HASSAN WAHEED v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3319/2019

[2023] HKCFI 3292

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 3319 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 25 October 2023 (the “Summons”) seeking extension of time to appeal the order of this Court dated 20 September 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 25 October 2023 when the Summons was filed, the application was twenty-one 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 success 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 twenty-one days late.  It is substantial in the context of a fourteen-day appeal period.  In his submission attached to his supporting affirmation filed together with the Summons, the Applicant wrote:

“… I had time of 14 days to apply my summons after my Judicial Review decision. My detention has caused an hinderance to issue the originating summons within 14 days. And also there were many public holidays and also the Typhoon within that 14 days. Because of above mentioned facts I was not able to issue my Summons within the given time of 14 days. …”

The Applicant admitted he had fourteen days to file his appeal. The essence of his explanation is the inconvenience caused by his detention and the time lost because of the public holidays and typhoon.

5.  To assist him to present a proper application for extension of time, the Court gave him directions on 2 November 2023 to file a statement within 14 days stating: (1) his explanation for the delay; and (2) the grounds of his intended appeal.  He was also advised that his application for extension of time will be determined on paper after 14 days, regardless whether he has complied with the directions.  As at the date of this decision, one month has lapsed and he has not responded.

6.  To the Court’s knowledge, daily postal service and limited language assistance are available in all correctional institutions.  Inmates can also obtain general assistance from the welfare officer, including making affirmations or affidavits and filing documents or applications in court.  To accommodate applicants in custody, this Court accepts filing of statements by post instead of formal filing of affidavits or affirmations in court via the welfare officer.  The Court is also conscious of possible delays and inconvenience occasioned by the fact of imprisonment, such as accessibility to the welfare officer and availability of language assistance, etc, and hence gave the Applicant specific directions to explain the delay by filing an affirmation or statement.  But a general assertion of “hindrance to issue the originating summons” without particulars is not sufficient.  Without providing the information required, this Court could not properly assess the reasonableness of his explanation for the delay to enable it to exercise its discretion to grant extension of time.  This Court could at best make a generous allowance of seven days for the inconvenience occasioned by his imprisonment.

7.  Between 20 September and 25 October 2023, there were two public holidays on 2 and 23 October and one typhoon attack by tropical cyclone Koinu on 8 and 9 October.  While the general business outside the correctional institution may be suspended on public holidays or during the typhoon, the business inside the institution continues as usual.  More importantly, bearing in mind that he had an appeal to prosecute and a time limit to observe, the Applicant should use the time during the public holidays and typhoon to prepare the grounds of his intended appeal rather than to enjoy his day off as if he were a tourist visiting Hong Kong on holiday.  Besides, when Koinu struck Hong Kong, the fourteen-day appeal period had already lapsed by four days.  Even discounting these two public holidays and allowing another seven days’ delay occasioned by his detention, it could not explain the twenty-one days’ delay.  The discount and allowance are very generous and may have been partially double-counted.

The prospect of success

8.  The Applicant did not provide any grounds of his intended appeal. Despite clear directions, he still failed to do so.  Without these grounds, it is impossible for this Court to assess the prospect of success of his intended appeal.  Having rigorously re-examined the Board’s Decision with anxious scrutiny, this Court is satisfied that the Decision has not been tainted by errors of law, procedural unfairness or irrationality.  Hence, this Court could only come to the conclusion that the intended appeal has no prospect of success.

Conclusion

9.  Despite generous allowance in his favour and despite the Court’s readiness to indulge, the Applicant has failed badly in explaining the delay and failed to advance any arguable ground of appeal. His intended appeal has no prospect of success.  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.  Accordingly, leave to appeal out of time is refused.