SITOE CLAUDIO MARCELINO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2730/2019

[2025] HKCFI 5855

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2730 OF 2019

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BETWEEN

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D E C I S I O N

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Background

1.  By way of summons filed on 21 August 2025 (“the Summons”), the applicant applies for leave to appeal out of time against Deputy High Court Judge Reuden Lai’s order dated 7 July 2025.

2.  Order 53, rule 3(4) of the Rules of the High Court, Cap 4A, stipulates that “Where an application for leave is refused by a judge …, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order”.

3.  In Re Li Jing [2015] 2 HKLRD 933, it was held that the time for lodging an appeal against the refusal of granting leave to apply for judicial review started to run from the date of the making of the order, not from the date when the sealed order was issued, nor from the date when the sealed order was mailed, and no account should be taken of the fact that the applicant received the sealed order late (see also Re Gurung Min Bahadur [2018] HKCA 226).

4.  As Deputy High Court Judge Reuden Lai’s order was made on 7 July 2025, the last day for the applicant to lodge an appeal was on 21 July 2025. The time for appealing against the order has therefore expired, and the applicant requires leave from this court to appeal out of time.

The applicable law

5.  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 delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted (see Jagg Singh v Torture Claims Appeal Board and another [2020] HKCA 844).

6.  However, the crucial consideration in such an application is whether the applicant can show that there is a reasonable prospect of success in the intended judicial review (see Re Gurung Min Bahadur, supra), and the court will not grant extension for a hopeless appeal to be pursued (see Re Adumekwe Rowland Ejike [2019] HKCA 702).

Discussion

7.  In both the Summons and the applicant’s supporting affidavit dated 21 August 2025, the applicant did not give any reason why he was late in filing the appeal, nor any grounds for the intended appeal.

8.  The applicant was absent at the hearing of the Summons on 25 September 2025 but he requested for another hearing subsequently. I acceded to his request and fixed another hearing on 30 October 2025, but again he was absent. He again requested for another hearing and I fixed another hearing for the applicant to attend on 26 November 2025. This time, the applicant was present.

9.  At the hearing on 26 November 2025, the applicant confirmed that he received Deputy High Court Judge Reuden Lai’s order about 2 days after it was issued on 7 July 2025. However, he did not know about the appeal procedure and he could only ask his friend about it a month later. Hence, he was late in filing the intended appeal.

10.  The reason provided by the applicant is not a reasonable excuse as ignorance of the court procedure is not an excuse. Without any valid reason for the delay, I am not prepared to grant any extension of time at all.

11.  More importantly, for this application to be successful, the applicant must demonstrate that Deputy High Court Judge Reuden Lai in his decision had made errors of law or failed to take account of relevant matters already placed before this court or was otherwise plainly wrong (see Nupur Mst v Director of Immigration [2018] HKCA 524).

12.  The applicant did not give any grounds of the intended appeal in the Summons or his supporting affidavit. When I asked the applicant for the grounds of his intended appeal, the applicant simply replied that he did not like the decision and so he appealed. He also repeatedly said that he suffered from depression and anxiety because somebody stole the money that was given to him by his friend for him to buy mobile phones in Hong Kong.

13.  It is clear that the applicant has failed to demonstrate any errors committed by Deputy High Court Judge Reuden Lai in his decision, and hence there is simply no valid ground for the intended appeal or the intended judicial review.

14.  In the circumstances, there is no reasonable prospect of success in the intended judicial review and I am not prepared to grant any extension of time for the applicant to pursue such a hopeless appeal.

Conclusion

15.  For reasons aforesaid, the Summons is dismissed.