Re Sharma Krishna Prasad

CACV 121/2020

[2021] HKCA 1019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 121 OF 2020

(ON APPEAL FROM HCAL 1098/2018)

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Before:  Hon Chu JA, Barma JA and Au JA in Court

Date of Judgment: 22 July 2021

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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 2 November 2020, 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 27 October 2020, which is no doubt a reference to the court’s order made on 15 October 2020 (sealed and filed on 27 October 2020) dismissing his appeal for failure to comply with an earlier unless order dated 15 September 2020, by which it was ordered that unless the applicant lodges 2 sets of appeal bundles by 4 pm on 13 October 2020, the appeal shall be dismissed. The applicant had failed to comply with this unless order, and his appeal was therefore dismissed accordingly.

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

“(1) The learned judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the High Court judge refusing my appeal and my application for judicial review.

(2) Procedural unfairness

(3) The judge did not apply the law properly.

(4) I hope for the positive response and right decision by conduction an screening interview.

I will be thankful to you from the depth of my heart for showing your Lordship.”

3.The Registrar of Civil Appeals directed on 3 November 2020 that the Notice of Motion would be treated as an application for relief from sanction, and gave further directions for the filing of an affirmation in support of such application and the lodging of hearing bundles.

4.Pursuant to the direction made on 3 November 2020, the applicant filed his affirmation dated 23 November 2020 attaching a document entitled “Supplement affirmation in support”. In it, the applicant deposed that:

(1)  he fled Nepal to escape from torture and harassment;

(2)  the judge unfairly determined his claim without a screening interview;

(3)  according to the applicant, the government in Nepal is corrupt.  A lot of people in Nepal are tortured, killed or raped almost every day;

(4)  the applicant will almost certainly be killed upon his return; and

(5)  the judges were wrong for not applying the principle of irrationality to the decision below refusing leave for judicial review.

5.As will be apparent from the foregoing, none of the grounds raised in the Notice of Motion or the affirmation identified any error in the unless order made by this court and therefore provide no basis for granting relief from sanction. 

6.Having reviewed the grounds set out in the applicant’s Notice of Motion and affirmation, 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 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.

7.As the applicant has failed to put before this court a proper application for relief, there is no reason for granting leave for the applicant to appeal to the Court of Final Appeal.

8.For the above reasons, we dismiss the applicant’s Notice of Motion.

The applicant acting in person