Mdi v. Torture Claims Appeal Board and Another

HCAL 46/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 46 OF 2013

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BETWEEN

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D E C I S I O N

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I. INTRODUCTION

1.This is an application for leave to appeal against my case management order dated 10 October 2013 (“Order”) that the applicant’s application for leave to apply for judicial review (“JR Leave Application”) be adjourned to a date to be fixed to be heard not before 31 May 2014 (“JR Leave Hearing”).  By the Order, I further directed that the Applicant shall within 21 days attend the Listing Clerk’s office to fix a date for the JR Leave Hearing.

2.Such application for leave to the appeal against the Order (“Appeal Leave Application”) was finally returnable before me six months later on 9 April 2014 (“Appeal Leave Hearing”).  One would have expected the Appeal Leave Hearing (with a hearing time of half an hour) to have taken place months ago, but as seen below, procedural mishaps led to this exceptional delay.  In the meantime, and again as seen below, developments since the granting of the Order conspired to render the intended appeal academic or redundant.

3.Inevitably, the remaining issue was the question of costs. Since it would be necessary to canvass to some extent the merits of the Appeal Leave Application in order to resolve such question, the heated debate between the parties on such question itself became an exercise in costs.

II. BACKGROUND

4.By a Form 86 filed on 21 February 2013, the applicant made the JR Leave Application against the decision by the Torture Claims Appeal Board refusing his claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).

5.On 26 April 2013, I granted leave for the applicant to amend his Form 86, and further directed him to serve the same on the Director of Immigration (“Director”).  I also adjourned the JR Leave Application for a directions hearing (“Directions Hearing”) on a date to be fixed with an half hour reserved.

6.By the Amended Form 86, which was filed/served on 28 June 2013, apart from challenge on the individual CAT grounds, the applicant also raised challenge on the policy grounds, ie lack of assessment of non-refoulement claim whether under the Hong Kong Bill of Rights or with reference to the 1951 Convention Relating to the Status of Refugees.

7.Pursuant to the order made on 26 April 2013, the Directions Hearing was fixed to be heard on 10 October 2013.

8.In mid-2013, the Director indicated to the Legislative Council and to some of the claimants that a unified screening mechanism (“USM”) would be put in place towards the end of the year whereby a claimant could make a non-refoulement claim on the individual CAT grounds and/or the policy grounds.  The Director intimated that claimants who had been screened under the CAT procedure (such as the applicant here) would not be re-screened under the USM for their CAT claims, but materials gathered in the previous CAT screening might be used in relation to the other claims on the policy grounds.

9.Before the Directions Hearing took place, there was a directions hearing on 17 July 2013 before Au J as the Judge in charge of the Constitutional and Administrative Law List in respect of 16 applications for leave to apply for judicial review (which involved both the individual CAT grounds and additional challenge on the policy grounds).  At such directions hearing, other than five cases which did not rely on the policy grounds and which were to proceed in the usual course, the learned judge as a matter of case management adjourned the 11 remaining leave applications (“Pool Cases”) sine die pending details of the USM to be implemented. Au J further directed the applicants in the Pool Cases to identify and select a test case by 10 March 2014 to be heard by him on 25 March 2014 to decide whether leave should be granted on the policy grounds (“Test Case”) (“Initial Directions”). 

10.By their letter dated 26 September 2013, the Department of Justice (“DOJ”) enquired whether the applicant in the present proceedings would be prepared to drop the policy grounds (like the applicants in the five cases before Au J who were also represented by the applicant’s solicitors (“DA”)).  By reply letter dated 30 September 2013, DA confirmed that the applicant in the present proceedings had no intention to drop the policy grounds, and that he intended to pursue the JR Leave Application on both the individual CAT grounds and the policy grounds.

11.At the Directions Hearing, after hearing submissions from Ms Ng, counsel for the applicant, and Ms Cheung, Senior Government Counsel for the Secretary for Security as the 2^nd putative respondent (“Secretary”) and the Director as the interested party, I granted the Order and gave brief oral reasons.

III. REASONS FOR THE ORDER

12.At the Directions Hearing, this court noted the above background and Ms Ng’s concern that on the applicant’s then understanding of the intended operation of the USM which was expected to come into operation at the end of 2013 the CAT determination against him might be “final” unless it was successfully challenged through judicial review, and the Director would therefore be able to deport him unless he succeeded in the screening on the new policy grounds.  Ms Ng called upon the DOJ to clarify the position so the applicant could decide how to proceed (eg whether to drop what he considered to be valid individual CAT grounds).

13.By her written and oral submissions for the Directions Hearing, Ms Cheung confirmed that the USM was then expected to be in place by the end of 2013.  The Director’s position was that if the applicant would succeed on the basis of the non-refoulement claim, he would not need the CAT claim, but if he would fail on the re-foulement claim, there would be no utility in pursuing the CAT claim.  Although the Director would not rule out the possibility that certain evidence and information considered by him in assessing the applicant’s CAT claim might be relevant to the non-refoulement assessment, it did not mean there should be any re-screening of any refused CAT claim.  The Director was of the view that there was good basis to dispute the policy grounds, and the Secretary and the Director would not concede the JR Leave Application on the policy grounds.

14.At the Directions Hearing, this court noted (and it was common ground between the parties) that in any event the JR Leave Application had to be adjourned for substantive argument.  Whilst Ms Ng advocated that the JR Leave Application on both the individual CAT grounds and the policy grounds should proceed without delay, Ms Cheung suggested that the JR Leave Application should be adjourned sine die pending the Test Case on the policy grounds to be heard by Au J, or alternatively that the present proceedings should be grouped together with the other 11 Pool Cases for selection of the Test Case to be heard by Au J should this court considered it appropriate to do so.

15.This court noted that the decision on the way forward required an exercise of case management discretion.  In doing so, this court recognised that the applicant and the Director each adopted different stance as to the policy grounds, the utility of the CAT claim and the individual CAT grounds.  Whilst this court considered it would not be right at that stage to require the applicant to abandon the policy grounds or to adjourn the JR Leave Application sine die, this court associated itself with the observations by Au J as to the bearing the USM might have on the JR Leave Application, and gave consideration to how the learned judge handled the Pool Cases, which eventually led to the view that the JR Leave Application should be adjourned to a date to be fixed at an appropriate time after the Test Case to be heard by Au J.

16.In making the Order, this court had given careful consideration to Ms Ng’s submissions that there was need for expedition in judicial review cases, the overall public interest as well as the effect of uncertainty of the outstanding leave application on the applicant.  This court also took into account the assurance given through Ms Cheung that it was the Director’s policy not to deport applicants in ongoing judicial review applications/ proceedings.  Further to such assurance, this court also took into account the wider considerations of the number of judicial review cases coming to the courts premised on the policy grounds and the need for sensible deployment of the court’s resources in response to such applications.  Given the state of the court’s diary in any event, and further given the provision under the Order that encouraged the parties to secure a date for the JR Leave Hearing by requiring such date to be fixed within 21 days, this court considered the Order was unlikely to cause substantial delay.

IV. PROCEDURAL DEVELOPMENTS

17.As explained above, the Order was a case management interlocutory order, and it was incumbent upon the applicant to persuade this court to grant leave to appeal under section 14AA of the High Court Ordinance Cap 4 (“HCO”). Under Order 59 rule 2B(1) of the Rules of the High Court (“RHC”), an application for leave to appeal against an interlocutory judgment or order of the court may only be made to the court in the first instance within 14 days from the date of the judgment or order.

18.As noted, the JR Leave Hearing in respect of the JR Leave Application was not heard until six months after the Order on 9 April 2014. Such substantial delay required explanation since it had effect on the eventual disposal of the JR Leave Application and also on the question of costs.

19.Order 59 rule 2B(2) of the RHC provides that so far as is practicable the application for leave to appeal must be made to the judge against whose judgment or order leave to appeal is sought. Therefore, one would have expected the applicant to have promptly issued an inter partes summons in the present proceedings (HCAL 46/2013) for leave to appeal within 14 days of the Order. Such application for leave to appeal would still be part of the proceedings of the court below because there could not be any “appeal” unless and until leave to appeal was granted.  To put it simply, such first tier application would not be within the jurisdiction of the Court of Appeal (“CA”) for the court below would not be able to exercise any appellate jurisdiction.

20.But instead of issuing such a summons in the present proceedings (HCAL 46/2013), the applicant commenced HCMP 2825/2013 being Court of Appeal Miscellaneous Proceedings on 24 October 2013 for leave to appeal against the Order (“HCMP Summons”), and in line with Practice Direction 4.1 (Civil Appeals to the Court of Appeal) (“PD4.1”), which practice direction is intended to provide comprehensive directions for the conduct of “civil business of the Court of Appeal”,[1] including applications for leave to appeal made to the CA (in contra-distinction to first tier applications to the court below), no hearing date was fixed or scheduled.[2] But the HCMP Summons on its face stated it was to be heard before this court (ie the court below).

21.In my view, HCMP Summons was a hybrid creature that was procedurally and jurisdictionally unknown and indeed erroneous.  This court (ie the court below exercising first instance jurisdiction) was not empowered to deal with Court of Appeal Miscellaneous Proceedings, but likewise the CA could not deal with first tier application for leave to appeal. Court of Appeal Miscellaneous Proceedings would only be appropriate if the applicant were making a second tier or direct application to the CA for leave to appeal against the Order under Order 59 rule 2B(3) or (4) of the RHC.

22.Since the HCMP Summons was filed under the umbrella of HCMP 2825/2013 being Court of Appeal Miscellaneous Proceedings, the Court Registry wrote to DA and the DOJ on 28 October 2013 to remind them of the guidance by Kwan JA in HCMP 1941/2011 regarding the preparation of bundles for use by the CA in relation to applications for leave to appeal to the CA pursuant to Order 59 of the RHC.  Pursuant to such reminder, DA on 1 November 2013 lodged bundles of documents under HCMP 2825/2013. On 7 November 2013, the DOJ lodged their statement of opposition in HCMP 2825/2013.  Two sets of these documents were lodged with the court in line with paragraphs 7-8 of PD4.1.

23.In my view, by this time there was real confusion as to whether the applicant’s JR Leave Application was first instance or appellate court proceedings and/or whether such application should be heard by the court below or the court above.

24.Returning to the present proceedings (HCAL 46/2013), DA on 20 November 2013 wrote to the court proposing to attend the Listing Clerk’s office to fix a date for the JR Leave Hearing. But by that time more than 21 days had elapsed since the Order was made, so they were out of time for such purpose. Consequently on 26 November 2013, DA applied ex parte to this court by affidavit and letter for extension of time to fix the date for the JR Leave Hearing.  On 27 November 2013, I granted an extension of time for 14 days for such purpose.

25.On 3 December 2013, DA wrote to the Court Registry proposing to attend the Listing Clerk’s office to fix a date for the JR Leave Hearing in the present proceedings (HCAL 46/2013).  On 6 December 2013, the JR Leave Hearing was fixed and scheduled to be heard by this court on 25 September 2014.

26.In light of the confusion referred to in paragraph 23 above, on 29 January 2014 the CA via the Court Registry wrote to DA and the DOJ to enquire whether the HCMP Summons was intended to be heard by this court as stated in such summons or to be dealt with by the CA.  DA was also asked to clarify whether the applicant intended to seek leave from this court or to make application direct to the CA, and the Court Registry reminded that in the latter situation the applicant would be required to amend the HCMP Summons (with supporting reasons) for leave to skip the first tier application before the judge below.  DA was further reminded to file skeleton arguments and other documents as provided in PD4.1.[3]

27.On 4 February 2014, DA replied by letter stating that the HCMP Summons was intended to be heard before this court. In my view and as explained above, this plainly confirmed that the procedure that had been adopted (ie commencing HCMP 2825/2013 and issuing the HCMP Summons) was erroneous, and the applicant should have issued an inter partes summons in the present proceedings (HCAL 46/2013) to make first tier application for leave to appeal against the Order.

28.But on 4 February 2014, DA lodged the applicant’s skeleton submissions (which surprisingly were dated 16 December 2013) and bundle of authorities in duplicate in apparent compliance with paragraph 7 of PD4.1. To add to the confusion, on the same day DA wrote to the court under HCMP 2825/2013 proposing to attend the Listing Clerk’s office to fix a date for the hearing of the HCMP Summons presumably with a view for it to be heard before this court.

29.On 4 February 2014, the DOJ wrote to the court indicating that the Secretary and the Director took a neutral stance on whether the HCMP Summons should be heard before this court or the CA under Order 59 rule 2B of the RHC, but noted that an application to the CA direct should only be allowed in special circumstances.  They further noted that DA only delivered the applicant’s skeleton submissions pursuant to PD4.1 (which should have come together with the HCMP Summons) [4] on 4 February 2014, ie long after the Secretary and the Director filed their statement of opposition on 7 November 2013.

30.On 10 February 2014, this court granted paper directions as follows:

“……

2. If the applicant’s intention is to apply to this court to seek leave to appeal against [the Order], it is not understood why fresh proceedings by HCMP2825/2013 were commenced. The proper approach would have been to issue a summons in HCAL46/2013, so that an early date can be obtained for the hearing of the leave application. Such application remains part of the lower court’s proceedings because until leave is granted there is no “appeal” as such to the Court of Appeal.

3. As it were, HCAL46/2013 issued under the title “Court of Appeal Miscellaneous Proceedings” is not understood, especially when it is suggested that the hearing be returnable not before a justice of appeal of the Court of Appeal but before the lower court judge. In the circumstances, no hearing date has been fixed by the Court of Appeal Registry.

……

5. Without prejudice to any substantive or costs orders that the court may make in relation to the above matters, to regularise the above procedural concerns so that the leave application can proceed, I make the following orders:

(a) the applicant shall within 7 days from today file and serve a summons in HCAL46/2013 returnable before this court for leave to appeal in the same terms as set out in the summons dated 24/10/13 in HCMP2825/2013 (“Summons”);

(b) upon the applicant’s compliance with (a) above within the prescribed time, the Summons shall be deemed to have been filed on 24/10/13;

(c) 30 minutes be reserved for the hearing of the Summons;

(d) HCMP2825/2013 be placed before the court at the hearing of the Summons for final disposal of such proceedings;

(e) costs be reserved.”

31.By February 2014, the applicant was substantially out of time in applying for leave to appeal against the Order to this court by way of summons under HCAL 46/2013.[5] Since the court below does not have power to grant extension of time to apply for leave to appeal,[6] to salvage the situation so that the applicant could get on with the Appeal Leave Application (which he wished to be heard by this court), this court by the above order deemed the summons for leave to appeal to be issued in the present proceedings to be filed/served within time.

32.Turning now to the Pool Cases, by January 2014 they had been reduced to nine cases.  On 23 January 2014, the solicitors for the applicants in the Pool Cases wrote to Au J inter alia as follows:

“As a result of the discussion and consultation [amongst solicitors for the applicants for the Pool Cases], we have come to the view that it may not be possible to select a [Test Case] for the purpose of his Lordship’s order. The difficulties are as follows:

(1) It is difficult to see how the question of whether leave should be granted on the [policy grounds] can be determined in the abstract, unlike cases which as a common point turn on the interpretation of a legal provision. Although there be a common issue of the utility of pursuing the [policy grounds] when the USM is in place, determination of the question of utility is still fact sensitive. Selecting [the Test Case] by identifying special factual circumstances or features will be a futile exercise.

(2) The criteria for selection is a problem. The legal teams are obviously not in a position to look into, compare or comment on the strength and weaknesses of each other’s case without breach of confidence. More fundamentally, in our duty to our client in each case, we cannot defer to another case on any ground we can think of.

(3) The effect of the outcome of the test is unclear. It is certainly not of itself binding, and in the interest of our clients we cannot agree beforehand to be bound. This raises the question of practical purpose of the test case.

……

(5) We are concerned that the adoption of a “test case” approach grouping cases together is a novel development which may inadvertently fundamentally change the nature of the two-stage procedure of judicial review whereby the leave application is aimed at screening out a case, by ex parte application, if it is not reasonably arguable on the materials put before the court. It is different if such approach is adopted for the substantive hearing of the application for the purpose of case management.

(6) Delay and its impact on the public and on the Applicants: The effect of the [Test Case] is likely to prolong the delay, particularly given the fact that contrary to the Government’s announcement to the Legislative Council and indication to the Court, the USM is still not in sight as of today’s date. Given the large number of claimants and/or potential claimants, the early availability of clear guidance from the courts is plainly desirable for officials, claimants, applicants and the Director of Legal Aid.

……”

33.On 5 February 2014, Au J directed that the first case in time amongst the Pool Cases be heard on 25 March 2014 before him on all grounds of the leave application including the policy grounds, and the other remaining Pool Cases shall be restored and separately handled by the respective judges (“Further Directions”).  By the Further Directions, Au J informed the solicitors for the applicants in the remaining Pool Cases that:

“1. It has never been the objective and effect of the [Initial Directions] made on 17 July 2013 that the decision on the [Test Case] (when selected) as to whether leave will be granted on the [policy grounds] is to bind the other adjourned leave applications. Those leave applications are, as made clear by the court at the hearing, to be then later determined by the judges responsible for dealing with them on the individual merits of each of these applications, including arguments to be run on the [policy grounds]. It is up to the individual judges to determine, on the circumstances of each of them those leave applications, whether and how they should take into account of the said decision of the [Test Case]. The [Initial Directions] were made for case management purposes only. ……”

34.On 11 February 2014, DA wrote to the court to cancel the appointment to fix the hearing date for the HCMP Summons in HCMP 2825/2013.

35.On the same day, DA filed a summons for leave to appeal against the Order in the present proceedings (HCAL 46/2013) under Order 59 rule 2B of the RHC in the same terms as the HCMP Summons in HCMP 2825/2013 (“Appeal Leave Summons”).  Such summons was returnable before me on 9 April 2014.

36.On 13 February 2014, the DOJ wrote to DA referring to the Appeal Leave Hearing on 9 April 2014 and the Further Directions by Au J, and pointed out that even assuming that the Appeal Leave Application were granted and even if the applicant should succeed in his appeal so that the JR Leave Application could proceed without any adjournment, “having regard to the understandably tight schedule of the Court, it appears rather unlikely that the [JR Leave Application] can be heard prior to June 2014 and (bearing in mind that [the Appeal Leave Summons] will only be heard before [this court] on 9 April 2014).  As a matter of fact, the [JR Leave Hearing] has been fixed for 25 September 2014 which, as we understand it, is the earliest available date before the court (in consultation with the parties’ diaries) from June 2014 onwards”.  The DOJ questioned whether there would be any practical utility for the applicant to proceed with the intended appeal against the Order. For the above reasons and bearing in mind that public resources were involved, they urged the applicant to reconsider his position as to whether to proceed with the intended appeal against the Order.

37.On 28 February 2014, DA replied by reiterating the procedural history and (in light of the above developments and without prejudice to the Appeal Leave Summons) and proposing to vary the Order so that the JR Leave Hearing could be re-fixed to be heard as soon as possible without any time limitations with the parties making best efforts to accommodate an earlier hearing according to their diaries.  DA also urged the Director to consider conceding to the JR Leave Application by confirming that the Director would not take into account the decision made in respect of the applicant under the previous “enhanced screening mechanism” and re-screen his claim with the USM.

38.On 18 March 2014, the DOJ wrote to inform DA that it was a matter for them to decide how to conduct the present proceedings further given their wish to seek a hearing date earlier than the scheduled JR Leave Hearing on 25 September 2014, but the DOJ made clear that in view of the Further Directions (and without prejudice to their position vis-à-vis the Appeal Leave Summons) they had no objection to DA’s proposed variation of the Order. They again maintained their doubt as to whether there would be any practical utility for the applicant to proceed with the intended appeal against the Order, and with the proposed application to vary the Order “it seems that the sensible course is for [the applicant] to withdraw the intended appeal”. The DOJ reiterated there was no question of re-screening refused torture claims afresh under the USM, and as for the policy grounds raised by the applicant, if any, they would be dealt with in accordance with the procedures under the USM.

39.On 19 March 2014, DA wrote to inform this court of the Further Directions, ie that there would be no Test Case, and to intimate the applicant’s wish to vary the Order so that the requirement to fix a date for the JR Leave Hearing be heard after 31 May 2014 (“Requirement”) be removed with a view to re-fix the JR Leave Hearing to an earlier date. It was said that the “Respondents” had no objection to the proposed variation of the Order.

40.On 21 March 2014, this court directed the DOJ to confirm in writing whether the Secretary and the Director had no objection to the proposed variation of the Order.

41.On 27 March 2014, the DOJ confirmed by letter that in view of the Further Directions, the Secretary and the Director had no objection to the proposed variation of the Order, and (depending on the outcome of the application to vary the Order) they urged the applicant to take steps to have the Appeal Leave Summons disposed of.

42.By their letter dated 27 March 2014, the DOJ also enclosed a copy of their letter dated 18 March 2014 to DA and maintained that in any event it was doubtful whether there would be any practical utility for the applicant to proceed with the intended appeal against the Order in the circumstances. They reiterated the Director’s stance that there would be no question of re-screening refused torture claims afresh under the USM, and that the policy grounds (if any) raised by the applicant would be dealt with in accordance with the procedures under the USM.

43.On 28 March 2014, this court directed that the Order be varied to the extent that the words “not to be heard before 31 May 2014”, ie the Requirement, be set aside (“Varied Order”). This court further directed as follows:

“……

3. This court notes that the [JR Leave Hearing] has been fixed in consultation with the parties’ diaries for 25/9/14 being the earliest date after 31/5/14 (“Leave Hearing”).

4. It is unknown whether there will be any available hearing date in this court’s diary before 31/5/14 for re-fixing the Leave Hearing in consultation with the parties’ diaries.

5. Either party is at liberty to apply to the Listing Clerk to re-fix the Leave Hearing already scheduled to be heard on 25/9/14, but the Leave Hearing scheduled on 25/9/14 shall stand and not be re-fixed unless (a) any re-fixed hearing shall be in consultation with counsel’s or parties’ diaries, and (b) there is an earlier available hearing date in my court diary that suits (a).

6. Since the Leave Hearing has already been scheduled and given the demands of other court users, any re-fixing of the Leave Hearing should be in compliance with (a) and (b) above. There is no direction for priority hearing for re-fixing of the Leave Hearing.”

44.On 28 March 2014, DA wrote to the court proposing to attend the Listing Clerk’s office to re-fix the hearing date for the JR Leave Hearing pursuant to the Varied Order. On 3 April 2014, the JR Leave Hearing originally scheduled to be heard on 25 September 2014 was re-fixed to be heard before this court on 26 August 2014.

45.On 4 April 2014, the DOJ wrote to DA saying that in light of the above developments they saw no basis for the applicant to proceed with the intended appeal against the Order, and urged him to adopt the sensible course of withdrawing the Appeal Leave Summons and the HCMP Summons.

46.On the same day, DA replied that “[on] the basis that there may no longer be any practical utility for the intended appeal, we are prepared to withdraw the proceedings with no order as to costs”.

47.On 7 April 2014, the DOJ wrote to inform DA that costs of the applicant’s “intended appeal and of the connected application for leave to appeal” should be to the Director and the Secretary.

48.On the same day, DA replied by saying that the Appeal Leave Summons and the HCMP Summons were only necessary because this court accepted the DOJ’s position that the JR Leave Application should be adjourned until after the Test Case and made the Order. DA suggested that Au J subsequently accepted a test case would not be possible, and confirmed that the Test Case was not intended to be binding on the other Pool Cases. DA went on to say as follows:

“5. Following the directions of the Honourable Mr. Justice Au and our further submissions, the Deputy High Court Judge Marlene Ng accepted our position, contrary to your submissions on 10 October 2013 and varied the Order made on the same day.

In the circumstances, the only reasonable costs order is that there be no order as to costs. ……”

49.On 8 April 2014, the DOJ replied to the effect that the fact that the Order was overtaken by events in light of the Further Directions did not detract from this court’s entitlement to make the Order as it did, and they did not understand the Varied Order was the result of this court having accepted the applicant’s position contrary to the DOJ’s submissions made on 10 October 2013. The DOJ maintained that the application for leave to appeal against the Order was devoid of merits, and any suggestion that the Order was made on the basis that the outcome of the Test Case would be binding on the present proceedings was misconceived. Indeed, this court directed the applicant to attend the Listing Clerk’s office within 21 days of the Order with a view to secure an early date (not before 31 May 2014) for the JR Leave Hearing, yet the applicant chose to ignore such directions and sought leave to appeal against the Order, and only proceeded to fix the date for the JR Leave Hearing on 6 December 2013. The DOJ failed to see why the Director and the Secretary should bear costs, and proposed that costs of the Appeal Leave Summons and the HCMP Summons be paid by the applicant to the Secretary and the Director.

V. LEGAL PRINCIPLES

50.I should start with the last point made by Ms Ng in her written submissions lodged for the HCMP Summons which she adopted for the Appeal Leave Summons (“Ng’s 1^st Submissions”). She relied on an observation by Lord Fisher MR in Exp Gilchrist In re Armstrong [7] that “[the] jurisdiction which the judges …… have to give or to refuse leave to appeal from their own decisions is a very delicate one. Merely to say that they are satisfied their decision is right is not, I venture to suggest, a sufficient reason for refusing leave to appeal, when the question is one of principle and they have decided it for a first time. If that was carried to its legitimate conclusion, they ought to refuse leave to appeal in every case”.

51.Whilst I respect the underlying sentiment expressed by Lord Fisher MR, I should point out that Exp Gilchrist In re Armstrong was not concerned with any exercise of case management discretion for the conduct of proceedings, but with a matter truly of principle being the true construction of section 1(5) of the Married Women’s Property Act 1882.

52.Further, although Lord Fisher MR reminded judges not to be parsimonious with granting leave to appeal, equally the exercise of the jurisdiction to give or to refuse leave to appeal by the court below, which serves a filtering purpose, should not be overly generous; otherwise unmeritorious challenges would add to costs to be incurred by the opposing parties and would waste court resources. Lam VP in Singh Arhun by his next friend Singh Anita Guruprit v The Secretary of Justice on behalf of The Commissioner of Police & anor [8] recently reminded litigants of the function of the first tier application for leave to appeal as follows:

“10. …… a first tier application before the matter is brought before the Court of Appeal serves an important function. Not only is this function valuable to this court, it should also be of value to the parties. The party applying for leave should obviously reflect on the arguability of his grounds if the lower court refuses leave. At the same time, the opposing party should also review the merit of the application in light of the contentions run at the first tier hearing. This should assist the parties in formulating and responding at the second tier stage if an application is made to the Court of Appeal for leave. In other words, this court expects the submissions advanced in the second tier level to be more concise and focused.”

53.I turn to the legal principles. Under section 14AA of the HCO, leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard. In SMSE v KL,[9] Le Pichon JA pointed out that such leave to appeal is not lightly granted.The test of reasonable prospects of success involves the notion that the prospects of succeeding must be reasonable and therefore more than fanciful without having to be probable.As the leave requirement was introduced largely to address satellite litigation, so for the court to be satisfied that the appeal does have “reasonable prospects of success”, merely showing that the appeal is “arguable” and “not fanciful” would not be sufficient.[10] 

54.Furthermore, it is pertinent to bear in mind that even if there is a reasonable prospect of success on appeal, the court still retains a discretion whether to grant leave to appeal, although the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court’s exercise of discretion.[11]

55.An appeal against the case management decision of the court below is a type of appeal against exercise of discretion, and it is only in exceptional circumstances that the appellate court will interfere.[12]

56.In 厦門新景地集團有限公司 v Eton Properties Limited & ors,[13] Cheung JA said as follows:

“9. No leave to appeal should be granted unless the threshold test of reasonable prospect of success is satisfied, or (which is not relevant to the present case) there is some other reason in the interests of justice why the appeal should be heard : section 14AA(4), the [HCO]. But the court still retains a residual discretion whether to grant leave even if the threshold test is satisfied. This is particularly so in relation to an intended appeal against a case management decision. In relation to such an intended appeal, this court rarely intervenes save in exceptional circumstances. As Kwan JA reiterated in the recent case of Mimi Kar Kee Wong Hung v Severn Villa Limited, HCMP 2192/2011, 12 January 2012, para 31, it need hardly be emphasized that generally, an appellate court will not interfere with a judge’s exercise of discretion unless the judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible. In relation to case management decisions, the intended appellant must show that the judge “has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task”, or if the judge “erred in principle or the order was irrational having regard to the issues that had to be resolved”. It is of great importance that this court does not descend to micro-managing cases pending before the court below.”[14]

57.Ms Ng referred to paragraphs 29-34 of the judgment of Cheung JA in厦門新景地集團有限公司 that specifically referred to the letter and spirit of Order 1A rules 1 and 2(2) of the RHC in the exercise of case management discretion.  In that case, the complaint was that after allowing late amendments to pleadings the court below tried to expedite matters by focusing on how best to fit all the new issues raised or to be raised into the pre-existing trial dates (which would not be fair to the defendants) instead of exploring whether it was possible to hive off the new issue from the trial to a subsequent stage. “It was on this limited basis only that [Cheung JA] felt compelled and able to interfere with the judge’s undoubtedly wide case management power.”[15]

58.Ms Ng also referred to Cheung Yee-mong v So Kwok-yan & anor [16] as another illustration of leave to appeal granted in respect of a case management decision. In that case, the court below was exasperated by delay.  The judge refused extension of time for the defendant’s nominated psychiatrist to examine the minor plaintiff overseas, and ordered the report to be produced within 30 days.  He set a timetable for production of actuarial reports, the plaintiff’s psychiatric report and a pre-trial review, and further ordered the case to be set down for trial.  It was held that the judge’s case management order was unjust and outside the ambit of possible reasonable decisions such that the CA would interfere.

59.The above discussion served to emphasise two matters: first, the reluctance of the appellate court to interfere with case management decisions by the court below unless the appellant is able to surmount the threshold discussed above (and it would not be enough that the appellate court might have made a different decision), and secondly, each case turns on its own particular context, eg the present criticism was against delay allegedly caused by the Order as contrasted with the complaint of expedition by the courts below in厦門新景地集團有限公司 and Cheung Yee-mong.

VI. VARIATION OF THE ORDER

60.By the Appeal Leave Summons, the applicant intended to appeal against the Order (not the Varied Order which only came into existence months after the HCMP Summons was filed).  However, upon variation of the Order, the Requirement being the subject matter of complaint was removed, and the JR Leave Hearing had been re-fixed to an earlier date.

61.As explained above, due to such subsequent developments, the Appeal Leave Summons became academic or redundant.  Had the Appeal Leave Summons been brought and heard earlier instead of six months after the Order, the intended appeal (if there were any merits) might have some utility. By now there is none.

62.According to Ms Ng’s supplemental written submissions lodged a day before the Appeal Leave Hearing (“Ms Ng’s 2^nd Submissions”), the applicant accepted that by reason of the variation of the Order that removed the Requirement, the Appeal Leave Application “is no longer of utility”, so he sought to “withdraw the summons with the consent of the [DOJ] for the [Director] as Interested Party” and “[the] only issue remaining is costs”.  Ms Ng submitted that a just order as to costs would be no order as to costs.

63.In correspondence and at the Appeal Leave Hearing, the DOJ had no objection for the applicant to withdraw the Appeal Leave Summons and the HCMP Summons, leaving costs to be argued with liberty for either party to rely on their respective contentions on the merits of the Appeal Leave Application for the purpose of the argument on costs.

64.Notwithstanding the stance expressed in Ms Ng’s 2^nd Submissions and the DOJ’s stance set out in the above paragraph, at the Appeal Leave Hearing Ms Ng insisted that since the DOJ wished to rely on the merits of the Appeal Leave Application to seek costs, the applicant would similarly rely on arguments on the merits on the question of costs and the continued pursuit of the substantive Appeal Leave Application by way of the Appeal Leave Summons and the HCMP Summons.  Upon further clarification by this court with Ms Ng, she confirmed that unless the Director and the Secretary would accept there be no order as to costs in respect of the Appeal Leave Summons and HCMP 2825/2013 (including the HCMP Summons), the applicant would pursue the Appeal Leave Application to seek leave to appeal against the Order (not the Varied Order) under both the Appeal Leave Summons and the HCMP Summons and to seek costs against the Director and the Secretary.  Ms Ng made her oral submissions at the Appeal Leave Hearing on such basis.

65.I am unable to see how conceding withdrawal of the Appeal Leave Application (whether by way of the Appeal Leave Summons and/or the HCMP Summons) because it had turned academic or redundant would in any way preclude the applicant from disputing the claim for costs by the Director and the Secretary or from relying on the merits of the substantive application for such purpose.[17]  Indeed, the DOJ had conceded as much.

66.For the Appeal Leave Summons, the applicant’s stance in paragraph 64 above was perplexing.  At the Appeal Leave Hearing, after Ms Ng made her submissions on the stance set out in paragraph 64 above, this court referred to the matters in paragraphs 60-61 above and in particular the removal of the Requirement under the Varied Order. The applicant was then constrained to agree that the intended appeal against the Order had become academic and therefore futile. Ms Ng then informed the court the applicant would revert to his earlier stance of seeking leave to withdraw the Appeal Leave Summons with no order as to costs.  In my view, the applicant plainly could no longer pursue the Appeal Leave Application when this court granted the Varied Order, and he should have conceded so this straightaway.

67.For the HCMP Summons, I have explained why such summons was procedurally and jurisdictionally erroneous.  In any event, it is not permissible to pursue both the HCMP Summons in HCMP 2825/2013 and the Appeal Leave Summons in the present proceedings (HCAL 46/2013) over the same Appeal Leave Application.  Eventually, upon Ms Ng recognising that the Appeal Leave Application had become academic, she conceded that the applicant would also withdraw the HCMP Summons with no order as to costs.

68.Ms Cheung had no quarrel with the applicant’s willingness to withdraw the Appeal Leave Summons and the HCMP Summons, but maintained the Director and the Secretary were entitled to costs.

69.Upon review of the steps taken by the parties in HCMP 2825/ 2013, it appeared to me that the most substantive step taken by the Director and the Secretary in those proceedings was the preparation of the statement of opposition and accompanying list of authorities.  But Ms Cheung also adopted such written submissions and authorities for the purpose of the Appeal Leave Summons in the present proceedings (HCAL 46/2013).  In such circumstances, if the costs of the statement of opposition and the accompanying list of authorities were carved out of HCMP 2825/2013 and transferred to (and to be determined in) HCAL 46/2013, any remaining costs by the Director and the Secretary in respect of HCMP 2825/2013 would not be substantial.  When this court put such proposition to Ms Ng and Ms Cheung, they both agreed to no order as to costs for HCMP 2825/2013 on such basis.

70.So at the Appeal Leave Hearing, I granted the following orders:

(a)     skeleton submissions and list of authorities lodged/served by the applicant and statement of opposition and list of authorities lodged/served by the Director and the Secretary in HCMP 2825/2013 shall stand as their respective written submissions and list of authorities for the Appeal Leave Summons in HCAL 46/2013, and costs of and occasioned by such written submissions and lists of authorities shall be costs in respect of the Appeal Leave Summons in HCAL 46/2013;

(b)    leave be granted for the applicant to withdraw the HCMP Summons in HCMP 2825/2013;

(c)     subject to (a) above, there be no order as to costs of the proceedings in HCMP 2825/2013, including costs of the HCMP Summons, and the applicant’s own costs be taxed in accordance with Legal Aid Regulations;

(d)    leave be granted for the applicant to withdraw the Appeal Leave Summons in HCAL 46/2013.

71.Therefore, the remaining matter was the question of costs of the Appeal Leave Summons in the present proceedings (HCAL 46/2013). Since both parties suggested they would rely on the merits of the substantive application for leave to appeal against the Order on the question of costs, I should perhaps start with the proposed grounds of appeal against the Order in order to put the matter in context.

VIII. INTENDED GROUNDS OF APPEAL

72.In the Appeal Leave Summons, the applicant relied six grounds of appeal as set out below.

(a) Grounds 1, 2 and 4

73.The applicant complained that this court wrongly exercised its case management powers in taking into account irrelevant matters or giving undue weight to those matters (ie Au J’s Initial Directions) and/or the Order was irrational. Whilst the applicant accepted that the policy grounds he relied on were broadly similar to those in the expected Test Case,

(a)    the arrangements in relation to the other cases are irrelevant in that even if leave were refused/granted on the policy grounds in the Test Case (Ground 1), and/or

(b)    without an assurance that all proper submissions would be made in the Test Case against which decision of the court the applicant could not appeal (Ground 2),[18]

the JR Leave Application still had to be determined on the materials submitted by the applicant, and it would not have save the court’s time.

74.It was said that this court failed to consider relevant matters or to give sufficient weight to those matters, ie that if the JR Leave Application were to proceed in tandem with the Test Case it would give rise to separate judgments each with its own reasoning from which any appeal might be heard together to the benefit of the Court of Appeal (Ground 4).

(b) Ground 3

75.It was said that apart from the policy grounds the individual CAT grounds should not be delayed.

(c) Grounds 5 and 6

76.The applicant complained that this court’s exercise of discretion was wrong in principle and exceeded the bounds of proper exercise of case management powers that flied in the face of Order 53 rule 4 of the RHC, which rule was intended to give effect to the principles of expedition and legal certainty in a challenge in judicial review.  It was said that the Order imposed long and uncertain delay that would lead to legal uncertainty that would likely affect others in similar position to that of the applicant and would set a bad case management precedent that would create an additional hurdle in the procedure for judicial review (Ground 5).

77.It was also said that the Order was wrong in principle with respect to the CJR underlying objectives in Order 1A rules 1 and 2 of the RHC, specially Order 1A rule 1(b) and (d) and rule 2(2) of the RHC (Ground 6).

VIII. APPLICANT’S CASE – SECTION 21K OF THE HCO

78.Ms Ng argued the intended appeal against the Order raised an important issue of principle, ie the extent of the court’s jurisdiction under section 21K of the HCO in adjourning an application for leave to apply for judicial review and the basis of the adjournment, or to put it another way, whether the court’s case management powers under Order 1A of the RHC modify such jurisdiction to any extent, and if so, to what extent.

79.Ms Ng submitted that the two-stage approach for judicial review under section 21K of the HCO was to ensure legal certainty to protect public authorities from unmeritorious challenges and to protect the public from uncertainty as to whether public authorities were acting unlawfully, so applications for leave to apply for judicial review should be brought promptly and are made ex parte with a relatively low threshold for merits in order to filter out unmeritorious applications.

80.Ms Ng claimed such first-stage application should not be delayed at the behest of a putative public authority respondent or interested party without the clearest and most sufficient grounds (ie the USM ground referred to below) and/or held off pending the Test Case the outcome of which was unknown (ie the Test Case ground referred to below). It was said that such approach was alien to judicial review and wrong in principle, and therefore leave to appeal against the Order ought to be granted.

81.In the course of oral submissions at the Appeal Leave Hearing, it became clear that Ms Ng’s criticism was not directed towards the question of whether the case management powers conferred on the court under Orders 1A and 1B of the RHC being subsidiary legislation infringed and/or cut down the jurisdiction conferred on the court for judicial review under section 21K of the HCO being primary legislation. Rather, the complaint was directed against the actual exercise of the case management powers conferred on the court under the RHC to adjourn the applications in judicial review proceedings brought under the HCO, which Ms Ng said was liable to be impugned in the present context.

82.In my view, whilst section 21K of the HCO confers jurisdiction on the Court of First Instance to deal with judicial review proceedings, one looks to Order 53 of the RHC for the relevant procedure in respect of such proceedings.  Order 1A of the RHC sets out the underlying objectives of “these rules” which necessarily include Order 53 of the RHC, and the need for the court to further the underlying objectives of “these rules” by actively managing cases.  Order 1B of the RHC also provides that the case management power to, say, adjourn a hearing subject to condition,[19] is “in addition to and not in substitution of any powers given to the court by any other rule or practice direction or any other enactment or any powers it may otherwise have”.[20]  That being the case, there is no question of principle over the interaction of the HCO and the RHC or whether the provisions in the latter would infringe or cut down on the jurisdiction granted in the former.

83.Thus, the true question is whether the actual exercise of the powers under Orders 1A and 1B of the RHC is liable to be impugned in light of the submissions made by Ms Ng. That being the case, it is, in my view, quintessentially a case management matter rather than a matter of principle.

84.But before I turn to Ms Ng’s submissions on the applicant’s challenge to the exercise of case management discretion in granting the Order, it is useful to remind that the validity of such exercise of discretion must be considered in light of the circumstances at the material time and not through the prism of hindsight.  This is especially pertinent in the present proceedings when the Appeal Leave Hearing did not take place until half a year after the Order was made.  Both Ms Ng and Ms Cheung had no quarrel with such approach.

IX. APPLICANT’S CASE – USM GROUND

85.Ms Ng noted that one of the reasons for imposing the Requirement for the adjournment of the JR Leave Application was to provide an opportunity to consider the USM then expected to come into effect by the end of 2013 and to revisit the utility of the JR Leave Application. She argued that the only question is whether, once the new USM was in place, the JR Leave Application on the policy grounds would in law be of no utility and accordingly relief would be refused.  Ms Ng submitted that the relevant consideration was whether an adjournment to await developments is good exercise of case management power conferred on the court.

86.Ms Ng argued that since the applicant had made an all-in claim, the USM had no relevance unless he was entitled to have his all-in claim assessed afresh under the USM.  If the applicant makes no new claim, then the CAT determination against him would remain intact and he could be deported to his country of origin unless he succeeds in his judicial review application against such determination.  It was said that since the Director denied the applicant’s claim was all-in or he had a legal duty to consider the policy grounds before the Court of Final decisions in Ubamaka v Secretary for Security [21] and C v Director of Immigration,[22] an adjournment to allow the applicant to consider the new USM was unnecessary.

87.Further, Ms Ng submitted that whilst relief might be refused on the ground of existing alternatives which would render the application for judicial review of no utility, there was no authority for refusing relief on the ground of future developments which might render the application of no utility.  But even if there was, the appropriate stage at which to consider refusal of relief would be at the end of the substantive hearing and not at the leave application stage. The applicant could consider the USM and revisit the utility of judicial review after leave is granted and before the substantive hearing. Anyway, for both the applicant’s and the Director’s case, the USM would most unlikely render the JR Leave Application to be of no utility, and as a matter of principle judicial discretion to refuse relief where illegality is established, as the applicant claimed in the present proceedings, is severely restricted and inappropriate.[23]

88.I should say at the outset that pending the JR Leave Hearing to be heard in August 2014, it is inappropriate for me to come to any definitive view on the viability of the JR Leave Application, and I do not propose to do so.

89.But there can be no doubt that at the time when the Order was granted, the USM was expected to come into operation quite soon (ie in about two months) and the applicant also relied on the policy grounds in the JR Leave Application. Bearing in mind such imminence of the USM which would allow the applicant to better understand the terms of its operation, I do not see why taking into account the opportunity for the applicant to make any non-refoulement claim under the USM (if he so wished) and/or whether it may have impact on the utility of the JR Leave Application (at least to narrow the issues) is an irrelevant or irrational factor.

90.Ms Ng’s contentions were premised on the suggestion that the USM would be unlikely to render the JR Leave Application of no utility and at best it should be considered after leave to apply for judicial review is granted,[24] but there are countervailing arguments. Recently, Lam VP in his Reasons for Judgment in RI [25] touched upon this issue. In that case, the court below refused to grant leave for the applicant to apply for judicial review against the adjudicator’s decision to reject his petition against the Director’s determination of his torture claim.  When he applied for leave to appeal out of time, the applicant (by then legally represented) intended to substitute his Form 86 with a draft amended Form 86 that sought to expand his case to cover the policy grounds. In the end, the CA refused leave to appeal out of time because there was no merit to the challenge on the torture claim and the intended challenge on the policy grounds was disallowed:

“8. There is no suggestion that the Applicant is barred from submitting his CIDTP claim or Refugee claim to the Director for consideration under the USM (which has come into operation since March 2014). Nor is there any suggestion that he is subject to any risk of removal pending the processing of these claims.

9. Thus, the position we have is that there has not been any substantive determination of the CIDTP claim and the Refugee claim by the Director. In these circumstances, we cannot see any reason why the Applicant should not be required to have his claims determined under the USM before the court entertains any application for judicial review regarding the same. Even though we are concerned with fundamental rights, the court is still exercising a supervisory jurisdiction in these kinds of cases. Notwithstanding the need for the court to adopt an anxious scrutiny and to examine whether the high standards of fairness have been satisfied (see Secretary for Security v Prabakar (2004) 7 HKCFAR 187), the primary decision maker is the Director. We do not find anything said in Ubamaka or C v Director of Immigration to contradict this fundamental principle of public law.

10. In short, in the absence of a determination by the primary decision-maker when it is possible for an applicant to submit his or her CIDTP claim and/or Refugee claim to that decision-maker for consideration, it is pre-mature for the court to entertain such claims by way of judicial review.  To allow such claims to be advanced in the absence of a primary decision is to arrogate the court to the role of a primary decision-maker.  This is not the proper role of the court in an application for judicial review.”

91.Without forming any definitive view, it cannot be said that giving consideration to the USM would necessarily be of no utility. Awaiting the implementation of the USM would allow the applicant to consider how best to deal with his claim based on the policy grounds and whether he should pursue such claim under the new scheme or under the JR Leave Application.  In my reasons for the Order, I made clear there was no question of requiring the applicant to drop the policy grounds at that stage, and it was up to the applicant to consider his position in light of the new scheme. Given that there is a possibility that the USM may offer a suitable avenue to ventilate the applicant’s policy grounds and thereby narrow the scope and grounds of the JR Leave Application, I cannot see how bearing the USM in mind in the exercise of case management discretion in granting the Order was misconceived or outside the ambit of reasonable decision in the present context.

X. APPLICANT’S CASE – TEST CASE GROUND

92.Ms Ng argued that to adjourn the JR Leave Application to be fixed at an appropriate time after the hearing of the Test Case was wrong and irrational since the Test Case would not be binding on this court in dealing with the JR Leave Application, and the adjournment on such basis would not save the court’s time.  It was said that the benefit of the decision of the Test Case as reference would be no more than any other decision falling from any other court in which the issues were similar, so proceeding with the JR Leave Application would be as good as the Test Case as it might form reference for other cases before other courts.

93.DA’s letter dated 7 April 2014 to the DOJ [26] and Ms Ng’s 2^nd Submissions of 8 April 2014 went even further by claiming that:

(a)    Ms Cheung’s submissions at the Directions Hearing that the JR Leave Hearing should be adjourned sine die pending the outcome of the Test Case to be heard before Au J on 25 March 2014 “proved to be completely misconceived and to have misled the court” as shown by the Further Directions with the consequence that substantial time was wasted, and the JR Leave Hearing was irretrievably delayed;

(b)    following the Further Directions and DA’s further submissions, this court “accepted [DA’s] position, contrary to [the DOJ’s] submissions on 10 October 2013 and varied the Order made on the same day”.

94.I cannot agree with such submissions.  I do not see that the DOJ had misled the court.  Notwithstanding the DOJ’s submissions at the Directions Hearing, this court did not agree to adjourn the JR Leave Application sine die, but required a date be fixed for the JR Leave Application subject to the Requirement.  The Order was granted pursuant to a balancing exercise upon taking account various considerations in the exercise of case management.

95.Ms Cheung’s proposal was no different from the treatment of the Pool Cases (apart from the Test Case) under the Initial Directions, and there was no basis to say that the Further Directions demonstrated that such proposal (or the Initial Directions in respect of the Pool Cases) was misconceived.  This is apparent from Au J’s observations when he granted the Further Directions. He made clear that it has never been the objective and effect of the Initial Directions for the Test Case to have binding effect; rather it was intended to canvass the policy grounds in the Test Case so that other applications for leave to apply for judicial review that also relied on the policy grounds could take into account the decision of the Test Case, and it was for such case management purpose that Au J granted the Initial Directions.  At the time of granting the Order, the Initial Directions were already in place and it was expected that the Test Case would be identified by 10 March 2014.  One cannot view the matter through hindsight (ie that subsequently the applicants in the Pool Cases were unable to identify the Test Case) and therefore conclude that Ms Cheung’s submissions and/or the court’s consideration of various factors at the Directions Hearing were misconceived.

96.Further, it was without prejudice to the Appeal Leave Summons that the parties discussed the proposal to vary the Order, [27]and this court granted the Varied Order on the practical basis that there would no longer be any Test Case and the Director and the Secretary had no objection to the removal of the Requirement. This court did not intimate any acceptance of the applicant’s position or rejection of the DOJ’s stance in respect of the Appeal Leave Application.

97.In my view, there can be no doubt that the court has wide case management powers under Order 1B rule 1 of the RHC to adjourn an application for leave to apply for judicial review on terms.  As explained above, the policy grounds were also raised in the Pool Cases, and Au J exercised his case management powers by granting the Initial Directions to adjourn the Pool Cases (save for the Test Case) sine die.  Here, by the Order I rejected the notion of adjourning the JR Leave Hearing sine die (as for the Pool Cases) and directed the parties to secure a date for the JR Leave Hearing by fixing a date within 21 days.  Thus, as at the time of the Directions Hearing, the Order ensured that the JR Leave Hearing would proceed to a hearing even more quickly than the ten Pool Cases apart from the Test Case.

98.Even that did not satisfy the applicant who considered the Requirement an unwarranted hurdle.  But given that the policy grounds were raised in the Test Case (and also in the other Pool Cases) for which a hearing date had already been scheduled (ie 25 March 2014), I am unable to see why this would not be a relevant factor to be taken into account in deciding the time when the JR Leave Application ought usefully to be heard.

99.In my reasons for the Order, I made clear that the applicant was not precluded from pursuing the policy grounds if in the end he so wished, and like Au J this court did not suggest that the Test Case would be binding. But there being a Test Case, it is clearly relevant to consider whether with the benefit and guidance of a decision in such test case that submissions and arguments in other cases (including the present proceedings) raising the same issues would be reasonably more focused and refined without having to argue all matters afresh thereby saving time and costs for all relevant applicants and making sensible deployment of the court’s resources, especially when bearing in mind the number of applications in judicial review cases that also raised the same issues.

100.I am also not persuaded that in the balancing exercise that led to the Order overriding weight should be given to the perceived advantage of having multiple proceedings that also raised the policy grounds to proceed in tandem to result in independent judgments for hearing together on appeal by the CA such that this factor would necessarily outweigh the other considerations discussed in the above paragraph and in the reasons for the Order, especially given the underlying objectives of reasonable proportion and procedural economy, and sensible deployment of the court’s resources.  Ms Ng emphasised the underlying objectives of expedition and fairness, but they could not be looked at in isolation from the other underlying objectives of cost-effectiveness, reasonable proportion, procedural economy and fair distribution of the court’s resources.  In not requiring the applicant to abandon the policy grounds and in declining to adjourn the JR Leave Application sine die, and indeed directing the parties to promptly fix a date  for the JR Leave Hearing (subject to the Requirement), there is no basis for suggesting that just determination of the dispute could not be secured.

101.Ms Ng submitted that linking the JR Leave Application to the Test Case adds to uncertainty since any appeal against the decision of the Test Case would almost certainly provoke a further adjournment pending appeal. I am not persuaded that these are real concerns.  By the Order, there was no suggestion that the Test Case would be binding, and I directed the parties to proceed to fix a date for the JR Leave Hearing within 21 days of the Order.  When the decision in the Test Case is delivered or handed down, there would have been a scheduled hearing date for the JR Leave Hearing.

102.It was also suggested that there was uncertainty as to (a) what a test case meant in respect of the policy grounds, (b) how a test case would be identified and selected by the applicants themselves, and (c) what binding effect the outcome might have on the cases which were not selected. I have dealt with (c) in the discussion above, and indeed Au J also clarified the position of the court all along in respect of such matter that the outcome of the Test Case was not intended to be binding.  As regards (a) and (b), it must be noted that as at the time of the making of the Order, the Initial Directions were in place and it was then expected that the Test Case would be selected by 10 March 2014, and indeed a hearing date for the Test Case was scheduled for 25 March 2014. It is inappropriate to consider the matter ex post facto with the Further Directions (ie removal of the Test Case) in mind.

103.Ms Ng argued that the Director’s assurance that the applicant would not be removed from the jurisdiction pending final disposal of the present proceedings did not mean that he would not suffer any prejudice.  She referred to GA v Director of Immigration,[28] a decision handed down after the Order, and submitted that although the Court of Final Appeal held that no constitutional or common law right to work existed in favour of persons like the applicant, it was open to the applicant to show there was substantial and imminent risk of inhuman and degrading treatment if the Director did not grant him permission to work pending the disposal of the JR Leave Application.[29]  But it is also clear from the authorities that the burden was on the applicant to establish such prejudice, and in any event, in respect of the balancing exercise for the case management order made at the Directions Hearing (ie the Order) this court has taken these considerations into account.[30]

104.In all the circumstances, I am not persuaded that the applicant has established the threshold criteria for leave to appeal against a case management decision to show that the Order served no rational purpose, that any benefit is speculative and/or peripheral, and that it would set a bad precedent that would erode the two-stage approach for judicial review.  In making the Order, this court has taken into account the countervailing arguments of the parties,[31] and conducted a balancing exercise that took into account Ms Ng’s concerns as well as the Director’s assurance [32] (such that this court considered the application should not be required to abandon the policy grounds at that stage or the JR Leave Application should be adjourned sine die), but at the same time set a case management timetable in light of the number of applications that relied on policy grounds and the general state of court diaries that enabled harvest of the possible utility of the USM and also the possible benefit of the Test Case to narrow issues and/or to refine/refocus arguments for the JR Leave Application.  Indeed, the applicant in the present proceedings was better placed than the applicants in the Pool Cases (apart from the Test Case) under the Initial Directions as their applications were all adjourned sine die.  The fact that ex post facto events conspired to render such case management intent academic is no basis for challenge against the Order.

XI. GENERAL PUBLIC IMPORTANCE

105.Ms Ng also argued that there existed “some other reason in the interests of justice why the appeal should be heard”.  She referred to Buckle v Homes[33] in which Bankes LJ said that leave to appeal should be granted “because the question was one of general importance and one upon which further argument and a decision of [the appellate court] would be to the public advantage”.  In light of the above analysis, I do not agree that this intended appeal raised any matter of general public importance.

XII. CONCLUSION

106.In the circumstances, I order that costs of and occasioned by the Appeal Leave Summons (including the argument on costs at the Appeal Leave Hearing) be paid by the applicant to the Director and the Secretary to be taxed if not agreed, and the applicant’s own costs be taxed in accordance with Legal Aid Regulations. For the record, both Ms Ng and Ms Cheung agreed that the costs in respect of the argument on costs at the Appeal Leave Hearing should follow event.

Ms Margaret Ng, instructed by Daly & Associates, assigned by the Director of Legal Aid, for the applicant

The 1^st putative respondent excused from attendance

Ms Jenny Cheung, Senior Government Counsel of Department of Justice, for the 2^nd putative respondent and the interested party