RE UDDIN MOHI

CACV 366/2020

[2021] HKCA 1020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 366 OF 2020

(ON APPEAL FROM HCAL 1735/2018)

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J U D G M E N T

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

1.  On 8 March 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal ostensibly against an order dated 4 February 2021 dismissing his appeal for failure to comply with the order of Barma JA dated 4 January 2021 whereby it was ordered that unless the applicant lodges 3 sets of appeal bundles no later than 4 pm on 3 February 2021, the appeal shall be dismissed. The applicant having failed to comply with this unless order, the appeal was dismissed on 4 February 2021.

2.  In his Notice of Motion, the applicant raised the following grounds for leave to appeal:

“1. I would like to inform the Honourable Court that there is some error in law in my decision. Decision maker just relied on COI information and my previous facts which were in favor while rejecting my claim. Actual life occur different situation then what is mentioned in COI information. The Officer and courts prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.

2.  I have no private lawyer to process this case.  Also for this (COVID 19) situation did not received any letter on time.  That’s why I did not submitted appeal bundle on dated 03 February 2021.”

3.  In his affirmation dated 8 March 2021, the applicant deposed that:

“I seek leave to appeal against the order of the Honourable Mr Justice BARMA dated 04 Feb. 2021 out of time. As was not aware of the rule that I must be appeal notice of motion within 14 days.”

4.  The Registrar of Civil Appeals directed on 9 March 2021 that the applicant should consider whether to make an application for relief from sanction in respect of the failure to comply with the 4 January 2021 order, pursuant to Order 2 rule 4 of the Rules of the High Court.  If no such application were made, supported by an affirmation and written submissions, the applicant should file written submissions in support of the Notice of Motion. 

5.  No application for relief from sanction has been made, and the applicant has only filed a written submission in respect of the Notice of Motion.  In such written submission dated 22 March 2021, the applicant referred to a number of authorities on high standard of fairness and Wednesbury unreasonableness without explaining their relevance.  He also referred to section 37ZT of the Immigration Ordinance, Cap 115 related to late filing of Notice of Appeal to the Board, again without explaining its relevance.

6.  As there has been no application for relief from sanction we shall deal with the Notice of Motion on paper in accordance with our usual practice.  The only ground relevant to the failure to comply with the unless order is the statement in the Notice of Motion that the applicant was unable to file the appeal bundles due to the COVID-19 situation and lack of legal representation.  The applicant did not provide any particulars for those grounds and we are not satisfied that those grounds have any merit.

7.  It is well established that failure to lodge appeal bundle in accordance with the directions of the court hampering the prosecution of the appeal constitutes failure to prosecute an appeal with due diligence and it is appropriate to make an unless order in such circumstances.

8.  In these circumstances, there is no basis on which leave to appeal to the Court of Final Appeal should be given, and accordingly we dismiss the applicant’s Notice of Motion.