Re Nguyen Van Hong

CAMP 202/2022

[2022] HKCA 1569

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 202 OF 2022

(ON AN APPEAL FROM HCAL NO. 2859 OF 2018)

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J U D G M E N T

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

1.On 3 August 2022, this court handed down a judgment ([2022] HKCA 1126)  dismissing the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge Lung given on 5 May 2020 refusing to give him leave to apply for judicial review.

2.On 8 September 2022, 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.  Despite directions given by the Registrar of Civil Appeal, the applicant has not put in any written submission to support the application.

3.Having considered the Notice of Motion and affirmation, 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 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.  Under section 24(5), the Court of Appeal may extend the time for the filing of the notice of motion if there is good cause for doing so.  In considering whether to extend the time for making the application, the Court will have regard to (1)  the length of the delay; (2)  the reasons for the delay; (3)  the merits of the intended application; and (4)  the prejudice that may be occasioned to the other parties if the time is extended.

6.The applicant’s notice of motion is late by eight days, which is not insignificant delay.  The applicant has provided no explanation for his delay. He only stated in his affirmation that he has a good ground of appeal and he believed the merits of this ground of appeal constitute sufficient justifications for the court to exercise its discretion to allow him to appeal out of time.  He, however, has not elaborated on what the ground of appeal is about.

7.As to the merits of the intended application, section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 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 states that: (1)  it was unsatisfactory that this Court found the applicant had no chance of success in the intended judicial review; (2)  the applicant’s life would be seriously threatened if he were to return to Vietnam.  He would be tortured, beaten up or even killed.  Most of the gangsters in Vietnam are cruel, violent, have no regard for the law, and will readily kill people out of anger; (3)  the Director of Immigration’s suggestion that the applicant could relocate is completely not feasible.  The applicant does not enjoy heath and is not an active person.  He will be disadvantaged in the labour market, and there is no guarantee that he can find a job or adapt to the new location.  With nationwide social media, it is quite possible that the gangsters would find out his new residence; and (6)  the Director and the Torture Claims Appeal Board did not consider the applicant’s human rights under the Basic Law, Hong Kong legislation and the international covenants.

9.The matters put forward in the Notice of Motion do not amount to viable grounds for the intended appeal.  Importantly, the applicant fails to identify any question of great general and public importance, as required by section 22(1)(b)  of the Ordinance, had been identified.

10.We also do not see any basis for the “or otherwise” limb under section 22(1)(b). 

11.As the statutory requirements for giving leave to appeal are not met, it would be futile to extend the time for making the application, Accordingly, we dismiss the Notice of Motion.

The applicant, unrepresented, acting in person.