RE HOANG BICH NGOC

CAMP 304/2022

[2023] HKCA 333

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 304 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 739 of 2021)

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J U D G M E N T

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Hon Chu VP giving the Judgment of the Court:

1.  On 15 December 2022, this Court handed down our judgment ([2022] HKCA 1841)  refusing to extend the time for the applicant to appeal the decision of Deputy High Court Judge Lung given on 17 September 2021 which dismissed her application for leave to apply for judicial review.    

2.  On 16 January 2023, 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, the applicant has not put in a 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 four days, which is not an insignificant delay.  The applicant has given no explanation for the delay.  She only stated in her affirmation that the merits of her 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 in serious danger if she returns to Vietnam because the creditors and gangsters there are cruel and violent, have no regard for the law and will readily kill people. She will be tortured, beaten or even killed when the gangsters get very angry.

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

(4)  With the nationwide network of the gangsters and their connections with corrupt people in the government and police, it is quite possible for her creditor to locate her.

(5)  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 the Court has reached its decision unfairly without allowing her an opportunity to clarify his case and situation in his country.  She also said she 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, for the reasons we gave in [20] of our judgment, they are unarguable.  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.