DIRECTOR OF IMMIGRATION v. KHAN MOHAMMAD SHADAB

HCMP 1552/2021

[2022] HKCFI 2257

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1552 OF 2021

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D E C I S I O N

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1.  By my Decision dated 31 January 2022, [2022] HKCFI 194, I made an order (“Section 27 Order”) under section 27 of the High Court Ordinance Cap 4 (“HCO”) prohibiting the Defendant from instituting or continuing with legal proceedings relating to any non-refoulement claim without the leave of the Court of First Instance (“CFI”).

2.  Now, by way of a Form 27A filed in this action on 19 April 2022, the Defendant applies for leave to institute or continue with legal proceedings under O. 32A r.2 of the Rules of the High Court Cap 4A.

3.  In making the Section 27 Order, I was satisfied, as was necessary, that the Defendant had 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.

4.  In gist, after his non-refoulement claim was rejected by the Director and then the Torture Claims Appeal Board, the Defendant exhausted all the available judicial mechanisms from the Court of First Instance to the Court of Final Appeal in an attempt to overturn the Director’s decision by way of judicial review.  After the Court of Final Appeal’s ultimate refusal to grant leave to appeal on 6 January 2020, he raised a subsequent non-refoulement claim in June 2020 which was also rejected by the Director.  The refusal of the subsequent claim has been made subject of another application for judicial review in HCAL 1577/2021.  It was at that juncture the Director applied for and was granted the Section 27 Order.

5.  Section 27A(1) of the HCO provides that leave for institution or continuance of any legal proceedings should not be given unless the Court is satisfied that (a) the proceedings are not an abuse of the process of court in question and (b) there are reasonable grounds for the proceedings.

6.  O.32 r.2(1) requires an applicant seeking leave for institution or continuation of legal proceedings to state the order the applicant is seeking and the brief reasons why the order is sought.  O.32, r.2(2) requires the filing of any affidavit evidence which the applicant seeks to rely on in support of the leave application.

7.  In light of the numerous attempts being launched to avoid the consequences of orders made under section 27 – by making an application such as the Defendant now makes – it is worth emphasising that there is a high onus cast on such a litigant when he or she applies for leave.

8.  In Ewing v News International Ltd [2008] EWHC 1390 at §§34-37, the English Court held that leave under section 42(3) of the Supreme Court Act 1981 – the equivalent of section 27A(1) – should only be granted sparingly and very carefully, and only after the Court has satisfied itself that the claim has a real prospect of success and is not an abuse of process.  The Court reaffirmed the principle expressed in the earlier case of Becker v Teale [1971] 1 WLR 1475 that since the litigant has already been found to have habitually and persistently and without any reasonable ground instituted vexations legal proceedings, there is a high onus cast on such a litigant when he or she applies for leave.

9.  I am not satisfied that the Defendant has met the high onus placed upon him.  Far from it:

 (1)  Based on the one-page handwritten Form 27A, the best the Court could make out is that he would like either to continue with HCAL 1577/2020 or to institute a set of fresh legal proceedings related to his non-refoulement claim.

 (2)  It is not possible to tell what precise order he seeks as the order sought identified in the form is “Please forgive my planty money”.

 (3)  Nor did he set out the grounds on which leave is sought.

 (4)  Also, the Form 27A was not filed with a supporting affidavit to provide the Court with any factual basis and evidence upon which it is said leave should be granted.

10.  Applications of this kind are time-wasting abuses of the Court process.

11.  The application for leave to institute or continue with legal proceedings is dismissed, with no order as to costs.