JUTHE CHHETRI v. PERMANENT SECRETARY FOR SECURITY

CACV 247/2025, [2026] HKCA 1147

On Appeal From [2025] HKCFI 1568

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.247 OF 2025

(ON APPEAL FROM HCAL NO. 612 OF 2025)

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J U D G M E N T

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Hon Anthony Chan JA (giving the Judgment of the Court):

1.  On 16 April 2025, Coleman J made a decision (“CFI Decision”)[1] refusing to grant the Applicant leave to apply for judicial review of the decision of the Permanent Secretary for Security (“PS for S”)  dated 6 January 2025 by which the Applicant’s 10^th request to suspend or rescind a deportation order made against him on 14 May 2005 (“DO”)  was refused.

2.  On 20 February 2026, this Court gave its judgment (“CA Judgment”)[2] dismissing the Applicant’s appeal against the CFI Decision.  The basic facts of this case and the Court’s reasons for dismissing the Applicant’s appeal had been set out in the CA Judgment and will not be repeated here.

3.  By a Notice of Motion filed on 11 March 2026, the Applicant applies for leave to appeal the CA Judgment to the Court of Final Appeal (“CFA”).  The Notice of Motion states as follows :

“Questions relating to the general duty of PS for S

(1)  Even though PS for S was under no general duty to give reasons for the Decision dated 6 January 2025 refusing to suspend or rescind a Deportation Order made against the Applicant on 14 May 2025, whether in the absence of such a duty, PS for S should have any other guidance or guidelines to handle the application to rescind a Deportation Order, or PS for S is free to make any decision without any guidance or guidelines.

Questions relating to the Applicant’s family situation

(2)  It has been the general policy of HKSAR Government to give a second chance to persons who committed a crime. An example is section 2 of the Rehabilitation of Offenders Ordinance, Ca.297 (sic), where the law allows rehabilitation rather than simply punishment. It allows an offender to put a past mistake behind them.

(3)  Under section 2(1)  of the RHO, subject to certain exceptions, the conviction of a person who is not sentenced to imprisonment exceeding three months, whether that sentence takes effect immediately or is suspended, or to a fine exceeding $10,000, and who has not previously been convicted in Hong Kong of any offence will be treated as spent once three years has elapsed without another conviction for an offence in Hong Kong.

(4)  In the present case, the Appellant will be facing extreme hardship if his Deportation Order is enforced.  He will certainly miss his wife and four daughters, who are all Hong Kong Permanent Residents.  It is therefore unjust not to allow him to stay in Hong Kong.”

4.  The submissions advanced in the Applicant’s skeleton submissions dated 17 April 2026 may be summarised as follows :

(1)  The PS for S failed to give reasons for refusing to suspend the DO contrary to the principle of procedural fairness;

(2)  Whether the PS for S is free to make such life-altering decisions without clear guidance or guidelines, or if such guidelines must be established to prevent arbitrary decisions;

(3)  The HKSAR Government is under constitutional and international mandates to protect the Applicant’s family and substantive human rights through preserving his family unit;

(4)  It is unjust to enforce the DO because (a)  it would break up a stable family and (b)  the “second chance” principle under the Rehabilitation of Offenders Ordinance, Cap 297 (“ROO”); and

(5)  The Applicant seeks equal consideration on humanitarian grounds as his “specific friend”, whose circumstances are similar to his, was granted suspension of deportation order by the PS for S.

5.  Pursuant to para 3 of Practice Direction 2.1, we determine the present application on paper without an oral hearing.

6.  Under s.22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“Ordinance”), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”)  or the CFA in any civil cause or matter if, in the opinion of the CA or the CFA (as the case may be), the question involved in the appeal is one which, by reason of its great general or public importance (“GGPI”), or otherwise, ought to be submitted to the CFA for decision.

7.  We are unable to see any issue of GGPI involved in the proposed appeal.  The questions identified in the Notice of Appeal are either new points which were not advanced before the CFI or this Court (Questions (1), (2)  and (3))  or they fail to engage with the reasons for which the Applicant’s appeal was rejected by this Court.  None of the 4 questions is reasonably arguable. 

8.  It is trite that a point not taken before the CA will rarely be entertained by the CFA: see Flywin Co Ltd v Strong & Associates Ltd (2002)  5 HKCFAR 356, [39].  In respect of the allegation of absence of reasons given by the PS for S (Question (1)), this flies in the face of the CFI Decision at [40]-[43], which was endorsed in the CA Judgment, [10] and [17]. 

9.  Apart from the fact that the arguments under the ROO (Questions (2)  and (3)), were never advanced before the CFI or this Court, plainly the Applicant cannot rely upon the spent conviction provisions (s.2(1))  because he was sentenced to 3 years of imprisonment for his offence.  Further, s.4(7)  provides that s.2 “shall not apply to any action taken for the purposes of safeguarding the security of Hong Kong”. 

10.  In respect of the Applicant’s family circumstances (Question (4)), it was held in the CA Judgment, [15] and [17], that they was considered in detail by the CFI, and no error in the CFI Decision had been identified by the Applicant or detected by this Court. 

11.  We do not believe that the submissions of the Applicant take this application any further.

12.  There is no basis to grant leave to appeal on the “or otherwise” limb under s.22(1)(b)  of the Ordinance.

13.  In the premises, the Notice of Motion is dismissed with costs to the Putative Respondent and Putative Interest Party, to be taxed if not agreed.  The costs order is made on nisi basis which shall become absolute in the absence of any variation application made within 14 days from the date of this Judgment.