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CACV 324 /2020
[2021] HKCA 688
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 324 OF 2020
(ON APPEAL FROM HCAL NO 2409 OF 2018)
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| BETWEEN |
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Nurkhasanah |
Applicant |
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and |
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Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
________________________
| Before: |
Hon Kwan VP, Cheung JA and Chu JA in Court |
| Date of Written Submission: |
12 April 2020 |
| Date of Judgment: |
13 May 2021 |
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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 1 April 2021 for leave to appeal to the Court of Final Appeal against the unless order made by Kwan VP on 15 March 2021[1]. By that order, it was directed that unless the applicant lodged the supplemental notice of appeal and appeal bundles on or before 29 March 2021, the appeal would be dismissed immediately thereafter without further order (“the Unless Order”). The Unless Order was made against the background that the applicant had failed to lodge supplemental notice of appeal and appeal bundles despite repeated directions issued by the Registrar of Civil Appeals on 15 October 2020 and 10 December 2020 respectively. The appeal was dismissed on 30 March 2021 as a result of the applicant’s failure to comply with the Unless Order.
2. On 7 April 2021, the Registrar of Civil Appeals gave the following directions regarding the Notice of Motion:
(a) as the appeal was dismissed on 30 March 2021 by reason of the applicant’s failure to comply with the Unless Order, the applicant is invited to consider applying for relief from sanction pursuant to Order 2 rule 4 of the Rules of the High Court. Such application should be made by summons on or before 15 April 2021 together with a supporting affirmation, and the Court will consider such summons together with the Notice of Motion;
(b) if no application for relief from sanction is made or no supporting affirmation is filed on or before 15 April 2021, the Court will proceed on the basis that no such application will be made and will proceed to deal with the Notice of Motion accordingly;
(c) the applicant shall lodge with the court 2 sets of written submissions in support of the Notice of Motion on or before 15 April 2021;
(d) upon compliance with the said directions or the expiry of the time for taking the abovementioned steps, the Notice of Motion shall be determined on paper only without an oral hearing.
3. The applicant lodged her written submissions on 12 April 2021. She did not take out any application for relief from the sanction imposed by the Unless Order, nor did she file any affirmation for such application.
4. The Court of Appeal would therefore deal with the Notice of Motion on the basis that the applicant does not wish to seek relief from sanction. Having considered the papers, we think it appropriate to determine the Notice of Motion on the papers.
The grounds of appeal
5. The applicant did not put forward any ground of appeal in the Notice of Motion filed on 1 April 2021 but only stated that she wants to challenge the decision.
6. In her written submissions, she reiterated her predicament and the reasons why she cannot go back to her home country in Indonesia.
Analysis and disposition
7. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) 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.
8. In the present application, the applicant did not put forward any ground for contending that the Unless Order was wrongly made. The applicant had already been given sufficient time and opportunities to lodge supplemental notice of appeal and appeal bundles before the Unless Order was made. She was directed to file a supplemental notice of appeal as she had not provided proper grounds of appeal in her notice of appeal. She failed to prosecute the appeal with due diligence and repeatedly disobeyed the directions of the court, which hampered the processing of the appeal. In these circumstances, it is appropriate and well justified for the court to make the Unless Order.
9. Moreover, the applicant has failed to 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).
10. For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 1 April 2021.
(Susan Kwan)
Vice President |
(Peter Cheung)
Justice of Appeal |
(Carlye Chu)
Justice of Appeal |
The Applicant, acting in person
[1] Although the applicant stated in the preamble of the Notice of Motion that she is applying for leave to appeal to the Court of Final Appeal from the judgment of the Court of Appeal given on 31 March 2021, in fact no judgment was handed down on 31 March 2021. The Court of Appeal made an unless order on 15 March 2021, a sealed copy of which was filed on 31 March 2021.
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