Fabio Arlyn Timogan and Others v. Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office

CACV 32/2020

[2020] HKCA 971

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 32 OF 2020

(ON APPEAL FROM HCAL 442/2018)

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BETWEEN

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Before: Hon Lam VP, Barma and Au JJA in Court

Date of Hearing: 12 October 2020

Date of Judgment: 27 November 2020

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.On 15 January 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant an extension of time to the applicants in HCAL 442/2018 to apply for judicial review against the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 6 July 2017.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 22 July 2016 and 18 May 2017 rejecting the applicants’ non-refoulement claim.

2.On 21 January 2020, the applicants filed a Notice of Appeal against the Judge’s decision. 

3.By a letter of 17 April 2020, the Registrar of Civil Appeals (“the RCA”) raised, amongst other things, a concern about the need to have solicitors to act for the 2^nd and 3^rd applicants by virtue of Order 80 Rule 2 in view of their status as minors.

4.On 1^st June 2020, the Court gave the following directions:

“ 1. The Court wishes to receive submissions concerning the claims of the 2^nd and 3^rd Applicants on the following issue:

(a) Whether a guardian ad litem should be appointed for the 2^nd and 3^rd Applicants and if so, who shall be appointed;

(b) Whether the guardian should act by solicitors;

(c) Whether leave to apply for judicial review should be granted on the basis that it is reasonably arguable that the Director of Immigration and the TCAB had failed to consider the claims of the 2^nd and 3^rd Applicants as separate claims properly.

2. The Court will appoint an amicus to assist. Notice will be given to the Applicants and the Director of Immigration [“Director”] as Putative Interested Party as soon as such amicus is appointed by the Registrar of Civil Appeals.

3. To facilitate the process, the Court directs the Director of Immigration to lodge and serve within 14 days a bundle of documents including all the Non-Refoulement Claim Forms and other documents filed by the Applicants with the Director and placed before the TCAB and the decisions of the Director and the decision of the TCAB…”

5.Steps were taken to have an amicus appointed.  The Registrar appointed Mr Jin Pao SC as amicus on 3 June 2020.  We are grateful for the assistance rendered by Mr Pao in the present appeal.  Mr Pao’s thorough submissions shed much light on how courts (and also the Director and the Board) should address non-refoulement claims by children.

6.The Director instructed Mr Enzo Chow to advance submissions in this appeal.  We are also grateful for Mr Chow’s assistance.  Though he represented the Director, Mr Chow had also been very fair towards the applicants in the conduct of this appeal.

7.After reading the written submissions of the 1^st Applicant, Mr Chow and Mr Pao, we directed a hearing be held.

Background

8.The 1^st Applicant is a national of the Philippines.  She came to Hong Kong in 2008 to work as a domestic helper.  Her last employment contract was terminated on 9 October 2010. She was permitted to stay as a visitor until 28 December 2010, however she did not depart Hong Kong within the required time.  On 15 February 2011 she surrendered herself to the Immigration Department for overstaying and was released on recognizance the same day.  She gave birth to the 2^nd Applicant in May 2011 and the 3^rd Applicant in January 2015 in Hong Kong.  They were children of the 1^st Applicant and another non-refoulement claimant (whom she met in Hong Kong).  Though they had undergone a marriage ceremony in June 2010, the 1^st Applicant had been married to a Filipino in the Philippines since 1997 and there had not been any divorce to dissolve that earlier marriage.  Thus, in the absence of any court order made under Section 3 of the Guardianship of Minors Ordinance Cap 13, the father does not have any custody of the children.

9.The 2^nd and 3^rd Applicants do not have right of abode in Hong Kong.  By two care and protection orders made by a magistrate on 7 February 2020, they were placed under the care of International Social Service Hong Kong Branch under supervision of a Social Welfare Officer for a period of 12 months. The orders did not affect the custody of the children.  According to the law, their custody remains with their mother, viz the 1^st Applicant.

10.The 1^st Applicant lodged a non-refoulement claim for herself on 5 January 2015 and for the 2^nd and 3^rd Applicants on 5 September 2015.  Whilst they were legally represented before the Director, there was no legal representation for them after that.  In the proceedings before the Board, the 1^st Applicant acted for the 2^nd and 3^rd Applicants.  She also did so in the Court of First Instance notwithstanding the requirement under Order 80 Rule 2.

11.The Applicants’ claim was based on the fear that, if they returned to the Philippines, they would be harmed or even killed by the 1^st Applicant’s Filipino husband because he was abusive and had threatened her in respect of her having children with another man.  Her Catholic family in the Philippines disapproved of her relationship with the other non-refoulement claimant and her conversion to Islam.  The factual background was succinctly summarized by the Judge in [2] – [4] of the Form CALL-1 ([2020] HKCFI 79).

12.By two notices of decision dated 22 July 2016 and 18 May 2017, the Director assessed the Applicants’ claim on all applicable grounds and determined it against them.  The former covered BOR 3 risk[1], persecution risk[2], and torture risk[3], and the latter BOR 2 risk[4].

13.The Applicants lodged an appeal/petition to the Board against the Director’s decisions.  An oral hearing was held on 18 May 2017, during which the 1^st Applicant gave evidence.  After hearing the 1^st Applicant, the Board found that the 1^st Applicant had not received any threats from her Filipino husband since 2011.  Nor had she received any threats from her family.  The Board also considered that there is no reason why the Applicants could not safely relocate to Manila where the 1^st Applicant had previously worked.  The Board dismissed the Applicants’ appeal/petition on 6 July 2017 on all the applicable grounds.

Decisions of the court below

14.On 11 September 2017, the 1^st Applicant sought leave, for herself only, in HCAL 608/2017 to apply for judicial review against the Board’s decision.  The Form 86 and affirmation in support did not raise any ground for seeking relief.

15.Following consideration of the documents only, on 12 March 2018 Wong J refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [9] of the Form CALL-1 ([2018] HKCFI 525, HCAL 608/2017) as follows:

“ 9. I have perused the Decision of the Director (including the first Decision of the Director which the Court obtained on its own initiative) and the Adjudicator ... I do not find a reasonably arguable case exists. The applicant had been given sufficient opportunity to pursue her claim. The primary basis of the claim was death threat, arising from domestic matters, by her first husband who has all along been living in the Philippines. There was no specific criticism on fairness of the proceedings. It is apparent that both the Adjudicator and the Director had applied the law correctly. Their respective assessment on the applicable grounds was based on evidence and relevant COI. Their respective conclusion was sound and reasonable. Both were of the view that internal relocation will be feasible, I do not find flaw in the consideration.”

16.The 1^st Applicant did not appeal against Wong J’s decision. 

17.On 19 March 2018, the 1^st Applicant sought leave, out of time, in HCAL 442/2018 to apply for judicial review against the Board’s decision.  This time the application was brought not only for herself but also the 2^nd and 3^rd Applicants.  The Form 86 did not contain any ground for seeking relief.  In the affirmation in support of the leave application dated 19 March 2018, the 1^st Applicant did not disclose she had previously applied for leave unsuccessfully in HCAL 608/2017.  She advanced the following eight grounds for judicial review (as summarized at [11] of the Form CALL-1 ([2020] HKCFI 79)):

(1) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of their claim;

(2) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of their claim;

(3) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in the Philippines;

(4) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in the Philippines and misdirected himself as to the extended meaning of state protection;

(5) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicants;

(7) procedural impropriety / unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(8) procedural impropriety / unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicants resulting in unfair procedure.

18.An oral hearing was held on 19 September 2019 before the Judge.  After summarizing the background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to extend time to apply for leave.  The reasons for refusal were set out in [12] – [20] of the Form CALL-1 ([2020] HKCFI 79) as follows:

“ 12. For A1 clearly the principle of res judicata applies to her case, and it is an abuse of process for her to re-litigate her case by bringing a second judicial review in respect of the same decision of the Board after she failed to obtain leave from the Court in HCAL 608/2017 which had found no reasonably arguable case to challenge the decision.

13. As for A2 and A3, even putting aside for the time being that their case relies entirely on A1’s, they are seriously out of time with their intended application, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

14. As the last day of the three-month period for them to file their Form 86 fell on 6 October 2017, they were therefore more than five months late with their application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: see Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.

15. In the Applicants’ case, a delay of more than five months must be considered as substantial or excessive, for which A1 did not provide any explanation other than her claim of being ignorant of the rules which of course cannot be accepted as any valid reason for their non-compliance.

16. As for the merit of the intended application, their proposed grounds as stated above are all just broad and vague assertions containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to their case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in their case, or in what way was the legal representation from their assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the Applicants, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified with sufficient particularity, I do not find any reasonably arguable basis to challenge the finding of the Board.

17. As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicants, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

18. The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of the Philippines, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

19. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicants’ claim.

20. For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and in the absence of any good reason for their delay, I refuse to extend time and accordingly refuse their leave application.”

Notice of Appeal

19.On 21 January 2020, the Applicants filed their Notice of Appeal against the Judge’s decision, in which their stated grounds of appeal are that the Judge’s “judgment was made unreasonably and without the proper inquiry of the COI and current situation of my country.” 

20.However, there were no particulars or elaboration in the Notice of Appeal or in the Applicants’ submissions of 7 May 2020 as to how the Judge’s decision was unreasonable or made without proper inquiry of country of origin conditions.

21.The 1^st Applicant lodged written submissions on 7 May 2020.  In those submissions, she simply reiterated the predicament of herself and the two children.  She did not explain why she started a second application for judicial review instead of appealing against the decision of Wong J in HCAL 608/2017.

Discussion

22.The appeal is an appeal against the Judge’s refusal to extend time.  The Judge set out the correct approach in assessing if time should be extended at [14] of the Form CALL-1.

23.Further, the Judge also analysed the merit of the intended judicial review application at [16] to [19] of the Form CALL-1.  The Applicants did not in their Notice of Appeal or in their submissions provide any particulars on how the Judge’s decision had erred in law or wrong in the assessment of merit.  It is self-evident from the Board’s decision[5] that up-to-date COI were taken into account. General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

24.Having considered the materials before us, subject to what we shall say in respect of the 2^nd and 3^rd Applicants, we are of the view that the Judge’s observations are fully justified. 

25.In Khan Kamran v Torture Claims Appeal Board, [2020] HKCA 380, the Court of Appeal held that it is an abuse of process for an Applicant to file a second application seeking judicial review in respect of the same Board decision and it was a breach of the duty of full and frank disclosure to make such application without stating that there had been a previous unsuccessful application for leave for judicial review of the same decision.  Such application is liable to be struck out.  It was further held that it would be appropriate to strike out an appeal against such decision as an abuse of process in such circumstances.

26.In the present case, the 1^st Applicant filed two applications for leave for judicial review in respect of the same Board decision.  The second application was filed shortly after the dismissal of the first one.  The Judge struck out and dismissed the second application. 

27.The 1^st Applicant did not refer to the first application in the Form 86 or affirmation in support for the second application.  Like the Applicant in Khan Kamran, the Applicant had acted in breach of her duty of full and frank disclosure.

28.It is well settled that it is an abuse of process for the Applicant to re-litigate her case by bringing a second judicial review in respect of the same Board decision, see Bepary Shahealom v Torture Claims Appeal Board [2018] HKCA 763 at [16]; Re Mamun Mohammad Tuhin Al [2018] HKCA 442 at [13]; Sujan Gazi v Torture Claims Appeal Board [2018] HKCA 519 at [4.1]; and Begum Khadija v Torture Claims Appeal Board [2018] HKCA 571 at [22].

29.The Judge has applied the relevant legal principle correctly in holding that the 1^st Applicant’s application was an abuse of process and should be dismissed.   

30.Accordingly, the 1^st Applicant’s appeal should be struck out and dismissed.

31.The 2^nd and 3^rd Applicants were not parties to the first judicial review application in HCAL 608/2017, thus their applications in HCAL 442/2018 cannot be regarded as an abuse of process.  But their applications were made more than 8 months after the Board’s decision.  There was no explanation why their cases were not included in the first application for judicial review by the 1^st Applicant in HCAL 608/2017.

32.At the same time, we must bear in mind that the 2^nd and 3^rd Applicants were minors and they obviously could not conduct legal proceedings by themselves.

33.Whilst it may be said that the basis of the 2^nd and 3^rd Applicants’ non-refoulement claims depend a great deal on the sustainability of the claim of the 1^st Applicant and no flaw can be found in the Judge’s analysis on the merit of such claim, we should consider if the claims of the children had been properly assessed.

34.In our judgment, the authorities[6] cited by Mr Pao support the following propositions:

(a) Non-refoulement claims by children are separate claims from similar claims advanced by their parents.  In principle, the decision-makers should consider each claim by reference to the personal circumstances of each claimant;

(b) Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately.  It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;

(c) Ill-treatment which may not rise to the level of persecution in the case of an adult may do so in the case of child[7].

35.Propositions (b) and (c) flows logically from proposition (a).  Proposition (a) is supported by the following observations of the Court of Final Appeal in Gutierrez v Commissioner of Registration (2014) 17 HKCFAR 518 at [49]:

“ As noted above, the Court of Appeal rejected the Tribunal’s conclusion that the appellant’s situation was necessarily the same as his mother’s, so that her inability to meet the permanence requirement meant that he was in the same position. And, as just pointed out, the Court of Appeal stressed that ascertaining whether the permanence requirement was satisfied involved a fact-specific inquiry where all relevant circumstances had to be considered. Their Lordships were clearly right to hold that the appellant’s case has to be considered individually in the light of all relevant circumstances. But that, of course, does not mean that the situation of his mother is irrelevant or should not be taken into account.”

36.That was said in the context of a child’s claim for permanent residence and the nature of inquiry is different from a claim for non-refoulement.  However, we are of the view that the underlying rationale for individual consideration is equally applicable.

37.In the present case, though a barrister was assigned by the Duty Lawyer Scheme to represent the mother as well as the two children in the presentation of their case to the Director, they had no legal representation at the hearing before the Board on 18 May 2017.

38.In the Board’s Decision, whilst it was correctly stated in paragraph 1 that the appellants were the mother and the two children, the Adjudicator did not address the position of the children separately.  Instead, the Adjudicator adopted the reference to the appellant as including reference to the two children unless the context otherwise required.

39.In the summary of the claim at paragraphs 8 to 13, the Adjudicator focused on the case of the mother. As the mother was the only one who gave evidence before the Board, it is understandable that the assessment of credibility at paragraphs 26 to 36 of the Board’s Decision was related to the mother’s case.  The finding of the Adjudicator was that her claim of facing death threats from the husband in the Philippines was entirely false.

40.After making the factual finding, the Adjudicator turned to the assessment of risk.  The key basis for the assessment was set out at paragraph 38 of the Board’s Decision:

“ In both versions of the appellant’s evidence, her relationship with her first partner lasted only from 1997 until 2002 … Furthermore, she has either had no contact with him of any kind since 2010 or 2011. Crucially, on the evidence as I have found it to be, she has received no threats from him of any kind and has had no contact with him at all for at least the last six or seven years. Her first marriage clearly effectively broke down some fourteen years ago and the appellant currently knows nothing about her first husband, has no knowledge of his whereabouts or of what he is doing and she has received no threats of any kind from him or from any member of her immediate family.”

41.The Adjudicator then concluded that the suggestion of any risk to the mother or to the children was far-fetched and fanciful (paragraph 39) and there was absolutely no evidence of any kind to suggest any reason why the first husband either could or would wish to pursue the mother or the children in Manila (paragraph 40).

42.At paragraphs 41 to 45, the Adjudicator considered the issue of internal relocation.  She specifically alluded to the health of the children at paragraph 41 and the lack of reason to believe that they would be separated from their father if they were returned to the Philippines (paragraph 42).  She also specifically referred to the prospect of accommodation and education for the children in Manila at paragraph 45.  Thus, she had given due consideration to the position of the children before coming to the conclusion that internal relocation to Manila is viable.

43.On a fair reading of the Board’s Decision, notwithstanding that the Adjudicator did not discuss the case of the children under a separate section, it is clear that she had given due consideration to their claims put forward before the Board.  The Adjudicator did not reject their claims simply because she rejected the mother’s claim.

44.It should be noted that in terms of the children’s case on risk of harm as presented in their respective Non-refoulement Claim Form with the assistance of their lawyer before the Director was based on the alleged threat from the first husband of their mother and nothing else.

45.This brings us to the consideration of the lack of legal representation for the children before the Board.  In Hong Kong, all non-refoulement claimants have access to legal assistance by the Duty Lawyer Scheme at the first tier assessment of their claims by the Director.  Though it has been well settled in Hong Kong that the lack of legal representation for an adult claimant at the second-tier Board hearing is not, per se, a ground for holding that the proceedings were unfair, different considerations apply to cases involving children claimants.

46.Children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented before the Board or to make meaningful submissions on their own behalf.

47.Mr Pao helpfully referred us to the English practice (in the Tribunals) adopted in R (on the application of JS and Others) v Secretary of State for the Home Department [2019] UKUT 64 (IAC).  For claimants below 12 years old, it was held by Lane J that a litigation friend has to be appointed.  For those between 12 and 16, it was held that the matter should be decided on a case by case basis.

48.The Tribunal system in the United Kingdom is more formal than the Appeal Board system in Hong Kong.  For our purposes, we would examine the matter by reference to procedural fairness. Viewed in that light, the appointment of a litigation friend (or, less formally in the setting of a Board hearing, treating the parent as representing a child in advancing a claim) may not be sufficient to meet the high standard of fairness in proceedings of this nature.

49.When one is dealing with children claimants of tender age, serious consideration should be given to have a lawyer assigned by the Duty Lawyer Scheme to represent the children in the Board hearing notwithstanding the rejection of the claims by the Director. Though counsel have made submissions on appointment of litigation friend, we have not directed them to address us on the question of legal representation at the Board hearing. 

50.In the circumstances, we would confine our decision concerning legal representation to the facts of the present case.

51.In the bundle of documents placed before us on behalf of the Director, we note that two letters were included in the papers submitted to the Board (one for each child) stating that the children were stateless persons and it would be cruel and inhuman to deport them to a country where they have no nationality.  It was also stated in the letters that as the children were not citizens of the country they would suffer discrimination and cruel treatment.

52.No further particulars were given and the mother did not appear to have pressed those points before the Board.  At paragraph 27 of the Board’s Decision, the Adjudicator referred to the mother’s evidence that the children have Filipino nationality.

53.Whilst there may be nothing in it, we are left with a doubt if the full strength of the children’s claims had been presented to the Board.  We take the view that it is reasonably arguable that in the present circumstances the children should have legal representation before the Board to satisfy the high standard of fairness.  Lawyer acting for the children should specifically consider if there are child-specific risk of harm (such as possible risk of exploitation) which are relevant to their personal circumstances that should be canvassed before the Board.  We make it clear that we are not suggesting that such risks actually exist, but that it should be considered whether or not they may arise in the circumstances of the case.

54.We would send a copy of this judgment to the administrator of the Duty Lawyer Scheme to remind those acting for children claimants to give careful consideration to any potential child-specific risk when they present non-refoulement claims on their behalf.

55.We enquired with Mr Chow at the hearing if the Director was agreeable to have the children’s claims reconsidered by the Board if this Court were to allow the appeal by them.  After taking instructions, Mr Chow on behalf of the Director very fairly agreed to such a course.

56.For these reasons, we would dismiss the appeal of the 1^st Applicant (the mother) but allow the appeal of the 2^nd and 3^rd Applicants (the children).  With the consent of the Director, in addition to the grant of leave to the 2^nd and 3^rd Applicants to apply for judicial review, we would further proceed on the agreed basis that the substantive judicial review was before us and quash the decision of the Board in respect of the claims of the 2^nd and 3^rd Applicants.  We would also issue a mandamus to direct the Board to reconsider the claims of the 2^nd and 3^rd Applicants with legal representation to be provided for them at the hearing before the Board.

57.It follows from our above analysis that application for judicial review by a child claimant should proceed in accordance with the regime under Order 80 rule 2 with the appointment of next friend and acting by a solicitor (unless the Official Solicitor is appointed as next friend).  We are aware that in the past there had been cases[8] where the court chose to proceed with an appeal despite the failure to observe the rule (treating the same as an irregularity).  However, we do not think it right to adopt such approach as the norm.

58.In the context of non-refoulement claims, in the absence of legal aid for the claimants (so that the parent as next friend can act by solicitor), the Official Solicitor would have to play a greater role.  Having said this, we would leave open the question as to whether the Official Solicitor is obliged to act even if she is of the view that a child’s claim has no merit.  This Court is not in a position to decide that question without hearing the Official Solicitor.

59.Last but not least, we wish to express our gratitude to Mr Pao and Mr Chow for their assistance in this matter.

The 1^st applicant appearing in person

The 2^nd applicant acting in person, absent

The 3^rd applicant acting in person, absent

Mr Enzo WH Chow, instructed by the Department of Justice, for the putative interested party

Mr Jin Pao SC as amicus curiae