RE PANNU GURPREET SINGH

HCAL 1328/2018

[2021] HKCFI 2025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1328 OF 2018

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D E C I S I O N

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1.  On 20 August 2020 I extended time of 14 days for the applicant to appeal against my earlier decision of 20 January 2020 in refusing his leave application for judicial review of the decision of the Torture Claims Appeal Board (“Board”) regarding his non-refoulement claim upon finding that the 14-day period for him to file his appeal under Order 53 rule 3(4) of the Rules of High Court, Cap 4A had fallen inside the GAP period when the courts were closed due to the Covid-19 pandemic, which in effect gave the applicant further time up to 3 September 2020 to file his notice of appeal.

2.  The applicant however did not do so, and on 28 May 2021 he issued another summons for further time to file his notice of appeal, and in his supporting affirmation he stated as follows:

“I am the applicant herein. I am presently detained by the ImmD authorities. I did not receive any correspondence from the court regarding the date of hearing as I was in custody of Correctional Services Department. Moreover, it’s not sufficient that was a litigant in person & unrepresented, thereby making me unaware of the rules regarding 14-day time limit.” I humbly request the court to allow my Appeal out of time and give a chance to explain.”

3.  At the hearing of his summons the applicant further clarified that it was in June 2020 when he was sentenced to prison for 8 months at Hei Ling Chau Correctional Institution for some offence relating to handling stolen goods, and upon his discharge in early 2021, he was then transferred to the Castle Peak Bay Immigration Centre (“CIC”) where he has since been detained, and hence he never received the order granting him leave to appeal out of time in the mail, nor was he aware of it until his detention at CIC where he was so informed by his immigration officer, but that by the time he was able to obtain legal assistance to help him with his intended appeal, he was already seriously out of time with the filing of his notice of appeal. He did not produce any documentary evidence of his alleged conviction and imprisonment.       

4.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

5.  In the applicant’s case, a further delay of more than 8 months must be considered as very substantial, as the court record shows that the order granting him further 14 days to file his notice of appeal was sent on the same day of 20 August 2020 to his last reported address in Sham Shui Po as provided by the Immigration Department without being returned through undelivered post, and that even if what he has alleged is true that he was then in prison and did not know of the order until his discharge and transfer to CIC in early 2021, and as noted that there is no documentary evidence to corroborate his bare assertions, I fail to see why it had taken him until end of May 2021 to make his present application, a delay which must be regarded as substantial even in the circumstances as alleged by him given the fact that he was still able to issue his summons and supporting affirmation while being detained at CIC. In the circumstances I am not satisfied that the applicant has provided a good reason for his substantial delay.       

6.  More importantly, nor did he put forward any proper or valid draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable either in his summons or affirmation or at the hearing of his summons. As such and in the absence of any error in the decision being clearly and properly identified by the applicant, I do not see any prospect of success in his intended appeal.

7.  In the premises, it would be futile to extend further time to the applicant for what appears to be a hopeless appeal. Accordingly, I refuse his application for extension of time to appeal, and dismiss his summons.