RE CAO THI HAU

CACV 443/2019

[2023] HKCA 195

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 443 OF 2019

(ON AN APPEAL FROM HCAL NO. 632 OF 2018)

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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 11 June 2020, this court handed down a judgment ([2020] HKCA 461) dismissing the applicant’s notice of motion filed on 16 January 2020, which was treated by the Court as an application for relief from the sanction imposed by the Unless Order dated 13 December 2019.

2.  On 7 December 2022, the applicant filed another notice of motion together with an affirmation to apply for leave to appeal this court’s judgment to the Court of Final Appeal. Despite the directions given by the Registrar of Civil Appeals, he has not put in any written submission to support his application.

3.  Having considered the notice of motion and affirmation, 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.

6.  The applicant’s application for leave to appeal to the Court of Final Appeal is late by more than two years and four months, which is very serious delay. The applicant has given no explanation for the delay.

7.  As to the merits of the application, 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.

8.  The notice of motion states that the applicant will be tortured, beaten or killed because the creditors and gangsters in Vietnam are cruel and violent, have no regard for the law and will readily kill to satisfy their anger and ferocity.

9.  The matters put forward by the applicant relate solely to his claim. No question of great general or public importance, as required by section 22(1)(b) of the Ordinance, had been identified. Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

10.  As the statutory requirements for giving leave to appeal are not met, it would be futile to extend the time for the application for leave to appeal. Accordingly, we dismiss the notice of motion filed on 7 December 2022.