RE LE THI HONG

CAMP 148/2021

[2022] HKCA 1215

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 148 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 671 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 20 April 2022, the applicant filed a Notice of Motion together with a supporting affirmation to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s (Barma and Au JJA) judgment of 4 March 2022 (“the Judgment”) ([2022] HKCA 342). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 9 September 2020, refusing to grant the applicant extension of time and dismissing her application for leave to apply for judicial review (“the Leave Decision”) ([2020] HKCFI 2240).

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.  Pursuant to section 24(2) of the HKCFAO an appellant has 28 days from the date of the Judgment to seek leave to appeal to the Court of Final Appeal.  In the present case, the original deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 1 April 2022.  Due to the closure of the High Court Registry during the General Adjournment Period (arising from the COVID‑19 Pandemic) from 7 March 2022 up to 11 April 2022, the period was automatically extended to 12 April 2022.  Accordingly, the applicant was eight days late in taking out her application for leave to appeal to the Court of Final Appeal.

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 applicant: see Re Imran Muhammad [2021] HKCA 482 at [9] and the authorities cited therein.  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 & Another [2021] HKCA 83 at [4] and the authorities cited therein.

6.  In her Notice of Motion, the applicant stated:

“1. The learned Judges were wrong as a matter of law for not having applied the principles of irrationality to the decision made by the Director of Immigration refusing my application for Leave for Judicial Review and the Appeal; and

2. The learned Judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director.” (sic)

7.  In her supporting affirmation filed on 20 April 2022, the applicant contended that she did not have financial means to obtain concrete legal advice regarding the procedure of appeal and could not approach the High Court’s Centre for unrepresented litigants to find out how to appeal.  She also contended that she received the Judgment around 8 ‑ 10 March 2022 but soon thereafter, the Court was closed because of the pandemic.  When the Court resumed working, she “felt down at home” and had to stay in bed and could not walk properly for one week before she filed her supporting affirmation.  She further contended that she understood that there was “a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.”

8.  Contrary to Practice Direction 2.1, the applicant did not lodge any written submissions in support of her application.

9.  At the outset, although the applicant’s delay of eight days was not substantial, it is noted that she did not provide any evidence in support of her delay or medical evidence to support her contention that she could not walk properly.

10.  More importantly, her allegations are wholly without substance.  The matters raised in her Notice of Motion and supporting affirmation are all general, vague and bare allegations without specifics or particulars. As such, they simply do not constitute viable grounds of appeal and her intended appeal must fail on this basis alone.

11.  Further, none of the arguments raised in her Notice of Motion were argued before the Deputy Judge or this Court in her earlier reapplication for extension of time to appeal.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it; nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal: see Re Orense Marian Masangkay [2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh [2021] HKCA 870 at [7].  In any event, as observed by the Deputy Judge at [16] of the Leave Decision, there was no error of law or procedural unfairness in the decisions of the Board or the Director, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  We see no basis to interfere with the Leave Decision and her contentions must fail.

12.  Even taking her case at its highest, the applicant’s contentions are fact-specific and do not relate to any question of great general or public importance.

13.  Accordingly, she had failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

14.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant her extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion filed on 20 April 2022 is dismissed.