RE PHAM VAN KHOA

CAMP 315/2021

[2022] HKCA 1040

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 315 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 244 of 2021)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 2 November 2021, this Court handed down our judgment ([2021] HKCA 1590) refusing to extend the time for the applicant to appeal the decision of Deputy High Court Judge Lung given on 12 May 2021 which refused to give him leave to apply for judicial review.

2.  On 24 May 2022, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal. Despite directions given by the Registrar of Civil Appeals, he has not put in any written submission to support the application.

3.  Having considered the applicant’s notice of motion and affirmation, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing. We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim has been set out in our judgment. We will not repeat them.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Section 24(5) of the Ordinance further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.  The applicant’s notice of motion is late by more than five months, which is serious delay. The applicant has given no explanation for the delay. He only stated in his affirmation that the merits of his ground of appeal constitute sufficient reason justifying the Court exercising its discretion to allow the appeal be made out of time. Having regard to our conclusion below that the intended application for leave to appeal does not meet the statutory threshold, we do not accept that the delay has been satisfactorily explained.

7.  We turn next to consider the merits of the intended appeal. 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.

8.  The notice of motion stated the following in support of the application:

(1)  The Court of Appeal judgment was unsatisfactory.

(2)  The applicant’s life will be seriously threatened and in danger because the creditors and gangsters in Vietnam are cruel and violent, have no regard for the law and will readily kill to satisfy their anger and ferocity. The applicant could be tortured, beaten or killed because he has yet to agree on a repayment plan.

(3)  Internal relocation is not feasible because the gangsters have a nationwide network. Further, the applicant will face many difficulties and obstacles in that his health is not good and he is not an active person, which will disadvantage him in the labour market, and there is also no guarantee that he will be able to adapt to the new environment and able to make a living.

(4)  The Immigration Department did not consider the applicant’s human rights under the Basic law, the Hong Kong Bill of Rights Ordinance and the international covenants.

9.  The applicant also stated in his affirmation that he has a good ground of appeal, but did not elaborate on what the ground is.

10.  We are of the view that the matters set out in the notice of motion and affirmation do not afford any basis for granting leave to appeal. Importantly, they all concern the applicant’s claim and personal circumstances, and do not show that the intended appeal involves any question of great general or public importance. Further, they are unarguable for the reasons we gave in [18] to [20] of our judgment. We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.  As the statutory requirements for giving leave to appeal are not met, it is futile to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.