Chong Yee Shuen v. Attorney General and Another

HCA000521/1973

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 521 OF 1973

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Coram: Trainor, J.

Date of Judgment: 23rd September, 1974.

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JUDGMENT

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1. By a letter dated the 19th February, 1973 the plaintiff in these proceeding was requested to attend the Immigration Department on the 20th February. There he received a notification that His Excellency the Governor had ordered his removal from Hong Kong and that he be detained in custody pending his removal. With the notification the defendant was served with a document signed by the Deputy Colonial Secretary purporting to be an order made by him by virtue of the powers delegated to him by His Excellency the Governor requiring the plaintiff to leave the Colony, and authorising his detention pending his removal. Immediately on the service of the two documents the plaintiff was arrested. On the 23rd February he was released on entering into a recognisance and subject to certain conditions which were later ameliorated.

2. On the 27th February the plaintiff instituted proceedings by way of writ citing the Attorney General and the Director of Immigration as defendants seeking four declarations and costs. A Statement of Claim was filed in which as later amended, the plaintiff set out the relief he sought: Special damages (which were unquantified); and "Aggravated/exemplary damages".

3. The Statement of Claim concluded:

"And the plaintiff claims:

	(i)	A Declaration that he is a Chinese resident within the meaning of thereof in Section 2 of the Immigration Ordinance.
	(ii)	A Declaration that he has a right to land and to stay in Hong Kong under Section 8 of the Immigration Ordinance.
	(iii)	A Declaration that he is not liable to be removed from Hong Kong under the provisions of Section 19 of the Immigration Ordinance or at all (This was amended at the hearing by the deletion of the words "or at all").
	(iv)	A Declaration that the purported removal and detention order is made unlawfully and/or that it is null and of no effect.
	(v)	A Declaration that the 2nd defendant has no power to impose the aforesaid or any conditions upon the plaintiff on his entering into a recognisance under Section 36 of the Immigration Ordinance.
	(vi)	Damages for wrongful imprisonment.
	(vii)	Costs and/or other reliefs."

4. In parenthesis one might ask: Are other reliefs an alternative to costs?

5. A Defence as amended delivered by the defendants admitted that the removal and detention order signed by the Deputy Colonial Secretary "... is of no effect and that the imprisonment and recognisance requirements should not have been undertaken."

6. The amended Defence denied knowledge of the special damage, and that the plaintiff was "entitled to aggravated/exemplary damages as set out in paragraph 10 of the Statement of Claim in the circumstances of this case, and is not entitled to the declaration set out as sub-paragraphs (i), (ii), (iii) and (v) or any of them and is not entitled to any further or other relief as claimed under sub-paragraphs (vi) and (vii) or at all".

7. At the hearing of the case an application by Counsel for the plaintiff, without objection from the defendants that the writ be amended to include a claim for damages which had not been included in it was granted.

8. In a nutshell the plaintiff's case is that he is a Chinese resident as defined by Section 2 of the Immigration Ordinance and entitled to enter and reside in the Colony; that he was unlawfully detained by the Immigration Authorities; that he is entitled to the declarations he seeks; and entitled to damages, indeed exemplary damages, for his wrongful imprisonment.

9. In paragraph 3(1) of their Defence the defendants say:

"It is not admitted that that the plaintiff is a Chinese resident within the meaning thereof in Section 2 of the Immigration Ordinance. The plaintiff has not submitted to normal administrative procedures to satisfy his claim for a right to land in Hong Kong under Section 8(1) of the Immigration Ordinance and has not satisfied the onus of proving that he is a Chinese resident under Section 64 of the Ordinance".

10. In paragraph 3(ii) they deny he has a right to land and stay in Hong Kong and is not liable to removal and detention.

11. In paragraph 4 the defendants say:

"The plaintiff is not entitled to the discretionary remedy of a declaration concerning his claim to be a Chinese resident, and the declarations that result from this status, without having undertaken the stipulated administrative enquiries concerning his status, pursuant to the Immigration Ordinance".

12. In the next paragraph the defendants say the plaintiff is not entitled to a declaration that he is not liable to be removed from Hong Kong or at all.

13. Paragraph 8 of the Statement of Claim (having alleged the invalidity of the detention and removal order) reads:

"The plaintiff says the 2nd defendant has no power to impose any conditions upon the plaintiff for his release upon a recognisanse and that the said condition that he should report daily to the Immigration Department or alternatively once a fortnight is capricious, oppressive, unlawful and contrary to the provisions of the Immigration Ordinance".

14. To that the defendants pleaded:

"The defendants deny the averment in paragraph 8 of the Statement of Claim that the 2nd defendant has no power to impose any conditions upon the plaintiff for his release upon recognisance and that a condition for daily reporting or alternatively once a fortnight is capricious, oppressive, unlawful and contrary to the provisions of the Ordinance."

15. The plaintiff's plea may be somewhat ambiguous in the circumstances but he took his stand by seeking relief in the general sense as set out in paragraph 10(v) of the Statement of Claim.

16. Section 36 of the Ordinance reads:

"An immigration officer ..... may require a person -

to enter into a recognisance ..... in such amount and with such number of sureties as the Director ..... may reasonably require; and where a person who is so detained enters into such a recognisance he may be released."

It will be noted that there is no reference to the imposition of conditions in the section.

17. Section 27 prescribes that a person who may be examined under Section 4(1)(a) may be detained for a limited time. Section 4(1)(a) presoribes that any person (with an exception that is irrelevant) may be examined by an immigration officer on arrival in Hong Kong. To put the position briefly then: Anyone on arrival in Hong Kong may be detained and released on entering into a recognisance.

18. A Chinese resident is entitled by Section 8(1) of the Immigration Ordinance to land in Hong Kong. If, however, there is in force a deportation order against such a person by virtue of Section 20(2) his right ceases while such deportation order is in force (Section 20(6)).

19. Section 11(5) of the Ordinance provides that:

"The Director may at any time by notice in writing to any person other than a person who has the right to land in Hong Kong by virtue of Section 8(1) impose any condition of stay (other than a limit to stay) in respect of such person."

20. It is therefore possible for a Chinese resident to lose the right to land in Hong Kong conferred by Section 8; to be arrested and released on entering into a recognisance pursuant to Section 36; and contemporaneously to receive a notification under Section 11(5) imposing conditions of stay.

21. The relief sought in paragraph 10(v) is a declaration that the Director of Immigration "has no power to impose the aforesaid or any conditions upon the plaintiff on his entering into a recognisance under Section 36 of the Immigration Ordinance" with the taking of a recognisance under Section 36. This is a far too sweeping demand and unless I heard very convincing argument that the Director could not impose conditions of stay contemporaneously with the taking of a recognisance under Section 36 (and that is what the plaintiff asks me to declare) I would not grant it. I have heard no such argument and accordingly I refuse the relief sought in that sub-paragraph.

22. A Chinese resident is stated in Section 2(1) of the Immigration Ordinance to be one who

23. The evidence to support the plaintiff's claim to be a Chinese resident was given by the father of the plaintiff and the plaintiff himself.

24. The father said both his parents were Chinese, born in Kwantung. He, himself, was born in Japan but lived in Canton between the ages of two and nine years. At the age of nine he apparently joined his father and attended a primary school in Japan, and then an overseas Chinese Middle School in Japan. From there he went to a Japanese High School and thence to a Japanese University. He graduated as a medical doctor and in 1931 went to China with his Japanese wife and the plaintiff, and became a professor in Nantung University. He remained in China until 1938 and during his stay there he frequently visited Hong Kong. The witness said that about 1935 his wife and family, including the plaintiff, came to live here but visited him in China from time to time. He said that in 1936 or 1937 his son started school here and in 1938 he, the father came to join his family who were living in Wanchai. Later they moved to Yaumati. From 1942 to 1945 the witness said he was Superintendent of the Tung Wah group of hospitals after which he resumed private practice in Jordan Road where he remained until 1972.

25. Reports from Ling Tung Middle School, Hong Kong were identified to the Court by the father as concerning the plaintiff; as were bills for school fees. The translation of the first report so far as the period it covers is rather vague and reads:

"26th (1937) years 1st term 26th (1937) years October."

26. However, from this report it would appear that the plaintiff was in the school certainly from a date earlier than October 1937. No reports or bills were produced relative to any period prior to 1937 or subsequent to 1940 but this was explained by the plaintiff by the fact that what he produced were obtained by rummaging among papers of his father. He said they were found in different places. However he did produce a document to which was attached a photograph which he said was of him and on which photograph was an impressed seal of the school. The chop of the school was also on it. This document according to the translation is a "Graduation Testimonial" for "Student Chong Yee Shuen the native of Nam Hoi District, Kwangtung Province now age 15 ....." The document is dated "27th August in the 31st year (1942) of the Republic of China".

27. No documentary evidence was produced by the father to show he came to Hong Kong in 1935 and his cross-examination on the point was confined to one question: "Have you any proof to show you brought your family here in 1935 or 1938" to which the witness replied "I have a certificate to show I commenced practice here in 1938".

28. The plaintiff who gave evidence before his father told a story substantially the same as his father. In cross-examination he said he found the reports and other documents that were produced in 1971 when he intended to apply for permanent residence. He said he found them in his father's clinic in Jordan Road. He was asked if it was in 1937 his father moved in there but he said it could have been in 1938. He said that prior to his father's arrival in Hong Kong he, the plaintiff, had lived in Canton Road and also in Wanchai. The plaintiff was asked if there was anything to demonstrate the school reports applied to him and he pointed out that in some of them his father's name was mentioned. As to the certificate he was asked if there was anything to demonstrate the Testimonial was his apart from the photograph and he said there was not.

29. The plaintiff said he left Hong Kong in 1943 and went to Japan for further education.

30. Dr. Cheung, the plaintiff's father, impressed me very strongly as a witness of integrity. I am quite satisfied that he is the child of parents both born, as he said, in China and both of whom he considered Chinese. Moreover, having seen him I would have no hesitation in accepting him as being Chinese as I know it.

31. I do not know quite how one is to decide what is necessary to establish a person as being "wholly or partly of the Chinese race" as required in Section 2 of the Immigration Ordinance. How far back has one to go in tracing his ancestry to prove that he is so. To his father? His grandfather? In my opinion this is a question, that cannot be answered in a general way and no definition can be attempted. I consider that each case must be considered on its own facts on the basis of parentage; what a person considers himself to be; with what ethnic group he is in association: what language or dialect he speaks; how he is considered by others; and should it exist, what travel document he possesses.

32. I am satisfied that the paternal grandparents and the father of the plaintiff would be accepted by persons claiming to be Chinese as one of themselves. The father was born in Japan but was in China from the time he was 2 until he was 9. He returned to Japan at that age where he went to a primary school. After primary school he was admitted to an overseas Chinese Middle School. No evidence was led as to whether or not this was a school confined to Chinese overseas, but the fact that Dr. Cheung was sent to and accepted in that school is some evidence that his parents considered themselves, and were considered, Chinese and that they wished their son to be associated with things Chinese and brought up in the Chinese tradition. I have been told by the plaintiff, without objection or question, that his father is a national of the Republic of China. Both the father and the Plaintiff gave evidence in Cantonese.

33. The plaintiff then is the son of a person who very positively appears to be Chinese. The plaintiff has, since 1960 at least, been travelling on a passport issued by the Republic of China. Indeed it was such a passport that he used when he last entered Hong Kong. I do not know the requirements essential to obtain such a passport but I think I may gain some assistance from the fact that the authorities there granted him a passport, an assumption fortified by having been told that plaintiff's father is a national of the Republic.

34. In all the circumstances I hold the plaintiff must be considered to be partly of the Chinese race within the requirements of Section 2(1) of the Immigration Ordinance.

35. Has the plaintiff been ordinately resident for a continuous period of not less than seven years?

36. As I said earlier I considered Dr. Cheung to be a witness of integrity. I also considered him to be a reliable witness. That being so I accept that he established his family in Hong Kong in 1935 before he came here from China in 1938. I accept from the school reports and the evidence of the plaintiff that he was attending school in 1937 while his father was still in China. This confirms that the family were in Hong Kong in the year prior to the father coming to live permanently. I accept the evidence of Dr. Cheung that it was in August 1935 that the plaintiff came to Hong Kong with his mother and there is evidence that he was here in August 1942.

37. The only difficulty then in deciding whether or not the plaintiff is a Chinese resident within the meaning of Section 2 are the words "continuous period". These words connote an unbroken or uninterrupted period. If one were merely to interpret "continuous period" in that way then it must be held that the plaintiff has failed to establish such an uninterrupted period. I say this because his father told the Court that between 1935 and 1938 his son used to visit him in China for periods of up to a month at a time. However the word "resident" in the definition is qualified by the word "ordinarily" and this word must have same meaning. Is a person "ordinarily resident" in the place in which he usually resides when, say, he goes elsewhere for a month's vacation. In the context of the section I hold he is. I do not think the legislature intended that a trip for day to Macau or a month to visit a parent in China to be a breach in the continuity it intended. To hold otherwise would be to deprive the word "ordinarily" of all meaning.

38. I hold that the plaintiff is a Chinese resident.

39. Is the plaintiff entitled then to the declarations sought other than the one which I have dismissed?

40. I must confess to boing somewhat at sea in trying to understand some of the Defence. If paragraph 3(i) had ended with the first sentence the matter would be quite clear but when a reference is made to "normal administrative procedures" I find myself lost. Matters are made worse when it is pleaded that the defendant is not entitled to a declaration that he is a Chinese resident without having undertaken "the stipulated administrative enquiries concerning his status". I just cannot make sense of that. It may be that I am at fault but it seems to be just vague nonsense. I asked Counsel for the defendants, who I hasten to add did not draft the Defence, if there were in existence any statutory rules or regulations or anything that would answer the description "stipulated" relevant to the matter before the Court and she could not tell me of any; my own searches have failed to produce any.

41. Be that as it may the plaintiff said he did apply for permission to live here permanently. His evidence was that in March 1971 he arrived here with a Republic of China Passport which was endorsed on arrival with permission to stay for six months. When the time expired he said he asked his partner to apply on his behalf for an extension. In July 1972 he was summoned to the Immigration Department where enquiries were being made by the Anti-Corruption body as to whether he had paid money for an extension. What transpired I know not but the plaintiff said he saw a Mr. Tang who said the procedure for him to stay permanently would have to be gone through again. The plaintiff said he got a solicitor to do this and in the meantime was granted permission to stay from month to month. He said he supplied all the particulars including his education background in Hong Kong. Later he was asked to submit three photos. Later still another three were asked for from him by a Mr. Chang who, he said, advised him that if he had property in Hong Kong his chances of getting permission permanently to reside would be enhanced. The plaintiff said that as a result, towards the end of 1972, he bought a flat.

42. The plaintiff said he received a letter on the 16th or 17th February 1973 as a result of which he visited the Immigration Department and was given the removal and detention order by a Mr. Wong and was detained. He said he asked for an explanation for his detention but was told this could not be revealed. He said he asked if he might telephone his father but his request was refused. He said he asked if he could telephone his solicitor and after 15 minutes this was permitted. The plaintiff was released on the 23rd.

43. In a cross-examination it was put to the plaintiff that he went to the Immigration Department on the 6th September 1972 and was told that as his re-entry visa to Japan expired on the 20th his application for permission permanently to reside in Hong Kong was refused. The plaintiff said he did not go to the department, and that he did not hear that his application was refused.

44. Two witnesses were called by the defendants. An Immigration Officer Mr. Chang Chi Tong said he interviewed the plaintiff in September 1972. His duty at the time was to get entry into other countries for people who might be removed from Hong Kong. He said he interviewed the plaintiff to obtain such particulars from him as would be required for entry into Taiwan in order to send the plaintiff there. It was clear from an answer to me that he kept his purpose concealed from the plaintiff. He said the plaintiff did not show him any documents except three photos he asked for and he could not remember seeing him more than once. He said that he had never told the plaintiff his chances of remaining in Hong Kong would be enhanced if he bought a property here.

45. This witness had nothing to do with applications for permanent residence in Hong Kong.

46. The second witness a Mr. Wong Yau Ming was he who sent a letter to the plaintiff to come to the department, served the notice and order on him and arrested him. He said he was not shown the school reports, bills or certificate. He said he had never seen the plaintiff before he visited him in answer to the letter.

47. Nothing the defence witnesses said was of any help. Whatever the plaintiff may or may not have done so far as "the stipulated administrative enquiries" were concerned I am satisfied that he has established his claim to be a Chinese resident within the meaning of the Ordinance.

48. In the circumstances I grant the plaintiff:

49. The Declaration sought in 10(v) I have already dealt with and refused.

50. As to damages I have not heard anything to show that the plaintiff suffered any special damage. There is of course no doubt that he is entitled to general damages. I have been asked to award exemplary damages and I must admit I was sorely tempted so to do when it was suggested to the plaintiff in cross-examination that release on bail was there for him for the asking, and that the reason he was detained was that he did not ask. The temptation was strengthened when Mr. Chang Chi Tong of the Immigration Department told me that he interviewed the plaintiff to obtain particulars from him in order to apply for an entry visa to the Republic of China for him but Mr. Chang took pains to conceal that from the plaintiff. I asked the officer if there had been any explanation for the three photographs he asked for and he told me: "No. If asked why I wanted the photographs in order not to alert them I say 'In connection with this application'." I do not know if the letter inviting the plaintiff to call was headed "Re application", it was not produced, but if it had been and were so headed I might well have submitted to the temptation. Such a heading would clearly have indicated that the plaintiff was being invited to meet the officer in order to deal with his application for permanent residence.

51. However, on further consideration I do not think this is a case for exemplary damages. The defect in the order signed by the Deputy Colonial Secretary was technical. Had the order been signed by the Governor or the Colonial Secretary it is doubtful if the plaintiff would be entitled to any damages at all. But the plaintiff is entitled to much more than nominal damages. I award him $3,000.

52. In conclusion I would like to refer to what I consider to be a highly undesirable court practice. I refer to the practice of presenting to the Court the Registry file of all documents, including those in interlocutory matters, and nothing else. A judge getting such a file has to go through it to find out the documents relevant to the trial of the case. In the instant case in going through the file I read a letter in which there was an offer of compensation by the first defendant. I was astonished to see this, and more so when I saw the letter was headed "Without Prejudice" and had been exhibited in an affidavit. It was most irregular for such a letter to be exhibited by the plaintiff's solicitors and it was equally improper for the defendants advisers to have allowed it to remain on the file.

53. I have done what I could to eliminate the offer from my mind in assessing damages, and I was relieved in a discussion with a learned brother judge to find his view as to damages was substantially the same as my own. I can say, however, that I am unaware if a lodgment has been made by the defendants.

Representation:

Mr. K-John Cheung, (Hon & Co.) for Plaintiff.

Mrs. Jackson-Lipkin, C.C. for both Defendants.