KAMRAN JAVID (also known as AHMED KAMRAN) v. PERMANENT SECRETARY FOR SECURITY

CACV 144/2021, [2023] HKCA 612

On Appeal From [2023] HKCA 30

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 144 OF 2021

(ON APPEAL FROM HCAL 2152 OF 2020)

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D E C I S I O N

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Hon Au JA (giving the decision of the court):

A.  Introduction

1.  This court handed down its judgment dated 6 January 2023 (“the CA Judgment”) [2023] HKCA 30, dismissing the applicant’s appeal against the judgment (“the CFI Judgment”) of Hon Keith Yeung J dated 23 March 2021 [2021] HKCFI 748, refusing the applicant’s application for leave to apply for judicial review against the putative respondent’s decision not to suspend or rescind the Deportation Order (as defined in the CA Judgment).

2.  Upon dismissing the applicant’s appeal, we granted an order nisi that costs of the appeal be to the putative respondent and directed the applicant to lodge and serve his written comments, if any, on the revised statement of costs lodged by the putative respondent (which seeks a sum of $78,099).  See: [47] ‑ [48] of the CA Judgment.

3.  The applicant lodged his written comments dated 12 January 2023 (“the Written Comments”).

4.  Separately he has also filed a Notice of Motion dated 13 January 2023 seeking leave to appeal the CA Judgment to the Court of Final Appeal.

5.  We will deal with the costs of the appeal and the Notice of Motion in this Decision respectively.  First the costs issue.

B.  Costs of the appeal

6.  In the Written Comments, the applicant challenges the costs order nisi that he should bear the costs of the appeal and that if he is required to pay the costs, he should only bear the costs of “photocopies of documents” and the government counsel’s appearance in court for 30 minutes.  He further says that if the court still requires him to pay all the costs, he asks the court to consider his personal circumstances.  His submissions are as follows:

“1. When Hon. KiethYueng made decision, his lordship made no cost to pay. With due respect, please do not enter his discretion. As your lordship agreed with Hon. Kiethyueng's decision, kindly agree with his decision of costs too and please make order that cost should not follow the event.

2. Applicant submits respectfully to Hon. Court that DOJ has provided all the same documents what they already submitted in lower court in HCAL 2152/2020. They did not add any new documents/information. So, applicant does not agree to pay any costs to them. But, if your lordship still wants me to pay, then I request you humbly to just pay the costs of photocopies of documents and for her 30 mints court attendance and I will pay it. Applicant strongly object on the remaining costs calculated by SOS.

3. If your lordship does not agree with (1) and still wants me to pay, I will still respect your order and I will pay but as Your lordship has all records that I have a family of three children and a wife and I am sole breadwinner of my family and HK is an expensive city. Since 22March 2018 until today, my family depends on my savings as its almost 5 years that I do not have any business or cannot do any job. All Savings is spent on my family during this time of 5 years and I do not have any cashat present moment. Kindly allow me to work on temporarily basis to just pay the costs to SOS as per your lordship orders me to pay. I have done some voluntarily work in fighting against crime for Government of HK (HK Police Force). Kindly consider that too.” (sic)

7.  We are not convinced that there should be no order as to costs for the appeal.  The fact that K Yeung J found it just in all the circumstances to make no order as to costs for the first instance hearing below is neither here nor there.  Insofar as the appeal is concerned, the applicant already had the benefit of the CFI Judgment and the judge’s reasons for rejecting his application for leave to apply for judicial review.  He decided to appeal against the CFI Judgment despite learning those reasons.  There is therefore no basis for not following the general principle that costs should follow the events to award costs to the putative respondent upon the applicant’s failure in his appeal.

8.  We will therefore confirm and make absolute the costs order nisi that the applicant shall pay the putative respondent’s costs.

9.  As to the quantum of costs, as we have indicated in the CA Judgment, the putative respondent is seeking a total sum of $78,099.00 in her revised statement of costs.

10.  We do not accept the applicant’s submissions that the putative respondent is only entitled to recover costs for the photocopies of the documents and court attendance.  We see no reason why she should not be entitled to the reasonable costs incurred in preparation of documents (which must include the written submissions), perusal of documents (which must include the applicant’s skeleton submissions and new documents submitted) and legal research, as well as the preparation for the hearing as stated in the revised statement of costs.

11.  Similarly, the court usually will not take into account the losing party’s own financial position in assessing the costs payable.

12.  However, we do find it unreasonable for those works under Items C and D[1] to be duplicated by two government counsel as fee earners[2] as stated in the statement of costs.

13.  In the premises, we summarily assess the costs of the putative respondent to be $61,000.00.

14.  We therefore order that the applicant shall pay the putative respondent costs of the appeal, summarily assessed to be in the sum of $61,000.00.

C.  Notice of Motion

15.  The applicant seeks leave to appeal the CA Judgment to the Court of Final Appeal by filing the Notice of Motion.

16.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the CA Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

17.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal if 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 the Court of Final Appeal for decision.

18.  In the Notice of Motion, the applicant stated his reasons for appeal as follows:

“I AM NOT AGREE WITH JUDJMENT

THE MATTER HONG KONG LAW CAN NOT RECOGNIZE BY SHOULD BE IRRELEVANT MATTER FOR LEGAL COURT PROCEEDING. THE MATTER ALLOWED BY BASIC LAW SHOULD BE GIVEN REGADS TO APPLICAN. NO ONE SHOULD DISCRIMANTE ON RELIGION BASES. NO ONE SHOULD BE TREAT UNFAIR ON TRAVEL RECORED. KINDLY SEE THE ATTACH PAPER FOR RESON. TNKS.” (sic)

19.  In the single sheet of paper attached to the Notice of Motion, the applicant effectively contends that:

(1)  The putative respondent erred by not suspending the Deportation Order in the present case as this is against the rights to freedom of religion and freedom to travel protected under the Basic Law:

(a)  He as a Muslim is entitled by religion to have up to 4 marriages.  It is therefore wrong for the putative respondent to discriminate against him by insisting to deport him because he has a second wife.  This is a matter of great public importance.

(b)  It is also incorrect and discriminatory for the putative respondent to rely on his travel records against him in deciding not to further suspend the Deportation Order.  This is also a matter of great public importance.

(2)  It is also wrong for the putative respondent to decide not to suspend the Deportation Order because he had a second wife because:

(a)  The single condition for the earlier suspensions was that he should not commit crime and the purpose was for him to take care of his children and family in Hong Kong.

(b)  The mere fact that he has a second wife does not affect his taking care of the children born from the first marriage.

20.  There is nothing in these contentions.

21.  As we have explained in the CA Judgment, the putative respondent’s decision as to whether to suspend the Deportation Order was premised on her consideration as to whether there were strong humanitarian or compassionate grounds to support it.  She had properly and relevantly taken into account all the relevant matters, including the facts that the applicant now had a second wife and a young child born from that marriage, and both were living in the Philippines, in arriving at the legitimate and reasonable conclusion that there were now no strong humanitarian or compassionate grounds to further suspend the Deportation Order since he would have to spend less time to take care of the first wife and the children in Hong Kong.  We have also highlighted the well‑established legal principles that in considering whether there exist strong humanitarian and compassionate grounds in immigration contexts, the court must give a wide discretion to the decision maker.  See: [36] ‑ [43] of the CA Judgment.

22.  Given the above, this case does not involve any questions about the recognition of the applicant’s religious right to have more than one marriage and infringing his right to travel.  It only concerns the question as to whether it was Wednesbury unreasonable for the putative respondent to conclude that there were no strong humanitarian or compassionate grounds based on the latest facts and circumstances specific to the applicant to justify a further suspension of the Deportation Order.  It must also be pointed out that, as stated in the CA Judgment, the only basis for the putative respondent to suspend the Deportation Order in previous occasions was on finding the existence of strong compassionate ground as he had a wife and young children in Hong Kong[3], but not (as alleged by the applicant) that he would not commit any crime again.

23.  In the premises, none of the proposed grounds of appeal has any merits and prospect of success, nor do they point out any specific errors in the CA Judgment.  Further, no question of great general or public importance is involved in the proposed appeal.  We also do not see any other reasons that leave to appeal should be granted.

24.  We will therefore also dismiss the Notice of Motion.