Re Dinh Huu Tien

CACV 537/2021

[2023] HKCA 383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 537 OF 2021

(ON APPEAL FROM HCAL NO. 147 OF 2019)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court)  :

1.On 17 May 2022, this Court handed down judgment ([2022] HKCA 699)  dismissing the applicant’s application to appeal an order of Deputy High Court Judge Bruno Chan given on 24 November 2021 refusing his application for leave to apply for judicial review in respect of his non-refoulement claim.

2.On 14 November 2022, the applicant filed a notice of motion supported by an affirmation applying for leave to appeal this Court’s order to the Court of Final Appeal out of time.  The applicant did not lodge written submissions.

3.Having considered the applicant’s documents, 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 (‘HKCFAO’) (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)  further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.The applicant’s present application is out of time by over five months.  The applicant did not explain in the supporting affirmation his delay.  The affirmation stated the applicant’s belief that there is a good ground of appeal which was not considered when applying for leave for judicial review, but no such ground was identified.

7.As to the merit of the intended appeal, 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.

8.The notice of motion contains seven paragraphs.  In summary, the applicant stated that he will be killed by gangsters hired by his (former)  customers for failing to return them their money.  Internal relocation was not possible.  The gangsters have a wide network and can find the applicant easily.  The Director did not consider the applicant’s rights under the law in force.  In short, the applicant’s complaints are factual findings that were made against him.

9.We are of the view that the grounds and arguments put forward by the applicant are devoid of merit.  They do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b)  of the HKCFAO.

10.Nor do we 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, the intended appeal has no merit and there is no basis for us to extend the time for the filing of the notice of motion.  Accordingly, we dismiss the notice of motion.

Applicant, unrepresented, acting in person