Mi And Another v Permanent Secretary For Securtiy

Court:Court of Appeal (Hong Kong)
Judgement Number:CACV162/2017
Judgment Date:23 Jul 2018
Neutral Citation:[2018] HKCA 419
CACV162/2017 MI AND ANOTHER v. PERMANENT SECRETARY FOR SECURTIY

CACV 110/2017

and CACV 162/2017

(Heard Together)

[2018] HKCA 419

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 110 OF 2017

(ON APPEAL FROM HCAL 201/2016)

_________________

BETWEEN
KWOK CHEUK KIN Applicant

and

LEUNG CHUN YING Putative
Respondent
_________________

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 162 OF 2017

(ON APPEAL FROM HCAL 44/2016)

_________________

BETWEEN

MI 1st Applicant
IYW 2nd Applicant

and

PERMANENT SECRETARY FOR SECURTIY Putative
Respondent
_________________
(Heard Together)

Before: Hon Cheung CJHC, Lam VP and Kwan JA in Court

Date of Hearing: 8 June 2018

Date of Judgment: 23 July 2018

________________

JUDGMENT

________________

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

1. These two appeals raised a common preliminary issue: when a judge refused to grant extension of time for an application for judicial review to be brought, whether the applicant can appeal as of right (on the basis that leave to apply for judicial review is refused) or he can only do so with leave to appeal sought and obtained under Order 59 Rule 2B (on the basis that refusal of extension of time is an interlocutory order).

2. In CACV 110/2017, the applicant Mr Kwok applied for leave to judicial review the oath taken by the former Chief Executive Mr CY Leung in July 2012 on his assumption of office. The Form 86 was issued by Mr Kwok on 11 November 2016. He was grossly out of time in that the three-month period under Order 53 Rule 4(1) (viz three months after the date when the grounds for the application first arose) had expired a long time ago in 2012.

3. His application was refused by Au J on 10 May 2017. In the CALL-1 Form, Au J made the order that the application for extension of time be refused. Leave to apply for judicial review was also refused.

4. On 16 May 2017, Mr Kwok issued a notice of appeal in respect of the decision of Au J. However, due to the fact that he did not comply with Order 59 Rule 5(1)(a) to lodge the sealed order within the prescribed time, he had to issue a summons on 28 July 2017 seeking extension of time to do so. After skeleton submissions on that summons had been lodged, the matter was brought to the Court’s attention.

5. On 1 November 2017, the Court raised the query if Mr Kwok could lodge the appeal without first seeking leave to appeal. Originally, the matter was listed for oral hearing on 21 December 2017 to consider this preliminary issue and if it were to be held that leave to appeal is required, whether such leave would be granted.

6. In CACV 162/2017, the applicants sought leave to apply for judicial review in respect of the decision of the Permanent Secretary for Security of 10 June 2015 refusing to rescind a deportation order made against the 1st applicant. The Form 86 was issued on 19 February 2016, thus outside the three-month period under Order 53 Rule 4(1).

7. On 9 May 2017, Chow J declined to grant the extension of time sought by the applicants and dismissed the application for leave to apply for judicial review.

8. On 18 July 2017, solicitors for the applicants issued a notice of appeal against the decision of Chow J. Like Mr Kwok in CACV 110/2017, the applicants did not obtain leave to appeal before the bringing of the appeal. The notice of appeal was actually issued out of time and the applicants sought extension of time to do so by a summons of 8 August 2017.

9. Again, after the filing of written submissions under the summons, the matter came to the attention of the Court. On 3 November 2017, the Court raised a similar query regarding the requirement for leave to appeal and listed the appeal for hearing on 21 December 2017 to have submissions on the preliminary point. The Court also indicated that if it should be decided that leave is required, it would also determine if leave would be granted.

10. Due to unforeseen and unfortunate circumstances, through no fault of the parties, the hearing date of 21 December 2017 had to be vacated and the hearing was re-fixed to 8 June 2018.

11. Mr Dykes SC (appearing in this appeal on behalf of the applicants in CACV 162/2017) submitted that leave to appeal is not required because the decision of Chow J was a composite decision involving refusal of extension of time and refusal of leave. As such, it falls within the scope of a decision under Order 53 Rule 3(4) and appeal can be brought without leave as stipulated in Order 59 Rule 21(1)(g). Counsel submitted that the crucial consideration is that an application should be made with promptitude (whether made within 3 months or outside) and the court can refuse to grant leave on the ground of undue delay pursuant to Section 21K(6) of the High Court Ordinance. Hence, the 3 month-period in Rule 4 should not be treated in the same way as a time limit.

12. Mr Kwok appeared in person and his submissions revolved around the merit of his application rather than the preliminary issue.

13. On the other hand, Mr Chan SC (leading Mr Ma for the putative respondent in CACV 110/2017 and Mr Chang for the putative respondent in CACV 162/2017) submitted that the refusal to grant extension of time is a discrete decision by the court under Order 53 Rule 4. Though an application for extension of time is usually made together with an application for leave under Rule 3, counsel submitted that the two steps could not be conflated into one in light of the clear wordings in Rule 4(1). That rule provides that an application cannot be made outside the three-month period “unless the Court considers that there is good reason for extending the period within which the application shall be made”. This construction of the procedural scheme is reinforced if one reads it together with Order 59 Rule 21(1)(g) which merely exempts the operation of Section 14AA(1) of the High Court Ordinance (the requirement for leave to appeal) in respect of “an order under Order 53 rule 3 refusing to grant leave to apply for judicial review”. Mr Chan submitted that the clear implication is that the other application, viz the one under Rule 4 for extension of time is subject to the operation of Section 14AA(1).

Discussion

14. In our judgment, to resolve the competing submissions before us, the crucial question is the effect of Order 53 Rule 4 in providing for the need to have an extension of time from the court when an application is made beyond the three-month period. That provision should be construed in the context of the statutory regime relating to application for judicial review.

15. Section 21K of the High Court Ordinance provides the primary legislative support for the regime in Order 53. In particular, Section 21K prescribes that an application for judicial review has to be made in accordance with rules of court: see Section 21K(1), (2) and (3). In respect of delay, Section 21K(6) and (7) are relevant:

“ (1) An application to the Court of First Instance for one or more of the following forms of relief—

(a) an order of mandamus, prohibition or certiorari;

(b) an injunction under section 21J restraining a person not entitled to do so from acting in an office to which that section applies,

shall be made in accordance with rules of court by a procedure to be known as an application for judicial review.

(2) An application for a declaration or an injunction (not being an injunction mentioned in subsection (1)) may be made in accordance with rules of court by way of an application for judicial review, and on such an application the Court of First Instance may grant the declaration or injunction claimed if it considers that, having regard to—

(a) the nature of the matters in respect of which relief may be granted by orders of mandamus, prohibition or certiorari;

(b) the nature of the persons and bodies against whom relief may be granted by such orders; and

(c) all the circumstances of the case,

it would be just and convenient for the declaration to be made or the injunction to be granted, as the case may be.

(3) No application for judicial review shall be made unless the leave of the Court of First Instance has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

(6) Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the Court may refuse to grant—

(a) leave for the making of the application; or

(b) any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(7) Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made.”

16. Order 53 Rule 3(1) and 4(1) read:

“ 3. Grant of leave to apply for judicial review (O. 53, r. 3)

(1) No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.

4. Delay in applying for relief (O. 53, r. 4)

(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made...

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