Re Do Van Dong

CACV 380/2023, [2025] HKCA 448

On Appeal From [2023] HKCFI 2857

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 380 OF 2023

(ON APPEAL FROM HCAL NO. 1516 OF 2023)

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DECISION

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

I.  Leave to appeal to the Court of Final Appeal

1.On 26 April 2024, this Court (Cheung JA and Lisa Wong J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge To given on 9 November 2023 in which he refused to grant leave to the applicant to apply for judicial review.

2.The facts and issues of the application as well as the Court’s reasons for dismissing it are set out in our judgment. We will not repeat them here.

3.The applicant now applies, by a notice of motion filed on 14 August 2024 (which is out of time), for leave to appeal against our judgment to the Court of Final Appeal.  The applicant stated in his notice of motion the following in summary :

1)  It was unsatisfactory that the Court of Appeal ruled that he had no chance of success;

2)  He will be tortured or even killed if he returns to Vietnam because the gangsters there are different from those in Hong Kong;

3)  Relocation was not feasible, as he will face difficulties and he has poor health;

4)  There is a nationwide social network of gangsters and it is quite possible for the gangsters to find his location;

5)  The Immigration Department did not consider his human rights under the Basic Law; and

6)  The applicant seeks justice and asks for asylum in Hong Kong.

4.Despite the directions from the High Court to the applicant dated 14 August 2024, the applicant failed to lodge the skeleton argument by the stipulated time.  Under [7] of those directions, the applicant has abandoned his right to rely on written submissions.  The Court will deal with this application on the available materials.

II.  Our view

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 (i.e. 26 April 2024) to be appealed from (i.e 24 May 2024).  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 two months.  The applicant did not explain his delay in the supporting affirmation. He barely stated that the Court of Appeal did not allow him the opportunity to clarify his case, or that a good ground of appeal was not necessarily considered at the leave stage, without explaining how those points assist his case.

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 matters stated by the applicant in his notice of motion and affirmation are broad and vague assertions that do not pertain to nor explain and elaborate on the particular circumstances of the applicant.  A challenge to findings of fact is within the province of the Board.  In any event, the matters stated do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the Ordinance. Nor is there any such question apparent to us from the matters raised by the applicant. 

9.We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b) of the Ordinance.

III.  Disposition

10.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