RE MASANTHIAH TEERAPONG

CAMP 212/2024, [2025] HKCA 999

On Appeal From [2024] HKCFI 746

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 212 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 178 OF 2024)

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DECISION

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

I.  Renewed application for extension of time to appeal

1.  The applicant, by way of summons dated 31 October 2024 (‘the summons’), renewed his application for extension of time to appeal against the Decision of Deputy High Court Judge K W Lung dated 19 March 2024 (‘the Decision’). The Judge upon enquiry with the Registry found out that the lower court action in this case overlaps another action in Re Masanthiah Teerapong [2021] HKCFI 822, HCAL 1386/2018 dated 31 March 2021 (around 3 years ago)[1]. These two actions are based on the same Board’s Decision dated 9 July 2018[2]. The Judge dismissed the applicant’s application for leave for judicial review based on the ground of abuse of process[3].

2.  By way of background, on 13 July 2018, the applicant issued his application for leave to apply for judicial review by Form 86 in HCAL 1386/2018[4]. The applicant’s intended judicial review was against the Decision of the Torture Claims Appeal Board (‘the Board’) dated 9 July 2018 which dismissed his appeal against the Decision of the Director of Immigration (‘the Director’) dated 27 December 2017 rejecting his non‑refoulement claim[5]. The Judge refused to grant leave on 31 March 2021.

3.  On 18 January 2024, the applicant issued his application for leave to apply for judicial review by Form 86 in HCAL 178/2024 out of time[6]. The applicant’s intended judicial review was again against the Decision of the Torture Claims Appeal Board (‘the Board’) dated 9 July 2018 which dismissed his appeal against the Decision of the Director of Immigration (‘the Director’) dated 27 December 2017 rejecting his non‑refoulement claim[7]. In other words, it is a duplicated application for leave for judicial review. The Judge refused to grant leave on 19 March 2024 based on abuse of process[8].

4.  The applicant then on 30 May 2024 by way of summons applied for extension of time to appeal the Judge’s decision[9], and on 26 July 2024 the Judge refused to extend time to appeal as there was no reason to appeal against the fact that it is a duplicated application[10]. The applicant then on 31 October 2024 took out the present application by summons and affirmation, providing no specific grounds for seeking extension of time to appeal[11].

5.  It is of note that the applicant had more recently commenced another set of proceedings.  In HCAL 742/2025, the applicant on 2 December 2024 had applied to the Director for making a subsequent claim for non-refoulement based on the same set of facts which was rejected by the Director in its decision on 20 January 2025[12].  The applicant then took out an application for leave for judicial review in HCAL 742/2025 against the Director’s Decision of 20 January 2025.  Judge K W Lung dismissed the application and a restricted proceedings order was issued against the applicant[13].

6.  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.

II.  Our decision

7.  Despite a previous application that was unsuccessful and conclusively determined by the Court of First Instance in HCAL 1386/2018, the applicant has been re‑litigating his case by bringing a second application on the same subject matter.  This is an abuse of process: Bepary Shahealom [2018] HKCA 763 at [16]; Khan Kamran v Torture Claims Appeal Board [2020] HKCA 380 at [21]-[28]; Re Mamun Mohammad Tuhin Al [2018] HKCA 442 at [13]; Sujan Gazi v Torture Claims Appeal Board [2018] HKCA 519 at [4.1].

8.  Accordingly, we will strike out the applicant’s summons of 31 October 2024.