LUU NGOC QUYET v. THE DIRECTOR OF IMMIGRATION

HCAL 2889/2025

[2026] HKCFI 242

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2889 OF 2025

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D E C I S I O N

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A.  Introduction

1.  By Form 86 dated 30 December 2025, the Applicant seeks leave to apply for judicial review so as to challenge the 15 September 2025 decision (“Impugned Decision”) of the Director of Immigration to maintain the prosecution against the Applicant on the charge of “Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong”.

2.  Having considered the Form 86 together with the supporting affirmation filed by the Applicant, I am satisfied that it is appropriate to deal with the application on the papers.

3.  This is my Decision.

B.  Background

4.  The Applicant is a Vietnamese national. He entered Hong Kong illegally on 22 November 2015, and surrendered to the Immigration Department on 24 November 2015.

5.  At the same time, he raised a non-refoulement claim (“NRC”), on the basis that if he returned to Vietnam he would be harmed or killed by his creditor over his unpaid debts. He was subsequently released on recognizance pending determination of his claim.

6.  On 28 February 2016, and whilst on recognizance, the Applicant was arrested by police for theft, for which offence he was subsequently convicted and sentenced to prison for four months.

7.  On 5 April 2017, the Applicant’s NRC was dismissed by the Director on all grounds, including risk of torture.

8.  On 18 April 2017, the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision. He attended an oral hearing before the Board on 31 January 2019, when he gave evidence and answered questions raised by the Adjudicator for the Board.

9.  On 22 March 2019, the appeal was dismissed by the Board.

10.  Also on 22 March 2019, the Applicant filed a Form 86 in HCAL 1274/2019, seeking leave to apply for judicial review of the Board’s decision. But no ground for seeking relief was given, and the supporting affirmation merely repeated the Applicant’s claim as before of a fear of being harmed or killed by his creditor over outstanding debts.

11.  On 24 May 2023, Deputy High Court Judge Bruno Chan refused leave to apply for judicial review, [2023] HKCFI 1404.

12.  On 31 January 2024, the Applicant’s appeal to the Court of Appeal, made in CACV 167/2023, was dismissed, [2024] HKCA 127. On 20 November 2024, the Applicant’s application for leave to appeal to the Court of Final appeal against that appeal decision was dismissed by the Court of Appeal, [2024] HKCA 1075.

13.  In the meantime, in case number STCC 4519/2018, the Applicant was charged with the offence of “Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong”.

14.  On 9 September 2025, the Applicant applied to the Immigration Department to withdraw the prosecution against him for that charge.

15.  By letter dated 15 September 2025, the Director informed the Applicant that, after careful consideration, that request could not be acceded to, and that the prosecution would maintain and proceed with the charge against him (i.e. the Impugned Decision). The letter made reference to a forthcoming Court Date of 5 January 2026 at the Shatin Magistrates’ Courts.

16.  As already stated, by Form 86 dated 30 December 2025, the Applicant commenced these proceedings seeking leave to challenge the Impugned Decision. The ‘grounds’ on which relief is sought can be summarised as follows:

(1)  Notwithstanding that he had completed the Court’s previous sentence for the offence of theft, he was subsequently charged and prosecuted for the immigration offence.

(2)  Since his previous conviction, he has been careful to comply with the law, and has no intention of reoffending.

(3)  He has always reported to the Immigration Department on time and on schedule, and to the Police each Monday in respect of the immigration charge.

(4)  He has learned from some of his fellow Vietnamese, who had also committed offences and fully served their sentences, that they were prosecuted for the immigration offence, but that charge was later withdrawn.

(5)  Therefore, because of the similarities with those people, he hopes that the Court and the Immigration Department will consider and cancel the prosecution of him.

17.  The relief sought is (1) an order of certiorari quashing the Impugned Decision, and (2) an order of mandamus compelling the Director to reconsider his decision.

C.  No Merit

18.  With respect, the Applicant’s application has no merit.

19.  First, it can be seen that the application has been brought out of time, and there is neither request for nor justification offered for the grant of any extension of time. It is trite that applications for leave to apply for judicial review must be brought promptly and in any event within the ‘long stop’ period of three months after the date of the impugned decision, unless an extension of time is granted for good reason. Though the delay beyond the three-month period is not long in this case, I see no reason why this application could not have been launched significantly earlier, shortly after receipt of the Director’s letter containing the Impugned Decision. This is all the more so in light of the fact that the Impugned Decision letter made reference to a then forthcoming hearing on 5 January 2026, but the Form 86 was issued only two working days before that hearing date. In my view, there has been a failure on the part of the Applicant to have brought the application promptly, and I see no basis to exercise my discretion to extend time. That is fatal to the application.

20.  Secondly, it is trite that an applicant for leave to apply for judicial review must identify on the Form 86 the public law grounds which the applicant says are of sufficient merit for the grant of leave. It is not for the Court to try to identify grounds for an applicant. However, I think the Form 86 has failed to identify any proper reasonably arguable public law grounds of review, on which the relief is sought. This is a breach of the mandatory requirements in Order 53 rule 3 of the Rules of the High Court, and is also fatal to the application.

21.  Thirdly, it is very rare for a Court exercising its judicial review jurisdiction to intervene in a prosecutorial decision. As the law now stands in Hong Kong, and by virtue of Article 63 of the Basic Law, prosecutorial decisions made by the Department of Justice (or Immigration Department) are not susceptible to judicial review on conventional administrative law grounds, but only on the ground of unconstitutionality. Nothing in the materials filed by the Applicant puts forward any alleged ground of unconstitutionality. Seeking to compare his situation with that of others, or expressing the hope that the Impugned Decision might be reviewed, does not identify any such ground.

D.  Result

22.  The Applicant has failed to bring his application in time, and he has also failed to identify any reasonably arguable public law ground of review with any realistic prospect of success.

23.  Therefore, I dismiss the Applicant’s application for leave to apply for judicial review.

24.  I make no order as to costs.