Lam Yiu Ming v. Attorney General

HCMP000638A/1980

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS NO. 638 OF 1980

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Coram: Penlington J.

Date of Judgment: 11th April 1981

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JUDGMENT

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1. This is an application in which the Plaintiff seeks an order declaring that a removal order made under Section 19(1) against him by His Excellency the Governor is invalid. It is based on several grounds which were dealt with by Leading Counsel for the Plaintiff.

2. The following facts were not in dispute. In April of 1970 the Plaintiff entered Hong Kong illegally from Taiwan by junk. In June 1970 he applied for an identity card in the name of Lam Ming Fung, stating in his application that he had come from Taiwan in 1967. He received an acknowledgement of that in May 1971 but, on the advice of a friend, he decided not to collect his I.D. card and it was cancelled. However he decided to apply again and did so using the same name. He claimed to have come from Taiwan. Again a card was prepared but again on advice from the same friend he decided not to collect it. This was in September 1971.

3. In September 1971 the Plaintiff applied again for an identity card, this time however giving the name Lam Yiu Ming and stating that he had come to Hong Kong illegally but from Wai Lo, in China, in 1966. Once again a card was prepared but the Plaintiff decided not to collect it. Finally in May 1972 another application was made, again in the name of Lam Yiu Ming, in which the Plaintiff claimed to have come from Canton in 1966. A card was issued and was collected on 30th August 1972. The Plaintiff was also issued subsequently with a Certificate of Identity, which he has used on numerous occasions to travel to and from countries in South East Asia and a multiple Re-entry Certificate for travel to and from China and Macau. He must also have been given a Entry Permit but this the Plaintiff says he has lost it. In June 1974 he married, in Hong Kong, a woman who is a Hong Kong Belonger by birth and they have built up a not insubstantial jewellery business. The Plaintiff says he employs some 15 persons and has paid quite large sums in tax. He is a property owner. In 1974 the Director of Immigration received an anonymous letter stating that the Plaintiff had not come from China as he had claimed, but from Taiwan. The Director then commenced to investigate the Plaintiff's case and he was asked to submit his identity and travel documents, which he did. He says that these were later returned to him and no further action was taken.

4. In January 1976 however he was interviewed at the offices of the Immigration Department and subsequently, on the 12th August 1976, a Removal Order was made by His Excellency the Governor, pursuant to Section 19 of the Immigration Ordinance. This was served on the Plaintiff in September 1976 and he petitioned His Excellency against it. This was not successful and he was removed from Hong Kong in December 1976. He has, however, been allowed to return to Hong Kong for various periods since then but finally when consent was refused he entered, without consent, in March 1980. He was arrested in July 1980 and charged under Section 38(1)(b) of the Immigration Ordinance. He was released on bail and the trial of the offence has been adjourned until the result of this application is known. Before the matter was argued the witnesses on each side were made available for cross-examination. Neither side said they wished to do so.

5. The application is based on four grounds which have all been argued by Leading Counsel for the Plaintiff with his customary thoroughness and skill. I am most grateful to him and also to Mr. McCallough, Crown Counsel who has argued the Crown's case fairly and most ably.

6. There were four main grounds of application submitted by the Plaintiff but these seem to me to fall into two groups. The first is that when the Plaintiff entered Hong Kong in 1970 the law then in force was the Immigration (Control and Offences) Ordinance which provided in Section 43(4) that a person may be expelled if he was convicted of an offence against the provisions of the Ordinance set out in Section 43(1)(a). The limitation period at that time for the laying of an information was one year so clearly after that there could be no conviction and therefore, it is argued, no removal.

7. This argument was carefully and, in my opinion, fully considered in A.G. v. Leung Kam Ping - and in particular the Court of Appeal considered the decision of Cons. J. in Lam Wang-shun, a decision which Counsel for the Appellant urges me to follow and which he still relies on. It is further contended that the attention of the Court of Appeal in Leung Kam-ping was not directed to Section 92 of the Interpretation and General Clauses Ordinance which reads as follows:-

" When an act or omission constitutes an offence and the penalty for such offence is varied between the time of the commission of such offence and the conviction therefor, the offender shall be liable to the penalty prescribed at the time of the commission of the offence."

8. It is argued that removal is a penalty within the meaning of that section and the Plaintiff therefore must be dealt with on the basis of the law as it stood when he committed the offence of unlawful landing, that is there must be a conviction before removal and a conviction must come within the one year time limit for laying of the information. I agree that removal is a penalty (see Re Westinghouse etc. 1977. 3. A.E.R.703 (at 712) and Coogan v. Macdonald. 1954 Scots Law Times P.279 where at page 281 Cooper L.J. said in relation to disqualification from driving "I consider the word "penalty" falls to be read in a wide popular sense." I have no doubt that the general public would consider the removal of this Plaintiff from Hong Kong is a penalty.

9. I am, however, not persuaded that because no specific reference was made to Section 92 in the Court of Appeal's judgment the decision is per incuriam. The section sets out a basic rule of construction and I am satisfied that the Court of Appeal did fully consider the point in the light of all relevant authority. At page 12 of A.G. v. Leung Kam-ping McMullin J.A. says -

"Mr. Mills-Owens argues that it is repugnant to justice no less than to the ordinary canons of construction of statutory law that one should be said to be guilty of an offence which contains two elements viz.: landing unlawfully and remaining without permission, when the first of those elements had occurred long before the introduction of the law creating the present offence and had moreover, he would maintain, been absolved under the old law, while the second element, the remaining is per so not an offence under the new. That point is not without appeal but once again the intention of the provisions to which I have already referred is too plain to allow it to succeed. The respondent has never had the permission or authority of the Director to remain whether before or after the introduction of the present Ordinance. Even if it be conceded that he was lawfully resident in the Colony between the 20th of July 1971 (when the time limit for prosecution under the old Ordinance had elapsed) and the 1st of April, 1972 (the date of introduction of the new Ordinance) that is a period of nine months only. What the plaintiff needs to show in order to establish himself as a Chinese resident under the law as it now stands is seven years of lawful ordinary residence. The words of subsection 4 of section 2 are plain: the period during which he has remained in Hong Kong after the introduction of the new Ordinance are not to count as ordinary residence."

10. Here the Plaintiff says that he has been lawfully resident in Hong Kong as he registered and was issued with travel documents but I am satisfied that, as those documents were issued on the basis of false information given to the Director of Immigration, that is not the case.

11. I am of the opinion that on this ground of application the facts are so similar to those in Cheung Kam-ping that I must regard myself as bound by that decision. I also do not consider I can go against it on the other grounds argued, that is that to remove the Plaintiff under the circumstances of this case is contrary to the provisions of the Charter of the United Nations and the Declaration of Human Rights. Article 11(2) states that a heavier penalty shall not be imposed than the one applicable when an offence was committed and it therefore reflects Section 92 of Cap. 1. We are here not considering the question of a penalty but of a limitation for laying of an information. Toallow the appeal on the ground that the decision is contrary to Section 92 of the Interpretation Ordinance would be to say that after the period of limitation expired the Plaintiff in effect became a lawful resident as he could not be charged and therefore could not be deported. This argument was considered in Cheung Kam-ping as it had been apparently approved at first instance. The Court of Appeal clearly and, in my view, rightly rejected it.

12. The next ground of application is that the Plaintiff was given the right to remain in Hong Kong in 1972. He was issued with a Certificate of Identity and a re-entry permit. He has travelled extensively on those documents and has on each occasion been lawfully granted permission to return to Hong Kong. It is conceded that the information which he gave in order to secure those documents was false but it is argued there is no evidence to show that falsehood was a material factor in the decision made to issue them. The Plaintiff entered Hong Kong lawfully on the basis of those documents and ceased to be a person affected by Section 38(1)(b) of the Immigration Ordinance.

13. It is argued by the Crown that the travel documents were issued on the basis of the lost entry permit and while conceding that the re-entry permit would, if it could be found, be unlimited, it was issued on the basis of false information and is of no effect. Reliance is placed on Choudhary 1978. 3. AER. 790 which approved the decision in Hussain 1978. 2. AER. 423. In Hussain Geoffrey Lane L.J. said "was the indefinite permission given by the Immigration Officer at Dover in May 1974 a proper exercise of discretion by which the Secretary of State is bound or was it a decision brought about by deception, misrepresentation or fraud of the Appellant. If it was then the applicant cannot rely on it and the Secretary of State was entitled to act as he did and this appeal would fail". This was approved by Denning M.R. in Choudhary. I think it is no answer to that to say that here we have no evidence that the falsehood was material. The Plaintiff in his own affidavit says that he did not go to collect the identity cards prepared on the basis of his statements that he came from Taiwan. Clearly he regarded the question of where he had come from as highly relevant to his chances of success. I am satisfied that this ground of application must also fail.

14. The final ground of application, and one which it seems to me has the most merit, is that in 1974, having told an Assistant Immigration Officer, Mr. David Wu, that he in fact had not come to Hong Kong from China but from Taiwan, the Plaintiff was granted permission to remain in Hong Kong. The Plaintiff seeks to distinguish this case from that of Choudhary on the grounds that in Choudhary the Immigration Officer had no discretion to give permission to an illegal immigrant whereas here the Director of immigration has an unfeltered discretion and the Assistant Immigration Officer must be presumed to have delegated authority to exercise that discretion.

15. There is evidence on affidavit from both the Plaintiff and Mr. David Wu relating to the circumstances of this meeting. The Immigration Department's file has also been discovered and inspected and a copy is exhibited to an affidavit sworn by Mr. Kan Wai-sang, an officer of the Immigration Department.

16. The Plaintiff says that in late June of 1974 Mr. David Wu and a party of Immigration Officers, acting on information they had received, conducted a search of his home and offices. Mr. Wu said he suspected the Plaintiff had come from Taiwan and put this to him several times. The Plaintiff says he made no admission at that time but the following day he went to the Immigration Department's offices, at Mr. Wu's invitation, and was then further questioned. His travel documents were inspected, as was the identity card of his fiance and finally he admitted that he had come from Taiwan. He therefore surrendered his Certificate of Identity and Identity Card and was asked to obtain a Certificate of Registered Particulars from the Registrar of Persons, which he did. He gave this to Mr. Wu and heard nothing further for some six months. He was then asked to return to the Immigration Department which he did with his fiance, Miss Cheung, who he had then married. Mr. Wu was present with three other officers who he did not know. His travel documents were returned and he was told he might leave and nothing would happen to him. He took that as being permission to remain in Hong Kong and thereafter acted accordingly.

17. The Plaintiff goes on to say that he was consequently surprised to be again summonsed to the Immigration Department in January 1976 where he was again questioned as to his origins. He said that Mr. David Wu was not present and despite the previous admission made to Mr. Wu on this occasion he reverted at first to his previous story of having come from China, but later admitted again he came from Taiwan. He was then allowed to leave. Through his solicitors, he then made formal application to remain in Hong Kong. He received no reply to that but in September 1976 was served with the Removal Order.

18. Mr. Wu, in his affidavit, says that in 1974 he was an Assistant Immigration Officer and was working in the Immigration Department's offices in Li Po Chun Chambers. An anonymous letter was received and he was one of a team which searched the Plaintiff's flat and offices, but no evidence was discovered suggesting he had entered from Taiwan not China. The Plaintiff and his fiance came to Li Po Chun Chambers on the 30th May and Mr. Wu took a statement from him. He also took charge of his travel documents but not his entry permit which the Plaintiff said was lost.

19. Mr. Wu says that, understandably, he cannot remember the exact conversation on this occasion. He says he cannot remember the Plaintiff admitting he came from Taiwan but if he had done so he would have recorded that fact on the file and he would have obtained a statement under caution. There is no such entry or statement. He would also have referred the matter to his superior officers to decide if a prosecution should be initiated. No such reference was made. On the 5th June the Plaintiff again came to Mr. Wu's office and said he could not find his entry permit. His identity card was returned to him. On the 28th June the Plaintiff's wife handed in the Certificate of Registered Particulars and the case was then referred to Mr. Wu's superiors who instructed him to return the Plaintiff's travel documents to him and take no further action. Mr. Wu says that as far as he can recall at no time did the Plaintiff admit that he had come from Taiwan.

20. The Crown ays that first of all it is for the Plaintiff to show that he was given permission to remain in Hong Kong which, on balance he has failed to do, and secondly Mr. Wu was not able to give such permission even if he purported to do so. The Plaintiff contends that as Mr. Wu cannot recall the conversation exactly whereas he can, this version should be accepted. As the Immigration Department then knew of his having come from Taiwan Mr. Wu's permission was not based on false information and is valid.

21. It seems to me that the evidence is against the Plaintiff on this point for the following reasons:

Furthermore, even on the Plaintiff's own account of the conversation, all Mr. Wu said was he could leave and nothing would happen to him. I do not consider that amounts to permission to remain in Hong Kong.

22. If however, I am wrong in this finding of fact I am also satisfied that Mr. Wu, as an Assistant Immigration Officer, did not have authority to give the Plaintiff permission to remain and the various legal presumptions to which I have been referred are of no assistance to him.

23. Section 2(1) of the Immigration Ordinance defines 'Director' as including the Deputy Director or any Assistant Director. It does not include an Assistant Immigration Officer.

24. The Plaintiff contends that there is a presumption that if a Government Officer does something he is presumed to have authority to do it and that presumption remains in force here. He relies on Section 52 of the Interpretation Ordinance and says that there must be a presumption that Mr. Wu had been given instructions and was acting in accordance with them. I was referred to Vestry of St. Mathews v. The School Board for London. 1898. A.C. 190 and Everth v. Tunno. 171. E.R. 545. In the first of these cases it was held that were a sewer was constructed some thirty years previously which required the consent of the Metropolitan Water Board, in the absence of evidence to the contrary, it should be presumed such consent was given. In Everth v. Tunno it was held that as a ship was allowed to remain in Bordeaux for a month it was to be assumed that a licence given by the French Government was genuine.

25. I do not think those authorities are sufficient to cloak Mr. Wu with power to give the Plaintiff permission to remain in Hong Kong, nor do Sections 38 and 43 of the Interpretation Ordinance assist the Plaintiff. There is a presumption of authority if there is no evidence to the contrary but here there is such evidence. Mr. Wu says that if the Plaintiff had admitted to him that he came from Taiwan he would not have made any decision himself but would have referred the matter to his superior officers. The Ordinance says that certain powers, including the power to grant permission to remain can be exercised by the Director and the Director is defined. The definition does not include an Assistant Immigration Officer.

26. I am therefore satisfied that this application must be dismissed. The Crown is entitled to its costs.

27. I reach this decision with similar feelings to those expressed by McMullin J.A. in Cheung Kam-ping. The Plaintiff has been resident in Hong Kong almost continuously for some eleven years. It is not in dispute that he has built up a good, if modest, business and he pays not insubstantial taxes. He has invested in property here and clearly will suffer very considerable hardship when he leaves. It may be his business can be carried on but if not his 15 or so employees will have to seek re-employment. Finally he has married a Hong Kong belonger and in a letter which has been exhibited, the Director of Immigration states that an application by a woman for the entry and stay of her husband will be treated in the same way as if the husband is making the application for his wife. Here it is in fact the husband who is applying but I would have thought the principle was the same.

28. The Plaintiff told lies in 1971 and 1972 about his origin and behaved a somewhat strangely in not reporting to collect Identity Cards but that was perhaps understandable.

29. It is not the Court's function to endeavour to make what are clearly executive decisons but it does seem to me that this is a case which could perhaps be re-considered.

Representation:

Mr. Oswald Cheung, Q.C. & Mr. A. Neoh (P.H. Sin & Co.) for Plaintiff.

Mr. McCallough, C.C. for Defendant.