Case Detail

CACV 5/2017

[2019] HKCA 1302

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 5 OF 2017

(ON APPEAL FROM HCAL 172/2015)

________________________

BETWEEN

	H	Applicant
	and
	DIRECTOR OF IMMIGRATION	Putative Respondent

________________________

Before: Hon Poon Ag CJHC, Lam and Kwan VPP in Court

Date of Hearing: 22 October 2019

Date of Judgment: 22 November 2019

________________________

J U D G M E N T

________________________

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

1. We struck out this appeal on 29 October 2018 after refusing leave to appeal to challenge the decision of Chow J not extending time for judicial review to be brought.

2. By a notice of motion of 5 June 2019, the applicant seeks leave to appeal against our decision to the Court of Final Appeal.

3. Since our refusal of leave is made under Section 14AA of High Court Ordinance on the basis that the decision of Chow J is interlocutory in nature, the applicant is prima facie barred by Section 14AB from further appealing.

4. However, Mr Dykes SC representing the applicant argued that section 14AB is unconstitutional insofar as it is applied to judicial review cases. Whilst the Court of Final Appeal has upheld a similar finality provision for District Court appeals[1] in Incorporated Owners of Po Hang Building vSam Woo Marine Works Ltd (2017) 20 HKCFAR 240, Mr Dykes argued that judicial review cases are special. Counsel alluded to the discretionary nature of judicial review and cited the judgment of the Privy Council in Kemper Reinsurance Co v Minister of Finance [2000] 1 AC 1 at p.15H-16C and R (Burkett) v Hammersmith and Fulham Borough Council [2002] 1 WLR 1593 at [7].

5. With respect, these cases are not germane for present purposes as they were decided in relation to the refusal of leave to apply for judicial review when the applications were made within time. It was held in such context that a decision of a court of appeal on a renewed application is in substance a decision in an appeal, as such it is not absurd to have a further appeal to the Privy Council and House of Lords.

6. On the other hand, the subject decision in the present case is the refusal to extend time under Order 53 Rule 4(1), Rules of the High Court, Cap 4A, to apply for judicial review outside the three-month statutory limit. It has been held in MI & IYW v Permanent Secretary for Security[2018] HKCA 419 that such a decision is interlocutory in nature and an appeal against such decision is subject to the leave requirement in Section 14AA.

7. It is noteworthy that Mr Dykes did not submit that Section 14AB is unconstitutional in the context of ordinary High Court proceedings. He confined his challenge to the application of Section 14AB to judicial review proceedings.

8. In the course of judicial review, like other civil proceedings, some interlocutory decisions may be made before a final determination of the merit after a substantive hearing. Though it may not often occur, there can be applications for cross-examination of deponents, discovery of documents in an application for judicial review. There can also be applications for intervention by a non-party and for interim stay too, we cannot discern any good reasons for drawing a distinction between similar interlocutory orders made in judicial review proceedings and in ordinary civil proceedings by virtue of the difference in the nature of the proceedings for the purpose of restriction of appeals to the Court of Final Appeal. We do not accept a general proposition that the restriction in Section 14AB should not be applicable to interlocutory decisions in the context of judicial review.

9. In his oral submissions, Mr Dykes confirmed that his real challenge is confined to the application of Section 14AB to interlocutory decision on refusal to extend time for judicial review to be brought. As counsel submitted, such decision would lead to the court’s refusal to entertain the judicial review application.

10. Mr Dykes is correct in submitting that in most cases, the court would have addressed the merit of the intended application for judicial review in the considering if extension of time should be given. However, merit is not the sole factor. As discussed in AW v Director of Immigration [2016] 2 HKC 393, the exercise involved a multi-faceted assessment in the particular circumstances of the case. Non-exhaustive factors included length of delay, explanation for delay, merits of the substantive application, prejudice and the involvement of questions of general public importance. For example, as held in MI & IYW v Permanent Secretary for Security, supra, at [33] to [39], the inability of an applicant to proceed further with a judicial review was due to his failure to proceed without undue delay as required by the law. In Re Thomas Lai [2014] 6 HKC 1, G Lam J also highlighted that merit is not the sole criterion by reference to the judgment of Litton NPJ in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at 693B and the decision of Hartmann J in Law Chun Loy v Secretary for Justice HCAL 13/2005, 26 October 2006.

11. Similar multi-faceted discretionary assessments also feature in the context of ordinary civil proceedings in the High Court. We accordingly do not find this to be a valid distinction between judicial reviews and other civil proceedings for the purpose of deciding if Section 14AB should apply to the former.

12. Mr Dykes however referred to the final adjudicative power of the Court of Final Appeal under art 82 of the Basic Law as discussed in Solicitor v Law Society of Hong Kong (2003) 6 HKCFAR 570 and submitted that the application of section 14AB in the present context failed to satisfy the proportionality test. Counsel emphasized that judicial review proceedings are sui generis and a determination on extension of time on ground of undue delay is qualitatively different from other general interlocutory decisions. He submitted that the Court of Final Appeal should retain the power of final adjudication in this respect because for important public law issues there should be maximum facility in terms of access to courts[2]. He also submitted that there is no rational connection between the legitimate aim of promoting efficient use of judicial resources and the application of section 14AB to a refusal to extend time to bring judicial review as it is anomalous that an applicant cannot appeal against a refusal of leave to the Court of Final Appeal if he brought the original application out of time when he can do so if he brought the application within time. He emphasized in both scenarios the courts will be concerned with the merits of the applications and they are de facto decisions on the merits.

13. With respect, we do not agree with Mr Dykes.

14. In our judgment, it is wrong to characterize the decision on refusal to extend time as a de facto decision on the merit. In the judgment of Chow J of 3 November 2016, the learned judge discussed all the relevant factors highlighted in AW v Director of Immigration, supra. Apart from addressing the merit of the arguments advanced by the applicant, the learned judge alluded to the substantial length of delay[3], lack of good explanation for the delay[4], the detriment to the good administration of effective immigration control in Hong Kong[5] and no question of general public importance[6] before he rejected the application for extension of time. It was a multi-faceted assessment. In other words, even if the applicant can show that the judge erred in the assessment of merit, as discussed earlier, it does not follow that he could succeed in getting an extension of time.

15. In this respect, the exercise is similar to other interlocutory decisions in civil proceedings where merit is one of the relevant factors. In processing applications for security for costs, applications for service out of jurisdiction, applications for interlocutory injunctions, or even procedural applications for late admission of evidence or adjournment of trial, very often the courts have to carry out some assessment of the merits in the overall exercise of discretion though other factors are taken into account. Yet the appeals in these decisions are all subject to the requirement of Sections 14AA and 14AB even if an appellant’s main contention is that the court’s assessment of the merit is wrong. Hence, insofar as Mr Dykes placed emphasis on the consideration of merit in the context of a refusal to extend time, it is not too different from other interlocutory decisions.

16. This analysis highlighted the unworkability of a test formulated on the basis of a decision involving some assessment of merit. This also answers Mr Dykes’ submission on anomaly.

17. The rules graft out a specific exception in the context of judicial review to Sections 14AA and 14AB for refusal of leave brought within time but this is the limit of the exception. As it has been discussed in MI & IYW v Permanent Secretary for Security, supra, Order 59 Rule 21, in particular Rule 21(2) has identified the types of situation where judgments are regarded as those determining in a summary way the substantive rights of a party and refusal of extension of time to bring a judicial review is not one of them. We do not see any scope for expanding that concept by grafting a further exception in judicial review application whenever such determination involves a consideration of the merit. As we have discussed above, the courts would have addressed the merit since it is a relevant factor. If we were to accede to Mr Dykes’ submission, we would effectively rewrite Rule 21(1)(g).

18. In respect of the submission based on art 82 of the Basic Law, though Incorporated Owners of Po Hang Building v Sam Woo Marine Works Ltd (2017) 20 HKCFAR 240 was decided in the context of appeals from the District Court, the analysis by the Court of Final Appeal in that case is also pertinent for present purposes.

19. In applying the proportionality approach in the context of restriction of the power of the Court of Final Appeal to hear an appeal, two broad aims were identified at [36] to [39]. The first broad aim is to promote the proper and efficient use of judicial resources and to avoid oppressive or unproductive appeals by screening out cases which have no reasonable prospects of success on appeal. In our judgment, this is also a legitimate aim in the context of appeals against refusal of extension of time in judicial review cases. There are many judicial review cases in Hong Kong brought by litigants-in-person and quite a number of them are brought out of time. Further, in many of those cases no question of public importance is involved. The screening process under Section 14AA and the bar imposed under Section 14AB do provide relief in alleviating the workload of the courts in processing unmeritorious applications for leave to appeal to the Court of Final Appeal.

20. In relation to the filtering being carried out by the Court of Appeal as opposed to the Appeal Committee of the Court of Final Appeal, the observations of the Court of Final Appeal at [48] to [53] are also relevant in the present context. In MI & IYW v Permanent Secretary for Security, supra, at [41] and [42], this Court expressed a similar sentiment as set out by Ribeiro PJ at [48] of Incorporated Owners of Po Hang Building v Sam Woo Marine Works Ltd, supra. There is no total ban on appeal in respect of refusal of extension of time to bring judicial review. For cases where an applicant has a reasonable prospect of success or in respect of which there is other reason in the interest of justice (like those in which an important public law point is engaged) for leave to be granted, this Court would have granted leave and the result of that appeal would be an appealable judgment for the purpose of Section 22 of the Hong Kong Court of Final Appeal Ordinance. It is relevant to recall that in the present case Chow J had taken account of the lack of question of general public importance before he exercised his discretion. This Court also found no reason in the interest of justice to support the grant of leave in our judgment of 29 October 2018.

21. As held by Ribeiro PJ, a complaint that the filtering process is undertaken by the Court of Appeal as opposed to the Appeal Committee (which was the submission advanced in that case, similar to the one now advanced by Mr Dykes) is a departure from the proportionality analysis. As observed at the end of [53] by his Lordship:

“ The appellant’s objection to the appellate process being halted at the level of the Court of Appeal is thus not an argument about the proportionality of the statutory measures designed to achieve the aforesaid aim but an argument which disavows that legitimate aim itself. It misapprehends the issue at the core of the proportionality analysis.”

22. There is a further legitimate aim in the context of judicial review proceedings which is the policy as reflected in the setting of a 3-month statutory time limit for the bringing of judicial review: the need for promptitude in making an application of judicial review. The underlying purpose of such policy is to avoid undue disruption and prolonged litigation on public law decision to the detriment of good administration. The availability of a two-tier appeals for interlocutory decisions, including one for extension of time to bring judicial review, would inevitably lead to the prolongation in achieving finality. It is thus legitimate to adopt the screening mechanism under Sections 14AA and 14AB to curtail unmeritorious proceedings of such nature.

23. Similar to the analysis in Incorporated Owners of Po Hang Building v Sam Woo Marine Works Ltd, supra, it is plain that the mechanism of Sections 14AA and 14AB is rationally connected with the legitimate aims and no more than necessary to achieve the same. There is no basis to suggest any individual constitutional rights are infringed and the fourth step in the proportionality analysis is not engaged.

24. For these reasons, we hold that the applicant is subject to the restriction under Section 14AB and such restriction as applied in the present context does not unduly restrict the power of final adjudication of the Court of Final Appeal under art 82.

25. We dismiss the notice of motion of 5 June 2019. We also make an order nisi that the applicant shall pay the costs of the putative respondent in this application. Having considered the statement of costs of 16 October 2019, such costs are fixed at $68,000.

(Jeremy Poon)	(M H Lam)	(Susan Kwan)
Acting Chief Judge of the High Court	Vice President	Vice President

Mr Philip Dykes SC, instructed by Daly & Associates, for the applicant

Mr Jonathan Chang, instructed by the Department of Justice, for the putative respondent

[1] Section 63B of the District Court Ordinance

[2] Citing from Michael J Beloff QC and Helen Mountfield, 3 Judicial Review 119 at §28

[3] At [57] of the judgment

[4] At [58] to [60] of the judgment

[5] At [61] and [62] of the judgment

[6] At [63] of the judgment

CACV 5/2017

[2019] HKCA 712

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 5 OF 2017

(ON APPEAL FROM HCAL 172/2015)

BETWEEN
	H	Applicant
	and
	DIRECTOR OF IMMIGRATION	Putative Respondent

__________________________

Before: Hon Lam VP and Poon JJA in Court

Date of Judgment: 21 June 2019

_______________________

JUDGMENT

_______________________

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

1. By a Notice of Motion of 5 June 2019, solicitors for the Applicant applied for leave to appeal to the Court of Final Appeal in respect of the decision of this Court of 29 October 2018.

2. The decision of 29 October 2018 was a decision refusing to grant leave under Section 14AA of the High Court Ordinance for an appeal to be brought against the judgment of Chow J on 3 November 2016, refusing to extend time to the Applicant to apply for judicial review for a decision of 8 October 2013 (confirmed on 11 August 2014).

3. By a summons of 18 June 2019, the Applicant sought an extension of time to lodge submissions.

4. There was no affidavit evidence in support of the summons. In a letter of 18 June 2019, the solicitors acting for the Applicant merely stated that the Applicant’s legal aid application was pending. They asked for an extension of time (or a stay) pending a final decision of the Director of Legal Aid.

5. We do not see any good reason for granting the extension or the stay.

6. First, it should be noted that the Notice of Motion is irregular. Pursuant to the time limit for making an application for leave to appeal to the Court of Final Appeal set out in Section 24(2) of the Honk Kong Court of Final Appeal Ordinance, the Notice of Motion should be filed within 28 days from the date of the judgment to be appealed from. It is further provided in that sub-section that the applicant shall give the opposite party 7 days’ notice of his intended application.

7. In the present case, the Notice of Motion was filed on 5 June 2019, more than 7 months since this Court’s decision of 29 October 2018. However, the Applicant did not seek any extension of time to lodge the Notice of Motion. The Court only received a notice of application for legal aid on 17 April 2019. By now, the legal aid stay arising from the application of 17 April 2019 have already expired. Given the long lapse of time between our judgment of 29 October 2018 and that notice, the Applicant should account for the substantial delay.

8. However, the Applicant did not file any evidence (nor advance reason by way of submission) to account for the delay in the filing of Notice of Motion. In default of compliance with the practice discussed by Chow J in BH v Director of Immigration [2015] 4 HKC 107 at [103] which was endorsed by this Court in BI v Director of Immigration [2016] 2 HKLRD 520 at [131], which had been reiterated by Chow J in his judgment in the present case at [58], neither the Applicant nor his solicitors provided the Court with a chronology on the progress of his legal aid application since the handing down of our judgment.

9. Second, the unexplained delay is particularly remarkable when the subject matter of the appeal is the decision of Chow J’s refusal to extend time. There had already been very substantial delay before the Applicant made his application at the court below.

10. Third, our striking out of the appeal is based on our refusal to grant leave under Section 14AA. So far, the Applicant had not advanced any submission to explain how an appeal can be brought to the Court of Final Appeal notwithstanding the effect of Section 14AB of the High Court Ordinance.

11. Fourth, despite the absence of legal aid, the Applicant had the service of his solicitors in the preparation of the Notice of Motion. Since his lawyers must have given due considerations to the formulation of the grounds to seek leave in the drafting of the Notice of Motion, the additional works for the preparation of submissions for the leave application should not be that onerous.

12. Since the Applicant saw fit to issue the Notice of Motion without the coverage of legal aid, we do not attach much weight to the claim for concern for potential costs consequence in the absence of legal aid coverage.

13. We therefore dismiss the summons of 18 June 2019. We will however give the Applicant another opportunity to lodge submissions. The Applicant should lodge submissions in support of the Notice of Motion by 3 July 2019. If he does not do so, the Court will dispose of the Notice of Motion based on the existing materials before the Court.

(M H Lam)	(Jeremy Poon)
Vice President	Justice of Appeal

Daly & Associates, for the applicant

The Department of Justice, for the putative respondent

CACV 5/2017

[2018] HKCA 750

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 5 OF 2017

(ON APPEAL FROM HCAL 172/2015)

_______________________________

BETWEEN
	H	Applicant
	and
	DIRECTOR OF IMMIGRATION	Putative Respondent

_______________________________

Before: Hon Lam VP, Kwan and Poon JJA in Court

Dates of Written Submissions: 22 August and 5 September 2018

Date of Judgment: 29 October 2018

_______________________

J U D G M E N T

_______________________

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

1. On 3 November 2016, Chow J refused to extend time to the applicants to bring an application for judicial review in HCAL 172/2015. That application was to challenge the decision of the putative respondent [“the Director”] of 8 October 2013, confirmed on 11 August 2014, rejecting the application for dependant visa by the applicant. The Form 86 in HCAL 172/2015 was lodged by the applicant on 21 August 2015. The applicant sought leave to amend on 6 May 2016.

2. On 10 January 2017, the applicant served and filed a notice of appeal in respect of the decision of Chow J. Even taking account of the legal aid stay arising from the legal aid memorandum of 10 November 2016 (which is applicable even though the appeal had yet to be filed, see Brook v Law Society of Hong Kong [1998] 1 HKLRD 113), the notice of appeal was apparently served outside the appeal period (including the 42-day legal aid stay). Yet, there has been no application for extension of time as in MI & IYW v Permanent Secretary for Security[2018] HKCA 419. In view of subsequent developments, the need for such extension is overtaken by the need to have leave under Section 14AA as explained below.

3. Since Chow J had refused to grant extension of time for the original application for judicial review to be brought, the applicant should have sought leave under Section 14AA to bring an appeal against that decision, see MI & IYW v Permanent Secretary for Security[2018] HKCA 419. Though the actual decision in that case was only made on 23 July 2018, the issue regarding Section 14AA leave had been raised since 3 November 2017 with the solicitors for MI and IYW who have also been representing the applicant in this appeal: see [9] of MI & IYW v Permanent Secretary for Security, supra.

4. But we shall not regard this as a factor against the applicant. Pending the decision of this Court in MI & IYW v Permanent Secretary for Security, supra, the applicant simply followed previous practice in lodging the appeal without obtaining Section 14AA leave first.

5. After the decision in MI & IYW v Permanent Secretary for Security, supra, the Registrar of Civil Appeals directed on 26 July 2018 that if the applicant is minded to proceed with this appeal, he should seek leave within 28 days.

6. The applicant accordingly took out a summons on 22 August 2018 seeking leave under Section 14AA and extension of time to seek such leave.

7. Given the history of the matter, as indicated above, we would not regard the time taken between the decision of Chow J and the summons of 22 August 2018 as delay on the applicant’s part. Notwithstanding the original failure to serve the notice of appeal within time, we are prepared to consider the leave application as if it were brought within time after the decision of Chow J. However, this would not exonerate the applicant in respect of the delay in bringing the application in HCAL 172/2015.

8. The relevant background facts of the applicant’s case were set out in the judgment of Chow J. For present purposes, we are content with taking such facts from [6] to [12] of the judgment:

“ BACKGROUND FACTS
(i) Applicant’s family background and immigration status
6. According to the applicant, he was born on 9 January 1989 in Monrovia, Liberia. His family was killed during the Liberian civil war which began in 1989. After the death of his grandmother in 1997, he was forced to become a child soldier at the age of about 8. He later fled from Liberia and travelled to Ghana, from where some of his family had originated. During his travels he met and worked for a man (“the Agent”) who promised to bring him to the USA. He paid the Agent approximately US$60,000, who travelled with him to Hong Kong via South Africa on or about 7 January 2004. The Agent held the passport which purportedly contained the details of the applicant and dealt with the immigration officer on behalf of the applicant. Afterwards, the Agent abandoned the applicant in Hong Kong. He was 14 years old at that time.
7. The applicant overstayed in Hong Kong after the expiry of his limit of stay as a visitor for 90 days. He first met his current wife, a Hong Kong permanent resident, in or about October 2005. They began dating each other in February 2006.
8. On 28 December 2006, the applicant was arrested by the Police. On 30 December 2006, he was referred to the Immigration Department. He was initially detained in Pui Chi Boys’ Home, later transferred to a holding centre on 9 January 2007, and then to the Castle Peak Bay Immigration Centre on 3 February 2007.
9. In the meantime, the applicant made a refugee claim with the local UNHCR office. His refugee claim was rejected by the UNHCR and his case was closed on [8 March] 2007.
10. On 21 February 2007, a removal order was issued against the applicant. On 15 March 2007, the applicant’s appeal against the removal order was dismissed. On 4 April 2007, the applicant was released on recognizance. He has remained in Hong Kong since that date. He also received education in Hong Kong between 2007 and 2011.
11. On 12 June 2012, the applicant and his wife married. They have no children at present.
12. There are two other matters that I should mention in passing:-
(1) The applicant made a torture claim on 4 January 2007, and a non-refoulement claim on the ground of risk of cruel, inhuman or degrading treatment or punishment on 25 February 2013. His claims are currently being assessed by the Director under the Unified Screening Mechanism.
(2) The applicant has been diagnosed with post-traumatic stress disorder, which he says is linked to his past traumas in his home country, ie Liberia.”

9. But the Director disputed the identity of the applicant: see [14] of the judgment.

10. By the judgment of 3 November 2016, Chow J refused to grant extension of time due to the lack of merits in the intended application for judicial review. He also found that the applicant failed to show a good explanation for the delay and such delay was detrimental to the administration of effective immigration control. He further considered that the applicant’s case involved no question of general public importance. The Judge’s reasons are fully set out in the judgment.

11. In the Notice of Appeal of 10 January 2017, four grounds of appeal were raised. All of them related to the Judge’s finding of lack of substantive merit in the intended application for judicial review. The first two grounds (Grounds 1 and 2) concerned the “known records of detriment” criterion in the dependency visa policy. The other two grounds (Grounds 3 and 4) concerned the doubts of the applicant’s identity.

12. We have read the judgment carefully. In respect of the substantive merit of the intended judicial review, the Judge decided the matter by reference to the “known records of detriment” criterion rather than the doubts on the applicant’s identity. This is crystal clear from [53] and [56] of the judgment. Though he also expressed some views on certain aspects of the latter, those views do not form part of his ratio decidendi in holding that the applicant’s case has no merit. Hence, unless the applicant can persuade us that the appeal is reasonably arguable on Grounds 1 and 2, we need not address Grounds 3 and 4.

13. Ground 1 as formulated in the Notice of Appeal is based on arguments arising from the LegCo Brief. The effect of the LegCo Brief on the policy on dependency visa have been considered and similar arguments have been rejected in the earlier decisions of this Court: BI v Director of Immigration [2016] 2 HKLRD 520 and Comilang Milagros Tescon v Director of Immigration [2018] 2 HKLRD 534. Mr Dykes has not been able to advance anything persuading us that there is a reasonable argument to depart from those authorities.

14. Admittedly, the question of what constituted known record of detriment beyond a criminal conviction has not been the focus in those cases. However, it is clear that the wording of the policy is not confined to criminal convictions. Despite the efforts of Mr Dykes, we do not find there is any reasonable prospect in arguing that the Judge was wrong in his assessment of the various documents relied upon by Mr Dykes at [33] to [45].

15. Ground 2 in the Notice of Appeal apparently proceeds on the premise that on true construction of the policy, the record of detriment must be akin to something which would inevitably lead to a criminal conviction, as such the likelihood of prosecution and conviction are relevant considerations.

16. It must be on that basis that Mr Dykes advanced his arguments on Grounds 1 and 2 together in his submissions of 22 August 2018 at paragraphs 14 and 15 as follows:

“ 14. The objection made to the judge’s construction is that whilst DOI may have legitimate security concerns without there having to be a conviction – e.g. a reputed terrorist seeking entry – where there is a case that might have been prosecuted and it has not been, then DOI should consider why there has been no prosecution.
15. In H’s case the facts were unusual – a 14 year old Liberian abandoned by an adult at the airport. An inquiry into why H was in this position in 2004 might have led to a reassessment of his case as the evidence showed that H had led a settled life and had achieved academic success. It may result in a decision not to prosecute him. See 2^nd Ground in NOA arguing that DOI is not entitled to assume that H would be prosecuted and found guilty after a trial.”

17. With respect, we cannot see any reasonably arguable basis for construing the policy as requiring a record of something which would on all probability lead to a criminal conviction. As fairly accepted by Mr Dykes, the Director could have legitimate security concerns even though there is no criminal conviction or no prosecution.

18. The submission that the Director should have considered the reason why there had been no prosecution is a mutation from the arguments considered by the Judge at [46] to [52] of the judgment. We have read the relevant internal minutes of the officers processing the application as well as the representations of the applicant in his letters of 27 March and 2 April 2014. We cannot find any arguable ground for holding that the Judge was wrong in any respect in his conclusions reached in those paragraphs.

19. As said above, we do not find any error in the Director’s interpretation of the known records of detriment criterion under the policy. In terms of the assessment and the application of such criterion to the case of the applicant, we do not find the Director to be in error in failing to take relevant matters into account or in taking account of irrelevant matters. In such circumstances, the court should not intervene with the decisions of the Director.

20. As regards of the challenge to the finding of unacceptable delay, it premised on the court finding merits in the applicants’ substantive claim, see para 3 of the Notice of Appeal. As we rejected the arguments on substantive merit, it is not necessary to address the issue of delay.

21. In the circumstances, we do not find the appeal to have any reasonable prospect of success and we are not satisfied that there are other reasons in the interest of justice to grant leave under Section 14AA.

22. We therefore refuse to grant such leave.

23. As held in MI & IYW v Permanent Secretary for Security, supra, without such leave, this appeal is incompetent and we make an order striking it out. The appeal is dismissed with costs accordingly. Having considered the Statement of Costs for the Director, we fix the same at HK$35,911. The applicant’s own costs are to be taxed according to Legal Aid Regulations.

(M H Lam)	(Susan Kwan)	(Jeremy Poon)
Vice President	Justice of Appeal	Justice of Appeal

Mr Philip John Dykes SC, instructed by Daly & Associates, assigned by the DLA, for the applicant

Mr Cheung Siu Nam, Senior Government Counsel, of the Department of Justice, for the putative respondent

H v. DIRECTOR OF IMMIGRATION

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