SABIR MOHAMMED AND ANOTHER v. PERMANENT SECRETARY FOR SECURITY

CACV 85/2017

[2019] HKCA 871

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 85 OF 2017

(ON APPEAL FROM HCAL 114/2015)

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REASONS FOR JUDGMENT

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

1.  This appeal was originally scheduled to be heard on 19 February 2019. Subsequently, by reason of the pending appeals to the Court of Final Appeal in the Comilang appeals[1], by consent of the parties the Court stayed the appeal pending the determination of those appeals. The hearing date of 19 February 2019 was vacated accordingly.

2.  The Court of Final Appeal heard the Comilang appeals on 28 February and 1 March 2019 and the judgment was handed down on 4 April 2019[2].  The appeals were unanimously dismissed. 

3.  On 30 April 2019, legal aid for the applicants in the present appeal was discharged.  By virtue of such discharge, solicitors for the applicants no longer acted for the applicants.

4.  Notwithstanding this, the solicitors formerly acting for the applicants wrote to the Court on 16 May 2019 on a pro bono basis inviting the Court to stay the appeal pending legal aid appeals by the applicants.

5.  The Court refused to accede to the request. 

6.  In fact, the applicants did not appeal against the discharge of legal aid.

7.  Acting in person, the 2^nd applicant wrote to this Court by fax on 4 June 2019 intimating that she withdrew her appeal because she had divorced the 1^st applicant.  She requested the Court to make no order as to costs as she had no financial ability to pay anything.

8.  She also lodged a notice to act in person on 17 June 2019.

9.  On 5 June 2019, the former solicitors of the applicants wrote to the Court noting the position of the 2^nd applicant.  They also confirmed that they had ceased to act for the 1^st applicant who was presently in India. 

10.  At a listing appointment, the appeal was listed to be heard on 3 December 2019.

11.  In light of the position of the 1^st applicant and the intimation of the 2^nd applicant, the Court directed that the appeal be listed earlier on 30 July 2019 to consider the dismissal of the appeal. 

12.  At the hearing of 30 July 2019, the 2^nd applicant confirmed her stance in not pursuing the appeal.

13.  Since his deportation on 27 August 2014, the 1^st applicant has been in India.  He is not in a position to pursue the appeal in person.  Since the handing down of the judgment by the Court of Final Appeal in the Comilang appeals and the discharge of his legal aid, there is nothing to indicate that he intends to pursue the appeal.

14.  As mentioned, he did not lodge any legal aid appeal.  His former solicitor indicated on a pro bono basis that he could not pursue the appeal without legal aid.  We should proceed on the basis the former solicitor had adequately explained to the 1^st applicant his position when legal aid was discharged.  He must be taken to have abandoned his appeal when he did nothing to challenge the discharge of legal aid and failed to procure alternative legal representation for himself. 

15.  He was notified and was aware of the hearing on 30 July 2019. A notice to act in person was lodged by him on which he gave Hong Kong address and telephone number for contact.  On the date of hearing, my clerk had tried to contact him at the Hong Kong telephone number and a friend of his answered the phone.  The Court was informed that he was in India and could not attend the hearing.   

16.  In the circumstances, it is unlikely that this Court will receive further submissions on the appeal from the applicants. 

17.  The usual practice of this Court is to dismiss an appeal instead of granting leave to withdraw the same when an appellant does not intend to pursue the same.  There is no reason to depart from such practice in the present appeal.

18.  We have perused the grounds of appeal in the Notice of Appeal.  The judgment of the Court of Final Appeal has addressed Grounds 3 and 4.  The judgment of this Court in M, L v Permanent Secretary for Security [2019] HKCA 507 addressed Ground 2.  On Ground 1, we have read the reasoning of Au J (as he then was) at [59] to [68] in the judgment in the present case.  We respectfully agree with his analysis.  The adoption of an exceptionality approach by the Permanent Secretary is lawful and rational.

19.  For these reasons, we dismissed the appeal.