RE PATTINI KUTTIGE SAMPATH THUSHARA NONIS

CACV 49/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 49 OF 2013

(ON APPEAL FROM HCAL NO. 17 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 Anthony Chan J [“the Judge”] to grant him leave to apply for judicial review to challenge the decision of the Torture Claims Appeal Board. The Judge gave his decision on 1 March 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 14 March 2013.

3.  On 14 March 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 28 March 2013, the Applicant wrote to the court to seek more time for the preparation of appeal bundle.  He did not give any reason why more time is necessary. 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 5 April 2013, the Registrar granted an extension of time up to 11 April 2013 for the bundle to be submitted. The Applicant was notified by letter dated 5 April 2013.

6.  On 16 April 2013, noting that the Applicant had failed to comply with that direction, the Registrar again wrote to the Applicant reminding him to comply with it promptly.

7.  Again the Applicant did not respond. On 26 April 2013, the Registrar directed that the Applicant to submit the bundle within 14 days failing which the papers shall be placed before the Court of Appeal for direction whether the appeal should be dismissed.

8.  The Applicant did not respond to that direction nor did he submit any bundle.  The file was therefore passed to a justice of appeal for direction.

9.  On 22 May 2013, Lam JA 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 give any explanation for his repeated defaults.

11.  On 31 July 2013, the court informed the Applicant that the matter will be listed for hearing and asked the Applicant to attend the office of the Deputy Clerk of Court on 7 August for fixing a hearing date.  

12.  The Applicant did not attend the office of the clerk on 7 August. A hearing date of 4 September 2013 was fixed.  The Applicant was informed of the hearing date by a Notice of Hearing on 13 August 2013.

13.  On 4 September 2013, the Applicant did not appear at the hearing.

14.  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. Actually he did not even respond to correspondence from the court for the purpose of the appeal.  He did not attend the hearing on 4 September despite he had been informed that his appeal could be dismissed for want of prosecution.

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

16.  It is wrong to leave an appeal outstanding when the Applicant did not discharge his responsibility in prosecuting the same.  We order the appeal be dismissed for want of prosecution.