RE LABRADOR NOLITO BLAZADO

CACV144/2018

[2018] HKCA 720

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 144 OF 2018

(ON APPEAL FROM HCAL 859/2017)

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J U D G M E N T

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

1.  This is the applicant’s application for relief from sanction for failing to observe the unless order dated 21 June 2018 whereby he was required to lodge three sets of appeal bundle for his appeal by no later than 19 July 2018 failing which his appeal would be dismissed. Having considered the material before us, we are of the view that this application can be disposed of on paper without a hearing.

Procedural History

2.  The applicant is a claimant for non-refoulement protection.  His claim was dismissed by the Director of Immigration on 23 April 2015 (in respect of torture risk, BOR 3 risk and prosecution risk) and 7 April 2017 (in respect of BOR 2 risk).  His appeals to the Torture Claims Appeal Board were dismissed on 21 February 2017 and 3 November 2017.  His application for leave for judicial review was dismissed by Deputy High Court Judge Bruno Chan on 4 May 2018.

3.  By a notice of appeal dated 9 May 2018, the applicant appealed against the judge’s decision.  On 9 May 2018, the Registrar of Civil Appeals directed that the applicant should lodge with the court on or before 25 May 2018 three sets of appeal bundle.  The applicant did not comply with this direction.  On 29 May 2018, the Registrar again directed that the applicant should lodge the bundles on or before 8 June 2018, failing which the matter would be referred to the Court of Appeal for consideration of the appropriate sanction, including the imposition of an unless order.  The applicant again failed to comply with this direction.

4.  On 21 June 2018, Barma JA made an order that unless the applicant lodged with the Court 3 sets of appeal bundle for his appeal by no later than on 19 July 2018, the appeal should stand dismissed (“the Unless Order”).  The applicant did not lodge any appeal bundle before 19 July 2018 and his appeal was dismissed on 19 July 2018 under the Unless Order.  A copy of the order dismissing his appeal was sent to the applicant on 26 July 2018 by post.

5.  By a summons dated 13 September 2013 (“Summons”), the applicant applied to “reopen” his case.  The Summons reads:

“Dear Sir Madam,

I would like to inform court I have no [sic] received letter from before court that’s why I am not follow my case I have only received letter 26 July 2018 could you please my reopen case give me a chance bundle of thanks”

6.  The applicant did not file any affidavit or skeleton in support of the Summons.

7.  On 27 September 2018, the applicant filed skeleton submissions.  However, these did not address the application being made but were directed towards his substantive appeal, which had been dismissed as explained above.

Legal principles

8.  It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention 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])

9.  Further, under Order 2 rule 4 of the Rules of the High Court (“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.

10.  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 RHC. 

11.  In The IO of Yue Sun Mansion v Lake Side Elderly Centre Limited (unreported, HCMP556/2017, 25 October 2017) at §12, the court held that:

“Order 2 Rule 5 directs the court to have regard to all the circumstances of the case including the matters set out at Rule 5(1) in an application for relief. Those matters, though helpful as a checklist of relevant factors, are not meant to be exhaustive. They serve to highlight the grant of relief is discretionary and one must have regard to the facts and circumstances of the case in the exercise of discretion bearing in mind the different interests and different factors involved. It is a multi-facet balancing exercise with no single factor being conclusive. Counsel referred us to several cases in which the courts had to consider the operation of Order 2 Rule 5. We derive some guidance from the judgments of Fok J (as he then was) in Top One International (China) Property Group Co Ltd v Top One Property Group Ltd [2011] 1 HKLRD 606, Kwan JA in Tso Yuk Yin v Yiu Ngai Interior Design & Decoration Co Ltd CACV 245 of 2009, 12 Sept 2011 and Chu JA in Schindler Lifts (Hong Kong) Ltd v Nikko Services Ltd CACV 250 of 2010, 3 August 2012. However, as we said, much depends on the facts and circumstances of the case in question.”

Discussion

12.  This application was not made within 14 days from 19 July 2018.  It is well out of time. The applicant did not file any evidence.  The applicant did not observe Order 2 rules 4 and 5 of RHC.  Further, despite the direction of the Registrar made on 17 September 2018 that the applicant must observe §36 of Practice Direction 4.1, the applicant had failed to comply fully with the same.  He did not file any application bundle.

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 prior to the letter of 26 July 2018, which enclosed the order dismissing the appeal for non-compliance with the Unless Order. 

15.  In the notice of appeal, the applicant gave his address as Yen Dack Building, North Point.  This address was the one used in all of the letters addressed to the applicant from court.  The applicant continued to use this address in the Summons.

16.  The applicant’s claim, that he only received the letter dated 26 July 2018 which enclosed the order dismissing his appeal, seems to us to be very unlikely to be true, and we cannot accept it.  At the very least, he must have received the letter posted to Yen Dack Building on 4 May 2018 enclosing the CALL-1 form which prompted the notice of appeal.  The applicant has not provided any explanation as to why he might have received receive some of the letters from court but not the others.  Moreover, the applicant’s explanation was not made on oath and we place no little weight on his bare assertion, given its inherent unlikelihood for the reasons just explained.

17.  Further, the applicant has not provided 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).

18.  Additionally, although the applicant asked for the reopening of his case, he has not laid out any plan to comply with the Unless Order.  He did not indicate when he will lodge the appeal bundle.  Given that the applicant had failed to observe the court’s directions for the appeal and this summons, we are not satisfied that the applicant will comply with the Unless Order if we grant relief from sanction.  It is wrong to leave an appeal outstanding when an appellant does not discharge his responsibility in prosecuting the same: Re Antonythasan Sajeeth Pirasanth, CACV 273/2012 unreported, 13 August 2014, [15].  This is a further reason for not acceding to this application.

19.  Finally, neither the Notice of Appeal nor the skeleton argument lodged for his application (which largely addresses the substantive appeal) discloses any viable grounds of appeal.  They do not identify any error in the judgment below and are directed to the merits on the applicant’s claim for non-refoulement protection.  In the absence of any error being identified in the judgment below, the appeal plainly has no prospects of success, and it would not be right for us to re-open what would be a hopeless appeal.

20.  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 of the firm view that the court should not exercise its discretion to do so. Accordingly, the summons is dismissed, with no order as to costs.

21.  Further, as the application is totally without merit, we direct that no party may apply for it to be reconsidered at an oral hearing.