SONGNOK PUNTHIPA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2672/2024

[2025] HKCFI 5012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2672 OF 2024

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D E C I S I O N

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1.  On 5 March 2025, the court sent by ordinary post to the applicant’s address the order together with the decision of the Deputy High Court Judge Reuden Lai in the prescribed Form CALL-1, dismissing the applicant’s application for leave to apply for judicial review against the decision of the Appeal Board dated 16 January 2020, pursuant to Order 53, rule 3(4) of the Rules of the High Court.

2.  The time limit for an appeal to the Court of Appeal is 14 days after the order of the court. The deadline in this case for the applicant to file her appeal would have been 19 March 2025.

3.  After a delay of about 5 months, the applicant issued a summons dated 25 August 2025 to apply for an extension of time to appeal to the Court of Appeal against the order.

4.  At the hearing of the summons, the applicant was brought to court to appear in person because she is currently being detained in Nei Kwu Correctional Institute. The applicant has made submissions, which I will deal with in the below.

5.  Before I deal with the applicant’s submissions, I need to deal with the law first. The guidelines governing the discretion for an extension of time to appeal against a decision refusing leave to apply for judicial review will apply.

6.  The court shall have regard to:

(i)  The length of the delay;

(ii)  The reason for the delay;

(iii)  The prospect of success of the intended appeal; and

(iv)  The prejudice to the respondent if an extension of time were granted.

7.  The guidelines governing the discretion for an extension of time to appeal against a decision refusing leave to apply for judicial review therefore apply. A Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of success of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurang Min Bahadur [2018] HKCA 226; Re Saqlain Muhammad [2018] HKCA 346; and Nguyen Thi Hong Thuy [2024] HKCA 1172.

8.  I will now deal with the applicant’s explanation for the delay. In her affirmation in support of the summons, the applicant stated that the decision of Deputy High Court Judge Reuden Lai was reached unfairly. She was not given the opportunity to fully present and clarify the details of her case and the situation in her country. She further stated that she did not receive any correspondence from the court regarding the hearing date. She further stated that she did not receive any notification from the court about the refusal of her judicial review application.

9.  At the hearing, the applicant gave further elaboration to explain why she did not receive the notice of hearing and why she had not received the decision in Form CALL-1.

10.  Regarding the explanation as to why she did not receive the notice of hearing. According to the court records at the hearing before Deputy High Court Judge Reuden Lai on 20 February 2025, the applicant was absent from the hearing. Before the hearing on 20 February 2025, from the court’s file, I could see that the court had sent firstly to the address to Nei Kwu Correctional Institution. It is because from the letter, the applicant said she informed the court that she was detained in that institution. Hence, according to the information as disclosed in that letter from the applicant dated 12 January 2025, the court therefore on 27 January 2025 sent the first notice of hearing to Nei Kwu Correctional Institution. A body order was also issued almost at the same time to have the applicant brought up to attend the hearing.

11.  However, subsequently, that body order was returned by the correctional institution. The court believed that the applicant was already released from Nei Kwu Correctional Institution. Hence, the court sent the second notice of hearing to the address provided by the applicant in that letter dated 12 January 2025 which was the address at 3rd Floor, 82 Thomson Road, Wan Chai.

12.  So at the hearing today, the court asked the applicant her release date from Nei Kwu Correctional Institution and whether she had returned to live in the Thomson Road address. The applicant informed the court that she was released from Nei Kwu Correctional Institution on 16 January 2025 and afterwards she stayed in the Thomson Road address. So in the circumstances, I believe that the applicant should have received the second notice of hearing sent to her Thomson Road address because the notice was sent on 3 February and the hearing was on 20 February. There is therefore about more than two weeks. She would have received it.

13.  Up to now, on the court file, that second notice of hearing sent to the applicant to the Thomson Road address has not been returned by the Post Office undelivered. I therefore believe that the order of the court, the decision, the order made on 20 February is regular, the service is also valid. I do not accept the applicant’s explanation that she had not received the notice of hearing.

14.  As to the reason for the delay for the filing of the application to appeal, the applicant’s explanation was that since on 10 April 2025 when she reported to the Immigration Reporting Centre, she was detained. So in fact since 10 April up till today, the applicant has been in the custody of Nei Kwu Correctional Institution in Hei Ling Chau.

15.  When the court asked the applicant that why she waited for more than four months since she was in custody to file the summons for time to appeal, her explanation was quite confusing. Initially, she stated that she only had a chance of speaking to an immigration officer once a month and that she also referred to the fact that the entire matter was handled by her husband. She also said that she met a lawyer arranged by her husband once, only for the purpose of signing on the papers to lodge with the court for the extension of time to appeal. Surprisingly, despite having seen a lawyer, she was not concerned with the decision the court had made. She was only concerned to sign the papers. She said that she had not read the decision. Neither had she requested the lawyer to explain to her the decision of the court.

16.  In the circumstances, I do not believe that the applicant’s reason for the intended appeal is genuine. She does not even know the reason of the decision of the court. Hence, she would not have been in a position to state what mistakes the court has allegedly made in relation to the decision dismissing her application for leave to apply for judicial review.

17.  In the circumstances, I do not accept what she had stated in her affirmation that she had not received the decision of the court and the order. When the court posted the order on 5 March to the Thomson Road address, she would have received those documents within the space of 5 days. She was not detained until 10 April. Hence before her detention, I believe that the applicant would have received the documents from the court. For the 4 months of delay since her detention in April until the filing of the summons, I do not accept her explanation for the delay also.

18.  Having regard to the present length of delay which is 5 months, I consider this delay is substantial and serious. A very good explanation shall be required for this long period of delay. After having heard from the applicant, I am of the view that the applicant has clearly failed to take prompt action. Most disconcertingly, I find that the intended appeal is not an authentic challenge to the decision of Deputy Judge Reuden Lai. As she had confirmed at the court, she did not seem to be at all interested in finding out the reason for the decision when she signed the papers for the filing of the summons for time. She filed the summons without even having knowledge or any interest to know the reason for the dismissal of her application by Deputy Judge Lai.

19.  As the applicant herself had confirmed at the hearing just now, the applicant’s real purpose of the appeal is to pray for time so that she could stay in Hong Kong longer.

20.  As for the prospect of success, I am not satisfied that there is any. As I have just stated, the intended appeal has nothing to do with any error of the decision of Deputy Judge Lai.

21.  I am therefore not satisfied that there is a good prospect of success in the applicant’s intended appeal. Whether to extend time to appeal is at the discretion of the court. Having examined the facts and evidence of this case, and all the matters the applicant had put forward, I am disinclined to exercise my discretion to extend the time to the applicant to serve her appeal out of time. The summons is therefore dismissed.