RE PHAM HUY TOI

CAMP 558/2021, [2025] HKCA 271

On Appeal From [2024] HKCA 244

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 558 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2810 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 13 February 2025, 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 19 March 2024 (“the Judgment”) ([2024] HKCA 244). 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 Deputy Judge”) dated 17 August 2021, by which the Deputy Judge dismissed his application for leave to apply for judicial review ([2021] HKCFI 2348).

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.  Pursuant to section 24(2) of the HKCFAO, an appellant has 28 days from the date of the Judgment to seek leave to appeal to the Court of Final Appeal.  In the present case, the deadline for the applicant to seek leave to appeal against the Judgment fell on 16 April 2024.  Accordingly, the applicant was almost ten months late in taking out his 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 his Notice of Motion, the applicant stated:

“1. This is a Notice of Motion for leave to appeal to the Court of Final Appeal against the judgement of the Court of Appeal handed down on 19 March 2024.

2. It was unsatisfactory that the Court of Appeal ruled in the judgement of case no. CAMP 558/2021 that I had no chance of success in reviewing the Torture Claim Appeal Board’s decision and the Court refused my application for extension of time to appeal.

3. I humbly request the Court of Appeal to give me a chance to seek justice and help me get asylum in Hong Kong.

I sincerely request the Court grant me to appeal to the Court of Final Appeal.” (sic)

7.  In his affirmation dated 13 February 2025, the applicant also stated that:

“I intend to apply to the Court of Appeal for leave to appeal to the Court of Final Appeal from the judgement of the Court of Appeal. The Decision made by the Court of Appeal has been reached unfairly without allowing me an opportunity to clarify my case and situation in my country.” (sic)

8.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 24 February 2025. [1]  The applicant complained that he was being detained for a long time and that he did not have any legal or language assistance or legal aid.  He thus complained that the Director’s Decision, the Board’s Decision and the judgments against him were unfair.  He also complained that he was not required to attend the oral hearing in court and the Leave Decision was reached based on consideration of documents which was unfair to him.  He then reiterated the factual basis of his non-refoulement claim, alleging that he would face hardship upon refoulement, that “the point in his case” was ignored by the authorities and that the decisions were not transparent as the real situation in his home country was much different than what the decision makers thought.  He also asserted that torture and deaths were common there and that the police would just give support to whoever bribed them.

9.  At the outset, the applicant’s delay of over ten months is severely substantial and he fails to provide any reason, let alone good and sufficient reason, to support his delay.

10.  In our view, the applicant’s application is plainly devoid of merit.  His assertions are all vague, bare and unsupported by any specific particular or evidence.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  More importantly, he fails to identify any specific error in the Judgment.  His submissions do not constitute proper grounds of appeal.

11.  More importantly, most of his assertions raised in his written submissions are new grounds not raised in the court below or previously before the court in his reapplication for extension of time to appeal.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed previously before it; nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal: see Re Orense Marian Masangkay [2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh [2021] HKCA 870 at [7].

12.  In any event, his arguments have no substance.  The applicant’s intended leave application to apply for judicial review is directed against the Board’s Decision dated 19 November 2018 and not any decision to detain the applicant.  As such, his complaint in relation to detention is irrelevant and has no bearing.  As to the lack of language and legal assistance, it is trite that the high standards of fairness required by law do not necessarily entail free legal representation at all stages of the proceedings or interpretation service being made available at any time the applicant desires: see Barroga Escolastica Tejero v Torture Claims Appeal Board & Another [2021] HKCA 279 at [3] and the authorities cited therein. In any event, the applicant was legally represented and provided with interpretation services at the screening interview with the Immigration Department.  The court documents lodged by the applicant in the present application are all in English.  The court documents lodged by the applicant before the Deputy Judge and before the Court were in Chinese.  He clearly has knowledge in English and Chinese or, at the very least, has language assistance of his own.  The applicant also never requested any translation services to be provided to him or raised any issue as to language problems prior to his Notice of Motion.  Accordingly, there is no substance in the applicant’s complaints and we see no real prejudice being suffered by the applicant in relation to his alleged lack of language and legal assistance.  We also see no substance in his complaint on the lack of oral hearing before the Deputy Judge as he never requested for one in the first place.

13.  Further and in any event, even taking his case at its highest, his allegations remain fact-specific and do not relate to any question of great general or public importance.

14.  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.

15.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion filed on 13 February 2025 is dismissed.