To Van Kien

HCAL 2776/2019

[2025] HKCFI 3957

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2776 OF 2019

________________________

________________________

________________________

J U D G M E N T

________________________

1.By summons dated 26 June 2025, the applicant applied for an extension of time to appeal to the Court of Appeal against the order dated 11 June 2025, dismissing his application for leave to apply for judicial review against the Torture Claims Appeal Board. The decision of 11 June was sent by ordinary post to the applicant’s address at Room A, Flat 10B, Floor 4, Wah Fat Building, 64 Tung Ming Street, Kwun Tong, to which to the same address was sent the notice of hearing for 24 April for the hearing of the judicial review.

2.On the date of the hearing for leave to apply for judicial review, the applicant was absent. Since the court had not received any notice of the post undelivered to the above mentioned address, the court therefore disposed of his application for leave for judicial review on paper in his absence. Having checked through the court file, we still have not received any returned post of the notice of hearing sent to the said Wah Fat Building address.

3.I should mention, however, that before the court sent the notice of hearing dated 28 March 2025, informing the applicant of the hearing on 24 April, the court had sent a letter dated 18 February 2025 to the same Wah Fat Building address. A duplicate copy of the letter again was sent to the same address on 5 March 2025.

4.On the court file, however, I noted that there was a letter bearing a chop dated 5 March returned undelivered. Despite the fact that there is no return post of the notice of hearing that we sent on 28 March, I am satisfied, after having examined on these documents on the court file at the hearing on 24 April, the applicant did not receive the notice of hearing. That’s why the applicant was absent.

5.Had the order of 11 June not been sealed, the decision was liable to be set aside. However, since the order has now been sealed, the only venue that is open to the applicant is to appeal to the Court of Appeal. Pursuant to Order 53 rule 3(4) of the Rules of the High Court, the time limit for an appeal to the Court of Appeal is 14 days after the order of the court. In other words, the deadline for the applicant to file his appeal would have been on 25 June 2025.

6.The applicant filed the summons after a delay of one day. Insofar as the law is concerned, the guidelines governing the discretion for an extension of time to appeal against a decision refusing leave to apply for judicial review would apply in this case. This court will have regard to: (1) the length of the delay; (2) the reason for the delay and; (3) the prospect of success of your intended appeal; and lastly, (4) the prejudice to the respondent. In this case it would have been the Appeal Board, if an extension of time were granted.

7.The length of the delay is very insignificant which is only one day. As for the reason for the delay that the applicant has set it out in his supporting affirmation, I accept what he stated in the affirmation and I accept that there is a good reason for the delay.

8.As for the prospect of success, as I have stated, had this order not been sealed, the order is liable to be set aside. The applicant therefore has a good prospect of success for the intended appeal.

9.Having regard to the three factors I have just discussed, and I do not think that there will be any prejudice caused to the respondent if an extension were to be granted. Hence, I order that there shall be an extension of time granted to the applicant to file a notice of appeal against the decision dated 11 June 2025 within 14 days, that is, on or before 26 August 2025.

The applicant appeared in person