Vu Van Khanh v. Director of Immigration

CACV 22/2018

[2018] HKCA 431

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 22 OF 2018

(ON APPEAL FROM HCAL NO. 843 of 2017)

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JUDGMENT

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

1.On 7 May 2018 we handed down our judgment dismissing the applicant’s appeal against the decision of Chow J (“the Judge”) given on 24 January 2018 refusing him leave to apply for judicial review.  

2.By a Notice of Motion dated 7 June 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal together with an affirmation explaining the delay in making the application.

3.Despite directions given by the Registrar of Civil Appeals on 8 June 2018, the applicant has not put in any written submission to support his application.  The putative respondent has on 29 June 2018 lodged a written submission to oppose the application.

4.Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 (“the Ordinance”), a notice of motion 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. 

5.Under section 24(5) of the Ordinance, this Court may extend the time for filing a notice of motion. 

6.This Court has held that very good grounds have to be shown before the Court’s discretion to extend time under section 24(5) can be exercised.  The relevant factors are (1) length of the delay, (2) reason for delay, (3) merits of the proposed appeal, and (4) prejudice to the other party, see: Full Wisdom Holdings Limited & others v. Traffic Stream Infrastructure Company Limited & Others (unreported) CACV 266/2003, 27 July 2004 at [7]; Wing Hang Bank Ltd v. Crystal Jet International Ltd & Others (unreported) CACV 255/2002, 9 March 2006 at [6] to [7]; Bowlstar (HK) Ltd v. Ho Kwai Po (unreported) CACV 156/2006, 10 July 2007 at [2]; Elijah Saatori v. Raffles Medical Group (unreported) CACV 109/2008, 11 March 2009 at [3]; and Tsit Wing (Hong Kong) Company Limited & Others v. TWG Tea Company Pte Ltd & Another (unreported) CACV 191/2013, 29 January 2015 at [7].

7.In the present case, the applicant’s Notice of Motion was filed 3 days late.  It is not a serious delay.  The applicant explained in his affirmation that he did not know the law and was not aware that he had to file the application within 28 days.  We are prepared to accept the explanation.

8.We turn next to consider the merits of the proposed appeal, which is the most important consideration in deciding whether to exercise the discretion to extend time. 

9.Under section 22(1)(b) of the Ordinance, this Court may grant leave to appeal to the Court of Final Appeal 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.

10.The applicant has not set out in his Notice of Motion any question that he seeks to submit to the Court of Appeal for determination.

11.In his Notice of Motion, the applicant only stated that he came to Hong Kong to escape from an unlicensed moneylender to whom he was indebted.  The applicant said the moneylender had uttered threats and seriously beaten him up to extract repayment from him and to force him to steal when he could not repay.  He also said that this moneylender had a wide connection and could find him even though he took up jobs in discreet places.  The applicant claimed that his family was helping him to repay the debt and asked to remain in Hong Kong for a little longer and not to be repatriated to Vietnam where his life will be in great danger. 

12.What the applicant stated in the Notice of Motion relates only to his personal circumstances.  No question of great, general or public importance is involved.  What was said by the applicant also do not amount to arguable grounds of appeal against the Judge’s decision to refuse him leave to apply for judicial review.  There is also no other reason for submitting the proposed appeal to the Court of Final Appeal for decision.  The condition for giving leave to appeal is not met.

13.For the reasons set out above, we dismiss the applicant’s Notice of Motion. We make no order on the costs of the application.

The applicant, unrepresented, acted in person.

Ms Patricia Lam, Government Counsel, of the Department of Justice for the putative respondent.