Re Rana Jaswant

CAMP 160/2018

[2019] HKCA 102

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 160 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 1074 OF 2017)

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Before : Hon Cheung, Yuen and Chu JJA in Court

Date of Hearing : 27 February 2019

Date of Decision : 6 March 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)  The appeal

1.1Deputy High Court Judge Bruno Chan (‘Judge’) on 10 August 2018 refused to grant leave to the applicant to apply for judicial review (‘First Decision of the Judge’).

1.2On 28 August 2018, the applicant applied to the Judge for extension of time to appeal against his decision of 10 August 2018.    

1.3On 31 October 2018, the Judge dismissed the application (‘Further Decision of the Judge’).

1.4On 6 November 2018, the applicant by summons and supporting affirmation made an application to this Court. The summons simply stated that he ‘received his high court decision late, so I will apply again for my decision so please accept my appeal again...’ (‘the present application’).

1.5The summons was listed for hearing on 27 February 2019.  The Court on 22 January 2019 gave the following directions :

‘ The Court will consider the applicant’s summons filed on 6 November 2018 by way of an oral hearing on 27 February 2019 at 9:30am with 30 minutes reserved. The Court considers that the nature of the summons is an application for leave to appeal against Deputy High Court Judge Bruno Chan’s decision of 31 October 2018 by which he refused to grant extension of time to the applicant to appeal against his earlier decision of 10 August 2018 (refusal to grant leave to apply for judicial review). The Court intends to treat the hearing as a rolled up hearing, namely, if the Court should grant leave to appeal, the Court will deal with the appeal proper as well.’

2)  Factual background

2.1The applicant is an Indian national who arrived in Hong Kong on 18 May 2014 with permission to stay but overstayed since 2 June 2014.  The applicant raised his torture claim on the basis that if he returned to India he would be harmed or killed by supporters of rival political party Bharatiya Janata Party (‘BJP’).

2.2The background facts have been summarized in the decision of the Judge, Form CALL‑1, [2018] HKCFI 1606 at [2]-[5].

3)  The Director’s Decision and the Director’s Further Decision         

3.1The Director decided against the applicant’s torture claim on 1 September 2016.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

3.2The Director further decided against the applicant’s claim under Article 2 (right to life) of the Bill of Rights (‘BOR 2’) on 29 May 2017 (‘the Director’s Further Decision’). 

4)  The Board’s Decision

4.1The applicant appealed against the Director’s Decision and the Director’s Further Decision to the Board on 13 September 2016.  After a hearing held on 20 June 2017, the Board dismissed the applicant’s appeal on 23 November 2017 (‘the Board’s Decision’).

4.2The Judge summarized the Board’s finding as follows :

‘ 10. In its decision the Board found no direct or other reliable evidence to corroborate the applicant’s own assertions of threats from the BJP people, that in any event state and police protection would be available to him if resorted to, and that as the threats to him was a localized one confined to his home district that internal relocation is viable to him in other areas away from his home district such as Delhi that it is not justified to afford him with non-refoulement protection in Hong Kong…’

5)  First Decision of the Judge

5.The Judge refused to grant leave to the applicant for judicial review on the basis that there was no ground for the applicant who complained about the lack of legal representation when there was no absolute right to free legal representation at all stages of the proceedings.  He found that the applicant was assisted by an interpreter before his hearing with the Board.  He found no prejudice suffered by the applicant for the non‑attendance of the Director at the Board’s hearing.

6)  Further Decision of the Judge

6.We have dealt with this at paragraph 1.3 of this judgment.

7)  Grounds of appeal

7.The applicant did not set out any proposed grounds of appeal in his summons.  In the applicant’s supporting affirmation, he stated that his life was still in danger but did not give any elaboration.  Neither did he set out any proposed grounds of appeal.

8)  Our view

8.1An applicant who had his application for leave to apply for judicial review refused does not require leave to appeal to the Court of Appeal.  This is because under Order 59, rule 21(1)(g) of the Rules of the High Court a refusal to grant leave for judicial review does not require leave to appeal.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal against the judge’s refusal to grant leave to the Court of Appeal within 14 days after such order.  Where the time for appeal has expired, the applicant is required to apply for an extension of time to appeal.  The judge who made the order has the power to extend time to appeal before or after the expiration of the 14‑day time limit.  This is under Order 59, rule 15 where it states that :

‘ 15. Extension of Time (O.59, r.15)

Without prejudice to the power of the Court of Appeal or a single judge under Order 3, rule 5, to extend or abridge the time prescribed by any provision of this Order, the period for serving notice of appeal under rule 4 or for making application ex parte under rule 14(3) may be extended or abridged by the court below on application made before or after the expiration of that period.’

8.2In this case, subject to the issue of the running of time during vacation which we will discuss later, the deadline for the applicant to appeal against the First Decision of the Judge to the Court of Appeal was 24 August 2018.  However, by section 31(1) of the High Court Ordinance (Cap. 4), time for service of the appeal does not run in the summer vacation unless the Court otherwise directs. The month of August is the summer vacation of the Court and time does not run in August.  Hence the time to appeal against the decision of 10 August 2018 did not expire until 14 September 2018 which is 14 days after the end of the August vacation.

8.3Put another way, in the present case the applicant did not need to apply to the Judge for extension of time to lodge his appeal.  Had his application been heard before 14 September 2018, the Judge could have simply made no order on the application.  This, however, was not the case.  The extension of time application was heard by the Judge on 10 October 2018 by which time to serve the notice of appeal had expired and inevitably the Judge had to consider the application. 

8.4The refusal by the Judge to extend time is an interlocutory judgment which requires leave to be obtained first before the applicant can appeal against that judgment by way of a notice of appeal.  The true nature of the present application is for leave to appeal against the Judge’s refusal to grant extension of time for him to appeal against the First Decision of the Judge.

8.5Strictly speaking, the application should be made in the first instance to the Judge himself : under Order 59, rule 2B(2) of the Rules of the High Court,application for leave to appeal should in the first instance be made to the judge against whose judgment leave to appeal is sought.  By Order 59, rule 2B(3) where that Court refuses the application, a further application for leave to appeal may be made to the Court of Appeal within 14 days from the date of the refusal.  In order to avoid further procedural delay, we will consider the leave application ourselves.

8.6In considering whether to extend time to appeal, the Court will have regard to : (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.

8.7The refusal by the Judge to grant extension of time is an exercise of discretion.  On appeal from an exercise of discretion, the Court of Appeal is not to exercise the discretion afresh but will only do so if the discretion is wrongly exercised or where the decision is plainly wrong.  The Judge held that there was a four-day delay but he accepted the applicant’s explanation for the delay.  His refusal to grant the extension was based on the lack of merit in the applicant’s intended appeal.  The Judge held that the applicant did not advance any grounds of appeal in his application.  There were ‘no reasonable arguable grounds’ or ‘any prospects of success’ in the applicant’s intended appeal.  The Judge found that it would be futile to extend time. 

8.8The applicant informed this Court that he was advised by a friend to apply for extension of time to appeal.  He elaborated that after he learnt about the First Decision of the Court, he went to Court and met someone in the building who told him to apply for extension of time and he did.  This person was not a court staff.  In our view, any delay in serving the notice of appeal was not a deliberate act on the part of the applicant.  Had he been aware of the correct procedure he could have his appeal filed on 28 August 2018 within time.  This is a factor which ought to be given prominence had the Judge’s attention been drawn to it.  In the circumstances, it was wrong to say that the applicant had delayed by four days in filing the notice of appeal.  This is a reasonably arguable point and we will grant leave to appeal.  This entitled this Court to exercise the discretion afresh.  Having considered the reason for the alleged delay, it would be most harsh not to grant extension of time to the applicant.  Accordingly, we will allow the appeal against the Further Decision.  The next step is for the applicant to file a notice of appeal appealing against the First Decision.

Applicant, unrepresented, appearing in person