MAGGONAGE PRADEEP TILAKASIRI SILVA alias MAGGONAGE PRADEEP TILAKASIRI alias MAGGONAGE PRADEEP THILAKASIRI alias MAGGONAGE PRADEEP THILAKASIRI Silva v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3601/2019

[2026] HKCFI 4003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 3601 OF 2019

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D E C I S I O N

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Introduction

1.  This is the Applicant’s application by summons filed on 5 May 2026 (the “Summons”)  seeking leave to appeal the order of this Court dated 26 February 2026 (the “Order”)  refusing his application for leave to apply for judicial review (the “leave application”).

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 5 May 2026 when the Summons was filed, this application was one month and twenty-four 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.

4.  Other than asserting in the Summons that he wanted to appeal and that the Court’s decision is unreasonable, he gave no explanation for the delay in making the application and advanced no grounds of appeal.  To assist him to give a reasonable explanation for the delay, this Court gave him directions by letter dated 13 May 2026 to file an affirmation or a statement within 14 days, (1)  explaining why it took him one month and twenty-four days to apply, (2)  stating the date when and circumstances under which he first came to know about the Order and, (3)  stating the grounds of his intended appeal (the “first directions letter”).  He was also advised that unless the directions are complied with, his application for extension of time will be dismissed for want of prosecution.  He did not respond.  On 2 June 2026, the first directions letter was returned through the post and marked “incomplete address”.

5.  Previously, the Applicant had attended the hearing on 28 January 2026. It is the practice of this Court to update the applicant’s address at each hearing and to remind him to update his address with the Court.  The address the Applicant gave at that hearing was “Ground floor, DD xxx, Lot xxx, Ko Tong Ha Yeung, Sai Kung” (the “lot number address”).  The address he stated in his Summons is “Ground floor, No 8, Ko Tong Yeung, Sai Kung” (the “street number address”).  The Court noted that the word “Ha” is missing in the name of the sub-district or village.  As the Applicant had given an incomplete address to Court and has obviously not received the directions, the Court re-issued the directions by letter dated 4 June 2026 (the “second directions letter”)  to both the lot number address and street number address.  The second directions letter addressed to the lot number address was returned and marked “incomplete address”; but the one addressed to the street number address was not returned, suggesting that it had been effectively delivered.  However, the Applicant did not respond.

Length of delay and reasons for the delay

6.  The Court notes that the notices of hearing, the first and second directions letters sent to the Applicant’s lot number address were all returned undelivered.  However, it is significant that the Form CALL-1 and Order which were sent to his lot number address were not returned and the Applicant knew the Order had been made against him.  Be that as it may, even accepting that it is possible that the Applicant had not received the Order or had not received the Order in time for him to make a timely appeal, that by itself does not give him a reasonable explanation for the delay.  This is primarily because it was he who gave an incomplete address to the Court.  In Karamjit Singh[2], the Court of Appeal said:

“As we have said before, it is common sense that if a litigant or a claimant does not notify the authority (be it the Immigration Department, the board, or the court)  in his change of address, there would be delay in communication. If he does not do so, he should arrange for timely transmission of mail from his old address to his new address. It is the duty of a litigant/claimant to give the authority an address to which correspondence or notice can come to his attention in timely manner. The consequence of any delay occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant/claimant, see: Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Said Umair v Torture Claims Appeal Board [2018] HKCA 82; and Re Saqlain Muhammad [2018] HKCA 346. That said, however, we note that the delay in this case was very short, being only some 6 days. In such situations, the board should generally have regard to the merits of the case as disclosed by the available material, rather than simply dismissing the application for lateness.”

It is the Applicant’s duty to provide a correct or effective correspondence address to court.  If he did not, he has to bear the consequence of his failure.

7.  Furthermore, the application is almost two months late which is very substantial in the context of a 14-day period of appeal.  There is no doubt that the Applicant has received the second directions letter sent to his street number address. Despite that, he did not comply with the Court’s directions.  He did not inform the Court when and the circumstances under which he came to know about the Order having been made against him.  Without this information, there is no way this Court could assess the reasonableness of the delay.  He left the Court with no room to exercise its discretion to grant him indulgence. 

Prospect of success of the intended appeal

8.  The Applicant also ignored this Court’s directions requiring him to put forward his grounds of the intended appeal.  He was informed that if he did not comply with the directions, his leave application may be dismissed for want of prosecution.  Without the grounds of his intended appeal, the Court could not assess the prospect of success of his intended appeal.  His inordinate delay and absence of a statement of the grounds of his intended appeal speak volume of the lack of merits in his intended appeal.  His conduct also suggests he has no genuine intention to prosecute his appeal and the underlying lack of merits. He has failed to show there is good prospect of success in his intended appeal.

Prejudice to the respondent

9.  If this application is allowed, the prejudice to the proposed respondent and to public administration is obvious.  It is a clear abuse of legal process to challenge a decision without proper and good grounds of appeal and which is bound to fail.  To allow such a challenge to proceed when it is already out of time would encourage other claimants to indulge in such abuse and create prejudice to the intended respondent and to the administration. It would cause unnecessary waste of judicial and public resources and delay the genuine non-refoulement claimants’ access to the court.  It would render it difficult for the Director to perform his duty of maintaining immigration control.  Above all, it would make it difficult or unduly burdensome for Hong Kong to honour its international obligations under the various conventions to protect genuine victims of persecution, torture and other cruel, inhuman or degrading treatment or punishment.  Allowing his application may subject the whole system of non-refoulement protection to serious abuse to the prejudice of Hong Kong.

Conclusion

10.  For the above reasons, the application for extension of time to appeal is refused.