RE NGUYEN VAN HONG

CACV 380/2020

[2021] HKCA 1691

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 380 OF 2020

(ON APPEAL FROM HCAL NO 2847 OF 2018)

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J U D G M E N T

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

1.  On 23 September 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Cheung, Chu and Au JJA)  judgment of 7 May 2021 (“the Judgment”)  ([2021] HKCA 658).  In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung dated 5 August 2020 refusing to grant to the applicant leave to apply for judicial review ([2020] HKCFI 1862).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

4.  Further, pursuant to section 24(2)  of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for filing the present application expired on 4 June 2021.  The applicant was therefore around three months out of time.

5.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5)  of the HKCFAO only if good and sufficient grounds are shown by the applicants. In deciding whether there are such good grounds, the Court is entitled to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chances of the appeal succeeding if an extension of time is granted; and (d)  the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq [2021] HKCA 83, per Lam VP at [4] and the authorities cited therein.

6.  In his Notice of Motion, the applicant repeated the alleged facts of his non-refoulement claim and that he fled Vietnam to escape from his creditor who had allegedly harmed him before.  In his supporting affirmation, the applicant asserted he failed to understand the contents of the letter he received and it was upon asking for help that he came to understand the letter was the Judgment.  By then, he was already out of time.

7.  The applicant failed to comply with the direction of the Registrar of Civil Appeal dated 23 September 2021 to lodge written submissions.

8.  In our view, the applicant’s application is wholly without merit.  None of the matters raised in his Notice of Motion identified any specific errors in the Judgment.  They are therefore not viable grounds.  General assertions of his fear if refouled also do not constitute viable grounds.  The applicant failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.

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

10.  By reason of the above, the intended appeal has no merits at all.  We would not extend the time.  We will further dismiss the Notice of Motion.