ATTORNEY GENERAL v. TRAN QUOC CUONG and Another

IN THE COURT OF APPEAL

1991, No. 87
(Civil)

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J U D G M E N T

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Penlington, J.A.:

1. This is an application by the Crown to strike out an appeal against a decision of Jones, J. delivered in May 1991, after some 12 days of trial, in which he refused an application for judicial review of actions taken by the Director of Immigration and officers of his department. The questions raised included the power to designate Stanley Prison as a place of detention for illegal immigrants, to transfer the applicants from the Whitehead Detention Centre following a search on 4th May 1990 and the inclusion of the names of the applicants on a list of persons to be then arrested. There was also a challenge to the right of the Director of Immigration to delegate his power to specify a place of detention. However the main point in issue was whether or not the Director of Immigration had the right to detain all illegal Vietnamese immigrants arriving in Hong Kong before any inquiry was made as to their individual particular circumstances.

2. These were complex and difficult matters which were fully argued by leading counsel, Miss Gladys Li, Q.C. on behalf of the applicants. In a long judgment, Jones, J. upheld the actions of the Director of Immigration. An appeal was filed against that decision but, having been set down for hearing in March 1992, that date was vacated by agreement, with liberty to restore. This was done because the Director of Legal Aid, who was funding the applications, was not entirely happy as to the grounds of appeal and wished to obtain further advice from other leading counsel, Mr. Anthony Neoh, Q.C. That advice was obtained and was not favourable as to the chances of a successful appeal. Accordingly the legal aid certificate was discharged. However Miss Li and her junior, Mr. Nigel Kat, who appeared on this matter before us today, suggested that a further opinion be obtained from London counsel. That was done and in September 1992 Mr. Stephen Sedley, Q.C. gave advice which was contrary to that of Mr. Neoh. At this time representations were being made by the applicants' solicitors to the United Nations High Commissioner for Refugees (UNHCR) with the intent of obtaining refugee status for the applicants.

3. On 22nd December 1992, a letter was written on behalf of the Attorney General to the applicants' solicitors asking them if they intended to proceed with the appeal. No reply was received. On 11th March 1993, again a letter was sent on behalf of the Attorney General to the solicitors again asking whether they intended to proceed with this matter. Again no reply was received and it was not until the 17th August 1994 that the Attorney General was advised that legal aid had been granted to continue with the appeal. A notice of change of solicitor (the third firm of solicitors to be engaged) and notice of intention to proceed were filed in November 1994.

4. There seems to be no dispute that the reason why there has been this extraordinary delay in prosecuting this appeal has been firstly the conflicting opinions of leading counsel but mainly the fact that representations were being made on behalf of the applicants to secure refugee status for them. There seems to be no dispute that, if such refugee status had been granted, the appeal would never have been proceeded with. We are therefore faced with the position that this appeal, listed to be heard in March 1992, against a decision of the High Court handed down in May 1991 will be heard, if this application does not succeed, some 4 years after the decision of Jones, J.

5. We have been referred to several decisions regarding the need for questions involving public law to be decided with expedition. It is the Crown's case, as put forward by Mr. William Marshall, Q.C., leading counsel for the Attorney General, that it has acted upon the decision of Jones, J. and regarded it as good law because the appeal was not pursued and many thousands of Vietnamese refugees have since been dealt with on the basis of that decision. An affidavit to that effect sworn by Mr. W.K. Yeung, a Senior Immigration Officer and filed in support of this application. Mr. Leung said reliance had been placed on the decision of Jones, J. in processing 16,244 Vietnamese immigrants up to December 1994.

6. That there is need for speed in applying for judicial review is supported by considerable authority. In O'Reilly v. Mackman (1983) 2 AC 237 Lord Diplock said at 281:

"Furthermore, as Order 53 was applied in practice, as soon as the application for leave had been made it provided a very speedy means, available in urgent cases within a matter of days rather than months, for determining whether a disputed decision was valid in law or not. A reduction of the period of suspense was also effected by the requirement that leave to apply for certiorari to quash a decision must be made within a limited period after the impugned decision was made, unless delay beyond that limited period was accounted for to the satisfaction of the judge. The period was six months under the pre-1977 Order 53; under the current Order 53 it is further reduced to three months."

7. In R. v. Stratford-on-Avon District Council ex parte Jackson (1985) 1 WLR 1319 the Court of Appeal was considering the question of extending time for an application for judicial review and at 1322, Ackner L.J. said, having referred to O.53 r.4(1):

"The essential requirement of the rule is that the application must be made 'promptly'. The fact that an application has been made within three months from the date when the grounds for the application first arose does not necessarily mean that it has been made promptly. Thus there may well be cases where a court may have to consider whether or not to extend the time for making the application, even though the application has been made within the three month period."

8. This question of delay was further considered in R. v. Dairy Produce Quota Tribunal ex parte Casewell (1989) 1 WLR 1089. There the Court of Appeal considered the question of delay in applying for judicial review of a decision relating to an application for a wholesale quota of milk. At 1094, Lloyd L.J. said:

"How has this muddle (for it is no less) come about? The explanation is to be found, as so often, in Professor Sir William Wade's Administrative Law, 6th ed., page 674. The original Order 53, by which I mean the order as remade in 1977, followed the language of the Law Commission Report No. 73, 1976 Remedies in Administrative Law, p.23 para.50:

'We recommend therefore that on an application for judicial review, except where a time limit for bringing of proceedings is fixed by statute, relief should not be refused by the court solely on the ground that there has been delay in making the application, unless the court considers that the granting of the relief would cause substantial prejudice or hardship to any person or would be detrimental to good administration.'"

9. It was the case for the Crown that the delay had been detrimental to good administration. At first instance, Popplewell, J. found that the granting of relief would be so detrimental. At 1099, Lloyd L.J. in considering this aspect said:

"I do not find it possible to define what is meant by detriment to good administration, or even to give any helpful examples. Mr. Gordon made submissions in relation to each word in turn. But I doubt if this assists. It is sufficient to say, first, that what the statute requires is detriment. Nothing less will suffice. Thus mere inconvenience is not enough. The foreseen consequence must be positive harm to good administration. Secondly, in determining whether the consequence would be harmful, one may look not only at the particular instance, but also at the effect of the particular instance on other potential applicants, and the consequences if their applications are successful. Thirdly, there must be affirmative evidence of detriment, or at least evidence on which detriment can be inferred. Provided these very obvious parameters are observed, it is best to leave the question of detriment to the good sense of the judge, as each new case arises."

10. It is the case for the Crown here that the same considerations apply. Reliance has been placed on the decision of Jones, J. over a lengthy period of time and it is submitted that it must be strongly detrimental to good administration if that decision is now, 4 years later, overturned.

11. In opposing the application, Mr. Nigel Kat for the applicants emphasised that the cases relied on by the Crown such as R. v. Dairy Produce Quota Tribunal and R. v. Stratford upon Avon District Council are concerned with delay in making the original application for leave. This is specifically provided for in Hong Kong by s.21K (6) and (7) of the Supreme Court Ordinance, Cap.4. It provides that there shall be a discretion to refuse to grant leave to apply if there has been undue delay in making the application. Here it is contended that the reason for the delay in prosecuting the appeal against the judgment of Jones, J. laid at the door of the Director of Legal Aid. And R. v. Stratford-on-Avon was authority for the proposition that "good reason" for a late application could be the delay in granting legal aid. With reference to the decision in R. v. Secretary of State for the Environment ex parte Hackney London Borough Council (1983) 1 WLR 524 Ackner L.J. said:

"We agree with Forbes J. that it is a perfectly illegitimate excuse for delay to be able to say that the delay is entirely due to the fact that it takes a certain time for a certificate to be obtained from the legal aid authorities and that despite all proper endeavours by the applicant and those advising her to obtain a legal aid certificate with the utmost urgency, there has been some difficulty about obtaining it through no fault of the applicant."

12. Mr. Kat contended that the essential issue to be decided here was whether the applicants had been guilty of inordinate and inexcusable delay in the prosecution of the appeal which is likely to have caused serious prejudice to the appellant. The complaint essentially was delay during the period September 1992 to March 1994. Mr. Kat concedes that that period is prima facie inordinate but it was not inexcusable. It was known to the Attorney General that in September 1992 the then solicitors for the respondents were taking active steps to obtain refugee status from the UNHCR. Nevertheless the Attorney General did not take the matter up again until late 1992. In March 1993 upon receiving the second inquiry from the Attorney General, the solicitors sent to the Director of Legal Aid Mr. Stephen Sedley's opinion and expressly sought in that letter that legal aid should be renewed. Thereafter the delay was due to the failure of the Director of Legal Aid to take action.

13. It is the case for the applicants that these are pure issues of law to be decided and that Jones, J.'s decision is so obviously wrong that it should not be allowed to remain in the Law Reports as representing the final decision on this matter. Furthermore, by Ordinance 52 of 1991, which was gazetted before Jones, J.'s decision, the Crown had acted to legitimise many initial detentions and transfers within the framework of s.13D of the Immigration Ordinance. The amendment did not encompass the position of these applicants. With reference to Mr. Leung's affidavit, Mr. Kat contended that if all these 16,244 people had been illegally detained, it was not right that a challenge should not now be brought before the Court as to that detention.

14. It was emphasised for the respondents that they speak no English or Chinese and have no means. They are entirely dependent upon their legal advisers, funded by the Director of Legal Aid. There was not the remotest possibility that they could conduct an appeal on complex matters of administrative law without legal assistance. They have had to fight every inch of the way to obtain legal aid and should not be thwarted at this stage. While it is true that the applicants were endeavouring to obtain refugee status, which would have resulted in their departure from Hong Kong, it was perfectly reasonable to delay the appeal because it would then become pointless so far as they were concerned. The Crown had taken no steps to strike out this appeal until the notice of intention to proceed had been filed. If there was a genuine risk of prejudice to the Crown or if there was a real threat to good administration, the application should have been brought on so as to have a decision as to whether Jones, J.'s judgment was correct. They had however chosen to enact retrospective legislation although, as was conceded by Mr. Kat, it exempted those involved in these particular proceedings from its effect.

15. Having considered the arguments put before us, I am satisfied that this Court, in exercise of its inherent jurisdiction, should strike out this appeal. While it is true that the Crown has to some extent legalised its position by the enactment of amending legislation to the Immigration Ordinance, this is an appeal against a decision published some 4 years ago. During a great deal of that period no action whatever was taken to prosecute the appeal and no reply was received to two letters asking what was the position. I do not see that there was any onus on the Attorney General to take action to then have the appeal struck out. There can be no doubt that in applications for a judicial review involving difficult matters of administration, not only must applications be made promptly they must thereafter be pursued with reasonable vigour. A complaint is made that the delay is the fault of the Director of Legal Aid. It must however be noted that the applicants themselves seem to have taken most steps between September 1992 and March 1994 to press for a legal aid to be granted, unlike the applicant in R. v. Secretary of State for the Environment. They must have been aware at this time that their appeal was pending but there is no suggestion that any pressure was applied by them to the Director of Legal Aid to get on with the prosecution of the appeal or even to find out what the position regarding legal aid was. There has in my view been clearly both inordinate and inexcusable delay in this matter. It should not be allowed to continue.

Bokhary, J.A.:

16. It is never in anybody's legitimate interest that litigation be unduly prolonged. And where, as here, public law considerations arise, the detriment to good administration inherent in such delay has to be borne in mind. "Good" administration, I would emphasize, does not mean "expedient" administration. It means administration which takes into account and balances everybody's legitimate interest.

17. Not all the delay here is inexcusable. But even limiting the delay to so much of it as is inexcusable, the delay is very great. And all things considered, it is plainly too great for this appeal to be left on foot any longer.

18. The appellants have had a day in court. They are not satisfied with the result. But there has been great inexcusable delay in their challenge or proposed challenge to that result. And now it must, justice demands in all the circumstances, end.

19. In my judgment, this appeal should be dismissed for want of prosecution. And I, too, would so order.

Sears, J.:

20. I agree.

21. In any case involving public law considerations, particularly in immigration matters, an applicant has to act promptly. The court of first instance when hearing applications for judicial review strives to find reasons to extend the time so that an applicant has a fair opportunity of ventilating his grievance. These two applicants have had their opportunity. It was a lengthy trial before Jones J and a long reasoned judgment was given. In my judgment, for the reasons given by my Lords this appeal has been delayed far too long and this application to strike out should succeed.

Penlington, J.A.:

22. The application by the Attorney General is accordingly granted and the appeal struck out. The Attorney General to have his costs to be taxed in accordance with the Legal Aid Regulations.

(Note : At the hearing of this application we were not referred to Judges Reference (No. 1) of 1994 regarding the award of costs to legally-aided defendants in criminal proceedings. If we had been we would not have made any award of costs.)