Re v. Van Sang

CAMP 6/2025, [2025] HKCA 1002

On Appeal From [2024] HKCFI 2599

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 6 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO. 1935 OF 2019)

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DECISION

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Hon Cheung JA (giving the Decision of the Court) :

1)  Renewed application for extension of time to appeal

1.On 10 July 2019, the applicant issued his application for leave for judicial review by Form 86 in HCAL 1935/2019. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 4 July 2019 which confirmed the Director’s Decision of 20 December 2017. Deputy High Court Judge To refused to grant leave for judicial review on 27 September 2024.

2.Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 14 October 2024, as 11 October 2024 was a public holiday: Order 3, rule 4 of the Rules of the High Court). Being out of time for around 14 days, the applicant took out an application on 28 October 2024 requesting an extension of time to appeal (‘the extension application’). The Judge on 13 December 2024 rejected the applicant’s application for extension of time to appeal.

3.On 8 January 2025, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.  

4.Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application without an oral hearing. Having considered the applicant’s summons and affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

5.The applicant is a Vietnam national. On 25 January 2017, the applicant entered Hong Kong illegally via the Mainland, and was subsequently arrested on 1 February 2017. The applicant raised a non‑refoulement claim on 10 February 2017 alleging that if he returned to Vietnam he would be harmed or killed by his creditor and subordinates for non‑repayment of a loan[1].

6.The background facts have been summarized in the decision of the Judge at [5] to [9].

3)  The Director’s Decision

7.The Director decided against the applicant’s non‑refoulement claim on 20 December 2017. The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution[2] (‘the Director’s Decision’).

4)  The Board’s Decision

8.The applicant appealed/petitioned against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’)[3]. After a hearing held on 6 May 2019, the Board dismissed the applicant’s appeal/petition on 4 July 2019 (‘the Board’s Decision’).

9.The Board’s finding is summarized in the decision of the Judge at [10]-[18].

5)  Decisions of the Judge

10.In his decision dated 27 September 2024, the Judge held that the applicant did not put forward any proper ground for the intended judicial review challenge. In effect, he was seeking to challenge the Board’s finding of fact without showing that there was any error of law or procedural unfairness. The Board found the applicant was incredible, and found no factual basis to support his claims. The applicant failed to show any realistic prospect of success in his intended judicial review[4].

11.In his decision dated 13 December 2024, the Judge held that although the applicant complained that he never received the Order of Court, he did not explain how and when he first came to be informed of the outcome of his leave application. There was a failure to provide any reasonable explanation for the delay. The applicant’s complaint that there was no oral hearing was also not reasonably arguable as the applicant never requested an oral hearing. The applicant failed to put forth any specific grounds of appeal. The Board found that the applicant was incredible and had failed to establish the factual basis to support his case. The application for extension of time for appeal was refused[5].

6)  Legal principles

12.In considering whether to extend time for appeal, the Court will have regard to :

(1)  length of the delay;

(2)  reasons for the delay;

(3)  prospect of the intended appeal; and

(4)  prejudice to the putative respondent if extension of time was granted.

7)  Analysis

(1)  Length of delay and reasons for the delay

13.Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal the decision of the Judge.

14.The Form CALL-1 was dated 27 September 2024. The deadline for lodging an appeal against the Judge’s decision was 14 October 2024 (11 October 2024 was a public holiday). The applicant was 14 days late when he took out a summons for extension of time to appeal (28 October 2024). He merely stated that he had not received the Order and hence was unable to appeal in a timely manner[6]. This is not a satisfactory explanation as held by the Judge. We agree.

(2)  Prospect of the intended appeal

15.In the applicant’s summons, the applicant requested for leave to be granted to advance a new sole ground of appeal without stating what that was. In the applicant’s affirmation, the applicant stated again that he never received any correspondence from the Court regarding his judicial review being refused, and he was unaware of the 14‑day time limit. He further asked for an opportunity to explain, without further elaboration on paper.

16.In our judgment, the applicant does not have any prospect of success in his intended appeal.

17.Since the applicant has not identified any error of law or procedural unfairness in the decisions of the Judge, the intended appeal does not have any prospect of success.

8)  Disposition

18.As the intended appeal is unarguable, it would be futile to give an extension of time. Accordingly, we dismiss the applicant’s summons filed on 8 January 2025.

Applicant, unrepresented, acting in person