Re Nguyen Bui Tuyen

CAMP 203/2022, [2024] HKCA 614

On Appeal From [2023] HKCA 1012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 203 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1126 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 30 November 2023, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal out of time against this court’s (Yuen and Au JJA)  judgment of 7 September 2023 (“the Judgment”)  ([2023] HKCA 1012). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge CP Pang’s (“the Judge”)  dated 28 January 2021, by which the Judge dismissed his application for leave to apply for judicial review ([2021] HKCFI 183).

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 5 October 2023.  Accordingly, the applicant was almost two months late in taking out his application for leave to appeal to the Court of Final Appeal.

5.In his Notice of Motion filed on 30 November 2023, he reiterated that his life would be seriously threatened as creditors and gangsters might harm or kill him.  He further claimed that as he was not an active person, internal relocation would not be feasible.  He also claimed that the Immigration Department failed to consider his human rights under various legislations.  In his supporting affirmation dated 30 November 2023, he only vaguely stated that he understood that a good ground of appeal was not necessarily considered at the stage of applying for leave for judicial review. However, he did not specify what that said ground was.

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

7.In our view, the applicant’s application is devoid of merits.  At the outset, his delay of almost two months in taking out this application is very substantial and he fails to give any reason, let alone good reason, to explain his delay.  More importantly, he has failed to give any proper ground of appeal or identify any specific error in the Judgment.  His allegations are all general, vague and bare without any specific particulars or evidence in support.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Clearly, his assertions do not constitute proper grounds of appeal.

8.Further and in any event, even taking it at its highest, his allegations remain fact-specific and do not relate to any question of great general or public importance.

9.Accordingly, the applicant has failed to identify any question of great general or public importance in the intended appeal, 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.

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

The applicant, unrepresented, acting in person