Re Jewel

HCAL 918/2018

[2020] HKCFI 49

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 918 OF 2018

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Before: Deputy High Court Judge Bruno Chan in Chambers

Date of Hearing: 29 November 2019

Date of Decision: 6 January 2020

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DECISION

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1.On 15 August 2019 Deputy High Court Judge Josiah Lam refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing his appeal regarding his non-refoulement claim upon finding none of the grounds put forward by him reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in his process before the Board or in its decision, and that there was no reasonable prospect of success in his intended application.

2.The Applicant now by a summons issued on 10 October 2019 seeks leave to appeal against that decision out of time, as the 14-day period for him to file his appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 14 September 2019 after discounting the month of August 2019 for the Court’s summer vacation, and hence he was late by about four weeks with his intended appeal. 

3.In considering whether to extend time for appealing against a decision refusing leave to appeal for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

4.In the Applicant’s case, a delay of four weeks cannot be said to be insignificant, for which he explained in his supporting affirmation that he never received the decision in the mail and was only told about it when he made enquiry at the court on 10 October 2019, and was only then given a copy of the decision.

5.However, at the hearing of his summons he changed his explanation in that he did receive the decision in the mail but as it was put in the wrong mailbox of his neighbor that it was only much later when his neighbor returned the letter containing the decision to him when by then he was already out of time with his intended appeal, and when it was pointed out to him that this explanation was different from the one given in his affirmation, he blamed it on the friend who helped prepared the affirmation for him.  As such and in the absence of other supporting evidence from the Applicant, I am not satisfied that he has provided any valid or good reason for his delay.

6.More importantly, nor did he in his summons or affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be argued that the decision was unfair or unreasonable, and in the absence of any error in the decision being clearly and properly identified by the Applicant, I do not see any prospect of success in his intended appeal. 

7.In the premises, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly I refuse his application for leave to appeal out of time, and dismiss his summons.

The applicant appeared in person