DIRECTOR OF IMMIGRATION v. KAN HUNG CHEUNG AND ANOTHER

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)

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D E T E R M I N A T I O N

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Mr Justice Ribeiro PJ:

1.  On 21^st 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 5^th applicant in the proceedings brought by the four.  The Association was joined as the 6^th 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.