HO MING SAI AND OTHERS v. THE DIRECTOR OF IMMIGRATION

IN THE COURT OF APPEAL

1992, No 162
(Civil)

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J U D G M E N T

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Kempster, V.-P.:

1. This is the judgment of the Court.

2. On 9 February last a division of this Court comprising my Lords Litton JA, Godfrey J and myself dismissed with costs an appeal by Ho Ming Sai, Ho Ming Fung and Ho Juen Hoi ("the applicants") against the refusal of Nazareth JA, sitting as an additional judge of the High Court, to grant them leave to seek the judicial review of the decision of the Director of Immigration not to authorise them to remain in Hong Kong. Against the order dismissing their appeal the applicants now ask us to exercise our discretion under Rule 2(b) of the relevant Order of Her Majesty in Council to grant them leave to appeal further.

3. In context Rule 2(b) reads:

"Subject to the provisions of these rules, an appeal shall lie -

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(b) at the discretion of the Court, from any other judgment of the Court, whether final or interlocutory, if, in the opinion of the Court, the question involved in the Appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to Her Majesty in Council for decision."

4. It has been argued before us by Mr Barlow, for the applicants, that three questions arose at the hearing before this court which are to be regarded as of great general or public importance. On the hypothesis that these questions can properly so be described we have considered, among other matters, the applicants' prospects of success in determining whether or not the discretion of this Court should be exercised in their favour.

5. The gravamen of the submissions which Mr Barlow has made to us is that the decision of the English Court of Appeal in Schmidt & Other v Secretary of State for Home Affairs [1969] 2 Ch 149 is ripe for review by a higher tribunal. That decision has stood, as far as our researches go, without judicial criticism anywhere in the Commonwealth for many years and while last specifically referred to in England, with approval, in Cinnamond v British Airports Authority [1980] 1 WLR 582 the principle which it enunciated was assumed to be correct by the Judicial Committee in Attorney-General v Ng Yuen-shiu [1983] 2 AC 629 at p 636. Further, it has to be remembered that this is an unusual application for leave to appeal against a refusal, in limine, to permit an application for judicial review pursuant to Order 53 of the Rules of Supreme Court.

6. Another factor, of which we were unaware until this morning, is that by Notice dated 10 February of this year these applicants have given notice that they will seek leave judicially to review another decision of the Director of Immigration, made on the 3rd of that month pursuant to s 13 of the Immigration Ordinance. The basis of the application is his alleged failure to have regard to the provisions of the Hong Kong Bill of Rights Ordinance but many of the grounds advanced again raise matters of fact canvassed before us earlier this year.

7. Having regard to all these circumstances we do not think it appropriate to exercise our discretion in the applicants' favour either on grounds of great public or general importance "or otherwise".

8. The application is dismissed.