RE MANDEEP SINGH

CAMP 216/2019

[2020] HKCA 157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 216 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 735 OF 2017)

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D E C I S I O N

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

1)  Renewed application for extension of time to appeal

1.1.  On 20 November 2018, Deputy High Court Judge Josiah Lam dismissed the applicant’s application for leave for judicial review (‘Decision of the Judge’).

1.2.  The applicant was entitled to appeal against the Judge’s refusal as of right.  But as he did not do so within the 14-day period specified by law, he has to obtain an order for extension of time to appeal.  Being more than six months out of time, the applicant issued an application dated 21 June 2019 before the Court of First Instance requesting essentially for an extension of time to appeal.  Deputy High Court Judge Bruno Chan on 21 August 2019 rejected the applicant’s application (‘Extension of Time Decision’).

1.3.  On 4 September 2019, the applicant by summons renewed his application for extension of time to appeal before this Court.  For an explanation of the procedural provisions engaged, see : Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at paragraphs 3 to 8.

1.4.  Under Order 59, rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an interlocutory application like the present one without an oral hearing. Having considered the summons and the affirmation filed, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)   Factual background

2.   Briefly stated, the applicant is a national of India.  He entered Hong Kong legally but overstayed.  He was arrested by the police.  He subsequently raised a non‑refoulement claim based on his fear that he would be harmed or killed by a man called Tasweer Singh due to a land dispute.

3)   The Director’s Decision

3. The Director decided against the applicant’s non‑refoulement claim on 31 May 2017.  The Decision covered Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) risk, BOR Article 2 (right to life) risk, persecution risk and torture risk.

4)  The Board’s Decision

4.1.  The applicant appealed against the Director’s Decision to the Board.  An oral hearing was conducted.  The Board dismissed the applicant’s appeal.  

4.2.  The Board found that the applicant only made bare assertions.  His allegations were not supported by the country of origin information relating to land registration system in India.  The applicant failed to prove that he was the registered owner of the land coveted by Tasweer Singh.  The Board found the applicant’s evidence unreliable.

5)  Decision of the Judge and Extension of Time Decision

5.1.  In the Decision of the Judge, the Court essentially held that there was insufficient evidence to back up his various allegations against the Director’s Decision or the Board’s Decision.   

5.2.  In the Extension of Time Decision, the Court held that the applicant did not in his summons or supporting affirmation provide any draft or proposed grounds of appeal, or any particulars of error in the decision or why it may be argued that the Decision of the Judge was unfair or unreasonable.  The Court did not see any prospect of success in the applicant’s intended appeal.

6)  Legal principles

6.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to :

(1)  Length of the delay;

(2)  Reasons for the delay;

(3)  Prospect of the intended appeal;

(4)  Prejudice to the putative respondent if extension of time was granted.

See : Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22 January 2016).

7)  Analysis

(1)     Length of delay and reasons for the delay

7.1.  The applicant was more than six months late when he filed the summons in the court below for extension of time to appeal.  The Court considered that, in any event, there was no merit in the applicant’s application.      

7.2.  In his present summons and supporting affirmation before this Court the applicant stated that the reason for his delay was due to his lack of knowledge and insufficient resources.

7.3.  In our view, six month delay is a substantial delay.  Therefore, the intended appeal must satisfy real prospect of success before an extension of time will be granted: Re Ansar Muhammad [2018] HKCA 227.

(2)     Prospect of the intended appeal

7.4.  Having considered the applicant’s materials, we come to the view that the intended appeal of the applicant has no prospect of success.

7.5.  The applicant’s written submissions are about his fear of his enemies back in his homeland or his perception that there was state acquiescence.  These allegations have been dealt with by the Board which Judge Josiah Lam had fully addressed.

7.6.  The applicant has not identified any error in the Decision of the Judge, we are of the view that the intended appeal does not have any prospect of success.

8)  Disposition

8.  As the intended appeal is unarguable, it will be futile to grant any extension of time. Accordingly, we will dismiss the applicant’s summons dated 4 September 2019.