Re Le Van Trien

CACV 253/2021

[2022] HKCA 457

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 253 OF 2021

(ON APPEAL FROM HCAL NO 2638 OF 2018)

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Before:  Hon Au and Chow JJA in Court

Date of Judgment:  25 March 2022

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.On 15 December 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Au and Chow JJA)  judgment of 2 December 2021 (“the Judgment”)  ([2021] HKCA 1806). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  dated 6 May 2021 refusing the applicant’s application for leave to apply for judicial review ([2021] HKCFI 1211).

2.The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or 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.

4.In his Notice of Motion, the applicant alleges that if he is returned to Vietnam, his life will be seriously threatened or he will be killed as the creditors and gangsters in Vietnam are different from those in Hong Kong and are cruel and violent.  He further claims that the Immigration Department failed to consider his human rights when ordering his deportation.

5.The applicant lodged his written submissions on 28 December 2021.  In those submissions, the applicant repeats the alleged factual basis of his non-refoulement claim and cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contends that high standards of fairness are required in the determination of a torture claim.  He submits that the Board acted in a procedurally unfair manner without properly assessing his credibility.  He refers to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body is liable to be set aside if it is reached unreasonably.  It is however noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case.

6.In our view, the applicant’s intended appeal has no merit at all.  None of the matters raised in his Notice of Motion has identified any specific error in the Judgment.  General assertions of his fear to return to his home country simply do not constitute viable grounds of appeal.  The matters raised in his Notice of Motion are all general and bare allegations unsupported by specific particulars or evidence.  Clearly, they do not constitute proper grounds of appeal.

7.Moreover, apart from the alleged factual basis of his non-refoulement claim, none of the arguments raised in his written submissions were argued before the Deputy Judge or before this Court in his earlier appeal.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it; nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal: see Re Orense Marian Masangkay [2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh [2021] HKCA 870 at [7].  In any event, his arguments are all general and bare assertions unsupported by particulars.  He has also failed to show how the legal propositions as stated in his written submissions relate to his case.  More importantly, none of his submissions has identified any error in the Judgment.  As such, they are not viable grounds of appeal.

8.The applicant’s contentions are also fact-specific and do not relate to any question of great general or public importance.

9.Accordingly, the applicant has also failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

10.For these reasons, the application for leave to appeal to the Court of Final Appeal is refused and the Notice of Motion filed on 15 December 2021 dismissed.

The applicant acting in person