RE BUI VAN BAN

CACV 243/2022, [2024] HKCA 441

On Appeal From [2022] HKCFI 1592

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 243 OF 2022

(ON APPEAL FROM HCAL NO. 158 OF 2022)

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JUDGMENT

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

I.  Leave to appeal to the Court of Final Appeal

1.  On 14 March 2023, this Court handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge To given on 6 June 2022 in which he refused to grant leave to the applicant to apply for judicial review.

2.  The facts and issues of the appeal as well as the Court’s reasons for dismissing it are set out in our judgment. We will not repeat them here.

3.  Having considered the applicant’s documents, 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.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (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) further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

5.  The applicant now applies, by a notice of motion and affirmation filed on 25 April 2023, for leave to appeal against our judgment to the Court of Final Appeal out of time by around 14 days. The applicant did not provide any explanation for the delay. In summary the applicant stated the following points in his notice of motion :

1)  This is an appeal against the decision of the Court of Appeal;

2)  It was unsatisfactory that the Court of Appeal ruled that the applicant had no chance of success;

3)  If the applicant is refouled to Vietnam he will be threatened or dead because the gangsters in Vietnam are different to those in Hong Kong since most of them are cruel and violent;

4)  The applicant cannot live in another location in Vietnam because there will be many difficulties and obstacle. His health is not good. There is no guarantee that he can adapt to the new place;

5)  There is a nationwide social network of gangsters with corrupt people in the government. The gangsters will probably find the applicant;

6)  The problem with the applicant’s appeal is that the Immigration Department did not consider the applicant’s human rights under the Basic Law; and

7)  The applicant asks the Court of Appeal for a chance to seek justice.

6.  In summary the applicant stated the following points in his affirmation :

1)  The Court of Appeal’s decision was reached unfairly without allowing the applicant an opportunity to clarify; and

2)  A good ground of appeal was not necessarily considered at the stage of the application for leave to apply for judicial review.

II.  Our view

7.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘Ordinance’) 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.

8.  The matters stated by the applicant in his notice of motion and affirmation do not constitute grounds for granting leave to the Court of Final Appeal. The applicant has failed to identify any question of general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the Ordinance. Nor is there any such question apparent to us from the matters he has raised in his documents.

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

III.  Disposition

10.  For these reasons, the notice of motion dated 25 April 2023 is dismissed.