Re Wong Sun Wong

HCMP003176/1993

1993, M.P. No. 3176

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW BY:

Master WONG Kin Wah by his father and next friend,

AND IN THE MATTER OF A DECISION OF THE

IMMIGRATION TRIBUNAL DATED 8TH JULY 1993.

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Coram: Hon. Mayo, J. in Court

Date of hearing: 22 February 1994

Date of delivery of judgment: 22 February 1994

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J U D G M E N T

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1. This is an application for Judicial Review. The Applicant who is suing by his father Mr. Wong seeks an order of Certiorari. The decision which is sought to be impugned is the determination of the Immigration Tribunal on the 8th July 1993 when it was determined that the Applicant did not enjoy a right of abode in Hong Kong.

2. The Applicants appeal to the Tribunal was based on the Director of Immigrations refusal to accept that he had been born in Hong Kong.

3. Mr. Wong, his wife and 2 witnesses all gave viva voce evidence to the effect that the Applicant had been born in Hong Kong in May 1987. The Tribunal did not accept this evidence. It gave detailed reasons for rejecting the evidence.

4. It was as follows:

“Mr. WONG Sun-wong, the appellant's father, has been unable to prove that Master WONG Kin-wah, the appellant, was born in Hong Kong.

The one piece of evidence closest to proving Mr. Wong's allegation that Kin-wah was born in Hong Kong was in the form of three pictures in exhibit 1, two of them allegedly taken on 3rd June, 1987 and the third in August 1987. The first two pictures each shows a baby of unknown sex lying on one of two pillows on a big matters on an unidentified location. On the back big mattress on an unidentified location. On the back of each of these two pictures are machine-stamped "Broadway - March 1987 HK". However, Kin-wah is alleged to have been born on 5th May, 1987. These two pictures, therefore, were developed before Kin-wah's alleged birth date and cannot possibly bear his image. The third picture, showing a baby of unknown sex lying on a bamboo mat, is printed on paper bearing the backprint of "Konica Long Life 100". Such paper, according to a letter from Konica Hong Kong Limited to the Immigration Department in exhibit 2, only started marketing in Hong Kong in March 1989, about one and a half years after the alleged date of the picture being taken. Before the information in that letter was divulged to the tribunal during the hearing, Mr. Wong insisted that he had taken the picture himself and that the picture was the first print. After the information was divulged to the tribunal during the hearing, Mr. Wong insisted that it was his wife, illegal immigrant Madam LAM Pik-mui (Mrs. Wong), who had the picture developed, and that he had no idea when it had been done. When Mrs. Wong gave evidence, she said the picture had been taken by a friend and it was developed within weeks. After the information in the letter was revealed to her, she said the picture was a reprint. There was an obvious discrepancy between Mr. Wong's testimony and Mrs. Wong's.

Mr. Wong's testimony and Mrs. Wong's also differ in other areas. For example, Mr. Wong said Mrs. Wong's labour pain had lasted a whole day, whereas Mrs. Wong said it had lasted for two to three hours; Mr. Wong said he had used a broken piece from a bowl to cut Kin-wah's umbilical cord, whereas Mrs. Wong said he had used a pair of scissors. Such discrepancies tend to tilt the balance unfavourably towards them.

The other two witnesses, Mr. CHEUK Ka-ho and Mr. CHAN For-sing, both claiming poor memory, have been unable to offer sufficient evidence which may prove that the appellant was born in Hong Kong.

Based on the above observations and on a balance of probabilities, the Tribunal is of the opinion that the appellant was not born in Hong Kong, and therefore does not enjoy the right of abode in Hong Kong under Section 2A of the Immigration Ordinance. Accordingly, his appeal is dismissed."

5. The main issue raised on this application was the weight which the Tribunal attached to the hearsay evidence adduced to it having regard to the fact that there was first hand viva voce evidence.

6. What was of particular importance in the present case was that at the hearing of the appeal Mr. Wong, who is illiterate, represented the Applicants interests. It is seems to be fairly clear from the record of the proceedings that his efforts to this end were not very satisfactory. The main issue which arises is the extent to which it was incumbent upon the Tribunal to ensure that the Applicant's interests were sufficiently safe guarded.

7. The Court of Appeal considered this question in Chan Kam Lun and another v. The Director of Immigration unreported being Civil Appeal 3/93. Although it did not lay down any hard and fast rules it did make it clear that the Tribunal must be mindful of the fact the interests of an infant must be considered separately to those of the parent representing him or her at the hearing of the Appeal. I fully accept that this is correct.

8. While Mr. Dykes who represented the Applicant before me, accepted that it was open to the Tribunal to admit hearsay evidence, he submitted that it should have done much more to protect the Applicants interests.

9. It would appear from the Reasons which were given for the Determination that the Tribunal attached considerable weight to the hearsay evidence adduced to it of the legend on the reverse side of the photos indicating that the photos had been taken in March 1987 two months prior to the date when it was claimed that the Applicant had been born.

10. Also weight was attached to the letter received from the manufacturer of paper upon which a photo had been printed indicating that the print had not been made prior to 1989 when the paper had been introduced in Hong Kong. This second matter was of less significance than the legend on the reverse side of the photos as there may have been numerous explanations to account for the printing of the photo to have been undertaken in 1989.

11. There can be no doubt from the transcript of the proceedings that the existence of the March 1987 date was put to Mr. and Mrs. Wong when they gave evidence. Neither of them were able to put forward any satisfactory explanation and it is difficult to see what more the Tribunal could reasonably have been required to do.

12. I do not see this as an issue of the Tribunal wrongly attaching undue weight to hearsay evidence and not having due regard to the primary viva voce evidence which was before it. I consider that what in effect happened was that the Tribunal was not satisfied that either Mr. or Mrs. Wong were truthful or reliable witnesses whose evidence could be relied upon. What was unsatisfactory was not so much the existence of the evidence of the dates as the reaction of Mr. and Mrs. Wong to the evidence when they were invited to comment upon it. They were given an opportunity of putting forward some explanation and failed to avail themselves of this in any convincing or satisfactory way.

13. Mr. Dykes also made some criticisms of the Reasons which had been given. He referred to the statement to the effect that the two independent witnesses had given evidence that they had poor memories. No such evidence was contained in the transcript. It may be the case that the transcript was not a verbatim transcript. Even if it was I do not think that this error would constitute a good ground for interfering with the conclusions which were reached.

14. Reading the Transcript as a whole it seems likely that the reason this testimony was not accepted was that it was insufficiently detailed and specific to lead to any definite conclusion that the Applicant had in fact been born in Hong Kong.

15. I think Mr. Dykes accepted that if the Reasons were considered as a whole they did provide a coherent and logical explanation for the conclusions which were reached.

16. I am satisfied that the correct approach to adopt is to consider in overall terms whether the Tribunal has exercised its functions in a fair and reasonable manner. Litton J.A. put it in this way on p.11 of Chan Choi Hung & Another v. Immigration Tribunal unreported being CA 117/93.

" I appreciate that these two children have been in litigation since early 1992 when appeals to the Immigration Tribunal were first lodged on their behalf under s.53A, for the determination of an issue of fact vital to their future: were they born in Hong Kong? The sooner the matter is finally resolved, one way or the other, the better. Tribunals appointed to hear appeals are expected to exercise their common-sense, and it would be a grave disservice to the community if they thought that the courts, by the exercise of power on judicial review, have bound them up with artificial rules. The first approach of a tribunal of fact, any tribunal of fact, is to look at the inherent probabilities, and questions like these would automatically spring to mind: Would Mr. and Mrs. Chan have risked the lives of their babies, and Mrs. Chan's own life, by having Mr. Chan deliver them at home? Were the babies immunized after birth? If so, were there no records? Did they think of keeping some photographic evidence of their births? These are simply examples. Nothing in the judgment suggests that the Tribunal did not approach their determination in this way; and whilst it may have been better if they had articulated their thought-processes more clearly in their written determination, the Ordinance and the Regulations do not require detailed reasons to be given. Neither does the common law applied in judicial review proceedings. And as regards the question whether the same tribunal should reconsider its former determination, based partly on the evidence previously before them, and partly on fresh material: for instance, documentary evidence regarding Mr. Chan's visit to China, etc: this is not a decision this court can make. Many other circumstances need to be considered; the record of the previous proceedings will have to be looked at (if such record be kept). So long as the Tribunal charged with the duty of determining the children's appeals exercises its judgment to the best of its ability, in order to fulfil its statutory function, namely, the determination of the issue of fact before it, a court of law is unlikely to interfere with its determination."

17. Adopting this somewhat robust approach it would appear that the Tribunal cannot seriously be faulted in the way in which this appeal was conducted. I accordingly dismiss this application. I will hear the parties on costs.

Representation:

Mr. Philip Dykes inst'd by Boase & Cohen for Applicant.

Mr. S.H. Kwok inst'd by Attorney General's Chambers for Immigration Tribunal/Respondent.