RE DO KHANH DUONG

CAMP 116/2023, [2024] HKCA 64

On Appeal From [2022] HKCFI 1722

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 116 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO. 1301 OF 2021)

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DECISION

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

1) Renewed application for extension of time to appeal

1.  On 16 September 2021, the applicant issued his application for leave for judicial review by Form 86 in HCAL 1301/2021. The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 28 June 2021 which granted the applicant’s own application to withdraw his notice of appeal against the Director’s Decision of 19 February 2021. Deputy High Court Judge To refused to grant leave for judicial review on 10 June 2022.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the decision of the Judge (i.e. by 24 June 2022). Being out of time for about four months and one day, the applicant took out an application on 25 October 2022 before the Judge requesting an extension of time to appeal. The Judge on 6 March 2023 rejected the applicant’s application for extension of time to appeal.

3.  On 22 March 2023, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.

4.  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, affirmation and statement, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2) Factual background

5.  Briefly stated, the applicant is a Vietnam national. He left Vietnam in June 2020, and entered Hong Kong in July 2020 illegally via the Mainland. The applicant was arrested on 19 October 2020. The applicant raised a non-refoulement claim on 6 November 2020 alleging that if he returned to Vietnam he would be harmed or killed by TRINH Van Thuc because of a loan taken from him. The applicant was also worried that the Vietnam bank would prosecute him on his loan through the Court.

3) The Director’s Decision

6.  The Director decided against the applicant’s non-refoulement claim on 19 February 2021. The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment) and Article 2 (right to life), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4) The Board’s Decision

7.  The applicant appealed to the Board on 26 February 2021.

8.  The applicant then sent an undated letter to the Board applying to withdraw his appeal/petition against the Director’s Decision of 19 February 2021. The letter was received on 10 May 2021. The Board wrote to the applicant on 26 May 2021 seeking clarification regarding the applicant’s application to withdraw of which there was no response. The Board then on 28 June 2021 informed the applicant that having regard to all the information provided, it was satisfied that the application was freely sought, and that the applicant understood the consequences of withdrawal. The Board was satisfied that there was good reason for the withdrawal, namely that the applicant had stated that it is safe for him to return to Vietnam. Under the circumstances the Board granted the applicant’s application to withdraw, and the Director’s Decision remain unchanged.

5) Decisions of the Judge

9.  In his decision dated 10 June 2022, the Judge held that the function of the Court was to scrutinize the Board’s decision for errors of law or procedural unfairness if any. The Board had regard to all information available and the applicant’s lack of response. The information provided by the applicant’s wife that the moneylender did not harass the applicant’s family members anymore was consistent with the Director’s finding that that moneylender has no intention of harming the applicant. This was confirmed by the applicant’s application to withdraw. The decision to withdraw was voluntary free from fraud or misrepresentation. It was open to the Board to accept such withdrawal. There was no error of law or procedural unfairness.

10.  In his decision dated 28 October 2022, the Judge held that the reason the applicant may not have received the Court’s decision was most likely because he had moved without updating the Court his new address. The applicant provided no arguable ground for appeal. The application for extension of time for appeal was dismissed.

6) Legal principles

11.  In considering whether to extend time for appeal, the Court will have regard to :

(1) length of the delay;

(2) reasons for the delay;

(3) prospect of the intended appeal; and

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

7) Analysis

(1) Length of delay and reasons for the delay

12.  Under Order 53, rule 3(4) of the Rules of High Court, the applicant had 14 days to appeal the decision of the Judge.

13.  The Form CALL-1 decision was handed down on 10 June 2022. The deadline for the appeal was 24 June 2022. The applicant was about four months and one day late when he filed his extension of time to appeal application on 25 October 2022. The applicant barely stated that he did not receive any letter from the Court without further explanation.

(2) Prospect of the intended appeal

14.  In the applicant’s summons, the applicant stated that he would advance a new sole ground of appeal but did not provide what that was. In the applicant’s affirmation, he stated that the decision of the High Court was reached unfairly without giving him an opportunity to clarify his case and situation in his country. In the statement, while arguments were made against the Director’s Decision, there was nothing in the statement that was focused on any error from the Judge’s decision(s).

15.  In our judgment, the applicant does not have any prospect of success in his intended appeal.

16.  The Judge’s focus was on the Board’s decision to allow the applicant to withdraw the appeal to the Board. Since the applicant has not identified any error of law or procedural unfairness in the decisions of the Judge, the intended appeal does not have any prospect of success.

8) Disposition

17.  As the intended appeal is unarguable, it would be futile to give an extension of time. Accordingly, we dismiss the applicant’s summons filed on 22 March 2023.