Read the full judgment text of CACV 420/2021 & CACV 422/2021 on BabelCite. This Court of Appeal judgment was delivered on 28 February 2022 before Poon CJHC, Kwan VP and Au JA.
Civil procedure – abuse of process – vexatious litigants – restricted proceedings orders (RPOs) and restricted application orders (RAOs) – inherent jurisdiction of the Court of First Instance (CFI) to prevent abuse of the appellate process – statutory framework under sections 27 and 27A of the High Court Ordinance – non-refoulement claims – repeated subsequent claims under section 37ZO of the Immigration Ordinance – both applicants are repeated non-refoulement claimants whose original claims were finally determined at all levels of court and who then sought to re-litigate by making subsequent claims – Whether a CFI judge has the jurisdiction to make a restrictive order prohibiting a vexatious litigant from lodging appeals and applications to the Court of Appeal without leave – Held: yes, a CFI judge may, when circumstances warrant, exercise inherent jurisdiction when making a RPO or RAO to also make a restrictive order against vexatious appeals – the inadequacy identified by the Court of Final Appeal in Ng Yat Chi has been rectified by the 2009 enactment of s.27A(2) modelled on s.42(4) of the UK Supreme Court Act 1981 – confining the power to the Court of Appeal would defeat the purpose of the order – the leave mechanism is a proportionate safeguard that does not impair the essence of the right of access to the Court of Appeal – Whether the Judge appropriately exercised his discretion in making 5-year RPOs against both applicants – Held: yes, in light of the wider context of an upsurge in unmeritorious non-refoulement claims, the persistent re-litigation, and the use of legal proceedings to prolong illegal stay – the 5-year term was not disproportionate – Whether the RPO against SK must be set aside – Held: yes, because the Judge failed to ask SK to address the court on the proposed order, thereby breaching procedural fairness – SK's appeal was nonetheless dismissed as devoid of merits – RS's appeal was also dismissed on the basis that leave was not obtained and was wholly unmeritorious – Costs ordered against both applicants on an indemnity basis.
Legal issues: CFI jurisdiction to make restrictive orders against vexatious appeals · Exercise of discretion in making the subject RPOs · Procedural fairness in making RPO against SK
Outcome: SK's appeal dismissed; subject RPO against SK set aside and a fresh 5-year RPO imposed. RS's appeal dismissed; subject RPO against RS varied to align with the Court's discussion. Both applicants ordered to pay costs to the Director on an indemnity basis.
Cited by 276 cases · Cites 11 cases