Latif Mohammad Abdul v. Torture Claims Appeal Board

CACV 246/2018

[2019] HKCA 701

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 246 OF 2018

(ON APPEAL FROM HCAL 1003/2017)

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Before: Hon Lam VP and Barma JA in Court

Dates of Written Submissions: 7, 28 March and 21 May 2018

Date of Judgment: 28 June 2019

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.In HCAL 1003/2017, the applicant sought leave on 4 December 2017 to bring judicial review in respect of a decision of the Board of 8 February 2017. The application was refused by Deputy High Court Judge Bruno Chan on 15 June 2018 who refused to grant extension of time for the judicial review application to be brought. In this appeal, the applicant sought to reverse the order of 15 June 2018.

2.Previously, he had brought judicial review against the same decision in HCAL 33/2017.  Deputy High Court Judge Woodcock refused leave on 25 August 2017.  The applicant did not appeal against that decision.  He did not inform Deputy High Court Judge Bruno Chan of his unsuccessful attempt in HCAL 33/2017.

3.On appeal, the duplication of proceedings was brought to the attention of the Court by a Respondent’s Notice of 11 July 2018 filed by the putative interested party.

4.On 30 August 2018, the Court made an unless order in these terms:

“ 1. unless the Applicant shall lodge and serve submissions (3 sets) on the Department of Justice by 13 September 2018 explaining why the appeal is not an abuse of process, the appeal will be struck out on 14 September 2018 without further order.

2. upon the lodging of submissions in accordance with paragraph 1 above, the Department of Justice shall lodge submissions in response by 21 September 2018.”

5.The applicant was notified of the unless order by post sent to the address he stated on the Notice of Appeal.

6.The Applicant did not lodge submissions to dispute that by virtue of the duplication with HCAL 33/2017 the appeal is an abuse of process.

7.Pursuant to the unless order, the appeal was struck out on 14 September 2018. 

8.About 5 months later, the applicant took out a summons on 12 February 2019 seeking relief in respect of the unless order.  He supported the application by an affirmation of the same date.  He claimed that he was not aware of the unless order because he had no key to the letter box and his landlord had been away. 

9.In his affirmation, he did not explain why he did not appeal against the decision in HCAL 33/2017.  Nor did he dispute that HCAL 1003/2017 was a challenge in respect of the same Board decision. 

10.Having considered the applicant’s summons and affirmation and the submissions lodged by the parties, we refuse to grant relief for the following reasons:

(a)  We do not accept the applicant’s explanation for not having notice of the unless order.  It is incredible that he had not got access to the letter box from August 2018 to February 2019.  If he had neglected the unsatisfactory state of access to correspondence for such a long time, he only had himself to blame for the default;

(b)  The application for relief was not brought within 14 days of the failure to comply as required by Order 2 Rule 4.  We do not see any good reason for extending that time limit in view of the obvious lack of merit in the applicant’s case as explained below;

(c)  HCAL 1003/2017 is obviously an abuse of process due to its duplication with HCAL 33/2017, see the relevant principle discussed in Begum Khadija v Torture Claims Appeal Board [2018] HKCA 571;

(d)  The appeal against refusal of extension of time was brought without leave which is not permissible: see MI v Permanent Secretary for Security [2018] HKCA 419.  In view of the obvious abuse of process as discussed, such leave would not be granted.

11.We dismiss the summons of 12 February 2019. 

The applicant acting in person

Ms Patricia Lam, Government Counsel, of the Department of Justice, for the putative interested party