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)

_________________

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)

_________________

________________

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 1^st 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. (L.N. 356 of 1988)”

17.  It is clear from these provisions that no application can be made after the three-month period unless the Court considers that there is good reason for extending time.  First, Rule 4(1) explicitly provides so.  Second, the phrase “in accordance with rules of court” in Section 21K(1), (2) and (3) encompass the provision in Rule 4(1), thus the pre-requisite of extension of time when application is not made within the three-month period.  Third, Section 21K(7) expressly envisages the possibility for setting time limit in the rules of court for applying for judicial review independently from the duty to proceed without undue delay under Section 21K(6). 

18.  On proper construction, Rule 4(1) has two limbs.  The first one provides for the duty to make an application promptly.  The second one provides for the additional requirement in respect of applications made beyond the three-month time limit: the applicants must provide good reasons for the Court to give an extension of time.

19.  The effect of the Court not granting any extension of time when it is not satisfied that there is good reason for the same is that no application for judicial review can be made in accordance with the rules by virtue of Rule 4(1).  In that event, the Court should not proceed to the next stage of considering if leave should be granted or refused on other grounds. 

20.  In the two appeals before us, Chow J and Au J respectively made orders for refusing to grant extension of time and dismissal or refusal of the application for leave.  From their respective judgments, it is quite clear that the dismissal or refusal of the leave application was based primarily on the refusal of extension of time, though Au J also expressed the view that the proposed grounds advanced by Mr Kwok were not reasonably arguable.

21.  In our judgment, given that the applications of these applicants were made by Form 86 (as opposed to a separate application for extension of time), it is appropriate for the court to dismiss, as opposed to refuse, the applications when extension of time was refused.  However, it does not affect the character of the decision on extension of time. 

22.  This construction of Rule 4 as to the effect of refusal to extend time is consistent with authorities.  In Reg v Dairy Tribunal Ex p Caswell [1990] 2 AC 738 at p.746C to G, Lord Goff endorsed the view of Ackner LJ in Reg v Stratford-on-Avon District Council, Ex p Jackson [1985] 1 WLR 1319 at p.1325 that a finding of good reason for extension does not mean that there was no undue delay and as such the court still retained a discretion to refuse leave notwithstanding such extension.

23.  Then at p. 746H to 747A, Lord Goff continued:

“ … Next, as I read rule 4(1), the effect of the rule is to limit the time within which an application for leave to apply for judicial review may be made in accordance with its terms, i.e. promptly and in any event within three months. The court has however power to grant leave to apply despite the fact that an application is late, if it considers that there is good reason to exercise that power; this it does by extending the period.” (our emphasis)

24.  The extension of time and the grant of leave involves different considerations as explained further by His Lordship at p.747C:

“ … even if it considers that there is such good reason, it may still refuse leave … if in its opinion the granting of the relief sought would be likely to cause hardship or prejudice … or would be detrimental to good administration.”

25.  His Lordship further explained the practical considerations at p.747D to E in terms of the latter questions of hardship, prejudice or detriment to good administration being reserved to the substantive application after leave being granted. 

26.  Subsequently, in Reg v Criminal Injuries Compensation Board, Ex p A [1999] 2 AC 330, the House of Lords further examined the inter-relationship between grant of leave and the power to refuse relief at the substantive application on the ground of hardship, prejudice or detriment to good administration.  Lord Slynn summarized the position at p.341B to F.  His Lordship reiterated at p.341C that leave may still be refused even if good reason for extension of time has been shown. 

27.  His Lordship further indicated that both the question of good reason for extension of time and the refusal of leave on the ground of hardship, prejudice or detriment can be adjourned to a substantive hearing.  In BI v Director of Immigration [2016] 2 HKLRD 520, at [135] to [139], this Court gave some guidance on the procedural options that could be adopted when an ex parte application for leave is made with an application for extension of time. 

28.  From these authorities, it is indisputable that the Court cannot proceed with a consideration of a leave application made outside the three-month period without first addressing if an extension of time should be granted for good reason.  In other words, the application for extension of time is not simply an aspect in the overall multi-faceted assessment of a leave application.  It is a prior step though as a matter of convenience the Court will entertain such application together with the application for leave when they are made at the same time.  In substance, these remain to be two discrete steps.  The Court cannot simply give leave (say on the basis that there would not be hardship, prejudice or detriment under Section 21K) without asking if there is any good reason to extend time under Rule 4(1).  Thus, in Reg v Criminal Injuries Compensation Board, Ex p A, supra, at p.340E, Lord Slynn held that when leave was granted, the judge should be taken as having granted an extension of time as well because “otherwise he would have had to rule that the application was out of time and to have refused leave”.  It follows, as His Lordship held at p.341E, that the question as to if there is good reason for extension of time cannot be re-opened at the substantive application. 

29.  For these reasons we prefer Mr Chan’s submissions to those of Mr Dykes.  We hold that the decision on the application for extension of time is a discrete application from the application for leave under Rule 3.  For an application made within time and without delay, the application for leave falls to be considered by reference to the interest of the applicant in the matter (Section 21K(3) of HCO) and the reasonable arguability test (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676).  For an application made within the three-month time limit but not made promptly, extension of time is not required though the Court can refuse to grant leave on discretionary consideration based on hardship, prejudice or detriment to good administration.  For an application made outside the three-month time limit, an applicant must obtain an extension of time under Rule 4(1) before the application for leave can be entertained. 

30.  Mr Dykes submitted that an application for extension of time without an application for leave under Order 53 Rule 3 would be a procedural oddity.  We understand that in practice an application for extension of time under Order 53 Rule 4(1) is always made together with an application for leave in a Form 86.  We do not see any reason why such sensible practice should be disturbed.  But the endorsement of such practice does not in any way militate against our analysis above on the discrete nature of a decision refusing to grant extension. 

31.  Mr Dykes referred to the commentary in Judicial Review and Crown Office Practice (1999) by Richard Gordon QC at 3-559 to submit that notice need not be given to a putative respondent on an application for extension of time.  This Court gave guidance in that respect in BI v Director of Immigration, supra and we need not repeat what had been said in that judgment. 

32.  Having correctly identified the discrete nature of the decision on extension of time, we have to consider if the leave requirement of Section 14AA is engaged.  Subject to specific exemptions under Order 59 Rule 21, Section 14AA provides that no appeal shall lie to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted.

33.  Order 59 Rule 21 provides:

“ 21. Judgments and orders to which section 14AA(1) of the Ordinance not apply (O. 59, r. 21)

(1) Judgments and orders to which section 14AA(1) of the Ordinance (leave to appeal required for interlocutory appeals) does not apply and accordingly an appeal lies as of right from them are the following—

(a) a judgment or order determining in a summary way the substantive rights of a party to an action;

(b) an order made under section 52A(4) of the Ordinance;

(c) an order prohibiting a debtor from leaving Hong Kong under Order 44A, rule 3(1);

(d) an order for the imprisonment of a judgment debtor under Order 49B;

(e) an order of committal for contempt of court under Order 52, rule 1;

(f) an order granting any relief made at the hearing of an application for judicial review;

(g) an order under Order 53, rule 3 refusing to grant leave to apply for judicial review;

(h) an order granting an application for a writ of habeas corpus ad subjiciendum;

(i) an order under Order 73 (other than an order against which leave to appeal is required under the Arbitration Ordinance (Cap. 609)); (17 of 2010 s. 112)

(j) a judgment given inter partes under Order 83A, rule 4, or Order 84A, rule 3 or in a mortgage action within the meaning of Order 88, rule 1;

(k) an order under Order 121; and

(l) a decree nisi of divorce or nullity of marriage.

(2) Without affecting the generality of paragraph (1)(a), the following are judgments and orders determining in a summary way the substantive rights of a party—

(a) a summary judgment under Order 14 or Order 86;

(b) an order striking out an action or other proceedings or a pleading or any part of a pleading under Order 18, rule 19 or under the inherent jurisdiction of the Court;

(c) a judgment or order determining any question of law or the construction of any document under Order 14A, rule 1(1);

(d) a judgment or order made under Order 14A, rule 1(2)dismissing any cause or matter upon determination of a question of law or construction of any document;

(e) a judgment on any question or issue tried pursuant to an order under Order 33, rule 3;

(f) an order dismissing or striking out an action or other proceedings for want of prosecution;

(g) a judgment obtained pursuant to an “unless” order;

(h) an order refusing to set aside a judgment in default;

(i) an order refusing to allow an amendment of a pleading to introduce a new claim or defence or any other new issue; and

(j) a judgment or order on admissions under Order 27, rule 3.

(3) A direction as to whether a judgment or order is one that is referred to in paragraph (1)(a) may be sought from the judge who made or will make the judgment or order.

(4) A reference to an order specified in paragraph (1)(b), (c), (d), (e), (f), (h), (i), (k) and (l) includes an order refusing, varying or discharging the order.”

34.  Mr Chan drew our attention to Rule 21(1)(g) which specifically refers to the refusal of leave under Order 53 Rule 3.  Counsel submitted that as there is no reference to refusal of extension of time under Rule 4(1), the exemption does not encompass the latter.

35.  On the other hand, Mr Dykes submitted that Rule 21(1)(g) should be read in light of the practice of refusal of leave being ordered together with a refusal of extension of time. 

36.  In our judgment, it must follow from our above conclusion in respect of the discrete nature of the decision on extension of time that Rule 21(1)(g) is not applicable in respect of an appeal against such decision. 

37.  Apart from Rule 21(1)(g), we should also consider if the exemption in Rule 21(1)(a) is applicable.  Though Mr Dykes did not rely on it, he advanced the argument in his reply submission that an applicant could be deprived of his day in court if he did not request for an oral hearing and had no right of appeal when a judge refused to grant any extension of time.

38.  Mr Chan submitted that Rule 21(1)(a) does not apply to a refusal to extend time because extension of time is a procedural matter and the inability of an applicant to proceed without the extension is prescribed by Rule 4(1).  In this connection, counsel found support in Astro Nusantara International BV v PT Ayunda Prima Mitra (No 2) [2016] 1 HKLRD 591 at [9] (per Chow J) and Lo King Yeung v Eddie Chu Hoi Dick [2017] 4 HKLRD 723 at [9] to [15] (per Au J), affirmed in CAMP 18/2017 and CAMP 19/2017, 6 November 2017 (CA) at [5]. 

39.  We agree with the analysis of Mr Chan.  The inability of the applicant to proceed with an application for judicial review (after the refusal to grant any extension of time) was due to his failure to proceed without undue delay and the time limit laid down in Rule 4(1).  The refusal of extension of time under Rule 4(1), like the refusal under section 73(5) of the Legislative Council Ordinance in Lo King Yeung v Eddie Chu Hoi Dick, did not determine the substantive right of an applicant though it has the collateral effect of preventing an applicant from proceeding further with the application for judicial review.  

40.  With respect, it is not entirely accurate to describe the leave to appeal requirement as depriving an applicant his day in court when he had made an application for judicial review outside the time limit prescribed by the rule.  To start with, under Order 53 Rule 3(3), an applicant can seek an oral hearing in his Form 86 and this provision is equally applicable when the application for leave is brought together with an application for extension of time.  As it happened in the two cases before us, Au J had held an oral hearing on 12 January 2017 (in which Mr Kwok was represented by counsel) and Chow J had heard Mr Dykes on 6 January 2017 before the respective decisions were given.  Secondly, even though leave applications are initially considered on the papers in the Court of Appeal, if the applications are not totally without merit (Order 59 Rule 2A(9)), there would be oral hearings. 

41.  The same analysis also provides the answer to a possible concern that there cannot be any further appeal to the Court of Final Appeal if leave is refused under Section 14AA. Since the amendment of section 22 of the Hong Kong Court of Final Appeal Ordinance in 2014, a litigant cannot appeal to the Court of Final Appeal as of right.  All applications for leave to appeal to the Court of Final Appeal are subject to scrutiny.  As has been said in China Field Ltd v Appeal Tribunal (Buildings) (2009) 12 HKCFAR 68 at [16]:

“ The role of the Court of Final Appeal is not to permit a third bite of the cherry to any litigant who wishes to have another go. An appeal to the Court as of right is in principle oppressive to the party who has won in the Court of Appeal where the further appeal is without substance.”

42.  As leave to appeal would only be refused if the Court of Appeal agrees with the assessment of the judge in the Court of First Instance that extension of time should not be granted and took the view that the appeal against such refusal was not reasonably arguable, there is no reason why such applicant should be given a third bite of the cherry.

43.  In all cases where extension of time is refused, the presiding judge has to go through a multi-faceted assessment in accordance with the approach in Re Thomas Lai [2014] 6 HKC 1 and AW v Director of Immigration [2016] 2 HKC 393.  The practice universally adopted in Hong Kong is that adequate reasons are given for such assessment either in the CALL-1 Form or a full judgment.  In the instant appeals, Au J and Chow J respectively gave full written judgments explaining why the applications for extension of time were refused.  Likewise, when leave to appeal is refused, this Court would also explain its reasons for so concluding. Thus, an unsuccessful litigant would be informed of the reasons why his application failed.

44.  Having concluded that none of the exceptions in Rule 21 apply to a decision on extension of time, in accordance with the approach as laid down in Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd (2003) 6 HKCFAR 222 and Hip Hing Timber Co Ltd v Tang Man Kit (2004) 7 HKCFAR 212, the decision should be regarded as interlocutory in nature. 

45.  Hence, Section 14AA is applicable and leave to appeal is required.

46.  We shall then proceed to consider if leave to appeal should be granted in respect of these appeals. It is provided in Section 14AA(4) that leave to appeal should not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.

47.  Further, a decision on extension of time, involving a multi-faceted assessment is an exercise of discretion.  This Court will not disturb such assessment unless an applicant can pinpoint an error of law or principle, reliance on irrelevant consideration or failure to have regard to relevant consideration on the part of the first instance judge, or show that the decision is clearly wrong, see Assicurazioni Generali SpA v Arab Insurance group [2003] 1 WLR 577 at [16], Amtrust Europe Ltd v Trust Risk Group SpA [2016] 1 All ER (Comm) 325 at [31] to [33], Tsit Wing (Hong Kong) Co Ltd v TWG Tea Co Pte Ltd [2015] 1 HKLRD 414 at [22] to [28] and Re A [2018] HKCA 272 at [18] to [19].

Disposition of CACV 110/2017

48.  In CACV 110/2017, Mr Kwok’s delay is very serious and, as found by Au J at [14] to [20] of the judgment of 10 May 2017, such a long delay of more than 4 years cannot be justified.  None of the grounds attached to the Notice of Appeal of Mr Kwok of 16 May 2017 addressed such finding. 

49.  The judge was of the view that extension of time could be refused on this ground alone, see [20] citing Po Fun Chan v Winnie Cheung; supra, at p.693B-C and Law Chun Loy v Secretary for Justice HCAL 13/2005, 26 October 2006 at [13]; Magapower Garments Ltd v Director-General of Trade and Industry HCAL 3199/2001, 4 March 2002 at [26].  Mr Kwok said such an approach failed to take account of the NPCSC Interpretation of 2016.  

50.  In his affirmation of 12 December 2017 (where Mr Kwok set out his submissions), he reiterated that the delay was due to the promulgation of the NPCSC Interpretation in November 2016.  He also referred to the decision of the Appeal Committee in Yau Wai Ching v Chief Executive of HKSAR (2017) 20 HKCFAR 390 on the applicability of the Interpretation to any oath taken prior to 2016. 

51.  With respect, Mr Kwok has not read the judgment of Au J in its full context.  Au J did pay regard to the NPCSC Interpretation of 2016 and the submission of counsel for the Mr Kwok based on that Interpretation at [15], see [17]-[19] and [22] of the judgment of 10 May 2017.  The judge duly explained why the Interpretation could not afford a justification for the delay and there was no arguable merit in the intended challenge based on the Interpretation. 

52.  In our judgment, though the judge indicated that on the facts of this case he could have refused extension of time on the delay and lack of justified explanation alone, he did take account of the lack of merit in the overall assessment. 

53.  The significance of the delay and lack of justified explanation in the present case has to be examined against the background that the challenge was brought by Mr Kwok on 11 November 2016 when the office of Mr Leung would expire on 30 June 2017.  Further, as recorded by the judge at [6(4)], [17] and [22(3)], the applicant and his counsel accepted that the omission in the oath taken by Mr Leung in 2012 was due to inadvertence.  Mr Kwok’s position was that he was not concerned that if the oath of 2012 was held to be invalid, Mr Leung could take the oath again. 

54.  Against such background, we do not find any reasonably arguable basis for suggesting that Au J was clearly wrong in attaching great significance to the delay and lack of justified explanation. 

55.  In any event, we also see no reasonably arguable basis for challenging Au J’s conclusion on the lack of merit in the intended judicial review.

56.  Au J ordered Mr Kwok to bear the costs of Mr Leung for the reasons he gave at [35] and [36] of the judgment.  The judge was aware of the established principles on awarding costs in a leave application.  He awarded costs due to the special circumstances arising from the serious and unjustified delay and the lack of merit in the challenge. 

57.  Mr Kwok contended that he pursued the application as a matter of public interest and there were no special circumstances to warrant the award of costs.  He also said the judge should not invite submissions from Mr Leung or to give him costs with a certificate for two counsel.  He said that the costs of Mr Leung were defrayed by public funds as counsel were instructed by the Department of Justice.

58.  We do not find any merit in these arguments.  The fact that a respondent (or putative respondent) is publicly funded should not affect the court’s exercise of discretion on costs.  Costs are in the discretion of the judge.  On the facts of this case, we do not regard there is any reasonable basis for suggesting that Au J’s exercise of discretion was plainly wrong.  We agree with Au J that there were special circumstances (as set out at [36] of the judgment) to warrant costs being ordered against Mr Kwok with a certificate for 2 counsel.

59.  The appeal of Mr Kwok has no prospect of success.  We also do not see any other reasons in the interest of justice for leave to be granted. 

60.  For these reasons, we refuse to grant leave to appeal under Section 14AA to Mr Kwok.  It follows that the summons of 28 July 2017 should be dismissed and the appeal is not competent.  We therefore order that CACV 110/2017 be struck out and dismissed accordingly.  We also make a costs order nisi that Mr Kwok shall pay the costs of Mr Leung in the appeal, including the costs of and incidental to the summons of 28 July 2017 and the hearing on 8 June 2018, such costs are to be taxed if not agreed.

Disposition of CACV 162/2017

61.  The intended judicial review in this case concerned a decision of the Permanent Secretary for Security of 10 June 2015 refusing to rescind a deportation order.  The Form 86 was issued on 19 February 2016.  Thus, the application was made outside the three-month period and an extension of time is needed.

62.  Chow J refused to grant any extension of time after hearing oral submissions.  His decision primarily rested on his conclusion that none of the proposed grounds of judicial review is reasonably arguable or has any reasonable prospect of success.

63.  The applicants applied for legal aid on 18 June 2015 and legal aid was granted on 15 and 21 September 2015 to each of them respectively.  Counsel was assigned on 25 September and 5 October 2015 respectively.  It took some time for the scope of legal aid to be clarified and the papers prepared by the lawyers. 

64.  Since the judge focused on the arguability of the proposed grounds of judicial review, the submissions of Mr Dykes also revolved around the same.

65.  Of the six grounds of appeal in the notice of appeal, Mr Dykes properly accepted that grounds 2, 3, 4 and 5 were issues already considered in previous judgments of this Court.  In light of BI v Director of Immigration [2016] 2 HKLRD 520 and Comilang Milagros Tescon v Director of Immigration [2018] 2 HKLRD 534, we do not see any basis for disturbing Chow J’s decision on those grounds.

66.  Ground 6 is based on the alleged discriminatory treatment between foreign nationals and Mainland residents holding OWP.  Chow J dealt with that ground of challenge at [55] to [59] of the judgment.  The challenge was rejected as not arguable because:

(a) There is no sufficient basis for such allegation to be advanced, see [56];

(b) Even assuming such a distinction was drawn, it only means that there was an improper fetter of discretion in respect of the OWP residents.  It does not follow that a similar fetter should be applied to people like the 1^st applicant, see [57];

(c) The present challenge is not in respect of the making of the deportation order, but on the refusal to rescind such order.  Any challenge to the deportation order is grossly out of time, see [58].  

67.  Mr Dykes submitted that there was nothing in Article 24 of the Basic Law which authorizes such distinction being drawn for the purpose of the exercise of the power under Section 20 of the Immigration Ordinance.

68.  With respect, Mr Dykes did not adequately address the judge’s reasons for rejection of the challenge. In particular, we cannot see any flaw in the holding that the present challenge is not against the making of the deportation order, but the refusal to rescind that order.

69.  We also agree with the judge that the reply by the Secretary for Security in the Legislative Council cannot form a sufficient basis for an allegation of discriminatory treatment. 

70.  In the exercise of the discretion under Section 20 of the Immigration Ordinance, we see nothing wrong for the Secretary to take account that the 1^st applicant had not been given any permission to enter Hong Kong (he entered illegally by boat on 5 February 2007, see para 6 of his Form 86).  He is obviously relevantly different from a person who had entered Hong Kong legally and been given permission to stay and remain pursuant to a OWP. 

71.  Ground 6 is, in our judgment, without merit.

72.  Coming back to Ground 1, it concerns the requirement of exceptionality.  Chow J addressed the same at [43] and [45] of the judgment.  He rejected the proposed challenge in this respect for the following reasons:

(a) There is nothing in the record to show that the Permanent Secretary adopted the approach that the family interests of the applicants would only be considered in exceptional cases.  On the contrary the family background and circumstances of the applicants had been fully considered, see [43];

(b) In any event, as held by Au J in Sabir Mohammed v Permanent Secretary for Security HCAL 114/2015, 27 January 2017, it is within the Permanent Secretary’s discretion to adopt an exceptionality approach in the exercise of the discretion under sections 54 and 55 of the Immigration Ordinance in the context of suspension or rescission of a deportation order, see [44].

73.  Mr Dykes did not advance any argument to dispute the judge’s finding under (a).  We have read the relevant minutes M5, exhibited as “MI-15” in the 1^st affirmation of the 1^st applicant[1]. We do not see any error in Chow J’s finding. 

74.  Hence, there is simply no factual foundation for any challenge based on the exceptionality approach to be advanced in this appeal.

75.  Mr Dykes focused on an attack on the legal reasoning in Sabir Mohammed v Permanent Secretary for Security, supra.  We are aware that that case is under appeal and no date has been fixed for that appeal to be heard.  Since it is unnecessary for us to express any view on that attack in the present case, we shall confine ourselves to this observation: the case relied upon by Mr Dykes, Singh v Secretary for Security (1996) 6 HKPLR 440, had been subject to comment by this Court in BI v Director of Immigration, supra at [111]. 

76.  In our judgment, Ground 1 could not assist the applicants.

77.  For these reasons, we do not see any prospect of success in this appeal.  We also do not see any other reasons in the interests of justice warranting the grant of leave to appeal.     

78.  We would not grant leave to appeal under Section 14AA.  The summons of 8 August 2017 is dismissed.  It also follows that the appeal in CACV 162/2017 should be struck out and dismissed accordingly.  We make an order in those terms.  We also make an order nisi that the applicants shall pay the costs of the putative respondent in the appeal, including the costs of and incidental to the summons on 8 August 2017 and the hearing on 8 June 2018, such costs are to be taxed if not agreed.