Riaz Hussain and Another v. Permanent Secretary for Security

HCAL 62/2020

[2020] HKCFI 2996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 62 OF 2020

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D E C I S I O N

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1.On 6 October 2020, the court handed down its written decision and made an order dismissing the Applicants’ application for leave to apply for judicial review.

2.On 9 November 2020, the 1^st Applicant issued a summons seeking “leave to appeal” the court’s order dated 6 October 2020.  By virtue of Order 59, r 21(1)(g) of the Rules of the High Court (Cap 4A), the 1^st Applicant does not, strictly speaking, require leave to appeal the court’s order.  However, he was required to serve his notice of appeal within 14 days from the date of the order (ie on or before 20 October) under Order 53, r 3(4).  This he failed to do.  I shall treat the 1^st Applicant’s summons as an application for an extension of time to appeal.

3.The principles governing such application are well established.  The court adopts a holistic approach, taking into account, amongst other matters, (i) the length of the delay, (ii) the reasons for the delay, (iii) the chance of the appeal succeeding if time for appeal is extended, and (iv) the degree of prejudice to the potential respondent if the application is granted.

4.In this case, the period of delay is a little under 3 weeks.  The 1^st Applicant said in his affirmation dated 9 November 2020 that he had no resources and it was difficult for him to obtain proper legal advice for the purpose of his appeal.  I note that the 1^st Applicant was legally represented at the original hearing on 24 September 2020, but is currently acting in person.  At the hearing on 27 November 2020, the Applicant also said that he was not aware of the time limit for appeal until he was advised of the same by a friend.  I do not consider that the 1^st Applicant has offered a good explanation for the delay.

5.What I consider to be the most significant factor in the present application is the lack of merits of the intended appeal.  I do not propose to repeat what was said in the written decision dated 6 October 2020.  Although it is stated in the Applicant’s summons dated 9 November 2020 that a draft Notice of Appeal is annexed thereto, the Applicant has confirmed at the hearing that in fact no such document exists.  The Applicant argues that s 20(1)(a) of the Immigration Ordinance, Cap 115, pursuant to which the Deportation Order was issued against him, has no application to his case because he pleaded guilty to the relevant offences and thus was not “found guilty” in Hong Kong of an offence punishable with imprisonment for not less than 2 years.  This argument obviously involves a misunderstanding of s 20(1)(a).  A person may be found guilty of an offence either on his own plea or after a contested trial.  The Applicant also argues that deporting him from Hong Kong is not conducive to public interest and is of “no use” to the society because (i) it would separate him from his wife, (ii) his wife is physically and mentally disturbed by his proposed deportation, and (iii) he has rehabilitated himself and wants to contribute to the society.  These matters were raised in support of his previous application for rescission or suspension of the Deportation Order and were considered by the Permanent Secretary in making his decision to refuse the application.  In an application for judicial review, the court’s role is not to conduct a merits review of the decision under challenge.  The court can only intervene where the decision is unlawful, irrational or tainted by procedural irregularity.  None of these grounds of judicial review exists in the present case.

6.In all, the 1^st Applicant has failed to raise any reasonably arguable grounds of appeal.  Since I am not satisfied that the 1^st Applicant’s intended appeal has a reasonable prospect of success, I see no good reason to extend the time for him to appeal.

7.Accordingly, the 1^st Applicant’s summons dated 9 November 2020 is dismissed, with no order as to costs.

The 1^st Applicant, acting in person