Re Nguyen Duy Quan

CAMP 127/2022

[2022] HKCA 1839

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 127 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 914 of 2018)

__________________________

__________________________

Before: Hon Chu VP and M Poon JA in Court

Date of Judgment: 15 December 2022

________________

JUDGMENT

________________

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

1.On 12 August 2022, this Court handed down our judgment ([2022] HKCA 1164) refusing to extend the time for the applicant to appeal the decision of Deputy High Court Judge Bruno Chan given on 8 April 2021 which refused to give him leave to apply for judicial review.     

2.On 19 October 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, he has not put in a written submission to support the application.

3.Having considered the applicant’s 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 has 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.

6.The deadline for the applicant to file his notice of motion is 9 September 2022.  The applicant’s notice of motion is late by more than one month, which is a significant delay.  The applicant has given no explanation for the delay.  He only stated in his affirmation that the merits of his ground of appeal constitute sufficient reason justifying the Court exercising its discretion to allow the appeal be made out of time.  Having regard to our conclusion below that the intended application for leave to appeal does not meet the statutory threshold, we do not accept that the delay has been satisfactorily explained.

7.We turn next to consider the merits of the intended appeal.  Section 22(1)(b) of the Hong Kong 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.

8.The notice of motion stated the following in support of the application:

(1)  The Court of Appeal judgment was unsatisfactory.

(2)  Internal relocation is not feasible because the applicant will face many difficulties and obstacles in that his health is not good and he is not an active person, which will disadvantage him in the labour market, and there is also no guarantee that he will be able to adapt to the new environment and able to make a living.

(3)  Vietnam is a unified state, with one party, one government and a unified ideology.  The applicant is a reactionary and, wherever he goes, he will be chased and arrested by the police and government authority.  It can be very dangerous for him if he were to try to escape to other parts of Vietnam.

(4)  The Immigration Department did not consider the applicant’s human rights under the Basic law, the Hong Kong Bill of Rights Ordinance and the international covenants.

9.The applicant also stated in his affirmation that the Court has reached its decision unfairly without allowing him an opportunity to clarify his case and situation in his country.  He also said he has a good ground of appeal, but did not elaborate on what the ground is. 

10.We are of the view that the matters set out in the notice of motion and affirmation do not afford any basis for granting leave to appeal.  Importantly, they all concern the applicant’s claim and personal circumstances, and do not show that the intended appeal involves any question of great general or public importance.  Further, for the reasons we gave in [18] of our judgment, they are unarguable.  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 is futile to extend the time for the filing of the notice of motion.  Accordingly, we dismiss the notice of motion.  

The applicant, unrepresented, acted in person.