RE GURJIT SINGH

CACV137/2020

[2021] HKCA 708

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 137 OF 2020

(ON APPEAL FROM HCAL 1837/2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  On 21 December 2020, the Applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this court’s order of 15 October 2020 dismissing his appeal in CACV137/2020. On 15 September 2020, Barma JA directed that unless the applicant lodged 2 sets of appeal bundles by 4 pm on 13 October 2020, the appeal shall be dismissed without further order immediately after expiry of the deadline. The applicant had failed to comply with this unless order. The appeal was therefore dismissed accordingly by the order of 15 October 2020.

2.  In his Notice of Motion, the applicant raised the following grounds for leave to appeal against the order dated 15 October 2020:

“…In the order give to the court there is some error in my decision. Decision maker just relied on COI information and my previous facts which were favor on reject my claim. Actual life occur different situation the mentioned COI information Immigration Officer and Hong Kong High Courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining. The decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly calculate to reject my claims. Also I am requested to court could you please provide me legal represented. I am really appreciated court consider what is current situation in India very critical situation right now I am requested court please save my life Bundle of thanks”

3.  In his affirmation dated 21 December 2020 in support of the Notice of Motion, the applicant deposed:

“…In the order give to the court I would like to request to Court I am sick that’s why I am late filing could you please understand my situation and accept my application bundle of thanks.”

4.  The Registrar of Civil Appeals issued the directions below (among other directions) on 22 December 2020:

(1)  the applicant is invited 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.  If so, such application should be made by summons on or before 5 January 2021 together with a supporting affirmation; and

(2)  if no application for relief from sanction is made or no supporting affirmation is filed in accordance with the direction above, the court will proceed on the basis that no such application will be made and will proceed with the Notice of Motion accordingly.

5.  The applicant did not file the summons and affirmation as suggested.  On 4 January 2021, he filed a written submission contending that the Board committed a number of errors.  The written submission did not give any reason for granting relief from sanction. 

6.  Because the applicant has failed to file any summons and affirmation for a relief for sanction application, the Notice of Motion is processed on the basis that the applicant does not wish to seek relief, and we will, in accordance with our usual practice, determine the Notice of Motion on the papers.

7.  In the affirmation, the applicant claimed that he was late in filing documents because he was sick. There are insufficient particulars in this ground, he did not identify the relevant documents or how his sickness prevented him from filing the relevant documents in time.  Nor did he provide any evidence of his alleged illness.

8.  In the Notice of Motion and the written submission, the applicant identified a number of errors allegedly committed by the Board and “High Court”.  These grounds do not identify any error in the unless order made by this court and are therefore without merit.  In any event, the applicant has failed to provide sufficient particulars for any of those grounds, which would fail for this reason as well.

9.  Having reviewed the grounds set out in the applicant’s Notice of Motion, we do not find any reasonably arguable basis for contending that the unless order was wrongly made.  It is well established that failure to lodge appeal bundle in accordance with the directions of the court, thus hampering the prosecution of the appeal, constitutes failure to prosecute an appeal with due diligence and it is appropriate to make an unless order in such circumstances.

10.  As indicated by the Registrar, the proper course that the applicant should have taken was to apply for relief from sanction.  The applicant failed to put before this court a proper application seeking such relief.  In the circumstances, there is no reason to grant leave for the applicant to appeal to the Court of Final Appeal.

11.  For the above reasons, we dismiss the applicant’s Notice of Motion.