BAH MOHAMED BACHIR v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 556/2018

[2019] HKCA 280

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 556 OF 2018

(ON APPEAL FROM HCAL NO 791 OF 2017)

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the court):

1.  On 1 March 2019, this court handed down its judgment dismissing the applicant’s appeal against the decision of Campbell‑Moffat J on 12 November 2018 ([2018] HKCFI 1849). The order in respect of this judgment has since been drawn up and sealed.

2.  We had dealt with the appeal on paper on the basis that there was non-compliance with an unless order of the Registrar of Civil Appeals dated 18 December 2018 to lodge skeleton argument not less than 28 days before the hearing of the appeal which was scheduled to take place on 11 March 2019.  A notice of hearing of the appeal was issued on 23 January 2019.  The skeleton argument should have been lodged on or before 11 February 2019.

3.  On 12 February 2019, the court wrote to the applicant informing him that as there was non-compliance with the unless order, the hearing date of the appeal has been vacated and his appeal will be dealt with on paper.

4.  The applicant then wrote to the court on 21 February 2019 stating that he “did not receive update” of the Registrar’s direction and he only received the court’s letter on 17 February 2019 informing him that the hearing date has been vacated.

5.  As the notice of hearing was sent to the applicant by registered and ordinary post and was not returned undelivered, we did not accept the applicant’s assertion that he did not receive it.  We proceeded to deal with his appeal on paper and handed down our judgment on 1 March 2019.

6.  On 4 March 2019, the court received a letter of the same date from the applicant.  He enclosed a copy of an envelope correctly addressed to him with a post mark of 23 January 2019 and a copy of a notice of hearing dated 23 January 2019.  However, the notice of hearing was in relation to an appeal case of another applicant (CACV 557/2018), not the applicant’s appeal (CACV 556/2018).  This bears out his assertion that he did not receive the notice of hearing for his appeal.

7.  There being a clerical error in despatching the wrong notice of appeal to the applicant, we hereby exercise our power under Order 20 rule 11 of the Rules of the High Court to correct this error and set aside the judgment of 1 March 2019.  A new notice of hearing will be issued to the applicant in time and he will be given opportunity to lodge skeleton argument in respect of his appeal not less than 28 days before the new hearing date of his appeal.