THOONG COC DUONG AND OTHERS v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

IN THE COURT OF APPEAL

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JUDGMENT

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Litton V-P:

1. On Monday 9 December 1996, 34 applicants, former residents of Vietnam, took out, through their solicitors Messrs Pam Baker & Co., an application for leave to issue proceedings for judicial review.

2. The applicants sought to impeach (a) the decisions of the Director of Immigration refusing them permission to remain in Hong Kong as refugees and (b) the decisions of the Refugee Status Review Board confirming those decisions. Some of the decisions sought to be impeached go back to 1993. The application was determined by Yeung J on the same day without a hearing, as he since the application did not request a hearing. At the same time the judge made an order that there be a stay of the removal of the applicants from Hong Kong until the determination of the application for judicial review or until further order.

3. The Director now appeals on that part of Yeung J's order whereby he ordered that there be a stay of the removal order. The reason advanced for such relief is because 19 out of the 34 applicants are due to be repatriated to Vietnam on Friday, 13 December. The notice of appeal also goes on to impeach Yeung J's order in these terms: That his order for leave for judicial review proceedings be discharged if such discharge be necessary for the stay order to be set aside.

4. Whatever the latter means, it is quite clear from what counsel has just told us that the focus of this appeal is only upon the narrow basis that in any event the judge ought not to have granted a stay of the removal order: a position which, with respect to counsel, seems to me to be illogical. If it be right to give leave to start proceedings for judicial review in the circumstances of a case such as this, it would seem logical for the judge to order a stay. Therefore, upon this narrow basis of appeal - namely, whether or not the judge ought to have ordered the stay - I have no doubt whatever that he was right; it logically followed from the order he made.

5. The question then arises is to whether in this court, on this appeal, counsel for the Director can properly seek to impeach the judge's order granting leave. In this regard the case of WEA Records Ltd. v. Visions Channel 4 Ltd. and others [1983] 2 All ER 589 seems apposite. Where a High Court judge has made an ex parte order - and particularly in the circumstances of a case such as this where he did so without even a hearing - such an ex parte order is by definition provisional and is liable therefore to be reviewed either by the judge himself or, if it be necessary, by another High Court judge: if needs be, upon an ex parte application, on a really urgent matter.

6. To appeal against Yeung J's ex parte order must therefore require the most exceptional of circumstances. Counsel has not persuaded me that there are such circumstances. In so far as this notice of appeal seeks to appeal against the ex parte order granting leave, it verges upon an abuse of the process of this court.

7. Quite clearly the proper procedure is for the Director now to take out an urgent application in the High Court for a discharge of the order made by the judge on 9 December. For these reasons I would dismiss this appeal.

Bokhary JA:

8. Caught up in the logistical and other difficulties of this matter, counsel for the Director and the Board have come to the wrong place to argue the wrong point.

9. We send them away - without scolding them - so that they may, if they choose, go to the right place to argue the right point.

10. For those reasons, which have been more fully stated and better expressed by my Lord the Vice-President, I too would dismiss this appeal.

Godfrey JA:

11. The procedure described by Litton VP as "the proper procedure" is well described by the editor of the Hong Kong Supreme Court Practice, at para.3624, as the "more principled" approach; i.e., that if, as here, leave is granted ex parte to apply for a judicial review, then the Attorney-General, if he is of the view that leave should not have been granted, should consider whether to apply to have that leave set aside (see, e.g., In re Wong Tung Kin [1989] 1 HKLR 93); and if he decides he has proper grounds for doing so, he should, beyond doubt, so apply in the first instance by summons to the High Court and not by way of appeal to this court.

12. I agree with Litton VP and Bokhary JA that this appeal must be dismissed.