RIZAL RENU v. SECRETARY FOR JUSTICE sued for and on behalf of DIRECTOR OF IMMIGRATION

DCCJ 4038/2023

[2026] HKDC 1095

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4038 OF 2023

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BETWEEN

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REASONS FOR DECISION

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1.  This application by the Plaintiff (“P”) by summons dated 27 May 2026 for leave to appeal out of time arose from circumstances similar to those in Ammar Abdalmoeen Hussein Ibrahim v Secretary for Justice DCCJ 4008 of 2023 [2026] HKDC 664.

2.  At the conclusion of the hearing, I refused to grant leave and ordered P to pay the Defendant (“D”) his costs summarily assessed at HK$26,000. These are my reasons.

3.  This action is a claim brought by a non-refoulment claimant against the Director of Immigration for allegedly having been unlawful detained in breach of the Hardial Singh principles.

4.  P was allegedly unlawfully detained on 2 occasions for altogether 151 days pending a decision as to whether a removal order should be made, the final determination of her non-refoulment claim and removal. It is trite that reasonable time is afforded to the Director of Immigration for those matters. There was no serious complaint of mal-treatment. She complained that during the detentions she was not given second serving of meals on several occasions, “adequate” personal hygienic products and “adequate” furniture and bedding.

5.  The action was settled upon P’s acceptance of the sanctioned payment in the sum of HK$60,500 pursuant to the leave granted by the Order given on 6 January 2026 in terms of the Consent Summons dated 18 December 2025 save the following changes this Court made on its own volition to paragraph 5 thereof (“the Costs Provision”) such that the costs of this action was to be summarily assessed rather than taxed:

“5. The costs of this action be paid by the Defendant to the Plaintiff on a party and party basis at the District Court scale, to be taxed if not agreed; to be summarily assessed by this Court. The Plaintiff do lodge Statement of Costs within 14 days from the date hereof and the Defendant do lodge and serve his List of Objection within 14 days thereafter ;”

6.  It is now common ground, as shown by the parties’ without prejudice correspondence negotiating the settlement, that the parties in fact had specifically reached an agreement on the mode of assessment of the costs by the usual taxation and not by summary assessment (“the Specific Agreement”).

7.   As in Ammar Abdalmoeen Hussein Ibrahim, this Court was not aware of the Specific Agreement when it made the change to the Costs Provision for the same reasons explained in §8 of Ammar Abdalmoeen Hussein Ibrahim. The validity of those reasons is reflected here as the subsequently lodged Statement of Costs dated 13 February 2026 sought an excessively disproportionate amount of costs totalling HK$218,610.20 in this action which was settled at HK$60,500.

8.  As in Ammar Abdalmoeen Hussein Ibrahim, P did not inform this Court of the Specific Agreement after the Order was made on 6 January 2026 and before she sealed it on 26 January 2026, at which time this Court was not yet functus and had the jurisdiction to review and change the Order.

9.  It is common ground that the following events took place after the Order was made on 6 January 2026:

(a) On 12 January 2026, P’s solicitors wrote to D, enclosing a draft summons applying for leave to appeal, to invite D to jointly write to this Court to seek reconsideration of the Costs Provision as an alternative to an appeal. That was promptly refused by D’s letter the next day;

(b) On 26 January 2026, the Order was sealed;

(c) 3 February 2026 was the last day for P to file an application for leave to appeal, but P did not file any despite the intention indicated in P’s solicitors’ letter of 12 January 2026;

(d) On 13 February 2026, (i) P lodged her Statement of Costs, and (ii) P’s solicitors by letter to this Court requested this Court to “consider adjourning [the summary assessment] for a reasonable time … pending the determination of the appeal [in Ammar Abdalmoeen Hussein Ibrahim] in the interest of justice and fairness”;

(e) On 25 February 2026, this Court replied to P’s solicitors’ letter of 13 February 2026 that “As there is no pending application for leave to appeal, the summary assessment of costs will not be stayed.”

(f) On 23 March 2026, D (as is common ground, D received P’s Statement of Costs on 9 March 2026) lodged his List of Objections to P’s Statement of Costs;

(g) On 30 March 2026, this Court issued its Summary Assessment of Costs assessing P’s costs at HK$16,741 for the reasons there stated;

(h) A cheque in that amount was sent by D to P’s solicitors. The cheque was cleared on 16 April 2026;

(i) On 16 April 2026, this Court handed down its Decision in Ammar Abdalmoeen Hussein Ibrahim [2026] HKDC 664 granting leave to appeal in that case; and

(j) On 27 May 2026, P took out the present summons seeking leave to appeal out of time.

10.  The principles applicable to an application to extend time for an appeal are well-established. In the exercise of its discretion, the court will take into account the length of the delay, the reasons for the delay, the chances of success of the appeal if an extension of time is granted, and the prejudice caused to the other party.

11.  D’s principal ground of opposition is that the delay was more than 3½ months and on any view was serious and substantial, for which there was no good reason; and in fact and rather, P was merely being opportunistic.

12.  This clearly shows that P was aware of the need to lodge an appeal and to do so in time. In P’s solicitors’ letter of 12 January 2026, a draft summons to apply for leave to appeal was already enclosed and P threatened to issue it upon D’s refusal to write jointly. However, P did not issue it in time despite D’s prompt and clear refusal on 13 January 2026.

13.  In refusing P’s “request for adjournment” and stated what I did in my reply on 25 February 2026 to P’s solicitors’ letter of 13 February 2026, this Court conveyed clearly to P that this Court did not consider the pending application for leave to appeal in Ammar Abdalmoeen Hussein Ibrahim should or would affect the conduct of this action, absent a formal application for leave to appeal here. Even with such indication, P continued to flout the deadline imposed for lodging an appeal (even though by then, it was already out of time, but would not be by so much if an application were made then).

14.  P’s explanation for the delay, offered in the affirmation of P’s solicitor Mr John Pickavant filed on 27 May 2026, was that

“As the Plaintiff in [Ammar Abdalmoeen Hussein Ibrahim] already filed an application for leave to appeal on 26 January 2026, with a view to not to over burden the court, the Plaintiff waited for the result in [Ammar Abdalmoeen Hussein Ibrahim] first and withheld filing an application for leave to appeal entirely out of good intention of saving time and resources for the court and also both parties.”[1]

15.  Mr Ngan, counsel for P, submitted that these were “good reason for the delay” and P “made a sensible decision to withhold this application for leave to appeal entirely out of good intention”. Mr Ngan further suggested that in delaying to make an application for leave to appeal P was in fact acting according to one of the underlying objectives of economy.

16.  I must firmly reject these submissions and particularly reject the suggestion as being absurd.

17.  I could agree that it would have been a genuine and proper course to save judicial resources and achieve the underlying objective of economy if P had lodged her application for leave to appeal in time after D’s refusal on 13 January 2026 to jointly write to this Court, and P then requested, even applied, for the pending application for leave to appeal in Ammar Abdalmoeen Hussein Ibrahim and P’s application for leave to appeal herein to be heard or dealt with together.

18.  In my judgment, what P was doing here was achieving her own objective of saving her own costs and exposure by not lodging an application for leave to appeal to wait and see what transpired in Ammar Abdalmoeen Hussein Ibrahim, and in the meantime stringing D along with the summary assessment of costs. Having received, deposited and shortly later cleared D’s cheque for the summarily assessed amount of costs, but then got informed about my Decision in Ammar Abdalmoeen Hussein Ibrahim, P then decided to take a chance to try to obtain more costs and made this application for an extension of time.

19.  Such a conscious decision to flout the rule governing the time within which to lodge an appeal so as to wait and see to save her own costs and exposure is not at all a good reason for the delay. With respect, to justify it as, or equate it with, compliance with the underlying objective of economy is twisting absurdly the meaning, purpose and application of that underlying objective.

20.  I thus agree with Mr Cheung’s criticism that P was merely being opportunistic, and in so doing calculatingly ignore the time limit imposed on lodging an appeal.

21.  The observation of Le Pichon JA in Birkenhead Properties and Investments Ltd. v Leung Yiu and Others [1998] 1 HKLRD 527 at §82 is a very apposite reminder worth quoting:

“Finality in litigation is of central importance to every litigant : it lies at the very foundation of our legal system. The rules designed to facilitate such finality are generally to be adhered to so that litigants will know where they stand.”

22.  In the circumstances, I also find not at all weighty P’s repeated reference that D has not shown he would be suffering from any tangible prejudice if time extension were given. It is well established that although prejudice to the other party is a ground for refusing to extend time, the absence of prejudice is not a ground for extending time. See, e.g. Jotz, Klaus-Bernhard Markus v. Hamawy, Tarek Mahmoud & Another [2018] HKCA 144 at §11.

23.  It is trite that an extension of time to appeal is liable to be dismissed where the delay was substantial and there was no satisfactory or reasonable explanation (Ng Hing Yau and Another v Kong Art Limited [2023] HKCA 212 Barma JA at §32). In my judgment, this is a right case that my discretion should be exercised in refusing to grant the extension of time on this basis alone.

24.  For these reasons I refused to grant the time extension and dismissed P’s summons with costs.