Read the full judgment text of CACV 138A/2009 on BabelCite. This Court of Appeal judgment was delivered on 31 May 2011 before Stock VP, Fok JA and Andrew Cheung J.
Administrative law – judicial review – leave to appeal to Court of Final Appeal – immigration – deportation – double jeopardy – cruel, inhuman or degrading treatment – Hong Kong Bill of Rights – Article 3 HKBOR – Article 7 ICCPR – Article 14(7) ICCPR – Article 11(6) HKBOR – common law – public law irrationality – Article 39 of the Basic Law – UK Immigration Reservation of 1976 – 'as applied to Hong Kong' – section 11 of the Hong Kong Bill of Rights Ordinance – Court of Final Appeal Ordinance, Cap. 484, s.22(1)(b) – application to set aside deportation order – Nigerian national facing deportation and possible retrial – whether retrial and reimprisonment for same conduct capable of constituting cruel, inhuman or degrading treatment – held not reasonably arguable on facts – whether real risk of CIDT or double jeopardy in another jurisdiction renders deportation unlawful – held not reasonably arguable – whether Article 39 of the Basic Law requires the whole of the ICCPR to be applicable in Hong Kong such that the UK Immigration Reservation is to be narrowly construed or invalid – held question of substantial importance but not reasonably arguable on the meanings contended for and unnecessary to decide on the facts – leave refused – Court of Appeal's earlier judgment restoring the deportation order stands.
Legal issues: Whether retrial and reimprisonment for same conduct can constitute CIDT · Whether risk of CIDT or double jeopardy in another jurisdiction renders deportation unlawful · Interpretation of 'as applied to Hong Kong' in Article 39 of the Basic Law and validity of the UK Immigration Reservation
Outcome: Application for leave to appeal to the Court of Final Appeal refused.