RE SOHEL AND OTHERS

HCAL 488/2018

[2019] HKCFI 2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 488 OF 2018

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D E C I S I O N

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1.  On 24 May 2019 I refused to extend time for the applicants’ late application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in dismissing their appeal regarding their non-refoulement claim upon finding no good reason for their four-month delay with their intended application, that none of the grounds put forward by them was reasonably arguable, that there was no error of law or procedural unfairness in the process before the Board or in its decision, and that there was no reasonable prospect of success in their intended challenge.

2.  The applicants now by a summons dated 3 June 2019 seek leave to appeal against that decision which is regarded interlocutory in nature: see Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, and for which section 14AA of the High Court Ordinance, Cap 4 stipulates that no appeal shall lie to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted. 

3.  In considering whether to grant leave to appeal, subsection (4) provides that leave shall not be granted unless the Court hearing the application for leave is satisfied that:

(a)  the appeal has a reasonable prospect of success; or

(b)  there is some other reason in the interests of justice why the appeal should be heard. 

4.  The threshold test for reasonable prospect of success was given by Le Pichon JA in SMSE v KL [2009] 4 HKLRD 125 when her Ladyship stated [17]:

“ The section requires that the court be satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard before granting leave. Reasonable prospects of success involves the notion that the prospects of success must be ‘reasonable’ and therefore more than ‘fanciful’, without having to be ‘probable’.”

5.  In the applicants’ case, no draft or proposed ground of appeal was given in their summons, and while in their supporting affirmation they did claim to having “taken legal advice … that there is a good ground of appeal …”, they still did not provide any particulars or elaboration either as to what the ground is, nor were they able to do so despite the court’s invitation during the hearing of their summons.  As such I am not satisfied that there is any reasonable prospect of success in their intended appeal, nor is there some other reason in the interests of justice why their appeal should be heard.  

6.  In the premises, it would be futile to grant leave for what appears to be a hopeless appeal.  Accordingly I refuse the application and dismiss the applicants’ summons.