RE VAIRAVAPILLAI SELVARAJ

CACV 31/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 31 OF 2013

(ON APPEAL FROM HCAL NO. 19 of 2013)

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JUDGMENT

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

1.  In this appeal, the Applicant seeks to appeal against the refusal of Fung J [“the Judge”] to grant him leave to apply for judicial review to challenge the decision of an adjudicator of 16 February 2012 over his CAT claim. The Judge gave his decision on 5 February 2013. Reasons for such refusal were set out in Form CALL-1 of the same date.

2.  The Notice of Appeal was lodged by the Applicant on 19 February 2013.

3.  On 19 February 2013, the Registrar of Civil Appeals gave directions for the preparation of appeal bundle.  According to those directions, the Applicant should submit the bundle to the Registrar for approval.

4.  On 4 March 2013, the Applicant wrote to the court to seek more time for the preparation of appeal bundle.  Since it is an appeal against the ex parte refusal of leave, it should not be difficult for the bundle to be prepared even though the Applicant acted by himself.

5.  On 8 March 2013, the Registrar granted an extension of time of 4 weeks for the bundle to be submitted.  The Applicant was notified by letter dated 8 March 2013.

6.  On 5 April 2013, the Applicant sought more time to prepare his appeal bundle.  He said he was being detained and he needed more time to get some documents.

7.  On 9 April 2013, the Registrar granted a further extension up to 5 July 2013.

8.  The Applicant did not lodge the appeal bundle as directed.

9.  On 28 October 2013, Lam VP directed as follows:

“The Appellant shall explain in writing within 14 days as to his non-compliance with the directions of the Master and why the appeal should not be dismissed for want of prosecution.”

10.  The Applicant did not respond to such direction nor did he take any further step in the prosecution of the appeal.

11.  On 31 July 2014, the court informed the Applicant that the matter will be listed for hearing on 13 August to consider the dismissal of the appeal for want of prosecution.  Notice of hearing was sent to the Applicant on the same date.

12.  At the hearing on 13 August 2014, the Applicant did not appear.

13.  Despite ample opportunities being given to him, the Applicant did not see fit to comply with the directions of the court in the preparation for the hearing of the appeal.  Nor did he offer any explanation for such defaults.  Since July 2013, he did not even respond to correspondence from the court for the purpose of the appeal.  He did not attend the hearing on 13 August despite he had been informed that his appeal could be dismissed for want of prosecution.

14.  In the circumstances, it is apparent that the Applicant is no longer interested in proceeding with the appeal.

15.  It is wrong to leave an appeal outstanding when the Applicant did not discharge his responsibility in prosecuting the same.  We shall give the Applicant another chance to proceed with the appeal.  We order that unless the Applicant lodges an appeal bundle for approval by 3 September 2014, the appeal shall be dismissed for want of prosecution. In other words, if the Applicant does not lodge his bundle by 3 September 2014, his appeal shall be dismissed automatically without any further hearing.