RE LUU VAN PHONG

CACV 209/2022, [2024] HKCA 748

On Appeal From [2022] HKCFI 1318

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 209 OF 2022

(ON APPEAL FROM HCAL NO. 188 OF 2019)

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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 27 February 2024, this Court handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge KW Lung given on 16 May 2022 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 ([2024] HKCA 173).  We will not repeat them here.

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 applicant now applies, by a notice of motion filed on 11 March 2024, 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)  Our ruling was unsatisfactory;

2)  The applicant cannot return to Vietnam because if he does he will be tortured and even killed;

3)  The applicant cannot relocate to another part of his home country because his health is not good and he will face difficulties if he returns;

4)  The applicant cannot relocate because his creditors have a nationwide network and can locate him; and

5)  The Director did not consider his human rights under the law.

5.  Pursuant to the directions of the Registrar of Civil Appeals dated 11 March 2024, the applicant was to lodge and serve on or before 25 March 2024 written submissions.  The applicant has not lodged or served written submission by the stipulated deadline.

II.  Our view

6.  Under section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance (Cap. 484)  (‘Ordinance’)  leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

7.  The matters stated by the applicant in his notice of motion do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of 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 he has raised in his notice of motion. 

8.  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

9.  For these reasons, the notice of motion dated 11 March 2024 is dismissed.

Applicant, unrepresented, acting in person

CACV 209/2022 , [2024] HKCA 173

On Appeal From [2022] HKCFI 1318

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 209 OF 2022

(ON APPEAL FROM HCAL NO. 188 OF 2019)

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JUDGMENT

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

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge K W Lung of 16 May 2022 in which he refused to grant leave to him to apply for judicial review.

2.  By written confirmation of the applicant dated 20 May 2022, the applicant consented to this appeal being dealt with on paper.  The applicant failed to lodge the skeleton argument by the stipulated time as per directions of the Registrar of Civil Appeals dated 20 May 2022.  We would deal with this appeal on paper.

2)  Background

3.  The applicant is a national of Vietnam.  Between 8 October 2000 and 5 October 2009, the applicant had on four occasions either legally or illegally entered Hong Kong, and was subsequently deported back to Vietnam by the Hong Kong Immigration Department.  On 5 July 2013, the applicant entered Hong Kong illegally.  He was convicted of various criminal offences and was sentenced to imprisonment for 3 years and 6 months.  On 17 and 18 February 2014, the applicant applied for non-refoulement protection[1].

4.  The basis of the applicant’s claim is that he would be harmed or killed by (1) a creditor by the name HUNG due to non‑repayment of a loan; (2) the Vietnam police for wearing a shirt with a slogan that the Paracel Islands and Spratly Islands belong to Vietnam; and the Police accused him of disturbing the peace and instigating others to join the demonstration and assaulted him[2].

5.  The background facts have been summarized in the decision of the Judge at [5] to [6].

3)  The Director’s Decision

6.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 18 November 2016.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (right to life) risk (‘BOR 2’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  After a hearing held on 23 November 2018[3], the Board dismissed the applicant’s appeal on 18 January 2019 (‘the Board’s Decision’).

8.  The Board found that the applicant’s intention to seek protection in Hong Kong is suspicious[4].  The slogan of ‘Paracel Islands and Spratly Islands were owned by Vietnam’ was contained in the applicant’s non-refoulement claim form, yet during the Board hearing, the applicant denied that he heard such slogan[5].  The Board did not accept the applicant’s story about his business dealings and his loss[6]. The Board found it hard to believe that the Vietnamese police would conduct actions to monitor the applicant after his release from police custody which were conspicuous to the applicant[7].  He failed on all applicable grounds[8].

5)  Decision of the Judge

9.  The applicant filed his Form 86[9] supported with grounds which simply stated that he wished to quash the Board’s decision.  In his supporting affirmation[10], he stated that in Vietnam he was thought to have disturbed public order and solicited others to protest.  He stated that he bought a shirt which wrote Paracel Islands and Spratly Islands belong to Vietnam, and was brought back to the police station and was mistreated.  After his release he was also being followed.  He was not able to earn a living and was in fear so he came to Hong Kong.

10.  The Judge held there were no valid grounds by the applicant to challenge the Board’s decision.  There was no reasonably arguable basis to challenge the Board’s decision.

6)  Grounds of appeal

11.  The applicant in the notice of appeal stated that the Director and the Board did not weigh or realize the gravity of his circumstances.  He stated that the Vietnam police tortured him to confess to treason.  He stated that as there was no agreement on repayment plan, he feared that if he returns, his creditors will harm him.  He stated that relocation was not feasible as he will face many difficulties.  He stated that no matter where he goes in Vietnam it requires reporting to the authorities and by that he will be detected by the police.  He stated that his enemies have nationwide network.  He stated that the Immigration Department did not consider his human rights.  None of these complaints has shown any error of law made by the Judge in his decision. 

12.  In the applicant’s affirmation, he stated that a good ground of appeal was not necessarily considered at the stage of applying for leave for judicial review.

7)  Our view

13.  We are of the view that the applicant’s grounds of appeal consist of bare allegations without particulars or specifics.  The appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong v Yusuf Yu[2018] HKCA 451 at [38] and [39].

14.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

15.  We see no basis to disturb the Deputy Judge’s decision.  Accordingly, the appeal is dismissed.