Re Chantharasiri Singha

CACV 133/2025 [2026] HKCA 975

On Appeal From [2023] HKCFI 87

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 133 OF 2025

(ON APPEAL FROM HCAL NO. 717 OF 2019)

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J U D G M E N T

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

I.  The appeal

1.This is the applicant’s appeal against the decision dated 13 January 2023 of Deputy High Court Judge K.W. Lung (‘the Decision’) who refused to grant extension of time to the applicant’s application for leave to apply for judicial review (‘the leave application’) and dismissed his leave application. The intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 3 February 2017. By that decision, the Board refused to grant extension of time to the applicant to file a notice of appeal against the decision of the Director of Immigration (‘the Director’) dated 8 September 2015. By an order dated 31 May 2024, the Judge granted extension of time to the applicant to file his notice of appeal against the Decision. By two further orders dated 24 September 2024 and 7 October 2024, the Judge further extended the time to enable the applicant to file the notice of appeal and to obtain legal aid.

II.  Background

2.The Judge summarised the background of the applicant’s claim as follows :

‘ 4. The applicant is a national of Thailand. He last entered Hong Kong as a visitor on 17 May 2012 and was permitted to remain until 16 June 2012. His limitation of stay was later extended to 23 June 2012. However, he did not depart and had overstayed since 24 June 2012. On 28 June 2012, he was arrested by the police for overstaying and for trafficking in dangerous drugs, for which, he was convicted and sentenced to 4 months’ imprisonment. On 11 October 2012, he raised a torture claim, which was later taken as a non‑refoulement claim upon the commencement of unified screening mechanism. His claim was made on the basis that, if refouled, he would be harmed or killed by an unknown killer and the followers because he witnessed their criminal act of murdering a person.

5. … The killer had threatened to kill him if he reported the matter to the police. …. Thereafter the police asked him to be a witness for the case. While the police offered witness protection, the applicant feared that the protection would not be sufficient. Out of fear, he fled to Hong Kong for protection……’

3.By the decision dated 8 September 2015, the Director rejected the applicant’s claim in respect of risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (‘the Ordinance’), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (‘HKBOR’) and risk of persecution by reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

4.By a further decision dated 19 January 2017, the Director rejected the applicant’s claim in respect of risk of violation of the right to life under Article 2 of section 8 of the HKBOR.

5.On 13 September 2016, the applicant lodged a notice of appeal to the Board against the Director’s decision of 8 September 2015. The Board received the notice of appeal on 20 September 2016. The Board refused to allow the filing of the notice of appeal which is the subject matter of the applicant’s intended judicial review in his leave application by Form 86 filed on 14 March 2019. The three months’ limit for the issue of Form 86 expired on 3 May 2017 and the delay in lodging the leave application was more than one year and ten months.

III.  The Judge’s Decision

6.The Judge gave the following reason for his decision :

‘ 14. As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The deadline of his application is on 3 May 2017. The delay is more than 1 year and 10 months, which is, no doubt, serious.

15. He has given no explanation for his delay and there being no other extenuating factor for my consideration, his application should be dismissed on this basis alone.’

IV.  Grounds of appeal

7.Mr Ip for the applicant advanced two grounds of appeal :

‘ 1. The Judge erred in failing to hold that the Board, in making the Decision dated 3 February 2017 refusing the Applicant’s application for late filing of a Notice of Appeal/Petition, erred in law in failing to consider the third stage under the three-stage test alluded to in Home Secretary v Begum [2016] EWCA Civ 122, and in particular, failing to consider to the merits of the Applicant’s claim for non-refoulement protection; and

2. The Judge erred in failing to have regard to the merits of the intended application for judicial review, including particularly the ground as envisaged in Ground 1 above.’

V.  Section 37ZT of the Ordinance

8.Section 37ZT of the Ordinance, Cap. 115, as applicable at the time of the Board’s Decision of 8 September 2015 stated that :

‘ (1) If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which—

(a) must include a statement of the reasons for failing to file the notice within that period; and

(b) must be accompanied by any documentary evidence relied on in support of the reasons referred to in paragraph (a).

(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of—

(a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b) any other relevant matters of fact within the knowledge of the Board.

(3) If the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision.

(4) If the Appeal Board does not allow the late filing of the notice of appeal, the Board must, by written notice, inform the person filing the notice that the Board refuses the notice as it is filed out of time.’

9.This Court in a series of cases has followed the three stage approach held in The Secretary of State for the Home Department v. Razia Begum [2016] EWCA Civ 122 in respect of application for extension of time in the filing of notice of appeal before the Board :

‘ 14. …

i) The first stage is to identify and assess the seriousness or significance of the failure to comply with the rules. The focus should be on whether the breach has been serious or significant. If a judge concludes that a breach is not serious or significant, then relief will usually be granted and it will usually be unnecessary to spend much time on the second or third stages; but if the judge decides that the breach is serious or significant, then the second and third stages assume greater importance.

ii) The second stage is to consider why the failure occurred, that is to say whether there is a good reason for it. It was stated in Mitchell (at para. [41]) that if there is a good reason for the default, the court will be likely to decide that relief should be granted. The important point made in Denton was that if there is a serious or significant breach and no good reason for the breach, this does not mean that the application for relief will automatically fail. It is necessary in every case to move to the third stage.

iii) The third stage is to evaluate all the circumstances of the case, so as to enable the court to deal justly with the application. The two factors specifically mentioned in CPR rule 3.9 are of particular importance and should be given particular weight. They are (a) the need for litigation to be conducted efficiently and at proportionate cost, and (b) the need to enforce compliance with rules, practice directions and court orders. As listed in para. [35] of the judgment in Denton:

“Thus, the court must, in considering all the circumstances of the case so as to enable it to deal with the application justly, give particular weight to these two important factors. In doing so, it will take account of the seriousness and significance of the breach (which has been assessed at the first stage) and any explanation (which has been considered at the second stage). The more serious or significant the breach the less likely it is that relief will be granted unless there is good reason for it. ...” ’

10.Thus, for example, in In Re Khan Kamal Ahmed [2019] HKCA 377, this Court, per Lisa Wong J, held :

‘ 18. As the last of the 3-stage enquiry alluded to in The Secretary of State for the Home Department v Begum, referred to in [9] of the Call‑1 Form, where there is a serious or significant breach for which no good reason is given, the decision maker moves to evaluate all the circumstances of the case with a view to dealing justly with the application.

19. In this case, the Board stopped after the 2^nd stage, noting that the applicant had not provided any reason for the delay. It had not taken account of any other facts or circumstances of the case.

20. We agree with the Judge that it was incumbent upon the Board, in exercise of its discretion to extend time for appeal, to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor.’

11.Similar view was expressed in Re Qasim Ali [2019] HKCA 430.

12.Mr Ip submitted that that the Board made the same error in that after stating that ‘[the applicant] gives no credible reasons at all for his failure to comply with the filing deadline’ and ‘no special circumstances are set out to explain that failure’, the Board simply stopped considering other facts or circumstances of the case. Hence, the Board failed to take the merits of the applicant’s case into account regardless of the procedural breaches or the lack of explanation therefor. Mr Ip submitted that it is no answer for the Board to say that it made a generic statement that ‘[t]here are no other matters known to me or revealed by the factual basis of [the applicant’s] claim which would make it unjust not to allow the late filing of the appeal’. In Re Madbar Abdul Salam [2019] 3 HKLRD 725 the Board also ‘stated… that it had considered/evaluated all the circumstances of the case’. This Court, per Lisa Wong J, held :

‘ 27. The Board stated at [9], [15] and [20] of its Decision that it had considered/evaluated all the circumstances of the case. However, we can find no reference in the Board’s Decision to the merits or otherwise of the NRF Claim. As for the Judge, he expressly took the view that merits need not or should not be considered (see Form CALL‑1 at [43]).

28. In our opinion, it is arguable that it would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious and that the Board should have, under s 37ZT(2)(b) of the Ordinance, looked at the merits or otherwise of the appeal (albeit on paper without a hearing) regardless of the procedural breaches or the lack of explanation therefor. See Re Khan Kamal Ahmed [2019] HKCA 377, [2019] HKEC 1011 (2 April 2019), [16]‑[20] and Re Qasim Ali [2019] HKCA 430, [2019] HKEC 1118 (8 April 2019), [23]‑[26].’

13.In Re Villarosa Rhea Limbaga [2024] HKCA 95, this Court granted an extension of time to appeal by a non‑refoulement applicant on the ground that the intended application for judicial review is reasonably arguable because the issue of merits was not considered by the Board. This Court held :

‘ 15. We are aware that section 37ZT(2)(b) of the Ordinance has been amended in 2021 and it no longer contains the words ‘any other relevant matters of fact within the knowledge of the Board’. However, in the Board’s decision of 20 September 2018 at [7], such words were quoted verbatim meaning that the Ordinance was not amended at that time. The reasoning of Lisa Wong J in Re Qasim Ali applies. The Board did not consider the merits of the applicant’s case. The Judge in his decision in 2021 held that even if the Board was to consider the merits the applicant was “doomed to fail”. However, the principle is that the task of fact finding was within the province of the Board. It is clear that the procedural irregularity here is that the Board did not consider the merits of the applicant’s case and proceeded to refuse the applicant’s late filing of her notice of appeal. The Board should have, under section 37ZT(2)(b) of the Ordinance, taken account of the merits of the appeal albeit on paper without a hearing, regardless of the procedural breaches or the lack of explanation therefor.’

14.In the present case, the Judge granted extension of time to appeal based on the Begum third stage argument.

VI.  Our view

15.This being an appeal against the discretion of the Judge, the applicant must show that the Judge was plainly wrong in the exercise of his discretion in refusing to grant extension of time for the leave application and dismissed the application. In our view, the Judge was plainly wrong in law by failing to consider the Board’s failure to consider the merits of the applicant’s case when it refused to accept the late filing of the notice of appeal. This enables us to intervene and exercise the discretion afresh. As to how a late application for leave to apply for judicial review should be considered, Kwan VP in AW stated the following :

‘ 27. In Re Thomas Lai [2014] 6 HKC 1, G Lam J considered the relevant authorities and stated the principles to be applied in an application to extend time for judicial review in §§43 to 45. I take the following summary of these principles from the submission of Ms Sara Tong, who appeared for the Director:

(1) While in the public law field, it is essential that the courts should scrutinise with care any delay in making an application, the provisions of O 53 r 4(1) and s 21K (6) are not intended to be applied in a technical manner. As long as no prejudice is caused, the courts will not rely on these provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled (R v Commissioner for Local Administration, ex p Croydon London Borough Council [1989] 1 All E R 1033 at 1046, per Woolf LJ).

(2) However, it must also be borne in mind that unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration will be unduly disrupted and policies and decisions put into uncertainty for many months after they have been made and acted upon.

(3) What may constitute a good reason for extending time cannot be defined. In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case. The following factors, which are not exhaustive, are likely to be of significance:

(i) Length of the delay: Obviously the longer the delay, the more cogent the reason has to be for extending time.

(ii) Explanation for the delay: While O 53 r 4(1) requires a good reason for extending time, rather than a good excuse for the delay, it is common sense that the presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicant’s request for what is after all an indulgence to be granted to him in the court’s discretion.

(iii) Merits of the substantive application: Although merits of the challenge of the administrative decision are a significant matter to be taken into account, it is by no means the sole criterion. Where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be” (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B to C, per Litton NPJ). An applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case (Law Chun Loy v Secretary for Justice, HCAL 13/2005, 26 October 2006, at §13, per Hartmann J).

(iv) Prejudice: The question of prejudice has two sides: the prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time.

(v) Questions of general public importance: Whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.’

16.The emphasis is on a multi‑facet approach. What is significant in this case is the substantial delay in the lodging of the leave application and the total lack of explanation for this substantial delay. Whilst the applicant may have a reasonably arguable case on the merits of his application by reference to section 37ZT of the Ordinance, the Court must also consider the other factors as well. We are unable to accept that the mere presence of a reasonably arguable case would trump the other equally significant factors. Indeed, as emphasised by G Lam (as he then was) in Re Thomas Lai, although merits of the challenge of the administrative decision are a significant factor to be taken into account, it is by no means the sole criterion. The rationale being that a disciplined approach is required in an out of time application for judicial review. Late applications bear the risk that they may unduly disrupt public administration and decisions put into uncertainty because of the late challenge.

17.Mr Ip referred to this Court per Yuen JA’s decision in Ilumueni Nzuzi Ilous v Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office & anor CACV 179/2022 where she held :

‘ 32. The applicant explained his delay in lodging the Form 86 as he said he was in detention. Whether that is a satisfactory explanation or not, the most important consideration is whether he has merits in his application for judicial review of the Board’s Decision.’

18.As can be seen in that case an explanation for the delay in lodging Form 86 was offered. The delay in that case was three months. Re Villarosa Rhea Limbaga is a case on extension of time to appeal. This is no issue about any delay in the leave application. These cases are distinguishable from the present case.

19.Mr Ip argued that the Department of Justice who represents the Board and Director has chosen to take a neutral stand in this appeal and has not attended the hearing. He argued that no prejudice is shown if leave is granted. He further urged this Court to consider the danger to the life and limb of the applicant if he is to return to Thailand. We repeat that the merits of a case are not the sole determinative factor. The arguments on danger to life and limb and lack of prejudice must be considered also in the context of the applicant’s own conduct in not pursuing the leave application promptly and in not providing any explanation for the substantial delay. In our view, the applicant has not satisfied the requirement to obtain leave for judicial review.

VII.  Conclusion

20.Accordingly, we will not grant leave to the applicant to apply for judicial review and the appeal is dismissed.

21.We will make no order as to costs. The applicant’s own costs are to be taxed according to the Legal Aid Regulations.

22.As the bundles of documents lodged in this appeal consist of all the documents that were before the Judge, it is not necessary to make any order in respect of the application to adduce new evidence.

Mr Jonathan Ip, instructed by Daly & Associates, assigned by Director of Legal Aid, for the Applicant