EPOCH GROUP LTD v. DIRECTOR OF IMMIGRATION

HCMP 2475/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2475 OF 2010

(ON AN INTENDED APPEAL FROM HCAL NO. 43 OF 2010)

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BETWEEN

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D E C I S I O N

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1.  This is an application for leave to appeal to the Court of Appeal from a decision of A. Cheung J given on 10 November 2010. The matter before the judge was an application for inspection of documents and for leave to serve interrogatories in judicial review proceedings relating to the refusal by the respondent to approve employment visa applications by six individuals.

2.  On 24 November 2010 the judge refused an application for leave to appeal.  By summons dated 2 December 2010 the applicant sought leave to appeal and on 15 December 2010 the respondent filed a statement in opposition to the application for leave to appeal.

3.  In my view the matter can be dealt with shortly.  In the first place the judge read the documents of which inspection were sought and considered that the parts which had been redacted were irrelevant to the applicant’s claims.  No grounds have been made out which would would show that there was a basis which would justify the court in giving leave to appeal that part of the judge’s judgment.

4.  In relation to the interrogatories, there were two areas in respect of which interrogatories were sought.  Following an open statement on behalf of the respondent during the hearing below it appears from paragraphs 28 and 29 of the judgment of 10 November that those interrogatories were not pursued.  What is pursued are interrogatories in relation to a statement made in paragraph 11 of the affirmation of Wong Yin Sang which read:

“While ImmD [the Immigration Department] does not maintain a specific database on arts group performance applications, in 2009, ImmD had processed over 38,000 applications for entry for employment in Hong Kong under the GEP [General Employment Policy] and the ASMTP [Admission Scheme for Mainland Talents and Professionals], out of which 1,116 applications were refused on ground of not meeting the eligibility criteria for entry for employment in Hong Kong. The refused applications also included applications made by members of arts performance groups for entry for employment.”

5.  However, counsel for the respondent informed the court at the hearing in October that the paragraph had been inserted in the affidavit in order to give background information to the court but that in view of the stance taken by the applicant no reliance would be placed by the respondent on that paragraph.  In those circumstances, it would appear that that paragraph has, in effect, been deleted.

6.  Again, I consider that leave to appeal should not be given in respect of this aspect of the case.

7.  I would add for completeness, however, a few observations about the possible appointment of a special advocate.  The judge considered the possibility of such an appointment at some length in relation to the question of inspection of documents.  Had the judge seen fit to appoint a special advocate, I would have had no hesitation in granting leave to appeal.  I consider that the procedure of special advocates is abhorrent.  It is a denial of the fundamental principles of the common law and natural justice.  Justice must be administered openly.  It must not be administered behind closed doors.  The procedure of special advocates was used in Northern Ireland and has been thoroughly discredited.  It never ceases to amaze me that it can be thought appropriate to appoint special advocates in order to protect the rights of the individual, when the practical reality is that the appointment of such a person precludes that person taking proper instructions from the client and from representing the client adequately.  The office of the special advocate is, in truth, the tool of the oppressor.  It is for this reason that I have given a reasoned judgment in this case so that I could make that clear.