Ibrahim and v. Simon Russell, Esq.

CACV 310/2019

[2021] HKCA 942

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 310 OF 2019

(ON APPEAL FROM HCAL 1748/2018)

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Before:  Hon Lam VP, Lisa Wong and ST Poon JJ in Court

Date of Hearing:  25 June 2021

Date of Judgment:  2 July 2021

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JUDGMENT

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

1.This appeal was dismissed for the reasons given in the judgment of 14 December 2020. The only potentially viable ground was the one based on Re Mohammad Palash [2018] HKCA 417 but the applicant had repeatedly failed to give the necessary particulars and evidence as directed by this Court in the judgment of 23 June 2020.

2.After the dismissal of the appeal, the applicant filed a Notice of Motion on 5 February 2021 seeking leave to appeal to the Court of Final Appeal.  The grounds set out in the Notice of Motion did not address his repeated failures in the compliance with the orders of this Court to produce the requisite information and documents to facilitate the proper consideration of his claim.

3.In his supporting affirmation of 5 February 2021, he asserted that he had “some concrete evidence in support of [his] claim” and he was “ready to provide” the same.  But he did not exhibit such evidence to his affirmation.

4.He also wrote to the Court Registry on 19 February 2021 again alluding to some new evidence (without giving particulars) which he received recently.  He attached to it a copy of a letter dated 28 January 2021 from “MD. Shahjahan Sikder” who was described as an advocate at “District Judge Court, Munshiganj”.  The address of that person was “Judge Court Building, Ground Floor, Near Judge Court Canteen”.

5.Apparently, this letter was put forward by the applicant as a letter from his lawyer in Bangladesh providing information on the progress of the criminal charges against him.

6.Whilst some information was given in that letter, it substantially fell short of the information and documents directed under [11] and [12] of the judgment of 23 June 2020 which are as follows:

“ 11. In the present context, given the communication between the applicant and his Bangladeshi lawyers, we cannot see any reason why he could not provide full information (supported by documentary evidence) in respect of all the criminal charges and the outcomes of the trials in his absence. He should also give information on any appeals therefrom and the results of the appeals.

12. Further, to make good a case on flagrant denial of justice, he should also provide some evidence on Bangladeshi law as discussed in the judgment in Re Mohammad Palash at [24].  He is now represented by a firm of solicitors in Hong Kong and he should be able to obtain the necessary evidence from his Bangladeshi lawyers.”  

7.We directed on 8 June 2021 that the Notice of Motion be listed for hearing on 25 June 2021 and if the applicant can provide the requisite information at the hearing, the Court may consider granting him relief.  If not, the Court will consider the Notice of Motion on the basis that he is unable to provide the requisite information to make good the ground based on Re Mohammad Palash [2018] HKCA 417.

8.The applicant’s case on the criminal convictions in Bangladesh as previously advanced by him was set out at [7] to [8] of our judgment of 23 June 2020:

“ 7. According to the information provided by the Director, the applicant was apparently subject to 5 charges in Bangladesh: 2 charges of attempted murder and 3 charges of looting. Though he fled from the country as a fugitive of justice, he was represented by lawyers in those criminal cases. He was in communication with his lawyers who had supplied to him information concerning the trials and outcomes. In this respect, the present case is different from Re Mohammad Palash.

8. Though he had provided documents concerning verdict and punishment imposed on him for 2 charges of looting[1] (imprisonment of 10 years and a fine), he has yet to produce documentary evidence regarding the outcomes and sentences in relation to the 3 other charges, including the more serious charges of attempted murders.  He alleged that he had been convicted for one of the attempted murder charge and had unsuccessfully appealed through his lawyers against those convictions.”  

9.In the letter of 28 January 2021, the only conviction referred to by the writer of the letter was the one for which he was given 10 years’ imprisonment.  He was apparently represented by that lawyer at that trial.  As for the other charges, the writer of the letter said that the applicant is under trial and his rival “must influence the court and they must make you guilty and I heard that they will pass the sentence of death order through the courts”.  Hence, according to that letter, the applicant has not yet been convicted of those other offences.  No documentation was produced to back up the claim.

10.Some other documents were produced by the applicant to us at the hearing.  However, they were not documents showing that trials of other charges are still pending or that he had been convicted of other charges.

11.In this respect, the letter of 28 January 2021 actually contradicted the applicant’s own assertions that he had been convicted of other charges and had appealed against the same unsuccessfully.

12.At the hearing of 25 June 2021, when this contradiction was put to the applicant, he finally admitted that there were no other conviction and he shifted his case to that there are other trials against him pending.  Thus, if he were refouled, he could take part in such trials and there is no question of risk of flagrant denial of justice.

13.Putting aside that it is incredible that those other charges were not yet dealt with after such a long time if the Bangladeshi courts were able to conduct the relevant trials in his absence (as in the conviction in 2015[2] with the sentence of 10 years’ imprisonment), the absence of other convictions mean that he could not rely on those other charges (assuming there are such charges pending trials) to support a claim based on Re Mohammad Palash, supra which has to be founded upon additional onerous burden to appeal against a conviction entered in his absence.

14.Since he had been legally represented at the trial for which he was convicted and sentenced to 10 years’ imprisonment, and the lack of evidence on flagrant denial of justice regarding that trial despite repeated and reasonable opportunity provided to him to furnish the relevant materials including the Bangladeshi law in that regard, we are now satisfied that there is no basis for the courts to grant him leave to apply for judicial review on the Mohammad Palash ground.

15.Having read his skeleton submissions along with the other documents, and in light of our above analysis, we do not consider the applicant raised any reasonably arguable point of great general or public importance to warrant the case be submitted to the Court of Final Appeal for determination.  We do not accept that the photos attached to his written submissions of 5 March 2021 as providing a valid ground of appeal for reasons already given at [14] to [16] of our judgment of 2 December 2019.

16.In the circumstances, the requirement under Section 22(1)(b) of the Hong Kong Court of Final Appeal Cap 484 is not satisfied.

17.We refuse to grant leave and dismiss the Notice of Motion of 5 February 2021 accordingly.  We also order the applicant to pay the costs of the putative interested party in the Notice of Motion and we shall fix such costs at $10,000 by way of costs order nisi.

18.The applicant can contact the clerk to Lam VP within 14 days after the expiry of the period for his application to the Appeal Committee for the return of the documents which he produced at the hearing.  If there were further application to the Appeal Committee, the documents will be kept in the court file until the final determination of such further proceedings.

The applicant appearing in person

Ms Jenny Cheung, Senior Government Counsel (Ag.), of the Department of Justice, for the putative interested party