Re Abdul Wahid

CACV 438/2020

[2021] HKCA 866

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 438 OF 2020

(ON APPEAL FROM HCAL NO 2092 OF 2018)

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

Date of Written Submissions: 23 April 2021

Date of Judgment: 16 June 2021

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J U D G M E N T

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

1.On 7 April 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 23 March 2021 that unless the applicant lodged three sets of appeal bundle in compliance with the directions of Registrar of Civil Appeals by 7 April 2021, the appeal shall be dismissed automatically without further order on 7 April 2021 (“Unless Order”).  As the applicant had failed to comply with the Unless Order, the appeal was dismissed accordingly.

2.On 9 April 2021, the Registrar of Civil Appeal directed, among others, that the applicant should consider whether to take out a summons under Order 2, rule 4 of the Rules of the High Court (Cap 4A) for relief from sanction and that if no such application was made, this Court will proceed on the basis that no such application will be made and consider the Notice of Motion accordingly.

3.In his Notice of Motion, the applicant’s grounds of appeal are not related to the making of the Unless Order in this appeal. Instead he alleged that the Court failed to apply the relevant public law principles in assessing his appeal.

4.In his affirmation in support of the Notice of Motion, the applicant deposed that he had good ground of appeal that was not considered by this Court but he did not elaborate on the said good ground. Further, in his written submissions of 23 April 2021[1], he submitted case authorities on the principles of high standard of fairness and Wednesbury unreasonableness.  He also quoted section 37ZT of the Immigration Ordinance (Cap 115) which related to the late filing of notice of appeal before the Torture Claims Appeal Board.

5.It is apparent that none of the matters raised explained the non-compliance of the directions to lodge the appeal bundles. Meanwhile, as mentioned above, the Registrar of Civil Appeals, after reading his Notice of Motion, referred him to the avenue of seeking relief from sanction. However, the applicant has not make any such application for relief.

6.In the circumstances, the Notice of Motion is processed on the basis that the applicant does not wish to seek relief from sanction.

7.Having reviewed the Notice of Motion together with his supporting affirmation and the written submissions, we do not find any reasonably arguable basis for contending that the Unless Order was wrongly made.  It is well established that failure to lodge appeal bundles in accordance with the directions of the court, which hampers 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 the circumstances, there is no reason for granting leave for the applicant to appeal to the Court of Final Appeal.

9.For the above reasons, we dismiss the Notice of Motion.

The applicant acting in person