Le Hong Phong v. Torture Claims Appeal Board

HCAL 957/2020

[2025] HKCFI 4380

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 957 OF 2020

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D E C I S I O N

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Background

1.By way of summons dated and filed on 25 July 2025 (“the Summons”), the applicant applies for leave to appeal out of time against my order dated 8 July 2025.

2.Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, stipulates that “Where an application for leave is refused by a judge …, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order”.

3.In Re Li Jing [2015] 2 HKLRD 933, it was held that the time for lodging an appeal against the refusal of granting leave to apply for judicial review started to run from the date of the making of the order, not from the date when the sealed order was issued, nor from the date when the sealed order was mailed, and no account should be taken of the fact that the applicant received the sealed order late (see also Re Gurung Min Bahadur [2018] HKCA 226).

4.As my order was made on 8 July 2025, the last day for the applicant to file an appeal was on 22 July 2025.  The time for appealing against my order has therefore expired, and the applicant requires leave from this court to appeal out of time.

The applicable law

5.In considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted (see Jagg Singh v Torture Claims Appeal Board and another [2020] HKCA 844).

6.However, the crucial consideration in such an application is whether the applicant can show that there is a reasonable prospect of success in the intended judicial review (see Re Gurung Min Bahadur, supra), and the court will not grant extension for a hopeless appeal to be pursued (see Re Adumekwe Rowland Ejike [2019] HKCA 702).

Discussion

7.In the Summons and the applicant’s supporting affirmation dated 25 July 2025, the applicant did not mention any reason for his delay in filing the appeal.

8.At the hearing of the Summons on 10 September 2025, the applicant at first explained his delay by saying that he was in custody for 3 months, but then he said that the custody was in 2020.  Hence, the custody was irrelevant in respect of his delay in filing the appeal.  He later said that he received the decision only at the start of August 2025 when his clansman found out the decision online for him.  This is clearly wrong as he filed the Summons on 25 July 2025.  There was no reason for him to file the Summons before he received my decision.

9.Thus, the applicant did not give any satisfactory explanation for his delay, even though the delay was not too long.

10.In any event, as aforesaid, the crucial question is whether there is a reasonable prospect of success in the intended judicial review.  In this regard, I find no merits of the intended appeal or the intended judicial review at all.

11.The applicant failed to advance any ground for the intended appeal in the Summons or his supporting affirmation.  At the hearing of the Summons on 10 September 2025, when I asked the applicant for his grounds of appeal, the applicant merely said that he could not return to Vietnam as his dispute with the other person was still not resolved.

12.For this application to be successful, the applicant must demonstrate that this court had made errors of law or failed to take account of relevant matters already placed before this court or was otherwise plainly wrong (see Nupur Mst v Director of Immigration [2018] HKCA 524).

13.The applicant failed to demonstrate any of the above, and hence there is simply no valid ground for the intended appeal or the intended judicial review.

14.Furthermore, as discussed in the Form CALL-1, the applicant had stated clearly in his written request dated 1 March 2019 to the Board to withdraw his appeal/petition that his difficulty had been solved.  There was no evidence to show that the applicant made the withdrawal application other than out of his own volition.  This court found no errors in the Board’s decision in acceding to the applicant’s request to withdraw or abandon his appeal/petition.

15.In the circumstances, there is no reasonable prospect of success in the intended judicial review and I am not prepared to grant any extension of time for the applicant to pursue such a hopeless appeal.

Conclusion

16.For reasons aforesaid, the Summons is dismissed.