RE LUU THI KIM THUY AND ANOTHER

CAMP 595/2021, [2023] HKCA 1296

On Appeal From [2020] HKCFI 2122

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 595 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2705 OF 2018)

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J U D G M E N T

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

1.  This court handed down judgment on 14 December 2022 ([2022] HKCA 1853) dismissing the 1^st applicant’s application for an extension of time to appeal against an order of DHCJ Bruno Chan given on 2 September 2020 in which he refused to grant leave to the 1^st and 2^nd applicants to apply for judicial review in respect of their non‑refoulement claim. As noted in that judgment, the 1^st applicant has stated that only she intends to appeal.

2.  The facts and issues in the application before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.  On 15 August 2023, the 1^st applicant filed a Notice of Motion for leave to appeal against this court’s judgment to the Court of Final Appeal.

4.  The Notice of Motion was filed out of time.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance (“HKCFAO”) (Cap. 484) stipulates that the deadline for filing an application for leave to appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from.  The deadline for filing the Notice of Motion expired on 11 January 2023 (i.e. 28 days from 14 December 2022).

5.  Pursuant to sections 24(5) and 24(6) of the HKCFAO, the Court of Appeal has a discretion to extend the period within which an applicant is required to make the leave application under section 24(2) even though the application for extension is not made until after the expiration of that period.

6.  In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party.

7.  In the present case, the 1^st applicant was late by more than 8 months.  That is a substantial delay.  The 1^st applicant did not give any reasons for the delay in her supporting affirmation for extension of time. 

8.  In any event, the 1^st applicant has not shown any merits in this intended application for leave to appeal to the Court of Final Appeal. 

9.  The 1^st applicant advanced the following in the Notice of Motion:

“TORTURE CLAIMS APPEAL BOARD AND DIRECTOR OF IMMIGRATION DISMISSED MY NONREFOULEMENT CLAIM BUT I DID NOT AGREE. I APPLIED LEAVE TO THE HIGH COURT. THE HIGH COURT AND COURT OF APPEAL DID NOT GIVE ME JUSTICE.”

10.  Notwithstanding the directions of the Registrar of Civil Appeals, the 1^st applicant failed to lodge any written submissions in support of the Notice of Motion.  As it is appropriate to do so, the Notice of Motion is determined on paper without an oral hearing.

11.  Section 22(1)(b) of the HKCFAO 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.

12.  As can be seen from the Notice of Motion, no question of great general or public importance has been identified by the 1^st applicant as required by section 22(1)(b) of the HKCFAO.

13.  Nor do we see any basis for granting leave under the “or otherwise” limb under section 22(1)(b).

14.  By reason of the above, the Notice of Motion filed on 15 August 2023 is dismissed.