Man Kumar Gurung v. Registration of Persons Tribunal

HCAL000779/2000

HCAL779/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 779 OF 2000

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Coram: Hon Cheung J in Court

Date of Hearing: 26 October 2000

Date of Judgment: 26 October 2000

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J U D G M E N T

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1. The applicant applies for leave to apply for judicial review against the decision of the Registration of Persons Tribunal ("the Tribunal"). The Tribunal dismissed the applicant's appeal against the decision of the Commissioner of the Registration ("the Commissioner") not to issue a Hong Kong permanent identity card to the applicant.

2. The applicant applied for the identity card on the strength of a Hong Kong birth certificate. The Commissioner refused the application on the ground that "there is insufficient evidence to show that you have the right of abode in Hong Kong". The issue before the Commissioner and the Tribunal was whether the applicant had satisfied them that he was the person described in the birth certificate as being born on 16 April 1965 in the British Military Hospital in Mt Kellett in Hong Kong to a Gurkha soldier.

3. In my view, leave should be granted on the ground that arguably there was procedural irregularity in the Tribunal when it considered the statement of two witnesses for the applicant obtained by the Immigration Department instead of hearing the oral testimony of these two witnesses. One of the witnesses, Mr Limbu Thaman Bahadur, who was also a former Gurkha soldier, stated that 15 years ago he had met the alleged father of the applicant and his son in Nepal. In 1998, the applicant was introduced to him in Hong Kong by a friend. In his statement, Mr Limbu Thaman Bahadur said this :

"..... I don't recognise Man Kumar [i.e. the applicant] first. After my friend introduced to me Man Kumar (illegible word) I remembered."

This clearly is evidence that supports the relationship of the applicant and the alleged father. Furthermore, the witnesses could give evidence on whether they could identity the person in the photographs produced by the applicant as that of the alleged father. It is said that the applicant could call them himself at the hearing, but the applicant was a lay person, and it is clear from the transcript of the proceedings, the presiding member of the Tribunal was taking a very active role in the conduct of the proceedings. At this stage, I am not prepared to hold this against the applicant without hearing full arguments. Accordingly, leave is granted.

Representation:

Applicant, in person

Mr William Marshall, SC, instructed by Department of Justice, for the Respondent