ABAYOMI BAMIDELE FAYOMI v. SECRETARY FOR SECURITY AND ANOTHER

CACV 6/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 6 OF 2010

(ON APPEAL FROM HCAL NO. 60 OF 2009)

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J U D G M E N T

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Hon Stock VP:

Background

1. The applicant is a national of Nigeria who has lived in Hong Kong, in various immigration capacities, since 1994.  In 2004 he was arrested for an offence of dealing with property which he knew or believed to represent the proceeds of an indictable offence and he was remanded in custody pending trial for that offence.  He was convicted in April 2005 and sentenced to 3 years 3 months’ imprisonment.  On 22 May 2007 the Secretary for Security made an order that the applicant be deported.  However, a deportation order may not lawfully be made in respect of a permanent resident of the HKSAR.  The Director of Immigration had concluded that the applicant was not eligible for the status of permanent resident; whereas the applicant claimed that he was.

2. This conflict triggered the judicial review proceedings with which this appeal is concerned: the applicant challenged the Director’s decision that he was not eligible for that status as well as the Secretary’s decision to deport him.

3. The application to the Director for verification of eligibility for a permanent identity card was made on 29 March 2007, that is to say, whilst the applicant was serving his term of imprisonment and since periods of imprisonment do not constitute ordinary residence for the purpose of art. 24(2)(4) of the Basic Law and since the seven continuous years of ordinary residence must have been completed immediately before the time when an application for permanent residence is made under that limb of eligibility, the application was destined to fail: see art. 24 Basic Law[1] and Fateh Muhammad v Commissioner of Registration and Another[2].  Accordingly, on the application for judicial review, Saunders J dismissed the challenge to the Director’s decision of 9 May 2007 that the applicant was not eligible for permanent resident status.  This appeal does not contest that aspect of the decision in the court below.

4. However, the focus of the proceedings below shifted from administrative decisions in May 2007 to events in 2003[3]. This was because in January 2003 the applicant had made an application to the Director for unconditional stay in Hong Kong.  That application was made against the following background.

5. The applicant had first entered Hong Kong in August 1994 on a visitor’s visa and it was as a visitor that he regularly entered and left and re-entered Hong Kong between that date and April 1997.  In August 1996 he married a Hong Kong permanent resident.  On 4 April 1997 he was granted conditional stay as a dependent of his wife, that new status to be effective as from 31 March 1997.  It is now accepted, as the judge found, that whilst in Hong Kong as a mere visitor he could not, as a matter of law, be ordinarily resident here.  But, assuming that he was on and from 31 March 1997 ordinarily resident in Hong Kong and remained so continuously thereafter, he could on and after 31 March 2004[4] successfully seek verification for eligibility as a permanent resident, provided also that he was able truthfully to state on the date of his application that he had adopted Hong Kong as his place of permanent residence.

6. Against that background, he applied in January 2003 for unconditional stay.  On 20 May 2003 and at the invitation of the Director, he attended the Immigration Department pursuant to that application where a decision was made that day to grant him unconditional stay.  Since, as a result, he was entitled to a different identity card evidencing that new status, he was given a form ROP 1, which is an application form “for a permanent identity card/ an identity card”.  He filled it in.  To the question: “Have you been ordinarily resident in the HKSAR for a continuous period of not less than 7 years?” he ticked the “Yes” box.

7. It seems that the form was presented to a registration officer; an officer acting on behalf of the Commissioner for Registration.  The applicant was provided by the Registration of Persons section with a new identity card marked “U” to denote his unconditional stay status but nothing was said to him about permanent residence status or a permanent identity card.

The judge’s conclusions

8. The judge concluded, relying on the decision of this Court, differently constituted, in Yoothip v Secretary for Security & Commissioner of Registration[5], that the Commissioner of Registration was obliged to treat the form ROP 1 completed by the applicant as a claim by him for eligibility for permanent resident status and that the document should have been referred to the Director for consideration of that claim[6]. But he recognized that had the application been treated as an application for verification of permanent residence status, it would have failed because by 20 May 2003, seven years of ordinary residence had not been completed.

9. However, the applicant then argued that had the Director[7] properly discharged his duty on 20 May 2003 by referring the application for an identity card for verification of status, the applicant would have been advised that his period of residence whilst a visitor did not constitute ordinary residence for the purpose of his application, wherefore he would then have realised that he should renew his application on or after 31 March 2004.  In short, so the argument ran, the applicant was, by reason of this breach of duty in May 2003, deprived of the opportunity of making an application during the period of his eligibility for permanent residence verification; put by the applicant as the period between 31 March 2004 and the time of his incarceration in September 2004[8]. 

10. The judge held that although there had been a breach of duty in May 2003, the evidence established that the applicant was at all material times after 20 May 2003 aware that his status was merely that of a person enjoying the grant of unconditional stay and aware that he had not been granted recognition as a permanent resident.  Accordingly, he held, the applicant had not in truth been deprived of an opportunity to make a claim at a later and more opportune time.

The present challenge

11. It is this finding, that there was no prejudice, that is the issue in this appeal: first, it is said that the evidence did not permit the judge to draw this inference and, second, it is said that there was procedural unfairness in the judicial review proceedings themselves in that the judge gave no intimation that he doubted the applicant’s contrary assertions in his affirmations and thereby deprived the applicant of the opportunity to testify in order to lay to rest, if he could, such misgivings as the judge nurtured.

12. To this end, the applicant seeks leave to amend the Notice of Application for leave to apply for judicial review in order to challenge “the Director of Immigration’s failure to verify the applicant’s application for permanent resident status through the submission of a form ROP 1 on 20 May 2003.”  The decisions challenged in the original notice of application were the May 2007 decision rejecting the March 2007 application for recognition of permanent residence status and the deportation order of 27 May 2007.  The original relief sought was an order to quash the deportation order and a declaration that the applicant was eligible for permanent resident status.  It is not the case on appeal that the deportation order should be quashed, for it is acknowledged that a failure to process an application for recognition of permanent resident status does not invalidate a deportation order otherwise properly made, although the fact that an issue about permanent resident status is the subject of consideration is likely to provide sound reason not to execute the deportation order pending determination of that issue.

13. The relief now sought, by way of proposed amendment to the notice of application, is an order of mandamus requiring the Director of Immigration to process the form ROP 1 submitted on 20 May 2003 as an application for permanent residence status and as if made on 31 August 2004.  The latter date is chosen because it is shortly prior to the applicant’s arrest and remand in custody in the late summer of 2004, when, on one view, continuous ordinary residence was interrupted[9]. The current state of the law is that continuous ordinary residence is only interrupted from the date of sentence, if the sentence is one of imprisonment; as to which I note that the original Notice of Application asserts that the Director “failed to advise the Applicant properly as to his right to apply for permanent residency in the period from 20^th May 2003 to April 2005”[10] (the date of sentence).  The Notice went on to assert that had the applicant been notified in or about May 2003 that “his application for permanent identity card failed because of insufficient period of ordinary residence, he would have applied for permanent residency again in 2004 or any time thereafter but before the applicant was sent to prison in 2005.”[11] 

The duty breached

14. Before I address the evidential issue, a question arises about the nature or the extent of the duty triggered by the application on Form ROP 1, as it then read, for an identity card coupled with an assertion in the form that the applicant has ordinarily resided in Hong Kong for a continuous period of seven years.  

15. The judge said that by reason of the applicant ticking the box “Have you been ordinarily resident in the HKSAR for a continuous period of not less than 7 years?”, the Commissioner was obliged to treat the form as a claim by him for eligibility for permanent resident status and to refer the document to the Director of Immigration for verification[12], saying that the application for an identity card completed on 20 May 2003 contained an inherent request for verification.[13]

16. I do not agree.  Form ROP 1 as it read at the date of the applicant’s application in 2003 for an identity card (the format of which has, we were told, since been changed) was not necessarily an application for a permanent identity card.  It was an application for either a permanent identity card or for an identity card for a non-permanent resident.  It covered both.  There was no requirement to “delete as appropriate” to make clear which of the two was sought.  More to the point is the fact that whilst the form asked whether the person making the application had been ordinarily resident for a continuous period of not less than seven years, it did not ask whether that person had taken Hong Kong as his place of permanent residence prior to the making of the application.  In the case of persons not of Chinese nationality, both were (and remain) conditions precedent to recognition of permanent resident status[14]. Beyond that, it is important to recognise that a person who has ordinarily resided in Hong Kong for a continuous period of seven years or more has not necessarily taken Hong Kong as his place of permanent residence.  There may be many reasons why he would resile from so asserting, especially in an official or other formal document.  For example, a person ordinarily resident in Hong Kong may be entitled to certain benefits in or from his or her country of nationality if his place of domicile or permanent residence is that country; so that an avowed intention to adopt Hong Kong as that person’s place of permanent residence may prove to him a practical disadvantage.  The same point was made by Chu J, as she then was, in Raquiza v The Director of Immigration that “while there are many immigrants who wish to become permanent residents of Hong Kong, there are equally others who do not desire this, notwithstanding they have been ordinarily resident in Hong Kong for seven years or more.  Whether to apply [for permanent residence status] is ultimately a matter of choice and personal decision for the individuals.”[15]

17. In this context, I note the passage in the judgment in Yoothip that “when an applicant notifies the registration officer that he has lived continuously for seven years in Hong Kong by way of ROP 1, it behoves the registration officer to refer the applicant to the Director so that his constitutional right as a permanent resident can be verified.”[16] 

18. That passage flows from the premise expressed earlier in that judgment that “[o]n the face of it, the form [ROP 1] clearly is to inquire with an applicant whether he satisfies the permanent residence requirement… .”[17]  That may well have been so when the form was originally devised – that is, before 1997 – when the only category of person to whom a condition precedent of seven years permanent residence applied were persons “wholly or partly of Chinese race” with no additional condition for eligibility.  But when that form was used after June 1997, those not of Chinese nationality had to show significantly more than continuous residence for seven years.  So, with great respect, I cannot agree that in the case of a non-Chinese national, the form intended to inquire whether the applicant satisfied the permanent residence requirement; or that the mere fact of asserting seven years continuous residence on the form triggered a requirement to refer for verification.  Indeed such a referral may be contrary to the wishes of the applicant for an identity card.

19. In any event, I do not think it can have been intended by that judgment to impose the duty of referral in every such case.  That passage was penned by express reference to the background of that case where the applicant, unlike in the present case, had at the time of the application been ordinarily resident in Hong Kong for well over seven years prior to applying for the identity card; the Court saying that the duty arose in respect of an applicant “who is, on the face of it, entitled to a permanent identity card” and where the “materials before the registration officer … disclose the applicant’s potential eligibility to permanent resident status.”[18] But even so, I would respectfully suggest that it is incumbent upon the registration officer to treat the form ROP 1 application by a non-Chinese citizen as an application for a permanent identity card only where the applicant asserts either orally or in writing that that is what he wants.  Where it is clear that the application is an application for a permanent identity card, the duty, naturally, is to treat it as such and to refer it for verification of that status.  Where, however, that is not clear[19], fairness dictates only a duty to inquire, to clarify, which of the identity cards referred to at the heading of the form is sought.  That duty arises because the form is not itself an application for verification and because the assertion that one has been ordinarily resident for seven years is not an assertion that one has taken Hong Kong as one’s place of permanent residence.  Nor, in my opinion, absent an application for verification, is there a duty to advise an applicant that he is or may be entitled to a permanent identity card although there is a duty, if asked the question, to notify a prospective applicant of the conditions precedent to the issue of such a card.  All of this is to state no more, in my opinion, than the obvious in terms of fair and manageable administration.

The question of prejudice

(1) The issue

20. In so far, then, as the judge held that there was a duty to refer onwards for verification it is my opinion that he went too far; but the question nonetheless arises as to the consequences of the breach of duty to inquire, for one readily extrapolates from the judge’s findings that this breach of duty too would matter not in this case because it was not at the material time, whether in 2003 or 2004, the applicant’s intention to seek verification of status as a permanent resident.

(2) The findings

21. What the judge said was that he was satisfied that the applicant was all along, “aware that his status was merely that of unconditional stay and that he had not been granted permanent residence.”[20] For this conclusion he relied on a number of matters:

(1)  That in a letter to the Immigration Department dated 24 December 2005, the applicant’s wife had said that the applicant “has lived in Hong Kong in excess of the seven years which is required in order to apply for permanent residence. He has unconditional stay and was only too busy to apply for his permanent residence however he is eligible for such.” (The judge’s emphasis)

(2)  That in a letter written by the applicant to the Director dated 20 March 2007, the applicant said:

“As at January 2003 I got the application forms for an unconditional stay and permanent stay in Hong Kong. I got the application form from Immigration Department Wanchai in 2003. But I was busy travelling mostly between HK and mainland China, so effect I submitted only my application for unconditional stay at the time because I thought I can pick up my permanent ID card at any convenient time.” (The judge’s emphasis).

(3)  That on 20 March 2007, the applicant had made a statement to an immigration officer “containing an explanation as to why he did not get a permanent identity card [in which statement] he acknowledged that in 2003 he was granted unconditional stay in Hong Kong”.  In so far the applicant asserted in these proceedings that the statement was dictated by him under the instruction of an immigration officer, that was, said the judge, a wholly incredible assertion; as was the assertion by the applicant’s wife, in affirmation evidence placed before the court, that her letter (saying he was too busy) was merely an excuse for her husband.  The judge said that: “Had she, at that time, believed that the husband held permanent resident status, I have no doubt that she would have said so.”[21]

(4)  It was plain, said the judge, that both the applicant and his wife well knew the distinction between unconditional stay, on the one hand, and permanent residence on the other.  She was a permanent resident and his identity card received in May 2003 was quite obviously different from hers, and they must have been aware of that fact.

22. Accordingly, said the judge, the applicant “cannot be heard to say that he was unaware of his status.  Had he wished to, he had ample opportunity to make application for a permanent ID card during the 16 months prior to his arrest. He did not do so.  Consequently … [the] breach has caused no prejudice at all to [the applicant].”[22]

(3) The complaints

23. The complaints upon this appeal on the question of prejudice are that:

(1)  the prospect of a conclusion, determinative of the case, that the applicant knowingly passed up the opportunity of applying for permanent residence status was not signalled by the judge or argued by counsel for the respondent during the hearing and that, accordingly, there was no occasion for those acting for the applicant to tender submissions on the point and no reason to ascertain through oral testimony what the applicant and his wife had to say about the inferences the judge was inclined to draw from the correspondence and statements to which he referred; and

(2)  the inferences which he drew were not reasonable inferences to draw from the documents upon which the judge relied.

(4) The evidence

24. The gravamen of the judge’s findings is that the applicant well knew the distinction between an application for conditional stay and the grant of that status on the one hand and on the other an application for recognition of permanent residence status and deliberately chose to apply for the former and not to apply for the latter.  Whether, at the end of the day, a fair analysis of the case will reveal that to be the case, is not to the present point.  The present point is whether the inferences which the judge drew from the primary facts placed before him were proper inferences to draw and, even if they were, whether the applicant was unfairly deprived of an opportunity to address the issue so as to seek to dissuade the judge from drawing them.

25. That question needs first to be examined against the background of the notice of application for leave and the affirmations filed by the applicant in support of that application.

26. In his Notice of Application, it was asserted that: “after having married and resided in Hong Kong for so many years the applicant intended to apply for a permanent identity card in 2003.  In May 2003 he went to the Immigration Department and asked to apply for a permanent identity card.”  There is then recited the fact of his having ticked the “yes” box on the form ROP 1 in answer to the question whether he had ordinarily resided in Hong Kong for a continuous period of not less than seven years and that thereafter he was issued with a ‘U’ code identity.  There is then the assertion that he thought he was issued with a permanent identity card and was not aware that he was only granted unconditional statement of permanent residency.  “He did not appreciate the difference between [the] two statuses.”[23]

27. In his affirmation in support of his application for leave, he repeated the assertion that he intended to apply for a permanent identity card in 2003 and said that when he went to the Immigration Department he “asked to apply for a permanent identity card”; he was given a form which was an application for a permanent identity card and thought when he was given a new identity card which said “all conditions of stay are hereby cancelled”, that he “was granted with a permanent identity card with permanent residency because I did not need to apply for any renewal of visa or extension of stay … I did not know the difference between permanent residency” and so-called “unconditional stay. … Since then, I did not bother the matter of my identity card because I thought I had already been a Hong Kong permanent resident.”

28. So these were the assertions at the application stage, that he knew not the difference between the two statuses and that he thought he had been granted a permanent identity card.  That he thought he had actually already been granted a permanent identity card sits ill with some of the assertions in earlier documents.  

29. In his January 2003 application for unconditional stay he declared that he had been ordinarily resident since 1994.

30. In a letter to the Immigration Department in December 2005, the letter to which the judge refers in his reasoning, the applicant’s wife, in urging the Director not to deport her husband, said that the applicant had lived in Hong Kong in excess of seven years “which is required in order to apply for permanent residence.  He has unconditional stay and was only too busy to apply for permanent residence however he is eligible for such.”  However she explained in her affirmation in support of these proceedings, that the letter (sent by fax) was written in haste on her way to the airport after she had been told by an immigration officer that her husband was not in fact a permanent resident and had applied only for unconditional stay, so that, in a rush, she proffered the most usual excuse advanced in such situations.

31. There is an interesting comparison to be made of two notes on 20 March 2007; interesting because it illustrates how the gravamen of an assertion may be differently seen depending on the prism through which it is examined:

(1)  The applicant was interviewed by an officer of the Immigration Department on 20 March 2007; and the record made by that officer says that the applicant “stated that he should have right of abode in HK.  However, he was just too busy in 2003 and applied for unconditional stay only.”

(2)  Yet the applicant’s submission in writing made the same day said: “[In] January 2013 I got the application forms for an unconditional stay and permanent stay in Hong Kong. … But I was too busy travelling mostly between HK and Mainland China so effect I submitted only my application for unconditional stay at the time because I thought I can pick up my permanent ID card at any convenient time.”

32. There is certainly material on the papers from which one might incline to the view that the applicant well knew, in 2003, the distinction between unconditional stay and permanent residence; most particularly the applicant’s written assertion in March 2007 that in 2003 he had secured application forms (plural), one for unconditional stay, the other for permanent stay, and he chose to fill out only one of the two[24]. On the other hand, the very same statement makes a reference to an assumption by the applicant that he could pick up his permanent identity card at any time, which seems to be a suggestion that he thought the one followed from the other; an interpretation which the judge does not appear to have addressed.  Furthermore, and importantly, the applicant’s assertion in his affirmation in support of the application for leave to apply for judicial review asserts in terms that he did not know the difference between the two and did not therefore bother about the nature of his identity card; although, as against that, we see in that affirmation as well as in the notice of application a contrary assertion that he thought he had been issued with a permanent identity card.

(5) Analysis

33. Once a claimant has proved grounds for intervention by the courts – in this case, that there was a breach of the duty of fairness on the part of the Commissioner – the burden shifts to the defendant public body to establish that no prejudice was occasioned by the breach: R (Lichfield Securities Ltd) v Lichfield District Council.[25]

34. In the skeleton submissions supplied at the outset of the proceedings in the court below, the respondent submitted that even if the applicant was in 2003 entitled to permanent residence status, the evidence showed that the applicant was then well aware of the distinction between unconditional stay and the conferment of permanent residence status and that it was simply not his intention to apply for the latter status in 2003; so that it mattered not what advice he was given or was not given by the Commissioner.[26] The skeleton submission for the applicant did not address the suggested factual basis for the respondent’s contention – because, I assume, the respondent’s skeleton came in later or perhaps simultaneously – yet it nonetheless asserted that the applicant knew not the difference between the two[27] and asserted as well that the suggestion that he said or meant that he was too busy to apply for permanent residency makes, in context, little sense.[28]

35. Yet that is as far as the issue was canvassed.  We have the transcript of the proceedings before Saunders J and we see from it that the issue was not touched upon in the oral submissions.  In particular, there was no hint offered by the judge that he viewed the prejudice question as troublesome and possibly determinative of the case, let alone that he was minded, on the basis of the papers alone, to find against the applicant on the question of prejudice.

36. Beyond that, one may be forgiven from a reading the transcript in thinking that, by the end of the oral submissions, the judge was sympathetic to the applicant’s case in relation to the consequences of the 2003 breach of duty.  The judge canvassed with counsel for the respondent what would have happened had the application for an identity card been referred as an application for verification of permanent residence status.  The answer, counsel for the respondent agreed, was that the applicant would have been told that he did not enjoy the right of abode, since seven years ordinary residence had by May 2003 not been completed.  But, asked the judge, what then would have happened: the applicant would, the judge was sure, have known that at a certain date in the future “he would have seven years” and that “if he had made his application ... if he had made an application for permanent ID card status between 4 April 2004 and the date of his arrest, he would have got a permanent ID card.  ... It would be reasonable to speculate that he had a good chance of getting a permanent ID card.”[29]

37. Counsel for the respondent thereupon argued against that proposition, saying that the grant of permanent residence status was not a foregone conclusion since there was still “the question of [the] permanence requirement” which “has not been considered and is not really something which engages this court”.  I do not quite understand the point which was there being made.  This is not a criticism of counsel, for the comments were part of normal exchanges between Bench and Bar in the vein of thinking aloud; but what is clear to me is that nothing in the oral submissions can have alerted counsel for the applicant to the fact that lack of prejudice – based upon the supposition that the applicant took a conscious decision to forego an application for permanent residence status – was (any longer, if ever it had been) a live issue.  Indeed, when the judge asked counsel for the applicant whether he had anything he wished to say in reply, the judge did not invite any submission on the issue of prejudice and counsel did not address it.  It is clear to me that this was not because counsel did not have an argument to advance but because the way the hearing had been conducted gave him no occasion to consider it to be a live issue.

38. There was evidence in this case, by affirmation, that the applicant thought that the grant of unconditional stay status plus the fact (if such a fact were established) that he had asserted seven years ordinary residence entitled him to a permanent identity card and that he was merely too busy to pick it up.  There was no application to cross-examine him upon these assertions, although it was open to the respondent to invite the court, absent cross-examination, to discard these assertions on the basis that they were either inherently incredible or shown to be untrue by undisputed objective evidence or internal inconsistencies that could not sensibly be explained away: R (on the application of S) v Airdale NHS Trust.[30]

39. No such invitation was made by the respondent in the course of the hearing below, and the issue was not canvassed during that hearing.  Although the matter was alluded to in the written submissions for the respondent submitted before the hearing, I am satisfied that such was the progress of the hearing itself that, absent some prior suitable indication or invitation from the judge to counsel for the applicant, it was not appropriate for the judge to determine the case against the application on an issue that was not orally canvassed and when the nature of the judge’s interventions at the closing stages of submissions were such as might well have led counsel for the applicant to believe that he had no need to address the question.  If, as was probably the case, the judge when considering his judgment after the hearing, was minded for the first time to exercise his discretion against the granting of relief on the basis upon which ultimately he did so exercise it, it was incumbent, so it seems to me, then to offer counsel acting for the applicant an opportunity to render submissions on the point.  Whether there is an obligation on a judge to intimate a preliminary view and to invite submissions is always a case-specific issue; but in this case the prejudice issue was ultimately determinative of the whole case and was, given the circumstances I have described, not a determination which should have been made without such a prior indication and invitation.

40. Whilst the affirmations and letters to which I have referred to raise questions about the reliability of the applicant’s assertions as to his belief and intention at the time of his May 2003 application, the judge’s rejection of them is based in large part on the wife’s 2005 letter and on the applicant’s letter of 20 March 2007.  The passage emphasized by the judge in his recitation of the 2007 letter seems to ignore that part which says in terms that the applicant thought a permanent identity card flowed from the events of May 2003.  It is not a case, therefore, in which it could be said that the applicant’s case is so obviously false on the face of the affirmations and contemporary documents that submissions or oral evidence could not make a difference.

Conclusion

41. Accordingly, I am satisfied that the just resolution of the matter is to grant the leave sought to amend the Notice of Application[31], allow the appeal, set aside the order of the judge below and direct that the issue of prejudice be remitted to the Court of First Instance for argument and determination.  It is appropriate that that issue be determined by a different judge; not least because Saunders J has since retired.

42. The Notice of Application was filed only in May 2009, two years after the deportation order and the decision to reject the 2007 application for verification; and six years after the events of May 2003.

43. The judge said that although the question of delay was not, in view of his decision on the issue of prejudice, necessary for determination, “I record that were the application for judicial review and application to review 20 May 2003 decision, the delay is such that relief ought to be refused.”[32]  This was because the only explanation for the delay was that “[the applicant] believed that he had been issued with a permanent identity card, an assertion which, for the reasons given above, I have rejected.”[33]

44. Since the refusal of relief on the grounds of delay was expressed by the judge to flow from his decision on the facts, which form the basis of his decision on the issue of prejudice, I take the view that the question of delay should also be canvassed afresh upon the remittal to the Court of First Instance.

45. I would make an order nisi that the costs of the appeal be to the applicant, to be taxed if not agreed.  There is a Respondent’s Notice that asserts that the judge confused the respective roles of Commissioner and Director, a well-founded complaint, and complains too about the extent of the duty imposed by the judge whether on the Commissioner or the Director.  I have held that the judge erred in this regard too.  These were, however, subsidiary issues on the appeal and I would make an order nisi that there be no order as to the costs of the respondent’s notice.  As to the costs below, I would make an order nisi that they be in the costs of the cause of the remittance to the Court of First Instance.

Hon Fok JA:

46. I agree with the judgment of Stock VP and his conclusion as to the disposition of the appeal as set out in paragraphs 41 to 45 above.

Hon Barma JA:

47. I agree with the judgment of Stock VP.

Hon Stock VP:

48. Accordingly the appeal is allowed, the order of the judge below is set aside and the case remitted to the Court of First Instance for determination of the issues of prejudice and, if necessary, delay.  There will be orders nisi as to costs in the terms referred to at paragraph 45 above and there will , further, be an order that there be legal aid taxation of the applicant’s costs.