Re Imran Muhammad

CACV 96/2018

[2021] HKCA 482

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 96 OF 2018

(ON APPEAL FROM HCAL 420/2017)

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Before:  Hon Lam VP, Barma and Au JJA in Court

Date of Written Submissions:  15 January 2021

Date of Judgment:  19 April 2021

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JUDGMENT

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

1.On 5 January 2021, the Applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s order of 30 May 2018. By that order, it was directed that unless the Applicant lodged appeal bundles by 13 June 2018, the appeal would be dismissed for want of prosecution on 14 June 2018. The order was made against the background that the Applicant had failed to lodge appeal bundles despite repeated directions and reminder issued by the Registrar of Civil Appeals. The Applicant failed to comply with the unless order and the appeal was dismissed accordingly.

2.In both his Notice of Motion and supporting affirmation filed on the same date, the Applicant’s grounds for leave to appeal against the unless order of 30 May 2018 are that he was late in applying due to lack of knowledge and insufficient resources.

3.In respect of the Notice of Motion, the Registrar of Civil Appeals gave the following directions on 7 January 2021:

(a)  as the appeal was dismissed by reason of the Applicant’s failure to comply with the unless order of 30 May 2018, the Applicant is invited to consider applying for relief from sanction pursuant to Order 2 rule 4 of the Rules of the High Court.  Such application should be made by summons on or before 19 January 2021 together with a supporting affirmation, and the Court will consider such summons together with the Notice of Motion;

(b)  if no application for relief from sanction is made or no supporting affirmation is filed on or before 19 January 2021, the Court will proceed on the basis that no such application will be made and will proceed with the Notice of Motion accordingly; and

(c)  the Applicant shall lodge with the court 2 sets of written submissions in support of the Notice of Motion on or before 19 January 2021.

4.The Applicant lodged his written submissions on 15 January 2021 in which he reiterated his predicament.  The Applicant did not issue any summons seeking relief from the sanction imposed by the unless order.  Nor did he file any affirmation to advance such application. 

5.Thus, the Notice of Motion is processed on the basis that the Applicant does not wish to seek relief from sanction.  We shall determine the Notice of Motion on the papers in accordance with the usual practice set out in Practice Direction 2.1.

6.Under Section 24(2) of the Hong Kong Court of Final Appeal Ordinance an appellant has 28 days from the date of the judgment to seek leave to appeal to the CFA.  In the present case, the time for the Applicant to seek leave to appeal against the unless order expired a long time ago in June 2018.

7.The Applicant was seriously out of time when he filed the Notice of Motion on 5 January 2021.

8.Having considered his affirmation, we do not accept he had a reasonable excuse for the long delay.  He did not provide any details regarding when he came to know of the unless order (which was sent by post to his address for service) and what steps he had taken to learn about the contents and effects of the order.  He did not explain what had happened since he learnt of the dismissal of his appeal.  A general assertion of lack of knowledge and insufficient resources cannot be a proper explanation for such long and serious lack of action on the part of the Applicant.

9.As the Applicant did not apply for leave to appeal to the CFA within time, good and sufficient ground must be shown by the Applicant before the court will exercise its discretion to grant an extension of time, see: section 24(5) of the Ordinance; Full Wisdom Holdings Ltd v Traffic Stream Infrastructure Co Ltd CACV 266/2003, 27 July 2004; Bowlstar (HK) Ltd v Ho Kwai Po CACV 156/2006, 10 July 2007; Elijah Saatori v Raffles Medical Group CACV 109/2008, 11 March 2009; and Tsit Wing (Hong Kong) Company Limited & Others v TWG Tea Company Pte Ltd & Another (unreported) CACV 191/2013, 29 January 2015.

10.In his written submissions in support of the Notice of Motion, the Applicant submitted that his life would still be in danger if he were to return to his country, that matters related to his case were ignored by the Torture Claims Appeal Board, and that conditions in his country are different from those perceived by the Board.

11.The Applicant further submitted that his enemies are still looking for him and he cannot protect himself.  Neither can the police.  He said death and torture in custody are common in his country along with corruption and impunity.

12.Having reviewed the Notice of Motion together with its supporting affirmation and the written submissions, we do not find any reasonably arguable basis for contending that the unless order of 30 May 2018 was wrongly made.  Since the failure to lodge appeal bundles in accordance with the repeated directions of the court hampered the processing of the appeal, it constituted a failure to prosecute an appeal with due diligence.  In such circumstances, it was open to the Court to make the unless order.

13.In our judgment, there is no reason for granting extension of time to the Applicant to apply for leave for the Applicant to appeal to the Court of Final Appeal.

14.For the above reasons, we dismiss the Applicant’s Notice of Motion.

The applicant acting in person