RE DINH KHAC TRUNG

CACV 167/2021, [2023] HKCA 561

On Appeal From [2021] HKCFI 844

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 167 OF 2021

(ON APPEAL FROM HCAL NO 1391 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 18 March 2022 ([2022] HKCA 396) dismissing the applicant’s appeal against an order of DHCJ K.W. Lung (“the Judge”) given on 1 April 2021 refusing to grant leave to the applicant to apply for judicial review in respect of his non‑refoulement claim.

2.  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 18 November 2022, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal.  However, it was out of time, as section 24(2) of the 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 last day for filing the Notice of Motion expired on 19 April 2022.   

4.  However, under sections 24(5) and 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 7 months, which is substantial.  No reasons for the delay were given in the Notice of Motion or in his supporting affirmation. 

6.  Moreover, the applicant has not shown any merits in this intended application for leave to appeal to the Court of Final Appeal.  The applicant did not provide any discernible ground for his intended appeal in the Notice of Motion and merely restated that he would be harmed or even killed by gangsters harmed by his customers upon his return to his home country, and that he was disadvantaged in the labour market as he was not active. 

7.  Pursuant to the directions of the Registrar of Civil Appeals made on 18 November 2022, the applicant should lodge his written submissions on or before 2 December 2022.  He failed to do so.  The Registrar further directed that in the event the applicant fails to lodge his written submissions, 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 the available materials, and unless otherwise directed, the Notice of Motion shall be determined on paper only without an oral hearing.  As we consider it appropriate to do so, this Notice of Motion is therefore determined on paper without an oral hearing.   

8.  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.

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

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

11.  By reason of the above, the Notice of Motion filed on 18 November 2022 is dismissed.