Re v. Thi Hue

CAMP 150/2022

[2022] HKCA 1717

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 150 OF 2022

(ON AN APPEAL FROM HCAL NO. 1361 OF 2018)

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Before:  Hon Chu VP and M Poon JA in Court

Date of Judgment: 18 November 2022

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J U D G M E N T

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

1.On 12 August 2022, this court handed down a judgment ([2022] HKCA 1162) dismissing the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge C P Pang given on 4 November 2020 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 this court’s judgment to the Court of Final Appeal.  Despite directions given by the Registrar of Civil Appeal, he 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 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.  

6.The applicant’s notice of motion is late by ten days, which is not insignificant delay.  The applicant has not offered any explanation for the delay.  She merely states in her affirmation that she believes the merits of her appeal constitute sufficient justification for the court to exercise its discretion in favour of allowing the appeal out of time.

7.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 she were to return to Vietnam. She would be tortured, beaten up or even killed.  Most of the gangsters there 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. 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.

9.The applicant’s affirmation also complained that the court’s decision was reached unfairly without allowing her an opportunity to clarify her case and the situation in her country.  She also asserted that there is a good ground of appeal that was not necessarily considered at the stage of the judicial review application, but she has not set out what the grounds was.

10.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, the applicant’s arguments have no merits for the reasons we gave at [19] and [20] of our judgment.   

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

12.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.