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CACV 5/2017
[2019] HKCA 1302
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 5 OF 2017
(ON APPEAL FROM HCAL 172/2015)
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BETWEEN
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Applicant |
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DIRECTOR OF IMMIGRATION |
Putative Respondent |
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Before: Hon Poon Ag CJHC, Lam and Kwan VPP in Court
Date of Hearing: 22 October 2019
Date of Judgment: 22 November 2019
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J U D G M E N T
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Hon Lam VP (giving the Judgment of the Court):
1. We struck out this appeal on 29 October 2018 after refusing leave to appeal to challenge the decision of Chow J not extending time for judicial review to be brought.
2. By a notice of motion of 5 June 2019, the applicant seeks leave to appeal against our decision to the Court of Final Appeal.
3. Since our refusal of leave is made under Section 14AA of High Court Ordinance on the basis that the decision of Chow J is interlocutory in nature, the applicant is prima facie barred by Section 14AB from further appealing.
4. However, Mr Dykes SC representing the applicant argued that section 14AB is unconstitutional insofar as it is applied to judicial review cases. Whilst the Court of Final Appeal has upheld a similar finality provision for District Court appeals[1] in Incorporated Owners of Po Hang Building v Sam Woo Marine Works Ltd (2017) 20 HKCFAR 240, Mr Dykes argued that judicial review cases are special. Counsel alluded to the discretionary nature of judicial review and cited the judgment of the Privy Council in Kemper Reinsurance Co v Minister of Finance [2000] 1 AC 1 at p.15H-16C and R (Burkett) v Hammersmith and Fulham Borough Council [2002] 1 WLR 1593 at [7].
5. With respect, these cases are not germane for present purposes as they were decided in relation to the refusal of leave to apply for judicial review when the applications were made within time. It was held in such context that a decision of a court of appeal on a renewed application is in substance a decision in an appeal, as such it is not absurd to have a further appeal to the Privy Council and House of Lords.
6. On the other hand, the subject decision in the present case is the refusal to extend time under Order 53 Rule 4(1), Rules of the High Court, Cap 4A, to apply for judicial review outside the three-month statutory limit. It has been held in MI & IYW v Permanent Secretary for Security [2018] HKCA 419 that such a decision is interlocutory in nature and an appeal against such decision is subject to the leave requirement in Section 14AA.
7. It is noteworthy that Mr Dykes did not submit that Section 14AB is unconstitutional in the context of ordinary High Court proceedings. He confined his challenge to the application of Section 14AB to judicial review proceedings.
8. In the course of judicial review, like other civil proceedings, some interlocutory decisions may be made before a final determination of the merit after a substantive hearing. Though it may not often occur, there can be applications for cross-examination of deponents, discovery of documents in an application for judicial review. There can also be applications for intervention by a non-party and for interim stay too, we cannot discern any good reasons for drawing a distinction between similar interlocutory orders made in judicial review proceedings and in ordinary civil proceedings by virtue of the difference in the nature of the proceedings for the purpose of restriction of appeals to the Court of Final Appeal. We do not accept a general proposition that the restriction in Section 14AB should not be applicable to interlocutory decisions in the context of judicial review.
9. In his oral submissions, Mr Dykes confirmed that his real challenge is confined to the application of Section 14AB to interlocutory decision on refusal to extend time for judicial review to be brought. As counsel submitted, such decision would lead to the court’s refusal to entertain the judicial review application.
10. Mr Dykes is correct in submitting that in most cases, the court would have addressed the merit of the intended application for judicial review in the considering if extension of time should be given. However, merit is not the sole factor. As discussed in AW v Director of Immigration [2016] 2 HKC 393, the exercise involved a multi-faceted assessment in the particular circumstances of the case. Non-exhaustive factors included length of delay, explanation for delay, merits of the substantive application, prejudice and the involvement of questions of general public importance. For example, as held in MI & IYW v Permanent Secretary for Security, supra, at [33] to [39], the inability of an applicant to proceed further with a judicial review was due to his failure to proceed without undue delay as required by the law. In Re Thomas Lai [2014] 6 HKC 1, G Lam J also highlighted that merit is not the sole criterion by reference to the judgment of Litton NPJ in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B and the decision of Hartmann J in Law Chun Loy v Secretary for Justice HCAL 13/2005, 26 October 2006.
11. Similar multi-faceted discretionary assessments also feature in the context of ordinary civil proceedings in the High Court. We accordingly do not find this to be a valid distinction between judicial reviews and other civil proceedings for the purpose of deciding if Section 14AB should apply to the former.
12. Mr Dykes however referred to the final adjudicative power of the Court of Final Appeal under art 82 of the Basic Law as discussed in Solicitor v Law Society of Hong Kong (2003) 6 HKCFAR 570 and submitted that the application of section 14AB in the present context failed to satisfy the proportionality test. Counsel emphasized that judicial review proceedings are sui generis and a determination on extension of time on ground of undue delay is qualitatively different from other general interlocutory decisions. He submitted that the...
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