RE DONG VAN QUYEN

CAMP 340/2021

[2022] HKCA 1323

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 340 OF 2021

(ON AN APPEAL FROM HCAL NO. 765 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 26 November 2021, this court handed down a judgment ([2021] HKCA 1751) dismissing the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge C P Pang given on 8 October 2020 refusing to extend the time for him to apply for judicial review and dismissing his application for leave to apply for judicial review.

2.  On 14 July 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.  He has also put in a written submission to support the application.

3.  Having considered the Notice of Motion, the affirmation and the 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.  The applicant’s Notice of Motion is late by more than seven months, which is serious delay.  The applicant explained in his affirmation that he came to know about this Court’s judgment on around 12 July 2022, and to took him some time to get since he was uneducated and had language problem.  However, he had not elaborated on why the judgment did not reach him earlier or the circumstances that he came to learn about the judgment. 

7.  We note from the Court file that the judgment dated 26 November 2021 together with the sealed order were sent by post to the applicant at the address stated in his summons and affirmation filed on 16 August 2021, and had not been returned by the Post Office.  The applicant’s address stated in the Notice of Motion and the supporting affirmation filed on 14 July 2022 is, however, different.  It would appear that the applicant might have moved, but he has not informed the Court about it.  As it is the duty of a litigant to inform the Court of any change in his address for service of documents, we are not satisfied that there is a good reason for the serious delay.  In the circumstances, the applicant has to show that his intended application has a real prospect of success.

8.  We next turn to consider the merits of the intended application for leave to 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.

9.  The Notice of Motion states that: (1) this Court was wrong as matter of law in not applying the principle of procedural fairness when the Director of Immigration (“the Director”) was required to give reasons for his decision: (2) this Court was wrong as a matter of law in not applying the principle of irrationality to the decision of the Director; (3) there are some errors of law in the decision as the decision maker relied on country of origin information (“COI”) and facts that favour the rejection of the applicant’s claim; (4) actual life situation is different from what was stated in the COI. The Court and the decision makers ignored overwhelming evidence of violence committed towards the minorities, searching for unrealistic sliver lining; and (iv) the judge did not apply the law properly and there was procedural unfairness. 

10.  The written submission began with a section on the background of the applicant.  It claimed that the applicant was born and raised in Thailand, and that neither he nor his family had been “accused, charged, interrogated, arrested, detained or imprisoned in Bangladesh”.  These assertions do not match the background of the applicant as stated in the decisions of the Director and the Torture Claims Appeal Board (see [5] of our judgment).  They are clearly wrong and we reject them.  

11.  The rest of the written submission quoted extensively from provisions in the ICCPR, the Convention Against Torture, the Hong Kong Bill of Rights Ordinance, Cap. 383 and the Basic Law, as well as cases on the high standard of fairness and Wednesbury unreasonableness.  It submitted that the decision had the effect of finally disposing of the applicant’s claim, rendering her liable to be removed from Hong Kong; hence high standards of fairness were engaged and minimal standard of procedural fairness applied to the decision making process.  The submission further said that the case involves question of great general and public importance, the legal issues raised are complex and have not been adjudicated upon by any court.  There is however no indication of what these question and issues are.

12.  Despite the assertion in the written submission, neither the Notice of Motion nor the written submission has identified any question of great general and public importance, as required by section 22(1)(b) of the Ordinance, had been identified.  It has also not been shown how the provisions and legal propositions set out in the written submission relate to the applicant’s case and intended appeal.  We also do not see any basis for the “or otherwise” limb under section 22(1)(b). 

13.  As the statutory requirements for giving leave to appeal are therefore not met, it would be futile to extend the time for applying for leave to appeal. Accordingly, we refuse to extend the time and dismiss the Notice of Motion.