Chu Woan-chyi, Theresa and Others v. Director of Immigration

CACV 331/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 331 OF 2003

(ON APPEAL FROM HCAL NO. 32 OF 2003)

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Coram: Hon Rogers VP and Le Pichon JA in Court

Date of Hearing: 1 September 2004

Date of Judgment: 1 September 2004

Date of Handing Down Reasons for Judgment: 7 September 2004

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.This is an application for leave to appeal to the Court of Final Appeal pursuant to section 23(1) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.

2.The matter before this court was whether leave should be given to bring judicial review proceedings. This court allowed the appeal on behalf of the 5th applicant and allowed the bringing of the proceedings on behalf of the 5th and 6th applicants on the basis that the application for leave was a filtering process, if not a sieving process.

3.On that basis this court considered that serious questions of fact and law should be left to be dealt with at the substantive hearing. The questions which were sought to be argued in the Court of Final Appeal must be viewed in the context that leave has already been given to the 1st to 4th applicants and there was no appeal, even to this court, against the grant of such leave. The questions which are now sought to be raised in part impinge upon the matters which will no doubt become relevant on the hearing of the 1st to 4th applicants' judicial review and certainly go further than the arguments which were raised on the appeal by the 5th applicant to this court.

4.On the appeal, this court took the view that there was a low threshold for applications for leave to bring judicial review proceedings and that questions of the type sought to be raised now should be decided on a full hearing of judicial review. The questions now sought to be raised are not questions which have been decided by this court when considering the more fundamental approach which should be adopted in applications for leave to bring judicial review proceedings.

5.Moreover, the questions sought to be argued require the establishment of facts and in particular those relating to the 1st to 4th applicants. This requires the evidence on both sides to be complete. In addition to that, as already noted, those applicants are not parties at this stage of the proceedings. Whereas anything said at the leave stage, can in normal circumstances, only be regarded as a provisional view and would not be final and binding except as to the result of the application, it would be inappropriate to decide issues which directly affect the rights of a party to the proceedings if that party is not in a position to have his rights fully and properly determined.

6.For these reasons I would dismiss this application.

Hon Le Pichon JA:

7.I agree.

Representation:

Mr Paul Harris, instructed by Messrs Ho, Tse, Wai & Partners, for the 5th & 6th Applicants/Respondents

Mr Daniel Fung, SC and Mr Johnny S L Mok, instructed by Department of Justice, for the Respondent/Applicant