JULITA F. RAZA v. DIRECTOR OF IMMIGRATION

HCAL 101/2003

[2022] HKCFI 151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 101 OF 2003

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D E C I S I O N

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A.   Introduction

1.  These proceedings started as long ago as 25 September 2003, when the applicant filed her Notice of Application for Leave to Apply for Judicial Review.  The intended challenge was to the decision of the Director of Immigration (“Director”) made on 22 August 2003, refusing the Applicant’s application for verification of her eligibility for a Permanent Identity Card.

2.  The intended challenge raised, in effect, two different points being: (1) a constitutional challenge; and (2) a factual challenge.  The constitutional challenge related to section 2(4)(a)(vi) of the Immigration Ordinance Cap 115, which prevented the applicant (as a foreign domestic helper) from being treated as ordinarily resident in Hong Kong.  The factual challenge related to the finding that she had not taken Hong Kong as her place of permanent residence.

3.  On 26 September 2003, Hartmann J granted leave to apply for judicial review on the papers.  With the benefit of that grant of leave, the applicant filed her Notice of Originating Motion on 22 December 2003.

4.  However, on 17 May 2004, following argument, Hartmann J ordered that the application for judicial review be adjourned sine die with liberty to restore.  The purpose of the adjournment was to permit the applicant to lodge an appeal to the Registration of Persons Tribunal (“Tribunal”), on the basis that the applicant had a right of appeal to that Tribunal, and that the Tribunal was best placed to decide the factual issue and was not prohibited from itself dealing with the constitutional issue.  Costs were reserved.

5.  On the same day of the adjournment, namely 17 May 2004, the applicant applied for a Hong Kong Permanent Identity Card.  The application was refused.  Therefore, on 21 May 2004, the applicant appealed to the Tribunal.  By its decision dated 6 January 2006, the Tribunal dismissed the applicant’s appeal.

6.  Thereafter, according to the records kept by the Immigration Department, the applicant departed Hong Kong on 30 March 2006, and ceased to reside in Hong Kong for any purpose.  Although the Applicant entered Hong Kong as a short-stay visitor on 11 subsequent occasions, there is no record of her entry into Hong Kong after 20 September 2017.

7.  Since 2004, no further steps have been taken by the applicant in these proceedings.  Indeed, since 2006, no application has been made to restore the application for judicial review, despite the applicant’s occasional return to Hong Kong.

8.  Further, though the applicant had originally been represented by solicitors with the benefit of a Legal Aid Certificate dated 29 October 2003, that certificate was discharged on 14 December 2006.

9.  Now by summons dated 13 December 2021, the Director seeks orders that: (1) service of the summons on the applicant be dispensed with; (2) the application for judicial review be dismissed for want of prosecution and for lack of utility; (3) the costs of these proceedings, including the summons, be to with the Director; (4) the Applicant’s own costs be taxed in accordance with the Legal Aid Regulations.

10.  At this hearing, the Director has been represented by Mr Gilbert Mok, Government Counsel.  The applicant has understandably not appeared, and is not represented.  Though the summons suggests that the matter be heard in Chambers, I have directed it to be heard in Open Court.

B.   Service

11.  As already indicated, the applicant has since late 2006 no longer had the benefit of solicitors representing her with the grant of a Legal Aid Certificate.  I treat the solicitors as having come off the record.

12.  Further, as the last known address of the applicant in the Immigration Department’s records is that of the applicant’s last employer when she was employed as a foreign domestic helper, and the address was provided on 27 January 2006, I accept that the applicant would not be reached at that address.  As to any address in the Philippines, the only reference in the papers many years ago is to a particular municipality in a province, rather than to a particular detailed address.

13.  In the overall circumstances of this matter, including those circumstances which give rise to the application for dismissal for want of prosecution and lack of utility, I am satisfied in the exercise of my discretion that service of the summons on the applicant can appropriately be dispensed with.

C.   Dismissal

14.  The power of the Court to dismiss an action for want of prosecution is discretionary, and is derived from the Court’s inherent jurisdiction.  The inherent jurisdiction exists to avoid injustice, prevent abuse, preserve the dignity of the Court or to facilitate the administration of justice.  The ultimate question is to whether or not, in the circumstances of the particular case, it is just to strike out the proceedings, and any mechanistic approach in which one loses sight of the ‘bigger picture’ is to be eschewed: see Wing Fai Construction Co Ltd v Yip Kwong Robert (2011) 14 HKCFAR 935 at §80. 

15.  In the same case, at §75, Ma CJ identified that, though it is not appropriate to deal on a comprehensive basis with the many nuances that can arise in an application to strike out for want of prosecution, certain principles ought to be borne in mind in most cases.  In summary, amongst those principles are the following, that: (1) striking out is a remedy of last resort, appropriate only when it is plain and obvious to do so; (2) abuse of process of the court is the foundation for the exercise of the jurisdiction to strike out for the delay; (3) abuse can take many forms; (4) mere delay is not sufficient to justify an order to strike out, and delay amounting to abuse should be both inordinate and inexcusable; (5) on the other hand, simply because the delay is both inordinate and inexcusable is not enough to justify a striking out order, because there also has to be the element of abuse; (6) where abuse is clearly demonstrated, proceedings can be struck out even where prejudice to the defendant cannot be shown; (7) however, in the majority of applications to strike out for delay, the aspect of prejudice to the defendant will often be extremely relevant to the overall justice of the case; (8) the conduct of the parties may be relevant both to the critical question of abuse as well as to the overall justice of the case; (9) when considering applications to strike out for delay, the court will look to the position of the parties themselves but will also have regard to the wider considerations of the underlying objectives found in RHC Order 1A rule 1.

16.  In this case, Mr Mok submits that there has been inordinate and inexcusable delay, causing real prejudice, so that the case is one plainly and obviously for dismissal.

17.  As to delay, Mr Mok points to the fact that the applicant departed from Hong Kong on 30 March 2006, within three months after the Tribunal dismissed her appeal.  That is almost 16 years ago.  Further, despite her occasional return to Hong Kong on short visits, the applicant never applied to restore these proceedings.  Mr Mok submits, and I accept, the applicant clearly has no continuing intention to prosecute these proceedings.

18.  In my view, the delay is both inordinate and inexcusable, and in the overall context – which includes the point as to lack of utility (see below) – these proceedings can, at least at this point in time, be seen to be an abuse.  On that basis, I do not think I need additionally to find prejudice to the Director.

19.  Nevertheless, I accept that there has perhaps been some prejudice in the form identified by Mr Mok, namely that the Director has been put to the costs of these proceedings because the applicant failed first to appeal to the Tribunal before applying for judicial review.  Of course, that form of prejudice can be remedied by a costs order, and ordinarily in the context of the consideration of prejudice in the context of an application to strike out for want of prosecution, the type of prejudice primarily relevant would be prejudice which is not compensable by a costs order.

20.  In any event, I accept that the current proceedings fall to be dismissed because the constitutional challenge has been finally and conclusively determined in favour of the Director by the Court of Final Appeal in Vallejos v Commissioner of Registration (2013) 16 HKCFAR 45.  As Mr Mok submits, the finding implicit in Hartmann J’s grant of leave, that the constitutional issue was arguable, no longer holds good.

D.   Costs

21.  As to costs, in the overall circumstances and in the exercise my discretion, I would ordinarily see no reason why costs should not follow the event.  The intended constitutional challenge was ultimately decided, albeit in different proceedings, against the position of the applicant and in favour of the Director.  The intended factual challenge was determined against the applicant by the Tribunal.  The Applicant then left Hong Kong.  The present summons has been necessitated by the failure over many years of the applicant to take any steps to restore or withdraw her original intended challenge.

22.  However, I have considered whether there is any practical utility in making a costs order in favour of the Director in this case.  The applicant herself is no longer in Hong Kong, and is unlikely to return (unless for a short visit).  I acknowledge that the Legal Aid Certificate was in force at the time of the argument before Hartmann J in May 2004, that the Director was represented at that argument by leading Counsel, and that Hartmann J specifically reserved the costs of that hearing.  But I doubt that there is any practical benefit after so many years of ordering a process which would merely result in the transfer of public funds from one publicly funded body to another.  On the other hand, I accept that it may be necessary to tie off the loose end arising from the original grant of Legal Aid by ordering a taxation of the applicant’s own costs in accordance with the Legal Aid Regulations.

23.  In response to my expression of doubt, Mr Mok submits that, in light of the points I have already acknowledged above, there is no good reason to depart from the usual position that, in a substantive case where leave to apply for judicial review has already been granted, the respondent’s costs should follow the event of the dismissal of the application, and so be payable by the applicant.

24.  Ultimately, on balance, I am persuaded to make that order, but I decline to order a certificate for two Counsel (meaning only the costs of the leader would be permitted).  The applicant’s own costs will be taxed in accordance with the Legal Aid Regulations.