NGUYEN VAN TRUNG v. DIRECTOR OF IMMIGRATION

HCAL 262/2026

[2026] HKCFI 800

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 262 OF 2026

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D E C I S I O N

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A.  Introduction

1.  By Form 86 dated 27 January 2026, the Applicant seeks leave to apply for judicial review so as to challenge the 15 December 2025 decision (“Impugned Decision”) of the Director of Immigration (“Director”) to maintain and proceed with the prosecution against the Applicant on the charge of “Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong”.

2.  Having considered the Form 86 together with the supporting affirmation filed by the Applicant, I am satisfied that it is appropriate to deal with the application on the papers.

3.  This is my Decision.

B.  Background

4.  The Applicant has previously made an application for leave to apply for judicial review in HCAL 94/2019, and some of the following background matters are taken from the 14 March 2023 decision made in those proceedings, refusing leave to apply for judicial review.

5.  The Applicant is a Vietnamese national. He says he was previously last deported from Hong Kong to Vietnam on 12 February 2004, but “sneaked into”, i.e. entered Hong Kong again illegally, in October 2014. He surrendered to the Immigration Department on 13 October 2015.

6.  At the same time, he raised a non-refoulement claim (“NRC”). His claim was made on the basis that, if returned to Vietnam, he would be harmed or killed by his creditor. He was subsequently released on recognizance pending determination of his claim.

7.  On 29 December 2016, the Applicant’s NRC was dismissed by the Director on all grounds.

8.  The Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision. He attended an oral hearing before the Board on 7 September 2018, when he gave evidence and answered questions raised by the Adjudicator for the Board.

9.  On 31 December 2018, the appeal was dismissed by the Board.

10.  On 10 January 2019, the Applicant filed a Form 86 in HCAL 94/2019, seeking leave to apply for judicial review of the Board’s decision. The supporting affirmation in essence merely repeated the Applicant’s claim as before, of a fear of being seriously harmed or even killed by his creditor over outstanding debt.

11.  As already stated, on 14 March 2023, Deputy High Court Judge KW Lung refused leave to apply for judicial review: see [2023] HKCFI 442.

12.  On 15 September 2023, the Court of Appeal dismissed the Applicant’s appeal from the decision of the Deputy High Court Judge: see [2023] HKCA 1047.

13.  On 8 November 2024, the Court of Appeal refused the Applicant’s application for leave to appeal to the Court of Final Appeal: see [2024] HKCA 1042.

14.  In the meantime, and more pertinently for present purposes, the Applicant was in 2017 charged with the offence of “Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong”, in case number STCC 3736/2017.

15.  Though the Applicant says that he has from time to time attended hearings scheduled by the Shatin Magistrates’ Court, by 2025 the matter had not yet been brought to trial. Subsequently, the Applicant apparently applied to the Immigration Department to withdraw the prosecution against him for that charge, or to agree a plea-bargain.

16.  On 15 December 2025, the Director informed the Applicant that, after consideration, the proposed plea-bargain could not be accepted. Therefore, the Director would proceed with the original charge against him (i.e. the Impugned Decision). The Impugned Decision letter is captioned with the case reference STCC 3736/2017, and refers to a hearing on 6 January 2026.

C.  This Application

17.  As already stated, by his Form 86 dated 27 January 2026, the Applicant commenced these proceedings seeking leave to challenge the Impugned Decision. The ‘grounds’ on which relief is sought can be summarised as follows:

(1)  Although he has broken the law in Hong Kong and entered the country illegally many times, he had no choice but to flee to Hong Kong because his life was in real danger.

(2)  He also served his sentence and fully complied with the Court’s judgment (though the Applicant does not identify the offence for which he was sentenced).

(3)  The charge now faced is too serious for his case, and his request to withdraw and cancel the prosecution is reasonable.

(4)  Since being prosecuted, he has been deeply aware of the need to be careful and comply with the law. Since then, he has never violated anything again, and he has no intention of reoffending.

(5)  He has always reported to the Immigration Department on time and on schedule, and to the Magistrates’ Court in respect of the immigration charge.

(6)  He has learned from some of his fellow Vietnamese, who had committed offences and fully served their sentences, that they were prosecuted for the immigration offence, but that charge was later withdrawn.

(7)  Therefore, because of the similarities with those people, he hopes that the Court and the Immigration Department will consider and cancel the prosecution of him.

18.  The relief sought is (1) an order of certiorari quashing the Impugned Decision, and (2) an order of mandamus compelling the Director to reconsider his decision.

D.  No Merit

19.  With respect, the Applicant’s application has no merit.

20.  First, it is trite that applications for leave to apply for judicial review must be brought promptly and in any event within three months after the date of the impugned decision, unless an extension of time is granted for good reason. But the three-month period is a ‘long stop’, and there will be circumstances where promptitude requires acting much more quickly. This is one of those cases. I see no reason why this application could not have been launched significantly earlier, shortly after receipt of the Director’s letter containing the Impugned Decision. This is all the more so in light of the fact that the Impugned Decision letter made reference to a then forthcoming hearing on 6 January 2026, but the Form 86 was issued only three weeks after that hearing date. In my view, there has been a failure on the part of the Applicant to have brought the application promptly, and I see no basis to exercise my discretion to extend time. That is fatal to the application.

21.  Secondly, it is trite that an applicant for leave to apply for judicial review must identify on the Form 86 the public law grounds which the applicant says are of sufficient merit for the grant of leave. It is not for the Court to try to identify grounds for an applicant. However, the Applicant’s Form 86 has failed to identify any proper reasonably arguable public law grounds of review, on which the relief is sought. The Applicant sets out some background circumstances and merely expresses a request or hope that the prosecution against him can be withdrawn. No public law error on the part of the Director is suggested. This is a breach of the mandatory requirements in Order 53 rule 3 of the Rules of the High Court, and is also fatal to the application.

22.  Thirdly, it is very rare for a Court exercising its judicial review jurisdiction to intervene in a prosecutorial decision. As the law now stands in Hong Kong, and by virtue of Article 63 of the Basic Law, prosecutorial decisions made by the Department of Justice (or Immigration Department) are not susceptible to judicial review on conventional administrative law grounds, but only on the ground of unconstitutionality. Nothing in the materials filed by the Applicant puts forward any alleged ground of unconstitutionality. Seeking to compare his situation with that of others, or expressing the hope that the Impugned Decision might be reviewed, does not identify any such ground.

E.  Result

23.  The Applicant has failed to bring his application in time, and in any event he has also failed to identify any reasonably arguable public law ground of review with any realistic prospect of success.

24.  Therefore, I dismiss the Applicant’s application for leave to apply for judicial review.

25.  I make no order as to costs.