SITI KHOTIMAH v. DIRECTOR OF IMMIGRATION

CACV 420/2021 & CACV 422/2021

[2022] HKCA 327

CACV 420/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 420 OF 2021

(ON APPEAL FROM HCAL NO. 328 OF 2021)

________________________

________________________

AND

CACV 422/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 422 OF 2021

(ON APPEAL FROM HCAL NO. 731 OF 2021)

________________________

________________________

JUDGMENT

________________________

Hon Poon CJHC (giving the judgment of the Court):

A.    Introduction

1.  In Ng Yat Chi v Max Share Ltd & Another (2005) 8 HKCFAR 1, the Court of Final Appeal affirmed the court’s inherent jurisdiction to deal with abuse of process by making:

(1)  a “Grepe v Loam order”,[1] that is, a restricted application order prohibiting a vexatious litigant from making further applications to the court in existing proceedings without the leave of a judge (“RAO”[2]); and

(2)  an “extended Grepe v Loam order”, that is, a restricted proceedings order prohibiting a vexatious litigant from commencing, without the leave of a judge, fresh proceedings which abuse the court’s process by seeking to re-litigate proceedings which have already concluded (“RPO”).

2.  Since vexatious litigants characteristically engage in lodging wholly unmeritorious appeals thereby abusing their statutory right to appeal under section 14 of the High Court Ordinance,[3] the Court of Final Appeal at [132] further held that the Court of Appeal may in exercise of its inherent jurisdiction make restrictive orders prohibiting vexatious litigants to bring appeals in these terms:

“(c) … the Court of Appeal should have a discretion … if satisfied that the appellate process has been abused, to order that the vexatious litigant should in future not be permitted to appeal to the Court of Appeal against any future refusals of leave or dismissals at first instance unless permission to bring an appeal is granted by the first instance judge.

…

(e) Where the Court of Appeal makes an order restricting appeals, a subsequent decision of the first instance judge to refuse leave to proceed with, or to dismiss, further applications or fresh proceedings, coupled with a refusal of leave to appeal to the Court of Appeal, will be final.  Neither the decision nor the refusal of leave to appeal to the Court of Appeal against the decision would be susceptible to appeal.”

3.  The general practice and procedure for making of RAOs and RPOs under the court’s inherent jurisdiction are now set out in Practice Direction 11.3 – High Court and District Court Restricted Application and Restricted Proceedings Orders.

4.  In the proceedings below, Deputy Judge Bruno Chan (“the Judge”) refused to give leave to the applicants to seek judicial review; and further made RPOs prohibiting them from “commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to any non-refoulement claim of the Applicant in the High Court, without leave of the Court of First Instance (‘CFI’)” for a period of 5 years.  On a proper reading, the subject RPOs are wide enough to cover appeals and applications to the Court of Appeal. Neither Mr Johnny Mok, SC for the putative respondent,[4] the Director of Immigration (“the Director”), nor Mr Abraham Chan, SC, amicus curiae,[5] has contended otherwise.

5.  Two principal issues concerning the subject RPOs immediately arise:

(1)  whether a CFI judge has the jurisdiction to make restrictive orders prohibiting vexatious litigants from lodging appeals and/or making any further applications to the Court of Appeal without leave (Jurisdiction Issue);

(2)  if, yes, whether the Judge has appropriately exercised his discretion in making the subject RPOs against the applicants (Discretion Issue).

6.  Separately, we also need to deal with the applicants’ appeals against the Judge’s refusal to grant them leave for judicial review.

7.  To give the context to our discussion, we will first briefly state the background circumstances leading to these appeals.

B.    Background

8.  Both applicants are repeated non-refoulement claimants.

B1.    CACV 420/2021[6]

9.  Siti Khotimah (“SK”), the applicant, in CACV 420/2021 is an Indonesia national.  She came to Hong Kong on 19 July 2012 as a foreign domestic helper.  Her 2-year employment contract was prematurely terminated on 27 February 2014.  But she did not leave within 14 days as required by her employment visa.  Instead, she overstayed and was arrested by the police on 24 April 2014.  She lodged a non-refoulement claim on the ground that if she returned to Indonesia, she would be harmed or killed by her husband’s creditor over his debts.  Her claim was rejected by the Director by a decision dated 10 December 2015 and a further decision dated 20 January 2017 on all applicable grounds.  Her subsequent appeal to the Torture Claims Appeal Board (“the Board”) was dismissed on 1 December 2017.

10.  SK then applied for leave to apply for judicial review, which was refused by a CFI judge on 12 October 2018.[7] Her appeal to the Court of Appeal was dismissed on 8 April 2019.[8]  She subsequently applied for leave to appeal to the Court of Final Appeal, which was first dismissed by the Court of Appeal on 2 August 2019;[9] and then by the Appeal Committee on  29  September 2020.[10]

11.  Meanwhile, SK was arrested by the police for possession of a forged identity card on 3 January 2020.  She was later convicted and sentenced to prison for 15 months.  On 15 April 2020, she made a second non-refoulement claim to the Director on the same ground as before that she still feared that, if refouled to Indonesia, she would be harmed or killed by the creditors of her late husband, who died in 2018, for his outstanding debts.  On 19 May 2020, the Director requested SK to provide further evidence and information in support, which she subsequently did.

12.  By a notice of decision dated 4 January 2021, the Director refused SK’s application to make a subsequent non-refoulement claim pursuant to section 37ZO of the Immigration Ordinance (“the IO”).[11]

13.  On 10 March 2021, SK commenced the proceedings below, seeking leave to apply for judicial review against the Director’s decision, without however putting forward any ground in the Form 86 or the affirmation in support.  Nor did she do so at the oral hearing before the Judge on 21 July 2021.

14.  Having considered the Director’s impugned decision with rigorous examination and anxious scrutiny, the Judge did not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of SK’s request for subsequent claim.  Finding that there was no prospect of success in her intended application for judicial review, he refused her leave application.[12]

15.  The Judge went on to observe that SK’s non-refoulement claim had already been finally and conclusively determined in previous proceedings, ending with the order of the Appeal Committee dated 29 September 2020; but she still tried to re-litigate her case by making the subsequent claim without any basis.  After referring to two judgments of Chow JA (sitting as an additional judge of the Court of First Instance), namely, Etik Iswanti v Torture Claims Appeal Board [2021] HKCFI 1589 and Re Wahyuni v Director of Immigration [2021] HKCFI 1991, the Judge made the subject RPO against SK.

B2.  CACV 422/2021[13]

16.  Reza Sahin (“RS”), the applicant, in CACV 422/2021 is a Bangladesh national.  He entered Hong Kong illegally on 7 July 2014 and was arrested by the police on the same day.  He raised a non-refoulement claim with the Director on the ground that if he returned to Bangladesh, he would be harmed or killed by members of Awami League, a political party, as he supported their rival, Bangladesh Nationalist Party.  By a notice of decision dated 7 July 2016 and notice of further decision dated 6 June 2017, the Director rejected his application on all applicable grounds.  His appeal to the Board was dismissed on 19 October 2017.

17.  RS’s application for leave to apply for judicial review was refused on 14 September 2018.[14]  The Court of Appeal dismissed his appeal on 4 March 2019.[15]  His subsequent applications for leave to appeal to the Court of Final Appeal were rejected by the Court of Appeal on 27 May 2019[16] and the Appeal Committee on 25 August 2020.

18.  Shortly thereafter, RS made a subsequent non-refoulement claim on 4 September 2020 on the same ground that he would be harmed or killed by Awami League if refouled to Bangladesh.  The Director asked him to provide further evidence and information in support, which he did on 15 December 2020.  By a notice of decision dated 24 March 2021, the Director refused RS’s subsequent claim under section 37ZO of the IO.

19.  On 20 May 2021, RS sought leave to apply for judicial review.  But he did not state any ground in the Form 86 or the affirmation in support.  He was unable to do so at the oral hearing on 11 August 2021 either.  Having considered the Director’s impugned decision with rigorous examination and anxious scrutiny, the Judge did not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of RS’s request for subsequent claim.  He refused RS’s leave application as he could not find any prospect of success in his intended application for judicial review.[17]

20.  The Judge further noted that RS’s non-refoulement claim had already been finally and conclusively determined in previous proceedings, culminating in the order of the Appeal Committee dated 25 August 2020.  He nevertheless tried to re-litigate his case by making the subsequent claim without any basis.  The Judge therefore made the subject RPO against him.

B3.    No leave obtained for the appeals

21.  Despite the subject RPOs, the applicants have not obtained leave from a CFI judge before they lodged the present appeals.

C.    Jurisdiction Issue

C1.  Public interest in preventing abuse

22.  If not effectively curbed, abusive litigation conduct of vexatious litigants will cause enormous harm to the administration of justice.  As Li CJ summarized in Ng Yat Chi:

“3. Abusive proceedings are oppressive to the other parties and result in unfairness to them. To protect themselves against such proceedings, time, effort, and stress are involved and costs have to be incurred. They may be in a weak position to cope. Often, there may be little prospect of recovering the costs incurred.

4. Quite apart from causing unfairness to the other parties, abusive proceedings lead to unfairness to other litigants before the courts.  Judicial resources are inevitably finite. The time which judges and their supporting staff have is of course limited. Where much needed resources are diverted to dealing with abusive proceedings, litigants with cases of real merit suffer as a result.  It will take a longer time for their cases to be dealt with.  Courts should concentrate their resources in dealing with meritorious cases.  Their attention should not be unnecessarily diverted to dealing with abusive proceedings.” 

23.  To maintain its essential character as a court of justice capable of fulfilling its judicial function, the courts at all levels are vested with various powers, by statute and inherent jurisdiction under the common law, to prevent the judicial process from being abused.  The powers are necessarily very extensive so as to be truly effective.  And they are well justified by the immense public interests in protecting the court system from being abused.  In particular, the court needs to develop its inherent jurisdiction to arrest the infinite variety of abuse as soon as they arise in a timely manner.

C2.   Statutory powers

24.  The statutory powers to prevent abuse are contained in sections 27 and 27A of the High Court Ordinance.  The applicable procedure is regulated by Order 32A of the Rules of the High Court.[18]

25.  The old section 27 of the High Court Ordinance had stood in our statute book since 1975 until 2009. It was modelled on section 51 of the English Supreme Court Judicature (Consolidation) Act 1925, which had since been replaced by section 42 of the Supreme Court Act 1981 (“the 1981 Act”).  Evidently because section 27 was inadequate to deal with abuse of process, the Court of Final Appeal observed in Ng Yat Chi that it was advisable to give urgent consideration to amending it: per Li CJ at [21] and per Ribeiro PJ at [106].

26.  The current sections 27 and 27A were consequently enacted in 2009.  Section 27 stipulates:

“(1) The Court of First Instance may, on the application of the Secretary for Justice or an affected person, make an order that—

(a) no legal proceedings shall without the leave of the Court of First Instance be instituted by the person against whom the order is made; and

(b) any legal proceedings instituted by that person in any court before the making of the order shall not be continued by him without the leave of the Court of First Instance.

(2) The Court of First Instance may not make an order under subsection (1) unless—

(a) it is satisfied that the person against whom the order is to be made has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings, whether in the High Court or in any inferior court, and whether against the same person or against different persons; and

(b) it has heard the person against whom the order is to be made or given him an opportunity of being heard.

(3) An order made under subsection (1)—

(a) may be made on such terms and conditions as the Court of First Instance thinks just; and

(b) may provide that it is to cease to have effect at the end of a specified period, but shall otherwise remain in force indefinitely.

(4) A copy of an order made under subsection (1) shall be published in the Gazette.

(5) In subsection (1), affected person (受影響的人) means a person who—

(a)  is or has been a party to any of the vexatious legal proceedings; or

(b)  has directly suffered adverse consequences resulting from such proceedings.

It would appear that a section 27 order may cover appeals to the Court of Appeal.

27.  Relevantly, section 27A provides:

“(1) Leave for the institution or continuance of any legal proceedings by a person who is the subject of an order for the time being in force under section 27(1) shall not be given unless the Court of First Instance is satisfied that—

(a) the proceedings are not an abuse of the process of the court in question; and

(b) there are reasonable grounds for the proceedings.

(2) No appeal lies from a decision of the Court of First Instance granting or refusing leave required under this section, unless leave to appeal has been granted by the Court of First Instance.”

Section 27(A)(2) is equivalent in terms to section 42(4) of the 1981 Act.  As will be seen, section 27A(2) has significant bearing on how to develop the court’s inherent jurisdiction to prevent abuse of the appellate process.

C3.    Inherent jurisdiction to prevent abuse of the appellate process

28.  The powers under the inherent jurisdiction are developed by the courts over time to tackle abuse as they arise.  The power to address abuse of the appellate process is long established.  Importantly, it does not impede on the statutory right to appeal under section 14 of the High Court Ordinance.  As Ribeiro PJ explained in Ng Yat Chi at [129] – [137], the fact that the right to appeal is conferred by statute does not mean that the court’s inherent jurisdiction to prevent abuse is in any way displaced.  It is of the essence of the court’s inherent jurisdiction that the court should have power to prevent the vexatious misuse of that statutory right.  Thus, where the restriction on appeals is a proportionate response to sustained abuse of process and a demonstrated tendency to extend such abuse to the appellate courts, that restriction is justified and does not impede on the vexatious litigants’ constitutional right of access to court.  We would add that the restriction does not impair the essence of the right of appeal because the litigant may still be granted leave to pursue a meritorious appeal.  The leave mechanism strikes a proper balance by preventing further abuse as well as ensuring that meritorious appeals are not shut out. 

29.  Ribeiro PJ said at [132] that the power to prevent abuse of the appellate process should be exercised by the Court of Appeal.  However, as emphasized by Li CJ at [6] and his Lordship at [111], the categories of abuse of process are never closed because as the civil justice system evolves with time, an infinite variety of abuse may arise.  In exercising the inherent jurisdiction to prevent abuse, the court should be flexible in developing remedies which are proportionate to the abuse that has to be dealt with.

C3.1  Exercising the power by the CFI

30.  This brings us to the primary consideration engaged by the Jurisdiction Issue: whether it is a proportionate measure to deal with vexatious appeals for a CFI judge to exercise the power under the court’s inherent jurisdiction to make the restrictive order.  In our view, the answer is yes.  And we will explain why.

31.  First, when Ribeiro PJ’s remark in Ng Yat Chi, [132] is understood in context, his Lordship did not intend to confine the power to make the restrictive order against vexatious appeals to the Court of Appeal with no possible room of development if necessary.

32.  His Lordship’s remark was prefaced by [130] where it was pointed out that the English Court of Appeal in Bhamjee v Forsdick & Others (No 2) [2004] 1 WLR 88 also adopted the view that the court has power to prevent vexatious misuse of the statutory right to appeal and that such power is exercisable by a first instance judge:

“130. Adopting this view, the English Court of Appeal in Bhamjee (No 2) held that it would be consistent with the United Kingdom’s Human Rights protections to impose stringent restrictions on the right of appeal afforded to vexatious litigants:

… if a litigant subject to an extended civil restraint order or a general civil restraint order continues to make the requisite applications pursuant to the order which are customarily dismissed on the grounds that they are totally devoid of merit, a judge may, if he thinks fit, direct that if any further application is dismissed on the same grounds, the decision will be final. This type of order should only be made by a High Court judge or a designated civil judge (or his appointed deputy).  Thereafter an appeal court will have no jurisdiction to grant permission to appeal against any subsequent refusal of permission any more than it has jurisdiction to grant permission to appeal against an order made by a judge exercising his statutory powers under s.42(4) of the 1981 Act.  We consider that if a litigant persists in instituting proceedings or making applications which are totally devoid of merit despite all the earlier efforts the court has made to restrain his litigious activities and to protect its process from abuse, then this will be a legitimate reason why the court should eventually deprive him of the ordinary right to seek to appeal to a higher level of court.  It will be sufficient if any subsequent applications are considered once only. (at §51)”

33.  Significantly, his Lordship said:

“131. The reference to s.42(4) is to the provision in the Supreme Court Act 1981 which provides that where a statutory order has been made against a vexatious litigant, a dismissal of a subsequent leave application is final. That was a provision upheld as valid in Ebert v Official Receiver [2002] 1 WLR 320. No such provision currently exists in Hong Kong in relation to HCO s.27 statutory orders.”

Plainly, it was against such inadequacy in the then section 27 that he went on to say at [132] that the power to prevent abuse of the appellate process should be exercised by the Court of Appeal.  This may be understood as restricting the CFI’s inherent jurisdiction to make such a restrictive order. 

34.  Implicit in what his Lordship said is the general proposition that the scope of the court’s inherent jurisdiction is informed and could be restricted by the relevant statutory provisions.  If, for example, a statutory provision delineates the court’s jurisdiction, the court cannot assume a jurisdiction that is outside the statutory scheme in a purported exercise of its inherent jurisdiction: So Wing Keung v Sing Tao Ltd & Another [2005] 2 HKLRD 11, per Ma CJHC (as he then was) at [31].  Likewise, if on a proper construction, the legislative intent of the provision is to supplant or restrict the court’s inherent jurisdiction, then the court could only appropriately deal with the subject matter under the statutory jurisdiction: Ebert v Venvill [2000] Ch 484, per Lord Woolf at p 494F-G.  Where the inherent jurisdiction has all along existed alongside the statutory jurisdiction, and the relevant provision does not, on a proper construction, seek to limit the inherent jurisdiction in any way, they should operate in tandem in order to deal with the subject matter effectively.  So when the statutory powers to tackle abuse of process are expanded without limiting the court’s inherent jurisdiction, the latter should in principle evolve in line with such expansion.

35.  Thus understood, Ribeiro PJ’s remark at [132] does not exclude the possibility that with suitable amendment to section 27, which both Li CJ and his Lordship had urged, the inherent power to prevent abuse of the appellate process by a CFI judge is no longer restricted.

36.  Second, the inadequacy noted by Ribeiro PJ has since 2009 been rectified by section 27A(2).  Modelled on section 42(4) of the 1981 Act, it brings the local statutory terrain in further alignment with that in England under which a first instance judge may exercise the court’s inherent power to dismiss attempts to further litigate on a final basis with no appeal absent leave: Bhamjee (No 2), at [48]-[51].  Drawing on the comparable English jurisprudence, this Court may now appropriately develop our court’s inherent jurisdiction to prevent abuse of the appellate process by extending the power to make a restrictive order to a CFI judge.

37.  Third, the mischief that needs remedying effectively is the abuse of the appellate process, a prominent hallmark of vexatious conduct.  It is called for when a vexatious litigant has already invoked the appellate process unsuccessfully but persisted by re-litigating his wholly unmeritorious case all over again first in the CFI and when he lost, which is the inevitable result, then in the Court of Appeal by appealing or attempting to appeal.  If only the Court of Appeal has the power to issue an order restricting such a vexatious appeal, it can only do so after the appeal has been lodged and at the hearing of the appeal.  By that time, the appellate process would have already been abused.  That would defeat the very purpose of the order which seeks to nip the mischief of the abuse in the bud.  Thus, to make the order truly effective in protecting the appellate process, a CFI judge should be able to make it when there is a real possibility that the litigant will perpetrate his vexatious conduct, not only in the CFI but also in the Court of Appeal.

38.  Fourth, the restrictive order made by a CFI judge does not prohibit access to the Court of Appeal.  It merely requires the litigant who has already made wholly unmeritorious appeals to satisfy the judge that leave ought to be given for him to pursue the intended appeal.  It does not impede on the statutory right to appeal more than any other ordinary application for leave to appeal to be determined by a CFI judge.  It does not impair the essence of the right to access to the Court of Appeal.  It simply protects the appellate process from abuse, which pursues the legitimate aim of preserving the time and resources of the Court of Appeal for deserving appeals in a way that is proportionate to that aim.

39.  For the above reasons, we hold that if the circumstances so warrant, when a CFI judge makes a RPO or RAO, he may properly exercise his power under the court’s inherent jurisdiction to also make a restrictive order against vexatious appeals under which the litigant concerned cannot appeal without first obtaining leave from him or another CFI judge designated by the Chief Judge of the High Court.  We will say something more about the actual terms of the order in a moment.

C3.2  Procedural safeguard

40.  The CFI judge must of course observe procedural fairness by putting the litigant concerned on notice and giving him the opportunity to address the court before making the restrictive order.

C3.3  Duration of the order

41.  The duration of the order must be proportionate to the abuse by the litigant concerned.  The judge obviously has to take into account all the relevant circumstances in determining what is the appropriate term.

C3.4  Appeal against the restrictive order itself

42.  In Ng Yat Chi, Ribeiro PJ at [132(a)] said that there should in every case remain an unmodified right of appeal to the Court of Appeal against the making of a RPO or RAO.  Section 14 of the High Court Ordinance had since been amended 3 years later in 2008.  By virtue of section 14(1), the statutory right to appeal to the Court of Appeal is now subject to section 14AA, which was introduced at the same time, thus:

“(1) Except as provided by rules of court, no appeal lies to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted by the Court of First Instance or the Court of Appeal.”

Whether or not a RPO or RAO made by a CFI judge concerning proceedings in the CFI is still subject to an unmodified right of appeal to the Court of Appeal in light of section 14AA(1) is not an issue before us.  That has to be dealt with on another occasion.  Relevant to the present appeals is that Ribeiro PJ’s remark was directed towards a RPO or RAO made by a CFI judge concerning proceedings at that level of court.  It does not concern an order restricting vexatious appeals.

43.  In our view, if he sees fit, a CFI judge has the power to require the litigant concerned to obtain leave from him first before appealing against the restrictive order itself.  And if he refuses to grant leave to appeal, his decision is final.  Otherwise, the litigant will most probably take the restrictive order to the Court of Appeal, thereby continuing his abuse of the appellate process.  We recognize that it is a drastic measure but when the circumstances so justify, it is a proportionate and judicially monitored measure to achieve the legitimate aim of preventing abuse of the appellate process.  As observed by the English Court of Appeal said in Bhamjee (No 2) at [51]:

“We consider that if a litigant persists in instituting proceedings or making applications which are totally devoid of merit despite all the earlier efforts the court has made to restrain his litigious activities and to protect its process from abuse, then this will be a legitimate reason why the court should eventually deprive him of the ordinary right to seek to appeal to a higher level of court. It will be sufficient if any subsequent applications are considered once only.” (Emphasis supplied)

C3.5  Appeal against the decision made under the restrictive order

44.  The judge’s decision made under the restrictive order refusing the litigant leave to appeal against the order or judgment made in the underlying proceedings is also final.  The reasoning in Bhamjee (No 2), ibid, equally applies.  See also Ng Yat Chi, per Ribeiro PJ at [132(e)].

C3.6  Terms of the order

45.  Subject to any modification or addition as may be necessary or desirable, an order restricting vexatious appeals coupled with a RAO should provide that:

“[the litigant concerned] is prohibited from making any further application to the Court in [specifying the proceedings concerned] whether before or after judgment, and any appeal, [including this Order (if applicable)] without the leave of a Judge of the Court of First Instance.”; and

an order restricting appeals coupled with a RPO should provide that:

“[the litigant concerned] is prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to or touching upon or leading to [specifying the proceedings concerned], and any appeal, [including this Order (if applicable)] without the leave of a Judge of the Court of First Instance.”

46.  In both cases, the order should go on to provide that:

“No appeal shall lie from a decision of the Judge granting or refusing leave under this Order, unless leave to appeal has been granted by the Judge.”

D.    Discretion Issue

47.  We now turn to the Discretion Issue.

48.  Whether to make an order restricting appeals is necessarily a fact-specific exercise.  Ordinarily, it will be sufficient for the court to focus on the vexatious conduct of the litigant as the proceedings unfolded.  In relation to non-refoulement claims, as are the present appeals, the court may, if it thinks fit, give due regard to the wider context in which the legal process is being abused by unsuccessful claimants.

D1.   The wider context of abuse

49.  In the past few years, an upsurge of non-refoulement claims has appeared at all levels of courts. According to the figures prepared by the Judiciary Administration for the Finance Committee of the Legislative Council:[19]

Judicial Review Cases (“JR”)	2016	2017	2018	2019	2020
Court of First Instance
No. of JR leave applications	228	1,146	3,014	3,889	2,500
No. of JR leave applications filed relating to non- refoulement claims ("NRCs")	60	1,006	2,851	3,727	2,367
No. of leave applications with leave granted	-	-	101	29	5
Court of Appeal
No. of appeals against refusal of leave filed	-	-	410	372	450
No. of appeals against refusal of leave filed relating to NRCs	-	-	392	350	413
No. of appeals against JR decisions filed relating to NRCs	-	-	1	1	1
No. of civil appeals filed	246	298	611	597	-
No. of civil appeals relating to NRCs	1	26	393	351	-
Court of Final Appeal
No. of  applications for leave to appeal (civil)filed	68	47	127	426	289
No. of applications for leave to appeal (civil) filedrelating toNRCs	0	0	65	388	252

50.  It is immediately apparent from the above figures that non-refoulement claims constitute the bulk of judicial reviews and the ensuing appeals in recent years.  And most of them are unmeritorious.  They impose a constant and disproportionate drain of the first instance and appellate courts’ scarce judicial time and resources.  Such an alarming situation provides a compelling case for the court to exercise its power more readily to prevent abuse of its proceedings, including the appellate process, in non-refoulement claims.

51.  Moreover, in 2012, section 37ZO was introduced to the Immigration Ordinance.  It provides:

“(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

…”

It clearly aims at preventing abuse of the screening mechanism for non-refoulement claims.

52.  However, based on the available information to the Immigration Department, there is an obvious increase in requests for subsequent claims in recent years:[20]

	2018	2019	2020	January to October 2021
Number of requests for  subsequent claims	50	116	446	410

Further, after the requests for subsequent claims were rejected, there is also a tendency for such claimants to resort to judicial review again: from around 14% in 2018 (5 out of 35), 31% in 2019 (8 out of 26), 68% in 2020 (57 out of 84) and 53% in the first 10 months of 2021 (234 out of 438).[21]

53.  Under the current removal policy of the Immigration Department, removal of those claimants, even with their requests for subsequent claims rejected, would be suspended because the ongoing legal proceedings constitute legal impediment against removal. Evidently, such claimants are abusing the court system in order to prolong their illegal stay in Hong Kong.  Their abuse not only increases the burden on the court in handling their unmeritorious claims but also adds to the costs on our society.  Public resources involved in the screening process and the litigation divert financial and human resources that would otherwise be available to meritorious non-refoulement claims and other public functions that the authorities have to perform.  Their illegal stay may also pose security risk to society.  This provides another powerful reason for the court to vigilantly deal with abuse of its proceedings, including the appellate process, in non-refoulement claims rejected under section 37ZO.

D2.    The subject RPOs

54.  Turning to the subject RPOs, as demonstrated by the litigation history set out in Part B, the applicants have repeatedly applied to the courts of all levels to litigate their original non-refoulement claims.  They already had the full benefit of the appellate scrutiny of their claims.  When they sought to re-litigate their claims essentially on the same basis, which fell foul of section 37ZO, it was open to the Judge to conclude that, unless restrained, they would most probably pursue further hopeless appeals, which would waste judicial time and resources and impede the access of other meritorious appeals to the Court of Appeal, and that such persistent vexatious conduct warranted restrictions on their right to appeal.  Further, it is beyond doubt that the applicants’ abuse of the court system is a calculated attempt to prolong their illegal stay in Hong Kong under the current removal policy.  Such conduct has to be stopped forthwith.

55.  Although there is no fixed rule for the duration of a RPO, the court would normally impose a 2-year period subject to renewal.  The 5-year duration of the subject RPOs is much longer.  The question is whether it is proportionate in the overall circumstances.  Having regard to the applicants’ past vexatious conduct and the real possibility that they would try every means to prolong their illegal stay in Hong Kong, including continuing their abuse of the court system, 5 years is not, in our view, disproportionate.

56.  In consequence, subject to what we are going to say below, it is entirely legitimate for the Judge to make the subject RPOs to deny the applicants yet another round of appeal to the Court of Appeal without leave.  It is a proportionate measure to subject their right to appeal to judicial control for a period of 5 years.

57.  As noted, the Judge had to observe procedural safeguards before making the subject RPOs.  According to the transcripts of the proceedings, the Judge had asked RS to address the court on the proposed order.  However, the Judge did not do so in respect of SK. Because of such failure, the subject RPO made against SK is liable to be set aside.

E.    Dispositions

E1.  CACV 420/2021

58.  SK’s appeal is devoid of merits as she failed to raise any substantial ground of appeal.  We dismiss it.

59.  For the reason stated in [57] above, we set aside the subject RPO against SK.  To prevent her abuse of the court system, we impose on her the following order:

“(1) The Applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to any non-refoulement claim of the Applicant in the High Court, and any appeal, including this Order, without leave of the Court of First Instance;

(2) All applications for leave under paragraph (1) shall be made to the Judge in charge of the Constitutional and Administrative Law List or such other Judge as may be designated by the Chief Judge of the High Court to hear cases in the Constitutional and Administrative Law List;

(3) At least 7 days before filing any application for leave under paragraph (1), the Applicant do notify in writing each intended defendant or respondent of her intention to make such application, enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced, and if any response is received by the Applicant from any such intended defendant or respondent, that the Applicant do file a copy of each such response together with her said application for leave;

(4) Any intended defendant or respondent having notice of such intended proceedings be entitled but under no obligation to place before the court written representations regarding the same;

(5) All applications made pursuant to this Order and all ancillary matters be dealt with by the court on paper and without any oral hearing unless the designated Judge should otherwise direct;

(6) If the Applicant should issue fresh proceedings falling or which may fall within the terms of paragraph (1) without first seeking the court’s leave, and if such fact should come to the notice of the Registrar of the High Court or any Master or Judge, such fresh proceedings be referred to the designated Judge for a decision as to whether they should be permitted to continue or should be dismissed;

(7) Notice of each decision by the designated Judge made pursuant to this Order be given in writing to the Applicant and to each intended defendant or respondent named in the fresh proceedings;

(8) Whether or not any fresh proceedings are brought to the notice of the designated Judge, if a defendant or respondent is served with such proceedings without the relevant documents being accompanied by either an order granting leave to commence such proceedings or a direction that leave to commence such proceedings is not required, such defendant or respondent be entitled to make no response to such service pending notification of the court’s decision in relation to those proceedings; and that time for acknowledging service or for otherwise responding to such proceedings be deemed extended accordingly;

(9) No more than one leave application under paragraph (1) may be made by the Applicant within any period of 3 months;

(10) No appeal shall lie from a decision of the Judge granting or refusing leave within this Order, unless leave to appeal has been granted by the Judge.

(11) This Order shall cease to have effect at the end of 5 years from the date of this Order; and

(12) A copy of this Order shall be sent to the Registrar of the High Court.”

E2.  CACV 422/2021

60.  As RS has not obtained leave to appeal pursuant to the subject RPO, it is liable to be dismissed on this ground alone.  In any event, he has not advanced any reason to satisfy us that the Judge has erred in any way.  He merely asked not to be refouled.  As his appeal is wholly unmeritorious, we would also dismiss it on substance as well.

61.  To align the subject RPO against him with our discussion above, we vary it as follows:

(1)  Paragraph (1) shall be revised to read:

“The Applicant be prohibited from commencing any fresh proceedings by whatever originating process, or continuing any existing legal proceedings, relating to any non-refoulement claim of the Applicant in the High Court, and any appeal, including this Order, without leave of the Court of First Instance.”

(2)  A new paragraph (9A) be added:

“No appeal shall lie from a decision of the Judge granting or refusing leave under this Order, unless leave to appeal has been granted by the Judge.”

E3.   Costs

62.  These appeals are clearly an abuse of process.  We therefore order the applicants to pay the Director costs on an indemnity basis, to be taxed if not agreed.