RE SHERPA NEEMA

CACV 333/2022, [2023] HKCA 811

On Appeal From [2022] HKCFI 2197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 333 OF 2022

(ON APPEAL FROM HCAL NO 110 OF 2019)

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J U D G M E N T

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

1.  This is the applicant’s application by the Notice of Motion filed on 9 December 2022 to the Court of Final Appeal to set aside the order made by this Court (Yuen JA) on 5 October 2022 (“the CA Order”).

2.  In the CA Order, it was directed that pursuant to the order made by this Court (Yuen JA) dated 21 September 2022, unless the applicant lodged two sets of appeal bundle by 4:00pm on 5 October 2022, the appeal shall stand dismissed without further notice (“the Unless Order”). The appeal was dismissed on 5 October 2021 as a result of the applicant’s failure to comply with the Unless Order.   

3.  At the outset, it should be noted that if the applicant wished to seek relief from sanction for failure to comply with the Unless Order, the proper course is for him to make an application for relief from sanction under Order 2, 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 filed a Notice of Motion to apply to Court of Final Appeal to set aside the CA Order. 

4.  In the circumstances, we will treat the present application as an application for leave to appeal against the CA Order and the Notice of Motion is processed on the basis that the applicant does not wish to seek relief from sanction.  That was the approach adopted in Nurkhasanah v Torture Claims Appeal Board and Anor [2021] HKCA 688 at [1] – [4] and Re Indayati [2022] HKCA 923 at [2].  We shall consider and determine the Notice of Motion on paper in accordance with the usual practice set out in Practice Direction 2.1.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (“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.

6.  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.    

7.  However, under sections 24(5) and 24(6) of the HKCFAO, the Court of Appeal has a discretion to extend the appeal period even though the application for extension is not made until after the expiration of that period.  In the exercise of our discretion whether or not to extend the appeal period, we should consider the length of the delay, the applicant’s reasons for the delay, the merits of the intended appeal, and whether any prejudice would be suffered by the other party. 

8.  In the present case, the applicant was late by 1 month in filing the Notice of Motion which is substantial.  He explained in his Notice of Motion that he did not receive the court letters enclosing the Unless Order and the CA Order in time.  The court file showed that the court letters were sent to the applicant by post to his last known address, which was the same address as currently stated in his Notice of Motion, without being returned as undeliverable mail.  Therefore, his bare assertion that he did not receive the court letters in time is not accepted as a good reason for the substantial delay. 

9.  Moreover, the applicant has not shown any merits in this intended application for leave to appeal to the Court of Final Appeal. In the Notice of Motion, he claimed that he lost all the documents for the preparation of the appeal bundle.  He further claimed that he was not aware that the consequence of failing to lodge the appeal bundle would cost him the right to proceed with his appeal.  His ignorance was due to his language barrier and lack of legal assistance. 

10.  In his written submissions lodged on 22 December 2022, he only repeated his complaint of the lack of legal and language assistance throughout the court process.

11.  Having reviewed the Notice of Motion together with his supporting affirmation and the written submissions, we do not find any reasonably arguable basis that the Unless Order and the CA Order were wrongly made for the reasons explained below.

12.  The applicant was directed by the Registrar of Civil Appeals on 19 August 2022 to lodge with the Court two sets of appeal bundle on or before 2 September 2022.  He acknowledged receipt of those directions by written confirmation on the same day.  However, he failed to comply with the same.

13.  On 21 September 2022, the applicant was directed by this Court (Yuen JA) that unless he lodges two sets of appeal bundle in compliance with the directions of the Registrar of Civil Appeals made on 19 August 2022 by 4pm on 5 October 2022, his appeal shall be dismissed automatically without further order.  In particular, the applicant has not pointed out any error of this Court (Yuen JA) in making the Unless Order.   Furthermore, the court letter in respect of the Unless Order was sent to the applicant by post to his last known address on 21 September 2022, which was the same address as currently stated in his Notice of Motion, without being returned as undeliverable mail.  He failed to comply with the same and his appeal was dismissed according to the Unless Order.  His bare assertion that he did not receive the Unless Order is not accepted as a good and valid reason for his non-compliance.

14.  Regarding his claim that he had lost all the documents for preparing the appeal bundle, this is also a bare assertion. He could have applied to the court for an extension of time before the deadline and try to obtain the documents from the relevant authorities.  However, the applicant failed to adduce any evidence showing he had taken any steps to resolve the situation he claimed he was in. 

15.  Regarding his arguments on the lack of legal and language assistance throughout the court process, they are no answer to his non-compliance with the Unless Order which only required the applicant to lodge appeal bundles within the prescribed time.  There is no merit in these arguments at all.

16.  In our judgment, none of the matters raised in his Notice of Motion, supporting affirmation or written submissions explained the non-compliance with 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 (Supra) at [15].

17.  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. 

18.  Nor do we see any basis for granting leave under the “or otherwise” limb under section 22(1)(b).

19.  For these reasons, it will be futile to grant the applicant an extension of time to pursue a hopeless appeal.  Accordingly, the Notice of Motion filed on 9 December 2022 is dismissed.