Re Sit Yuk Cheung

HCMP000040/1990

1990 MP No. 40

HEADNOTE

Immigration - Judicial Review - Private International Law - whether child legitimate under Hong Kong law if law of parents domicile at birth of child does not recognise illegitimacy - Notice of Determination of Immigration Appeal Tribunal - whether facts found have to be set out in Notice of Determination.

1990, M. P. No. 40

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Coram: The Hon. Mr. Justice Kaplan in Court

Date of Hearing: 26 & 27 March 1990

Date of Delivery of Judgment: 24 April 1990

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J U D G M E N T

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1. This is an application for Judicial Review of a determination of the Immigration Tribunal dated 31st October 1989 whereby it dismissed an appeal brought against the decision of the Director of Immigration on 4th September 1989 ordering the removal of SIT Yuk-cheung from Hong Kong under the provisions of Sections 19(1) (d) (ii) & (iii) of the Immigration Ordinance, Cap. 115.

2. SIT Yuk-cheung (the child) was born on the 7th December 1983 in Hong Kong. He has lived here all his life with his mother, LEE Wing-mui (the mother), his father SIT Woo-tung (the father) and his sister SIT Yuk-fa (the sister) who is just over 1 year older.

3. The relevant facts are not in dispute and are as follows:-

(a) In March 1976 the father came to Hong Kong illegally but obtained an I.D. card in June 1976 under the 'touch base' policy.

(b) On 7th June 1979, the father married Madam Tsang. And separated about 2 months later.

(c) On 12th November 1980, the father applied for legal aid to obtain a divorce but was refused on the ground that the marriage had not by then lasted 3 years.

(d) In the spring of 1981, the father returned to China and was introduced to the mother.

(e) On or about the 6th May 1981, the father and mother went through a form of marriage ceremony in China.

(f) In or about 1980, the mother had come to Hong Kong illegally. She was convicted of possessing a forged I.D. card, sentenced to 1 day's imprisonment and was repatriated to China on the 13th April 1981.

(g) The mother returned to Hong Kong illegally in or about July 1981 and has been here ever since, although a removal order has been made against her in respect of which she has not appealed.

(h) On 22nd October 1982, a daughter SIT Yuk-fa was born to the mother and father. Because she was born before the 1st January 1983, the date of commencement of Immigration (Amendment) (No. 2) Ordinance [78 of 1982], she has the right to remain in Hong Kong.

(i) On 14th January 1983, the father petitioned for divorce against Madam Tsang. The decree nisi was granted on the 29th March 1983 and was made absolute on the 10th May 1983.

(j) The child was born on the 7th December 1983 and was thus conceived somewhere around the end of March or beginning of April 1983.

(k) Birth certificates for both children were requested in April 1989 and issued on the 6th November 1989.

(l) The mother was arrested and sentenced to 6 months' imprisonment in June 1989.

(m) The child was detained on the 25th September 1989.

(n) Removal orders against mother and child were made on the 4th September 1989.

4. One of the striking features of this case is that it was agreed by all counsel that if mother and father marry now (they both being free so to do) under Hong Kong law the child would become legitimate by the subsequent marriage and no removal order could be made against him.

5. This application for Judicial Review was made by the father effectively on behalf of the child. Mr. Henry Litton, Q.C., Mr. Benjamin Yu appeared for the Applicant. On the morning of the hearing, I heard an application by Mr. Sceats on behalf of the mother as next friend of the child that the mother and child should be joined to these proceedings. Mr. Sceats said that he wished to raise a point that went to the legitimacy of the child under Chinese law. Mr. Whaley for the Attorney General expressed some surprise because he considered that Mr. Litton was appearing for the child. He went on, however, most helpfully to suggest that Mr. Sceats could, at my invitation, act as amicus curiae in order to argue the point concerning legitimacy which also involved the issue of domicile. Having recognised the costs implication involved in accepting this invitation, Mr. Sceats nevertheless agreed so to act and I am very grateful to him for the very interesting argument which he later developed.

6. During the course of the hearing, I granted Mr. Litton leave to amend his additional grounds by adding two further grounds. The first alleged that the Immigration Tribunal failed to discharge its statutory duty to:-

(a) find the relevant facts;

(b) state in its Notice of Determination those findings of fact; and

(c) state in its determination the conclusions of law flowing from these facts.

7. The second ground was added to ensure that Mr. Sceats' point on legitimacy and domicile, which Mr. Litton adopted, would be covered in the grounds of application. Most helpfully, Mr. Whaley consented to this amendment.

8. The second additional ground was:-

"That the Immigration Tribunal failed to consider whether the Applicant SIT Yuk-cheung belonged to a class of persons specified in Article 2 of the Hong Kong (British Nationality) Order 1986 by virtue of the law of the domicile of his birth; that is, that he was the legitimate child of his father, a person settled in Hong Kong at the date of his birth."

9. The Notice of Determination of appeal by the Immigration Tribunal under Section 53D of the Immigration Ordinance as against the child appears at page 12 of Bundle A. So far as material, it reads as follows:-

"On 26th September 1989, you appealed against the removal order made against you by the Deputy Director of Immigration on the 4th September 1989. The grounds of your appeal was/were that you:-

(a) do enjoy the right of abode in Hong Kong under Section 2A of the Immigration Ordinance.

(2) On 31st October 1989, the Tribunal heard your appeal against the removal order and has determined pursuant to Section 53D that on the facts of your case which we found them to be as follows:-

From the evidence heard and seen, the adjudicators formed the opinion that there had not been a bona fide marriage between Mr. SIT Woo-tung and Ms. LEE Wing-mui."

10. This notice was signed by the two adjudicators, Mr. Valiant Cheung and Dr. Sarah Liao.

11. The main crux of Mr. Litton's submission is that the adjudicators have not found any facts or the necessary facts. He says it is their duty to do so and having done so they have to apply the law to those facts and make a determination.

12. Both adjudicators took a full note, and I have been supplied with both their handwritten notes and the typed-up versions. Dr. Liao's typed notes started at page 14 in Bundle A. Neither the mother nor child were represented. A senior Immigration Officer, Mr. Pang, appears to have presented the case, examined the witnesses and made submissions. Mr. Pang's final submissions are set out on page 19 of Dr. Liao's notes. It appears the hearing ended at about 1.45 p.m. on the 31st October 1989. At some stage, Dr. Liao made some further notes which look very much like her conclusions. This appears on pages 20/21 of Bundle A. Mr. Valiant Cheung's notes started at page 24 of Bundle A. At page 30, he sets out what look like his conclusions although he was silent about the effect of Section 11 of the Legitimacy Ordinance.

13. In order to appreciate the submissions made on the various points, it is, I fear necessary to set out the various statutory provisions upon which these arguments are based.

14. The starting point is Section 2A(1) of the Immigration Ordinance which provides:-

"A Hong Kong permanent resident enjoys the right of abode in Hong Kong, that is to say has the right -

(a) .....

(b) .....

(c) .....

(d) not to have a removal order made against him."

15. So the issue is; was this child a Hong Kong permanent resident?

16. Section 2(1) of the Immigration Ordinance defines "Hong Kong permanent resident" as meaning 'a person who belongs to a class or description of persons specified in the first schedule'.

17. Paragraph 2(a) of the first schedule provides that:-

"Any person who is a British dependent territory citizen and who

(a) belongs to a class or description of persons specified in Article 2 of the Hong Kong (British Nationality) Order 1986 as having a connection with Hong Kong."

18. Article 2 of the Hong Kong (British Nationality) Order 1986 provides that:-

"2(1) for the purposes of this Ordinance, a person shall be taken to have a connection with Hong Kong if

(a) .....

(b) .....

(c) .....

(d) at the time of his birth his father or mother was settled in Hong Kong.

(2) .....

(3) A person born in Hong Kong on or after 1st January 1983 shall not be taken to have a connection with Hong Kong under paragraph 1(a) by virtue of his birth there unless, at the time of his birth, one of his parents was -

(a) settled in Hong Kong; or

(b) a British dependent territory citizen by virtue of his having a connection with Hong Kong as specified in this Article."

19. Section 50(2) of the British Nationality Act provides that:-

"Subject to Sub-section (3) reference in this Act to a person being settled in the United Kingdom or in a dependent territory are references to his being ordinary resident in the United Kingdom or, as the case may be, in that territory without being subject under the immigration laws to any restriction on the period which he may remain."

Section 50(9) of the same Act provides that:-

"For the purposes of this Act -

(a) the relationship of mother and child shall be taken to exist between a woman and any child (legitimate or illegitimate) borne to her; but

(b) subject to the Section 47 the relationship of the father and child shall be taken to exist only between a man and any legitimate child born to him; and the expressions 'mother', 'father', 'parent', 'child' and 'descended' shall be construed accordingly."

[This interpretation section applies also to the Hong Kong (British Nationality) Order. "Settled" has the same meaning in the Immigration Ordinance - as it does in the British Nationality Act 1981].

20. Section 11(1) of the Legitimacy Ordinance Cap. 184 provides:-

"Subject to the provisions of this Section, the child of a void marriage, whether born before or after the commencement of this Ordinance shall be treated as a legitimate child of his parents, if at the time of the act of intercourse resulting in the birth (or at the time of the celebration of the marriage if later) both or neither of the parties reasonably believed that the marriage was valid."

Legitimacy - Domicile

21. Having set out this provisions, it may be helpful to deal firstly with Mr. Sceats' submission. He submitted that the father was clearly settled in Hong Kong. As Section 50(9) (b) of the British Nationality Act states that the relationship of father and child exists only as between a man and any legitimate child born to him, it is necessary to consider whether this child is legitimate or illegitimate. Clearly, under Hong Kong law the child is still illegitimate, its parents having not yet married. However, Mr. Sceats submits that the issue whether this child is legitimate or not falls to be decided under the law of his parents' domicile. The question of legitimacy is one of status and depends on the law of domicile.

22. For this proposition, one need cite no more than Dicey's Rule 101(2) which provides that:-

"A child not born in lawful wedlock is (semble) legitimate in England if and only if, he is legitimate by the law of the domicile of each of his parents at the date of his birth."

23. This passage cites In re Bischoffsheim (1948) 1 Ch 79 a case cited by Mr. Sceats who relied upon this passage at page 82 in Romer J.'s judgment:-

"The argument on his behalf was briefly as follows: Admitting that only a legitimate child could take under the gift to Nesta Pamela Fitzgerald's children, legitimacy is a question of status. That status is conferred or withheld, as the case may be, by the law of the domicile of origin, which is the law of the domicile of the parents at the time when the person whose legitimacy is in question was born. The status, once confer, remains with the person concerned throughout his or her life, and will be recognised and given effect to by our courts, save only in cases when that person claims to succeed to real estate in England. It is established by the evidence that Richard Wellesley received at birth, the status of legitimacy by the law of New York and, accordingly, it was contended, his claim, as a child of his parents, to a fund of English personalty will be recognised by the court of this country.

There can be no doubt as to the general criterion of a person's legitimacy. 'In most cases' said Lord Brougham in Fenton v. Livingstone 'the legitimacy of a party is to be determined by the law of his birth-place and of his parents' domicile'. Richard Wellesley undoubtedly received at birth, the status of legitimacy from the law of his domicile of origin, and such status is, in general, accorded international recognition. It is said, however, on behalf of the 1st and 2nd Defendants, that our courts will not accord universal recognition to a status of legitimacy conferred by a foreign domicile of origin. The acceptance by our law of the status so conferred is, it is contended, subject to exceptions: and the particular exception relied on in the present case is this: that an English court will not recognise as legitimate the child of a marriage which is incestuous, or which is otherwise contrary to religion or sound morality, not withstanding that the child is legitimate according to the law of his domicile of birth. In such cases, it is said, our courts are not content to act merely on the fact that the status of legitimacy was bestowed by the law of the birth place; they will, on the contrary, fasten their attention on the marriage of the parents and, finding that incestuous, treat the issue as bastards here, however full the measure of legitimacy that may be conferred upon them in the foreign land of their birth.

So far, in all events, as a court of first instance is concerned, I am of opinion that on the authorities, and especially having regard to the majority judgments in re Goodman Trusts, the contentions which were advanced on behalf of Richard Wellesley, and which I have summarized, must prevail."

24. Mr. Sceats also quoted In re Lucks Settlement Trusts (1940) 1 Ch 864, and he relied on a passage which starts at page 883 in which Luxmoore L.J. giving his judgment and that of the Master of the Rolls quoted from the third edition of Professor Dicey's book on conflict of laws, namely this passage:-

"What is the effect, according to English Law, or a person being made legitimate by the authority of a foreign sovereign? Suppose a person born illegitimate is legitimated by decree of the King of Italy, or under an Act of an American state, will such a person be held legitimate here? There is no English authority on the subject. The most probable answer is, (it is conceived), that the effect of such decree would, like the effect of a subsequent marriage of the parents, depend on the domicile of such person's father at the time of his birth and at the time when the decree was issued. Suppose, that is to say, that the child's father were domiciled in Italy at the time of the child's birth, and at the date of the decree, then the decree would have the effect of making the child legitimate in England. If, on the other hand, the father were domiciled in England, either at the time of the birth or the date of the decree, the child would apparently not be legitimated in England thereby."

25. Mr. Whaley accepted, so far as succession cases were concerned, the law as stated in Rule 101(2) of Dicey and in the passages above-cited. He attempted to draw a distinction between succession cases and Immigration cases to which I must return later.

26. It seems clear, therefore, that if A's marriage to B in country X would be valid there even though not valid in Hong Kong, nevertheless, Hong Kong law would recognise the children of that union as legitimate if the parties were domiciled in that country at the date of birth.

27. The next stage in Mr. Sceats' argument was that the mother and probably the father were domiciled in China at the relevant time. It is, I think, clear that the mother is domiciled in China. What about the father? The argument for saying that he is domiciled in China, is that China was his domicile of origin and it is harder to lose one's domicile of origin, than it is one's domicile of choice. Although he has lived in Hong Kong since 1976, it is a question of fact whether he has evinced the necessary intention to abandon his domicile of origin. As an economic migrant it may seem unlikely that he will want to return to China but, on the other hand, he apparently has family there and may intend to return to China when his working life in Hong Kong is completed. If he has unequivocally abandoned his domicile of origin and adopted a new domicile of choice in Hong Kong, then Mr. Sceats accepts this point will not run.

28. How should I approach this matter, bearing in mind that this issue was not considered at all by the Immigration Tribunal, and no evidence was directed towards it? Mr. Litton says that unless I am fully persuaded that there is no question of the father being domiciled in China at the date of the child's birth I should proceed on the basis that he is domiciled in China.

29. It is important to emphasize that it is not for me to decide any question relating to the father's domicile at the date of birth. All I need to say about the matter is that I cannot rule out the possibility that he was so domiciled and I will therefore proceed on that basis. If at the end of day I think Mr. Sceat's point is a good one, I will have to consider whether I ought to quash this decision and remit the case to the Immigration Tribunal for it to make the necessary findings and come to a determination in accordance with the law as I find it to be.

30. If the father was domiciled in China at the date of birth, what does Chinese law say on the subject of illegitimacy? I have had placed before me an affirmation of Bebe Chu, a solicitor who acts for the mother. She exhibits to that affirmation a legal opinion from Mr. Henry Hu (an expert in Chinese law) that was dated the 27th February 1990.

31. Mr. Hu advised that the marriage between mother and father (the 1981 ceremony in China) was a void marriage because the father's marriage to Madam Tsang was still subsisting. However, he stated that under Chinese law, the position of the child is quite different. He stated as follows:-

"Generally speaking, in Chinese law, there is no such clear distinction as to the legitimacy or illegitimacy of a child as the English law. In fact, for the sake of protection of the interest of the children, there is no such distinction." [sic]

32. Article 19 of The Marriage Law of the PRC 1981 reads as follows:-

"Children born out of wedlock enjoy the same rights as children born in lawful wedlock. No person should harm or discriminate against them. The father of the child born out of wedlock must bear part or whole of the cost of maintenance and education of the child until he or she can live on his or her own."

Mr. Hu continued:

"It will make no difference to the position of the minor, SIT Yuk-cheung whether the marriage between Mr. SIT Woo-tung and Madam LEE Wing-mui is valid, void or voidable. According to Chinese law, his status should be treated as if there was a valid marriage between his parents."

33. Mr. Sceats says that the effect of Article 19 is to rule out any distinction in Chinese law between legitimate and illegitimate children. On this basis, the law of the father's domicile at the time of the birth of the child treated the child as if his parents were married and thus did not stigmatise him as illegitimate.

34. The next stage in Mr. Sceats' argument is that as this is the law of the father's domicile, the law of Hong Kong should recognise it and thus for the purposes of this legislation, the child is legitimate. As a legitimate child of a father settled in Hong Kong there was, it is said, no jurisdiction to make the removal order against this child.

35. The issue I have to determine is whether it is correct to submit that the law of Hong Kong will recognise, for the purposes of Hong Kong Immigration law legislation passed in other countries, the effect of which is to abolish illegitimacy.

36. This point has yet to be decided under English law. Dicey and Morris consider this very point at page 835 in their commentary to Rule 101. They state under the sub-heading 'abolishing of illegitimacy in foreign system of law'.

"A number of countries have passed legislation to abolish the categorization of children as 'legitimate' and 'illegitimate'. The effect of this on cases falling within our rule has yet to be considered by an English court. It might be necessary for such a court to decide for the purposes of a rule of English law, for example, as to custody rights, whether a child was legitimate or illegitimate: the child might not be born in lawful wedlock (and so would not be legitimate under clause (1) of the rule) but both of his parents might be domiciled in a country which no longer distinguished for the purposes of its law between legitimate and illegitimate children. It would be open to the court to hold that in the circumstances clause (2) of the rule was of no assistance to the child and that it was therefore illegitimate. An alternative, and it is thought preferable approach gives greater weight to the policy of the foreign legislation. If the effect of that legislation is to place the child in the same position as that of a legitimate child, it should be treated as legitimate for the purposes of English law despite the absence of a designation of legitimacy in the foreign law. A Canadian court has adopted this approach which accords with that adopted in a different context in English law: the nature and incidents of a particular status may be ascertained according to a foreign governing law, the English court then determining how category used in English rules are to be applied."

37. Cheshire's Private International Law cites at page 446, the following clear exposition by Windeyer J. in A.G. for Victoria v. Commonwealth of Australia (1961-62) 107 CLR 529 and 596:-

"(d) Question is one of status, and that status depends upon domicile, and ... if a person is legitimated by the law of his domicile, English law will recognise that status however created, whether by legitimation brought about by subsequent marriage or by recognition or by birth. The validity by English law of the act or event, marriage or whatever it be, creating the status is irrelevant. The only question is what is the status by the law of the domicile."

At page 449 of Cheshire, the following is stated;

"... The question whether a child is legitimate or not by the lex domicilii is to be determined by examining the incidents of his status under that law rather than the title used to describe it. If the lex domicilii is the law of New Zealand where there is no distinction drawn between legitimate and illegitimate children, then as the child would have all the incidents of the status of a legitimate child in England, though only described in New Zealand as a 'child', he should be regarded in England as legitimate, though not born in lawful wedlock. Indeed, the Supreme Court of Canada has concluded that a child born out of wedlock, in Mexico, by which law she was described as illegitimate was to be considered to have the status of a legitimate child in Canada. Under Mexican law she had all the capacities and obligations of such a child, but certain social limitations attached to her position in Mexico causing her to be described there as 'illegitimate'.

... The rule stated above allocates a question of legitimacy to the law of the domicile of origin. Principle requires that this personal law should apply exclusively, since it is the only law competent to determine the status of a child. Nevertheless, if a case were to arise in which a child, though born in lawful wedlock, was for some reason not regarded as born legitimate, as for example, because he was not conceived in lawful wedlock, it is probably a safe assumption that an English court would be satisfied with the practically universal test of birth in lawful wedlock. This break with principle might be justified by the paramount importance of communicating to the child that beneficial status of legitimacy if some rational ground for doing so exists."

38. I have already quoted Article 19 of The Marriage Law of the PRC. What is its effect? Does it abolish the status of legitimacy, or does it merely attempt to ameliorate some of the consequences of illegitimacy. New Zealand has abolished the distinction by its Status of Children Act 1969 which provides:-

"For all the purposes of the law of New Zealand the relationship between any person, and his father and mother shall be determined irrespective of whether the father and mother are or have been married to each other and all other relationships shall be determined accordingly."

39. The New Zealand provision was referred to by the English Law Commission in its paper 74 on Family Law Illegitimacy in 1979. Their provisional conclusion was:-

"The law should be reformed not merely by removing the legal disadvantages attaching to illegitimacy but by abolition of the concepts of legitimacy and illegitimacy with the consequence that thenceforth there would be no legal distinction between the child born to parties who are married and the child born to parents who are not. The term 'illegitimate' would cease to have any meaning as a term of art."

In my judgment, on the basis of the evidence placed before me, Chinese law does not draw any distinction between children born in or out of wedlock. The first sentence of Article 19 is not drafted with the same common law precision as the New Zealand Act, but I am satisfied that the effect of Article 19 is to bring about the same state of affairs as exists in New Zealand and I believe elsewhere. The undisputed evidence of Mr. Hu is that under Chinese law the child's status should be treated as if there was a valid marriage between his parents. I am therefore satisfied, on this evidence, that Chinese law has abolished the distinction between 'legitimate' and 'illegitimate' and I must approach this case on that basis.

40. Mr. Whaley says that the undoubted rule that the status of legitimacy depends upon the law of the domicile of the parents at the date of birth should not be taken to apply to the law of immigration. He submitted that legitimacy should be decided by the domestic law of Hong Kong and that it could never have been intended that the word 'legitimate' would fall to be decided by anything other than Hong Kong or United Kingdom law. He says that all of Mr. Sceats' authorities are succession cases which should not be taken as applying in an immigration case. He referred me to pages 202-4 of Fransman's British Nationality Law (1989) which in my view does not assist greatly and merely touches on this issue.

41. There is, of course, no statutory injunction to ignore the Rules of Private International Law in any of the legislation cited to me.

42. If a child is recognised by Hong Kong law as legitimate for the purposes of succeeding to property, I can see no reason why the same child should not be so recognised as legitimate for the purposes of Hong Kong's immigration law. If parliament did not want this result they could have easily legislated to prevent it and it must be assumed to know the effect of the principles of law set out above. I can see no warrant for ignoring the rules as to domicile and legitimacy above-cited merely because the word 'legitimate' is used in an immigration statute. If I were to do that I might be said to have fallen into the same error as the English Court of Appeal in Shah v. London Borough of Barnet 1983 1 AER 226, where they tried to give to the phrase 'ordinarily resident' a different interpretation under the 1962 Education Act and Regulations than hitherto and were prompted to do so by their understanding of the relevant immigration legislation. The House of Lords held that the phrase 'ordinarily resident' meant the same under the Education Act as the House had held it to mean years previously in certain income tax cases. (Although Shah was not cited to me, I mentioned it in argument and no counsel sought to make submission upon it). It seems wholly desirable to me that Hong Kong law should give great weight to the policy of Chinese law with regard to legitimacy and that Hong Kong law should recognise the beneficial status that Chinese law confers on this child.

Conclusions on legitimacy

43. My conclusions on this part of case are as follows:-

(a) It is arguable that both mother and father's domicile at the date of birth of the child was China.

(b) On the evidence presented to me, Chinese law does not in fact recognise any distinction between legitimacy and illegitimacy and thus the status of illegitimacy does not exist under Chinese law.

(c) In considering questions of status, such as legitimacy, English law will look to the law of the domicile of the parents at birth. If that law treats a child born out of wedlock as legitimate, then English law will likewise recognise that status.

(d) That no special rules apply to the consideration of status in immigration cases unless the legislation so specifies.

(e) In view of (a) - (d) above (on the assumption that the parents are domiciled in China) the child is a legitimate child of a father settled in Hong Kong and thus enjoys the right not to have a removal order made against him.

44. I therefore propose to quash the determination of the Immigration Tribunal and remit this appeal to be heard by another Tribunal. It will then have to determine the parents' domicile at the date of birth of the child and any further evidence of Chinese law that may be placed before them as to the effect of Article 19. I have only decided this case on the basis of the evidence placed before me and I do not wish to inhibit either side from adducing such evidence as it wishes at the re-hearing. I wish to make it clear that I am not being critical of the Immigration Tribunal for not considering and deciding these difficult questions which were quite understandably not placed before it. However, in my judgment, these issues do arise and have to be decided as do the factual bases upon which they rely. Nothing in this judgment is intended to bind the Immigration Tribunal in coming to a decision on the parents' domicile nor on the effect of Chinese law if further evidence is placed before it, bearing in mind that the question of foreign law is always a question of fact. If no further evidence is placed before it, than was placed before me, then naturally, it will accept my interpretation of Article 19 of The Marriage Laws of China.

Failure to find facts

45. I now turn to consider Mr. Litton's submissions based upon the alleged failure of the Immigration Tribunal to find any facts and to apply the appropriate law to those facts. Mr. Litton submitted that all one finds in the Determination is the statement that there was no bona fide marriage. That he says was not the only issue before the Tribunal because Section 11 of the Legitimacy Ordinance provides that the child shall be treated as Legitimate if at the time of intercourse leading to his birth either or both of the parents reasonably believed that the marriage was valid. Nowhere, says Mr. Litton, in the Notice of Determination do we find an answer to this crucial issue.

46. At the very outset of his submissions, Mr. Litton placed great reliance upon a passage in the judgment of Lane, C.J. in Regina v. Immigration Appeal Tribunal ex parte Knan (1983) 1 QB 790. At page 794, the learned Chief Justice said,

"Where one gets a decision of a Tribunal which either fails to set out the issue which the Tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis upon which they had reached their determination upon that issue, then that is a matter which will be very closely regarded by this court, and in normal circumstances, will result in the decision of the Tribunal being quashed. The reason is this. A party appearing before a Tribunal is entitled to know, either expressly stated by the Tribunal or inferentially stated, what it is to which the Tribunal is addressing its mind. In some cases, it may be perfectly obvious without any express reference to it by the Tribunal, in other cases it may not. Secondly, the Appellant is entitled to know the basis of fact upon which the conclusion has been reached. Once again, in many cases, it may be quite obvious without the necessity of expressly stating it, in other cases it may not."

47. I should perhaps mention that in the Khan case, it was held that the reasons were unsatisfactory and the Tribunal's decision was quashed. The court ordered it should be sent back to be dealt with again either by the same Tribunal or, preferably, by a differently constituted Tribunal so that the matter could be re-considered.

48. Mr. Whaley with his characteristically helpful approach to these cases, reminded us that Godfrey J. had made certain observations relevant to these issues in a judicial review case called Tse Chuk Fuk (1987) M.P. 537 (unreported 13th April 1987). At pages 6 to 7 of his judgment, the learned judge had this to say:

"Section 53D provides that on an appeal under Section 53A against a removal order where the Tribunal determines that, on the facts of the case as it finds them (my emphasis), the Appellant does not have the right to land in Hong Kong under Section 8(I), it shall dismiss the appeal, but in any other case, it shall allow the appeal and rescind the removal order.

The reference made in the Section to 'the facts of the case as it finds them' suggests, to my mind, that any person whose appeal is rejected by the Tribunal is entitled to know what are the facts of the case which had been found by the Tribunal. If he does not know what are the facts of the case as found by the Tribunal, he is in no position even to consider whether or not the decision of the Tribunal can be challenged.

The point has been adverted to by Mr. Justice Silke, sitting as a Justice of Appeal, in Cheung Cheong v. Attorney General, Civil Appeal 1986 No. 122 (unreported). What the Justice of Appeal said in that case was obiter dictum, but that does not deprive of its value as exhibiting good sense and good reason.

In the concluding passage of his judgment, Mr. Justice Silke said:

"I would only wish to add this. The right of appeal conferred by Section 53A of the Immigration Ordinance Cap. 115 is a restricted one. The burden of proof is placed squarely upon an Appellant. That Appellant must lodge his notice of appeal setting up the grounds upon which he relies within 24 hours of his being informed of a removal order having been made .... the Tribunal is enjoined by Section 53D(1) (a) to find facts, for it determines the appeal 'on the facts of the case as it finds them'. It would seem that the practice has grown up of using a proforma 'reasons for decision' wherein such facts as are found by the Tribunal are not set out. For myself, I would have thought it to be the duty of the Tribunal to, at least shortly, set out the actual facts which it finds and upon which it bases its determination. These matters affect the liberty of the individual and a man is entitled to know upon what basis the Tribunal finds against him."

I entirely and respectfully agree. As will be seen, this will be the ratio decidendi of my judgment in the present case. In my judgment, a man is entitled to know upon what basis the Tribunal finds against him, so as to enable him to make an informed judgment on the question whether or not he has a proper ground for an application to the court for a review of the tribunal's decision."

49. I was told that after this decision the form of the Notice of Determination was altered to its present form.

50. I agree entirely with the observation of Godfrey J. above-cited and also with the observation of Silke J.A. cited by Godfrey J. and I propose to follow them. I have now to consider whether, bearing those observations in mind, the Notice of Determination in this case complies with these requirements.

51. The fact that the form of marriage ceremony entered into in 1981 was not valid under either Chinese or Hong Kong law was not the only issue to be decided. It clearly was not a valid marriage. Even if the marriage was void, nevertheless the child would be legitimate under Hong Kong law if the mother or father, reasonably believed, at the time of the act of intercourse resulting in the birth of the child, that the marriage was valid. Nowhere on the face of the determination does one find an answer to that question. In my judgment the Notice of Determination is bad in that it does not find the necessary facts to deal with the arguments clearly raised. It has to be said that no particular drafting skill was required to ensure compliance. Having found that the marriage was void all that was needed was another sentence stating that neither mother nor father reasonably believed at the time of intercourse resulting in the birth of the child that the marriage was valid.

Discretion

52. I must now briefly consider the evidence presented to the Tribunal and to the detailed submissions of Mr. Pang as they were recorded in the adjudicators' notes. At page 19 of Dr. Liao's notes, she records Mr. Pang submitting as follows on the legitimacy point:-

"Section 11(1) - the knowing of an illegal marriage by Lee (mother) makes the son illegitimate."

53. This submission does not state at what time the knowledge has to exist nor does it deal with the situation where subsequent events might alter the original state of knowledge. For instance, the mother might have thought that the 1981 marriage ceremony became effective if not on separation then at the date of the presentation of a divorce petition or the granting of a decree nisi to the father.

54. Dr. Liao considered the legitimacy submission as point 4 on page 20 where she wrote:-

"The child born to this marriage would be illegitimate by virtue of the illegal marriage. However, under Section 11(1) of The Legitimacy Law, if one of the parents at the time of the intercourse/wedding ceremony believed the marriage to be legal to any reasonable justification the child is legitimate."

55. Her conclusion on this issue appears at page 20 where she wrote the following:-

"The question now is: Did Ms. Lee genuinely think she was legally married, I believe it is only fair to say she did at the time of questioning, but doubtful at the time of bearing Sit Yuk Cheung eventho' she has then lived 2 years in HK, had one child and known that the ex-wife is remarried. However, looking at the conflicting evidence from Ms. Lee, it is difficult to accept evidence from a person who keeps changing her mind."

56. Giving this passage a fair reading I think Dr. Liao is concluding that she was not satisfied that at the date of intercourse that the mother reasonably believed that the marriage was valid. I am puzzled as to why she thought that the mother had so believed at the time of questioning in 1989. This could only be because by then the father was divorced and somehow the mother thought that the 1981 ceremony was thus revived legally. I have already noted that the father's decree nisi was dated the 29th March 1983 which is just about the time of conception and it is unfortunate that there is no finding as to whether the petition and subsequent decree nisi (and for that matter decree absolute) had any effect upon the mother's state of mind as to the validity or otherwise of the 1981 Chinese marriage ceremony. In coming to my conclusion that Dr. Liao did find that she was not satisfied as to the mother's reasonable belief 1 rely heavily on her having asked herself the correct question in paragraph 4 on page 20 or Bundle A and her conclusion on page 21. It is unfortunate that on page 21 she refers to 'bearing' and not to 'conception' but I am not prepared to hold that anything turns on that on the facts of this case.

57. If the matter had rested there, I would have concluded that it was wrong for the Notice of Determination not to set out the facts found leading to the dismissal of the appeal and, in particular, that the determination did not say that the mother was disbelieved when she said she reasonably believed she was legally married. Having decided, correctly, that no legal marriage had been entered into in 1981, the next issue was reasonable belief. However, I would have declined in the exercise of my discretion to grant this application because it would have been clear that the adjudicator addressed her mind to the correct question and answered adversely to the applicant even though it was not set out in the Notice of Determination. I would have taken into account, as I do throughout this judgment, that the adjudicators are not lawyers and no one expects them to, nor does the legislation require, that they should give elaborate reasons. I would have considered it futile to send the matter back to that Tribunal to decide the issue because it is clear that Dr. Liao had already decided this point and I would have thus concluded that the intervention of the Court was not required even though I had found that the Notice of Determination was not in accordance with Section 53D of the Immigration Ordinance.

58. But in this case, there were two adjudicators. At page 26 of Bundle A Mr. Cheung records that the mother accepted that she knew the father was separated but not divorced. He also records the father as saying that when they got married in China he had a separation agreement and not a formal divorce. He went on to record the father as saying that:-

"He thought that when he got the separation letter he was legally divorced and could get married again in China."

At page 29, Mr. Cheung's notes record that Mr. Pang of the Immigration Tribunal submitted as follows:-

"4. The question of whether SYC is legitimate.

E.g. Exhibit 8 11(1) Because LWM knew that SWT was only separated from his wife therefore the child is not legitimate."

59. So it is clear that this very question was raised. How did Mr. Cheung record his findings, if findings they be? At page 30, he wrote down 3 numbered paragraphs which look very much like his conclusions. They were as follows:-

"(1) Can we rely on the marriage certificate: I think this is a doubtful evidence as the duplicate can be obtained so easily in 1989 within one date. Also the fact contained had been admitted to be incorrect by Sit Woo Tung namely the correct address of Lee Wing Mui (LWM).

Also the date of marriage does not coincide with the dates claimed by LWM.

(2) Did they have a defacto marriage? No, as they both knew at the time of the dinner parties, etc. that he had a separated wife not yet formally divorced.

....

(3) Sit Woo Tung was legally married on 7.6.1979 to Tsang Wah Mui and was legally divorced on 29th March 1983."

60. I am not satisfied that Mr. Cheung has applied his mind to the correct question raised by Mr. Pang. The legitimacy point has to be considered as at the date of intercourse leading to the child's birth and not of the time of the dinner parties in 1981. His concentration on the validity of the marriage spills over to the Notice of Determination which also considers only this point.

61. Mr. Whaley submits that the notes show that both adjudicators considered the issues very carefully and conscientiously and that on a fair reading they do, in fact, deal with all the points in issue. He then submits that even if I were to hold, as I do, that the Notice of Determination should have set out the facts found which led to the dismissal of the appeal, nevertheless, in the exercise of my discretion, I should refuse relief because it would be futile to send the matter back to the Tribunal to find facts which he says are clearly to be found in the adjudicators' notes. Mr. Whaley fairly conceded that ideally the Notice of Determination should have found and stated the relevant facts but he did not accept that the ideal situation was legally necessary.

62. If I had been satisfied that both adjudicators had decided the legitimacy point adversely to the child I would have been inclined, in the exercise of my discretion, not to quash the Notice of Determination because it did not state the necessary findings as I have found it should. But as I am satisfied that one of the adjudicators did not find that at the time of conception the mother knew that the marriage was void I do propose to grant the order sought quashing the determination.

63. Mr. Litton says that if I am disposed to quash the Notice of Determination I should not send it back to be considered by the Tribunal. I should not give it, so he says, an opportunity to cure this deficiency. I do not accept this submission. I think it wholly appropriate that this matter should be remitted to the Tribunal for it to make the necessary findings namely:-

"whether at the time of the act of intercourse resulting in the birth of the child both or either of the parents reasonably believed that the 1981 marriage ceremony was valid."

No doubt when it has decided this issue and the other issue that I have remitted to it, it will consider this judgment carefully when it comes to draft the Notice of Determination.

64. I should perhaps have added that it is not enough for one adjudicator to be of the view that the appeal should be dismissed although it is enough if one of them is of the view that it should be allowed. (See Regulation 3 of the 3rd Schedule to the Immigration Regulations).

65. In view of the unfortunate history of this matter and in the light of my decision that the Tribunal's Notice of Determination should be quashed, it seems to me that the preferable course is for this matter to be remitted to a differently constituted Tribunal so that all the matters remitted can be considered by a fresh Tribunal in the light of my ruling. This was the course which was adopted by Lord Lane C.J. in the Khan case above cited (see page 795).

66. I conclude this already lengthy judgment by one further quotation by Lord Lane in the Khan case at page 794.

"The important matter that must be borne in mind by Tribunals in the present type of circumstances is that it must be apparent from what they state by way of reasons first of all that they have considered the point which is at issue between the parties and they should indicate the evidence upon which they come to their conclusions."

67. In my judgment it is not enough for it to be said that the applicant will know precisely the grounds which led to the refusal of the appeal when he applies for Judicial Review and is given a copy of the notes of evidence and findings of the adjudicators. These matters, which affect the liberty of the subject, are far too important to be dealt with in such an haphazard manner.

68. I would like to take this opportunity of thanking all counsel concerned for their very great assistance in this difficult case.

Representation:

Mr. Henry Litton, Q.C. & Mr. Yu instructed by M/S. Alfred Lau & Co. for Applicant.

Mr. Bernard Whaley, Sr. Crown Counsel for Respondent.