Re Nguyen Thi Le

CACV 539/2021

[2022] HKCA 1631

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 539 OF 2021

(ON APPEAL FROM HCAL NO. 1610 OF 2018)

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Before:  Hon Chu JA and ST Poon J in Court

Date of Judgment:  31 October 2022

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.On 30 May 2022, this Court handed down our judgment ([2022] HKCA 726) dismissing the applicant’s appeal against the decision of Deputy High Court Judge P Li (“the Judge”) given on 18 November 2021 refusing to extend the time for her to apply for judicial review and dismissing her application for leave to apply for judicial review.  

2.On 19 September 2022, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  Despite directions given by the Registrar of Civil Appeals, she has not lodged 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.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.  

5.The applicant’s notice of motion is late by more than two months, which is a significant delay.  The applicant has not offered any explanation for the delay.

6.As to the merits of the intended application, section 22(1)(b) of the 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.

7.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 was fortunate not to have been killed.  Although the applicant has not been assaulted by her creditors, it is possible that she can be killed if they get angry and lose control. Her daughter is very young and always stay with her, so she is also at risk of being killed; (3) the applicant cannot relocate to avoid her creditors and the gangsters.  She does not enjoy heath and is not an active person.  She will be disadvantaged in the labour market, and there is no guarantee that she can find a job or adapt to the new location.  With nationwide social media, it is quite possible that the gangsters would find out her new residence; and (6) the Director and the Torture Claims Appeal did not consider the applicant’s human rights under the Basic Law, Hong Kong legislation and the international covenants.

8.The applicant also complained in her affirmation that our judgment was reached unfairly without giving her an opportunity to clarify her case and the situation in her country.

9.The matters put forward in the Notice of Motion and affirmation 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.  Further, they have no merits and are unarguable for the reasons we gave at [2], [3], [14] an [15] of our judgment.         

10.We also do not see any basis for granting leave on the “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 the application.  Accordingly, we dismiss the notice of motion.

The applicant, unrepresented, acted in person.