Re Choy Yi Wong

HCMP002595/1985

IN HE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS NO. 2595 OF 1985

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Coram: Hon. Penlington, J. in Court

Date of hearing: 20th December, 1985

Date of delivery of judgment: 20th December 1985

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JUDGMENT

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1. This was an application for Judicial Review hear on the 20th December pursuant to leave granted by Mayo, J. on 20th of November. I dismissed the application and now give my reasons for doing so.

Background

2. On the 25th of November 1984, the applicant's daughter Choy Min-min arrived unlawfully in Hong Kong. A birth certificate has been produced giving her date of birth in China as 6th December 1970. She was taken to the Immigration Department on the 27th November 1984 by the applicant, her father who lives in Hong Kong with his wife, his son and an elder daughter.

3. The applicant said in his affidavit in support of the application that he went back with his daughter to the Immigration Department on several occasions, although there is apparently no record of that. However, on the 17th April, he was interviewed by Mr. Lui Shang Kuen and Mr. Chan Yam Chung both Immigration Inspectors, and he made a statement, under caution, admitting that his daughter was in fact born on 6th December 1969 and the birth certificate and other documents produced were false. However Choy Min-min was given a form ROP 85 No. QW 085894 which is an initial application to register for identity card. This card bears her photograph and clearly is a form of temporary identification.

4. On the 5th of July a removal order was made by the Deputy Director of Immigration, pursuant to Section 19(1)(b)(ii) of the Immigration Ordinance, and Choy Min-min was arrested on the 15th July and detained pending removal.

5. The applicant appealed against the order to the Immigration Tribunal who heard the appeal on the 8th of August. The applicant was represented by Mr. Persaud and the appeal was dismissed. The Tribunal gave as its reasons the simple statement that Choy Min-min did not have the right to land in Hong Kong (which is not disputed) and did not have the permission of the Director of Immigration to remain.

6. The applicant applied for Judicial Review of the Tribunal's decision on the grounds that he had not been given a fair hearing. In particular it was alleged that his Counsel had been refused permission to cross-examine two Immigration Inspectors who had given evidence, Mr. Lui Shang-kuen and Mr. Chan Yam-chung. According to the notes of proceedings Mr. Lui said he interviewed the applicant and Choy Min-min but did not say she could stay in Hong Kong. He said he had no authority to do so. According to the record he was asked one question - as to the criteria for allowing the appellant to stay and was told it depended on whether she had the right to stay. Mr. Chan said that the ROP 85 form was a temporary proof of identity of a person whose identity was still under investigation. He said that he did have the right to allow people to stay in Hong Kong if he was satisfied by enquiry. An ROP 85 could be issued to a person under investigation. There is no cross-examination recorded in the notes.

7. At the hearing before me Mr. Persaud sought an adjournment on the grounds that notes of the proceedings before the Immigration Tribunal had only become available a few days before the hearing. He said that the record omitted his application to cross-examine the Immigration Officers on what promises had been made to the applicant. I refused the application because it was made very late particularly as the grounds for review were that there was not a fair hearing, and secondly that I was satisfied that cross-examination of the Immigration Inspectors on what promises, if any, had been made to the applicant was not relevant to the issues before the Tribunal.

8. An affidavit was eventually filed exhibiting Mr. Persaud's own notes. He said he wished to add an affidavit by his solicitor though he did not know if he had kept notes of the proceedings.

Decision

9. The grounds of this application for review are that the applicant was not afforded a fair hearing, and in particular his counsel was not permitted to cross-examine two Immigration Officers relating to certain promises made by them. there was an affidavit from Mr. Tang Shiu-cheong, also an Immigration Officer, who was the case officer and was present at the hearing. He denied that there had been such a refusal to cross-examine though there had. been argument between Counsel and the Chairman of the Tribunal as to relevance of some questions.

10. I am satisfied that there being no dispute that Choy Min-min landed in Hong Kong unlawfully, the only question before the Tribunal was whether she had been given permission to remain.

11. Mr. Persaud referred to Section 7 of the Immigration Ordinance which says an Immigration Inspector may give permission to land in Hong Kong, as does Section 11. Those sections do not give an Immigration Officer the right to give permission to remain in Hong Kong to a person who has landed unlawfully unless, pursuant to Section 11(1A) he was born in Hong Kong. Choy Min-min was not born in Hong Kong. She landed in Hong Kong unlawfully and the only way she can remain in Hong Kong is if authorised by the Director of Immigration (who by definition in Section 2 includes the Deputy and any Assistant Director). An Immigration Officer can't give such authority even if there was the suggestion in Mr. Chan's evidence at the Tribunal hearing that he could.

12. It was also suggested that in some way by issuing the ROP 85 and by the delay between Choy Min-min's first reporting to the Immigration Department and the making of the removal order tacit permission had been given which the Crown could not now deny. I do not consider there is anything in that argument. There are no doubt many such cases which have to be investigated and that must take time. Then there are no doubt difficult policy decisions to make - I imagine this was certainly one of them.

13. The application must be dismissed.

14. Under the circumstances of this matter I make no order as to costs.

15. Mr. Persaud asked for leave to appeal to the Court of Appeal. The applicant does not require such leave if, no doubt acting on Counsel's advice, he chooses to do so.

Representation:

Mr. N. Persaud (K.C. Chan & Co.) for Applicant

Mr. B. Whaley, Senior Crwn Counsel for Respondent

Miss A. Au (watching Brief for the Appeal Tribunal)