RE NGUYEN KHAC CHUNG

CACV 278/2025, [2025] HKCA 1048

On appeal from [2025] HKCFI 1782

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 278 OF 2025

(ON APPEAL FROM HCAL NO. 3781 of 2019)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

1.  On 15 August 2025, this Court handed down our judgment ([2025] HKCA 743)  dismissing the applicant’s appeal against the decision of Deputy High Court Judge Philips Wong (“the Judge”)  given on 2 May 2025 refusing him leave to apply for judicial review.  

2.  On 28 August 2025, the applicant filed a Notice of Motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant had also lodged a written submission to support his application. 

3.  Having considered the applicant’s notice of motion and 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 his notice of motion.

4.  Under section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, 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.

5.  The grounds of appeal in the Notice of Motion are the same as the grounds of appeal in the Notice of Appeal: see the summary in [14] of our judgment.

6.  The applicant’s written submission recited the background and basis of the applicant’s claim, some provisions in the International Covenant on Civil and Political Rights, the United Nations Convention Against Torture, the Hong Kong Bill of Rights Ordinance, Cap. 383 and the Basic Law as well as passages in cases on state acquiescence and Wednesbury unreasonableness.  It also cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and submitted that high standards of fairness are required because the decision had the effect of finally disposing of the applicant’s claim, making him liable to be removed.  It further argued that under the common law there are minimum standards of procedural fairness, and a decision maker was under a duty to act fairly, citing Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 383D; Pearl Securities Limited v Stock Exchange of Hong Kong Limited [1999] 2 HKLRD 243, 253C-D; and Rowse v Secretary for the Civil Service & Ors [2008] 5 HKLRD 217.   

7.  All the matters stated in the Notice of Motion, the affirmation and the written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  Firstly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b).  Secondly, as stated in [19] of our judgment, the grounds of appeal are irrelevant as the Torture Claims Appeal Board did not make any determination on the merits of the applicant’s non-refoulement claim.  Thirdly, neither the grounds of appeal nor the written submissions have engaged the reasons we gave for dismissing the appeal.  The applicant has also not shown how the law and cases cited in the written submission relate to his case. 

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

9.  As the statutory requirements for giving leave to appeal are not met, we dismiss the Notice of Motion.