RE DO VAN CUONG

CAMP 138/2023, [2024] HKCA 549

On Appeal From [2024] HKCA 269

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 138 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 111 OF 2022)

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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 27 March 2024, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this court’s judgment of 20 March 2024 (“the Judgment”) ([2024] HKCA 269). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) dated 13 May 2022, by which the Judge dismissed his application for leave to apply for judicial review ([2022] HKCFI 1377).

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 of considering 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.  In his Notice of Motion, the applicant asserted that he would be killed, tortured or beaten by his creditors and the gangsters if refouled and that internal relocation would not be feasible given his health.  He further alleged that the Immigration Department failed to consider his human rights under various legislations but failed to elaborate on his assertions.  He further claimed that he was late in filing his appeal because he did not receive the refusal letter from the Court of First Instance and that he did not understand Chinese.  As such, it took him a long time to find a friend to help him translate the refusal letter and to file his appeal.

5.  Contrary to Practice Direction 2.1, the applicant failed to lodge his written submissions.

6.  At the outset, he gave no evidence in support for his alleged reason for delay or allegation that he failed to receive the court’s refusal letter.  According to the court’s record, the Leave Decision and sealed order were delivered to the applicant’s last known address without being returned as undelivered post.

7.  In our view, there is no merit in his application.  The matters raised in the Notice of Motion are all general and bare allegations without any specific particulars or explanation.  General assertions of fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Furthermore, the applicant’s complaints are directed mainly at the Director’s and the Board’s Decisions.  He fails to give any specific particulars as to any errors in the Judgment.  Accordingly, his allegations do not constitute proper grounds of appeal and are in any event devoid of merit.

8.  Further and in any event, even taking them at their highest, the applicant’s allegations remain fact-specific and do not relate to any question of great general or public importance.

9.  Accordingly, the applicant fails 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.

10.  For these reasons, the applicant’s intended appeal has no merit.  Accordingly, the Notice of Motion is dismissed.