RE RIT BAHADUR KHANAL

CACV 454/2018

[2019] HKCA 1417

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 454 OF 2018

(ON APPEAL FROM HCAL NO. 1117 OF 2017)

_____________________

_____________________

___________________

J U D G M E N T

___________________

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

Introduction

1.  This is the applicant’s application for relief from sanction for failing to observe the unless order dated 12 November 2018 whereby he was required to lodge three sets of appeal bundle for his appeal by no later than 23 November 2018 4 pm failing which his appeal would be dismissed (“the Unless Order”).  Having considered the material before us, we are of the view that this application can be disposed of on paper without a hearing.

Background

2.  The applicant is a national of Nepal.  He arrived in Hong Kong on 9 March 2014 and was permitted to stay until 16 March 2014.  He did not depart and was arrested by the police on 18 March 2014.  He was then transferred to the Immigration Department for investigation.  On 20 March 2014, he lodged his non-refoulemnt claim by way of written representation.  The applicant’s claim was based on his fear that he would be harmed or even killed by families of the dead Maoists and other Maoists.  The applicant’s case was set out in details at [6] of the decision made by the Director of Immigration (“the Director”) dated 2 July 2015.  In gist, the applicant was a soldier of the Royal Nepal Army and his battalion had killed some Maoists and their families in certain anti-terrorism actions. Maoists held a grudge against the whole team of battalion including the applicant and planned to kill them all for revenge.

Procedural History

3.  The applicant’s claim was dismissed by the Director on 2 July 2015 (in respect of torture risk, BOR 3 risk and prosecution risk) and 13 February 2017 (in respect of BOR 2 risk).  His appeals to the Torture Claims Appeal Board (“the Board”) were dismissed on 17 November 2017.  His application for leave for judicial review was dismissed by Campbell-Moffat J (“the Judge”) on 31 August 2018.

4.  By a notice of appeal dated 13 September 2018, the applicant appealed against the Judge’s decision.  On 18 September 2018, the Registrar of Civil Appeals (“the Registrar”) directed that the applicant should lodge with the court on or before 4 October 2018 three sets of appeal bundle.  The applicant did not comply with this direction.  On 8 October 2018, the Registrar again directed that the applicant should lodge the bundles on or before 24 October 2018, failing which the matter would be referred to the Court of Appeal for appropriate sanction, including the imposition of an unless order.  On 9 October 2018, the court sent a letter to the applicant informing him of the said order made by the Registrar.  On the same day, the Appeals Registry received a letter from the applicant requesting for an extension of 3 months to comply with the order made by the Registrar for the reasons that he needed time to amend the notice of appeal and he had applied for legal aid.  The application of extension of time was refused. 

5.  The applicant again failed to comply with the order of the Registrar made on 8 October 2018.  On 12 November 2018, the Court of Appeal made the Unless Order. On 22 November 2018, the applicant applied by letter for an extension of 3 months to comply with the Unless Order and the application was refused.  The applicant did not lodge any appeal bundle on or before 23 November 2018 4 pm and his appeal was dismissed on 23 November 2018 in accordance with the Unless Order. 

6.  By a summons dated 29 August 2019 with supporting affirmation, the applicant applied to reopen his case and sought leave to comply with the Unless Order.  In his supporting affirmation, he explained that he only received the Unless Order on 29 August 2019 as the address to which the Unless Order was mailed was not his up-to-date.

7.  On 3 September 2019, the Registrar directed that the applicant lodge with the court 2 sets of application bundle by 19 September 2019.  However, he failed to comply with the directions.  On 27 September 2019, Yeung VP ordered that unless the applicant lodged with the court 2 sets of application bundle by 4 pm 11 October 2019, the summons filed on 29 August 2019 be dismissed.  On 11 October 2019, the applicant lodged the application bundle and his written submissions.  

8.  In his written submissions, he set out the following:

“The application for leave to apply for judicial review is made on the grounds that it failed to meet the high standard of procedural fairness required by law.

The application is to challenge the applicant’s credibility. A fair oral hearing is warranted with legal representation in order to satisfy the applicant’s obligation of procedural fairness.

The applicant’s torture claim is based on several merits.  The applicant fears that if he returns back to his Country of origin (Nepal), he is destined to be killed or tortured. Fear of being killed or tortured is more frightening than actually getting physically harmed.”

Legal principles

9.  It is the duty of a litigant to give the court an address to which correspondence or notice can reach him 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])

10.  Further, under Order 2 rule 4 of the Rules of the High Court (Cap. 4A) (“RHC”), where a party has failed to comply with a rule or court order, any sanction for failure to comply imposed by the rule or court order has effect unless the party in default applies to the Court for and obtains relief from the sanction within 14 days of the failure.

11.  On an application for relief from any sanction imposed for a failure to comply with a court order, the court shall consider all the circumstances including the matters under Order 2 rule 5(1) of Rules of High Court (“RHC”), including, among other things, the interests of the administration of justice, whether the application for relief has been made promptly and whether there is a good explanation for the failure to comply. 

Discussion

12.  The applicant’s appeal was dismissed on 23 November 2018 for his failure to comply with the unless order dated 12 November 2018. This summons was filed on 29 August 2019, well out of the 14 days’ period stipulated under Order 2 rule 4 of RHC.  The delay of almost one year is substantial.  The applicant did not file any evidence in support of his summons as required under Order 2 rules 4 and 5 of RHC. 

13.  Despite these failures, we shall nonetheless consider his application on its merits. As will be seen, the application is plainly unmeritorious. 

14.  We deal first with the applicant’s claim that he had received no correspondence from the court since 8 October 2018 and the last correspondence that reached him was the directions from the Registrar dated 18 September 2018.  The applicant explained that he had changed his address since then but he did not explain why he failed to inform the court of his new address nor did he provide any good reason why he should not bear the consequence of the delay occasioned by the ineffectiveness of the address provided by him (see Hasmi Rizwan Imran).  The applicant is liable for his default.

15.  Furthermore, the appeal has no merits.  The applicant put forward two grounds of appeal, namely, (i) the Judge was wrong in finding that the decision makers (the Board and the Director) had adhered to the high standard of fairness, and (ii) the Judge failed to make sufficient enquiry into his case before dismissing his leave application.  In his written submissions, he further complained the lack of legal representation and reiterated his fear of being tortured and killed upon returning to his home country. 

16.  In our judgment, neither the notice of appeal nor the written submissions lodged for his application discloses any viable grounds of appeal. The applicant merely put forward some general and vague allegations without identifying any errors in the Judge’s decision and they would not constitute any viable grounds of appeal.  Further, the Court of Appeal has repeatedly stated that an applicant of a non-refoulement claim does not have an absolute right to free legal representation at all stages of proceedings, see Re Paswan Shibu Lal [2018] HKCA 249 at [21].  The applicant was represented by the Duty Lawyer Service up to the stage of the Director’s decisions.  At the appeal hearing before the Board, he was given sufficient opportunity to state and elaborate his case with the assistance of a Nepalese interpreter.  As such, the applicant had failed to demonstrate how his case would be undermined or prejudiced by the lack of legal representation only in the appeal stage.  His complaint simply cannot stand.

17.  It is incumbent on the applicant to show why the court should exercise its discretion in his favour and grant relief from sanction.  For the reasons given above, we are not satisfied the applicant has done so. 

18.  Having considered all the circumstances including the interests of the administration of justice, we decline to exercise our discretion to grant relief from sanction of the Unless Order.  We therefore dismiss the applicant’s summons filed on 29 August 2019.                     Further, as the application is totally without merit, we direct that no party may apply for it to be reconsidered at an oral hearing.