Epoch Group Ltd v. Director of Immigration

HCMP 52 /2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 52 OF 2011

(ON AN INTENDED APPEAL FROM HCAL NO. 43 OF 2010)

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BETWEEN

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Before: Hon Le Pichon and Kwan JJA in Court

Date of Hearing: 24 February 2011

Date of Judgment: 24 February 2011

Date of Handing Down Reasons for Judgment: 1 March 2011

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REASONS FOR JUDGMENT

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Hon Le Pichon JA:

1.This was a renewed application by the applicant for leave to appeal following the refusal of leave by Rogers VP on 5 January 2011 to appeal an interlocutory judgment of A Cheung J dated 10 November 2010. It is relevant to note that the substantive hearing to which the interlocutory matter relates has already taken place although the outcome is not yet known. At the conclusion of the hearing leave was refused. My reasons appear below.

2.The judge refused leave to appeal on 24 November 2010 on the grounds that the proposed appeal was not reasonably arguable and that the proceedings had reached a very advanced stage with the substantive hearing taking place in late January.  He considered that as a matter of case management, it was wholly undesirable to have an interlocutory appeal at that late stage.

3.The underlying proceedings were judicial review proceedings challenging the respondent’s refusal to grant employment visa applications to six individuals.  The judge refused the applicant’s application for inspection of the un-redacted version of 18 documents exhibited to an affidavit of Chan Shiu Keung Ellis and for leave to serve interrogatories.  The applicant no longer pursues the appeal in respect of the decision concerning interrogatories.

4.At the hearing in October 2010, with the agreement of the parties, the court was supplied with un-redacted copies of the internal file minutes.  After viewing the un-redacted copies, the judge came to the prima facie view that the redacted parts were relevant and that inspection should be permitted, subject to any claim for public interest immunity.  As the judge explained, the abbreviations used were unfamiliar to the court and the minutes were composed in a bureaucratic style intended for those familiar with the relevant systems to which they related.  Those matters made it difficult for the court to have a complete understanding of the contents of the redacted parts.  As a precautionary measure, the decision on relevance was deferred pending the making of a public interest immunity claim.

5.At the adjourned hearing, a certificate signed by the Chief Secretary for Administration was made available to the court and to the applicant but a supplementary certificate was only made available to the court.  The matters causing difficulties in understanding the minutes were explained in the supplementary certificate.  In the light of the explanation given which enabled the judge to have a proper understanding of the redacted parts, he came to the view that they “contain matters that are quite irrelevant to the issues raised and the grounds relied on in the Form 86”.  The judge further concluded that it was unnecessary to seek the assistance of a special advocate.

6.The issue is one of relevance.  Having read the documents and the supplementary certificate, the judge considered the redacted parts to be irrelevant to the applicant’s claim.  I have already made reference to the reasons for his apparent change of mind.  They are clear and cogent.

7.It is a matter for the judge whether or not he needed assistance from a special advocate to assist him in deciding the relevance of the redacted material.  That must depend on the circumstances of the particular case.  To warrant a grant of leave to appeal, the applicant must show that the judge had exercised his discretion wrongly in refusing to appoint a special advocate.

8.While accepting that the appointment of a special advocate is a most exceptional measure, Mr Dykes SC (who appeared for the applicant) submitted that because the supplementary certificate was only seen by the judge, a special advocate should have been appointed to ensure fair process.  That submission does not sit comfortably with the principles summarised in R (AHK) v Secretary of State for the Home Department [2009] 1 WLR 2048 §§37 to 38 which recognise that there are cases where the judge can readily resolve the issue without the assistance of a special advocate and if he has no doubt on the matter, he may refuse to make such an appointment.

9.In the circumstances of this case, I have no hesitation in concluding that the proposed appeal is not reasonably arguable.

Hon Kwan JA:

10.I agree with the reasons for judgment of Le Pichon JA.

Mr Philip Dykes SC, instructed by Messrs Ho, Tse, Wai & Partners, for the Applicant

Mr Johnny Mok SC, instructed by the Department of Justice, for the Respondent