HO XUAN TRUONG v. TORTURE CLAIMS APPEAL BOARD

HCAL 1013/2021

[2026] HKCFI 4260

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1013 OF 2021

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D E C I S I O N

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Background

1.  By way of summons filed on 29 May 2026 (“the Summons”), the applicant applies for an extension of time to appeal against my order made on 29 April 2026, which dismissed the applicant’s application for leave to apply for judicial review in respect of the decision of the Torture Claims Appeal Board dated 2 July 2021.

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 my order was made on 29 April 2026, the last day for the applicant to lodge an appeal was on 13 May 2026. Thus, the time for appealing against my order has 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 the applicant’s supporting affirmation dated 29 May 2026, he explained his delay in lodging the appeal by saying that he did not know English, his friend assisted him in getting the information and hence he was late.

8.  However, at the hearing of the Summons on 14 July 2026, the applicant gave another explanation for his delay. He claimed that the court’s letter was not sent to him as he was in hospital from April 2026 to May 2026, and hence he could not receive the letter in time to appeal. When I asked the applicant why he did not mention this reason in his supporting affirmation, he simply said that the supporting affirmation was prepared by his lawyer and he had already told his lawyer about this reason, but he did not know why the lawyer did not state this reason in the supporting affirmation.

9.  The applicant’s two explanations in his supporting affirmation and at the oral hearing respectively are clearly not satisfactory, as they were totally different from each other. If the applicant did tell his lawyer the reason that he was in hospital, I see no reason at all for the lawyer to have omitted it in the applicant’s supporting affirmation.

10.  Moreover, at the oral hearing, the applicant at first confirmed that hospitalization was the only reason for his delay, but then he tried to go around it by saying that the letter was sent to him while he was in hospital and when he was discharged from the hospital, he sought help from his lawyer and friend to submit the application.

11.  Nevertheless, it still cannot explain the omission of the reason that he was in hospital in his supporting affirmation. Thus, I do not find that there was any reasonable excuse for lodging the intended appeal late.

12.  The applicant did not give any proposed ground of appeal in the Summons or in his supporting affirmation at all. At the oral hearing, when I asked the applicant for his grounds of appeal, he merely said that currently the gangsters were still looking for him very frequently and that was why he wanted to stay here for a period of time to avoid them. He also said that he wanted to stay here to complete the treatments for his illness in hospital. These clearly cannot be grounds for his intended appeal.

13.  For this application to be successful, the applicant must demonstrate that this court 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).

14.  The applicant has failed to demonstrate any of the above, and hence there is simply no valid ground for the intended appeal.

15.  As there is no satisfactory explanation for the applicant’s delay in lodging the intended appeal, and there is no reasonable prospect of success in the intended appeal, I am not prepared to grant any extension of time for the applicant to pursue such a hopeless appeal.

Conclusion

16.  For reasons aforesaid, the Summons is dismissed.