RE BUI DUC HIEN

CAMP 312/2023, [2025] HKCA 1112

On appeal from [2023] HKCFI 953

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 312 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 788 OF 2022)

_____________________

_____________________

___________________

J U D G M E N T

___________________

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

1.  On 20 March 2025, this court handed down a judgment ([2025] HKCA 262) refusing to extend the time for the applicant to appeal the decision of Deputy High Court Judge Bruno Chan given on 20 April 2023 which refused to extend the time for applying for judicial review and dismissed his application for leave to apply for judicial review.

2.  On 18 July 2025, the applicant filed a Notice of Motion to apply for leave to appeal this court’s judgment to the Court of Final Appeal.  Despite directions of the Court, the applicant has not lodged any written submission to support the application.

3.  Having considered the Notice of Motion, 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 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) also provides that the Court of Appeal may extend the time for applying for leave to appeal, on such terms as it considers appropriate.  In considering whether to extend the time for applying for leave to appeal, the Court will take into account (i) the length of the delay, (ii) the reasons for the delay; (iii) the merits of the intended appeal, and (iv) the prejudice to the putative respondent or putative interested party if the time was extended.  

6.  The applicant’s application is late by three months, which is a serious delay.  The applicant has not provided any explanation for the delay.  His affirmation only asserts that there is a good ground of appeal which constitute sufficient justification for the court to exercise its discretion to allow the appeal to be brought out of time. However, he has not set out what the ground of appeal is.  We are not satisfied that the applicant has satisfactorily explained his delay. 

7.  As to 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 that: (1) the creditors and gangsters in Vietnam are cruel, violent and will readily kill people; the applicant will be tortured, beaten or killed by the gangsters if he returns to Vietnam; (2) internal relocation is not feasible because the applicant will face many difficulties and obstacles, he will be disadvantaged in the labour market and he may not be able to adapt and find a job to support himself; (3) the gangsters will be able to track the applicant as they have a nationwide network and clandestine connections with corrupt government officials and police officers; and (4) the Director has disregarded the applicant’s human right..

9.  We are of the view that the grounds put forward by the applicant do not constitute viable grounds for granting leave to appeal. Critically, all the grounds relate solely to the circumstances and facts of his claim.  No question of great general and public importance, as required by section 22(1)(b) of the Ordinance, has been identified.  Further, none of these grounds had been raised in the Court of First Instance or in the renewed application made to the Court of Appeal.  It is not permissible for the applicant to put forward arguments that had not been raised and considered before, especially when these grounds are fact-sensitive.  There is, in any event no evidence in the case to support the assertions made in the Notice of Motion.

10.  We also do not see any basis for the “or otherwise” limb under section 22(1)(b). 

11.  As the statutory requirements for giving leave to appeal are not met, the Notice of Motion is dismissed.