Case Document

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HCAL 885/2022

[2026] HKCFI 5940

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 885 OF 2022

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BETWEEN

	Gai Ousman	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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Before:

Deputy High Court Judge Michael WONG in Chambers (Open to Public)

Date of Hearing:	15 October 2026
Date of Handing Down of Decision:	28 October 2026

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D E C I S I O N

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Background

1.By way of summons filed on 30 July 2026 (“the Summons”), the applicant applies for an extension of time to appeal against my order made on 20 May 2026 dismissing the applicant’s application for leave to apply for judicial review (“the Leave Application”) in respect of the Torture Claims Appeal Board’s decision dated 4 May 2022 (“the Board’s Decision”).

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 20 May 2026, the last day for the applicant to lodge an appeal was on 3 June 2026. The time for appealing against my order has therefore expired, and the applicant requires leave from this court to appeal out of time.

Grounds for the application for extension of time to appeal

5.In his supporting affirmation filed on 30 July 2026, and at the oral hearing before me on 15 October 2026, the applicant explained his delay in lodging the appeal by saying that he was serving his sentence at Pik Uk Prison from October 2025 onward, and when he finished his sentence on 8 May 2026, he was detained by the Immigration Department in Tai Tam Gap Correctional Institution. He did not receive any letter from the High Court or the Immigration Department regarding the hearing of the Leave Application fixed on 14 May 2026. Hence, he was not aware of the hearing on 14 May 2026 until he received this court’s decision dismissing the Leave Application. He also produced a copy of the Certificate of Imprisonment from the Correctional Services Department in his supporting affirmation confirming that he was serving a sentence of imprisonment from 20 October 2025 and the earliest date of discharge for him was on 8 May 2026.

6.Thus, the applicant claimed that the decision for the Leave Application was made without any hearing for him.

Discussion

7.On 29 January 2026, the Immigration Department provided the applicant’s latest residential address to this court. Thus, this court sent the Notice of Hearing dated 14 April 2026 for the oral hearing of the Leave Application on 14 May 2026 to the applicant’s latest residential address as provided by the Immigration Department. However, the applicant was absent at the oral hearing on 14 May 2026.

8.In Re Zaheer [2020] HKCA 880, the court of appeal held that “It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant”.

9.Thus, the applicant should have notified the Immigration Department about his imprisonment and it would not be a ground for the applicant to challenge my decision based on the fact that he did not receive the Notice of Hearing dated 14 April 2026, when the address he provided to the Immigration Department was no longer valid for receiving the Notice of Hearing. This court was perfectly entitled to proceed with the determination of the Leave Application when the applicant was absent at the hearing on 14 May 2026.

10.Nevertheless, with the support of the said Certificate of Imprisonment and giving the benefit of the doubt to the applicant, I am prepared to accept that the applicant was unaware of the oral hearing on 14 May 2026. In the interest of justice, the applicant should be given another chance to present his grounds to this court to challenge the Board’s Decision at an oral hearing.

11.However, instead of granting the applicant extension of time to appeal, a better and more efficacious means of disposal is for this court to exercise its discretion under Order 2, rule 1(2) of the Rules of the High Court to set aside its decision in Form CALL-1 and the order on its own initiative and re-fix the Leave Application for hearing (see Re Tehseen Yaseen [2025] HKCFI 1094 and on appeal [2025] HKCA 424).

Conclusion

12.For reasons aforesaid, my order made on 20 May 2026 is set aside, and the Summons is dismissed. The Leave Application will be fixed for another oral hearing by the listing clerk.