Robinson, Dundas v. Mr. Au Ka-wang, Registrar of Marriage, Immigration Department of the Hong Kong Special Administrative Region Government and Another

HCAL 255/2023

[2023] HKCFI 945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 255 OF 2023

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D E C I S I O N

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A.  Introduction

1.On 21 February 2023, the Applicant filed a home-made Form 86. The information does not appear to be filled in the correct fields. However, it is tolerably clear that the following is the relief sought, even though it is not filled in the correct part of the form:

“取消沒有核證記項的結婚證書(編號:0155)”

“to cancel the record of no certified copy of marriage certificate (no. 0155)”

2.In the supporting affirmation, it says:

本人曾申請父母的結婚證書(編號:0155)副本，但只可發出列印版本，而不能發出核證記項板本。

經過立法會秘書處申訴處理的書信回覆(2023年2月14日)，婚姻證記官拒絕履行公共職責，維護準確無誤的婚姻證記紀錄。

I had once applied for a copy of the marriage certificate (no. 0155) of my parents. However, (I was told that) only a printout version could be issued, but not a certified copy version.

According to the written reply dated 14 February 2023 of the Public Complaints Office of the Legislative Council, the Registrar of Marriages refused to perform his public duty in safeguarding the accurate and correct records of marriage registration.

3.I have directed the Putative Respondent to file an initial response and gave leave for the Applicant to file a reply. The Department of Justice (“DoJ”) filed an initial response for the Putative Respondent, signed by Mr Mike Yau, Government Counsel. The Applicant filed a reply.

4.Having considered all the materials, I think that this application can be properly disposed of on paper.

5.This is my Decision.

B.  Background Facts

6.The marriage certificate, identified in the Form 86 by reference to the number of 0155, is the marriage certificate between Mr Kwok Hoi-chu and Ms Lau Ngau Nai (“Marriage Certificate”). The Applicant is the son of the couple.

7.In April 2014, the Applicant applied for a search of the marriage records of his parents. In May 2014, a certified copy of the Marriage Certificate was provided to the Applicant. The certified copy was provided under section 26 of the Marriage Ordinance Cap 181 (“MO”), which enables the Registrar of Marriages to do that.

8.The copy is certified and signed by Mr Wong Siu Hung, in his capacity as the Registrar of Marriages. It also bears the statement of “certified to be a true copy of the certificate of marriage filed in the Registrar’s Office in Hong Kong”. There is also an Apostille which certifies the authenticity of Mr Wong’s signature and the capacity in which he signed. The Apostille bears the seal of the High Court and is signed by Mr Lung Kim Wah, the Registrar of the High Court.

9.In December 2022, and by way of an application under the Code on Access to Information, the Applicant enquired with the Marriage Registry whether he may correct an “error” on the Marriage Certificate. He said the name of his mother’s father as shown on the Marriage Certificate appears to be different from that on his mother’s birth certificate. A copy of his mother’s birth certificate was provided.

10.On 9 January 2023, the section within the Immigration Department responsible for the matter replied by letter to explain how the Applicant might apply to correct a clerical error on the Marriage Certificate.

11.However, the Applicant did not follow up formally to apply to correct any “error” on the Marriage Certificate. Rather, he filed a “Complaint Form” dated 19 January 2023 with the Legislative Council, in which he said:

I had applied for the marriage certificate of my parents (number 0155) bearing the seal of the High Court, but the Marriage Registry did not issue the certified copy of any record pursuant to section 26 of the Marriage Ordinance, Cap 181. This means that the content of the marriage certificate has not been certified.

I request the Marriage Registry to cancel this marriage certificate (number 0155).

本人曾申請父母(郭海珠與劉牛奶)的結婚證書(編號:0155), 但婚姻證記處沒有根據第181章「婚姻條例」第26條發給任何記項的核證副本。(代表結婚證書內容沒有經過核證)。

本人要求婚姻證記處取消這張結婚證書 (編號: 0155)。

12.The Legislative Council referred the request to the Immigration Department. In a letter dated 17 February 2003 issued by the Director of Immigration to the Legislative Council, the Director explained that a certified copy of the Marriage Certificate had already been provided to the Applicant in May 2022, and that the Marriage Registry has no power under the MO to cancel the registration of a marriage certificate.

C.  Is there any Merit?

13.Trying my best to understand the Applicant’s case, it seems that his ultimate request is to have the Marriage Certificate cancelled, on the basis that it contains incorrect information concerning the name of his mother’s father (i.e. his grandfather). The grandfather’s name as shown in the Marriage Certificate is different from that as shown in the mother’s birth certificate and he appears to take the view that the Marriage Certificate is wrong.

14.His view was further supported by his (mistaken) belief that the Marriage Registry had failed to issue a certified copy of the marriage certificate to him.

15.In his reply to the DoJ’s initial response, he identified as the dispute whether the copy provided to him in May 2014 was to be regarded as in compliance with section 26 of the MO. He asked two questions rhetorically: (1) whether the digital printout of a marriage certificate with the signature and the seal at the back is a certified copy of the content of the certificate; and (2) whether a marriage certificate with its content uncertified should be cancelled.

16.He might be taking issue with the fact that the signature and the seal were only appended at the back of the page but not the front where the content is printed, which, in his view, was unable to certify the content. Other than that, I cannot discern any other reasons why he might think the copy provided to him in May 2014 was not a certified copy. Apart from the further birth certificate, he did not provide any particulars as might explain why the information in the marriage certificate was incorrect.

17.In what might appear to be a response to the Putative Respondent’s suggestion that the Registry had no power under the MO to cancel the marriage certificate, he said that he understood that the Registry had no power to cancel a valid marriage certificate, but he said the Registry is under the duty to cancel defective ones – which I presume to be a reference to the suggestion that the certificate contains incorrect information. Other than that the name of the mother’s father is said to be wrong, there is no other reason as might suggest why the certificate should be cancelled. Nor did he refer to any specific sections under the MO which might provide the Registry with a power to cancel such a certificate.

18.The application is misconceived:

(1)  There is no reason to doubt that the copy provided to the Applicant in May 2014 is a certified true copy, in the sense that it is a true copy of the Marriage Certificate filed with and kept by the Marriage Registry.

(2)  Even if, as alleged by the Applicant, some information in the Marriage Certificate is incorrect, he did not explain why the correct course of action is to have the certificate “cancelled” rather than having the information corrected.

(3)  It is also far from clear what he meant by having the Marriage Certificate cancelled. The role of the Registrar under section 23 of the MO is to register all certificates of marriage filed in his office in suchorder and manner he thinks best. If by cancellation, the Applicant meant removing the copy of the certificate of marriage kept by the Registrar as if the certificate had never been registered or filed, there is no express power under the MO for the Registrar to do so.

(4)  In any event, he did not follow the advice of the Director of Immigration to apply to have the information on the Marriage Certificate corrected – where the Registrar may correct any clerical error in any certificate of marriage in accordance with section 25 of the MO.

(5)  Further, section 27(3) of the MO provides that no marriage shall, after celebration, be deemed invalid by reason that any provision of the MO (other than the matters dealt with within section 27) has not been complied with. None of those other matters are relevant to the present situation.

19.There is also some force in Mr Yau’s submission that the Form 86 fails clearly to identify the decision intended to be challenged. But, more fundamentally, the Applicant’s application discloses no reasonably arguable grounds of review with any realistic prospect of success.

D.  Result and Costs

20.As a result, the application for leave to apply for judicial review is dismissed.

21.Mr Yau has asked for costs. Mr Yau said the present application is wholly devoid of merit, and only serves the personal interests of the Applicant, and the Putative Respondent has spent time and costs in preparing the initial response to render assistance at the Court’s invitation. By reference to a statement of costs, Mr Yau asks for costs to be summarily assessed at HK$8,476.

22.The Applicant opposed costs. By reference to the hourly rate of Mr Yau and the administrative staff, the Applicant said it is an extremely unusual practice to ask for costs for an application at the leave stage in the Court of First Instance. He appears to suggest that some of the Mr Yau’s effort was wasted and did not truly address the precise legal question before the Court. He sought to remove the Director of Immigration as the second Putative Respondent which he believes would reduce costs (but indeed he had never identified the Director of Immigration as a Putative Respondent). He also said he was a CSSA recipient and if he were ordered to pay costs and the Legal Aid Department refuses to pay costs on his behalf, he could only pay costs by instalments.

23.Though I acknowledge the assistance provided by Mr Yau at the invitation of the Court, and that the Applicant’s application was essentially misconceived, in the exercise of my discretion as to costs I see no particular benefit in moving public funds in a relatively modest amount from one pocket to another. In those circumstances, I make no order as to costs.

The applicant, acting in person

Mr Mike Yau, Government Counsel, of the Department of Justice, for the putative respondents