RE PHAM THI HIEN Applicant

CAMP 327/2021

[2021] HKCA 1938

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 327 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1290 of 2018)

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J U D G M E N T

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Hon Chu JA (giving the Judgment of the Court):

1.  On 2 November 2021, this Court handed down our judgment[1] refusing to extend the time for the applicant to appeal the decision of Deputy High Court Judge Lung given on 18 March 2021 refusing her application for leave to apply for judicial review.  On 9 November 2021, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  She has also put in a written submission to support her application.

2.  Having considered the applicant’s notice of motion and written submission, 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.

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

4.  Under section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, 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.

5.  The applicant stated in the notice of motion that:

(1)  If she were to return to Vietnam, her life will be seriously threatened and she probably would die.  This is because the creditors and gangsters in Vietnam are cruel and violent; they disregard the law and are prepared to kill people out of anger and ferocity.

(2)  As she has yet to agree a repayment plan with her creditors, she asks that her deportation be postponed.  If she is forcefully repatriated, she will be in danger and will be killed.

(3)  The Director of Immigration did not consider her human rights under the Basic Law, “Hong Kong Human Rights and Democracy Act”, International Covenant on Civil and Political Rights, and International Covenant on Economic, Social and Cultural Rights.

6.  The written submission repeats the matters put forward in the notice of motion, and also the written submission lodged in support of the application for extension of time (see [18] of our judgment).  It additionally explains why the applicant did not report to the police the threat and assault by her creditor and the gangsters.    

7.  The matters and arguments put forward in the notice of motion and the written submission do not constitute viable grounds for giving leave to appeal.  Importantly, they do not involve any question of great general or public importance that ought to be submitted to the Court of Final Appeal for determination.  Further, for the reasons given in [19] of our judgment, the assertions that the applicant will be in danger if refouled is unarguable. 

8.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

9.  As the statutory requirements for granting leave to appeal to the Court of Final Appeal are not met, we refuse the application and dismiss the notice of motion.