LEE CHAU MOUtrading as CHAU MOU ENGINEERING & CO v SECRETARY FOR THE ENVIRONMENT,TRANSPORT AND WORKS

HCAL111/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.111 OF 2006

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BETWEEN

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Before : Hon Chu J in Court

Date of Hearing : 17 May 2007

Date of Judgment : 6 June 2007

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J U D G M E N T

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1.  In this application, the applicant seeks to quash the decision of the Secretary for the Environment, Transport and Works (“the Secretary”) made on 2 November 2005, removing the applicant from all categories in the List of Approved Contractors for Public Works on account of the applicant’s misconduct and pursuant to paragraph 5.2.3(a)(i) of the Contractor Management Handbook (Revision B).  The core issues in this application are whether the Secretary’s decision is amenable to judicial review, whether the Secretary had misapplied the Contractor Management Handbook and the decision is Wednesbury unreasonable and whether an extension of time for making the judicial review application should be granted.  

The facts

2.  The Environment, Transport and Works Bureau (“the Bureau”) maintained a List of Approved Contractors for Public Works (“the List”) that comprises contractors who are approved to carry out public works in one or more of the five categories specified in the List. Contractors within each category are further divided into Groups A, B or C according to the value of the contracts for which they are normally eligible to tender. 

3.  Contractors who are on the List are subject to the provisions contained in the Contractor Management Handbook (“the Handbook”) published and implemented by the Bureau. As set out in paragraph 1.1.1, the Handbook “consolidates and updates the existing guidelines and procedures pertaining to administration and monitoring of the performance of contractors and suppliers on [the List]”.  Revision B is the latest version of the Handbook and it came into effect on 1 July 2005.

4.  The applicant is a sole proprietor of Chau Mou Engineering & Co. 

5.  The applicant’s sole proprietorship was admitted on probation and confirmed as a contractor in Group A of the Buildings category of the List in May 1984 and May 1987 respectively.  The applicant’s sole proprietorship was also admitted on probation and confirmed as a contractor in Group A of the Waterworks category of the List in December 1985 and March 2005 respectively.

6.  Between 2001 and 2004, the applicant’s sole proprietorship was the contractor of several private renovation projects, namely, the Carlton Mansion project, Tai Hong Building project, Tin Wan project and Kellett Grove project.  In all these projects, R Hauser and Partners Limited (“R Hauser”) was appointed the consultant.  Dr Lai Kon Bun (“Dr Lai”) was an employee of R Hauser and was responsible for supervising these projects.

7.  On 11 May 2004, the applicant made a report to ICAC against Dr Lai. Dr Lai was eventually arrested and charged with eight charges of accepting an advantage and one charge of soliciting an advantage, contrary to sections 9(1)(a) and 12(1) of the Prevention of Bribery Ordinance, cap.201.  In June 2005, Dr Lai was tried in the District Court under case no. DCCC1090 of 2004.  He was convicted of one charge of accepting an advantage, but acquitted of the other seven charges, and sentenced to nine months imprisonment.

8.  The applicant was a key witness in the trial of Dr Lai. He gave evidence under immunity.

9.  The applicant’s evidence was that he became involved with Dr Lai in 2001 in connection with the Carlton Mansion project.  At Dr Lai’s request, the applicant paid him a kickback equivalent to 5% of the total value of the project so as to ensure that Dr Lai would accept the work quicker and the applicant would get his payment earlier.  Later, on Dr Lai’s introduction, the applicant obtained the Tai Hong Building project. Again at Dr Lai’s request, the applicant paid Dr Lai a 5% kickback.  In 2003, Dr Lai also introduced the applicant to another project and requested a payment equalled to 10% of the total project value. The applicant did not agree as he felt Dr Lai had requested too much. He was not awarded the contract.  Later in 2003, Dr Lai introduced the applicant to the Tin Wan project. At Dr Lai’s request for payment, the applicant adopted the previous practice and paid him 5% of the total contract value.

10.  Finally, Dr Lai introduced the applicant to the Kellett Grove project. Dr Lai asked for 20% of the total project value, which the applicant felt was excessive. The applicant was however evasive about the request in order not to jeopardise his bid for the contract. After he was awarded the contract and received the first payment, the applicant paid Dr Lai $50,000, which was much less than the $200,000 Dr Lai had asked for as an initial payment. Thereafter, the applicant experienced difficulties with obtaining payments under the project. In addition, Dr Lai was critical of the standard of the work performed by the plaintiff’s sole proprietorship and even suggested to the Incorporated Owners to replace it with another contractor.      

11.  Eventually on 11 May 2004, the applicant went to see Dr Lai at his office, during which Dr Lai asked to be paid $500,000 by 4:30pm that day. The applicant recorded their conversation on a MP3. After the meeting, he went to the ICAC to report Dr Lai. In the same afternoon, a controlled meeting was set up during which the applicant handed over $500,000 to Dr Lai, whereupon ICAC officers emerged and arrested Dr Lai.  

12.  It transpired during the applicant’s cross-examination that prior to May 2004, he had for some 11 years and on no less than eight occasions, had substantial experience of dealing with the ICAC, both as an accused, a suspect and as an ICAC witness.

13.  In her Reasons for Verdict, the trial judge took the view that in light of the variations between the applicant’s record of interview under caution and his witness statements and evidence in court, she could not be satisfied beyond reasonable doubt in relation to the first seven charges when there was no corroborative evidence. In respect of the 8^th charge, the trial judge held that there was additional corroborative evidence and she was satisfied beyond reasonable doubt that the $500,000 paid on 11 May 2004 was a bribe from the applicant to Dr Lai for the Kellett Grove project at the latter’s insistence. She therefore convicted Dr Lai of the charge.

14.  Having read from the newspaper about the trial in DCCC1090/2004, the Secretary contacted the ICAC for information.  In September 2005, the Secretary obtained the papers of the case, including the transcripts for the Reasons for Verdict.  On the basis of the applicant’s evidence at the trial, admitting payments of bribe to Dr Lai in connection with the various renovation projects, the Secretary considered that there was a case of misconduct under paragraph 5.2.3(a)(i) of the Handbook.  By letter dated 23 September 2005, the Secretary gave notice to the applicant of the intention to remove his sole proprietorship from all categories in the List on 14 October 2005 unless acceptable reasons for not doing so were presented to the Secretary before that date.

15.  By letter dated 12 October 2005 from the applicant’s then solicitors, a Counsel’s Submission on Reasons for Non-removal was presented to the Secretary. The Secretary was requested to defer the removal. By another letter of the same date, the applicant’s solicitors also, on a without prejudice basis, invited the Secretary to consider whether the applicant’s case may at most constitute “suspected misconduct” as defined in paragraph 5.2.5 of the Handbook.

16.  By a letter dated 14 October 2005, the Secretary agreed to defer the intended removal pending review of the submissions made on behalf of the applicant. 

17.  By letter dated 2 November 2005, the Secretary informed the applicant that, having considered the submissions made, she did not consider there was any valid argument that it was not a case of misconduct under the Handbook and that it would not be appropriate to treat misconduct, once established, as suspected misconduct.  The applicant was further informed that the decision stated in her letter of 23 September 2005 was to be upheld and the applicant would be removed from the List as from 7 November 2005. 

18.  The applicant’s then solicitors enquired by letter of the same date whether there was any appeal procedures or mechanisms.  The Secretary replied by letter dated 7 November 2005, stating that:

“The monitoring scheme set out in [the Handbook] is to ensure that only contractors of good integrity and having the necessary technical, management and financial capabilities to undertake the works are permitted to tender and to undertake government works. Our Bureau performs a purely commercial function in this regard. We are not aware of any statutory appeal procedures or mechanisms.”

19.  Meanwhile on 4 November 2005, one Derkon Consultant Limited wrote on behalf of the applicant to the Secretary urging a deferral of the removal and a three months suspension instead.  The Secretary replied by letter dated 9 November 2005, stating that there was no valid reasons justify deferring the removal.               

20.  By letter dated 9 November 2005, the applicant asked the Secretary to reconsider the case and to reinstate him to the List.  On the same day, a District Councillor also wrote on his behalf to urge that a chance be given to the applicant.  On 7 December 2005, the Secretary and the Bureau replied to these letters confirming the removal decision.

21.  Thereafter on 13 and 15 December 2005, the applicant wrote a statement and a supplemental statement to the Bureau seeking reconsideration of his case on the basis that he was unfairly treated, which was refuted by the Bureau by letter dated 10 January 2006.   

22.  The applicant submitted another supplemental statement dated 26 January 2006 and a petition to the Secretary dated 21 February 2006 seeking reinstatement.  It was mentioned in the petition that the ICAC investigation officer had assured him that no unreasonable threat was posed by his giving evidence unfavourable to himself in court.  This was followed by a letter dated 7 March 2006 from another firm of solicitors acting for the applicant stating that there was no evidence of the applicant bribing anyone and the applicant only made additional payments under duress to Dr Lai, who had held himself out as a director of R Hauser.

23.  On 9 June 2006, the Secretary replied to the applicant pointing out that the immunity only immuned him from criminal prosecution, but did not confer privilege in respect of appropriate actions of other government departments, and rejecting his suggestion that the ICAC officer had made the representation alleged. On the same day, the Secretary also replied to the applicant’s solicitors drawing their attention to the findings in the Reasons for Verdict and confirming the removal decision. The letter also mentioned that the applicant might apply for re-inclusion in the List after two years from the date of removal.

24.  Then on 13 July 2006, the applicant lodged a Petition to the Chief Executive.  By letter dated 27 July 2006, the applicant was informed there was no new ground justifying reinstatement and the removal decision was upheld.

25.  On 20 October 2006, the applicant filed the Form 86A applying for an order of certiorari to quash the Secretary’s decision made on 2 November 2005 and applying for leave to make the judicial review application out of time.  On 25 October 2006, the applicant was given leave to apply for judicial review with the application for extension of time being reserved to the substantive hearing.  The applicant filed the Notice of Motion on 6 November 2006.

Grounds for judicial review

26.  In the Form 86A, on which leave to apply for judicial review was granted, only one ground was stated. It is that the decision of the Secretary was unreasonable and irrational.  As elaborated in paragraphs 12 to 14, the applicant’s arguments are threefold. First, it was said that the purpose of granting immunity to the applicant would be lost if penalty would be imposed by another government department despite the immunity against prosecution. Second, the applicant argued that this was against public interest as it would discourage others from reporting corruption. Third, it was said that the penalty was manifestly excessive and too severe and the Secretary was said to have failed to consider a lesser penalty.

27.  In his written submission and at the hearing, Mr Hemmings who appeared for the applicant sought to raise an additional ground that the Secretary had misconstrued the meaning of misconduct as defined in paragraph 5.2.5 of the Handbook. This point had been touched upon in the Counsel’s Submission that was enclosed in the letter dated 12 October 2005 to the Secretary. Mr Hemmings applied for leave to argue the additional ground and to make corresponding amendments to the Form 86A by:

(1)    Adding after paragraph 15 the following:

“(C)  Error of law

16.  The Respondent erred in law in misconstruing the meaning of paragraph 5.2.5 of the Handbook and as a result wrongly classified the Applicant’s conduct as ‘misconduct’.”;

(2)   Amending paragraph 16 to read:

“16. 17. In all the circumstances of the case, it is not a decision that  could be open to a reasonable decision maker and/or it is a decision based on an error of law, and it is just and convenient for the Order of Certiorari to be made.”

(amendment underlined) 

28.  The Secretary opposed the application. The primary position of the Secretary is that the decision is not amenable to judicial review such that the proposed amendment is futile. As an alternative, Mr Man who appeared for the Secretary indicated that if the amendment were allowed, the Secretary would need to file further evidence to show that the removal decision could be supported by other provisions in the Handbook and that it would be futile to allow the judicial review. 

29.  Given that the amendment application and the judicial review application are intertwined, the decision on the amendment application is reserved to the conclusion and on the basis that if the applicant were given leave to rely on the additional ground, the Secretary would be afforded an opportunity to file further evidence to deal with it. 

Amenability of the decision to judicial review

30.   The first and primary issue to be resolved in this judicial review application is whether the Secretary’s decision is amenable to judicial review. If this issue is decided in the Secretary’s favour, it would have disposed of the entire judicial review application, including the application to amend the Form 86A.    

31.  In Ngo Kee Construction Co Ltd v. Hong Kong Housing Authority [2001] 1 HKC 493, the applicant sought to judicially review the Housing Authority’s decision to suspend it from tendering for all projects for 24 months.  Cheung J (as he then was) after reviewing the relevant authorities, held that judicial review did not apply to decisions of a public body where: (i) the decision was commercial in nature, such as the purchase of goods or services or a tendering process, so that the public body was acting like a private body; (ii) there was no statutory underpinning of the decision and the public body was left to decide on the substance and procedure of the decision-making process; and (iii) there was no allegation of fraud, corruption or bad faith. 

32.  In respect of the decision under challenge, Cheung J pointed out that although the Housing Authority was a public body set up by legislation, not every one of its decisions was amenable to judicial review. In particular, it was said that (at 506H-507B):

“… if, for example, the Housing Authority, in order to discharge its statutory function of providing low cost housing requires building contractors to carry out the construction work, and maintains a list of approved contractors who are entitled to bid for its work, the tendering process cannot be a matter of judicial review because of its commercial nature. Likewise the decision to suspend an approved contractor from tendering for contract is, in my view, also a commercial decision and is not subject to judicial review. If the failure to obtain a contract after tendering is not subject to judicial review, I fail to see how a decision to suspend the applicant from tendering would make him so entitled.”  

33.  In Lee Shing Yue Construction Co Ltd v. Director of Architectural Services & Another [2001] 1 HKLRD 715, 727F-728G, a judicial review application that turns on the amenability of decisions made under the monitoring system maintained by the then Works Bureau to judicial review, Hartmann J made the same point that not all decision of public authorities should be governed by public law principles. It was held that the formal source of a public authority’s power may sometimes determine whether the decision is amenable to judicial review, but where it is not determinative, then what must be examined is the function being exercised by that public authority. If it is a private function or a purely commercial decision, then it is a matter of private law.

34.  In that case, the applicant sought to challenge the decision of the Secretary of Works to suspend it from tendering for public works for six months on account of adverse performance reports made by the Architectural Services Department.  It was argued that the Secretary of Works and Director of Architectural Services Department, in making decisions under the monitoring system were, despite the presence of a contractual arrangement, performing a public function.  In support of the argument, the applicant pointed to the fact that the Works Bureau and its departments were part of the government and using taxpayers’ money to ensure the interests of the public. Hence, it was said that decisions on with whom they would or would not contract were decisions made in the public interest, yet affecting the rights and liabilities of individuals (such as the applicant) without affording them any redress.  It was further argued that the maintenance of an approved list of contractors was an administrative technique to regulate the commercial activities of a section of the public, which is analogous to a licensing system.        

35.  The applicant’s arguments were rejected by Hartmann J who held that on a true analysis, what the monitoring system maintained by the Works Bureau sought to do was no more than to secure the efficient discharge of contractors’ obligations within the parameters of individual commercial agreements (at 729C-G).

36.  In my view, the reasoning and analyses in these cases apply with full force to the present case. There is no statutory underpinning the List, the Handbook and in turn the decision of the Secretary in question.  The purpose of the List and the regulatory regime provided by the Handbook, as explained by the affirmation of Tong Sek Por filed on behalf of the Secretary, is to ensure that certain standards of financial capability, expertise, management and safety are maintained by the contractors carrying out government works.  The decision to permit or not to permit a contractor to be on the List is a purely commercial decision.  No doubt, there is an element of public interest in seeing that public funds are properly spent and public works are properly carried out.  But this is not determinative of the issue. Given that the Bureau is a government bureau and is responsible for, inter alia, public works, there is bound to be an element of public interest in decisions taken by the Secretary.  And it is plain that not all decisions of the Secretary or of the Bureau come within the public law. There is, as Mr Man submits, no relevant distinction between the Bureau and the Housing Authority or the then Works Bureau in the cases considered by Cheung and Hartmann JJ.        

37.  Mr Hemmings sought to distinguish the present case from the decisions in Ngo Kee Construction Co Ltd and Lee Shing Yue Construction Co Ltd on three bases. The first is that the Bureau is a government department and the public has an interest in ensuring the most appropriate contractor is selected for the public works. Secondly, it was argued that as a government department, the decision-making process of the Bureau must be subject to public scrutiny so as to ensure that decisions are properly taken. Thirdly, it was suggested that, as the List is available for public inspection, being on the list would be a strong indication as to ability or competence of the contractor in question, a matter that the public is entitled to know.  As discussed above, the first two points are not relevant distinctions.  As to the third point, the evidence before the court does not support the suggestion that the purpose of the List was to inform the public of the competence of the contractors on it.  There is also no evidence to demonstrate reliance on the List by the public or the construction industry.       

38.  Mr Hemmings also submitted that if the decision of the Secretary to remove the applicant from the List were not amenable to judicial review, the applicant would be left with no redress as it had no remedy in private law.  I agree with Mr Man that even if the applicant were to be left with no redress, that per se is not a reason for the public law to intervene.  In the context of a purely commercial decision, the matter falls to be governed by the private law. If there is no remedy under the private law, then it is not for the public law to supply a remedy in the absence of fraud, corruption or bad faith.

39.  I am of the view that the decision of the Secretary to remove the applicant from the List is a purely commercial decision. As such, it is not amenable to judicial review. This will be sufficient to dispose of the applicant’s application for amendment to the Form 86A and the judicial review application. However, for completeness sake, I would also deal briefly with the other issues.

Paragraph 5.2.5 of the Handbook

40.    The decision of the Secretary was taken on the basis of paragraph 5.2.3(a)(i) of the Handbook. Under paragraph 5.2.3, guidelines are given to heads of department on whether to recommend to the Bureau that a contractor on the List should be removed, suspended, downgraded or demoted. Specifically, paragraph 5.2.3(a)(i) provides that misconduct is one of the circumstances warranting removal from all categories in which the contractor is listed. 

41.  “Misconduct” is defined in paragraph 5.2.5 of the Handbook. It states:

“For the purpose of paragraphs 5.1.3(v), 5.2.3(a)(i), 5.2.3(a)(ii) and 5.2.3(c)(i), “misconduct” means any unlawful behaviour involving corruption or fraud or breach of faith whether or not the person charged with an offence is convicted for [sic] offence involving the unlawful behaviour but a conviction of a criminal offence shall be conclusive for the requirement of misconduct.  “Suspected misconduct” shall be construed accordingly but if the person is charged with any offence involving corruption, fraud or breach of faith, it shall be conclusive for the requirement of suspected misconduct.” 

42.  The Secretary’s case is that the applicant had admitted in his evidence given in Dr Lai’s trial that he had paid bribes to Dr Lai in connection with the various renovation projects, which is unlawful behaviour involving corruption and constitutes misconduct within the meaning of paragraph 5.2.5 of the Handbook.  On the basis of paragraph 5.2.3(a)(i), removal of the applicant from all categories in the List is warranted.

43.  The argument that the applicant seeks to advance in connection with paragraph 5.2.5 (on which the proposed amendment to the Form 86A is based) is that the paragraph only applies to a contractor who has been charged with an offence involving the unlawful behaviour in question. Accordingly, it was submitted that the applicant was wrongly classified as being guilty of “misconduct” as he was not charged with any offence, and the Secretary had no basis to rely on paragraph 5.2.3(a)(i) to remove him.

44.  I do not accept that the construction that the applicant seeks to place on paragraph 5.2.5 is correct.  On a plain reading of the paragraph, it provides generally that misconduct for the purposes of the Handbook means any unlawful behaviour involving corruption or fraud or breach of faith. The phrase “whether or not the person charged with an offence is convicted for [sic] offence involving the unlawful behaviour but a conviction of a criminal offence shall be conclusive for the requirement of misconduct” (emphasis added) serves to elaborate the general proposition.  What the phrase provides is that: (1) whether a lawful behaviour constitutes misconduct is not dependent on a conviction of an offence involving the unlawful behaviour, and (2) a conviction, however, will be conclusive proof of misconduct.  The phrase does not limit the generality of the proposition as to what constitutes misconduct.

45.  Further, reading the sentence in the context of the whole paragraph, it is plain that the construction proposed by the applicant does not make good sense.  Apart from defining “misconduct”, paragraph 5.2.5 also deals with the meaning of “suspected misconduct”.  Essentially, it provides that “ ‘suspected misconduct’ shall be construed accordingly”, and that the requirement of “suspected misconduct” is conclusively proved if the person is charged with any offence involving corruption, fraud or breach of faith. On the applicant’s construction, only a person charged with a criminal offence involving the unlawful behaviour will be caught by paragraph 5.2.5. If he is convicted, the paragraph provides that the requirement of “misconduct” is conclusively proved. If he is not convicted, the paragraph provides that by reason of his having been charged, it is conclusively proved that he is guilty of “suspected misconduct”. It this were indeed the true purport and intention of paragraph 5.2.5, then the paragraph could have simply stated that “suspected misconduct” means being charged with any offence involving corruption fraud or bad faith and “misconduct” means being convicted of such an offence.  The bulk of the wordings now appearing in the paragraph would be entirely redundant and superfluous.  First, the provisions with regard to conclusive proofs of “misconduct” and “suspected misconduct” would be wholly unnecessary.  Second, the statement that “‘suspected misconduct’ shall be construed accordingly” is entirely meaningless.                   

46.  In my view, there is no justification for putting such a clumsy construction on the paragraph.  The applicant’s argument that paragraph 5.2.5 has no application to him because he has not been charged with any offence of corruption so that there is no misconduct warranting a removal under paragraph 5.2.3(a)(i) of the Handbook is untenable. Therefore, even if the Secretary’s decision is amenable to judicial review, the application for leave to amend the Form 86A and to argue this point should be refused.

Wednesbury unreasonableness

47.  Independent of the challenge on the application of paragraphs 5.2.3(a)(i) and 5.2.5 of the Handbook, the applicant also argues that the Secretary’s decision is unreasonable or irrational for having taken an excessive view on the applicant’s conduct. In Mr Hemmings’ submission, the Secretary had classified the applicant’s conduct more severely than it should be.  Specifically, he relied on the fact that the bribes were solicited by Dr Lai and the applicant was very much a victim, that but for the applicant’s evidence, Dr Lai would not be convicted and the decision to remove the applicant’s sole proprietorship from the List, being a draconian measure, is too severe.        

48.  As a matter of principle, even if the Secretary’s decision is subject to principles of public law, the supervisory power of the court in judicial review proceedings should not be invoked unless the decision is shown to be so absurd or outrageous that no sensible person applying his mind to the matter could have come to the same conclusion. Harshness or severity of the decision by itself is not a ground for intervening with a decision if it is within the permissible range.

49.  On the facts of this case, the applicant is guilty of misconduct as defined by the Handbook and it is open to the Secretary to decide to remove his sole proprietorship from the List.  No doubt the removal decision is a severe one, but it cannot be said to be so severe as to be beyond any rational relationship to the seriousness of the applicant’s conduct and his personal background.  At the outset, it must be recognised that the Secretary, who has responsibilities for public works, should be concerned with the integrity of the contractors on the List. Although the payments were requested by Dr Lai, the applicant’s testimony reveals that he readily went along with the requests. Corrupt payments were made for no less than four projects and lasted for some three years.  As Mr Man pointed out, it would not be open to the applicant to suggest that he did not know what to do or how to make a report to the authority had he wanted to.  As disclosed in the criminal trial, the applicant had had a number of dealings with the ICAC prior to his dealings with Dr Lai. The evidence in this case also shows that the applicant had served as an auxillary police officer.  It would appear that it was because he thought Dr Lai’s demand had become excessive that he decided to report to the ICAC.

50.  The fact that Dr Lai’s conviction could not be secured without his testimony has to be viewed against the fact that the applicant had been granted immunity against criminal prosecution.  It should also be noted that the applicant had said in his affirmation in these proceedings that he would not have agreed to give evidence had he known he might be removed from the List.

51.  It is not correct for the applicant to suggest that he was the only victim of the payments and arrangements between Dr Lai and him.  The purposes associated with the payments inevitably mean that the applicant was enjoying undue advantages over the clients and his competitors.        

52.  In the circumstances, the Secretary is entitled to take a serious view of the matter and of the conduct of the applicant.  The removal decision is within a range of decisions open to the Secretary to take.  There is no basis for concluding that the decision is Wednesbury unreasonable or irrational.

Delay

53.  As the applicant is seeking to challenge the Secretary’s decision made on 2 November 2005, the application for judicial review, which was commenced on 20 October 2006, is clearly out of time.  Under Order 53 rule 4(1) of Rules of the High Court, application for leave to apply for judicial review is required to be made promptly and in any event within three months from the date when grounds for the application first arose.  

54.  Although the applicant intimated in his Form 86A that an extension of time is sought, he gave no explanation for the delay. There is no explanation in his supporting affirmation either.  In his submissions, Mr Hemmings suggested that it was because the applicant was trying to exhaust all available avenues by writing to the Secretary, the Bureau and petitioning to the Chief Executive that the application was not made timely.  As to the delay after receiving the reply to his petition to the Chief Executive, Mr Hemmings explained that this was as a result of erroneous advice of the applicant’s then solicitors that the three months time limit only ran from the date of the reply to his petition.

55.  These explanations should have been set out in the Form 86A and verified by affidavit.  As it stands, there is simply no evidence on the reasons for the delay.  That aside, wrong legal advice does not necessarily excuse the delay.

56.  In any event, given my conclusions on the merit of the judicial review application, it would be futile to grant the extension of time sought.         

Conclusion

57.  For the above reasons, the application to amend the Form 86A is refused. The application for judicial review is also dismissed.  Applying the normal rule of costs follow event, there is an order nisi that the applicant pays the respondent the costs of the application to be taxed if not agreed.

Mr John Hemmings and Mr Patrick Tam instructed by Messrs Andy Choi & Co for the applicant.

Mr Bernard Man instructed by Department of Justice for the respondent.