RE HOANG KIM HOI

CAMP 537/2021

[2023] HKCA 159

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 537 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1535 OF 2018)

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DECISION

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

I. Leave to appeal to the Court of Final Appeal

1.  On 21 April 2022, this Court (Cheung and Au JJA)  handed down a decision ([2022] HKCA 537)  dismissing the applicant’s application to extend time to appeal against the decision of Deputy High Court Judge Bruno Chan refusing to grant leave to the applicant to apply for judicial review.

2.  On 20 June 2022, the applicant filed a Notice of Motion together with a supporting affirmation, seeking leave to appeal against our decision to the Court of Final Appeal. 

3.  The applicant did not file written submissions by the stipulated deadline pursuant to the Directions of the Registrar of Civil Appeals dated 20 June 2022 (the ‘Directions’).  Pursuant to paragraph 6 of the Directions, the applicant is therefore deemed to have abandoned her right to rely on written submissions and the matter will be considered by this Court based on the available materials.

4.  In her Notice of Motion, the applicant repeated the claim that her life would be threatened if she were returned to Vietnam, that the Director was wrong in suggesting that internal relocation was possible, and that the Director had failed to consider her human rights under the Basic Law and various international conventions.  She described as unsatisfactory our finding that her intended appeal has no prospect of success without any elaboration or specifics.

5.  In her affirmation, she made further vague claims that the decision of the High Court was made in an unfair manner without allowing her an opportunity to clarify her case and the situation in her home country, and that the merits of her ground of appeal constitute sufficient reason for this Court to exercise its discretion to allow the appeal out of time.

6.  Having considered the applicant’s Notice of Motion and supporting affirmation, we see no reason to depart from the usual practice of determining applications for leave to appeal (out of time)  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.

7.  The background to this case and the applicant’s claim have been set out in our decision.  We will not repeat them.

II.  Legal principles

8.  Section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (Cap. 484)  (‘HKCFAO’)  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 / decision to be appealed from.  Section 24(5)  further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

9.  The applicant’s present application is out of time by over four weeks.  She has failed to provide any satisfactory explanation for the delay.  Nevertheless, we shall focus on the merits of the intended appeal.

10.  Under section 22(1)(b)  of the 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.

III.  Our view

11.  The matters stated by the applicant in her Notice of Motion and supporting affirmation 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 she has raised in the documents.

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

IV.  Disposition

13.  As the statutory requirements for giving leave to appeal are not met, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the Notice of Motion. Accordingly, we dismiss the Notice of Motion.