Syed Haider Yahya Hussain and Another v. The Registrar of Births and Deaths

CACV000077A/2000

CACV 77/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 77 OF 2000

(ON APPEAL FROM HCAL NO. 73 OF 1999)

Coram: Hon Leong CJHC, Rogers VP and Le Pichon JA in Court

Date of Hearing: 20 February 2001

Date of Judgment: 20 February 2001

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J U D G M E N T

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Hon Rogers VP (giving the judgment of the court):

1. This is an application for leave to appeal to the Court of Final Appeal from a decision of this Court given on 13 October 2000. The appeal before this court arose in an immigration case and the application has been put on a number of bases.

2. It was first put on the basis that it could affect a large number of people. However, on the papers before this court that has not necessarily been made out. It is difficult to discern where the large numbers will come from. Indeed, as Mr Kwok has pointed out in his short and precise submission, when one analyses the case it seems quite likely that there are very few people who would fall into a similar category to that of the present applicants.

3. Nevertheless, leave to appeal to the Court of Final Appeal is dependant on a number of things. Sub-section (b) of section 22(1) gives power to grant leave where the question involved in the appeal is one which by reason of its great general public importance or otherwise ought to be submitted to the court for decision.

4. In my view, in this case the words "or otherwise" are probably applicable in this case. This is a matter of immigration. It is a developing branch of law. The decision of the Court of Appeal was a majority decision and overruled the judge below. There are, therefore, clearly issues to be decided there. Without saying more at this stage, immigration cases might be considered to be cases which are appropriate to be decided by the Court of Final Appeal. Whether that situation will continue for long is a matter to be seen. At any rate at this stage, the issues in this case are sufficient to bring the case within the proviso "or otherwise" to merit giving leave to appeal to the Court of Final Appeal.

Representation:

Mr Kwok Sui Hay, instructed by Messrs Clarke & Kong, for the Applicants/Respondents

Mr William Marshall, SC and Mr Lee Tin Yan, GC of the Department of Justice, for The Registrar of Births & Deaths/Applicant