Madam v. Ngoc Dung v. Criminal and Law Enforcement Injuries Compensation Appeal Boards

HCMP000550/1996

1996, No.MP550

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram : Hon Jerome Chan, J. in Court

Date of hearing : 7 May 1996

Date of delivery of judgment : 7 May 1996

Date of handing down reasons : 24 May 1996

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R E A S O N S

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1. The applicant is the widow of one Tran Tien Dung, deceased. Both of them arrived in Hong Kong on 30 May 1989 on board a boat from Vietnam seeking asylum. Their boat was intercepted within Hong Kong territorial waters by marine police. As was the standard practice, they were given a written notice (in English, Chinese and Vietnamese) advising them of the alternatives opened to them concerning their intended voyage. They decided to come ashore and an order was made under s.13D(1) of the Immigration Ordinance, Cap.115 for their detention pending a screening of their claimed refugee status under the provisions of Part III(A) of the Immigration Ordinance. In 1989 and 1990, two children were born to them in Hong Kong. On 21 August 1991, they were served with a notice from the Director of Immigration informing them that permission to remain in Hong Kong as a refugee had been refused. The decision of the Director of Immigration was confirmed by the Refugee Status Review Board on 16 April 1992. From then, the family was detained pending removal to Vietnam.

2. On 4 September 1993, whilst being detained at the Lai Chi Kok Detention Centre, the deceased sustained injuries in a crime of violence from which he died. An application was then made by the applicant to the Criminal and Law Enforcement Injuries Compensation (CLEIC) Scheme for compensation. On 27 October 1993, the applicant was informed by a letter from the secretary of the Criminal Injuries Compensation Board ("CICB") that she was not eligible for compensation in that the deceased was not a legal resident in, or a traveller through legal entry to, Hong Kong. Her appeal, made on 23 January 1995, to the Criminal Injuries Compensation Appeal Board ("CICAB") was dismissed on 15 November 1995. On 16 February 1996, leave was granted for judicial review proceedings to be issued against the decision of the CICAB.

3. The applicant sought judicial review of the decision of the CICAB, the respondent herein, on the following grounds :

(a) That the CICAB erred in having regard to irrelevant matters, that is, "Operations Branch Circular No.5/80" dated 27 October 1980 that was prepared by the Deputy Director of Social Welfare dealing with services administered by the department ("the Circular"), thereby fettering its discretion under its "Terms of Reference".

(b) That the CICAB misconstrued the provisions of the Immigration Ordinance in coming to the conclusion that the deceased was not a a legal resident in, or a traveller through legal entry to, Hong Kong.

Criteria for Eligibility

4. It was rightly accepted by the applicant that she had no claim of right to compensation. It was also accepted by the applicant that there is nothing irrational about having a policy under the CLEIC Scheme that excludes persons whose presence in Hong Kong was in contravention of immigration laws.

5. In the 25th Annual Report by the Chairman of the CLEIC Boards for the year ending 31 March 1994, it was set out in the "Introduction" that:

"The Criminal and Law Enforcement Injuries Compensation (CLEIC) Scheme, introduced in 1973, is designed to provide financial assistance, through simple administrative procedures, to persons or to the dependents of persons, who are the victims of crimes of violence or are killed or injured in helping to prevent crime in Hong Kong. The Scheme also provides for the payment of compensation where a person is killed or injured by law enforcement officers using weapons in the execution of their duties. The major eligibility criteria for awards payable under the Scheme are shown in Appendix I.

2. The Scheme, which does not involve a means test and is noncontributory, is administered by the Criminal Injuries Compensation Board and the Law Enforcement Injuries Compensation Board with secretarial support provided by the Social Welfare Department. Both Boards consist of the same chairman and members who are appointed by His Excellence the Governor from outside the civil service. The terms of reference of these two Boards and their memberships are shown in Appendices II and III respectively."

The "Terms of Reference" provided :

"The Boards are serviced by the Social Welfare Department and responsible to the Governor for the administration of the Criminal and Law Enforcement Injuries Compensation Scheme with the following specific responsibilities:

(a) to exercise the functions and powers of the Boards laid down by a mandatory instruction from the Governor;

(b) to lay down and examine arrangements and procedures for compensating victims of crimes of violence and to make recommendations for the extension or improvement of related matters;

(c) to scrutinise and approve or disapprove and where necessary, hear applications and appeals for compensation;

(d) to be entirely responsible for deciding what compensation should be paid to individual victims; and

(e) to submit annually to the Governor a full report on the operation of the scheme together with its accounts."

6. It was common ground that pursuant to the "Terms of Reference", the CICB has an absolute discretion in determining the classes of person eligible for compensation, subject only to the instruction of the governor and the supervisory jurisdiction of the court by way of judicial review. The applicant's case was that the CICB and the CICAB wrongly felt bound to abide by the Circular to exclude anyone who was not a legal resident in, or a traveller through legal entry to, Hong Kong. It was not the applicant's case that the Boards had taken into account irrelevant matters simplister.

7. How did the CICAB approach that issue?

8. No objection had been taken on behalf of the CICAB that the "Agreed Issues for Determination" in the appeal before it was quite different from the issue now placed before this court. To do justice to the CICAB, it was never asked to consider the issue of criteria for eligibility in the same manner as in this judicial review. However, there being no objection, the issue as framed by the applicant was the issue to be determined in the judicial review.

9. To better understand the determination of the CICAB, it is necessary to set out the "Agreed Issues for Determination". They are :

"1. Whether Operations Branch Circular No.5/1980 issued by the Social Welfare Department on 27 October 1980 and 98(f) of the Social Welfare Department Manual of Procedures, which generally seek to prohibit or limit the provision of social services to illegal immigrants, form part of the CLEIC scheme?

2. If the documents referred to in (1) form part of the CLEIC scheme, what is their effect having regard to the fact that they were published in 1980 and that special provisions dealing with the detention of former residents of Vietnam were enacted in Part IIIA Immigration Ordinance, Cap.115 only after that date?

3. What is the meaning of the words 'the victim is a legal resident in, or a traveller through legal entry to, Hong Kong' used in the pamphlet currently used to identify a class of persons not eligible to apply under the CLEIC scheme?

4. Was the limitation at (3) above part of the CLEIC scheme at the time of the death of the deceased?

5. What was the deceased's status under the Immigration Ordinance, Cap.115 at the time of his death?

6. Was the status of the deceased under the Immigration Ordinance, Cap.115 at the time of his death determinative of the eligibility of the Applicant to seek compensation under the CLEIC scheme?

7. If the status of the deceased under the Immigration Ordinance, Cap.115 at the time of his death was not determinative of the eligibility of the Applicant to seek compensation under the scheme, was the Applicant in fact eligibility under the CLEIC scheme?

8. If the Applicant was not eligible under CLEIC scheme, did she nonetheless have a legitimate expectation that she would have her application for compensation determined as if the deceased had been 'a legal resident in, or a traveller through legal entry to, Hong Kong' or as if no such limitation on eligibility existed?

9. If the Applicant in fact had a legitimate expectation that she would have her application for compensation determined as if the deceased had been 'a legal resident in, or a traveller through legal entry to, Hong Kong' or as if no such limitation existed, is the Board bound to give effect to that expectation by considering her application and making an award of compensation if such award is otherwise appropriate in the circumstances of the case?"

10. In the light of the "Agreed Issues" it is perhaps not surprising to find the Board to have made the determination in the following manner :

"3. The Scheme was set up in 1973 to compensate victims of crimes of violence and victims of law enforcement officers using weapons in the execution of their duty. The Scheme is not founded on any legislation, but rules and regulations are made by the Administration governing its operation. And the Board of the Scheme are serviced by staff of the Social Welfare Department. (emphasis added)

A Application of the Circular and the Extract from CLEIC Manual of Procedures

7. As stated in paragraph 3 hereinabove, the Scheme is governed by rules and regulations implemented for its operation. And there is no reason why the 1980 Circular and the Extract from CLEIC Manual of Procedures, which are issued to govern the operation of the Scheme, should not form part of the Scheme. (emphasis added)

8. Although the 1980 Circular was prompted by the high level of illegal immigration from China, its scope was wide enough to exclude all illegal immigrants i.e. all those who do not have a Hong Kong identity card or other acceptable forms of identity. Hence, although Part IIIA of the Immigration Ordinance, under which the Deceased was detained, was only enacted after 1980, this does not prohibit or in any way affect the application of 1980 Circular to the Deceased.

9. We therefore hold that the 1980 Circular and the Extract from the CLEIC Manual of Procedures apply to the Deceased. We cannot agree with Mr. Dykes, Counsel for the Appellant, that because persons like the Deceased were previously automatically granted refugees status, public policy demanded that this class of persons should be included under the Scheme. To the contrary, the public policy adopted requires that illegal immigrants should not enjoy the personal services and benefits provided in Hong Kong, so as to discourage their influx."

11. The CICAB considered that the CLEIC Scheme was governed by rules and regulations made by the Administration. The CICAB would probably be correct if by that it was referring to the establishment of the CLEIC Scheme by the governor back in 1973, or any other rules or regulations made by the governor subsequently. It would, however, have committed a serious error of law if it considered the CLEIC Scheme to be governed by any direction issued by any senior civil servant. By the "Terms of Reference" governing the operation of the scheme, it cannot be questioned that the CICB have an absolute discretion to determine the classes of person eligible for compensation. It is not for anyone outside the Board (save perhaps the governor if he desires to interfere with an independent body established by him), to advise it on such matter, let alone dictate to it directions or instructions. Regrettably, that was precisely what the Circular did in 1980. In the Circular it was announced that the same was issued by the Deputy Director for Social Welfare to make known a new policy of the government not to extend social welfare services to illegal immigrants any further in view of the influx from mainland China. To implement the new policy, verification of identity would be required for eligibility for certain social welfare services. Compensation under the CLEIC Scheme was included as one of the social welfare services to be withheld from illegal immigrants. It said, in relation to the CLEIC Scheme, that "For new applicants where the victim is aged 15 and above, the verification of Hong Kong identity card or other acceptable forms of identity is required, in addition to the usual requirements. Until then, no payment, except for burial grant, should be authorized." Appendix I of the Circular exempted from such exclusion "any bona fide traveller in transit through Hong Kong who is not staying for more than 180 days (otherwise he will have to apply in person to a Registration of Persons Office for an extension of the period of exemption)". The CICAB found that it was "in implementing the 1980 Circular" that the same prohibition in identical words was reproduced in the "Extract from the CLEIC Manual of Procedures" used by the Social Welfare Department. It would appear that the CICAB was wrong in referring to the Manual as the "CLEIC Manual"; because in the decision of the CICB, the Manual was described as "the Manual of Procedures used by the Social Welfare Department". There is no evidence that CLEIC had any manual of its own independent of the Manual that the social welfare staff servicing it used which was a Social Welfare Department manual. This confusion is perhaps not surprising in view of the mentality of those entrusted with the operation of the Scheme.

12. Apart from the above, there is no clear evidence, one way or the other, before this court on the circumstances under which the Social Welfare Department policy found its way into the literature of the Scheme. However, it would not be difficult to imagine that the route was via the Social Welfare Department staff servicing the Scheme rather than originating from the Board that is in control of the operation of the Scheme. In this respect, the indication of Mr Kwok at one stage of his submission that in the event of conflict, loyalty of the Social Welfare Department staff servicing the Scheme (who remained civil servants and not employees of an independent body) would be owed to the Department and not the Scheme, might perhaps give some insight on the matter. Nevertheless, I do not wish to speculate on that.

13. Whatever was the position as regards the Manual or how the Social Welfare Department policy found its way into the literature of the Scheme, it was clearly the case that the Circular took effect as a direction from the Deputy Director for Social Welfare that was automatically incorporated into the CLEIC Scheme without it going through any conscious independent exercise of discretion. It simply found its way into the Scheme via pamphlets presumably printed by the Social Welfare Department for the public. It was in express reliance of the contents of this pamphlet (not any other written statement of policy or manual) that the applicant's application was refused by the letter of 27 October 1993 from the Secretary of the CICB (see paragraphs (1)(h) and (i), and paragraph (6) of the Written Decision of the CICB dated 6 December 1994).

14. Had there been any independent exercise of discretion, the CICAB, and indeed the CICB, would not have to consider the issue of "whether the Circular formed part of the Scheme?" The issue would simply have been "was the deceased within the Scheme?" By accepting a need to tackle the issue of application of the Circular, the CICAB and the CICB had necessarily conceded that there had never been any previous independent exercise of discretion to accept, rather than feeling obliged to obey, the correctness of the new policy for the Scheme.

15. Without any previous independent policy formulated by the CICB, or the CICAB, on the classes of person eligible for compensation, it would be encumbered upon them to make the determination when faced with the applicant's application. Regrettably, instead of doing that, the CICB and the CICAB felt obliged to examine the circumstances the Circular came to be incorporated (without any say by the Board) into the Scheme, and to decide only on whether it "applied" or "formed" part of the Scheme as if they have no choice to reject the same by an independent discretion. The exercise closely resembled that of a court, which has no power to change legislation, trying to consider if a statute can apply to the factual situation before it. The CLEIC and CICAB were the bodies to determine the criteria, not the Deputy Director for Social Welfare. There should be no need to consider if the Circular applied. The proper consideration ought simply to be should the deceased, being a Vietnamese allowed into Hong Kong under the "Warning Notice" and then detained pursuant to the Immigration Ordinance be eligible for compensation? In doing so, it would be open to the CICB and the CICAB to take into consideration government policy as announced in the Circular or other source, as one of many relevant factors and not the only factor.

16. I am convinced that in coming to its decision the CICAB had erroneously considered the Circular and the Manual that reproduced the Circular as the only relevant or dominant factor, thereby abrogating their duty to exercise an independent discretion to determine the classes of person eligible by considering all relevant circumstances. Relevant circumstances would include amongst many other probable matters : the purpose of the Scheme, the particular reason(s) why the deceased came to Hong Kong, the demand of indigenous needs as against the needs of persons like the deceased, the availability of resources to cover the needs of persons like the deceased, any policy of the Board in this respect, the government policy concerning persons like the deceased, any moral consideration in the particular case including the needs of the applicant, etc.

17. I would finally note that the CICB also erroneously considered that "Rules and regulations are made at directorate level implementing the operation of the Scheme". It should be the Board that should be making rules and regulations and deciding policy of how the Scheme should be operated. The surrender of such independent power, and abrogation of duty, is fundamentally flawed. The Scheme is an independent body established by the governor with specific terms of reference and not a subsidiary division of the Social Welfare Department taking instructions from the Deputy Director for Social Welfare or any other civil servant, directorate level or otherwise.

18. In my view, the CLEIC Board and the CICAB had quite unnecessarily taken upon themselves the risky task of steering into the treacherous waters of attempting to give legal meaning to such terms like illegal immigrant and a legal resident in, or a traveller through legal entry to, Hong Kong in respect of former Vietnamese residents taken into Hong Kong pursuant to international obligations and human decency and morality. As the CLEIC Board has an unfettered discretion to set its own criteria as to the classes of persons eligible for compensation, it is well advised not to get itself into the entanglement of difficult concepts of illegal immigrants (a term of art without any legal definition in law notwithstanding its appearance in the Immigration Ordinance), and a legal resident in, or a traveller through legal entry to, Hong Kong. The community will be better served if the CLEIC Board would simply deal with all applications on a case per case basis, exercising its unfettered discretion in the context of each individual case. It is open to the CLEIC Board to take into account government policy as any other factor concerning indigenous needs as against needs of foreign visitors (be they legal entrants or illegal entrants). It is of course open to it to take into account the fact that an applicant has contravened immigration laws, if any, at the time of the injury or death. It should also consider the circumstances of the injury or death notwithstanding the commission of any offence by that person, be it against immigration laws or otherwise. Consider the scenario of the tainted presence in Hong Kong of an offender against immigration laws who had risked or sacrificed his life to save an innocent citizen of Hong Kong against a violent crime. Should there be a harsh and inflexible absolute prohibition against awarding compensation to his dependents simply because his presence in Hong Kong was so tainted? If he had not been present at the scene of the violent crime (through the commission of an immigration offence), would the innocent victim that he saved not have suffered the same tragic fate as he did? Where would the morality of that situation lie? It is wholly unwise for an independent body that has deliberately been given such unfettered discretion to seek to voluntarily curtail such freedom to do justice, and to withdraw itself into the insufferable self-spun cocoon of abstract legal entanglements. Such sacred bounty to do justice and be compassionate in appropriate cases should never be lightly given up for any reason. If any general statement of policy is ever considered required, it should never be made as inflexible as the Circular and be always made subject to a residual discretion to waive any requirement in appropriate cases at the absolute discretion of the CLEIC Boards.

"A legal resident in, or a traveller through legal entry to, Hong Kong"

19. Even assuming that the said policy had been consciously adopted by the CICB as its policy in the implementation of the Scheme, was the CICAB correct in concluding that the deceased was outside the said class of persons?

20. The CICAB held that :

"14. When the Deceased arrived in Hong Kong, he did not have the permission or the right to land in Hong Kong. He did not fall within Sections 2A, 7, 8, 9 and 10 of the Immigration Ordinance which govern lawful entry into Hong Kong. Thus, he had landed unlawfully in Hong Kong. He was then detained under S13D for screening. In Pham Van Ngo & Ors v AG No A4895 of 1990, Mr Justice Chan has similarly held that persons such as the Deceased had landed unlawfully in Hong Kong.

15. The fact that S38(2) renders inoperative the power to prosecute him for an offence under S38(1) during the screening period does not give to the Deceased any lawful rights to remain in Hong Kong - see In re Tran Ouoc Cuong and Khuc The Loc [1991]2 HKLR 312.

16. Further, the fact that there is no similar provision for the retrospective designation of a person detained under Sl3D upon him being refused refugee status, as there is under S13A(4A) of the Immigration Ordinance, does not affect or change the unlawful presence of the Deceased. A Vietnamese refugee who exceeds his period of stay under Sl3A(4A) has been 'permitted' to remain in Hong Kong under Sl3A(l), though under conditions. Thus, his presence is lawful. Accordingly, Sl3A(4A) is required to pinpoint when his presence 'becomes' unlawful. However, for a Vietnamese refugee like the Deceased, who is detained under Sl3D pending decision as to permission to remain in Hong Kong or pending removal in Hong Kong, 'permission' to stay in Hong Kong has never been granted. Accordingly, his presence in Hong Kong has always been unlawful. And no retrospective provisions are therefore required. This is clear from Sl3E wherein it is provided that the Director of Immigration may at any time order Vietnamese refugees detained under Sl3D to be removed from Hong Kong.

17. We are further of the view that the status of the Deceased under the Immigration Ordinance at the time of his death is determinative of the eligibility of the appellant under the Scheme.

C. The meaning of the phrase "legal resident in, or a traveller through legal entry, to Hong Kong, and whether it forms part of the Scheme.

l8. In the pamphlet provided to the Applicant, referred to in paragraph 2(d) hereinabove, the terms 'legal resident in, or a traveller through legal entry to, Hong Kong' were used to identify the class of persons eligible to apply under the Scheme. We are of the view that the pamphlet is a quick summary of the Scheme, and the aforesaid terms used in the pamphlet does not create any new category of persons who would be eligible under the Scheme. It only serves to summarize the Scheme's existing position.

19. The Deceased, being an illegal immigrant, is clearly not a legal resident. Further, we do not see how the Deceased can be said to be a 'traveller through legal entry to Hong Kong'. A traveller through legal entry means a traveller arriving in Hong Kong with permission, and is obviously directed towards a bona fide traveller to Hong Kong. As the Deceased never had permission to land in Hong Kong, he was not a traveller who arrived in Hong Kong through legal entry. We would also adopt the reasoning given in paragraphs 19, 20 and 21 of the Written Decision of 6th December 1994 of the Board."

21. Had the deceased landed in Hong Kong when he was intercepted by the marine police and served with the "Warning Notice"? When he landed in Hong Kong had he any lawful permission, whether conditional or otherwise? Was the continued stay of the deceased after he was screened out as a refugee lawful? Was the deceased lawfully in Hong Kong when he died of the violent crime?

22. It was accepted by the applicant that it would not be unreasonable to have a policy that denies compensation to persons unlawfully in Hong Kong at the time of the injury or death. "Unlawfully" means that the person's presence in Hong Kong is in contravention of the Immigration Ordinance, whether he be prosecuted for an offence or not.

23. Had the deceased landed in Hong Kong when he was intercepted by the marine police and given the "Warning Notice"?

24. Section 2 of the Ordinance defines "land" as meaning, inter alia, "(a) entry by land or disembark from a ship or aircraft". As the deceased, like most of his compatriots, would have been intercepted by the marine police within the territorial waters of Hong Kong still on board his vessel, he had not disembarked yet. In the premises, the answer must be "No". He would only have disembarked after he was taken from his vessel by the marine police and had been served with the "Warning Notice". Thus when he disembarked from his vessel and taken to shore by the marine police he would have been served the "Warning Notice".

25. What is the effect of the "Warning Notice"? It provided :

"There is a new policy in force in Hong Kong.

Former residents of Vietnam seeking to enter Hong Kong as economic migrants are now treated as illegal immigrants. You are free to leave Hong Kong.

If you choose to continue your journey you will be given food and water and if necessary, your boat will be repaired.

If you do not leave Hong Kong and are found to be an economic migrant you will be detained as an illegal immigrant pending repatriation to Vietnam."

26. It must be taken that the notice was issued by the authority of the Director of Immigration as it concerned the immigration status and question of lawful entry to Hong Kong. What then would be the effect of the Notice? The CICAB assumed that the applicant's case on the situation was "to place the deceased in the same position as a person who is placed in detention for examination under s.4(1)." I fear I was unable to make that assumption from the applicant's submissions before the CICAB as set out in its decision. Nor can I agree that that would be the effect of the Notice.

27. Section 4(1) empowers an immigration officer to examine any person "on his arrival or landing in or prior to his departure from Hong Kong, or if he has reasonable cause for believing that such person had landed in Hong Kong unlawfully, at any time". It was thus open to the immigration authority to exercise the powers under s.4(1) to examine the deceased if it desired so to do. The question is, however, did the immigration authority at the material time purport to exercise any such power as the CICAB assumed or at all? There is a whole dearth of evidence or information on this issue. It is thus, not open to any reasonable fact finding tribunal to speculate on the issue at all. The Notice is not that helpful on this, it being wholly silent on the basis the deceased and the others were taken into Hong Kong under custody. It was not even known what the deceased or his compatriots told the marine police before disembarkment as to their purpose for wishing to enter Hong Kong. Probably, they had claimed refugee status. But this is a fact the tribunal must ascertain if it were to embark on the exercise of analysing the immigration status of the deceased as it did. It could not be left to assumptions and speculations.

28. The assumption that there had been an exercise of s.4(1) powers concerning the deceased was at best an educated guess based on the general knowledge and not evidence. Whatever the validity such assumption has, it cannot be disputed that the deceased was allowed to enter Hong Kong under the Notice. The condition as stipulated by the Notice was that if the deceased was found to be an economic migrant he will be treated as an illegal immigrant ( a term of art rather than a term legally defined by law); and would be repatriated to Vietnam. Whatever illegal immigrant meant in law, the message was clear : the deceased would not be permitted to remain in Hong Kong any further and would probably be considered as never having entered Hong Kong lawfully. Nothing was said what would happen if the deceased was found to be someone other than an economic migrant? The reluctance to refer to the position of a person being successfully screened as a refugee could probably be understood in the light of the policy to discourage influx of Vietnamese other than through usual means of entry through customs and immigration counters. What about someone who was neither a refugee nor an economic migrant? What if the former Vietnamese resident was found to have intended to come to Hong Kong to spy for a foreign government, or for other purposes having nothing to do with economic reasons? The Notice did not stipulate that this sort of people would be treated as illegal immigrants or would be repatriated.

29. Did the Notice constitute a "permission", albeit a conditional one, to land under s.7(1) thereby giving some kind of legal status to the deceased? Section 13D deals with the power to detain a former resident of Vietnam who has no visa to enter Hong Kong. Section 13A expressly empowers an immigration officer to grant permission to lawfully remain in Hong Kong as a refugee (with or without conditions). Section 13D, however, fails to prescribe the status of the stay of the detainee. Nor did any other section in Part IIIA purport to describe the status of that person in Hong Kong. Section 13F(6) may give marginal assistance in that it was deemed necessary to provide expressly, for the avoidance of doubt, that an application to the Refugee Status Review Board would not confer any legal status upon an applicant.

30. Section 13, however, provides that any person unlawfully landed in Hong Kong may be permitted by the Director to remain in Hong Kong subject to any condition of stay as he thinks fit (whether he be convicted of that offence). In such circumstances the provisions of s.11 dealing with persons given permission to land in Hong Kong would apply to him. This section may be very relevant in considering the status of such former residents of Vietnam who were taken into Hong Kong under the contents of the Notice and are neither refugees nor expressly found to be economic migrants.

31. The above sections and observations were never considered in that light by the CLEIC Board or the CICAB.

32. The cases of R. Naville, [1993]2 WLR 927 and In re Le Tu Phuong, [1993] 2 HKLR 303 held that an asylum seeker who submits himself to immigration examination with admission of a lack of lawful authority to enter had not committed any offence. The decision of In re Tran Quoc Cuong, [1991] 2 HKLR 312, might on one view be supportive of the applicant's contention that a person should only be considered an illegal immigrant only if an offence had been committed by him. It was accepted that the deceased had never been regarded as having committed any offence under the Immigration Ordinance when he only disembarked under the Notice. There appears to be a strong case that the concept of illegal immigrant is one that is offence-based, or at less the person would have to have contravened the provisions of the Immigration Ordinance whether that constituted an offence or not. The decision in Pham Van Ngo v. Attorney General was accepted not to be helpful on this issue.

33. Nothing said above should be taken to have determined the above legal issues. The matter had not been fully argued in the context as raised supra, and I express no view on the law, whether concluded or otherwise. I shall leave such issues entirely open to be determined when the necessity arises.

34. For reasons given supra, the determination of the CICAB cannot be supported and must be quashed. The appeal is remitted to the CICAB for determination on the basis that the CLEIC Board had an unfettered discretion to determine what classes of persons are eligible for compensation if it desires to set down any policy in that respect. The appeal should be determined by the CICAB upon a consideration of all relevant circumstances as it shall think fit in the exercise of its unfettered discretion under the "Terms of Reference", without in anyway feeling bound by government policy whether contained in the Circular or otherwise. The unfettered discretion of the CLEIC Board is bound only by its "Terms of Reference".

35. Costs were to follow the event and be awarded against the respondent. The applicant is to have costs of the application and his own costs are to be taxed in accordance with legal aid regulations.

(Jerome Chan)

Judge of the High Court

Representation:

Mr Philip Dykes, inst'd by M/s Boase Cohen & Collins, for Applicant

Mr S.H. Kwok, inst'd by Crown Solicitors, for Respondent