Director of Immigration v. Kan Hung Cheung and Another
Read the full judgment text of FAMV 17/2004 on BabelCite. This FAMV judgment was delivered on 17 December 2004 before Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Ribeiro PJ.
Immigration – judicial review – leave to appeal – arguability – locus standi – Court of Final Appeal – great general or public importance – Falun Gong practitioners refused entry – Director of Immigration – individual respondent seeking leave for judicial review – Court of Appeal granted leave – Director sought leave to appeal to Court of Final Appeal – Appeal Committee held that the Court of Appeal's decision on arguability was fact-specific and did not raise any question of great general or public importance – application dismissed with costs.
Legal issues: Leave to appeal on arguability of judicial review challenge
Outcome: Application for leave to appeal dismissed.
Cites 2 cases
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FAMV No. 17 of 2004 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 17 OF 2004 (Civil) (ON APPLICATION FOR LEAVE TO APPEAL FROM CACV No. 331 of 2003) _______________________ Between:
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Date of Hearing: 17 December 2004 Date of Determination: 17 December 2004 _______________________ D E T E R M I N A T I O N _______________________
Mr Justice Ribeiro PJ: 1.On 21st February 2003, four Falun Gong practitioners arrived from Taiwan to attend a conference in Kowloon organized by the Hong Kong Association for Falun Dafa. They were refused entry by the Director of Immigration. They successfully applied for leave to move for judicial review of that decision. 2.The respondents to the present application are a Hong Kong resident who states that he is the chairman of the Association and the Association itself. The individual respondent also sought leave to apply for judicial review of the Director’s decisions in relation to the four Falun Gong practitioners. Chu J refused him leave on the ground that he did not have a sufficient interest in those decisions (HCAL 32/2003, 14 October 2003). 3.The Court of Appeal allowed the individual respondent’s appeal and granted him leave to make the application for judicial review (CACV 331/2003, 29 June 2004, Rogers VP and Le Pichon JA). He has been joined as the 5th applicant in the proceedings brought by the four. The Association was joined as the 6th applicant without objection. 4.Leave to appeal to the Court of Final Appeal having been refused by the Court of Appeal (CACV 331/2003, 1 September 2004), the Director now seeks such leave from the Appeal Committee. He does so putting forward five questions said to be involved in the intended appeal; and said to be questions of great general or public importance. 5.With respect, this application is misconceived. The only decision which has been made by the Court of Appeal is as to the arguability of the respondents’ challenge to the Director’s decisions. This applies to the entire judgment, including paragraph 10 to which Mr Fung SC, for the Director, drew attention. The Court of Appeal has merely held that the respondents’ challenge is sufficiently arguable to merit full investigation on an application for judicial review. 6.Accordingly, while the questions formulated by the Director are of great general or public importance, the issues involved in those questions have not yet been substantively canvassed, let alone definitively decided, in any court. The threshold test of arguability regarding the material issues, including locus standi, are well-established and summarised with reference to the relevant authorities at 53/14/15 and 53/14/18 of Hong Kong Civil Procedure 2004. It plainly cannot be said that the respondents’ case is unarguable. Neither can it be said that the decision as to arguability – which is obviously fact-specific – raises any question of great general or public importance. 7.There is therefore no basis for granting leave to appeal and the application must be dismissed with costs.
Mr Daniel Fung SC and Mr Johnny Mok (instructed by the Department of Justice) for the applicant Mr Paul Harris (instructed by Messrs Ho, Tse, Wai & Partners) for the respondents |