RE PHAM DUC BANG

CACV 536/2021

[2023] HKCA 337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 536 OF 2021

(ON APPEAL FROM HCAL NO. 492 OF 2021)

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D E C I S I O N

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Hon Cheung JA (giving Decision of the Court) :

1)  Leave to appeal to the Court of Final Appeal

1.  On 11 May 2022, this Court (Cheung JA and Cheng J) gave the decision dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 26 November 2021 by which he refused to grant leave to apply for judicial review against the decision of the Torture Claims Appeal Board.

2.  The applicant now applies, by a notice of motion and supporting affirmation filed on 1 August 2022, for leave to appeal against our decision to the Court of Final Appeal out of time. Despite the directions given by the Registrar of Civil Appeals, the applicant has not put in a written submission to support his application.

3.  Having considered the applicant’s 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 applicant’s notice of motion is glaringly late.  According to section 24 of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’), the applicant’s notice of motion ought to have been filed with the Court within 28 days of our judgment.  The applicant is nearly two months late.  No explanations were provided.  We will not accept the applicant’s delay.

5.  The notice of motion can be summarized as follows.  The claimant stated that if he was refouled, he will be tortured and beaten or even killed by creditors.  Relocation was not possible.  The creditors (or gangsters) have a wide network and no matter where he goes he will be found.  The Immigration Department did not consider his human rights under the applicable human rights law in Hong Kong.  He seeks leave to appeal to Court of Final Appeal.

6.  In the claimant’s supporting affirmation, the claimant basically states that there is a good ground of appeal which was not considered when applying for leave for judicial review, but no such ground was identified.

II.  Legal principles

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

III.  Our view

8.  The matters stated by the applicant in his notice of motion do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the HKCFAO.  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).

IV.  Disposition

10.  For these reasons, the notice of motion filed on 1 August 2022 is dismissed.