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CACV 310/2019
[2020] HKCA 514
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 310 OF 2019
(ON APPEAL FROM HCAL 1748/2018)
__________________________
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BETWEEN
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IBRAHIM
and |
Applicant |
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SIMON RUSSELL, ESQ.
and |
Putative Respondent |
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THE DIRECTOR OF IMMIGRATION |
Putative Interested Party |
__________________________
| Before: |
Hon Lam VP, Lisa Wong and ST Poon JJ in Court |
| Date of Written Submissions: |
24 January 2020 |
| Date of Judgment: |
23 June 2020 |
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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):
1. In our judgment of 2 December 2019 ([2019] HKCA 1327), we raised the concern that neither the Torture Claims Appeal Board (“the Board”) nor Deputy High Court Judge KW Lung (“the Judge”) had addressed their minds to the human rights implications of the applicant’s convictions in his absence as discussed by this Court in Re Mohammad Palash [2018] HKCA 417 despite being aware of the convictions. However, the information regarding the convictions were not placed before us.
2. We accordingly adjourned this appeal and directed the Director of Immigration (“the Director”) to lodge a bundle of documents concerning the applicant’s court cases and convictions in Bangladesh that were before the Board, and to lodge and serve written submissions on this aspect of the case in light of this Court’s decision in Re Mohammad Palash.
3. Pursuant to those directions, the Director has lodged bundles of documents and written submissions on 24 January 2020. Though a solicitor firm has gone on record to represent the applicant, he did not lodge any submissions in reply in accordance with our directions of 2 December 2019.
4. Be that as it may, in light of the information provided by the Director, we consider that it is appropriate to proceed to give the directions set out below.
5. In Re Mohammad Palash, it was held that in circumstances which are manifestly contrary to the right to a fair trial and to be tried in his presence there could be a flagrant denial of justice[1] arising from the applicant’s convictions in his absence. Such circumstances would potentially give rise to a ground for non-refoulement by the application of the principle in Soering v United Kingdom (1989) 11 EHRR 439[2].
6. This is a relevant consideration that should have been, but arguably was not addressed or duly considered by the Board or the Judge.
7. According to the information provided by the Director, the applicant was apparently subject to 5 charges in Bangladesh: 2 charges of attempted murder and 3 charges of looting. Though he fled from the country as a fugitive of justice, he was represented by lawyers in those criminal cases. He was in communication with his lawyers who had supplied to him information concerning the trials and outcomes. In this respect, the present case is different from Re Mohammad Palash.
8. Though he had provided documents concerning the verdicts and punishments imposed on him for the 2 charges of looting[3] (imprisonment of 10 years and a fine), he has yet to produce documentary evidence regarding the outcomes and sentences in relation to the 3 other charges, including the more serious charges of attempted murders. He alleged that he had been convicted of one of the attempted murder charge and had unsuccessfully appealed through his lawyers against that conviction.
9. As held by the Court in Re MI CACV 69/2014, 26 September 2014, the processing of a non-refoulement application should be a joint endeavor. It requires co-operation on the part of an applicant in setting out his case clearly and providing the Director and the Board with the relevant information and evidence.
10. There is also a duty on the part of an applicant seeking leave to apply for judicial review to provide the Court with full and adequate information and evidence. The Court expects an applicant to use due diligence in the performance of such duty.
11. In the present context, given the communication between the applicant and his Bangladeshi lawyers, we cannot see any reason why he could not provide full information (supported by documentary evidence) in respect of all the criminal charges and the outcomes of the trials in his absence. He should also give information on any appeals therefrom and the results of the appeals.
12. Further, to make good a case on flagrant denial of justice, he should also provide some evidence on Bangladeshi law as discussed in the judgment in Re Mohammad Palash at [24]. He is now represented by a firm of solicitors in Hong Kong and he should be able to obtain the necessary evidence from his Bangladeshi lawyers.
13. Counsel for the Director has very fairly ad properly indicated in his submissions that it may be reasonably arguable that the Board had not duly considered the applicant’s convictions in his absence as a relevant consideration in processing his non-refoulement claim.
14. Yet, we take the view that the applicant should provide the information and evidence mentioned at [11] and [12] above by way of affirmation and exhibits before we decide if the appeal should be allowed.
15. In light of his legal aid application, we would be generous in terms of the time given to him to file the requisite evidence.
16. We therefore direct that the appeal be further adjourned and that the applicant shall file the evidence mentioned at [11] and [12] within 56 days from the handing down of this judgment.
17. If the applicant does not file such evidence within such time limit, the Court may proceed on the basis that he could not make good his case on flagrant denial of justice and deal with the appeal on the papers accordingly.
(M H Lam)
Vice President |
(Lisa Wong)
Judge of the Court of First Instance |
(S T Poon)
Judge of the Court of First Instance |
The applicant acting in person
Mr Yang-wahn Hew (Counsel), for the putative interested party
[1] See Othman v United Kingdom (2012) 55 EHRR 1 at [258] to [259] for the ‘flagrant denial of justice’ test.
[2] In the Hong Kong context, see also Article 11 of the Hong Kong Bill of Rights, in particular Article 11(2)(d) and Basic Law Article 87.
[3] Though they were described by the applicant as two cases of looting in his Torture Claim Form (at Bundle A2 p.197 paragraph 29, the actual charge document at Bundle A3 p.487 to 500 shows that the charges related to an incident on 15 June 2004 in which the applicant (together with other defendants) was charged with offences under several sections under the Penal Code. He allegedly struck a victim with hockey stick and used a chopper to attack at random and injured a worker. The conviction record at Bundle A3 p.515 to 520 shows that the applicant was convicted under sections 143, 323, 326 and 34 of the Penal Code and sentenced to 10 years imprisonment and fined 50,000 Taka.
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