RE MUHAMMAD ALI PAHAT

CAMP 130/2024, [2025] HKCA 657

On Appeal From [2023] HKCFI 1922

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 130 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO. 2700 OF 2019)

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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 2019, the applicant issued his application for leave for judicial review by Form 86 in HCAL 2700/2019.  The applicant’s intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 21 August 2019 which confirmed the Director’s Decision of 23 June 2017.  Deputy High Court Judge Bruno Chan refused to grant leave for judicial review on 26 July 2023.

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.  The applicant did not file the notice of appeal on time.  Instead, by summons issued on 17 August 2023 he applied for an extension of time to appeal.  In his decision of 12 October 2023 at [2], the Judge was of the view that the applicant’s summons was late by ‘some 8 days’ with his intended appeal (since the original supposed deadline being 14 days from 26 July 2023 which is then 9 August 2023).  The Judge rejected the applicant’s application for extension of time to appeal.

3.  We are of the view that the Judge may not be correct in his calculation of time.  According to section 31(1) of the High Court Ordinance (Cap. 4), any period not exceeding one month which is appointed or allowed for the doing of any act or the taking of any proceeding, no days included in the Summer vacation shall be reckoned in the computation of such time, unless the Court otherwise directs (with the exception of entering appearances by writ).  The entire month of August every year is the Court’s summer vacation: see Order 1, rule 4 and Order 64, rule 1 of the Rules of the High Court.  According to the lower court file, we cannot find any direction made by the Court that time was to run during summer vacation indicating that the application of section 31(1) of the High Court Ordinance (Cap. 4) was to be overridden.

4.  By excluding August 2023 from the 14 day calculation of time, 14 days from 26 July 2023 would make the last day for the applicant to file a notice of appeal within time being 9 September 2023 (Saturday).  By Order 3, rule 4 of the Rules of the High Court, 9 September 2023 was deemed to be a Court closure date and hence the last day by which a notice of appeal should have been filed was on 11 September 2023.

5.  However, in reality, the applicant has never filed any notice of appeal.  After 11 September 2023, the applicant is deemed to be out of time for filing a notice of appeal.  The Judge refused the application based on the lack of merits of the intended appeal. 

6.  On 18 July 2024, the applicant filed the present summons to make a further application to this Court for extension of time to appeal.  

7.  On 12 August 2024, the Registrar of Civil Appeals Master MK Liu at [3] of his directions held that the applicant’s affirmation which attached 26 pages of ‘Grounds’ and ‘Ground Submission’ do not comply with the 10 page limit as per Court’s direction of 18 July 2024.  As a result, these 26 pages will not be considered by the Court.  In [4] of those directions, the Court requested the applicant to re-lodge written submissions by which the applicant eventually did on 28 August 2024.  We agree with the Registrar’s directions made.

8.  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 written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.  

2)  Factual background

9.  The applicant is a Pakistan national.  In 2001, the applicant entered Hong Kong with a passport bearing a false identity and he was subsequently deported.  In 2003, the applicant again used a passport bearing a false identity to travel between the Mainland and Hong Kong, and was deported back to Pakistan in May 2003.  In 2004, the applicant entered Hong Kong illegally.  In 2007, the applicant was arrested by the police for possession of an identity card belonging to another person and for illegal stay in Hong Kong[1].  The applicant raised a non‑refoulement claim in July 2017 alleging that if he returned to Pakistan he would be harmed or killed by Mansha Mohammad Sindu, Mushtaq or Bakhtawar[2] of a political party in Pakistan.  The applicant was a supporter of a rival political party.

10.  The background facts have been summarized in the decision of the Judge at [2] to [6].

3)  The Director’s Decision

11.  The Director decided against the applicant’s non‑refoulement claim on 23 June 2017.   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[3] (‘the Director’s Decision’).

4)  The Board’s Decision

12.  The applicant appealed/petitioned against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’)^[4].  After two hearings held in November and December 2018, the Board dismissed the applicant’s appeal on 21 August 2019 (‘the Board’s Decision’).

13.  The Board’s finding is summarized in the decision of the Judge at [10]-[11].

5)  Decisions of the Judge

14.  In his decision dated 26 July 2023, the Judge held that the applicant’s grounds for judicial review were all broad and vague assertions without particulars as to how they applied to the applicant’s case.  The applicant kept shifting the factual basis before the Board.  The applicant’s case was rejected by the Board on an adverse finding of credibility.  There was no error of law or procedural unfairness[5].   

15.  In his decision dated 12 October 2023, the Judge held that the decision was sent to the applicant’s detention address at Tai Tam without being returned undelivered, but given the slight delay, the Judge focused on the prospects of the appeal.  The Judge held that the applicant did not provide any draft grounds of appeal, but merely repeated his claim rather identifying any error of law.  The application for extension of time for appeal was dismissed[6]. 

6)  Legal principles

16.  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

17.  We will repeat what was said earlier on delay.  We will focus on the merits of the appeal.

(2)  Prospect of the intended appeal

18.  In the applicant’s summons, the applicant provided no grounds of appeal but simply stated : ‘see the attached sheets’.  In the applicant’s affirmation including exhibits, much of what was written pertains to the factual background of the applicant which the Judge had already previously considered.  The exhibits of passports and previous court decisions do not assist the applicant’s case.  The applicant made complaints about the Hong Kong government sending him back to his home country multiple times without further explanations or elaborations as to why that may have been the case[7].  The applicant’s written submission consists entirely of general statements of law[8], bald assertions of procedural unfairness such as not being given a chance to explain his case[9].

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

20.  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

21.  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 18 July 2024.