RE INDAYATI

CACV 436/2021

[2022] HKCA 923

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 436 OF 2021

(ON APPEAL FROM HCAL 2672 OF 2018)

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J U D G M E N T

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

1.  On 13 May 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal out of time against this Court’s order of 13 April 2022 that unless the applicant lodges two sets of appeal bundle in compliance with the directions of the Registrar of Civil Appeals made on 14 September 2021 by 4pm on 27 April 2022, the appeal shall be dismissed automatically without further order (“the Unless Order”). As the applicant had failed to comply with the Unless Order, her appeal was dismissed accordingly.

2.  At the outset, it should be noted that if the applicant wishes to seek relief from the sanction for failure to comply with the Unless Order under Order 2, the proper course for her is to make an application under Rule 4 of the Rules of the High Court, Cap 4A: see Re Darlami Bharat Kumar [2020] HKCA 933 at [16].  However, the applicant did not take out any application for relief from sanction but to appeal against the Unless Order itself.  Thus, her Notice of Motion is processed on the basis that she does not wish to seek relief from sanction.  We shall consider and determine the Notice of Motion on paper in accordance with the usual practice set out in Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal if 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.

4.  Further, pursuant to section 24(2)  of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for filing the present application expired on 11 May 2022.  The applicant was therefore late for two days in taking out her application for leave to appeal to the Court of Final Appeal.

5.  As the applicant did not apply for leave to appeal to the Court of Final Appeal within time, the Court has a discretion to extend time under section 24(5)  of the HKCFAO only if good and sufficient grounds are shown by the applicant: see Re Imran Muhammad [2021] HKCA 482 at [9] and the authorities cited therein.  In deciding whether there are such good grounds, the Court is entitled to take into account (a)  the length of the delay; (b)  the reasons for the delay; (c)  the chances of the appeal succeeding if an extension of time is granted; and (d)  the degree of prejudice to the respondent if the application is granted: Begum Jahanara v Ian Candy, Esq & Another [2021] HKCA 83 at [4] and the authorities cited therein.

6.  In her Notice of Motion, the applicant merely stated that she wanted to challenge the decision.  In her supporting affirmation filed on 13 May 2022, the applicant further stated that she was late because she received the Court’s letter late and only wanted to apply for extension of time.

7.  Pursuant to Practice Direction 2.1, the applicant lodged her written submissions on 27 May 2022.  In those submissions, she only repeated the factual background of her non-refoulement claim and asserted that she would be killed or harmed by her creditor or ex-husband if refouled back to Indonesia.

8.  Having reviewed the Notice of Motion together with her supporting affirmation and the written submissions, we do not find any reasonably arguable basis for contending that the Unless Order was wrongly made.

9.  The applicant was directed by the Registrar of Civil Appeals on 14 September 2021 to lodge with the Court two sets of appeal bundle on or before 28 September 2021.  She acknowledged receipt of those directions by written confirmation on 14 September 2021.  However, she failed to comply with the same.

10.  On 13 April 2022, the applicant was directed by this Court that unless she lodges two sets of appeal bundle in compliance with the directions of the Registrar of Civil Appeals made on 14 September 2021 by 4pm on 27 April 2022, her appeal shall be dismissed automatically without further order.  These directions were sent on the same day to the applicant by post to her last known address, which was the same address as stated currently stated in her Notice of Motion, without being returned undelivered.  Again, she failed to comply with the same and her appeal was dismissed by way of the Unless Order.  She also did not give any reason or evidence in support as to why she received the letter from Court late.

11.  In any event, it is apparent that none of the matters raised in her Notice of Motion, supporting affirmation or written submissions explained the non-compliance of the directions to lodge the appeal bundles.  It is well established that failure to lodge appeal bundles in accordance with the directions of the court, which hampers 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: Re Darlami Bharat Kumar [2020] HKCA 933 at [15].

12.  Accordingly, there is no reason for granting leave for the applicant to appeal to the Court of Final Appeal.  The applicant has not identified any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

13.  For these reasons, it will be futile to grant her extension of time to pursue a hopeless appeal. Accordingly, the Notice of Motion filed on 13 May 2022 is dismissed.