SANIDAD YOLANDO JR OBRERO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 28/2022, [2024] HKCA 1133

On appeal from [2022] HKCFI 24

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 28 OF 2022

(ON APPEAL FROM HCAL NO 1550 OF 2021)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  On 20 December 2023, the applicant filed a notice of motion for leave to appeal to the Court of Final Appeal from “the judgment of the Court of Appeal in CACV No. 28 of 2022 given on 14 Feb 2022”. The judgment referred to is an order made by Yuen JA on 14 February 2022 dismissing the applicant’s appeal as a result of his failure to comply with an unless order dated 31 January 2022 (“the Unless Order”), whereby it was ordered that unless the applicant was to lodge two sets of appeal bundle by 4 pm on 14 February 2022, the appeal shall stand dismissed.

2.  On 4 March 2024, the Deputy Registrar of Civil Appeals directed the applicant to consider if an application should be made for relief from sanction pursuant to Order 2 rule 4 of the Rules of the High Court (Cap 4A; “RHC”).

3.  The applicant then filed a summons for relief from the sanction and an affirmation in support on 19 March 2024.

4.  On 12 April 2024, the Registrar of Civil Appeals directed that the notice of motion and the summons be referred to the Court of Appeal for consideration and determination on paper without an oral hearing unless otherwise directed.

5.  Having considered the applicant’s summons, affirmations, notice of motion and written submissions, we are of the view that it is appropriate to determine the two applications on paper without an oral hearing.

Analysis and disposition

(1)  Summons for relief from sanction

6.  Order 2 rule 4 of the RHC provides that where a party has failed to comply with a rule or court order, any sanction for failure to comply imposed by the rule or court order has effect unless the party in default applies to the court for relief and obtains relief from the sanction within 14 days of the failure.

7.  Pursuant to Order 2 rule 5(1) of the RHC, when dealing with an application for relief from sanction, the court shall consider all the circumstances, including, among other things, the interests of the administration of justice, whether the application for relief has been made promptly and whether there is good explanation for the failure to comply.

8.  The applicant was late for more than a year in filing the application for relief from sanction. In his affirmation filed on 19 March 2024, he explained that he did not know the court procedure because he did not have any legal assistance.

9.  We do not find the explanation justifiable for the substantial delay in making the application for relief from sanction. We have considered the fact that the court had sent a letter to the applicant by post on 31 January 2022 informing him about the Unless Order and the mail has not been returned to the court. The applicant did not provide any explanation for his failure to comply with the Unless Order.

10.  Therefore, we refuse to grant relief from sanction imposed by the Unless Order.

(2)  Notice of motion

11.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), an application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Good grounds have to be shown for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

12.  Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

13.  The applicant was late for about 9 months in filing the notice of motion. The delay is substantial. In his affirmation filed on 20 December 2023, he stated that he did not receive the judgment within the time stipulated for appeal. In fact, there is no judgment given by this court on 14 February 2022 as the applicant’s appeal was automatically dismissed for failure to comply with the Unless Order and the Order dated 14 February 2022 dismissing his appeal was sent to the applicant by post on 28 April 2022. The applicant did not provide any explanation for further delay after this date. Under these circumstances, we do not consider the applicant has a satisfactory explanation for the substantial delay. There is no good ground for this court to grant extension of time for him to file the notice of motion.

14.  In any event, the intended grounds of appeal in the notice of motion have no merits at all. The applicant failed to demonstrate that the court was wrong in making the Unless Order or in dismissing his appeal for failure to comply with the Unless Order. He has not identified any question of great general or public importance pursuant to section 22(1)(b) of the Ordinance. We also do not see any basis for granting leave on the ‘otherwise’ limb under section 22(1)(b).

15.  For the above reasons, we dismiss the notice of motion filed on 20 December 2023.