RE LE DUC HUU

CAMP 20/2025, [2025] HKCA 1003

On Appeal From [2024] HKCFI 2469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 20 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO. 1896 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 8 July 2019[1], the present applicant Le Duc Huu (who was the 1^st applicant) together with the 2^nd, 3^rd and 4^th applicants) issued their application for leave for judicial review by Form 86 in HCAL 1896/2019. The applicants are a family. Their intended judicial review was against the decision of the Torture Claims Appeal Board (‘the Board’) dated 6 June 2019 which refused to allow late filing of notice of appeal to the Board against the Director’s Decision of 23 February 2017 relating to Bill of Rights Article 2 (right to life)[2] (‘Board’s 2^nd Decision’). Deputy High Court Judge KW Lung refused to grant leave for judicial review for the 1^st applicant on 22 October 2024. As for the 2^nd to 4^th applicants, they have applied to the Judge to withdraw their applications for judicial review and the Judge acceded to their request and dismissed their applications accordingly (‘Judge’s Decision’)[3].

2.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal against the Judge’s Decision (i.e. by 5 November 2024). Being out of time for 2 days, the applicant took out an application on 7 November 2024 requesting an extension of time to appeal (‘the extension application’). The Judge on 19 December 2024 rejected the applicant’s application for extension of time to appeal (‘Judge’s Further Decision’).

3.  On 27 January 2025, 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 3‑page written statement enclosed with his affirmation, we are of the view that it is appropriate to determine the present application on paper without a hearing.

2)  Factual background

5.  The applicant is a Vietnam national. He arrived with the other applicants in Hong Kong on 5 September 2013, and had visas for permission to stay till 12 September 2013. On 10 September 2013, they applied in Hong Kong for asylum. They surrendered to the Immigration Department on 13 September 2013[4]. The applicants raised their non‑refoulement claims on 25 March 2014 alleging that if they returned to Vietnam they would be harmed or killed by a money lender Bui who had triad connections for non-repayment of a loan. The applicant also feared persecution by Pham, who was principal of a college that the applicant used to work for[5].

6.  The background facts have been summarized in the decision of the Judge (22 October 2024) at [6] to [16].

3)  The Director’s Decisions

7.  The Director decided against the applicants’ non‑refoulement claim on 5 March 2015. The Decision covered Hong Kong Bill of Rights (‘BOR’) Article 3 (torture/inhuman treatment), as well as other statutory and convention rights against torture and persecution[6] (‘the Director’s Decision’).

8.  The Director decided against the applicants’ right to life claim on 23 February 2017 (‘the Director’s Further Decision’). The Director’s Further Decision covered Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decisions

9.  The applicants appealed/petitioned against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’)[7]. After a hearing held on 20 November 2015, the Board dismissed the applicant’s appeal/petition on 6 February 2017 (‘the Board’s 1^st Decision’).

10.  The Board’s finding is summarized in the decision of the Judge (22 October 2024) at [20]-[24].

11.  The applicants appealed/petitioned against the Director’s Further Decision to the Torture Claims Appeal Board (‘the Board’) out of time by seven months[8]. The Board disallowed the late filing of the applicants’ appeal/petition without a hearing on 6 June 2019 (‘the Board’s 2^nd Decision’). The Board noted that that the Director had invited the applicants to file additional facts relevant to the BOR 2 ground. They did not do so.

12.  The Board’s finding is summarized in the decision of the Judge (22 October 2024) at [25]-[27].

5)  Decisions of the Judge

13.  In the Judge’s Decision of 22 October 2024, the Judge held since the Board’s 2^nd Decision is based upon the facts found in the Board’s 1^st Decision, the Board’s 1^st Decision should be taken into consideration. The Board’s 1^st Decision found that state protection was available and internal relocation was possible. The Board’s 2^nd Decision stated that its decision on BOR 2 would have been the same had BOR 2 been considered in the Director’s Decision. The facts relied upon by the applicants did not support his BOR 2 claim. The applicants failed to show any realistic prospect of success in their intended judicial review of the Board’s 2^nd Decision[9].

14.  In the Judge’s Further Decision of 19 December 2024, the Judge held that the Board having considered the evidence held that the applicants’ case did not meet the requirement under the law and the Convention. State protection was available and internal relocation viable. There was no valid reason to challenge the Board’s Decisions. The application for extension of time for appeal was refused[10].

6)  Legal principles

15.  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

16.  Under Order 53, rule 3(4) of the Rules of the High Court, the applicant had 14 days to appeal the Judge’s Decision.

17.  The Judge’s Decision was dated 22 October 2024. The deadline for lodging an appeal against the Judge’s Decision was 5 November 2024. The applicant was 2 days late when he took out a summons for extension of time to appeal (7 November 2024). The delay was minimal, and the Judge focused on the merits of the claims[11].

(2)  Prospect of the intended appeal

18.  In the applicant’s summons, no proper grounds of appeal were included. In the applicant’s affirmation, he barely stated that the High Court decision was reached unfairly without allowing him an opportunity to clarify. Further, he stated that the merits constitute sufficient reason for discretion to be exercised without any further elaboration.

19.  In the applicant’s statement, he again made various bare statements. In summary :

1)  It was unsatisfactory that the Court ruled that the applicant had no chance of success [4];

2)  Vietnam gangsters were different as they were cruel and violent ([5]);

3)  The applicant’s health was not good and internal relocation was not feasible as he will face obstacles and difficulties ([6]);

4)  The nationwide network of gangsters could locate his residence ([7]);

5)  The Immigration Department did not consider his human rights under the law ([8]).

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

21.  Since the applicant has not identified any error of law or procedural unfairness in the Judge’s decisions, the intended appeal does not have any prospect of success.

8)  Disposition

22.  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 27 January 2025.