RE HOANG KIM DUNG

CACV 334/2022, [2024] HKCA 681

On Appeal From [2022] HKCFI 2454

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 334 OF 2022

(ON APPEAL FROM HCAL NO. 2143 OF 2018)

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JUDGMENT

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

I.  Leave to appeal to the Court of Final Appeal

1.  On 28 April 2023, this Court (Poon CJHC and Cheung JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge K W Lung given on 9 August 2022 in which he refused to grant leave to the applicant to apply for judicial review.

2.  The facts and issues of the appeal as well as the Court’s reasons for dismissing it are set out in our judgment.  We will not repeat them here.

3.  Pursuant to the directions of the Registrar of Civil Appeals dated 27 June 2023, the applicant was to lodge and serve on or before 11 July 2023 written submissions failing which she will be deemed to have abandoned her right to rely on written submissions and the matter will be considered by this Court based on the available materials.  The applicant has not lodged or served written submission by the stipulated deadline.

4.  Having considered the applicant’s documents, 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.

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 now applies, by a notice of motion and affirmation filed on 27 June 2023, for leave to appeal against our judgment to the Court of Final Appeal out of time by almost one month.  The applicant did not provide any explanation for the delay.  The applicant stated in her notice of motion in summary the following points :

1)  It was unsatisfactory that the Court of Appeal ruled that the applicant had no chance of success;

2)  If the applicant is refouled to Vietnam she will be threatened or become dead because the gangsters in Vietnam are different to those in Hong Kong most of them being cruel and violent;

3)  The applicant cannot live in another location in Vietnam because there will be many difficulties and obstacle.  The applicant’s health is not good.  There is no guarantee that the applicant can adapt to the new place;

4)  There is a nationwide social network of gangsters with corrupt people in the government.  The gangsters will probably find the applicant; and

5)  The problem with the applicant’s appeal is that the Immigration Department did not consider the applicant’s human rights under the Basic Law.

7.  The applicant stated in her affirmation in summary the following points :

1)  The Court of Appeal’s decision was reached unfairly without allowing the applicant an opportunity to clarify; and

2)  A good ground of appeal was not considered at the stage of the application for leave to apply for judicial review.

II.  Our view

8.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘Ordinance’) leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

9.  The applicant has failed to identify any question of general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the Ordinance.  Nor is there any such question apparent to us from the matters she has raised in her documents. 

10.  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b) of the Ordinance.

III.  Disposition

11.  For these reasons, the notice of motion dated 27 June 2023 is dismissed.