LAU FONG v. THE DIRECTOR OF IMMIGRATION

CACV 287/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 287 OF 2000

(ON APPEAL FROM HCAL NO. 128 OF 1999)

______________

______________

_______________

J U D G M E N T

_______________

1. In June 2000, Hartmann J dismissed the Applicant's application for judicial review relating to various decisions, made in the name of the Director of Immigration, refusing her permission to remain in Hong Kong, ordering her removal from Hong Kong and authorising her detention pending her removal from Hong Kong. On 28 July 2000, the Applicant served a notice of appeal on the Respondent and lodged it with the Registrar. The Registrar filed the notice of appeal and caused the appeal to be set down, but the Applicant's solicitors then failed to comply with Ord. 59 r. 5(4), which provides that, within 4 days of the Registrar causing the appeal to be set down, the appellant must give notice to that effect to all the parties on whom the notice of appeal was served. The Applicant's solicitors did not do that.

2. The summons which the Applicant's solicitors issued to put that right sought leave to lodge with the Registrar the notice of setting down and the documents specified in Ord. 59 r. 5 within 7 days. That was not the appropriate form of relief in the circumstances, since the notice of setting down was not to be served on the Registrar and the Applicant's solicitors had lodged the appropriate documents with the Registrar. What the Applicant's solicitors should have been asking for was an extension of time for giving notice to the Respondent that the appeal had been set down.

3. The reason why the Applicant's solicitors took no steps in the appeal since lodging the notice of appeal with the Registrar was because the Applicant needed legal aid to finance her appeal. Her application for legal aid was initially refused, and it was only granted following a successful appeal against the refusal. At that stage, the need to notify the Respondent that the appeal had been set down was overlooked, and the omission was only noticed a few weeks ago when the Applicant's solicitors' attempt to obtain a date for the hearing of the appeal was thwarted by the earlier failure to comply with Ord. 59 r. 5(4).

4. The uncertainty as to whether the Applicant would be granted legal aid did not justify the failure to comply with Ord. 59 r. 5(4). If the Applicant's solicitors wished, because of the uncertainty over legal aid, to put off the hearing of the appeal, all they needed to have done was to delay applying for a date for the hearing of the appeal. However, subject to one important consideration to which I shall return shortly, if no prejudice is caused to the Respondent by extending the Applicant's time for complying with Ord. 59 r. 5(4), I would readily extend the Applicant's time because (a) the Applicant would suffer an enormous sense of grievance if she was denied the opportunity of appealing simply because of her solicitor's failure to observe a procedural time limit, and (b) the issues which the appeal raises have an impact far beyond the rights of the Applicant alone.

5. In fact, no prejudice has been caused to the Respondent. It may be that the Respondent has been relying on Hartmann J's judgment in the present case to treat would-be immigrants in the same way as the Applicant, but he would have been doing that even if the Applicant's appeal had been proceeding normally.

6. The consideration which has caused me the greatest concern, and which prompted me to request further written submissions from the parties, was the Respondent's contention that the appeal was academic. If I had concluded that the appeal was academic, in the sense that its outcome could have had no effect on the Applicant's ultimate ability to visit or settle in Hong Kong, I would have refused to extend the Applicant's time for serving the notice that the appeal had been set down, because to do so would have served no useful purpose.

7. Following the dismissal of her application for judicial review, the Applicant returned to the Mainland. Thus, the removal order made against her is spent, as is the order authorising her detention pending her removal (because she was released on recognisance within a day or two of the removal order being made). Accordingly, the only decision which there is any point in her still trying to have quashed is the decision refusing her permission to land in Hong Kong. However, there is only any point in her still trying to have that decision quashed if that decision will have an impact on any attempt on her part to come to Hong Kong again in the future.

8. One of the grounds on which it was sought to challenge the decision refusing her permission to land was that the Applicant had been (and continues to be) a Hong Kong resident within the meaning of Art. 24 of the Basic Law. Not a Hong Kong permanent resident, be it noted, and entitled to a Hong Kong permanent identity card, but a Hong Kong resident. It is said that as a Hong Kong resident she had the right under Art. 31 of the Basic Law "to enter" Hong Kong. Thus, when she attempted to re-enter Hong Kong on 4 October 1999 and was refused permission to land, that refusal is said to have infringed the right accorded to her by Art. 31.

9. Hartmann J rejected this argument for a variety of reasons. It is unnecessary for me to spell them out here, because the principal issue which the appeal raises is whether Hartmann J was right to conclude that Hong Kong residents do not enjoy an unrestricted right to enter Hong Kong, and that they may only enter Hong Kong if permission to do so has been given to them by the Respondent. But what can be said is that if on the appeal it is held that such restrictions on the right of Hong Kong residents to enter Hong Kong as have been prescribed by law contravene the Basic Law, and if the decision refusing the Applicant permission to enter Hong Kong is quashed on the basis that there was no power to refuse her entry, that decision will obviously affect any future attempt by her to enter Hong Kong (as well as similar attempts by other Hong Kong residents to enter Hong Kong in the future). It therefore cannot be said that the appeal is academic.

10. Accordingly, I extend the Applicant's time for notifying the Respondent of the setting down of the appeal to 4.00 p.m. on 6 July 2001. The Applicant's summons concedes that costs of the application "be to the Respondent in any event", and according the order nisi which I make as to costs is that the Applicant must pay to the Respondent his costs of the application in any event. The Applicant and her solicitors, though, should not treat this judgment as any indication that the appeal has a reasonable chance of success. I have not addressed the merits of the appeal at all: I have merely concluded that it is not of academic interest only.

Remarks: