RE TABAROK ULLAH

CAMP 26/2021

[2021] HKCA 882

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 26 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 277 of 2018)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  In HCAL 277/2018, the applicant applied for leave to judicially review the decision of the Torture Claims Appeal Board dismissing his appeal regarding his non-refoulement claim. On 23 June 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused his application.

2.  Under Order 53, rule 3(4) of the Rules of the High Court, Cap. 4A, the applicant may appeal to the Court of Appeal against the Judge’s order refusing leave within 14 days after such refusal. The 14-day period ended on 7 July 2020. 

3.  Two days later on 9 July 2020, the applicant applied by summons to the Judge for an extension of time to appeal. By his decision dated 8 September 2020, the Judge granted the application and extended the time for appeal to 14 days from the date of order.  The Judge took into account it was a short delay and the covid-19 pandemic situation which had adversely affected the general postal service.    

4.  The 14-day extension granted by the Judge ended on 22 September 2020.  Nearly four weeks later on 19 October 2020, the applicant lodged a notice of appeal in CACV 562/2020.  As the appeal was commenced outside the 14-day extension granted by the Judge, the Registrar of Civil Appeals directed the applicant to apply to this Court for a further extension of time to appeal. 

5.  Consequently, on 21 January 2021, the applicant issued the summons in this action together with a supporting affirmation to apply for leave to lodge the notice of appeal out of time.  He also lodged a written submission on 12 April 2021 to support his application.  

6.  Under Order 59 rule 14A(1) of the Rules of the High Court, this Court may determine an application for leave to appeal without an oral hearing.  Having considered the summons and the affirmation filed by the applicant, we are of the view that it is appropriate to determine the present application on paper without a hearing.

7.  In the summons and written submission, the applicant explained that he was late in filing the appeal because he did not get the court’s decision and order timely, but no details were given.

8.  The applicant was out of time by almost 4 weeks.  This is not a minor delay, and the applicant has not elaborated on his explanation.  However, having regard to all the circumstances of the case, we are prepared to accept that the applicant has all along intended to pursue the appeal, and his delay and non-compliance with the time limit imposed by the Judge was not wilful and contumelious.    

9.  We will therefore give leave to the applicant to lodge the notice of appeal on 19 October 2020 in CACV 562/2020 notwithstanding that the time for doing so as stipulated in the Judge’s order dated 8 September 2020 had expired.  Accordingly, the applicant may proceed with the appeal in CACV 562/2020.