KHAN DIL AWAIZ alias KHAN-DIL-AWAIZ alias DILVEZ ALIAS DILWAZ v. TORTURE CLAIMS APPEAL BOARD

CACV 323/2022

[2023] HKCA 440

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 323 OF 2022

(ON APPEAL FROM HCAL NO 101 OF 2019)

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J U D G M E N T

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

1.  This is the applicant’s application by Notice of Motion filed on 20 October 2022 for leave to appeal to the Court of Final Appeal against “the judgment of the Court of Appeal in CACV 323 of 2022 given on 1/09/2022”.

2.  The judgment referred to was an unless order made by Kwan VP that day that unless the applicant was to lodge two sets of appeal bundle by 4 pm on 15 September 2022, the appeal would be dismissed immediately thereafter without further order (“the Unless Order”). A reasoned judgment was not issued by the court.

3.  The Unless Order was made against the background that the applicant had failed to lodge appeal bundles despite previous directions issued by the Registrar of Civil Appeals on 16 August 2022. As the applicant did not comply with the Unless Order, his appeal was dismissed on 15 September 2022.

4.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 20 October 2022 that the applicant shall lodge written submissions on or before 3 November 2022. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

Grounds of appeal

5.  In the Notice of Motion filed on 20 October 2022, the applicant stated that:

(1)  he did not get the judgment;

(2)  he failed to submit the appeal bundle despite the court order because he could not understand;

(3)  he wants to go to the Court of Final Appeal for justice.

Analysis and disposition

6.  If the applicant wishes to seek relief from the sanction for failure to comply with the Unless Order, the proper course for him is to make an application under Order 2 Rule 4 of the Rules of the High Court (Cap 4A) within 14 days of the failure. As the applicant has not taken out any application for relief from sanction within the prescribed time but seeks leave to appeal against the Unless Order itself, this application should be dealt with on the basis that he does not wish to seek relief from sanction. That was the approach adopted in Nurkhasanah v Torture Claims Appeal Board and Anr [2021] HKCA 688 at §§3 and 4 and Re Indayati [2022] HKCA 923 at §2.

7.  Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), 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 by the applicant 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).

8.  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.

9.  The applicant was late for 3 weeks in filing his Notice of Motion. He stated that he did not receive the judgment.

10.  The court had sent a letter to the applicant’s address by post on 1 September 2022 informing the applicant of the Unless Order. It is noted that the address stated in his present application is different from the one stated in his Notice of Appeal filed on 16 August 2022. However, the applicant did not file any notice of change of address to notify the court of his new address. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439, at §15). Thus, his explanation for the delay is not acceptable and there is no good reason to grant an extension of time for him to file the Notice of Motion.

11.  In any event, the applicant has not applied for relief from sanction for failing to comply with the Unless Order within 14 days of the failure pursuant to Order 2 rule 4 of the Rules of the High Court, nor has he pointed out any error of the Court of Appeal in making the Unless Order. He did not identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

12.  For all the above reasons, the Notice of Motion filed on 20 October 2022 is dismissed.