Re Le Thi Anh

CAMP 23/2022, [2024] HKCA 374

On Appeal From [2023] HKCA 121

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 23 OF 2022

(ON AN INTENDED APPEAL FROM HCAL 2827 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.On 14 December 2023, the applicant filed a Notice of Motion to apply for leave to appeal out of time to the Court of Final Appeal against this court’s (Yuen and Au JJA) judgment of 10 February 2023 (“the Judgment”) ([2023] HKCA 121).  In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge KW Lung’s (“the Judge”) dated 10 September 2021, by which the Judge dismissed her application for leave to apply for judicial review ([2021] HKCFI 2608).

2.The facts and issues in the appeal, as well as this court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this court or the Court of Final Appeal 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.

4.Further, pursuant to section 24(2) of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 10 March 2023.  Accordingly, the applicant was late for over nine months in taking out her application for leave to appeal to the Court of Final Appeal.

5.As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5) of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad [2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the Court is entitled to take into account (a) the length of the delay; (b) the reasons for the delay; (c) the chances of the appeal succeeding if an extension of time is granted; and (d) the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83 at [4] and the authorities cited therein.

6.In her Notice of Motion filed on 14 December 2023, she reiterated that her life would be seriously threatened as the creditors and gangsters might harm or kill her.  She further claimed that as she was not an active person, internal relocation would not be feasible.  She alleged that the Immigration Department failed to consider her human rights under various legislations but failed to give any further elaboration or specific particulars.  In her supporting affirmation dated 14 December 2023, she only vaguely stated that the Judgment was unfair without allowing her an opportunity to clarify her case and situation in her country and that she understood that a good ground of appeal was not necessarily considered at the stage of applying for leave for judicial review.  However, she did not specify what that said ground was.

7.Contrary to Practice Direction 2.1, the applicant did not lodge any written submissions.

8.In our view, the applicant’s application is devoid of merit.  At the outset, her delay of over nine months in taking out this application is extremely substantial and she fails to give any reason, let alone good reason, to explain her delay.  More importantly, she fails to give any proper ground of appeal or identify any specific error in the Judgment.  Her allegations are all general, vague and bare without any specific particulars or evidence in support.  General assertions of her fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Her allegation that she was not given the opportunity to clarify her case is also misplaced.  The applicant already had ample opportunities to clarify her case and country situation before the Board, the Judge and this court.  Even now, she fails to point out with specific particulars how she is prejudiced and what further clarifications she has other than those submissions she already made.  Clearly, her assertions do not constitute proper grounds of appeal and lack basis.

9.Further and in any event, even taking them at their highest, her allegations remain fact-specific and do not relate to any question of great general or public importance.

10.Accordingly, the applicant fails to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

11.For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant her extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion is dismissed.