Nurhidayati v. Torture Claims Appeal Board

CACV 373 /2020, [2023] HKCA 1357

On appeal from [2020] HKCFI 1774

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 373 OF 2020

(ON APPEAL FROM HCAL NO 508 OF 2018)

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J U D G M E N T

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

1.On 9 June 2023, the applicant filed a notice of motion for leave to appeal to the Court of Final Appeal against the unless order made by Kwan VP on 2 March 2021^[1]. By that order, it was directed, among other things, that unless the applicant was to lodge two sets of appeal bundle pursuant to the court’s direction dated 29 October 2020 by 4 pm on 16 March 2021, the appeal in CACV 373/2020 should be dismissed immediately thereafter without further order (“the Unless Order”). The Unless Order was made against the background that the applicant had failed to lodge an appeal bundle despite repeated directions issued by the Registrar of Civil Appeals on 29 October 2020 and 2 December 2020. As a result of the applicant’s failure to comply with the Unless Order, her appeal was dismissed on 16 March 2021.

2.On 14 July 2023, the Deputy Registrar of Civil Appeals gave the following directions regarding the applicant’s notice of motion for leave to appeal to the Court of Final Appeal:

“The Court of Appeal has not determined the Applicant’s appeal on merit. It was dismissed because of her non-compliance with the unless order dated 2 March 2021. The Applicant should make an application to the Court of Appeal by summons supported by affirmation for relief from sanction. The Notice of Motion is misguided.”

3.The applicant then filed a summons for relief from the sanction imposed by the Unless Order and an affirmation in support on 26 July 2023. 

4.On 16, 20 and 21 August 2023, the applicant wrote to the court requesting to withdraw her appeal, indicating that her life is not in danger anymore and she wishes to go back to her home country as soon as possible.

5.On 20 October 2023, the Registrar of Civil Appeals directed the applicant to indicate clearly and unequivocally in writing on or before 3 November 2023 whether she wants her notice of motion and summons to be dismissed.

6.The applicant did not respond to the said directions within the prescribed time.  The Registrar of Civil Appeals further directed on 23 November 2023 that unless the applicant do comply with the said directions on or before 3 December 2023, this matter will be referred to the Court of Appeal for disposal and the dismissal of the notice of motion and the summons is a likely consequence.

7.The applicant failed to comply with the said directions of the Registrar.

8.Having considered the applicant’s summons, affirmations, notice of motion and written submissions, we are of the view it is appropriate to determine the applicant’s two applications on paper without an oral hearing. 

Analysis and disposition

9.The practice of this court is to dismiss such applications instead of merely granting leave to withdraw (Re Rini Artini [2020] HKCA 709 at §9.

(1) Summons for relief from sanction

10.Order 2 rule 4 of the Rules of the High Court (Cap 4A, “RHC”) provides that where a party has failed to comply with a rule or court order, any sanction for failure to comply imposed by the rule or court order has effect unless the party in default applies to the court for and obtains relief from the sanction within 14 days of the failure. 

11.Pursuant to Order 2 rule 5(1) of the RHC, when dealing with an application for relief from sanction, the court shall consider all the circumstances, including, among other things, the interests of the administration of justice, whether the application for relief has been made promptly and whether there is a good explanation for the failure to comply.

12.The applicant was late for more than two years and four months in filing the application for relief from sanction.  In her supporting affirmation, she explained that she did not receive any letter from the court because she changed her address.

13.The applicant filed a notice of change of address on 11 November 2020 and the Unless Order was sent to the address stated therein by post on 2 March 2021.  The mail has not been returned to the court.  The applicant’s address as stated in the present applications is the same as the one stated in her notice of change of address filed in 2020.  Under these circumstances, and taking into account the substantial delay in taking out the application for relief from sanction, we do not find the applicant’s explanation satisfactory for her failure to comply with the Unless Order and her delay in making this application.

14.Therefore, we refuse to grant relief from the sanction imposed by the Unless Order.

(2) Notice of motion

15.Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5) of the Ordinance (Re Rajaram Razeena [2019] HKCA 959 at §1.4).

16.Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

17.The applicant was late for more than two years in filing the notice of motion.  The delay is very substantial.  As discussed above, she does not have satisfactory explanation for the substantial delay.  There is no good ground for this court to grant extension of time for her to file the notice of motion.

18.In any event, the notice of motion has no merits at all.  The applicant failed to demonstrate that the court was wrong in making the Unless Order.  She failed to identify any question of great general or public importance pursuant to section 22(1)(b) of the Ordinance.  We also do not see any basis for granting leave on the ‘otherwise’ limb under section 22(1)(b).

19.For the above reasons, the notice of motion filed on 9 June 2023 is dismissed.

The Applicant (Appellant), acting in person