Comilang, Milagros Tecson and Another v. Director of Immigration

CACV 59/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 59 OF 2016

(ON APPEAL FROM HCAL NO 45 OF 2014)

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AND

CACV 60/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 60 OF 2016

(ON APPEAL FROM HCAL NO 56 OF 2014)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

INTRODUCTION

1.The Court will hear CACV 59/2016 and CACV 60/2016 on 10 July 2017 with 5 days reserved.  By a summons dated 26 May 2017 taken in each of the two appeals, the appellants apply for leave to adduce fresh evidence, namely, the 1^st Affirmation of Tong Thi Xuan, a senior paralegal of the firm of solicitors acting for the appellants, dated 19 May 2017, and the exhibits “TTX-1” and “TTX-2” thereto.  The respondent opposes the applications.

2.Pursuant to the Court’s directions, the applications are to be disposed of on paper without an oral hearing.  The parties have filed their respective written submissions, which we have duly considered.  We now hand down our judgment.

DISCUSSION

3.By way of fresh evidence, the appellants seek to adduce the chronology of events relating to the legal aid application process and the chronology of case preparation by the assigned lawyers (“the Chronologies”).  The appellants wish to use the Chronologies to make good their complaint that Au J erred in exercising his discretion to set aside the ex parte leave on the ground of substantial delay in bringing the judicial review proceedings for failing to refer to and assess the facts which were in fact before him in considering the adequacy of the explanation given in respect of the time taken to process the legal aid application and to prepare the judicial review applications.

4.The need to adduce the Chronologies can be seen from the 2^nd affirmation of Tong Thi Xuan filed on 26 May 2017 and §4.1(1) to (10) of the written submissions of Ms Li, SC, for the appellants dated 14 June 2017.  They boil down to one point, which is this.

5.Au J in §238(2)(a) of his judgment handed down on 12 January 2016 referred to BH v Director of Immigration [2015] 4 HKC 107, a judgment of Chow J’s handed down on 14 April 2015.  In BH v Director of Immigration, Chow J in §103 stated that an applicant who wishes to rely on the time to obtain legal aid as a ground for extension of time should provide a full chronology regarding his legal aid application which the judge expected to be verified or confirmed by the relevant legal aid officer. Since BH v Director of Immigration was handed down after the conclusion of the substantive hearing before Au J in December 2014, the appellants could not have anticipated that Au J’s “retrospective” expectation of having the Chronologies for use in the proceedings before him.  Hence the present applications.

6.It is a trite rule that an applicant who seeks to adduce fresh evidence on appeal must satisfy the three conditions in Ladd v Marshall [1954] 1 WLR 1489 :

(1)  the fresh evidence could not have been obtained at the proceedings below with reasonable diligence;

(2)  the fresh evidence would or might, if believed, have a very important effect on the mind of the court below; and

(3)  the fresh evidence is of a sort which inherently is not improbable.

7.In public law cases, the court may allow some flexibility in applying the rule where the interests of justice so require and may thus depart from a strict application of the rule in unusual and exceptional circumstances.  But the applicant must still satisfy the court that the circumstances are wholly exceptional, demonstrating a strong public interest, before the court may decide to use its wide discretion to depart from the rule : see Dr Kwok-Hay Kwong v The Medical Council of Hong Kong (No 2) [2007] 4 HKC 446.

8.We are unable to accept that the Chronologies could not have been made available before Au J with reasonable due diligence.  The observations by Chow J in BH v Director of Immigration were not new.  In Re Ho Mei Ling [2011] 6 HKC 1 at [108], the court already alluded to the need to account for the exercise of due diligence in legal aid application as part of the explanation for delay.  Chow J in fact referred to an earlier judgment of X v Torture Claims Appeal Board, HCAL 143/2013, unreported, 4 September 2014, which was clearly available when the hearing took place before Au J in December 2014, where Zervos J in §13 made exactly the same observations.  The appellants cannot possibly say that they were unaware of the need to provide the Chronologies until Chow J handed down his judgment in BH v Director of Immigration on 14 April 2015 or when Au J handed down his judgment on 12 January 2016.

9.Further, we are not satisfied that the appellants have demonstrated any unusual or exceptional circumstances to enable us to exercise our discretion to depart from the application of the rule in Ladd v Marshall.

CONCLUSION

10.We therefore dismiss the two summonses.

11.On costs, they should follow the event.  We therefore make an order nisi that the respondent shall have the costs, to be taxed if not agreed; and that the appellants’ own costs are to be taxed in accordance with the Legal Aid Regulations.

Ms Gladys Li, SC, and Mr P Y Lo, instructed by Daly & Associates, assigned by the Director of Legal Aid, for the 1^st & 2^nd Applicants (the 1^st & 2^nd Appellants) in CACV 59/2016 and the 1^st to 4^th Applicants (the 1^st to 4^th Appellants) in CACV 60/2016.

Mr Benjamin Yu, SC, Mr Abraham Chan, SC, and Mr Jonathan Chang, instructed by the Department of Justice, for the Respondent (Respondent) in CACV 59/2016 and CACV 60/2016.