RE BUI VAN TUYEN

CAMP 336/2021

[2022] HKCA 764

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 336 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1689 OF 2018)

_____________________

_____________________

___________________

J U D G M E N T

___________________

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

1.  On 11 March 2022, this court handed down judgment ([2022] HKCA 359) dismissing the applicant’s application to extend time to appeal the decision of Deputy High Court Judge Lung given on 23 July 2020 refusing to give him leave to apply for judicial review.

2.  On 20 April 2021, the applicant filed a Notice of Motion together with an affirmation to apply for leave to appeal this court’s judgment to the Court of Final Appeal. He has also put in a written submission to support his application.

3.  Having considered the applicant’s Notice of Motion, affirmation 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.

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) of the Ordinance further provides that the Court of Appeal may extend the time for the filing of the notice of motion. In considering whether to extend the time, we will have regard to (i) the length of the delay; (ii) the reasons for the delay; (iii) the merits of the intended application; and (iv) the prejudice to the other parties if time was extended.

6.  The applicant’s Notice of Motion is late by more than one week, which is not an insignificant delay. He has provided no explanation for the 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 and the affirmation stated that (i) the Director of Immigration disregarded the applicant’s human rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 and the international covenants; (ii) if the applicant returns to Vietnam, his life will be under serious threat because the gangsters and creditors in Vietnam are cruel, violent, have no regard for human life and will kill people when they are angry; (iii) the applicant and his creditor have not yet agreed on a repayment plan; (iv) the Court reached its decision unfairly without allowing the applicant an opportunity to clarify his case and situation in his country; and (v) there is a good ground of appeal that has not been considered at the stage of applying for judicial review.

9.  The written submission summarised the procedural history of the case and repeated the content of the Notice of Motion. Paragraphs 8 to 12 are identical to the written submission lodged on 19 August 2021 in support of the application for extension of time to appeal (see paragraph 17 of our judgment).

10.  We are of the view that the arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal. Importantly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b) of the Ordinance. Further, for the reasons we gave at paragraphs 17 and 18 of our judgment, the matters raised by the applicant are unarguable. Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

11.  As the statutory requirements for giving leave to appeal have not been met, it is futile to extend the time for the filing of the Notice of Motion. Accordingly, we refuse to extend time and dismiss the Notice of Motion.