MAHESH RAI v. SECRETARY FOR SECURITY AND ANOTHER

HCMP 1337/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO.1337 of 2009

(On An Intended Appeal from HCAL No.81 of 2008)

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J U D G M E N T

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Hon. Yuen JA:

1.  This is an application for extension of time to appeal against an order of Hartmann J (as he then was) refusing the Applicant leave to apply for judicial review.

Background

2.  The applicant’s personal background has been set out in detail in Hartmann J’s judgment and I shall not repeat it here.  The application for leave to apply for judicial review arose from the detention of the Applicant during the period February 2007 to August 2008 during which he was making a series of applications for legal aid or legal assistance from the Bar to challenge a deportation order.

3.  The application for leave to apply for judicial review was made on 8 August 2008.  The relief sought was for declarations that the detention was unlawful and for damages for such unlawful detention. 

Hartmann J’s order

4.  At the hearing for leave on 21 August 2008, the Applicant was represented by counsel.  In an oral judgment given at the conclusion of the hearing, the judge refused leave to apply for judicial review.  Full reasons were given.  The judgment was reduced into writing and received by the Applicant’s solicitors on 5 September 2008.

5.  Pursuant to Order 53 rule 3(4) Rules of the High Court (applicable at the time), an appeal against the refusal of leave to apply for judicial review must be lodged within 10 days of the order.  No notice of appeal was lodged in time. 

Application for extension of time to appeal

6.  In fact, it was not until 15 July 2009 – more than 10 months after the deadline for appeal – that the Applicant filed his application for extension of time to appeal.

Guidelines

7.  It is well-established that in the exercise of its discretion whether to extend time to lodge a notice of appeal, the court takes into account: (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding; and (4) the prejudice to the other party to the appeal (Chiu Sin Chung v Yu Yan Yan, Angela [1993] 1 HKLR 225). 

8.  As for the balancing of these factors, it is well-established that where the delay is short and there is an acceptable excuse for it, an extension of time will not be refused on the basis of the merits of the intended appeal, unless the appeal is hopeless. 

9.  However, even though the delay is unsubstantial, if the delay was inexcusable, the intended appellant must show a real prospect of success on the merits (Secretary for Justice v Hong Kong and Yaumatei Ferry Co [2001] 1 HKC 125). 

10.  As for prejudice to the other party, the mere fact that it would suffer no prejudice if time is extended is not by itself a ground for extending time. 

Discussion

11.  In the present case, the length of the delay (of more than 10 months) is substantial.  The Applicant’s counsel accepts that there has been a long delay. 

12.  The reasons for the delay have been set out in the affirmation of Yeung Wai Chung, the Applicant’s solicitor.  It has not been suggested that the Applicant was not aware of the appeal procedure.  His counsel produced an advice on merits on 24 September 2008, so for that period of 9 months (September 2008 - July 2009) he cannot plead as an excuse that he was unaware of his right of appeal or what may be perceived to be the merits of his appeal.  Legal aid was then granted to him on 5 January 2009, so for a period of 6 months (January - July 2009) he cannot plead as an excuse that he had no resources to proceed with it.  The Applicant’s counsel accepts that the need to obtain legal aid is not a good reason to delay the filing of a notice of appeal. 

13.  The other excuse advanced was that there were “months of negotiation” with the 2^nd Respondent which resulted in confirmation of the Applicant’s Permanent Resident status on 9 April 2009 which it is said was “material in the determination of the legality” of the Applicant’s detention.  In other words there was a deliberate decision not to appeal then, so as to acquire evidence for use on appeal.  As a matter of principle as well as a matter of practice, that is not a satisfactory reason for delay in lodging an appeal, let alone a delay of such magnitude.  I understand the Applicant’s counsel agrees with that proposition.  In my view, there is no satisfactory reason for the gross delay in lodging the appeal.  In any event, no excuse at all has been proffered for the delay for the 3 months from 9 April 2009 to 15 July 2009.  That is not disputed.   

14.  In my view, the delay was substantial and inexcusable.  The case of HKSAR v Y CACC 230/2004 is clearly distinguishable.  That was a criminal case where the applicant was seeking an extension of time to apply for leave to appeal against sentence where after the applicant was sentenced he provided information to the police about another case which led to investigations, arrest and finally conviction.  The applicant lodged his application for leave to appeal out of time soon after the successful conviction of the person against whom he had provided information.  There were clearly good reasons for the delay in that case.

15.  As for the merits of the intended appeal in this case, I have considered the judgment and the submissions of the Applicant’s counsel and I do not consider that the Applicant has shown reasonable prospects of success on appeal.  Even on the Applicant’s own case, at the time the deportation order was made, his previous application for verification of his eligibility for a permanent identity card had been deemed cancelled as he had failed to supply particulars required.  At the hearing before the judge, there was no application.  The 2^nd Respondent would have deported him instead of detaining him had it not been for the Applicant’s application for legal aid and assistance over a period of time, the length of which the 2^nd Respondent could not have estimated.  As such the judge was entitled to find that it was not reasonably arguable that the 2^nd Respondent should have appreciated that the Applicant’s removal could not have been effected within a reasonable period of time.  It would not be appropriate for me to comment further at this stage.

Order

16.  The summons is dismissed.  I will now hear the parties on costs.

[After submission on costs]

17.  I consider that the proper order is the usual order that costs follow the event.  The Applicant is to pay the costs of the Respondents and his own costs are to be taxed in accordance with Legal Aid Regulations.