RE NGUYEN THI LE HUONG AND ANOTHER

CAMP 285/2021

[2022] HKCA 604

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 285 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1561 OF 2018)

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J U D G M E N T

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Hon G Lam JA:

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) on 23 July 2020[1] refusing to grant leave to the applicants to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office dated 25 June 2018. In that decision, the Board upheld the decisions of the Director of Immigration dated 2 September 2016, 30 March 2017 and 5 February 2018 rejecting the applicants’ non-refoulement claims.

2.  A hearing of the application for leave for judicial review was fixed for 18 July 2019, but the applicants failed to attend it. The Judge proceeded to decide the application on the basis of the materials available, and issued his decision on 23 July 2020, refusing to grant leave for judicial review. The Judge’s decision and reasons were set out in the Form CALL-1 of that date.

3.  Steps were taken for the Form CALL-1 to be sent by post to the applicants but, according to the court’s records, on 3 August 2020 the 1^st applicant informed the Judge’s staff (presumably orally) that the decision she received by post was in fact that of another case, namely, HCAL 1688/2018. The Judge’s staff sent the correct Form CALL-1 and order by post to the applicants on 4 August 2020.

4.  On 18 August 2020, the applicants issued a summons to seek an extension of time to appeal against the Judge’s decision. In her supporting affirmation, the 1^st applicant explained that she did not receive the Judge’s decision in time, that the decision was sent with the wrong name and address, and that by the time she found out, the appeal was already out of time.

5.  Disposing of the application on paper without a hearing, on 15 July 2021 the Judge refused to extend time, as he did not see any prospect of success in the intended appeal, and dismissed the summons accordingly.[2]

6.  On 27 July 2021, the applicants filed a summons in the Court of Appeal re-applying for an extension of time to appeal. In her supporting affirmation, the 1^st applicant stated again, among other things, that the applicants did not receive in time the Judge’s decision refusing leave for judicial review.

7.  In my view, an extension of time should be granted in view of two special circumstances. First, while Order 53 rule 3(4) of the Rules of the High Court (Cap 4A) prescribes a period of 14 days for an appeal against a judge’s refusal to grant leave to apply for judicial review, time does not run within August which is the court’s summer vacation: see section 31 of the High Court Ordinance (Cap 4). It follows that the applicants were actually within time when they filed their summons on 18 August 2020, mistakenly for extension of time. This is a factor that should be taken into account in deciding whether to extend time: see Re Rana Jaswant [2019] 2 HKLRD 147 at [8.7] & [8.8]. Secondly, the reason the applicants took more than 14 days after 23 July 2020 to act was apparently that the wrong documents were sent to them. The 1^st applicant’s explanation was not incredible, and she was able to tell the court’s staff the case number of the decision wrongly sent to her. (That other case in fact also involved an applicant for non-refoulement protection with the same surname “Nguyen”, and the decision was also issued on 23 July 2020.) Once the correct decision was sent to the applicants, they took steps within 14 days to seek to appeal it. In these circumstances, it would in my view be unjust to deprive them of their right of appeal against the Judge’s refusal of leave for judicial review.

8.  I therefore grant an extension of 14 days from the date hereof for the applicants to file a notice of appeal. There will be no order as to costs.