NASEER AHMED v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 76/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 76 OF 2008

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J U D G M E N T

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Facts

1.  The applicant is a Pakistani national.  He first came to Hong Kong on 3 March 1992 when he was about 17 years old.  He was permitted to remain as a visitor.  He then applied for a dependant visa to join his father, who was then residing in Hong Kong.  The application was approved on 17 August 1992.  He was permitted to remain in Hong Kong as his father’s dependant until 17 August 1993.  The dependant visa was extended on 26 July 1993 for three years until 17 August 1996.

2.  On 25 August 1994, the applicant left Hong Kong for Pakistan together with his father.  He was only to return on 18 August 1995, almost one year later.  He claims that he went back to Pakistan together with his father to visit and take care of his mother who was ill.  He says he returned to Hong Kong after her mother’s recovery from illness.

3.  In any event, on 3 September 1996, the applicant’s permission to remain in Hong Kong as a dependant was extended up to 17 August 1999.  That was the last extension of stay granted by the Director of Immigration to him.

4.  On 16 June 1998, the applicant submitted an application for an extension of stay, asking for an unconditional stay in Hong Kong.  Although the Director approved his application in principle, the applicant failed to attend the Immigration Department with financial proof as required by the Director, despite a reminder from the Director dated 23 March 1999 for him to do so.  In those circumstances, his application for unconditional stay was treated by the Director as abandoned and cancelled.

5.  On 17 August 1999, the day on which the applicant’s permission to remain in Hong Kong expired, the applicant submitted another application for an extension of stay.  On the requisite form (Form ID 91), the applicant stated that he last arrived in Hong Kong on 11 July 1999 and his permission to remain was due to expire on 17 August 1999.  The applicant appointed an agent to handle the application for him.

6.  However, the applicant did not attend an interview as requested by the Director and even his agent stated that he had got no further communications from the applicant.  As the applicant did not respond to the Director’s letters requesting for an interview, this application for an extension of stay was also treated as cancelled on 12 November 1999.  This forms the first subject matter of challenge in this judicial review application.

7.  By then, the applicant’s permission to remain had expired, and the applicant was an overstayer in Hong Kong.  To cut a long story short, the applicant simply disappeared for the following three years, until 4 April 2003 when he made yet another application for an extension of stay through another agent.  This application for an extension was refused on 29 September 2003 by the Director on the grounds of absence of sponsorship and lack of extenuating grounds for exceptional approval.  By letter dated 30 September 2003, the Director informed the applicant of the refusal of his application and asked the applicant to attend his office for formalities within seven days.  The applicant claims that he never received that letter.  In any event, it is said that he then ‘went underground’ and became untraceable.

8.  On 19 March 2005, the applicant ‘re-surfaced’ when he reported loss of his wallet.  Investigation was carried out relating to his overstaying in Hong Kong.  On 1 March 2007, the Director made a removal order against him pursuant to s 19(1)(b) of the Immigration Ordinance (Cap 115).  

9.  The applicant appealed against the removal order.  On 11 April 2007, the Immigration Tribunal dismissed the appeal without a hearing.  The dismissal forms another subject matter of challenge in this application for judicial review.

10.  Legal aid was granted on 27 November 2007 and the Form 86A was filed on 17 July 2008.  An extension of time to make the application for leave was obtained, and leave was granted on 25 July 2008.

Applicant’s argument – duty to advise

11.  In this application for judicial review, the applicant contends that when the Director received his application for an extension of stay back on 17 August 1999, he had already resided ordinarily in Hong Kong for a continuous period of not less than seven years and had taken Hong Kong as his place of permanent residence, he having entered Hong Kong with a valid Pakistani passport.  In those circumstances, he was entitled to the status of a permanent resident of the Hong Kong Special Administrative Region (HKSAR) pursuant to art 24(4) of the Basic Law and Schedule 1 of the Immigration Ordinance.  When the Director through his immigration officer received his application for an extension of stay, the Director ought to have informed or advised him of that status or possible status and directed him to make an application to him (the Director) for verification of his claim of the status of a permanent resident of the HKSAR, pursuant to para 3 of Schedule 1 of the Immigration Ordinance.

12.  In fact, by way of relief, the applicant not only asks the Court to bring up and quash the decision of refusal made by the Director of his application for an extension of stay, he further asks the Court to order the Director to treat that application for an extension of stay as an application for verification of his claim of the status of a permanent resident of the HKSAR.

13.  The applicant also contends that in those circumstances, pending the verification of his claim, there was no basis for the Director making a removal order against him.  He therefore asks for the quashing of the Immigration Tribunal’s decision to dismiss his appeal from the Director’s removal order.

Somporn Yoothip

14.  Mr Pun, appearing for the applicant, relies solely on the Court of Appeal decision in Somporn Yoothip v Secretary for Security, CACV 276/2006 (22 June 2007), in support of his contention that there was a duty on the part of the Director to inform or advise the applicant to make an application for verification of his status.

15.  In Somporn Yoothip, the applicant came to Hong Kong in October 1992, and by October 1999, she had been living in Hong Kong for seven years.  Between 1999 and 2002, she went to the Immigration Department on several occasions for the purposes of replacing her identity card.  One of the occasions was on 29 October 2001 when she filled out a form known as ‘ROP1’.  The form bore the description ‘Application for a Permanent Identity Card/An Identity Card by a person of the age of 18 years or over – Registration of Persons Ordinance (Cap 177)’.  The form stated that ‘A Permanent Identity Card is issued to a person who has the right of abode in the Hong Kong Special Administrative Region (HKSAR) under the Immigration Ordinance (Cap 115), Laws of Hong Kong’.  Further, under Part A of the form there was a question ‘Have you been ordinarily resident in the HKSAR for a continuous period of not less than 7 years?’  Two standard answers were provided: ‘Yes’ and ‘No’.  The applicant put a tick in the box provided for the ‘Yes’ answer.  She was issued an identity card.

16.  At issue was whether on that occasion, the Commissioner of Registration, who is charged with the duty under the Registration of Persons Ordinance (Cap 177) to issue identity cards, including a permanent identity card which contains a statement that the holder has the right of abode in Hong Kong, was under a duty to advise the applicant to apply for verification of her status as a permanent resident of the HKSAR by the Director of Immigration, given that she claimed that she had already been living in Hong Kong for more than seven years.  The Court came to a positive answer.

17.  Given the importance Mr Pun attaches to this case in relation to his present application, it is simply fair to quote extensively from that judgment in order to fully understand what the Court of Appeal has decided.  The lead judgment was delivered by Cheung JA, with whom Yuen JA and Hartmann J (as he then was) both agreed.  Cheung JA said:

“Duty to act fairly

13.   … I am of the view that by virtue of the operation of the Basic Law, Immigration Ordinance (‘IO’), RPO [the Registration of Persons Ordinance], RPR [the Registration of Persons Regulations] and the contents of ROP1, a duty was impressed on the registration officer who handled the applicant’s two applications to refer her to the Director [of Immigration] so that her permanent resident status could be verified. 

…

16.   … a non-Chinese person claiming the right to permanent resident status and hence a right of abode, must apply to the Director for his claim to be verified.  A fair and reasonable statutory scheme for the proper verification of a person’s claim to right of abode is constitutional and until such claim is verified, the applicant does not enjoy the rights of a permanent resident.

Registration of Persons Ordinance and Regulations

17.  Section 3(1) of the RPO requires every person in Hong Kong, unless exempted or excluded from its provisions, to be registered under the RPO.  The RPR was enacted to implement the system of registration.  Under Regulation 3(1) of the RPR the requirement of registration includes an obligation to apply for an identity card.  An identity card is defined in the RPO as an identity card issued under the RPO and includes a permanent identity card.  Regulation 3(2) expressly provides that if a registration officer is satisfied, on an application to register and apply for an identity card, that the applicant enjoys the right of abode in Hong Kong, he shall, in accordance with these regulations, issue to the applicant a permanent identity card.  Under regulation 13(1) a holder of an identity card is required to apply to replace an identity card which has been lost, destroyed, damaged or defaced.  Regulation 13(3) repeats Regulation 3(2) by providing that if a registration officer is satisfied on an application for replacement that the person enjoys the right of abode in Hong Kong he shall issue to him a permanent identity card. 

The form

18.  I have already referred to the content of the ROP1 form earlier.  On the face of it, the form clearly is to inquire with an applicant whether he satisfies the permanent residence requirement and inform him that a permanent identity card is to be granted if he satisfies the requirement.

…

Nature of the duty

21.  The IO, RPO and RPR are statutory provisions which implement the permanent resident status accorded by the Basic Law.  They are inextricably linked.  Under the statutory framework, the Commissioner is expressly required to issue a permanent identity card to an applicant who fulfils the constitutional requirement but because of the intervention of the verification process, the Commissioner can only perform this specific statutory task after the verification process is completed.  On this basis then clearly the statutory provisions under the RPO and RPR point towards a duty on the part of the Commissioner, through the registration officers, to assist an applicant, who is, on the face of it, entitled to a permanent identity card, by referring him to the proper authority so that he could fulfil the conditions under the IO in order to be eligible for the permanent identity card.  In my view with this background when an applicant notifies the registration officer that he has lived continuously for seven years in Hong Kong by way of the ROP1, it behoves the registration officer to refer the applicant to the Director so that his constitutional right as a permanent resident can be verified. 

22.  This is the only sensible way for the Commissioner to give effect to this specific right of an applicant especially when the Commissioner had brought upon himself the task of informing an applicant, through the ROP1, of the right of abode and asking him in effect if he falls within this category of persons who enjoys this right.  A specific direction to seek verification of permanent resident status must then be given.  On this basis it can be said that the act of submission of ROP1 can amount to a claim for permanent resident status.  But in my view such a duty clearly exists even without the ‘submission’ argument.  This duty is nothing more and nothing less than a duty to act fairly in ensuring that that person’s constitutional right can for all practical purposes be recognised.  This is not an onerous task and can be easily discharged by the authority.  As Bokhary PJ observed in Prem Singh at pg 33,

‘Any formalism, complication or subtlety by which a claim to a constitutional status or right can be denied or delayed would inevitably erode public confidence in the law.’

23.  The importance of this duty became more acute when as held by the judge no administrative measures were in place that pointed potential permanent resident claimants in the right direction if the Commissioner’s staff could not deal with a potential permanent resident eligibility claim made in a ROP1.”

Properly understanding the decision

18.  In my view, the case does not assist Mr Pun at all.

19.  It must be remembered that the case was concerned with the duty of the Commissioner of Registration.  That is a post created under s 2 of the Registration of Persons Ordinance.  S 3(1) of the Ordinance provides that every person in Hong Kong is required to be registered under the Ordinance, unless exempted or excluded from its provisions by regulations made under s 7.  Regulation 3(1) of the Registration of Persons Regulations (Cap 177A) provides that subject to certain immaterial exceptions, every person must report to a registration officer, apply to be registered and apply for an identity card within 30 days of his entering Hong Kong, or if he is already in Hong Kong when he becomes required by the Ordinance or regulations to be registered, within 30 days of the date when he is so required, whichever is the sooner.

20.  Regulation 3(2) provides:

“If a registration officer is satisfied, on an application under sub-regulation (1) by any person, that that person enjoys the right of abode in Hong Kong the registration officer shall, in accordance with these regulations, issue to the applicant a permanent identity card.”

21.  Pausing here, on an application for an identity card under regulation 3(1), there is a duty on the part of the registration officer to issue to the applicant a permanent identity card, namely, an identity card which contains a statement that the holder has the right of abode in Hong Kong, if that person really enjoys the right of abode in Hong Kong.

22.  Similar provisions are found in regulation 13 relating to the duty to notify the loss, destruction, damage or defacement of an identity card.  Such a person, according to regulation 13(1), must report to a registration officer within a certain period of time of such loss, destruction, damage or defacement, and apply for a replacement identity card in such manner as the registration officer may require.

23.  Regulation 13(3) provides that if the registration officer is satisfied, on an application under sub-regulation (1) by any person, that that person enjoys the right of abode in Hong Kong the registration officer shall issue to the applicant a permanent identity card.

24.  For the sake of completeness, regulation 14, which deals with replacement of identity card in various circumstances, has similar provisions regarding the duty of a registration officer to issue a permanent identity card to an applicant who enjoys the right of abode in Hong Kong.

25.  It should be remembered that the applicant in Somporn Yoothip made the relevant application for a replacement identity card under regulation 13(1).  In those circumstances, regulation 13(3) required the registration officer handling her application to issue to her a permanent identity card if she did enjoy the right of abode in Hong Kong.

26.  In my view, that was the most important fact in Somporn Yoothip.  Upon receiving the applicant’s application for a replacement identity card, the Commissioner was, as a matter of law, under a duty to issue to her a permanent identity card if she really enjoyed the right of abode in Hong Kong.  Coupled with the equally important fact that in her application form, the applicant actually claimed that she had been ordinarily resident in Hong Kong for a continuous period of not less than seven years, the Commissioner knew or ought to know, that on the face of the matter, he was facing an applicant who claimed that she had the right of abode in Hong Kong.

27.  In order, therefore, for the Commissioner to properly discharge his statutory duty to issue to the applicant a permanent identity card if she really enjoyed the right of abode in Hong Kong, or to issue to her a non-permanent identity card if she did not actually enjoy that right, he had to know whether the applicant was really someone enjoying the right of abode in Hong Kong.

28.  Now the verification of a person’s claim of the status of a permanent resident of the HKSAR, and thus the right of abode in Hong Kong, is the duty of the Director of Immigration.  And the Director would only verify a claim of status upon application.  In those circumstances, it must be incumbent upon the Commissioner to direct the applicant to seek verification of her permanent resident status by the Director of Immigration, so as to enable him (the Commissioner) to properly discharge his duty by issuing the right type of identity card to the applicant.  That, in my view, gave rise to the duty to advise, inform or direct the applicant to seek verification of her status.

29.  In my view, that is the correct understanding of the decision by the Court of Appeal in Somporn Yoothip.

Present case

30.  That being the case, I totally fail to see how one can apply what has been decided in that case to the facts of the present case, which concerns an application for an extension of stay made to the Director.  An application for an extension of stay is nothing more than such an application.  It is not an application for verification of status.  Nor is it an application which expressly or impliedly asserts the right of abode in Hong Kong, or any entitlement to the issue of a permanent identity card.  Rather, it is an acknowledgement by the applicant that he requires the permission of the Director to continue remaining in Hong Kong for a further period of time.  There is, therefore, in my view, simply no basis for imposing a duty, no matter how limited it may be, on the Director to inform or advise the applicant of his possible claim of the status of a permanent resident or his entitlement to make an application for verification of such status.  The Director does not act as the legal advisor of an applicant for an extension of stay under the Immigration Ordinance.  There is simply no legal basis for importing such a duty.

31.  The same conclusion has been reached by Chu J in Raquiza v The Director of Immigration, HCAL 20/2006 (11 July 2006), a case of facts not too dissimilar to those in the present case.  In para 70 of the judgment, the judge said:

“             That aside, I also consider there is no proper basis for importing onto the Director a general duty to inform or advise.  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 ordinarily resident in Hong Kong for seven years or more.  Whether to apply under paragraph 3(2) of Schedule 1 to the Immigration Ordinance is ultimately a matter of choice and personal decision for the individuals.  Thus viewed, there is no compelling reason to place the Director under such an onerous duty to inform, alert or advise the many applicants who attend the immigration offices on a day-to-day basis for a variety of purposes.”

32.  It should be noted that the decision of Chu J, which came almost one year before the Court of Appeal decision in Somporn Yoothip,was affirmed on appeal: CACV 272/2006 (3 August 2007).  The main ground of appeal turned on whether s 2(4)(a)(vi) of the Immigration Ordinance should be given retrospective effect in reckoning the period of seven years (s 2(4)(a)(vi) provides that a person shall not be treated as ordinarily resident in Hong Kong during any period in which he remains in Hong Kong while employed as a domestic helper who is from outside Hong Kong).  The Court rejected that new argument by concluding that the provisions in s 2(4)(a)(vi) apply retrospectively to any period of stay in Hong Kong even though it took place prior to the enactment of those provisions by Ordinance no 122 of 1997, s 2.  Rogers VP dealt with the secondary argument based on the duty to advise by saying that ‘since the applicant had no rights of which she could be advised, any argument as to an obligation on the part of the Director to give advice as to her rights cannot arise’ (para 21).

Duty to act fairly?

33.  Mr Pun argues that on the peculiar facts of the present case, it must have been quite apparent to any immigration officer handling the applicant’s application for an extension of stay that the applicant wanted to continue residing in Hong Kong as a dependant of his father (or otherwise), and to eventually become a permanent resident of the HKSAR, by accumulating the requisite seven years of ordinary residence.

34.  Even if one were to assume that that was the case, I do not see how it could take Mr Pun’s case anywhere.  A duty, particularly a duty on the part of a public officer, does not suddenly come into being simply because it is desirable for it to exist on the facts of a particular case.  It can only come into existence on some legal basis.  I have, in my preceding discussion, pointed out that there is really nothing in the Immigration Ordinance (or any other legislation) which could form the source or foundation for the importation of such a duty.  Although Cheung JA mentioned in Somporn Yoothip the duty to act fairly, which is of course a common law requirement in the realm of public law, that duty must be viewed in context.  The duty to act fairly, on the part of a public officer, must be understood in relation to the particular application that he has to deal with or decision he has to make.  In the case of the registration officer in Somporn Yoothip, he was faced with an application for a replacement identity card and the decision he had to make was to decide whether to issue to the applicant a permanent identity card or a  non-permanent identity card by way of replacement.  The duty to act fairly arose and had to be considered in that context.

35.  In the present case, the immigration officer received an application for an extension of stay.  He had to act fairly in relation to this application for an extension of stay.  The decision he had to make as a public officer was whether to grant the application for an extension, and if ‘yes’, to determine how long that extension should be.  He had to discharge his duty to act fairly in relation to those matters.  The duty to act fairly did not require him, in my view, to consider whether the applicant had a possible claim of status as a permanent resident of the HKSAR, and still less, to advise him to seek verification of his status.

36.  It may be said that of course, if the applicant had the status of a permanent resident of the HKSAR, he would not need an application for an extension of stay but here, one must remember that unless and until such a person claimed to have such a status and made a successful application to the Director for verification, he did not have that status: para 3(2) of Schedule 1 of the Immigration Ordinance.  And until that should happen, he would still require an extension of stay to remain in Hong Kong.

37.  In those circumstances, I do not think the duty to act fairly required the immigration officer to inform, advise or direct the applicant to make an application for verification on the basis that he might have a valid claim for the status of a permanent resident of the HKSAR.  This is particularly so on the facts of the case, when on the face of it, there was almost a year of absence from Hong Kong out of the seven years that Mr Pun now relies on.  On those facts, it would simply not be right to say that the immigration officer handling the applicant’s application for an extension of stay had a legal duty to advise the applicant that he might have a valid claim of status and he should opt for verification.  Still less, in my view, ought the immigration officer treat the application for an extension of stay as an application for verification of status.

Conclusion on primary argument

38.  In those circumstances, the applicant’s challenge against the 1999 decision refusing his application for an extension of stay must fail.  It must also follow that the Director was right in issuing the removal order and the Immigration Tribunal was also right in dismissing the appeal from the Director’s removal order.

39.  In other words, that effectively disposes of this application for judicial review.

Fallback position

40.  It therefore becomes quite unnecessary for me to deal with in great detail a fallback position advanced by Mr Anderson Chow SC, Ms Eva Sit with him, for the Director, that in any event, the applicant, as at the date of his 1999 application for an extension of stay, had not ordinarily resided in Hong Kong for a continuous period of not less than seven years, and therefore any verification of status that he might have been told to seek would have been meaningless.  Relief should therefore be refused as a matter of discretion.  Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653.

41.  Mr Chow bases his argument on the absence of almost one year from Hong Kong by the applicant in 1994/1995, as breaking the continuous ordinary residence.  Leading counsel relies on s 11(10) of the Immigration Ordinance which provides that:

“Any permission given to a person to land or remain in Hong Kong shall, if in force on the day that person departs from Hong Kong, expire immediately after his departure.”

42.  He argues that immediately after the applicant left Hong Kong for Pakistan in 1994, the Director’s permission given to him to stay in Hong Kong as his father’s dependant expired, and when he returned to Hong Kong in the following year, still as a dependant of his father, he was given a fresh permission to remain.  During the period of his absence, therefore, there was no subsisting permission to stay.  In other words, he was not entitled to stay in Hong Kong during the period when he was actually not in Hong Kong.  That being the case, the applicant could not have ordinarily resided in Hong Kong during his period of absence from Hong Kong as he was not even lawfully entitled to remain in Hong Kong during that period of time.  Sun Jie v Registration of Persons Tribunal, CACV 320/2004 (22 December 2005) and FAMV 20/2006 (28 September 2006).

43.  Given that this fallback position of Mr Chow has become an academic one, all I wish to say is that s 2(6) of the Immigration Ordinance would seem to provide a good answer to Mr Chow’s argument:

“For the purposes of this Ordinance, a person does not cease to be ordinarily resident in Hong Kong if he is temporarily absent from Hong Kong. The circumstances of the person and the absence are relevant in determining whether a person has ceased to be ordinarily resident in Hong Kong. The circumstances may include-

(a)  the reason, duration and frequency of any absence from Hong Kong;

(b)  whether he has habitual residence in Hong Kong;

(c)  employment by a Hong Kong based company; and

(d)  the whereabouts of the principal members of his family (spouse and minor children).”

44.  A vital distinction between the present case and Sun Jie is that in Sun Jie the applicant’s employment and thus his employment visa, had actually come to an end, when he had already ordinarily resided in Hong Kong for six years and four months.  He had no choice but to leave Hong Kong.  When he returned to Hong Kong four months later, he came and resumed his stay in Hong Kong under the false pretext of marrying somebody here.  It was under those circumstances that Chan PJ said, in refusing leave to appeal to the Court of Final Appeal, that s 2(6) could not come to his rescue (para 4):

“In order to succeed, the applicant has to show that he falls within s 2(6) of the Ordinance.  It is clear that he does not.  His absence was not a merely temporary hiatus in a continuous period of ordinary residence.  This is because when he returned, he was permitted to remain on a completely different basis which the Registration of Persons Tribunal has found to be false.  There was no continuity between his residence here as an employee and his presence as a visitor permitted to remain as a result of his false representations.”

45.  However, in the present case, when the applicant left for Pakistan in 1994, his dependant visa had not yet expired.  In fact, his permission to stay, but for the automatic operation of s 11(10), would not have come to an end until 17 August 1996, by which time he had already returned from Pakistan to Hong Kong – he having returned on 18 August 1995.  And more importantly, when he returned, he was permitted to enter and remain in Hong Kong on the strength of the previous approval for him to remain in Hong Kong up to 17 August 1996 as a dependant of his father, notwithstanding that, strictly speaking, a fresh permission had to be granted to allow him to remain in Hong Kong upon his return from Pakistan on 18 August 1995.

46.  In those circumstances, in my view, there must be scope for applying s 2(6).  Whether the applicant’s case actually falls within s 2(6) is a matter that has never been determined, and is in any event neither here nor there.

47.  In other words, s 2(6) is a potential answer to Mr Chow’s argument that one can say for sure that the applicant had not ordinarily resided in Hong Kong for a continuous period of not less than seven years as at the date of his application for an extension of stay in 1999.  One simply does not know the answer, as nobody has ever applied the s 2(6) test.

48.  One further argument raised by Mr Chow under his fallback position is that s 2(6), which was added to the Ordinance in 1997 by Ordinance no 122 of 1997, s 2, does not have retrospective effect, and does not, therefore, operate to save any period of absence prior to 1997.

49.  I tend to think this is a wrong argument.  S 2(6), like s 2(4)(a)(vi) dealt with by the Court of Appeal in Raquiza, supra, was added to the Ordinance by the same amendment Ordinance (Ordinance no 122 of 1997, s 2) to give effect to the provisions in art 24 of the Basic Law relating to the permanent residents of and right of abode in the HKSAR.  The provisions were, in each case, added to govern how the continuous period of not less than seven years is to be reckoned.  I, therefore, fail to see why in relation to s 2(4)(a)(vi) it should have retrospective effect for any period of residence in Hong Kong prior to 1997, as the Court of Appeal has held, yet for s 2(6), it should have no retrospective application in deciding whether a period of absence prior to 1997 should be taken into account in reckoning the continuous period of ordinary residence in Hong Kong.

50.  But in the circumstances, it is unnecessary for Mr Chow to resort to his fallback position.     As I have explained, Mr Chow has succeeded on the primary argument.

Delay

51.  That being the case, it is quite unnecessary for me to lengthen this judgment by discussing Mr Chow’s argument based on delay.  Suffice it to say, I tend to agree with Mr Chow on the question of delay.  But I need not rest my decision on that ground.

Outcome

52.  The application for judicial review is dismissed.  I order that the costs of these proceedings, including all costs previously reserved, be paid by the applicant to the respondents, to be taxed if not agreed.  I further order that there be legal aid taxation of the applicant’s own costs.  I also grant a certificate for two counsel for the hearing before me.

53.  I thank counsel for their assistance.