RE TRAN VAN THANH

CAMP 259/2022

[2023] HKCA 501

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 259 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 453 of 2018)

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J U D G M E N T

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Hon Chu VP giving the Judgment of the Court:

1.  On 15 December 2022, this Court handed down our judgment ([2022] HKCA 1840)  refusing to extend the time for the applicant to appeal the decision of Deputy High Court Judge Bruno Chan given on 15 January 2020 which refused his application for leave to apply for judicial review.

2.  On 14 February 2023, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  He has also put in a written submission to support the application.

3.  Having considered the applicant’s notice of motion, affirmation and written submission, 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 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 the notice of motion to apply for leave to appeal shall be filed within 28 days from the date of the judgment to be appealed from. Under section 24(5), the Court may extend the time for the filing of the notice of motion.  In deciding whether to extend time, the Court will have regard to (1)  the length of the delay; (2)  the reasons for the delay; (3)  the merits of the intended application; and (4)  the prejudice that may occasioned to the other party if the time is extended.

6.  The applicant’s notice of motion was late by four weeks, which is a significant delay.  The applicant did not give any explanation for his delay.  He only stated in his affirmation that there is a good ground of appeal and the merits of this ground constitute sufficient reason for the Court to exercise its discretion to allow the application to be made out of time.  There was, however, no elaboration on what the ground of appeal was.  We do not accept that the applicant has satisfactorily explained his delay.   

7.  As to the merits of the intended application, 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 stated the following in support of the application:

(1)  The Court of Appeal judgment was unsatisfactory.

(2)  The applicant’s life will be seriously threatened and in danger because the creditors and gangsters in Vietnam are cruel and violent, have no regard for the law and will readily kill to satisfy their anger and ferocity.  The applicant could be tortured, beaten or killed if the gangsters get too angry and cannot control their emotion and behaviour.  

(3)  Internal relocation is not feasible because the gangsters have a nationwide network. Further, the applicant will face many difficulties and obstacles in that his health is not good and he is not an active person, which will disadvantage him in the labour market, and there is also no guarantee that he will be able to adapt to the new environment and able to make a living.

(4)  The Immigration Department did not consider the applicant’s human rights under the Basic law, the Hong Kong Bill of Rights Ordinance and the international covenants.

9.  The written submission first gave an account of the applicant’s claim and the procedural history.  It then went on to cite extensively from cases dealing the high standards of fairness, the Wednesbury unreasonableness test, without indicating how the legal propositions relate to the application.  The applicant further asserted in the written submission that as he has not agreed on a repayment plan with his creditors, his life will be in danger and he will be killed if he returns to Vietnam.

10.  All the matters put forward in the notice of motion and written submission do not afford any basis for granting leave to appeal.  Importantly, they all concern the applicant’s claim and personal circumstances, and do not show that the intended appeal involves any question of great general or public importance. 

11.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

12.  As the statutory requirements for giving leave to appeal are not met, it is futile to extend the time for the filing of the notice of motion.  Accordingly, we dismiss the notice of motion.