Re Chan Kam Lun

HCMP001955/1992

HCMP No. 1955 of 1992

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Mr. Justice Mayo in Court

Dates of Hearing: 9th November 1992

Date of Delivery of Judgment: 9th November 1992

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J U D G M E N T

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1. The applicants are two young boys. The application is made by their father (the father). The father is seeking a certiorari to quash the decision of the Director of Immigration to make removal orders against the boys on 2nd July 1991, and the decision of the Immigration Tribunal dated 11th February 1992 upholding the Director's orders.

2. It is common ground that the boys' mother was an illegal immigrant. The Director accepted that the father's third child had been born in Hong Kong, but did not accept that the two boys were born here.

3. Mr. Dykes for the father informed me that he was mainly placing reliance upon the first ground in the Grounds for Relief which reads:-

"The Immigration Tribunal never properly or adequately explained to the Appellant his substantive and procedural rights, and thereby a fair hearing of the unrepresented Appellant was deprived."

4. The complaint which is made is that the Tribunal should have made it clear to the father who conducted the appeal for the boys that his wife's evidence concerning the birth of the boys was of crucial importance to the appeal. Although the Tribunal had no power to seek the assistance of the official solicitor, it did have a duty to satisfy itself that the appeal was conducted in a sufficiently competent manner to ensure that the interests of the boys were adequately presented.

5. He placed reliance upon Woolf v. Pemberton, Vol. VI Chancery Division 19 in support of this proposition. I accept that it was necessary for the Tribunal to be mindful of the fact that the father was representing minors and that the proceedings had to be conducted in such a manner that their interests were in no way compromised. I do not though consider that there is any reason to suppose that the Tribunal did not fully bear this consideration in mind.

6. I do not think that there can be any doubt that the father was fully aware that the main issue which was being decided by the Tribunal was whether the two boys had been born in Hong. Kong.

7. An explanatory statement was included in the Summary of Facts and Reasons for Removal which had been served on the father. This stated:-

"4. EXPLANATORY STATEMENT

On 13 August 1990, Master CHAN, his mother, Madam TSANG Han, younger brother, Master CHAN Kwun-man and sister, Miss CHAN Mei-po, approached the Immigration Department for regularization of stay.

The mother, Madam TSANG, claimed that she entered Hong Kong illegally from China on 14 August 1983 to join her resident husband, Mr. CHAN King-oi, and that her three children, Master CHAN Kam-lun, Master CHAN Kwun-man and Miss CHAN Mei-po were born in Hong Kong on 8 February 1984, 22 June 1985 and 3 July 1990 respectively.

After investigation, it is believed that Kam-lun and Kwun-man were not born in Hong Kong and are illegal immigrants from China. Mei-po has the 'Hong Kong Permanent Resident' status.

Master CHAN's maternal grandparents, maternal aunt, maternal uncle, widowed paternal grandfather, paternal aunt and two paternal uncles are in China. His father and sister are in Hong Kong.

The removal orders in respect of his mother, Madam TSANG Han and younger brother, Master CHAN Kwun-man, are being made under references RBGI 3256/90 and RBGI 3258/90 respectively."

8. The question which has to be considered is the extent to which it was incumbent upon the-Tribunal to participate in the proceedings to ensure that all the main issues were adequately ventilated and that justice was duly done.

9. The Third Schedule to the Immigration Regulations sets out various procedural guidelines for the conduct of appeals before the Tribunal. I think that it would be fair to state that what is contemplated is that the procedure is fairly informal.

Rule 10 provides:-

"10.(1) The Tribunal may, on its own motion or, if it thinks fit, on the application of an appellant or of the Director of Immigration, by summons require any person to attend as a witness at the hearing of an appeal at such time and place as may be specified in the summons, and at the hearing to answer any questions or produce any documents in his possession, custody or power which relate to any issue in the appeal.

(2) (a) Notwithstanding sub-paragraph (1), no person shall be compelled to give any evidence or produce any document which he could not be compelled to give or produce in proceedings in a court of law.

(b) Nothing in this sub-paragraph shall entitle any person to refuse to give any evidence or to produce any document on the ground only that such evidence or document would not be admissible in a court of law and that accordingly he could not be compelled to give or produce it.

(3) The Tribunal may require any witness to give evidence on oath or affirmation.

(4) For the purpose of this paragraph, the Tribunal and any adjudicator shall have the same powers in relation to witnesses as a magistrate would have under sections 21 and 22 of the Magistrates Ordinance in proceedings under Part II of that Ordinance, and a summons to a witness shall be in such form as the chief adjudicator may determine.

(5) (a) The Tribunal may allow in respect of a witness who attends at the hearing of an appeal to give evidence (including professional or expert evidence) a professional witness allowance, expert witness allowance or loss allowance, as the case may be, not exceeding the professional witness allowance, expert witness allowance or loss allowance that a magistrate may allow under the Criminal Procedure (Witnesses' Allowances) Rules in respect of a witness who attends to give evidence in criminal proceedings.

(b) Any sum allowed under sub-subparagraph (a) shall cease to be payable unless claimed within 3 months from the date on which it was allowed."

10. I do not think that there can be any doubt that the Tribunal has a power rather than a duty to call a witness where a party has chosen not to call the witness themselves.

11. What needs to be emphasised is that each case needs to be considered upon its own individual facts. It will be a matter for the judgment of the Tribunal to decide whether the interests of fairness and truth are likely to be best served if any particular witness is called.

12. The sort of considerations which need to be borne in mind were set out by Professor Wade at p. 923 of Administrative Law, 6th Edition, Clarendon Press Oxford:-

"It is fundamental that the procedure before a tribunal, like that in a court of law, should be adversary and not inquisitorial. The tribunal should have both sides of the case presented to it and should judge between them, without itself having to conduct an inquiry of its own motion, enter into the controversy, and call evidence for or against either party. It if allows itself to become involved in the investigation and argument, parties will quickly lose confidence in its impartiality, however fair-minded it may be. This principle is observed throughout the tribunal system, even in the adjudging of small claims before social security local tribunals and supplementary benefit appeal tribunals by a departmental officer. Naturally this does not mean that the tribunal should not tactfully assist an applicant to develop his case, particularly when he has no representative to speak for him, just as a judge will do with an unrepresented litigant."

13. There can be no doubt that careful thought needs to be given before a decision is made to call a witness who has not been asked to testify by one of the parties.

14. The sort of problems which can arise were considered by the Court of Appeal at p. 34 of The Queen v. Kooken [1982] 74 Criminal Appeal Reports, p. 30:-

... In those circumstances the judge should have exercised his discretion, Mr. Swift submits, to call evidence on her behalf.

We very much doubt whether any such discretion can exist in the judge. However it is always dangerous to forecast that no possible situation could ever arise in which the judge may not have to consider his powers in that respect. But we find it difficult to envisage any situation where a judge could properly call evidence to this effect in the face of the wishes of the defendant, upon whom the choice lies and upon whom alone the choice lies. One can envisage, and Mr. McCowan has particularised a number of them, all sorts of difficulties which would arise were the judge so to act. If he had such a power and if he exercised the power, the defendant would be in a position to say he ought not to have done, and if he did not exercise the power, likewise the defendant might come to this Court and complain that he has not done so. There are also all those difficulties which might well arise, as Mr. McCowan has pointed out to us, under the provisions of section 6 of the Criminal Procedure (Insanity) Act 1964. There is no need to particularise those specific difficulties.

All in all it seems to us, and we so hold, that if such a discretion does exists, which we-very much doubt, the learned judge in the circumstances of this particular case was entirely correct in acting as he did and in declining the suggestion tentatively proffered-by counsel at the trial that he might take upon himself the risk and burden of calling this evidence in the face of the wishes of the defendant herself. So much for the first point."

15. I have considered the transcript of the hearing before the Tribunal carefully and I have come to the conclusion that the Tribunal cannot fairly be criticized for not calling the applicant's wife to give evidence. I am also of the view that the Tribunal made it manifestly clear that as much evidence as possible should be presented to establish that the boys had been born in Hong Kong and that the applicant has only himself to blame that he did not call his wife as a witness.

16. I do not think that there has been any breach of the Rules of Natural Justice and I would dismiss this motion. I will hear the parties on costs.

Representation:

Mr. P.J. Dykes (Wong, Hui & Co.) assigned by DLA for the Applicants.

Mr. S.H. Kwok (A.G.'s Chambers) for the Immigration Tribunal.

Mr. Stanley Lee (A.G.'s Chambers) for the Director of Immigration.