Read the full judgment text of on BabelCite. was delivered on 5 January 2006 before Li CJ, Bokhary PJ, Chan PJ, Ribeiro PJ, Mason NPJ.
Right of abode – group six applications – letter claims – record requirement – presumption of receipt of posted correspondence – assessment of oral evidence – credibility findings – appeal – costs – Constitutional right of abode of Mainland-born children of Hong Kong permanent residents – This is the further judgment in the long-running Ng Siu Tung litigation concerning 216 applicants claiming the right of abode in Hong Kong, in which the Court of Final Appeal by its judgment of 30 July 2002 (2002) 5 HKCFAR 499 had remitted certain factual issues to the Court of First Instance – Hartmann J, after sitting for 50 days, handed down his 2nd Report on 16 September 2005 dealing with 26 cases, of which 8 applicants were found to satisfy the concession policy and 17 were not – 'Group six' applicants are those who allege they made claims for right of abode by sending letters to the Immigration Department – how the court should approach the assessment of an applicant's oral evidence that a letter was sent when the Department has no record of it – held that the court should approach the evidence neutrally and objectively and the absence of a record does not warrant a pre-disposition to reject the oral evidence – Whether the rebuttable presumption that a letter duly posted is received in the ordinary course of post is displaced merely because the Immigration Department has no record of the letter or its receipt – held no – the presumption applies to letters posted to the Director or the Department – It is more likely that a letter would go astray after delivery to the Department than in the post, particularly where the Receipt and Despatch Unit did not maintain a register of incoming correspondence – letters addressed in general terms to the 'Director of Immigration' or the 'Department of Immigration' are unlikely to go astray in Hong Kong – Whether presumed receipt of a letter claiming right of abode is sufficient to satisfy the record requirement of the concession policy – held yes – the right of abode is a constitutional right and the record requirement cannot be defeated merely because the document was lost or mislaid after receipt – The July 2002 observations on missing police notebooks were directed to alleged oral claims and not to written claims actually received by the Department – Standard of appellate review of credibility findings of the trial judge – the appellate court will not depart from a trial judge's assessment of credibility and reliability unless satisfied that the conclusion was wrong, including by misdirection as to the effect of evidence (Ting Kwok Keung v. Tam Dick Yuen; Devries v. Australian National Railways Commission; Universal Dockyard Ltd v. Trinity General Insurance Co. Ltd) – Application of these principles to the 12 remaining cases from the 2nd Report – appeal of Siu Chi Keung (no.4860) allowed because, although the letter was poorly addressed, presumed receipt was sufficient to constitute a record – appeals of Chan Chuen Chu (no.400), Kwok Siu Wan (no.1624), Lam Nga Yung (no.1769), Lau Man Chu (no.1936), So Yik Lung (no.3028), Tsang Kwai Ngan (no.3299), Tsoi Ching Chung (no.3387), Wong Sau Chu (no.3794), Wu Chun Choi (no.3983), Yim Shing Cheung (no.4232) and Chu Shek Kai (no.5297) dismissed – humanitarian grounds irrelevant to the present proceedings – No order as to costs save that the costs of each of the applicants be taxed in accordance with the Legal Aid Regulations – Liberty to apply to a single Judge of the Court – Mr Justice Bokhary PJ adhered to his earlier minority position that all appeals should have been allowed in full.
Legal issues: Standard for assessing oral evidence of letter claims to right of abode · Whether presumed receipt of a posted letter satisfies the record requirement of the concession policy
Outcome: Of the 12 remaining cases from the 2nd Report, 11 appeals were dismissed and the appeal of Siu Chi Keung (no.4860) was allowed. Separately, 14 cases were disposed of at the conclusion of the hearing on 17 November 2005: 8 by agreed order (legally aided, appeals allowed), 4 in the absence of non-legally-aided parties (orders sought by the Director, including one withdrawal and three dismissals), 1 dismissed on the death of the applicant (Fu Kwong, no.1084), and 1 dismissed with the Director exercising discretion on humanitarian grounds (Wong Sai Chak, no.5006).
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