RE BUI THI THUY

CACV 566/2020

[2021] HKCA 1930

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 566 OF 2020

(ON APPEAL FROM HCAL NO 970 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 (Lam VP as he then was, Yuen and Chu JJA)  handed down judgment on 10 May 2021 ([2021] HKCA 593)  dismissing the applicant’s appeal against an order of DHCJ CP Pang (“the Judge”)  given on 15 October 2020 refusing to grant an extension of time and dismissing the application for leave to apply for judicial review in respect of his non-refoulement claim (“the Judge’s Decision”).

2.  On 21 October 2020, the applicant filed a Notice of Appeal against the Judge’s Decision.  As mentioned earlier, in our judgment of 10 May 2021, we dismissed the applicant’s appeal.  The facts and issues in the appeal 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 21 July 2021, the applicant filed a Notice of Motion.  However, it was out of time, as s.24(2)  of Hong Kong Court of Final Appeal Ordinance (“HKCFAO”)  Cap. 484 stipulates that the deadline for filing an 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 7 June 2021.

4.  However, under s.24(5)  and s.24(6)  of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period.  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. 

5.  In the present case, the applicant was late by more than 6 weeks which is substantial.  In his affirmation dated 21 July 2021, he alleged: “My next-door neighbour’s son mistakenly took my letter as we have the same letterbox.  As soon as she realized her son’s mistake, she handed over the letter to me on Monday 15^th July 2021.”  He further stated that he was unfamiliar with the procedure for appeal and he believes the merits of the ground of appeal constituted sufficient reason to justify the Court’s exercise of its discretion to grant him leave to appeal to the Court of Final Appeal.  The court file showed that our judgment was sent to the applicant on 10 May 2021 and there is no explanation why his neighbour did not return the court document to him until 6 week later. We are not satisfied there is a good reason for the delay.

6.  As to the merits of the intended appeal, the applicant advanced the following in the Notice of Motion:

“1. The learned Judges were wrong as a matter of law for not having applied the principles of irrationality to the decision made by the Director of Immigration refusing my application for Leave for Judicial Review and the Appeal, and

2.  The learned Judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director.”

7.  Pursuant to the directions given by Registrar of Civil Appeals on 21 July 2021 and Practice Direction 2.1, the applicant should lodge his written submissions on or before 4 August 2021. He failed to do so and as directed by the Registrar, he will be deemed to have abandoned his right to rely on written submissions and the matter will be considered by the Court of Appeal based on available evidence.

8.  The Registrar further directed that the Notice of Motion shall be determined on paper only without an oral hearing.  As it is appropriate to do so, we proceeded to determine this application on paper. 

9.  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.

10.  Having regard to the judgment of this court, the applicant’s intended appeal has no merits.  No question of great general or public importance has been identified as required by s.22(1)(b)  of the HKCFAO.   

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

12.  By reason of the above, the Notice of Motion filed on 21 July 2021 is dismissed.