RE GONI MOHAMMAD USMAN

CACV 263/2017

[2021] HKCA 569

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 263 OF 2017

(ON APPEAL FROM HCAL 8/2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  On 23 February 2021, the Applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s order of 30 January 2018 that unless the Applicant complies with paragraph 2 of the directions of the Registrar of Civil Appeals of 10 January 2018 by 13 February 2018, the appeal shall be dismissed automatically without further order on 14 February 2018. The Applicant had failed to comply with this unless order. The appeal was dismissed accordingly.

2.  The directions that the Applicant was required to comply with were as follows:

(1)  confirm in writing to the Court whether he consents to the appeal to be disposed on paper without an oral hearing or, if he does not consent to disposal of the appeal on paper only, whether he consents to the oral hearing to be held before 2 judges instead of 3 judges of the Court; and

(2)  lodge with the Court 3 sets of appeal bundles to be compiled in accordance with items 4(1)-(3) of the direction of the court dated 13 December 2017.

3.  In his Notice of Motion, the Applicant’s grounds for leave to appeal against the unless order of 30 January 2018 are not related to the making of the unless order in this appeal.  Instead he referred to the immigration officer’s failure to properly assess his non-refoulement claim and his Duty Lawyer worked against him.

4.  In his affirmation in support of the Notice of Motion, the Applicant deposed that he applied late for leave to appeal because he did not get any letter and he was told by the immigration officer in February to submit his High Court documents.  He gave no particulars as to the reason why he did not get any letter.

5.  According to the court records, the directions containing the unless order was sent by post on 30 January 2018 to the address he gave to the court, which remains as his address in his latest affirmation of 23 February 2021.  Previously directions from the Registrar of Civil Appeals had also been sent on 13 December 2017 and 11 January 2018 to the same address.  On the evidence available, we do not accept that he did not receive the letters.

6.  He only made enquiry about the case on 16 October 2018, at which point he was detained in the Castle Peak Bay Immigration Centre.  He was informed by the court on 26 October 2018 that his appeal had been dismissed on 14 February 2018.  Thus, he took out the Notice of Motion more than two years after he learnt about the dismissal of his appeal.

7.  The Registrar of Civil Appeals, after reading his Notice of Motion, referred to the possibility of seeking relief from sanction.  However, to date, the Applicant has not make any application for relief. 

8.  In the circumstances, the Notice of Motion is processed on the basis that the Applicant does not wish to seek relief from sanction. 

9.  In his written submissions in support of the Notice of Motion, the Applicant submitted that his life would still be in danger if he were to return to his country because his enemies are the governing party and police in his country are authorized to kill critics of the Prime Minister or governing party.

10.  He also said he was in prison twice.  He reiterated he did not receive letters from the Court. However, he did not give particulars of the time when he was imprisoned. Whilst he was detained in Castle Peak Bay Immigration Centre in October 2018, there is no information on since when was he so detained.  He was able to come to court to lodge the Notice of Appeal on 20 November 2017 and he did not inform the court of any change of address up till the dismissal of his appeal. Assuming that the Immigration officer detained him after the dismissal of his appeal, that would have occurred after the letter of 30 January 2018 had been received by him.

11.  Also, he must have received the letter of 26 October 2018 because it was sent to Castle Peak Bay Immigration Centre.  He sent another to the court on 30 May 2019 informing the court of his release from the Immigration Centre.  He did not explain the delay in taking action since October 2018. 

12.  Having reviewed the Notice of Motion together with its supporting affirmation and the written submissions, we do not find any reasonably arguable basis for contending that the unless order of 30 January 2018 was wrongly made.  It is well established that failure to lodge appeal bundles in accordance with the directions of the court, which hampers prosecution of the appeal, constitutes failure to prosecute an appeal with due diligence and it is appropriate to make an unless order in such circumstances.

13.  In the circumstances, there is no reason for granting leave for the Applicant to appeal to the Court of Final Appeal.

14.  For the above reasons, we dismiss the Applicant’s Notice of Motion.