Re Hussain Adil

CACV 238/2020

[2021] HKCA 1781

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 238 OF 2020

(ON APPEAL FROM HCAL 1542/2018)

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Before:  Hon Chu JA and Barma JA in Court

Date of Judgment:  6 December 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 7 May 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 dated 7 April 2021, dismissing his appeal for failure to comply with an unless order requiring him to apply to fix a date for hearing of his appeal. At the direction of the Registrar of Civil Appeals, on 25 May 2021, the applicant filed a summons for relief from sanction, purportedly from “the unless order made by the Hon Kwan VP on 2 November 2020 (namely to fix a date for the Hearing)”.

2.As noted above, his appeal was in fact dismissed on 7 April 2021 for his failure to comply with the unless order of Barma JA dated 3 March 2021 whereby it was ordered that unless the applicant filed an Application to Fix a Date for the hearing for this appeal by no later than 4 pm on 1 April 2021, the appeal should stand dismissed.

3.In his Notice of Motion, the applicant stated that he only recently became aware of the order dated 7 April 2021.  He was informed by the Department of Immigration of that order on 4 May 2021 and searched the file at the registry on 5 May 2021.  He sought an extension of time to comply with the order and undertook to comply with the court’s directions moving forward and asked for the case to be heard on its merits.

4.In the summons dated 25 May 2021, the applicant requested that his appeal be reinstated and that there be an oral hearing for the appeal.  In the affirmation filed on the same day, the applicant reiterated the matters raised in the Notice of Motion.  He also deposed that he did not understand the documents and relied on a friend for the preparation of the appeal.  He tried to get help immediately after finding out about the non-compliance with the court’s order.  He also asked for a translated copy of the judgment and reasonable time to respond.

5.In the written submission dated 7 July 2021, he submitted that:

(1)  the “judgment of the judges” do not make logical sense at all;

(2)  the judges have not considered his grounds of appeal thoroughly; and

(3)  there was a lack of language and legal assistance.

6.The submissions were directed towards his substantive appeal, which did not take place due to his non-compliance with the unless order.  They therefore do not take matters further.

7.The applicant did not seek to challenge the imposition of the unless order.  His only ground of application was that his failure to comply with the unless order was due to the non-receipt of the court’s order.

8.The bare assertion by the applicant that he did not receive the order from court was made without any particulars.  There was nothing to support the credibility of this bare assertion.

9.Further, the applicant had in fact been directed by the Registrar of Civil Appeals to fix a date for the hearing of the appeal on 14 January 2021 and 4 February 2021, before the unless order was made on 3 March 2021.  There was no explanation from the applicant regarding the receipt (or otherwise)  of these directions, and as to why he had not complied with them. 

10.We therefore do not accept that the applicant has provided any reasonable explanation for failing to comply with the unless order requiring him to fix a date for the appeal hearing.  This is sufficient reason to dismiss the application for relief from sanction.  We would accordingly dismiss and the summons dated 25 May 2021.

11.As for the Notice of Motion dated 7 May 2021.  This was misconceived, as the appropriate application to make was to seek relief from sanction, which the applicant did by his summons of 25 May 2021.  Accordingly, we also dismiss the Notice of Motion dated 7 May 2021.

The applicant acting in person