 193 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 624 OF 2018)

________________________

________________________

________________________

D E C I S I O N

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

1)  Renewed application for extension of time to appeal

1.1  On 12 April 2018, the applicant issued his application for leave for judicial review by Form 86 against the decisions of the Director of Immigration and Torture Claims Appeal Board (‘the Board’).  The applicant’s application was late being outside of the three­‑month requirement under the Rules oftheHigh Court (Cap. 4A) Order 53, rule 4 as the Board’s Decision was handed down on 23 June 2017.  Deputy High Court Judge Bruno Chan refused the application on 21 May 2020 (‘Judge’s Decision’).  The Judge’s Decision stated that before the current action in HCAL 624/2018, there was a previous Form 86 application by the applicant in HCAL 422/2017, where on 28 March 2018 Deputy High Court Judge Woodcock refused the applicant’s application for leave for judicial review.  The applicant did not appeal in HCAL 422/2017 but chose to take out another Form 86 in the current action in HCAL 624/2018.  This was clearly an abuse of process and the principle of res judicata applied.  The Judge struck out and dismissed the application.

1.2  Subsequently, the applicant made an application by summons on 8 June 2020 for leave to appeal against the Judge’s Decision out of time.  On 16 September 2020, the Judge dismissed the applicant’s application (‘Judge’s Leave Decision’).  On 22 October 2020 and out of time under Order 59, rule 2B(3), the applicant made a further application to this Court for what is essentially a renewed application for extension of time to appeal against the Judge’s Decision: Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] to [8].

2)  Our view

2.  It is not necessary to consider the applicant’s renewed application for extension of time to appeal because it is clearly an abuse of process for the applicant to commence another judicial review on the same issue when his previous application had already been dismissed.  In the circumstances we will strike out the application and dismissed the summons dated 22 October 2020.