RE QAYYUM MUHAMMAD

CACV 414/2023, [2025] HKCA 52

On Appeal From [2023] HKCFI 3024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 414 OF 2023

(ON AN APPEAL FROM HCAL NO. 1181 OF 2019)

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J U D G M E N T

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

1)  The appeal

1.  By a Notice of Appeal dated 14 December 2023, the applicant sought to appeal against the decision[1] of Deputy High Court Judge KW Lung given on 7 December 2023 dismissing his application for leave to apply for judicial review.

2.  At the time of the filing of the Notice of Appeal, the applicant was handed a set of written directions made by the Registrar of Civil Appeals.  Paragraph 2 of the directions required the applicant to lodge with the Court two copies of appeal bundle by 28 December 2023.  The directions were further endorsed with a notice informing the applicant that the Court may impose an unless order against the applicant on the non-compliance of the directions. 

3.  Notwithstanding the directions, the applicant did not lodge the appeal bundle by the stipulated time.

2)  The unless order and the dismissal of the appeal

4.  On 6 February 2024, having regard to the applicant’s default, Cheung JA made an unless order (‘Unless Order’)  that:

‘ Unless the Applicant lodges with the Court two (2)  sets of appeal bundle on or before 4pm of 19 February 2024, the appeal shall forthwith and without further order stand dismissed.’

5.  The Court informed the applicant of the Unless Order by a letter dated 6 February 2024.  A copy of the sealed order was sent to the applicant by post on 30 April 2024.

6.  The applicant did not lodge any appeal bundles by 19 February 2024 at 4 pm, and hence the appeal was dismissed on the ground of non-compliance with the Unless Order. 

3)  The application for relief from sanction

7.  On 16 May 2024, the applicant filed a summons together with an affirmation to apply for ‘time extension against the order’ i.e. the Unless Order.  On 20 May 2024, the Registrar of Civil Appeals directed that the application is to be treated as an application for relief from sanction (out of time)  under Order 2, rule 4 of the Rules of the High Court, instead of a time extension application.

8.  By letter dated 29 May 2024, the Director of Immigration (the Putative Interested Party)  informed the Court that he takes a neutral stance with the relief from sanction application.  By letter dated 29 May 2024, the Torture Claims Appeal Board (the Putative Respondent)  indicated that it adopts a neutral stance on the application. 

9.  Having considered the papers related to the application, we consider it is appropriate to determine the applicant’s summons on the materials available without holding an oral hearing. 

4)  Our reasons for decision

10.  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.’  Since the applicant’s summons was filed more than 14 days after the time set by the Unless Order had lapsed, the dismissal of the appeal has taken effect. 

11.  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.

12.  In the summons, the applicant stated that he does not understand English and it was just lack of understanding.  In the affirmation in support of the application, the applicant provided no details for his application. 

13.  The Court record shows that :

1)  The letter dated 6 February 2024 from the Court communicating the Unless Order was sent to the address provided by the applicant in the Notice of Appeal by ordinary post.  The letter had not been returned by the Post Office.  

2)  The address given by the applicant in the present summons is different from the one stated in the Notice of Appeal to which the Court letters and order were sent. 

14.  Having considered the matters stated above, we do not accept the applicant’s explanation that he has not received the Unless Order, or that he does not understand English (and also that he has no help with understanding English documents sent to him).  The applicant’s documents are written in English, indicating either that the applicant is familiar with English or that he had the means and access to such language assistance as he needed: Re Gurnishan Singh [2018] HKCA 704 at [13].  The applicant was late by around three months when he filed a summons for extension on 16 May 2024 when the original unless order imposed a deadline by 19 February 2024 for compliance.

15.  We will not exercise our discretion to grant relief from the sanction imposed by the Unless Order.  Order 2, rule 5(2)  of the Rules of the High Court provides that an application for relief must be supported by evidence, and the applicant provided no detail nor evidence in support.  In the circumstances, fairness requires that the applicant not be given an opportunity to pursue and argue his appeal.

16.  We must point out that an appellant has a duty to comply with court directions on the preparation of the appeal, including lodging appeal bundles and written submissions.  A litigant also bears the responsibility of informing the Court of any change in his address for service.  In this case, it was the applicant’s failure to comply with the written directions given to him when he filed the Notice of Appeal that led to the making of the Unless Order.  There is no evidence nor explanation suggesting that the applicant’s recent change of address for service has led to the applicant not knowing of the Unless Order deadline that was imposed. 

5)  Disposition

17.  Accordingly, we order that the applicant’s application for relief from sanction out of time dated 16 May 2024 be dismissed.