RE CAO THI HAU

CACV 443/2019

[2020] HKCA 461

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 443 OF 2019

(ON APPEAL FROM HCAL NO. 632 of 2018)

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JUDGMENT

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

The present application

1.  On 16 January 2020, the applicant filed a Notice of Motion seeking leave to appeal against the order of 3 January 2020 striking out this appeal upon her failure to comply with an Unless Order made on 13 December 2019 (“the Unless Order”). 

2.  On 21 January 2020, the Registrar of Civil Appeals directed that the Notice of Motion be treated as an application for relief from the sanction imposed by the Unless Order, and gave directions for the lodging of application bundle and written submission.[1]  The applicant sent in a letter dated 28 January 2020[2] in which she gave a summary of her claim, and indicated she had no one to help her to complete the documents for submission to court.  She also asked the court to reconsider her case and give her more time to stay in Hong Kong.   

3.  As a result of the closure of court registries and the general adjournment of proceedings due to public health considerations, on 18 March 2020 the Registrar of Civil Appeals extended the time for filing of supporting affirmation and lodging application bundle to 6 and 20 April 2020 respectively. The directions were communicated to the applicant by the Court’s letter dated 19 March 2020.  The letter also informed the applicant she could seek assistance on the preparation of documents from the Legal Advice Scheme for Unrepresented Litigants on Civil Procedures, and an information leaflet about the scheme was enclosed in the letter.

4.  The applicant did not file the supporting affirmation or lodge the application bundle by the time stipulated.  On 13 May 2020, the Registrar of Civil Appeals ordered that unless the applicant filed the affirmation and lodged the application bundle by 28 May 2020, the case will be referred to the Court of Appeal for consideration and determination without further notice.  The order was communicated to the applicant by the Court’s letter dated 13 May 2020.  The applicant did not comply with the order of the Registrar of Civil Appeals.  We will therefore proceed to consider and determine her application on the papers before us.

The Unless Order

5.  The procedural history leading to the making of the Unless Order can be briefly stated as below.

6.  The applicant filed a Notice of Appeal on 23 September 2019 to appeal the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 10 September 2019 refusing leave to apply for judicial review.  The applicant’s intended judicial review is against the decisions of the Director of Immigration (“the Director”) dated 2 September 2016 and 28 July 2017 rejecting her non-refoulement claim, and the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 29 October 2018 dismissing her appeal against the Director’s decisions. 

7.  To prepare for the hearing of the appeal, the Registrar of Civil Appeals directed on 27 September 2019 that the applicant should lodge with the Court two sets of hearing bundle on or before 16 October 2019, and warned that default in compliance with the direction would entail the imposition of an unless order, with the consequence of default being the dismissal of the appeal without further order.  The direction and warning were communicated to the applicant by letter dated 30 September 2019.  The applicant did not lodge any appeal bundle by the time stipulated in the direction. 

8.  On 18 October 2019, the Registrar of Civil Appeals ordered that unless the applicant lodged with the court two sets of appeal bundle by 5 November 2019, the case would be referred to the Court of Appeal for consideration of the appropriate sanction, including imposing an unless order with the consequence of default being the dismissal of the appeal.  The order was communicated to the applicant by the Court’s letter dated 21 October 2019. The applicant did not comply with the order of 18 October 2019.

9.  On 13 December 2019, having regard to the applicant’s default, Chu JA made the Unless Order, which was communicated to the applicant by letter of 16 December 2019.  The Unless Order stipulated that:

“Unless by 4:00 pm on 2 January 2020 the applicant lodges with the Court two (2) sets of appeal bundle, the appeal shall, without further notice, stand dismissed.”

10.  The applicant did not comply with the Unless Order. Consequently, the appeal was dismissed on 3 January 2020.  The order dismissing the appeal was mailed to the applicant by a letter dated 7 January 2020. 

Consideration of the application for relief from sanction.

11.  On 16 January 2020, the applicant issued the Notice of Motion, which was directed to be treated as an application for relief from the sanction imposed by the Unless Order.  The applicant advanced the following grounds in the Notice of Motion, which we will adopt as her grounds for the application:

“(1) Procedural fairness. The applicant is a torture claimant who has no resources. To ask her to file a bundle of documents she has lost, which are already in the court’s file is extremely prejudiced and unfair. The principle of procedural fairness was not applied in this case.

(2) The principle of irrationality was not applied on the Director’s decision, who are in a habit of copying and pasting the decisions.”     

12.  Order 2 rule 4 of the Rules of the High Court, Cap. 4A provides that: “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.”   

13.  Under Order 2 rule 5(1), when dealing with an application for relief from the sanction imposed by the failure to comply with a court order, the court shall consider all the circumstances, including, among others, the interests of the administration of justice, whether the application for relief has been made promptly and whether there is a good explanation for the failure to comply.

14.  For the reasons given below, we are of the view that, in the circumstances of this case, we should not exercise our discretion to grant relief from the sanction imposed by the Unless Order. 

15.  First, apart from non-compliance with the Unless Order, the applicant had twice failed to comply with the directions given by the Registrar of Civil Appeals.  There was no explanation for the repeated default. 

16.  Second, while the applicant asserted in the notice of motion that she had lost the documents, and also stated in the letter of 28 January 2020 that she was unable to get help with the preparation of documents for the court, she had not informed the court she had difficulties complying with the directions or orders.  Nor had she approached the court to make enquiry or seek assistance. 

17.  Third, and importantly, the intended appeal has no prospect of success.  The applicant is a Vietnamese national who came to Hong Kong illegally.  After she was arrested by the police on 13 August 2015, she made a non-refoulement claim based on her fear of being harmed or killed by her creditor for failure to repay her loan. 

18.  By two decisions dated 2 September 2016 and 28 July 2017, the Director determined against the applicant.  The first decision covered the torture risk[3], BOR 3 risk[4] and persecution risk[5] grounds.  The second decision covered the BOR 2 risk[6] ground.  The applicant’s appeal to the Board was heard on 30 August 2017.  By its decision dated 29 October 2018, the Board dismissed the appeal on all the applicable grounds.  Principally the Board did not believe the applicant’s account and concluded there was no real risk of the applicant being harmed upon her return to Vietnam. 

19.  The applicant filed a Form 86 on 6 August 2019 to apply for leave to judicially review the decision of the Board raising.  No grounds for seeking relief were stated in the Form 86 or the supporting affirmation.  She merely stated that her life would be in danger if refouled and requested to remain in Hong Kong.  The Judge heard the applicant at an oral hearing.  By the Form CALL-1 dated 10 September 2019, the Judge refused the application.  In brief, the Judge considered that given the applicant’ s failure to identify any legal error or procedural irregularity, there is no reasonably arguable ground to support her intended judicial review application.  Further, after examining the Director’s and the Board’s decisions, the Judge concluded that there was no basis for interfering with them.  

20.  The applicant filed the notice of appeal dated 23 September 2019 to appeal the Judge’s decision.  The applicant stated, by way of ground of appeal, that the Director and the Board had not weighed or realised the gravity of her circumstances, and asked for an opportunity to properly plead her claim.  In the accompanying affirmation, it was said that there was a good ground of appeal not being considered in her application for leave to apply for judicial review, but no particulars were given.    

21.  These are not viable grounds of appeal.  The focus of an appeal is the correctness of the decision and reasoning of the judge below.  The applicant has not identified any specific error in the Judge’s decision or reasoning.  Further, given that the applicant had not provided any ground for seeking relief, the Judge’s refusal of her application cannot be faulted.    

22.  As the applicant’s intended appeal has no prospect of success, it would be futile to grant relief and allow the applicant to proceed with the appeal.  It is also not in the interest of administration of justice to grant the relief sought.     

23.  Accordingly, we refuse the application for relief from the sanction imposed by the Unless Order, and dismiss the applicant’s notice of motion.