RE DO KHANH DUONG

CAMP 116/2023, [2025] HKCA 60

On Appeal From [2022] HKCFI 1722

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 116 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 1301 OF 2021)

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DECISION

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Hon Cheung JA (giving the Decision of the Court)  :

1.  On 19 January 2024, this Court handed down decision ([2024] HKCA 64)  dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge To given on 10 June 2022 refusing his application for leave to apply for judicial review in respect of his non-refoulement claim.

2.  On 30 May 2024, the applicant filed a notice of motion and affirmation applying for leave to appeal this Court’s order to the Court of Final Appeal out of time.  The applicant has not lodged any written submission.

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 have been set out in our decision.  We will not repeat them.

5.  Section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’)  (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)  further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.  The applicant’s present application is out of time by around 3.5 months.  The applicant did not explain in his supporting documents his delay.

7.  As to the merit of the application, 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.

8.  The grounds of appeal stated in the notice of motion are as follows in summary :

1)  The applicant’s life will be seriously threatened if he returns to Vietnam.  The creditors and gangsters in Vietnam are different from those in Hong Kong and most of them are cruel and violent;

2)  The applicant cannot relocate to another part of his home country because there will be difficulties and obstacles, and there is no guarantee that he can adapt to a new place;

3)  The creditors have a nationwide network and can locate him; and

4)  The Director did not consider his human rights under the law.

9.  The grounds as stated in the applicant’s supporting affirmation are as follows in summary :

1)  The decision of the High Court was reached unfairly.  There was no opportunity to the applicant to clarify his case;

2)  A good ground of appeal was not necessarily considered at leave to appeal stage; and

3)  There are merits in his case.

10.  We are of the view that the grounds and arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b)  of the HKCFAO.

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

12.  As the statutory requirements for giving leave to appeal are not met and the intended appeal has no merits, there is no basis for us to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.