HOSSEN KAMRUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1814/2019

[2023] HKCFI 3291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1814 OF 2019

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DECISION

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Introduction

1.  This is the Applicant’s application by letter dated 30 October 2023 followed by summons filed on 21 November 2023 (the “Summons”) seeking extension of time to appeal the order of this Court dated 20 October 2023 (the “Order”) refusing his application for leave to apply for judicial review.  

Legal principles applicable to application for extension of time to appeal

2.  Under Order 53, rule 3(4) of the Rules of the High Court, an appeal against any decision of the court refusing an application for leave to apply for judicial review shall be made within fourteen days after the date of the decision.  Thus, by 21 November 2023 when the Summons was filed, the application was eighteen days out of time.  Leave to appeal out of time is required. 

3.  In Jagg Singh and Torture Claims Appeal Board / Non-refoulement Claims Petition Office[1], the Court of Appeal held that in considering whether to extend time for appealing a decision refusing leave to apply for judicial review, the court will take into account: (1) the length of the delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if extension of time was granted.  Usually, prospect of success of the intended appeal is the single factor which carries most weight in deciding whether to grant extension of time.  The fourth factor needs to be considered only if the sum total of the first three are in favour of granting extension of time.

Length of delay and reasons for the delay

4.  The application is eighteen days late.  In his letter, the Applicant gave no explanation for the delay or indication of the grounds of his intended appeal.  Having regard to the fact that he had indicated his intention to appeal by letter within the fourteen-day period of appeal and the fact that he was in prison custody, the Court does not consider the delay substantial.  The Court also readily assumed that there was some delay and inconvenience occasioned by the fact of his imprisonment and was prepared to give him indulgence and assistance in presenting a proper application for extension of time.  It therefore gave him directions on 14 November 2023 to file a statement within 14 days stating: (1) the date when and the circumstances under which the Order was received or brought to his notice; and (2) the grounds of his proposed appeal. 

5.  On 21 November 2023, the Applicant filed the Summons and an affirmation.  In his Summons, he wrote:

“ I am in prison. My case (judicial review for leave) is dismissed by the High Court. I want to appeal please give me permission.”

In his affirmation, he wrote:

“ I make this oath solemnly and sincerely affirm that the contents of this affirmation are true.”

He annexed a copy of the Form CALL-1 and an unsworn document, though titled “Affidavit/Affirmation” stating:

“ Affirmation for extention of time time to appeal as I am in prison and in prison I did not get any decision of the High Court. I did not get chance to appeal. I want to appeal because I do not want to return my country. And from the prison it is not very easy for me to appeal. I request to the High Court to consider my situation and permit me to appeal.”

6.  The reasons for the delay as may be gathered from all these documents are: (1) that he is in prison, with all the inconvenience of being held in custody; and (2) that he did not receive the Order or Form CALL-1.  But he wholly ignored this Court’s clear and simple directions requiring him to state the date when and the circumstances under which the Order was received or brought to his notice.  Without this piece of information, there is no way this Court could determine the reasonableness of the delay.  On the facts, he was able to write to this Court ten days after the date of the Order asking for extra time to appeal.  At the latest, he received the Order ten days after the date of the Order.  At best, he could explain a delay of ten of the eighteen days’ delay.  Obviously, he was aware of the fourteen-day appeal period.

7.  The only ground of his intended appeal as may be gathered from all the documents is that “[he wants] to appeal because [he does] not want to return [to his] country”.  That is only a statement of his motive of appeal, which falls far short of stating the grounds of his intended appeal setting out what this Court has gone wrong.  Even counting from the date of his letter, he had twenty-one days to work out the grounds of his intended appeal.  Yet, despite clear directions, he failed to advance any arguable ground of appeal, let alone one with prospect of success.

Conclusion

8.  Despite generous allowance in his favour and despite the Court’s readiness to indulge, the Applicant has failed badly in explaining for the delay and advance an arguable ground of appeal.  In view of the conclusions reached above, there is no need to consider the issue of prejudice to the respondent if extension of time is granted.  As his intended appeal has no prospect of success, leave to appeal out of time is refused.