RE DOAN DUY BA

CAMP 540/2021

[2022] HKCA 1220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MIXCELLANEOUS PROCEEDINGS NO. 540 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1095 OF 2021)

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J U D G M E N T

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

1.  On 18 March 2022, this court handed down a judgment ([2022] HKCA 378) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Lung given on 20 September 2021 refusing to extend the time for him to apply for judicial review and dismissing his application for leave to apply for judicial review.

2.  On 23 June 2022, the applicant filed a Notice of Motion together with an affirmation to apply for leave to appeal this court’s judgment to the Court of Final Appeal.  Despite directions given by the Registrar of Civil Appeals, he has not put in a written submission to support his application.

3.  Having considered the Notice of Motion and the 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.  In considering whether to extend the time, we will have regard to (i) the length of the delay; (ii) the reasons for the delay; (iii) the merits of the intended application; and (iv) the prejudice to the other parties if time was extended.  

6.  The applicant’s Notice of Motion is late by more than two months, which is substantial delay.  No explanation has been given for the delay.  The applicant only stated in his affirmation that he believed the merits of the appeal was sufficient reason justifying the Court exercising its discretion to allow the appeal out of time.

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 stated that relocation is not feasible as the applicant would face many difficulties and obstacles, given he does not enjoy good health and is not an active person.  It is said that he will be disadvantaged in the labour market and cannot make a living to support herself.  It also complained that the Director did not consider the applicant’s human rights.  Finally, it said that the creditors and gangsters in Vietnam are cruel and violent, have no regard for the law and will readily kill people, and that, if the applicant is repatriated, her life will be in danger. 

9.  The affirmation further complained that the Judge’s decision was reached unfairly without allowing him an opportunity to clarify his case and his situation in his country. 

10.  The matters set out in the Notice of Motion and the affirmation all relate to the applicant’s claim.  No question of great general or public importance has been identified, as required by section 22(1)(b) of the Ordinance.  Nor do we see any basis for the “or otherwise” limb under section 22(1)(b). 

11.  As the statutory requirements for giving leave to appeal are not met, it would be futile to extend the time for applying for leave to appeal. Accordingly, we dismiss the Notice of Motion.