Pav v. William Lam, Adjudicator (Torture Petitions) and Another

CACV 121/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 121 OF 2014

(ON APPEAL FROM HCAL NO. 88 OF 2013)

________________________

BETWEEN

________________________

____________

JUDGMENT

____________

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

1.The Applicant sought leave to apply for judicial review in respect of the determination of his claim under the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Leave was refused by L Chan J on 23 May 2014 after a hearing on 29 April 2014. This is his appeal against the refusal of leave.

2.On 9 June 2014, the court gave directions for the service of notice of appeal to the putative respondent and putative interested party.  After such service, the putative respondent indicated that he would take a neutral stance and sought to be excused from attending the hearing of the appeal.  On 20 October 2014, after further correspondence, government counsel acting for the putative interested party [“the Director”] indicated that the Director did not intend to appear at the hearing.  However, the Director also contended that leave ought to be refused. The Director supplied the court with copies of the Initial Response and skeleton submissions which had been placed before the judge at the hearing below. 

3.In light of these developments, and mindful that this is an appeal against the refusal of leave (as opposed to an appeal against a substantive decision in a judicial review), at the request of the solicitors for the Applicant, this court gave directions on 23 October 2014 to facilitate the expeditious, economical and just disposal of the appeal.

4.Pursuant to those directions, the Applicant lodged skeleton submissions for this court’s consideration. 

5.Irrespective of the stance of the putative respondent and the stance of the Director, the Applicant carries the burden of persuading this court that the appeal should be allowed.

6.For the purpose of this appeal, the relevant facts have been adequately set out in the judgment of L Chan J of 23 May 2014 and we do not need to repeat the same in this judgment. After reading the submissions of Mr Dykes SC on behalf of the Applicant, this court decides to allow the appeal on paper.  At the time when the judge considered the matter, he did not have the benefit of the judgments in ST v Betty Kwan [2014] 4 HKLRD 277 and Re MI CACV 69 of 2014, 26 September 2014.

7.Applying the approach laid down by this court in ST v Betty Kwan  [2014] 4 HKLRD 277 to the present case, it is reasonably arguable that the Adjudicator should have held an oral hearing in the circumstances of the present case for the following reasons:

(a)   From the letters of 27 September, 5 and 26 October 2012 from Barnes & Daly to the Petition Team, it  is reasonably arguable that the Adjudicator should be aware that the Applicant had not placed before the Adjudicator all the materials or information he wished to rely in support of his petition; 

(b)   Even though the Applicant did not have any right to delay the process, it is reasonably arguable that against such unusual circumstances, in view of the high standard of fairness required for proceedings of this nature, the Adjudicator should at least give a further warning to the Applicant that he intended to proceed with the substantive determination of the petition before he actually did so;

(c)   In view of the lack of particulars in matters alluded to in the letter of 27 September, in line with the approach discussed in ST v Betty Kwan  [2014] 4 HKLRD 27, it is reasonably arguable that the Adjudicator should hold an oral hearing in order to clarify or seek further details from the Applicant;

(d)   Before the Adjudicator drew inference from the Applicant’s safe departure from Sri Lanka (see para 11 of his determination), it is reasonably arguable that he should give an opportunity to the Applicant to explain and if necessary the Adjudicator should undertake further probing and inquiry, see SS v William Lam CACV 95 of 2013, 4 November 2014; and

(e)   The same observation can be made regarding the Adjudicator’s comment on the injury suffered by the Applicant (at paras 13 and 14 of his determination) and the issue of credibility (at paras 15 and 17).  

8.It is also reasonably arguable that at paras 9 to 10 of the determination the Adjudicator had not referred to the relevant Country of Origin Information in light of Re MI CACV 69 of 2014, 26 September 2014.

9.At this stage, we have only decided that leave should be granted for the substantive judicial review application.  We have not decided that the Applicant would succeed in the judicial review application.  In the circumstances, we are of the view that a fair order for costs is that the costs here and below shall be in the cause of the substantive judicial review application. 

10.At the same time, we would also urge the Applicant and the Director (who indicated that he would play a more active part in the substantive judicial review) to have regard to the underlying objectives in Order 1A Rule 1.  In view of this judgment, we believe there should be scope for the matter to be resolved economically, expeditiously and fairly by adopting the practice in para 23 of practice direction SL3.      

Written Submissions by Mr Philip Dyks, SC and Mr Earl Deng, instructed by Daly & Associates, for the Applicant