Read the full judgment text of CACV 110/2017 and CACV 162/2017 on BabelCite. This Court of Appeal judgment was delivered on 23 July 2018 before Cheung CJHC, Lam VP, Kwan JA.
Civil procedure – judicial review – application for extension of time – Order 53 Rule 4(1) of the Rules of the High Court – whether refusal of extension of time is a discrete decision from refusal of leave under Order 53 Rule 3 – whether appeal lies as of right or requires leave under Section 14AA of the High Court Ordinance – interlocutory appeal. Two related appeals concerning a common preliminary issue – when a judge refuses to grant an extension of time for an application for judicial review, does the applicant require leave to appeal under Section 14AA of the High Court Ordinance, or does Order 59 Rule 21(1)(g) permit an appeal as of right because the decision is treated as one refusing leave under Order 53 Rule 3. The Court of Appeal held that Order 53 Rule 4(1) has two limbs – a duty to apply promptly, and an additional requirement that applications beyond three months must show good reason for extension of time – and the decision on extension of time is a discrete step from the decision on leave under Rule 3. The court cannot proceed to consider a leave application made outside the three-month period without first addressing whether to extend time. Order 59 Rule 21(1)(g) exempts only refusals of leave under Order 53 Rule 3 from the Section 14AA leave requirement, and the refusal of extension of time, like the refusal under section 73(5) of the Legislative Council Ordinance, does not determine substantive rights and is interlocutory in nature. Leave to appeal is therefore required. Applying the multi-faceted assessment for extension of time under Re Thomas Lai and AW v Director of Immigration, the Court of Appeal found no reasonable prospect of success in either case. In CACV 110/2017, Mr Kwok's four-year delay in challenging the 2012 oath of the former Chief Executive was serious and unjustified, Au J had properly considered the NPCSC Interpretation of 2016, and the intended challenge lacked arguable merit. In CACV 162/2017, the applicants' challenges to the Permanent Secretary's refusal to rescind a deportation order – including the exceptionality approach, the alleged discriminatory treatment between foreign nationals and OWP holders, and grounds already considered in BI v Director of Immigration and Comilang Milagros Tescon v Director of Immigration – were not reasonably arguable. Both appeals struck out and dismissed; costs ordered against the unsuccessful applicants in each case, including costs of the summonses and the hearing, with a certificate for two counsel in CACV 110/2017.
Legal issues: Whether refusal of extension of time under Order 53 Rule 4 is appealable as of right or requires leave to appeal under Section 14AA · Whether leave to appeal should be granted in CACV 110/2017 · Whether leave to appeal should be granted in CACV 162/2017
Outcome: Both appeals struck out and dismissed. Leave to appeal under Section 14AA of the High Court Ordinance refused in both CACV 110/2017 and CACV 162/2017, with the Court holding that refusal of extension of time under Order 53 Rule 4 is an interlocutory decision requiring leave.
Cited by 114 cases · Cites 9 cases