RE SINGH POPINDER

HCAL 462/2018 and
HCAL 414/2017
(Consolidated)

[2019] HKCFI 2499

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 414 OF 2017

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AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 462 OF 2018

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(Consolidated)

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DECISION

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1.  On 31 January 2018 Deputy High Court Judge Woodcock refused to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal regarding his non-refoulement claim upon finding none of the grounds put forward by him reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director/Board or its decision, and that there was no reasonable prospect of success in his intended application.

2.  The Applicant then on 21 March 2018 filed another Form 86 under HCAL 462/2018 which was the statutory form for leave to apply for judicial review, but in it he stated that he was seeking leave to appeal against the decision of DHCJ Woodcock out of time, and in his supporting affirmation of the same date he confirmed his decision to appeal as follows:

“ The AP appeal out of time against the decision of deputy High Court Judge Woodcock dated 31-1-2018. AP seek leave to appeal out of time with reason copy of the judgment was not served on the AP in time to avoid from further delay the AP file the appeal. The AP will advance grounds of appeal after seeking legal expert advice on merit. It is therefore the AP humbly submit to admit the AP appeal out of time.” [sic]

3.  At the hearing the Applicant again confirmed that it was all along his intention to appeal against the Court’s decision and not to apply again for judicial review, but instead of issuing a time summons for leave to appeal out of time, he wrongly used the Form 86 for the same as he claimed to be so advised by a friend.  In the circumstances and in order to save time, I have decided to treat his application as one for leave to appeal out of time, and to deal with it accordingly notwithstanding that he has used the wrong form which I regard as just a curable irregularity, and by consolidating the two proceedings together.

4.  As the 14-day period for the Applicant to file his notice of appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 14 February 2018, he was therefore late by five weeks with his intended appeal. 

5.  In considering whether to extend time for appealing against a decision refusing leave to appeal for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

6.  A delay of five weeks in the Applicant’s case must be considered as significant, for which he explained at the hearing that he never received the decision from the court and was only told of it when he reported to the Immigration Department, and that later he was detained at Lai Chi Kok Correctional Service after being charged by the police for the offence of robbery which he claimed to be a false charge, he was unable to file his application until it was way out of time.

7.  As the court record reveals that the decision was sent to him by post to his last reported address on the same day of 31 January 2018 without being returned through undelivered post, and in the absence of any other reliable or documentary evidence in support of the Applicant’s claim, I am not satisfied that he has provided any good or valid reason for his delay.

8.  More importantly, nor did he in his summons or affirmation provide any draft or proposed grounds of appeal, or any particulars of any error in the decision, or why it may be argued that the decision was unfair or unreasonable, and at the hearing he conceded that he has no ground of appeal and that he merely wants to remain in Hong Kong now that he has married a local resident and has formed a family here.  As such and in the absence of any error in the decision being identified by the Applicant, I do not see any prospect of success in his intended appeal. 

9.  In the premises, it would be futile to extend time for what appears to be a hopeless appeal.  I therefore refuse the Applicant’s application for leave to appeal out of time under HCAL 414/2017, and accordingly also dismiss his Form 86 filed under HCAL 462/2018.