RE ALOM JAHANGIR

CACV 165/2019

[2020] HKCA 980

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 165 OF 2019

(ON APPEAL FROM HCAL 547/2018)

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J U D G M E N T

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

1.  On 28 September 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 21 May 2019 (sealed on 18 September 2020). This was an order that unless the Applicant lodges 3 sets of appeal bundles by 4 pm on 4 June 2019 pursuant to paragraphs 1 to 3 of the court’s earlier direction dated 3 April 2019, the appeal shall be dismissed immediately thereafter without further order. The Applicant failed to comply with this unless order, thus his appeal was dismissed on 4 June 2019.

2.  In his Notice of Motion, the Applicant’s grounds for leave to appeal were directed toward the merits of his non-refoulement claim and the lower court’s refusal of leave to apply for judicial review against the dismissal of his claim.  The Notice of Motion did not advance any basis for challenging the unless order of 21 May 2019.

3.  In light of the possibility of relief against the sanction imposed by the unless order, the Registrar of Civil Appeals [“RCA”] issued directions on 29 September 2020 referring to the same and directed the Applicant to lodge the necessary material to support an application for relief by 27 October 2020.

4.  Pursuant to the RCA’s directions, the Applicant made and filed his supporting affirmation on 21 October 2020, and lodged 2 sets of his application bundle with the Court on 28 October 2020.

5.  After reading the papers, we are of the view that this application is suitable for determination on the papers.

6.  In his supporting affirmation of 21 October 2020, the Applicant explained that he failed to comply with the unless order because though he received a letter from the court about submitting an appeal bundle, he had no idea what an appeal bundle is or how to process and submit it to the court. 

7.  He further explained that until recently he could not get any friends to help him to prepare an appeal bundle.  He also explained that he had no money to hire a legal representative or an interpreter to assist.

8.  The Applicant’s written submissions of 28 October 2020 were directed toward the merits of his non-refoulement claim and the lower court’s refusal of leave to apply for judicial review.  The submissions did not address why he should be given relief from the unless order of 21 May 2019, i.e. why the appeal should not be dismissed due to his failure to comply with that order.

9.  The Applicant has not provided any valid reason as to why relief from the sanction imposed by the unless order of 21 May 2019 should be granted.  In the directions of the RCA of 3 April 2019 (set out in a letter of 4 April 2019), detailed guidance was given on the preparation of the appeal bundles with a sample index provided to the Applicant.

10.  By a letter of 29 April 2019, the RCA reminded the Applicant of the requirement to lodge the appeal bundles and extended the time to do so to 16 May 2019.

11.  It was upon the neglect of these directions on the part of the Applicant that Lam VP issued the unless order on 21 May 2019. The Applicant was given time up to 4 June 2019 to lodge the appeal bundles.  

12.  The documents required to be placed in the appeal bundle pursuant to the directions of RCA of 3 April 2019 were those of which the Applicant had copies. 

13.  The Applicant did not account for any steps he had taken between 4 April and 4 June 2019 in order to understand the directions given by the RCA and the preparation of appeal bundles.

14.  He also did not account for any steps he had taken in respect of his appeal from 4 June 2019 to 28 September 2020.

15.  There is a very long unexplained delay on the part of the Applicant in his application to seek relief and to seek leave to appeal to the Court of Final Appeal.

16.  Further, having considered the submissions of the Applicant and the grounds of appeal in the Notice of Appeal against the decision of Deputy High Court Judge Bruno Chan of 29 March 2019 [2019] HKCFI 261, we do not find the Applicant’s appeal to be reasonably arguable.  He basically invited the court to re-assess his non-refoulement claim without pointing to any errors in the Judge’s decision.

17.  Thus, we do not find the Applicant’s explanation for his default and delay to be acceptable.  We also find no merit in the intended appeal.  In such circumstances, we decline to grant relief from the sanction imposed by the unless order.

18.  It is well established that the court can make an unless order if an applicant failed to comply with the directions of the RCA for the preparation of appeal bundles since such default can be taken as a failure to prosecute the appeal with due diligence.

19.  For these reasons, we dismiss the Applicant’s Notice of Motion.