RE NGUYEN XUAN DIU

CAMP 94/2021

[2022] HKCA 144

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 94 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 373 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 7 September 2021, this Court handed down our judgment ([2021] HKCA 1283) refusing to extend the time for the applicant to appeal the decision of Deputy High Court Judge Bruno Chan given on 5 August 2020 which refused to give him leave to apply for judicial review.     

2.  On 17 December 2021, 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 also put in a written submission to support his 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 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.

6.  The applicant’s notice of motion is late by more than two months, which is substantial delay.  The applicant explained in his affirmation that because his Recognizance document had become blurred, he could not take his oath and lodge his appeal documents, and had to apply and wait for the issue of new Recognizance document by the Immigration Department.  We note that the Director of Immigration has not responded to the applicant’s application.  We are prepared to accept the applicant’s explanation for the delay. 

7.  We turn next to consider 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 stated that the applicant’s life would face serious threat or even death upon his return to Vietnam because he has yet to agree on a repayment plan with the creditors, who are cruel and violent and have no regard for law.  It also complained that the Director of Immigration did not consider the applicant’s human rights under the Basic Law, the Hong Kong Bill of Rights Ordinance and the ICCPR, and ordered his deportation.   The applicant further complained in his affirmation that our decision was reached unfairly, without allowing him an opportunity to clarify his case and situation in his country.

9.  The written submission, apart from repeating what was said in the notice of motion and affirmation, also quoted extensively from [43] to [45], and [51] of the judgment in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and said that the high standard of fairness should apply because the decision has the effect of finally disposing of the applicant’s claim. 

10.  We are of the view that the matters set out in the notice of motion, affirmation 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.