RE ASARE ERNEST OWUSU

CACV 293/2019

[2019] HKCA 1301

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 293 OF 2019

(ON APPEAL FROM HCAL NO. 372 of 2018)

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JUDGMENT

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

1.  By a notice of motion filed on 18 September 2019, the applicant seeks leave to appeal to the Court of Final Appeal against the order dismissing his appeal consequent upon his failure to comply with the unless order made by Chu JA on 8 August 2019 (“Unless Order”). The applicant has put in a written submission to support his application.

2.  By a notice of appeal filed on 28 June 2019, the applicant sought to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 17 June 2019 refusing him leave to apply for judicial review. The intended judicial review is against the decisions of the Director of Immigration (“the Director”) dated 31 August 2016 and 27 July 2017 rejecting the applicant’s non-refoulement claim, and the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 1 March 2018 dismissing the appeal against the decisions of the Director. 

3.  On 2 July 2019, the Registrar of Civil Appeals directed the applicant to lodge with the Court three sets of appeal bundle on or before 18 July 2019.  The direction was communicated to the applicant by letter dated 2 July 2019. The applicant did not lodge any appeal bundle by the time stipulated in the directions.  On 19 July 2019, the Registrar of Civil Appeals ordered that unless the applicant lodged with the Court three sets of appeal bundle on or before 6 August 2019, the case would be referred to the Court of Appeal for consideration of the appropriate sanction, including the imposition of an unless order that carried the sanction of a dismissal of the appeal.  The order was communicated to the applicant by letter dated 19 July 2019.  The applicant did not comply with the order of the Registrar of Civil Appeals. 

4.  On 8 August 2019, having regard to the applicant’s default, Chu JA made the Unless Order, which was communicated to the applicant by letter of the same day.  The Unless Order stipulated that:

“Unless by 4:00 pm on 26 August 2019 the applicant lodges with the Court three (3) sets of appeal bundle, the appeal shall, without further notice, stand dismissed.”

5.  The applicant did not comply with the Unless Order. Consequently, the appeal was dismissed on 27 August 2019.  The order dismissing the appeal was mailed to the applicant on 30 August 2019. 

6.  In the notice of motion, the applicant stated that although he had received the court’s letter dated 19 July 2019 and the Unless Order, he did not understand English and the procedure.  The applicant further said that he did not know where to seek help, and it was only recently that he took his case to an NGO.  He asked that he be allowed to submit the appeal bundle so that he could exercise his right to appeal.

7.  The written submission set out the basis of the applicant’s non-refoulement claim, namely, he was afraid if he were to return to Ghana, he would be killed by his uncles due to a land dispute.  It also set out the following grounds of appeal:

(1)     The applicant should be considered under the BOR 2 risk[1] ground.  He had sustained knife injuries and would face danger to his life if he were to return to his home country.

(2)     Ghana has been known for its bad human rights record and the police constantly abuses the people while the government turns a blind eye.

(3)     The applicant is unfamiliar with the legal system in Hong Kong.  He had provided evidence to the Board but to no avail. It is appalling, and contrary to the objective of the Unified Screening Mechanism, to say that even if a country is dangerous it does not necessarily mean that a claim will be allowed.

(4)     The Board has not thoroughly understood the adverse situation that the applicant faces in Ghana.

8.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision

9.  For the reasons set out below, we are of the view that the matters put forward in the notice of motion and the written submission do not constitute proper grounds for granting leave to appeal to the Court of Final Appeal.

10.  First, what was stated by the applicant in the notice of motion and written submission relate only to the applicant’s personal circumstances, and do not involve any question of great general or public importance, as required by section 22(1)(b).  

11.  Second, if the applicant wishes to restore his appeal, he should have applied under Order 2 rule 4 of the Rules of the High Court, Cap. 4A for relief from the sanction imposed by the Unless Order.  Order 2 rule 5(1) provides that the court, when dealing with an application for relief from the sanction imposed by the failure to comply with a court order, 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. to seek relief from the sanction imposed by the Unless Order. 

12.  Having considered the circumstances of this case, we are of the view that, even if the applicant had applied for relief from the sanction imposed by the Unless Order, we would not exercise our discretion to grant relief from the sanction imposed by the Unless Order.  In the first place, the applicant had twice failed to comply with the Registrar of Civil Appeal’s directions to lodge appeal bundles before the Court made the Unless Order.  If he had difficulty understanding the Court’s letters, directions and orders, he could and should have made enquiries with the Court.  We do not find his explanation for the repeated non-compliance with the Court’s directions and the Unless Order satisfactory.  Importantly, the applicant’s intended appeal against the Judge’s refusal of leave to apply for judicial review has no prospect of success.  Principally, he had provided no ground for seeking relief in his Form 86 and affirmation,[2] and we agree with the reasons given by the Judge that his intended judicial review has no prospect of success and leave to apply for judicial review should be refused.[3]

13.  Third, the grounds of appeal set out in the written submission are unarguable.  The Board had for the reasons given in its decision rejected the applicant’s account as being implausible and internally inconsistent.  In the circumstances, the contentions that the applicant’s life would be in danger and the situation in his home country was adverse are misplaced.        

14.  We also see no basis for granting leave to appeal to the Court of Final Appeal under the “otherwise” limb of section 22(1)(b). 

15.  As the statutory requirements for granting leave have not been met, we dismiss the notice of motion.