RE DANG THI THU

CACV 165/2021

[2023] HKCA 403

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 165 OF 2021

(ON APPEAL FROM HCAL 1396 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 10 May 2022, the applicant filed a Notice of Motion out of time to apply for leave to appeal to the Court of Final Appeal against this Court’s (Au JA and L Wong J)  judgment of 29 December 2021 (“the Judgment”)  ([2021] HKCA 1931). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung dated 1 April 2021, refusing her application for leave to apply for judicial review ([2021] HKCFI 845)  (“the Leave Decision”).

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 the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 26 January 2022.  Accordingly, the applicant was late for over 3.5 months in taking out her application for leave to appeal to the Court of Final Appeal.

5.  Although 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 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[1], the applicant merely reiterated the factual basis of her non-refoulement claim and that she fled Vietnam and escaped to Hong Kong as she was beaten by her creditor for her failure to repay her debts.  In her supporting affirmation, she claimed that owing to the pandemic, she was late in receiving the letter from the Court and upon receiving the Judgment, she was already out of time.

7.  Contrary to Practice Direction 2.1, the applicant did not lodge any written submissions.

8.  At the outset, it is noted that a delay of 3.5 months is very substantial and the applicant failed to provide any good reason in support of her delay.  Although the applicant alleged that she received the Judgment late owing to the pandemic, she provided no supporting evidence or specific particulars as to her allegations.

9.  More importantly, her intended application is wholly without substance.  The allegations made in her Notice of Motion are all bare and vague allegations unsupported by any evidence. She did not identify any specific error in the Judgment with sufficient particulars.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  The applicant’s intended appeal plainly has no merit.

10.  Further, even taking her case at its highest, her allegations are fact-specific and do not relate to any question of great general or public importance.

11.  The applicant has 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.

12.  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 is dismissed.