Ng Siu Tung and Others v. The Director of Immigration

FACV No. 1 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2001 (CIVIL)

(ON APPEAL FROM CACV NO. 415 OF 2000)

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Between :

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Court: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ

Date of Hearing: 17 November 2005

Date of Judgment: 5 January 2006

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J U D G M E N T

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Chief Justice Li, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ :

Introduction

1.This Court, by its judgment of 30 July 2002 (2002) 5 HKCFAR 499 (“the July judgment 2002”), remitted certain factual issues to the Court of First Instance for determination and directed that it should submit a report of its findings to this Court.

2.On 3 October 2003, Hartmann J, sitting as the Court of First Instance, handed down his 1^st Report.  The 1^st Report dealt with the cases of 22 applicants who claimed a right of abode in Hong Kong, out of a total of 216 applicants whose cases were the subject of the remitter. 

3.On 9 January 2004, the Court made orders disposing of the appeals of 15 of the 22 applicants: see Ng Siu Tung & Others v. Director of Immigration (No. 3) (2004) 7 HKCFAR 24 (“the 2004 judgment”).  The Court then remitted one case (applicant no.3122) to Hartmann J for further consideration and directed that written submissions be filed in the remaining 6 cases.  

4.On 26 March 2004, this Court made orders disposing of the appeals in 5 of the 6 remaining cases and remitted another case (applicant no.1084) to Hartmann J for further consideration.

5.Hartmann J, after sitting for a total of 50 days, handed down his 2^nd Report on 16 September 2005 dealing with 26 cases (including the 2 applicants whose cases had been remitted for further consideration).  This leaves 121 cases still to be determined.  The provisional timetable contemplates three further hearings by Hartmann J:

(i) from about 20 February to the end of May 2006;

(ii) from about 15 November to the end of December 2006; and

(iii) a final period in the first half of 2007.

The Second Report

6.Of the 26 cases considered in the 2^nd Report (involving the applicants named in the Schedule to this judgment), Hartmann J found that 8 applicants (nos 641, 1015, 2137, 3122, 3126, 3234, 3873 and 4149) satisfied the requirements of the concession policy and 17 did not.  The remaining applicant (no.720), it appeared, did not wish to pursue her application.  At the conclusion of the hearing on 17 November 2005, we disposed of 14 cases.

(a) We made agreed orders in 8 cases in which the applicants were legally aided.  Their appeals were allowed and consequential orders were made.

(b) We made orders in 4 cases in which the parties were not legally aided.  Although they had been notified of the dates of hearing before the Court, they were not present at the hearing.  In these cases, we made the orders sought by the respondent, the Director of Immigration (“the Director”).  In the case of Cheung Shuk Ching (no.720) who is now residing in Hong Kong pursuant to a one-way permit, leave was given to her to withdraw her appeal.  In the other three cases, the appeals were dismissed.

(c) We dismissed the appeal of Fu Kwong (no.1084) who had unfortunately died.

(d) We also dismissed the appeal of Wong Sai Chak (no.5006).  His counsel, Ms Gladys Li SC, informed us that the applicant was content with such an order since the Director would be exercising his discretion to permit him to stay on humanitarian grounds.

In all 14 cases, the Court made no order as to costs save that the costs of the applicants be taxed in accordance with Legal Aid Regulations.

7.This leaves 12 cases remaining from the 2^nd Report.  The applicants in these cases were legally aided.  During the hearing, Ms Gladys Li SC for the applicants, informed us that two applicants, namely Chan Chuen Chu (no.400) and Lam Nga Yung (no.1769) had withdrawn their instructions to Messrs Barnes & Daly and counsel.  Ms Li SC indicated that they wish to make submissions after the relevant parts of Hartmann J’s 2^nd Report have been translated into Chinese.  As we were informed that the translation would be available in about one week from 17 November 2005, we gave directions that these two applicants should lodge written submissions on or before 9 December 2005 and that the Director should lodge written submissions on or before 16 December 2005 and indicated that the Court would decide their appeals on the basis of the written submissions.  These two cases will be dealt with in the last part of this judgment, following consideration of the other 10 cases remaining.

“Group six” applications

8.It is convenient to begin our consideration of the 2^nd Report by making some general observations concerning issues which arise in relation to “group six” applications.  “Group six” applicants are those who allege that they made claims for right of abode by sending letters to the Immigration Department.  This Court, in its July 2002 judgment, remitted to the Court of First Instance, the following issues in relation to “group six” applicants:

“….

(a) whether, in each case, the applicant made a claim for right of abode;

(b) if so, whether the Director has a record of that claim as required by the Concession; and,

(c) insofar as necessary, whether the applicant concerned was present in Hong Kong at the time of making his alleged claim for right of abode.”

In relation to the five “group six” applications dealt with in the 2^nd Report, issue (c) did not arise.

9.The first issue relates to the way in which the assessment of an applicant’s evidence should be approached when the applicant claims that he sent a letter to the Department claiming right of abode and the Department has no record of the letter.  The second issue concerns the application of the record requirement of the concession policy, when the Judge finds on the oral evidence that such a letter was sent to the Department but the Department has no record of the letter or its receipt.

10.At the hearing in the Court of First Instance, issues arose as to the systems employed by the Director to ensure the receipt, distribution and storage of letters sent to the Department and as to adequacy of searches made by the Department for letters sent by individual applicants.  On the basis of evidence given at the hearing, Hartmann J made certain findings which have been strenuously contested by Ms Gladys Li SC for the applicants.  Paragraphs 18 and 19 of the Second Report, which contain the relevant findings, are in these terms:

“18. In my judgment, on the evidence, I am satisfied that at all material times the Director managed an effective system for the receipt of letters and their distribution, that system incorporating the acknowledgement of receipt of those letters and their storage.  Of course it was possible that from time to time letters would not in any way be noted as having been received or would be mislaid.  That must be possible with any large organisation.  However, such a failure would be the exception.  It must be remembered that the work of the Immigration Department is focused almost entirely on the receipt, creation and management of documents, be they in hard copy or soft.  That being so, if a letter was addressed to the Director in some rational manner, the probabilities would support not only its receipt but some record of that receipt, a record which would be recoverable upon logical search.

19. I am further of the view, on the evidence, that the record checks conducted by the Director to attempt to locate some record of the receipt of ‘missing letters’, while not necessarily exhaustive, were nevertheless conducted in good faith and were reasonably thorough.”

11.Hartmann J made these findings, having in mind the evidence that in or about early 1999 one unit in the Immigration Department, the Eligible Children Verification Unit (“the ECVU”) had destroyed a considerable number of files, in accordance with internal guidelines, as part of a weeding policy.  The correspondence so destroyed was apparently received in the latter part of 1997.

12.We do not find it necessary to deal with the challenge to these findings made by Hartmann J because there is a conventional and simple solution to the problems which arise.  With respect to the first of the two issues identified in para.9 above, Ms Gladys Li SC for the applicants submitted that it would be wrong for the Court to approach the assessment of an applicant’s oral evidence that a letter claiming right of abode was sent to the Department with a pre-disposition to reject the oral evidence simply because the Department had no record of the letter.  We agree with this submission.  The Court should approach the assessment of the oral evidence in such a case neutrally and objectively.  The fact that the Department has no record of the letter means that the applicant’s evidence should be considered carefully, as it should be in any event.

13.With respect to the second issue, the problem arises when the Court of First Instance finds that a letter claiming right of abode has been duly posted to the Department, as it did in the case of Siu Chi Keung (no.4860), and the response of the Director is that he “denies having any record of the letters allegedly sent”.  It is naturally to be expected that the Director, having no personal knowledge of the non-receipt of particular items of correspondence, will speak with reference to the absence of records in his Department and not in terms of non-receipt of correspondence.

14.It is common ground between the parties that the burden is on the applicants to establish (a) that they made a claim to right of abode; and (b) that the Director has a record of the claim that was made.  Where it is found that a claim to right of abode is made by the posting of a letter making such a claim and the Director has no record of the letter in his files, the question arises whether the applicant has discharged the onus on issue (b).  Mr Joseph Fok SC for the Director, argues that the absence of any record of the letter or of its receipt in the files of the Department concludes the question in favour of the Director.  

15.There is, however, a presumption that a letter duly posted will be received in the ordinary course of post by the person to whom it is addressed.  This presumption, which is rebuttable, applies to a letter duly posted to the Director or his Department.

16.The fact that there is now no record in the Department of such a letter or of its receipt may be explicable on two alternative hypotheses.  The first is that the letter was not delivered in the ordinary course of post and went astray, this being the hypothesis which Hartmann J found to be equally probable.  According to ordinary experience, this can happen, but only in exceptional circumstances.  The second alternative is that the letter, though delivered to the recipient, goes astray in the recipient’s administrative processes. 

17.In comparing the likelihood of these two alternative possibilities, we consider that it is the more likely that the letter went astray after it had been delivered to the Director than that it went astray before it was delivered by post.  Assuming, as we do for the purpose of dealing with this argument, that the Director had an efficient system in place for the receipt and distribution of letters, we cannot discount the possibility that, for one reason or another, a letter could “fall through the cracks”.  In this respect, we note that, according to the evidence of Mr Fung Ming Keung, Chief Immigration Officer of the Removal (Special Project) Section of the Department, the Receipt and Despatch Unit (“R&D Unit”), whose responsibility was to receive and distribute incoming correspondence to the appropriate section or unit of the Department, did not maintain a register or record of incoming correspondence.  The absence of a system for registering or recording incoming correspondence affirms the possibility that a letter delivered in the post might go astray.

18.Although it is argued that a letter addressed merely to the “Director of Immigration” or the “Department of Immigration”, without specifying the actual address of the Department, might well go astray and fail to be delivered in the ordinary course of post, we consider this to be unlikely in Hong Kong.  Accordingly, in such a case, the presumption of receipt is not rebutted.

19.The question then is whether the presumed fact of receipt of the letter claiming right of abode is sufficient to satisfy the record requirement of the concession policy.  It is not disputed that if the original letter making the claim was in the files of the Department, it would constitute a sufficient record.  Nor is it disputed that, if there was a notation in the files that such a letter had been received, though the letter was subsequently lost or mislaid, there would be a sufficient record.  The Director argues, however, that, if a letter claiming right of abode has been lost or mislaid and no notation of its receipt has been made in the Department’s records, there is no compliance with the record requirement of the concession policy.

20.We do not accept this argument.  The context is the determination of the existence or otherwise of a constitutional right, namely the right of abode, and it cannot be supposed that the existence of what was, at one time, a sufficient record to authenticate the right could be lost or destroyed simply because the relevant document went astray after its receipt by the Department.

21.Our observations in Ng Siu Tung & Others v. Director of Immigration (No.2) in the July 2002 judgment at 511-512C, on which the Director relies, were not directed to the situation now under consideration.  The Court was not dealing in the July 2002 judgment with a written claim for right of abode which had been received by the Department.  The Court was then considering cases in which it was suggested that oral claims had been made and that those claims would or may have been noted by police officers in circumstances where the relevant notebooks were subsequently destroyed.  It was not established that these claims had been noted.

The two “group six” applications now to be determined

22.It is convenient to deal, first, with the case of Siu Chi Keung (no.4860) in the light of the general observations already made.  Hartmann J found the applicant “to be an essentially credible witness” and that he had sent to the Director a letter which constituted a claim to right of abode.  His Lordship went on, however, to find that, because the letter was poorly addressed, that is, merely to the “Director of Hong Kong Immigration Department” or characters to that effect, it was “equally probable” that it was lost in the post as it was lost after receipt by the Director without any notation in a file or register to record its receipt.  The conclusion was that the applicant had not discharged the onus to establish the requirement of a record.  For the reasons already given in our general observations, we consider that there was a record.  The applicant’s appeal should therefore be allowed.

23.The remaining “group six” letter applicant is Chu Shek Kai (no.5297) who asserted both a letter claim and oral claim to right of abode.  Hartmann J rejected both claims and held that Department had no record of a claim.  His Lordship described the evidence of the applicant as “weak and unconvincing…highly defensive and evasive” and stated that he “could place little, if any, faith in what he said concerning the creation and dispatch of the letter”.  It has not been shown that the Judge misdirected himself in reaching this unfavourable view of the applicant’s evidence.  Indeed, there were aspects of his evidence, including a material difference between his affirmation and his evidence, which the Judge identified as supporting the conclusion that the evidence was unreliable and should not be accepted.

Applicants whose oral evidence as to the making of a claim to right of abode was rejected

24.A number of applications based on the making of an oral claim or claims failed because Hartmann J rejected the oral evidence of the applicant, just as he rejected the evidence of Chu Shek Kai (no.5297).  The following applications fall into this category:

Kwok Siu Wan	(no.1624)
Lau Man Chu	(no.1936)
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)

25.As his Lordship had the advantage of seeing the applicants giving their evidence, particularly in cross-examination, we would not be justified in departing from his assessment of their credibility and reliability, unless we are convinced that his Lordship’s conclusion was wrong (see Ting Kwok Keung v. Tam Dick Yuen (2002) 5 HKCFAR 336 at 347B-351F, per Bokhary PJ and the authorities there cited; Devries v. Australian National Railways Commission (1993) 177 CLR 472).  One example of such a case is where an appellate court is satisfied that the trial Judge has misdirected himself as to the effect of certain evidence on which he has relied to support his conclusion (Universal Dockyard Ltd v. Trinity General Insurance Co. Ltd [1989] 2 HKLR 160 at 167J-168A).  Having considered the evidence and the submissions carefully, we are satisfied that Hartmann J was not wrong in making his assessment of each applicant’s evidence and that he did not misdirect himself in reaching the conclusion that each applicant’s evidence should be rejected.  The appeals in these cases must be dismissed.  In all these cases, the Judge gave detailed and cogent reasons for his assessment, referring to particular matters which rendered the oral evidence unconvincing, including his preference in two cases (nos 3387 and 3794) for the contrary evidence of Immigration officers Lam and Chow respectively, each of whom he found to be reliable a witness.  Although criticism has been made of the evidence of the two officers, the Judge was entitled to treat them as credible witnesses and we are not persuaded that he was wrong in accepting their evidence in preference to that of the applicants.

26.What we have just said is sufficient to dispose of the remaining 8 applications with the exception of So Yik Lung (no.3028) whose oral evidence was not rejected.  As there was no claim and no record of a claim in the 7 cases, the appeals must be dismissed.  In addition to So Yik Lung’s case, we shall give specific consideration to three cases dealt with in the preceding paragraph of this judgment in which the applicant relied on particular arguments that merit consideration.

So Yik Lung (no.3028)

27.The applicant was born in Fujian Province before his parents came to Hong Kong.  In 1998, believing that, if he was able to enter Hong Kong, he could claim right of abode, he set about obtaining documentation to support his claim.  From Mainland authorities he obtained a notarial certificate verifying his relationship with his parents and a census record giving his name, date and place of birth, address and occupation.  He also had a certificate of registered particulars obtained by his father from the Immigration Department in Hong Kong.  On 31 December 1998, armed with these documents, he attempted to enter Hong Kong with the intention of claiming right of abode.

28.He was interviewed at the Lo Wu control point where the documents were discovered in his luggage.  In his evidence, the applicant acknowledged that he did not say at the interview that his true purpose in coming to Hong Kong was to claim right of abode.  Instead, he said that he had come “to care for his parents”.  It seems that he was aware that if he revealed the true purpose of his visit, entry into Hong Kong might be denied.  The notes of the interviewing officer, Mr Lui, recorded that the applicant had come to visit his parents and to look after his father who was to have an operation.  Mr Lui did not accept the applicant’s statement of the purpose of his visit.  The notes recorded that Mr Lui suspected that the applicant wished to enter Hong Kong to claim right of abode “without the prior approval of the Director of Immigration”.  The interview notes recorded the identity card number of the applicant’s father and that both parents were Hong Kong permanent residents.  Hence it is argued that the interview notes constitute the requisite record of claim.

29.This argument would have had a foundation if in fact a claim of right of abode had been made to Mr Lui.  But neither the applicant nor Mr Lui (whose evidence was accepted by Hartmann J) say that a claim was made.  Nevertheless it is argued that a claim to right of abode was made by conduct, that is, by means of the documents.  The argument must be rejected as it was by Hartmann J.  All that happened at Lo Wu amounted to acts preparatory to the making of a claim.  The applicant’s conduct there cannot be characterised as amounting to the making of a claim when it was accompanied by his making statements which were inconsistent with that purpose.  Accordingly, there was no claim and no record of a claim.  The appeal must be dismissed. 

Tsang Kwai Ngan (no.3299)

30.This case calls for more detailed consideration because the Judge found that certain forms completed by the applicant on 8 December 1998 were capable of constituting a record and also because, considered in isolation, the minute of an interview of the applicant made by an officer of the Immigration Department was capable of suggesting that a claim for right of abode was made.

31.The applicant was born in Guangdong before her parents came to Hong Kong.  She came to Hong Kong on 31 July 1997 on a two-way permit, overstayed and was repatriated to the Mainland.  She returned to Hong Kong in April 1998.  According to her evidence, she made an oral claim to right of abode on a number of occasions.  The first occasion was when she attempted to leave Hong Kong at Lo Wu on 17 November 1997, when she was in breach of the conditions of her stay.  The record of interview contains no reference to such a claim.  The next day, 18 November 1997, the applicant reported to the offices of the General Investigation Section (“GIS”) at Immigration Tower so that she could be interviewed and a decision made whether she should be prosecuted for breach of the conditions of her stay.  She was given a form ID457 to fill in.  She believed, so she said, that it might be a form for claiming right of abode.  She included details of her mother’s ID card.  Other details included in the form were incorrect.  For example, she stated that Mr Fan (who accompanied her) was her husband – a misrepresentation that she made again in later documentation – and gave his Hong Kong address and identity card details.  Her husband was living in the Mainland.  She also gave the names of Mr Fan’s children as her children.

32.On the same day, at the interview, the applicant completed a “grounds for non-removal” form, in which she stated:

“I overstayed because I was with family, now I want to return to China”.

In neither this form nor form ID457 did the applicant claim right of abode.

33.The second occasion on which the applicant asserted that she made an oral claim to right of abode was on 26 November 1997 when she pleaded guilty in the Western Magistracy to breaching her conditions of stay.  The transcript of the proceedings records no such claim.  Indeed, the transcript records that, in answer to the question asked after she was convicted “Do you want to say anything?”, she replied “No”.

34.Following arrest on 6 December 1998 for overstaying on a subsequent visit to Hong Kong, the applicant asserted that she told police that one of her reasons for coming to Hong Kong was to claim right of abode.  But the police referral pro forma states that she had come to Hong Kong only to undergo an operation.

35.On being transferred, after arrest, to the Victoria Immigration Centre, she asserted that she made a claim to right of abode in an interview with Ms Candy Wong Ying Fong, a Senior Immigration Assistant.  Ms Wong had no independent recollection of the interview but she did invite the applicant to sign the pro forma “grounds for non-removal” form, which Ms Wong would not have done had the applicant claimed right of abode.  The form contained the printed statement:

“I, Tsang Kwai Ngan, voluntarily want to go back to the Mainland of China as soon as possible”.

The applicant said that when she was told to sign the form, she, being illiterate, asked what she was signing and whether it was a form enabling her to claim right of abode.  She claimed that she was told to sign the form or she would go to jail.  The Judge rejected the suggestion that there was a threat and accepted that the applicant may well have signed the form in the hope of avoiding prosecution.

36.Another form which the applicant completed at the Centre was a form headed “My Personal Data”.  In this form she again wrongly gave the name of her husband as Mr Fan.  But she also gave details of her mother and father, stating both were Hong Kong residents.  On the form she wrote that she could not provide a copy of her mother’s identity card – in evidence she stated that by then she had lost the card.  Ms Wong could not recall why this sentence had been included on the form.  For the applicant, it is argued that it is strongly indicative of a claim having been made.  We do not agree.  The inclusion of the sentence is quite consistent with the applicant seeking to explain her presence in Hong Kong as an overstayer.

37.On the same day the applicant signed a Letter of Undertaking by which she promised to bring a copy of her father’s ID card to the Immigration Department.  For the applicant, it is said that the Letter of Undertaking was used for a non-standard purpose because the words “copy of my father Tsang XXX’s ID card” had to be specifically inserted in the form to reflect the undertaking.  The fact that these words had to be inserted does not mean that the form was used for a non-standard purpose or that it indicates a claim for right of abode was made.  The undertaking appears to have been given in connection with the bail application which the applicant intended to make.  There is therefore no reason to question the correctness of the Judge’s statement with reference to the documents which the applicant completed at the Centre:

“They are – on their face – standard documents for use by the Victoria Immigration Centre in all kinds of cases”.

38.Ms Gladys Li SC for the applicant, relied strongly on a minute M3 which was written after the interview at the Centre.  The minute reads:

“O/S charge, please.

2.  No proof of relationship.

3.  Born before parents came to settle in HK”.

The submission is that the minute indicates that the Department investigated the eligibility of the applicant for right of abode.  Hartmann J made no reference to the minute in his Report.  Mr Wong Yin Sang, the Immigration Officer, who prepared and signed the minute, stated in his affidavits, that he assessed the applicant’s case for prosecution for breach of her conditions of stay.  In doing so, he conformed to standard practice in making sure before authorising charges against overstayers that neither parent of the overstayer was a Hong Kong permanent resident at the time of the overstayer’s birth.  According to Mr Wong the notations in the minute were generated when this question was considered.  Mr Wong did not meet the applicant and his minute did not deal with any right of abode claim by her.

39.The final occasion when the applicant asserts that she made an oral claim to right of abode was on 23 December 1998 when she was convicted on her own plea of breaching her conditions of stay.  She claimed that, when she was asked by the magistrate after conviction whether she had anything to say, she told the magistrate that she had right of abode.  Once again the transcript of proceedings does not support her.  All it records is that she said she overstayed in order to seek treatment for a kidney problem.

40.Hartmann J unhesitatingly, rejected the applicant’s evidence as unreliable.  He concluded that:

“without any real regard for the accuracy of her memory, if an opportunity presented itself in the chronology of her evidence, she would say that she had claimed right of abode…it became a mantra, one sadly without any substance”.

We are satisfied that his Lordship was right.  The applicant’s evidence was at variance with documentary materials and the evidence of other witnesses.  She was found to have made false statements in order to obtain lenient treatment when faced with the prospect of prosecution for breaching conditions of her stay.  Her appeal must be dismissed on the grounds that she made no claim for right of abode and there is no record of such a claim.

Yim Shing Cheung (no.4232)

41.This applicant was born in 1972 before his parents came to Hong Kong.  He came to Hong Kong on a two-way permit in March 1997 and overstayed, hoping that he would be granted amnesty.  That hope was disappointed.  He gave evidence that he made two oral claims to right of abode: the first on 14 August 1997, when he attempted to return to the Mainland and was interviewed at Lo Wu; the second on 19 August 1997 at the reception counter at the office of the GIS.  Hartmann J placed little, if any, weight on the applicant’s evidence and stated that he was satisfied that no claim to right of abode was made on either occasion.

42.One of the reasons which Hartmann J gave for rejecting the applicant’s evidence was that it was inconsistent with the case summary prepared by his first solicitors, Pam Baker & Co. (PBC) in 2000.  The applicant’s case is that the Judge attached too much weight to the apparent inconsistency between the case summary and the applicant’s oral evidence and that the Judge failed to consider, or attached insufficient weight to, the absence of evidence called by the Director.

43.The PBC case summaries were prepared for this Court in order to assist the Court to resolve the factual and legal issues in the outstanding cases.  The summaries were in submission form and were not intended to be an exhaustive statement of an applicant’s case.  Their purpose was, however, to put forward accurate information to the Court as to the basis of an applicant’s claim to right of abode.  In most cases, time did not permit the summaries to be checked by the applicants.

44.The applicant’s recollection of what happened at Lo Wu was hazy.  He recalled being asked by an interviewing officer why he had overstayed and giving the answer that his parents were Hong Kong residents and that he wished to have a family reunion with them and overstayed in the hope of securing a Hong Kong identity card.  Hartmann J questioned whether this evidence amounted to making a claim for right of abode, but in any event found that the applicant did not make the statement to which he deposed.  The Judge gave a number of reasons for his conclusion.  They were:

(a) The applicant was returning to the Mainland in the then belief that he could not claim right of abode in Hong Kong; he was returning to take up life again with his girl friend in the Mainland; and his memory was hazy.

(b) The record of interview recorded only that the applicant’s reason for overstaying was “to stay longer with parents”.

(c) The PBC case summary made no mention of the making of a claim to right of abode at Lo Wu.  The case summary version of what was said at Lo Wu accords with the record of interview at Lo Wu.

(d) When interviewed by the Department in June 2000 so that he could state the basis of his claims to right of abode, he said nothing of making a claim at Lo Wu.  Instead he relied on apparent claims to right of abode made earlier by his mother on his behalf.

45.Granted the non-exhaustive character of the case summaries, it is nonetheless significant that the applicant’s case summary makes no reference to the Lo Wu claim.  The case summaries were intended to state the basis of an applicant’s claim.  It is again significant that no mention of it was made in the June 2000 interview.  Although there may have been two officers involved in the interview at Lo Wu and only one was called to testify, this was a matter which Hartmann J expressly took into account. 

46.The applicant’s recollection as to events on 19 August 1997 was also hazy.  He went with his father to the offices of the GIS on the 13^th floor of Immigration Tower.  His evidence was that, at the counter, he was asked by an officer why he had overstayed and that in reply he said he had overstayed for purposes of family reunion and in order to obtain a Hong Kong identity card.  In cross-examination, he denied that he was asked the question in the interview, not at the counter.  The case summary states:

“He specifically asked the officer if there was any way he could stay in Hong Kong, which received a dusty, negative response”.

47.Ms Chan Ka Man, an Immigration Assistant on duty that day, gave evidence that, if she understood that a claim of right of abode was being made by a person at the counter, she would ask that person to provide supporting documents and would arrange for them to be supplied to a superior officer together with a completed ID457 form.  This had not happened, even on the applicant’s evidence.  It was possible, as the Judge recognised, that Ms Chan did not deal with the applicant.  The applicant did say that the officer at the counter gave him an ID457 form which was subsequently completed with details of his father’s Hong Kong identity card.  The applicant was also given a “grounds of non-removal” form to complete.  He said that he completed it in accordance with a sample answer given to him.  He wrote:

“I have overstayed to keep company with my family”.

48.With reference to the interview, Hartmann J said:

“In his testimony, the applicant did not appear to suggest that during the interview process he made any claim for right of abode.  He recalled some conversation but could no longer remember its contents”.

Although the Judge did not accept the evidence of the interviewing officer Ms Chow Wing Man that she did not give a sample answer to an interviewee, the Judge pointed out that the applicant accepted that he had not been subjected to undue pressure.  He was therefore able to set down a claim to right of abode if he was determined to make such a claim.

49.There is a question whether Hartmann J should have placed reliance on the variation between the version of events to which the applicant testified and that given in the case summary.  The case summary may not have been intended to formulate the case with the degree of precision that the Judge impliedly attributed to it.  Nonetheless there were other persuasive reasons to sustain the Judge’s conclusions.  The applicant’s recollection was hazy and he did not make a claim to right of abode during the interview which is when one would naturally expect such a claim to have been made.  Indeed, it seems extraordinary that such a claim would be made at the counter yet not to the interviewing officer.  Even if Hartmann J misdirected himself in relying on the discrepancy between the applicant’s evidence and the case summary, this is not a case in which we should interfere with the Judge’s finding.  In the light of the applicant’s poor recollection and the indefinite nature of his evidence, the Judge was not prepared to accept his testimony as reliable or accurate.  The Judge no doubt had in mind, and was entitled to have regard to, the reasons why he had rejected the applicant’s evidence of what transpired at Lo Wu.

50.There was, accordingly, no claim made and no record of a claim.

Chan Chuen Chu (no.400) and Lam Nga Yung (no.1769) – applicants directed to file written submissions

51.Pursuant to our direction mentioned in para.7 above, both Madam Chan and Madam Lam filed written submissions in support of their appeals.  The Director also filed a written submission dealing with the points raised by them.

52.Madam Chan relied on a letter purported to have been written by her father dated 30 April 1998 and the oral claims alleged to have been made by her on 3 different occasions.  The letter, a copy of which was produced before the Judge, was said to have been produced by the applicant at Lo Wu Control Point when she was returning to the Mainland with her mother to visit her sick sister after she had overstayed in Hong Kong for a long time.  Based on the contents of the letter and the circumstances under which the letter was alleged to have been written by her father and kept by the applicant when she crossed the border, the Judge took the view that it was a document written for the specific purpose of showing it to the authorities in mitigation for the applicant’s long overstay in Hong Kong and that it could not be regarded as a claim.  He also disbelieved that the applicant had made oral claims as she alleged at Lo Wu, in the immigration office and later before the magistrate.  In her written submission, Madam Chan argued that it was unfair for the Judge not to believe her evidence and to have accepted that of the immigration staff.

53.Madam Lam’s case is that her father had sent a letter dated 24 January 1998 to the Director making a claim for right of abode, a copy of which was produced before the Judge.  The Director denied there is a record of such a letter.  The Judge found that the letter was not among the documents destroyed by the ECVU as part of the weeding exercise.  He also examined the circumstances under which the applicant’s father was said to have written the letter and posted it to the Director, how he kept a copy of it afterwards, and how he later came to discover the existence of the copy even though he had failed to mention it in the subsequent correspondence with the Immigration Department.  The Judge concluded that it was an invention.  In her written submission, Madam Lam explained that her father was not well educated and had worked long hours before testifying in court; she argued that the Judge should have given him some allowance and should have believed him.

54.We take the view that in both cases the Judge had taken into consideration all the relevant evidence, had not misdirected himself, and was amply justified on such evidence to come to the respective conclusions as he did against each of these two applicants.  In their written submissions, the applicants also relied on humanitarian grounds.  However, these grounds are irrelevant to the present proceedings.  Accordingly, their appeals must also be dismissed.

55.Again we acknowledge that our consideration of these applications and of the issues was greatly assisted by Hartmann J’s 2^nd Report.

56.We make the following orders:

(1) the appeals of applicants nos 400, 1624, 1769, 1936, 3028, 3299, 3387, 3794, 3983, 4232 and 5297 be dismissed;

(2) the appeal of applicant no.4860 be allowed;

(3) there be no order as to costs save that the costs of each of the applicants be taxed in accordance with the Legal Aid Regulations; and

(4) there be liberty to apply to a singe Judge of this Court.

The Schedule contains a summary of the disposal of the 26 appeals dealt with in this judgment.

Mr Justice Bokhary PJ :

57.My position in this appeal – which I explained on 30 July 2002, have repeated since and repeat again now – is as follows.  On 10 January 2002 I said in a minority judgment that I would allow all these appeals to the fullest extent in favour of all the appellants by (i) quashing all the removal orders and (ii) declaring that all the appellants are Hong Kong permanent residents with the right of abode here.  And I adhere to that.  I do not consider it appropriate for me to participate in resolving the issues which have arisen between the parties as to the effect of the majority’s judgment.  It would be otherwise if and to the extent that the members of the Court who formed that majority were now evenly divided amongst themselves on the resolution of those issues or any one or more of those issues.  But that is not the present situation.  So apart from saying that I adhere to everything that I said in my judgment on 10 January 2002, I say no more than that to the extent that the other members of the Court decide anything in favour of any of the appellants, such decision has my respectful support.

Ms Gladys Li SC, Mr Kwok Sui Hay and Mr Sean H J Fang (instructed by Messrs Barnes & Daly and assigned by the Legal Aid Department) for the applicants/appellants

Mr Joseph Fok SC and Mr Daniel Wan (instructed by the Department of Justice) for the respondent

Applicant 720, Cheung Shuk Ching, in person, absent

Applicant 1922, Lau Kiu Fan, in person, absent

Applicant 3382, Tsoi Chak Kong, in person, absent

Applicant 3822, Wong Siu Ching, in person, absent

Schedule to judgment

1. Cases disposed of by agreement

2. Cases disposed of in absence of applicants

3. Cases disposed of after hearing submissions

4. Cases disposed after considering written submission