Re v. Thi Nhung

CACV 58/2021

[2023] HKCA 204

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 58 OF 2021

(ON APPEAL FROM HCAL NO 1224 OF 2018)

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J U D G M E N T

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

1.This court handed down judgment on 31 December 2021 ([2021] HKCA 1994)  dismissing the applicant’s appeal against an order of DHCJ C P Pang (“the Judge”)  given on 1 February 2021 refusing to grant leave to the applicant to apply for judicial review in respect of her non-refoulement claim.

2.The facts and issues in the appeal before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.On 5 May 2022, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal.  However, it was out of time, as section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (“HKCFAO”)  (Cap. 484)  stipulates that the deadline for filing an appeal from a judgment of the Court of Appeal is 28 days from the date of the judgment to be appealed from.  The deadline for filing the Notice of Motion expired on 28 January 2022.

4.However, under sections 24(5)  and 24(6)  of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period.  In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party.

5.In the present case, the applicant’s delay was substantial.  No reasons for the delay were given in the Notice of Motion or in her supporting affirmation.

6.Moreover, the applicant has not shown any merits in this intended application for leave to appeal to the Court of Final Appeal.  The applicant did not provide any discernible ground for her intended appeal in the Notice of Motion and merely complained that this court dismissed her appeal against the Judge’s decision and that she would be harmed by her creditor and gangsters upon her return to her home country.  She considered that the Director of Immigration had disregarded her human rights and she urged this Court to give her a chance to seek justice and to grant leave to her to appeal to the Court of Final Appeal.

7.Pursuant to the directions of the Registrar of Civil Appeals made on 5 May 2022, the applicant lodged her written submissions[1] on 18 May 2022.  As it is appropriate to do so, the Notice of Motion is determined on paper without an oral hearing.

8.In her written submissions, she merely repeated the factual background of her case and her complaints as set out in the Notice of Motion.

9.Section 22(1)(b)  of the HKCFAO 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.

10.Having regard to this court’s judgment, the applicant’s intended appeal has no merit at all.  No question of great general or public importance has been identified as required by section 22(1)(b)  of the HKCFAO.  

11.Nor do we see any basis for granting leave under the “or otherwise” limb under section 22(1)(b).

12.By reason of the above, the Notice of Motion filed on 5 May 2022 is dismissed.

The applicant, unrepresented, acting in person