MOTAHAR HOSSEN, alias TITU, alias MONIR ALI, alias ALI MONIR v. SECRETARY FOR SECURITY

HCAL 2496/2020

[2026] HKCFI 5585

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2496 OF 2020

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D E C I S I O N

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BACKGROUND

1.  By a decision and order handed down on 28 June 2022 (“the Decision” and “Order”, respectively), Wilson Chan J refused to give leave to the Applicant to apply for judicial review of the deportation order for life dated 19 July 1999 made by the Secretary for Security against the Applicant. 

2.  The Decision and Order were delivered to the Applicant by registered post on 18 July 2022.

3.  By a Summons filed on 17 August 2022 (“the Summons”), the Applicant applied for leave to appeal out of time. 

4.  A hearing was held on 15 September 2022, when Wilson Chan J ordered that the summons be adjourned to a date to be fixed.

5.  The Applicant did not apply to have the date fixed.  It was only 4 years later, on 13 August 2026, that he again, by summons, applied for leave to appeal out of time. This is the hearing.

LEGAL PRINCIPLES

6.  The legal principles are well settled.  In the exercise of its discretion to grant leave to appeal out of time, the Court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding if an extension of time is granted, and the degree of prejudice to the other party if the application is granted.  Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success on the merits, not merely a reasonable prospect of success.

ANALYSES

7.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap.4A), where leave to apply for judicial review is refused, the applicant may appeal to the Court of Appeal against the refusal within 14 days after the judge’s order. 

8.  In the present case, the deadline for appeal was 14 days from 28 June 2022, i.e. 12 July 2022.  The summons seeking leave to appeal out of time was dated 17 August 2022, i.e. more than 5 weeks late.  The delay was substantial.

9.  In the summons and the Applicant’s supporting affirmation dated 17 August 2022, the Applicant deposed that he “did not get order in time, so [he] failed to appeal.”  The affirmation gave no clue as to when the Applicant actually received the Decision and/or the Order.  Neither did the Summons filed on 13 August 2026.  He thus failed to establish the reasons for the delay.

10.  His delay in seeking leave to appeal and failure to fix a date for hearing allowed the Applicant to unjustifiably stay in Hong Kong, despite the deportation order, for another 4 years. 

11.  Further, the Applicant has failed to state what grounds he has for appealing against the Order, let alone chances of success on any ground.

12.  Accordingly, this application for leave to appeal out of time (by the two summonses) is dismissed.