RE NGUYEN THI KIM

CACV 23/2022

[2022] HKCA 827

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 23 OF 2022

(ON APPEAL FROM HCAL NO. 2729 OF 2018)

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J U D G M E N T

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Hon Chu JA (giving the Judgment of the Court):

1.  On 4 March 2022, this court handed down a judgment ([2022] HKCA 307) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Lung given on 29 December 2021 refusing to give her leave to apply for judicial review.

2.  On 27 April 2022, the applicant filed a Notice of Motion together with an affirmation to apply for leave to appeal this court’s judgment to the Court of Final Appeal.  She has also put in a written submission to support her 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 have 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 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) of the Ordinance further provides that the Court of Appeal may extend the time for the filing of the notice of motion.  In considering whether to extend the time, we will have regard to (i) the length of the delay; (ii) the reasons for the delay; (iii) the merits of the intended application; and (iv) the prejudice to the other parties if time was extended.  

6.  As a result of the closure of the High Court registry between 7 March and 11 April 2022 due to the public health situation, and by reason of section 71(1A)(a) of the Interpretation and General Clauses Ordinance, Cap. 1, the time for the applicant to apply for leave to appeal against our judgment expired on 12 April 2022.  The applicant’s Notice of Motion is late by about two weeks, which is not an insignificant delay.  She has provided no explanation for the delay.

7.  As to the merits of the intended appeal, 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 and the affirmation raised the following grounds:

(1)  The Director of Immigration disregarded the applicant’s human rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 and the international covenants.

(2)  If the applicant returns to Vietnam, her life will be under serious threat because the gangsters and creditors in Vietnam are cruel, violent, have no regard for human life and will kill people when they are angry.  As the applicant has not yet agreed on a repayment plan with her creditor, her life will be in danger and she will be killed on her return.

(3)  Contrary to what was suggested, internal relocation is not feasible as the applicant’s health is not good and she is near retirement age, which will disadvantage her in the labour market and reduce her adaptability.  Also, her creditor and the gangsters have a nationwide network and will be able to track her down.

(4)  The Court reached its decision unfairly without allowing the applicant an opportunity to clarify her case and situation in her country.

9.  The written submission summarised the applicant’s case and repeated the contents of the Notice of Motion and the affirmation.   

10.  We are of the view that the arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, they all relate to the applicant’s claims and her personal circumstances, and have not identified any question of great general or public importance, as required by section 22(1)(b) of the Ordinance.  Further, for the reasons we gave at paragraph 14 of our judgment, the matters raised by the applicant are unarguable.  Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

11.  As the statutory requirements for giving leave to appeal have not been met, it is futile to extend the time for the filing of the Notice of Motion.  Accordingly, we refuse to extend time and dismiss the Notice of Motion.