Re Le Thi Hoi

CACV 112/2024 [2024] HKCA 1003

On appeal from [2024] HKCFI 767

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 112 OF 2024

(ON AN APPEAL FROM HCAL NO. 2272 OF 2023)

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JUDGMENT

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Hon Chu VP giving the Judgment of the Court:

The appeal

1.By a Notice of Appeal dated 21 March 2024, the applicant sought to appeal against the decision[1] of Deputy High Court Judge Bruno Chan (“the Judge”) given on 14 March 2024 dismissing her application for leave to apply for judicial review. 

2.At the time of the filing of the Notice of Appeal, the applicant was handed a set of written directions made by the Registrar of Civil Appeals.  Paragraph 2 of the directions required the applicant to lodge with the Court two copies of appeal bundle by 5 April 2024.  The directions were further endorsed with a notice informing the applicant that the Court will not give any reminder on the compliance of the directions.     

3.Notwithstanding the directions, the applicant did not lodge the appeal bundle by the stipulated time.

The unless order and the dismissal of the appeal

4.On 23 April 2024, having regard to the applicant’s default, Chu VP made an unless order (“Unless Order”) that:

“Unless by 4:30 pm on 16 May 2024 the applicant lodges with the Court two (2) sets of appeal bundle, the appeal shall, without further order, stand dismissed.”

5.The Unless Order was communicated to the applicant by a letter from the Court dated 23 April 2024. 

6.The applicant did not lodge any appeal bundles by 16 May 2024.  The appeal was dismissed on 17 May 2024 on the ground of non-compliance with the Unless Order. 

7.The order dismissing the appeal was sent to the applicant by letter dated 30 May 2024. 

The application for relief from sanction

8.On 16 September 2024, the applicant filed a summons together with an affirmation to apply for relief from the sanction imposed by the Unless Order[2].  No direction for the filing of submissions has been given by the Registrar of Civil Appeals.  

9.By letter dated 25 September 2024, the Director of Immigration (the Putative Interested Party) informed the Court that he does not oppose the application.  By letter dated 2 October 2024, the Torture Claims Appeal Board (the Putative Respondent) indicated that it adopts a neutral stance on the application.   

10.Having considered the papers related to the application, we consider it is appropriate to determine the applicant’s summons on the materials available without holding an oral hearing. 

Our reasons for decision

11.Order 2 rule 4 of the Rules of the High Court, Cap. 4A 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.”  Since the applicant’s summons was filed more than 14 days after the time set by the Unless Order had lapsed, the dismissal of the appeal has taken effect. 

12.Under Order 2 rule 5(1), when dealing with an application for relief from the sanction imposed by the failure to comply with a court order, the Court shall consider all the circumstances, including, among others, 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.

13.In the affirmation in support of the application, the applicant explained that she has not received any correspondence from the Court and she only came to learn of the court orders from a search of the court file. She also stated that as an uneducated person, she requires assistance to lodge the appeal bundles as she has not done this before, and that some of the documents are missing and she has to request for copies from the relevant departments.  

14.The Court record shows that:

(1)  The letter from the Court communicating the Unless Order was sent to the address provided by the applicant in the Notice of Appeal by ordinary post as well as by registered post.  On 2 May 2024, the letter sent by registered mail was returned to the Court by the Post Office for the reason that it was not claimed by the recipient.  The letter sent by ordinary post had not been returned by the Post Office. 

(2)  The Court’s letter enclosing the order dismissing the appeal was sent to the applicant’s address as stated in the Notice of Appeal by registered post only. It was returned undelivered by the Post Office on 7 June 2024.    

(3)  The applicant conducted a search of the court file on 5 September 2024.

(4)  The address given by the applicant in the present summons and supporting affirmation is different from the one stated in the Notice of Appeal to which the Court letters and order were sent. 

15.Having considered the matters stated above, we accept the applicant’s explanation that she has not received the Unless Order and the order dismissing the appeal. 

16.We are further of the view that we should exercise our discretion to grant relief from the sanction imposed by the Unless Order.  In the first place, given that the applicant did not have knowledge of the Unless Order, her non-compliance with the order is excusable.  Secondly, as the order dismissing her appeal did not reach her, the time taken for making the present application is excusable.  Thirdly, when the letter communicating the Unless Order was returned to the Court, the time for complying with the order had not yet expired.  Regrettably, the return of the letter was overlooked.  Had the letter been promptly brought to the attention of the Court of Appeal, the order dismissing the appeal would not have been made. In the circumstances, fairness requires that the applicant be given an opportunity to pursue and argue her appeal.

17.Although we will grant relief from the sanction imposed by the Unless Order, we must point out that an appellant has a duty to comply with court directions on the preparation of the appeal, including lodging appeal bundles and written submissions.  A litigant also bears the responsibility of informing the Court of any change in his address for service.  In this case, it was the applicant’s failure to comply with the written directions given to her when she filed the Notice of Appeal that led to the making of the Unless Order.  Further, had the applicant promptly notified the Court of the change in her address, the Unless Order would have reached her in good time.  

Disposition

18.Accordingly, we make the following orders:

(1)  The order dated 17 May 2024 be set aside.

(2)  The appeal be listed for hearing before the Court of Appeal on 7 January 2025 at 10:00 am.  

(3)   The applicant shall on or before 6 December 2024 lodged with the Court (a) two sets of appeal bundle in accordance with paragraph 2 of the written directions dated 21 March 2024; and (b) two sets of written submissions.   

(4)  In the event the applicant fails to comply with paragraph (3) above, the hearing of the appeal will, without further notice, be vacated and the Court of Appeal will proceed to deal with the appeal on the papers.