Dembele, Salifou and Others v. Director of Immigration

HCMP 1145/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1145 OF 2015

(ON AN INTENDED APPEAL FROM HCAL NO. 44 OF 2014)

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

1.This is an application for leave to appeal against the decision of Au J in HCAL 44 of 2014 on 17 April 2015. Au J handed down reasons for his decision on 5 May 2015. By that decision, the learned judge dismissed the application of the Applicants by a summons of 25 March 2015 seeking leave to cross-examine a deponent of an affirmation filed on behalf of the Respondent in the judicial review and discovery of certain documents. The summons was taken out six months after the affirmation was filed and less than two months before the substantive hearing. The substantive judicial review was heard before Au J on 18 and 19 May 2015 and judgment was reserved.

2.The Applicants sought leave to appeal before the judge and Au J refused leave on 6 May 2015.  This court had said repeatedly in the past that it is important that we should be informed of the reasons for refusing leave at the court below.  The rationale for such a practice is that such reasons could include information which may affect how this court should exercise its discretion in deciding whether leave should be granted and this court is entitled to know why leave is refused below: see Singh Arjun v Secretary for Justice [2014] 2 HKLRD 678; Jenho Development Ltd v Pensonic Technology (HK) Ltd HCMP 277 of 2013, 25 March 2013; Penny’s Bay Investment Co Ltd v Director of Lands  HCMP 222 to 225 of 2015, 19 May 2015 and Lehman Brown Ltd v Union Trade Holdings Inc HCMP 977 of 2014, 17 June 2015. 

3.By now, practitioners should be aware of this practice and failure to produce the reasons for refusal of leave at the court below would delay the processing of the renewed application before this court.

4.The Applicants did not include any judgment for the refusal of leave in their Bundle.  This court therefore directed the Applicants to produce to us the transcript of the relevant hearing.  As it transpired, Au J gave a written decision of 6 May 2015 for refusing leave. 

5.Having considered the submissions of the parties, we are of the view that the intended appeal is not reasonably arguable and leave should not be granted. 

6.The intended challenge is a challenge to the case management discretion of Au J.  As is clear from the Reasons for Decision, one of the significant reasons for refusing leave is the timing of the application.  So far, the Applicants have not provided sufficient explanation as to why the application for cross-examination and discovery was not made much earlier.  It is wholly unacceptable that solicitors should leave the matter to such a late stage bearing in mind that the dates for substantive hearing were fixed in November 2014.  The judge was quite right in rejecting the purported explanation by reference to the hearing on 8 December 2014.  In view of the extensive scope of the discovery sought by the Applicants, it is almost inevitable that if the judge acceded to the application, the hearing dates for the substantive judicial review would be disrupted if not postponed altogether.  Further, these late applications would certainly disrupt the preparation for substantive hearing both on the part of those acting for the respondent and that of the judge.  In this connection, what had been said in different contexts about the duty under Order 1A Rule 3 in To Pui Kui v Ng Kwok Piu CACV 281 of 2012, 21 August 2014 and PW v PPTW CACV 224 of 2013, 16 December 2014 is equally apposite.  In our judgment, the judge was plainly right in refusing these late interlocutory applications.

7.For this reason alone, leave to appeal should not be granted.

8.Further, we do not see any merit in the substantive arguments.  Having read the relevant parts of the Form 86 and the Affirmation of Benson Kwok as well as the other documents included in the Applicants’ Bundle placed before us, we agree with Mr Chan that on a fair reading of the documents, there is no reason to doubt that the policy of the Director has been other than fully reflected in the materials already produced.  Seen in that light, it is not reasonably arguable that the fair and just determination of the application for judicial review requires the cross-examination of Mr Kwok and the discovery of the documents sought by the Applicants. 

9.Neither do we regard it as reasonably arguable that the judge had adopted an incorrect approach in his decision.  The relevant principles were discussed by the judge at paragraphs 9 to 11 and none of the cases cited by Ms Li SC cast doubt on those principles. 

10.For these reasons, we refuse to grant leave.

11.We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination to be reconsidered at an oral hearing inter partes.

12.We order the Applicants to pay the costs of the Respondent in this application. 

13.Having regard to the complexity of the matter and the contents of the submissions advanced before us, we would provisionally fix the costs of the Respondent at $55,000.

Written submissions by Ms Gladys Li SC, and Mr P Y Lo, instructed by Daly & Associates, assigned by DLA, for the applicants

Written submissions by Mr Abraham Chan, instructed by the Department of Justice, for the respondent