Vu Van Khanh v. Permanent Secretary for Security

CACV 386/2019

[2019] HKCA 1347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 386 OF 2019

(ON APPEAL FROM HCAL 2179/2019)

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BETWEEN

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J U D G M E N T

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

1.On 13 September 2019, the Court (Lam VP and Au JA) made an order striking out and dismissing this appeal because the applicant has not sought the requisite leave to appeal. That order was made after the Registrar of Civil Appeals (“RCA”) had drawn attention to the applicant that leave to appeal was required because the application for judicial review was brought out of time and no extension of time had been granted by the judge. The applicant wrote a letter in Chinese to the Court on 5 September 2019 in response to the direction from the RCA and the Court had read that letter before making the order.

2.After the Court notified the applicant of the dismissal of the appeal, he wrote a letter in Vietnamese of 23 September 2019 which was sent to the Department of Justice.  The Government Counsel forwarded the letter to the Court on 27 September 2019 in light of the fact that it was apparently addressed to the Court.

3.The Court obtained a translation of the letter by a Vietnamese interpreter on 9 October 2019.  It was actually a letter addressing the High Court as well as the Appeal Board.  The applicant reiterated his personal circumstances in the letter.  He also explained for his late application for judicial review by reference to the late receipt of the deportation order.

4.Since our order of 13 September has not been perfected, the Court can re-open the appeal if the letter of 23 September 2019 disclosed something which merit further consideration in the appeal.

5.After reading the letter with its translation, even putting aside the lack of leave, we do not find any merit in the appeal. The personal circumstances of the applicant and the merit of his non-refoulement claim had been duly considered in his previous proceedings which culminated in the dismissal of his appeal in CACV 22/2018 on 7 May 2018. His attempt to further appeal to the Court of Final Appeal against that decision ended with the refusal of leave to appeal.  That decision is final. 

6.As regards the other basis for challenging the deportation order, we fully agreed with the judgment of Chow J of 9 August 2019.  The Court cannot discern any merits in the grounds of appeal set out in the Notice of Appeal.

7.For these reasons, we stand by the decision to dismiss the appeal.

8.On or about 27 September 2019, the applicant applied for legal aid and the Court received notification of the same.  By virtue of the legal aid stay, the Court did not deliver this judgment pending the expiry of the stay.

9.In the meantime, notwithstanding such stay, the applicant issued a Notice of Motion in Chinese seeking leave to appeal to the Court of Final Appeal.  In the Notice of Motion, the applicant contended that his appeal was dismissed without reasons.

10.As it should be clear from the history of the proceedings, the Court had already informed the applicant that leave to appeal is required for the bringing of the appeal (as per the directions of the RCA of 28 August 2019[1]). The applicant’s letter of 5 September 2019 did not advance any explanation why such leave should not be required. In the circumstances, the Court struck out the appeal for want of leave.

11.Hence, it is not correct for the applicant to assert that the reason for the striking out of the appeal is not clear to him.

12.Further, even taking into account of the matters set out in his subsequent correspondence and the Notice of Motion, there is no merit in his attempt to regurgitate submissions on non-refoulement as his application in that regard had been finally determined in CACV 22/2018.  It is an abuse of process for him to do so again in the context of this appeal in CACV 386/2019.

13.For these reasons, there is no merit in the intended appeal to the Court of Final Appeal.  Further, we are not satisfied that the threshold in Section 22 of the Hong Kong Court of Final Appeal Ordinance is met.  The applicant did not raise any question of great general and public importance and there is no other reason for leave to be granted in the interest of justice.

14.We dismiss the Notice of Motion of 4 October 2019 accordingly.

The applicant acting in person

Department of Justice, for the putative respondent and the putative interested party