RE LUU THI TUYET LAN

CAMP 552/2021, [2024] HKCA 38

On Appeal From [2022] HKCA 872

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 552 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 1149 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 November 2023, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s judgment of 21 June 2022 (“the Judgment”) ([2022] HKCA 872). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge CP Pang’s (“the Deputy Judge”) dated 28 January 2021, by which the Deputy Judge refused her application for extension of time and dismissed her application for leave to apply for judicial review ([2021] HKCFI 202).

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 19 July 2022.  The applicant was late for almost 1 year and 4 months when she took out her application for leave to appeal to the Court of Final Appeal.

5.  As 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 only 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, the applicant stated:

“I would like to review my case the Judgement is unreasonable.” (sic)

7.  In her supporting affirmation, the applicant only stated that:

“I’m late to appeal. Requesting an Extension of time.” (sic)

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

9.  At the outset, the applicant’s delay of almost 1 year and 4 months was severely substantial.  She failed to give any reason, let alone good reason for her delay.  Her application for extension of time thus fails on this ground alone.

10.  In any event, for present purpose, the applicant’s application is devoid of merits.  She failed to give any proper ground of appeal and did not identify any specific error in the Judgment.  Clearly, her bare assertion that the Judgment is unreasonable does not constitute a proper ground of appeal.

11.  Further and in any event, even taking it at its highest, her allegation remains fact-specific and does not relate to any question of great general or public importance.

12.  Accordingly, 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.

13.  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.