Ng Siu Tung and Others v. Director of Immigration
Read the full judgment text of HCAL 81/1999 on BabelCite. This High Court CFI judgment was delivered on 7 February 2007.
1. This fourth report determines just seven applications.
Cites 1 case
|
HCAL 81/1999 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO.81 OF 1999 --------------------- BETWEEN
---------------------- Before : Hon Hartmann J in Court Dates of Hearing : 20-24, 27-30 November; 1, 4-8, 11-12 and 20 December 2006 Date of Handing Down Report : 7 February 2007 --------------------------------------- FOURTH REPORT TO THE --------------------------------------- Introduction 1.This fourth report determines just seven applications. 2.While contested applications are taking up to three days to be heard, excluding final submissions, a far greater number of applications are being disposed of by consent without the need for a hearing. By way of illustration, between my third report and the commencement of this last tranche of hearings I am told that 21 applications were allowed or dismissed by consent. Of those 21 applications, four were dismissed. In each case, the applicants had received one-way permits, securing the right to settle in Hong Kong by that route. The remaining 17 applications were allowed by the Director. 3.Assuming a similar rate of consent orders in respect of outstanding applications, counsel for the applicants and the Director both are confident that all outstanding applications – with the exception of one, to which I refer below – can be determined at this first instance level before the end of this year. 4.There will be two hearings this year :
5.All being well, it is anticipated that the second hearing will not need to run its full four-month course. The one exception 6.I have earlier referred to one application which, it seems, it will not be possible to determine this year. It is the application of Mr Leung Wai Keung, applicant 2144. It appears that Mr Leung has been sentenced to a period of imprisonment in the Mainland. His father has said that the term is one of five to six years. While no indication has been given as to when Mr Leung can expect to be released, it would seem rational to work on the basis that it is unlikely to be for at least another two to three years. This raises the question of what is to be done with Mr Leung’s application. The present applications 7.In respect of the seven applications which are the subject of this report, I have not been able to come to a positive determination in respect of any. 8.I have reviewed my conclusions with some anxiety. I have taken into account that, in long-enduring matters of this kind, there is the threat of scepticism colouring the exercise of the judicial function. But I am drawn to say that none of the seven applications gave me any real cause for concern; to put it another way, in all seven applications I reached my conclusions with confidence. 9.It is, of course, utterly irrelevant to me that the seven applications I have had to determine are ones which the Director was not prepared to concede. However, as more certainty of approach has resulted from the CFA’s consideration of my earlier reports, it is apparent that the Director has been prepared to work within the parameters of that certainty to allow a greater number of applications. That, of course, is all to the good. It is, in my view, the way it should be. It does mean, however, that those applications which are not allowed are, at first blush at least, often less likely to display patent merit and therefore to require deeper consideration at the hearing. The absence of record : estoppel 10.In respect of a number of the present applications, it was accepted at the outset that there was no record of any claim as required by the concession policy. In respect of these applications, however, it was submitted that a claim would have been recorded if it had not been for the oppressive conduct of the Director’s officers or for some other material failing on their part such as, in one case, the failure to provide adequate interpretation. This culpability, it was said, estopped the Director from denying the existence of any record. 11.This submission flowed from certain observations made by me in my first report to the Court of Final Appeal (the ‘CFA’), specifically in paras.48-50 of that report :
12.As I understand it, the CFA did not find it necessary to determine the correctness of my observations as I did not on any occasion come to a conclusion that an applicant would have made a record of a claim if not prevented from doing so by the oppressive conduct of the Director’s officers. 13.On behalf of the Director, leading counsel, Mr Fok SC, suggested that, whether the principle of estoppel (or anything allied to it) was applicable was not a matter for this court but was rather a matter for the CFA. The authority conferred on this court, said Mr Fok, was to make factual findings not to interpret the concession policy. As such, perhaps the better way forward, is to make two findings only; first, whether there is a record of a claim and, second, if not, whether that has resulted from the oppressive conduct of the Director’s officers or some other material failure on their part. 14.In respect of the potential issue of estoppel, I think Mr Fok made a valid point. However, as it has transpired, I did not, in respect of any application, come to the conclusion that the lack of a record was a matter for which the Director bore culpability. The individual applications Madam Sze Lai Ha (3085, a ‘group one’ applicant) 15.The applicant was born in Fujian Province in February 1941. At the time of the hearing, she was 65 years old. The applicant’s mother came from Fujian Province to settle in Hong Kong in 1972. Two of the applicant’s daughters married Hong Kong residents, being able themselves to come and settle in Hong Kong. 16.The applicant first visited Hong Kong in September 1995. She was by then a widow. She came with one of her daughters. Both overstayed, eventually surrendering themselves in January 1996. According to the applicant, her mother was not well at that time and she was forced to overstay in order to care for her. However, by January 1996, with the Lunar New Year approaching, the applicant thought it best to return to her home village in Fujian. She therefore surrendered herself to the Immigration authorities. 17.The applicant was prosecuted for overstaying. She pleaded guilty and was fined. She was repatriated on 15 February 1996. 18.Within months of her return to Fujian, the applicant said that she learnt of rumours circulating among her clansmen that, when the change of sovereignty took place in Hong Kong, the children of permanent residents would be entitled to settle there. It was her understanding that, in order to benefit from this amnesty, she would have to be in Hong Kong when the change of sovereignty took place. She therefore applied for a new two-way permit. 19.The applicant returned to Hong Kong on 13 March 1997, being permitted to remain until 3 June 1997. 20.Again, however, she overstayed. On this occasion too, said the applicant, her mother was in bad health and it was necessary for her to remain to care for her. In addition, of course, the applicant was anticipating the amnesty that would come about when the change of sovereignty took place, that being the primary purpose for her return. 21.The applicant said that, in the days following the change of sovereignty, she came to learn that many people who had gone to the immigration authorities to benefit from the amnesty had been arrested and repatriated. She understood, however, that a number of people were nevertheless obtaining permits to remain in Hong Kong. 22.She therefore suggested to her son-in-law, a Hong Kong resident, that they should go to the Immigration Tower to make enquiries. This visit, she said, was made some time during the course of July 1997. Her evidence as to whether it was in the early, middle or later part of the month was inconsistent. But, in my view, it being so long ago, nothing turns on it. 23.It was the applicant’s testimony that she and her son-in-law went to the enquiries office on the 2nd floor of the Immigration Tower. As her Cantonese was limited, her son-in-law spoke to the officer at the counter, asking if it would be possible for her to settle in Hong Kong. As she understood it, her son-in-law was told that it was not possible and that any claim to settle permanently in Hong Kong would have to be processed on the Mainland. 24.Although the advice was unambiguous, the applicant testified that she still held out ‘some hope’ that she might be allowed to remain permanently in Hong Kong. Many people in her position, she said, were unwilling to go back to the Mainland. Many wanted to wait in the hope of favourable developments. 25.According to the applicant, however, after the passing of just a few more weeks, she found the continued overstaying simply too stressful. As a person who had already been prosecuted for overstaying, the applicant – by no means a simple or stupid woman – would have appreciated that the longer she remained the greater the probable punishment to which she would be submitted. 26.In the result, said the applicant, on 12 August 1997, just a few weeks after her first visit, she and her son-in-law returned to the Immigration Tower. It was the applicant’s evidence that she wanted to know one way or the other : must she be repatriated or was there a way she could remain? She wanted to ‘try again’, she said, but was prepared for the worst. 27.As to what happened on arrival at the Immigration Tower, in her affirmation of 3 October 2006, the applicant expressed herself in the following terms :
28.Although it was, in my view, somewhat unclear, it appears to have been the applicant’s testimony that, in the process of surrendering herself, she would seek right of abode and see if, by reason of that claim, there was some way she could remain. I accept, of course, that some overstayers who surrendered themselves no doubt hoped nevertheless to be able to make a request to remain in Hong Kong, either on compassionate grounds or because they believed they had a right based on their parents’ residential status. 29.It was the applicant’s case that, when she went to the 13th floor and was being interviewed, she made a claim for right of abode – an oral claim – to two officers who were interviewing her. She was, however, despite her protest, prevented from recording her claim on her ‘grounds for non-removal’ form. It was, in short, the applicant’s case that she was, during the interview, a victim of oppressive conduct, the result of that conduct resonating now to her disadvantage. 30.In considering the applicant’s case, I was troubled by three fairly fundamental matters. 31.First, on her own evidence, in the days following the change of sovereignty, the applicant had come to realise that there would be no amnesty. She and her son-in-law had made direct enquiries with the Immigration Department and had been told that no claim for right or abode could be processed in Hong Kong. What really drove her to go to the Immigration Tower to surrender was the stress of being an overstayer not any hope of being able to successfully remain in Hong Kong. 32.Second, in early 2000, two and a half years after her surrender, the applicant was interviewed by the Removal Special Project Sub-Division of the Immigration Department in order to ascertain whether she was entitled to benefit under the concession policy. The applicant remembered going to her interview with a relative but also – of some significance – with Ms Ma, an employee of Pam Baker & Co. 33.Before the interview, the applicant was given the opportunity, at her leisure, to state why it was that she believed she was entitled to benefit under the concession policy. In this regard, in part C of her form, she recorded that she had made a visit to the Immigration Tower ‘around early August 1997’. In respect of that visit she wrote the following :
34.In this statement, the applicant wrote of going to the ‘enquiry desk’. She gave details of the advice she received at that desk. However, she chose to write nothing of what took place on the 13th floor even though it was her case before me that it was on that floor that she attempted for the first time to make an actual claim for right of abode and, in oppressive circumstances, was denied the ability to record the basis of that claim. 35.Third, it was the applicant’s testimony that she appreciated that any claim for right of abode she wished to make would have to be based on her mother’s permanent residence. She went to the Immigration Tower on 12 August 1997, she said, intending to make that claim. However, she took no documentation with her to proof her mother’s residential status. Her explanation as to why she failed to do so was, in my opinion, unconvincing. 36.In respect of this failure to take with her evidence of her mother’s status, the applicant said that, upon arrival at the offices of the General Investigation Section (‘GIS’) on the 13th floor, she was given an ID 457 form. She completed much of the form, she said, while her son-in-law completed the balance. She specifically identified her own handwriting in completing the details of her mother. In doing so, she gave her mother’s name; stated that her mother was 80 years of age and gave her mother’s address. She did not, however, put anything into the column which required a statement of her mother’s Hong Kong identity card number. Nor was there any evidence that she attempted to contact her mother. In this regard, it must be remembered that she was accompanied by her son-in-law, a Hong Kong resident, who may well have been able to find out the information for her. 37.I accept of course that there was no reason for the applicant to accord any significance to the ID 457. The point I make is that, if the applicant intended to make a claim based on her mother’s residential status, it is puzzling that she took no evidence of that status. 38.As to events at the offices of GIS, more particularly the interview itself, the applicant said that she went into the interview alone. Two immigration officers interviewed her, she said, a male and a female. To the best of her memory, they were the only officers in the room. She could not recall any other interview being conducted in that room at the same time. 39.When it was put to the applicant that she had been interviewed by one officer only; namely, Ms Chow Wing Man; that this had been the invariable procedure and, in addition, that there was no record of any other interviewing officer, the applicant was still not prepared to concede that her memory may have failed her. 40.The applicant said that, being unable to speak sufficient Cantonese, she expressed herself in heavily accented Putonghua. However, the officers appeared to understand her. 41.The applicant testified that one of the officers asked why she had overstayed. She replied to the following effect : ‘I overstayed because my mother is old and not in good health. She has also had Meuniere’s disease.’ The applicant said that she continued by saying : ‘I heard people say that the children of Hong Kong residents can settle in Hong Kong. Is that the case?’ According to the applicant, the two officers told her that there was no such ‘matter’; that is, no such procedure. 42.The applicant said that she was handed a ‘grounds for non-removal’ form together with another paper on which were written certain characters. She was told to copy the characters onto the form. 43.The applicant testified that she was not willing to do this. She said that she told the interviewing officers that the characters did not represent what she wished to say. The male officer, however, told her not to complicate matters and simply to copy. 44.The applicant said that she was frightened. She did not dare contradict the interviewing officers, she said, for fear of a heavier punishment being visited on her. In the circumstances, she simply copied the characters. The contents of the applicant’s ‘grounds for non-removal’ form are to the following effect :
45.This is, of course, a familiar litany. Character for character, it follows what many other overstayers wrote. As such, in my view, it is beyond argument that the characters were either copied or suggested to her. 46.But what must be remembered, of course, is that the ‘grounds for non-removal’ form was intended to be used for administrative purposes only. It was not seen, not by immigration officers anyway, as being quasi judicial, the process of writing on it being akin, for example, to writing out a cautioned statement. On all the evidence that has been placed before me in a great number of hearings, it is plain, from the perspective of the great majority of immigration officers, that two questions needed to be canvassed : why had the interviewee overstayed and was he or she prepared to be repatriated? 47.The essential question, therefore, is whether, in completing this administrative document, the applicant at the time wished in fact to write something else but was actively prevented from doing so or whether, having explained that she had overstayed in order to care for her mother, and recognising that her surrender was inevitable, she was content, as a convenient form of ‘shorthand’, to write out the characters either placed before her or suggested to her. 48.In her testimony, the applicant said that, if she had been given the opportunity to write what she wished to write, she would have written much more. She would have written characters to the following effect; namely, that she wished to stay ‘because my mother is old and she needs me to take care of her. She suffers from Meuniere’s disease and as a result she has fallen down.’ The applicant said that she would also have written characters to the following effect : ‘Why can I not stay in Hong Kong despite the fact that after 1 July 1997 children of Hong Kong residents are allowed to stay here?’ 49.This question presumably was to be understood in context not to be simply an enquiry but rather a stated claim for right of abode. That itself, I consider, uncertain. 50.But that the applicant – at the time of her interview – had wished to say those words, and could still remember them, was, in my judgment, an exercise in wishful thinking. If those words had remained with her over all the years, why had she made no mention of them in her interview with the Removal Special Project Sub-Division in the year 2000? 51.The applicant’s evidence generally was unconvincing, smacking constantly of invention. By way of illustration, in cross-examination she was referred to a statement she had made in 1996 when she had been subject to essentially the same administrative process as an overstayer. On that occasion characters to the following effect had been written by her on her ‘grounds for non-removal’ form :
52.When questioned on this, the applicant said that this detailed, very specific statement had been written against her will; in effect that it was made up by the interviewing officer. On this occasion, she said, she had told the interviewing officer that she had overstayed in order to care for her mother. The officer, however, had ignored her statement and dictated to her what she must write. On this first occasion too, she said, she told the officer that this was not her true reason. But she did not dare protest further. On this first occasion, she said, she had been so frightened she ‘almost shivered’. 53.I accept of course that on both occasions the applicant would have been in a state of some anxiety. She was after all subject to the risk of prosecution. I do not accept her contention, however, that on the first occasion also she was forced against her will to write characters. What would have been the purpose? It was not as if on that occasion she was claiming a right to remain in Hong Kong. No such right attached to her prior to 1997. It was plain to me that the applicant felt – for some misguided reason – that it would not fit with her complaint as to the later interview process if she accepted that the earlier interview process had been regular. 54.In light of the applicant’s assertion that she had been interviewed by two officers, her counsel suggested to Ms Chow, the officer who was recorded as being the single interviewer, that she had not in fact been the interviewing officer. It was suggested that she had instead been called in towards the end of the interview in order to witness documents and thereafter – as a female officer was always required to fingerprint a female overstayer – to take the applicant away for fingerprinting. It was put to Ms Chow that, with the pressure of numbers in August 1997, it may have been more convenient for her to be called in towards the conclusion of the interview process before taking the applicant away for fingerprinting. Ms Chow disputed this. 55.To my memory, this was the first time that it was put to a member of GIS that, if pressures were great, interviews would have been conducted on some sought of ‘tag team’ basis with one officer starting them and another finishing, no record being kept of the first officer’s involvement. In my judgment, outside of the applicant’s assertion, which I do not accept, there was simply no basis for putting such a suggestion. 56.For the reasons given, I have had no difficulty in coming to the conclusion that the applicant did not make a claim for right of abode on 12 August 1997. In my judgment, the probabilities lead very much to the conclusion that the applicant’s surrender was simply that and no more. 57.As to the matter of a record, it was accepted that there was no record. It was submitted, however, that, as the applicant had been prevented from recording her claim by the oppressive conduct of the Director’s officers, the Director was estopped from denying the existence of any record. 58.While I accept that the applicant must have been guided in the completion of her ‘grounds for non-removal’ form, I reject the assertion that she wished to write something else – and would have done so – if she had not been the subject of oppression. That, in my judgment, is at best a gross post-rationalisation, effectively an invention. 59.Accordingly, my determinations are as follows :
Madam Yang Xiu Hua (4058, a ‘group one’ applicant) 60.The applicant was born in Fujian Province in 1963, one of four children. Her father settled in Hong Kong in 1973, her mother following him in 1984. When the mother came to settle in Hong Kong, she was only able to bring one child with her. The applicant was not chosen. 61.The applicant visited her parents in Hong Kong in 1987 and 1992. She came for a third time in March 1997, being permitted to remain until 27 April 1997. When she made the third visit she was a married woman with a child. On this third occasion, she overstayed. Like so many others from Fujian Province, the applicant had heard rumours that, when the change of sovereignty took place, children of Hong Kong permanent residents would be given the right to settle here. 62.In the days following the change of sovereignty, the applicant said that she came to appreciate (by watching the news on television) that the rumours of a general amnesty had proved false. But that being said, she also heard that some people from Fujian had received permission to remain. 63.In early August, she said, her father, Mr Yeung Tun Lang, went to the Immigration Tower to make enquiries on her behalf. He reported to her that it was not possible to apply for right of abode here in Hong Kong. 64.When, during cross-examination, the father himself was read the standard response given by officers at the enquiries counter at that time to questions concerning right of abode, he indicated that he remembered that words to that same effect had been said to him; namely, that all claims to obtain the right to live permanently in Hong Kong had to be processed on the Mainland. 65.Despite what must have been a clear report from her father that, if she wished to seek the right to live permanently in Hong Kong, she would have to return to the Mainland to process her claim, the applicant said that she remained uncertain of the true position. This was because she was receiving conflicting reports from other sources, more optimistic ones. In the days following the change of sovereignty there were, of course, a good many rumours circulating. 66.In the result, said the applicant, on 12 August 1997, she and her father went to the Immigration Tower to see if it was now, in fact, possible to pursue a claim for right of abode in Hong Kong. As the applicant put it in her affirmation of 28 September 2006, if the worst come to the worst, she would just have to return to the Mainland. 67.The applicant said that she and her father went initially to the enquiries office on the 2nd floor from where they were directed to the offices of the General Investigation Section (‘GIS’) on the 13th floor. If fresh enquiries had been made at the enquiries office as to claiming right of abode, then, of course, the applicant would have learnt that there was no change in immigration policy. 68.The applicant, as I have said, was directed to the offices of GIS. Upon arrival at those offices on the 13th floor, she said that she and her father approached the reception counter. The applicant said that, as her Cantonese at that time was rudimentary, her father spoke on her behalf. 69.In the case summary prepared for the applicant in 2000 by Pam Baker & Co., the exchange at the reception counter of GIS was described in the following manner :
70.In his affirmation made on 28 September 2006, relatively shortly before the hearing, the father described what happened in the following terms :
71.The applicant adopted this statement by her father as being in accordance with her recollection of events. In her affirmation (of the same date as the father’s) she added :
72.In his testimony, the father was not as certain as to events as appeared in his affirmation. When he testified, although in the first instance he said that he told the officer at the counter that he was a permanent Hong Kong resident and was requesting right of abode for his daughter, later, during the course of cross-examination, he appeared to suggest that in fact he did not speak at all or, if he did, did not say much, letting his daughter speak instead. 73.The father came across as an apologetic witness, easily confused. Understandably, the father had difficulty recalling events from so long ago. Indeed, towards the end of his cross-examination, he was asked if the events in question had happened so long ago that he could not remember what, if anything, he had said that day. He replied to the effect : ‘That’s right. Really, I cannot remember.” 74.The applicant confirmed that at the reception counter she was given an ID 457 form to complete. In respect of this form, she said, she recorded some details before she was interviewed and added extra details during the course of the interview itself. In this regard, the ID 457 shows that two pens were used, a felt-tip and a biro. 75.As to the personal data included in the ID 457, while the names of the applicant’s father and mother, together with their Hong Kong address, were recorded, there was no record of their residential status. The father’s ID card number was not entered even though it was the applicant’s case that he was there with her. 76.Towards the very end of her testimony, when questioned on the point, the applicant asserted that during her interview at the offices of GIS, she had asked to go outside to her father to obtain his ID number so that it could be recorded on the form but had been refused permission. 77.As to the interview itself, the applicant testified that she was asked by the interviewing officer, Ms Chow Wing Man, why she had overstayed. She replied, she said, to the effect that she had overstayed in order to look after her mother and father and had also waited because she wanted an amnesty, one which she had hoped would materialise on 1 July 1997. 78.Initially, I had some difficulty in understanding whether the applicant was saying that the context of her answer had been historical only; that is, an explanation of why she had overstayed, or whether she was saying also that during the interview she made a claim to remain in Hong Kong. In her affirmation of 28 September 2006, the matter was left unclear. The applicant wrote : ‘When it came to filling out the ‘grounds for non-removal’, I told the officer that I wanted to put down that I remained staying in Hong Kong because I intended to wait for an amnesty.’ 79.In the course of her examination-in-chief, however, the applicant asserted that she told the officer she wanted to apply for right of abode. The officer, she said, replied to the effect that there was no such thing and that she must go back to the Mainland to apply. In short, in the final analysis, as I understood the applicant’s evidence, it was to the effect that she not only explained to the officer that she had overstayed hoping to be able to claim right of abode but told the officer that she still wished to make that claim. 80.The applicant testified that the interviewing officer, Ms Chow, prevented her from writing what she wanted to write on the ‘grounds for non-removal’ form. The interviewing officer, said the applicant, had a stern and abrupt way about her. In her affirmation, she compared the interviewing officer’s manner with that of a Mainland police officer giving orders. The interviewing officer reproached her, said the applicant, saying words to the effect that she had overstayed and breached the law and that she could not apply for right of abode and that she must return to the Mainland. 81.According to the applicant, the interviewing officer then instructed her to complete a ‘grounds for non-removal’ form by copying characters from a paper which she provided. The applicant said that the officer told her that, if she did not copy as she was instructed, she would be sent to jail. 82.The applicant testified that, if she had been free to write what she wished, she would not have written the characters she was directed to copy. However, she was very frightened at the time and believed that she had no alternative. In the result, said the applicant, she copied the characters, those characters being to the following effect :
83.The characters written by the applicant followed a familiar format. Clearly, they were dictated to the applicant or copied by her. But as I have made clear in a number of reports, it does not follow that the applicant was, by that fact alone, forced to write against her will. The process was administrative. Many interviews were conducted each day, invariably in an office with other officers conducting other interviews. A great many persons were doing no more than surrendering themselves and quite prepared at the time, especially if not highly educated, to receive assistance from the interviewing officers. 84.According to the applicant, however, she was not simply surrendering herself. She (like many others at that time) wanted to claim right of abode and would have written that down if she had not actively been prevented from doing so by the oppressive conduct of the interviewing officer. If the applicant is believed, her experience transcended natural anxiety or uncertainty. 85.Yet, only some three years later, in the case summary prepared for her by Pam Baker & Co., the matter was left ambiguous. The case summary was to the following effect :
86.While I appreciate that the case summaries prepared by Pam Baker & Co. were in no way exhaustive, what makes the lack of any direct mention puzzling is that the applicant testified that the interviewing officer made her so angry that, when she rejoined her father, she immediately complained to him. 87.If in fact the interviewing officer acted as the applicant testified, her anger would be understandable. Injustice rankles. It is also understandable perhaps that the case summary – a superficial document – made no mention of her mistreatment. But in June 2000, the applicant was interviewed by the Removal Special Project Sub-Division of the Immigration Department in order to assess whether she qualified under the concession policy and nothing was said in those interviews of her desire to claim right of abode or the oppressive manner of its frustration. 88.It is clear that persons attending the interviews had as much time as they wished before attending to frame the nature of their claim in detail. The applicant testified that at the time she was aware of the importance of the opportunity given to her. She said that she had written out the characters herself and that a friend had copied those characters onto the interview form. However, all that was recorded was the following :
89.As I understand it, therefore, the first direct written assertion of oppressive conduct was made in the applicant’s affirmation made a few weeks before the hearing. 90.In my judgment, the probabilities clearly indicate that the short statement appearing in the interview form reflects the truth of the matter. On 12 August 1997, knowing that there was no way of claiming right of abode through official immigration channels in Hong Kong, the applicant did no more than surrender herself in order to return home. 91.It is to be remembered that, when she went to the Immigration Tower that day, the applicant knew that the rumours of an amnesty had almost certainly proved false. Her father had made enquiries for her and would have reported that any claim for right abode would have to be made back on the Mainland. 92.In addition, it must not be forgotten that the applicant had a husband and young child waiting for her on the Mainland. 93.As for the allegations of misconduct on the part of the interviewing officer, I am satisfied that the misconduct described was at worst an invention, at best a gross exaggeration. 94.It is true that, when the father testified, he remembered that the applicant had complained to him about the way in which she had been treated in her interview. He said he thought of complaining but did not know where to do so. In the result, he did nothing. The father’s evidence, in my judgment, was an invention made to harmonise with his daughter’s testimony. 95.On a consideration of all the evidence, therefore, I have had little hesitation in concluding that neither the applicant nor her father had claimed right of abode. No doubt they greatly wished they had claimed. But I am satisfied they did not. 96.As to the issue of a record, it was accepted on behalf of the applicant that there was no record. However, as with applicant 3085, Madam Sze Lai Ha, whose report appears before this, it was submitted that, as the applicant had been prevented from recording her claim by the oppressive conduct of Ms Chow, the Director was estopped from denying the existence of any record. 97.I accept that the applicant was guided in the completion of her ‘grounds for non-removal’ statement. That guidance no doubt consisted of being asked to copy what was written. I also accept that the applicant would have been in a state of some anxiety; nervous of official power. It may well be that Ms Chow, dealing with a short, administrative interview, was a little curt. But I do not accept that there was the oppressive conduct of the kind described. If the applicant had been determined to write what amounted to a claim for right of abode, with a modicum of courage, I am satisfied she would have been able to do so. 98.The applicant – like others – spoke of a determination to claim right of abode and yet nothing, direct or indirect, is recorded. The melting away of the determination is blamed entirely on the bullying, over-bearing manner of the interviewing officer. That, on the evidence in this case, I do not accept. 99.Accordingly, my determinations are as follows :
Madam Tse Lai Yuk (3350, a ‘group one’ applicant) 100.The applicant was born in Fujian Province in 1959, one of seven children. The family were from a rural background. The applicant’s mother came to Hong Kong in 1980, being joined by the applicant’s father in 1984. At the change of sovereignty both the parents enjoyed permanent residence. 101.It was the applicant’s case that, having been arrested on 28 November 1997 as an overstayer, she claimed right of abode on two occasions. The first occasion was at a police station when being interviewed under caution. The second occasion was at the Victoria Immigration Centre when she was again being interviewed. As it was, only the second asserted claim was formally made the subject of the application. 102.On behalf of the applicant, it was accepted at the outset of the hearing that there was no record of any claim made by her. It was submitted, however, that the Director was estopped from denying the existence of a record. Estoppel on this occasion was not founded on the assertion that the Director’s officers had, by their oppressive conduct, prevented an applicant from creating a record. On this occasion, it was said that the applicant was illiterate and at all times only able to converse in the Fuquing dialect. She could not understand any other tongue. It was submitted that, by not supplying an interpreter with an understanding of Fuquing, the Director had prevented the applicant’s claim not only from being properly understood to be a claim but, critically, from being recorded at all as a claim. The fact that there was not a record was due entirely to the omission of the Director. As such, the Director could not seek now to rely on the lack of a record to exclude the applicant from benefiting under the concession policy. 103.In response, on behalf of the Director, it was submitted that it was wrong to say that the applicant spoke only Fuquing. The evidence showed that she could converse adequately enough in Putonghua – certainly for the purposes of a relatively short administrative interview – and, in so far as it was relevant, had some basic knowledge of Cantonese too. 104.The language ability of the applicant was therefore the central issue in dispute. In the result, a good deal of time was spent focusing on the applicant’s various dealings with the Hong Kong authorities and the degree to which those dealings revealed the extent to which the applicant was able to make herself understood in Putonghua and/or Cantonese. 105.The applicant first came to Hong Kong to visit her parents in October 1992. By then she was a married woman. The applicant’s two-way permit allowed her to remain until late December of that year but she overstayed. She did so, she said, to look after her father who was not in good health. Her father was, in fact, to die some eight years later in the year 2000. 106.The applicant did not overstay for just a few months. She remained in Hong Kong until November 1996 when she was arrested. Although she had lived for four years in a city where the predominant language was Cantonese, the applicant said that she spoke only Fuquing with her parents and, as she spent nearly all her time in their home looking after them, she learnt no Cantonese of any significance. 107.It should be mentioned that in 1994 the applicant’s husband also came to Hong Kong. He overstayed too, being sent back to the Mainland in August 1997. I shall refer to the (peripheral) significance of this fact later. 108.It was the applicant’s testimony therefore that, when she was arrested here in Hong Kong in November 1996, she spoke only the Fuquing dialect and understood only that dialect. 109.A record shows, however, that after the applicant’s arrest; when she was prosecuted at Western Magistracy, being fined $3,000 and given a prison sentence of four months suspended for two years, the court proceedings were interpreted to her in Putonghua. 110.The prosecuting officer in the 1996 court proceedings was an Immigration Officer, Mr Dominic Au Yeung. Mr Au Yeung said that, on his reading of the relevant documentation, it was apparent that the court proceedings had been conducted in Putonghua. The Form 19, he said, was typed with the endorsement ‘speaks Mandarin’. If, in fact, that had been wrong and another interpreter had been required, he would have made a handwritten change to that endorsement. In that regard, Mr Au Yeung was referred to just such a handwritten change, this being in respect of a prosecution which took place on 21 November 1996. 111.Mr Au Yeung said that, if the applicant had not understood Putonghua, the language used in the proceedings, that would have become apparent to the interpreter who would have informed the magistrate and the matter would certainly have been stood down until a Fuquing interpreter could be obtained. That evidence – going to regularity of process – was, in my view, of some relevance. 112.After her prosecution and repatriation, it was the applicant’s testimony that she was able to return to Hong Kong a year later. That return, she said, was originally motivated by rumours that, upon the change of sovereignty, there would be amnesty permitting the children of Hong Kong permanent residents to settle here. Later, she said, she learnt that her father’s health was deteriorating. 113.In the result, the applicant returned to Hong Kong on 27 October 1997, her two-way permit allowing her to remain until 24 November 1997. 114.When the applicant arrived in Hong Kong in October 1997, she could not have been too hopeful of being able to claim right of abode. She admitted that before her arrival her father had made enquiries on her behalf with the Hong Kong authorities and had been informed that any claim for right of abode would have to be processed on the Mainland not in Hong Kong. 115.It was nevertheless the applicant’s case that several days after her arrival, she went with her mother and her father to the enquiry office on the 2nd floor of the Immigration Tower to enquire if she could be given right of abode. Her parents, she said, showed their permanent identity cards. They were informed, however, that any application for right of abode would have to be processed on the Mainland. 116.The applicant, however, did not return to the Mainland. She overstayed again. On this occasion, however, she was arrested just four days after her two-way permit had expired. 117.After her arrest on 28 November 1997, the applicant was taken to a police station where she was interviewed under caution. The police officer who interviewed the applicant testified that he did not speak or understand Fuquing. If he had been unable to communicate with the applicant, he said, he would have sought some assistance but did not do so. I have no reason to disbelieve the officer. 118.The applicant testified that she could not make herself understood in Cantonese. Insofar as there was any dialogue between herself and the interviewing officer, she said, she spoke in Fuquing. She had no idea whether the interviewing officer understood her and, being illiterate, was unable to read the characters which he recorded on the record of interview form. 119.If the interviewing officer spoke no Fuquing and the applicant, as she asserted, spoke nothing other than Fuquing there would of course have been almost total mutual incomprehension. In such circumstances it is still feasible, I suppose, that some sort of statement, general in its content, may have been put together. But it is difficult to see how anything of any particularity could have resulted. Yet the cautioned statement is particular. It records a detailed set of events, one which it is difficult to imagine the interviewing officer simply making up, especially knowing that the applicant would be passed on to the Immigration Department for further processing. In part, the record is to the following effect :
120.In respect of this interview, in the case summary prepared by Pam Baker & Co. for the applicant in 2000, the following was said :
121.It was the applicant’s case that these gross errors in the cautioned statement evidenced the fact that the interviewing officer and the applicant had been unable to understand each other. 122.On behalf of the Director, however, it was argued that, if there were any factual errors, they had not arisen out of a lack of understanding but would have been intended by the applicant. Put simply, that she would have purposefully told a false story to reduce her moral culpability in overstaying and, if possible, to ensure that her parents remained uninvolved. This the applicant denied. Other evidence, however, revealed that she was prepared to make false statements. I will look to that other evidence shortly. 123.As I indicated earlier, the applicant testified that during the interview she made a claim for right of abode. Although she did not state exactly when this occurred, she said that, speaking in the Fuquing dialect, she told the arresting officer that it was now 1997, that she had right of abode and that she hoped to be able to stay in Hong Kong in order to look after her mother and father. This asserted claim, however, was never made part of the applicant’s case. 124.The applicant was kept in custody at the police station overnight and the following day was transferred to the Victoria Immigration Centre (‘VIC’). It appears that the applicant spent two nights at the VIC, being interviewed on the second day; that is, on 30 November 1997. 125.In the course of that interview a ‘grounds for non-removal’ form was completed together with a form giving her family details. The interviewing officer was Mr David Yeung Chi Wai, an Immigration Officer attached to the processing unit at the Centre. Mr Yeung was assisted by an interpreter, Mr Sae Lim Po Lin who was qualified to interpret in Putonghua, Minan, Chiu Chow and Hoklo. 126.Both Mr Yeung and Mr Sae said that they could not speak Fuquing nor could they understand it. 127.According to the applicant, when the interview took place, she made a clear, almost formal claim for right of abode. On more than one occasion during the course of her testimony she recited – on each occasion almost word for word – what she had said. She gave the interviewing officer her parents’ names, their years of birth and when they came to settle in Hong Kong, stating that they were now permanent residents. She told the interviewing officer, she said, that now that Hong Kong was united under Chinese rule and she had right of abode, she wished to remain in Hong Kong in order to look after her parents. 128.The contents of the ‘grounds for non-removal’ from, however, bear no resemblance to this asserted statement. The form is endorsed to the effect that the contents were given by the applicant orally and recorded by the interpreter, Mr Sae. The contents are to the following effect :
129.It will be seen that this statement asserts the loss of the applicant’s two-way permit, the earlier cautioned statement also asserting a loss. 130.It was the applicant’s case that the reason why she must have been so completely misunderstood lay in the fact that she and the interpreter had barely been able to understand each other. According to the applicant, the interpreter had spoken to her in the Fuquing dialect but so heavily accented that she could barely understand him. When it was put to the applicant that the interpreter, Mr Sae, had in fact spoken to her in Putonghua and had obtained her answers in that language, she denied that it would have been possible. If he had spoken Putonghua, she said, she would not have understood him, except perhaps for a phrase or two. 131.As to the manner in which the ‘grounds for non-removal’ form was compiled, Mr Yeung, the officer who conducted the interview, readily accepted that, when he acted as the interviewing officer, he would rarely recite word for word what an interviewee told him. The process was a fairly quick and simple one, he said. Questions would be asked and from the ‘overall content’ of what was said in reply, a relevant statement would be recorded. The form, he said, was not intended to be a record of interview. It was simple in scope and intended only for administrative purposes. Of course, if an interviewee wished to say something in particular he would be allowed to do so. Whatever was written on the form, said Mr Yeung, would either be read by the interviewee or read to him. If the interviewee required changes, then changes would be made. When the interviewee was satisfied with the contents of the document he would be asked to sign it. 132.Mr Yeung said that he himself spoke Putonghua. However, if an interviewee was illiterate, it was his custom to have an interpreter present, the interpreter being a third party who would not only interpret but would write for the interviewee. 133.I found Mr Yeung to be an entirely credible witness; sensible, reasonable, in no way defensive under cross-examination. 134.The interpreter, Mr Sae, was also called to testify. I found him also to be a credible. He was far more talkative, clearly keen to expound on the nature of his profession and his knowledge of languages. It was suggested by counsel for the applicant that he was arrogant. I did not find that to be the case. Yes, he reacted with some emotion. He was plainly stung by any allegation that, as an independent interpreter, he would have compromised his professional integrity in the manner alleged by the applicant. 135.Mr Sae testified that he had worked as a self-employed interpreter for 30 years or more, offering his services to a number of government departments. He said that he spoke the Minan dialect, a dialect spoken in Fujian Province. But that did not mean, he said, that he had any competence in Fuquing, a dialect spoken in a different part of the same province. The one dialect, he said, was not simply a variation of the other. He rejected any suggestion that Minan, the dialect he spoke, was just a ‘heavily accented’ version of Fuquing, the applicant’s dialect. 136.Mr Sae said that if the applicant, as she asserted, could only speak Fuquing, he would not have acted as interpreter. 137.Mr Sae said that, if he was not able to interpret the native dialect of an interviewee, he would check to see if the interviewee could speak Putonghua. If so – as in the present case – the interview would be conducted in that language. 138.The ‘grounds for non-removal’ form bears an endorsement in Mr Sae’s writing to the following effect : ‘Speaker of Fuquing dialect.’ That endorsement, said Mr Sae, did not mean that the interview had been conducted in Fuquing dialect. The endorsement, he said, was part of his practice at the time to advise the prosecuting authorities who would thereafter be dealing with the applicant that the applicant’s native dialect was Fuquing and that she may, in any criminal proceedings, wish to have an interpreter in that dialect. Mr Sae explained that in the magistracies Putonghua interpreters could always be found but not necessarily interpreters of dialects such as Fuquing. The endorsement was therefore no more than a warning note. 139.During the course of his testimony, Mr Sae spoke of travelling in Fujian Province and being aware that, even in the rural areas, Putonghua was widely spoken. While that was, of course, of some relevance, it did not follow that the applicant herself must have spoken Putonghua. 140.During the course of the interview process, a personal data form was also completed. The applicant said that this form contained a number of errors – proof again of the communication difficulties that must have resulted from the lack of a common language. 141.The applicant insisted, for example, that she told the interviewing officer that she had four children, three daughters and one son. However, only two children were recorded on the personal particulars form. On behalf of the Director, it was put to the applicant that this had not been an error but had been an intentional omission on her part to avoid any risk of the Mainland authorities discovering that she and her husband had not adhered fully to the one child policy. This was denied. 142.In my judgment, however, the probabilities suggest that the applicant was careful, when giving her personal and family particulars, not to divulge information which may perhaps cause her difficulties in future. 143.Although, of course, the actions of the husband cannot be attributed to the wife, it is of some oblique relevance, I think, that the husband, when he completed a similar form in 1997, only gave the name of one child although all four would have been born by then. 144.Of direct relevance, when the applicant herself returned to Hong Kong in July 1999 and completed an ID 457 form, she mentioned the names only of two children, not four. 145.The applicant herself accepted that she was prepared to put false information on a form. For example, one of the forms in the archives of the Immigration Department contained an endorsement written on her behalf to the effect that she had primary education. This, she admitted, was not true. She had no education. She had asserted primary education, she said, to save face. 146.After her arrest on 28 November 1997, the applicant was not prosecuted. I am told that the policy at the time provided that those who had overstayed for less than a month would not have to endure court proceedings. 147.In my judgment, considering the evidence as a whole, the probabilities strongly suggested that in November 1997 the applicant had a sufficient working knowledge of Putonghua to be able to make herself understood. I was satisfied that the interview conducted at the VIC was conducted in Putonghua and that the applicant was able to make herself understood in that language. I rejected the assertion that the applicant had made a formal claim for right of abode in the Fuquing dialect. I am satisfied no such claim was made. 148.As for the applicant herself, it was plain to me that, while she was uneducated and struggled to comprehend conceptual issues, this was not to say that, at a practical level, she was devoid of wit. The applicant knew full well that her case rested on the allegation that she had been denied the right to have her representations accurately and fully recorded. No matter what evidence was placed before her, she would not therefore be budged from her assertion that, apart from a phrase or two, she had no understanding of Putonghua or Cantonese. That refusal, in my judgment, was manifestly tactical and did not reflect the truth. 149.Accordingly, my determinations are as follows :
Mr Tse Chung Ching (3343, a ‘group one’ applicant) 150.The applicant was born in Fujian Province in 1969, one of five children. His father came to Hong Kong in 1978, remaining here until his death in 1994. His mother was permitted to settle in Hong Kong in 1989, bringing the two youngest children of the family. At the change of sovereignty she was a permanent resident. 151.It was the applicant’s testimony that he had applied on two occasions to the Mainland authorities for permission to join his parents in Hong Kong but both applications had been unsuccessful. 152.Like so many others, the applicant said that, several months before the change of sovereignty, he heard rumours that, after the change of sovereignty, an amnesty would be granted to the children of Hong Kong residents, enabling them to settle here. That was why, he said, he applied for a two-way permit. He arrived in Hong Kong with his wife on 2 March 1997, being permitted to remain for three weeks. 153.Both overstayed. His purpose in overstaying, said the applicant, was to ensure that he was in Hong Kong when the handover took place so that he could benefit from the rumoured amnesty. 154.The applicant testified that in May, several weeks before the change of sovereignty, his wife, who was not the child of a Hong Kong permanent resident, decided to surrender herself to the authorities and was returned to the Mainland after payment of a fine. The applicant remained. As he put it, he wished to ‘fight for the right of abode’. In fact, the applicant’s memory as to when his wife surrendered herself was not correct. The records show that wife did not surrender herself until July 1997, after the handover. However, nothing, in my opinion, turned on that. 155.It was the applicant’s case that on two occasions prior to the handover, while he remained in hiding as an overstayer, his mother and younger sister made enquiries with the immigration authorities as to his entitlement to settle in Hong Kong once the change of sovereignty had taken place. On both occasions they were advised that the applicant possessed no such entitlement. 156.In the days following the change of sovereignty, the applicant said that he learned (from television and the newspapers) that there had been demonstrations by people in his position. This, he said, spurred his own desire to ‘fight for right of abode’. 157.He said that he asked his mother and his sister to make further inquiries with the immigration authorities. Although the mother did not recall making any inquiries after the change of sovereignty, it was the testimony of both the applicant and his sister that the mother and the sister together went to the Immigration Tower where they were informed that no application to settle in Hong Kong could be made by the applicant and that no further extension of permitted stay in Hong Kong would be granted to him. 158.The applicant further recalled that, either shortly before or shortly after the change of sovereignty – he could not be entirely sure as to when it was – he read a notice in a newspaper published by a firm of solicitors offering advice on the right of abode issue. He said that he telephoned the lawyers but was informed that no claim to settle in Hong Kong could be made ‘for the time being’. 159.On 3 September 1997, the applicant surrendered himself to the General Investigation Section (‘GIS’) on the 13th floor of the Immigration Tower. It was on this occasion, he said, that he made a ‘last ditch’ attempt to claim right of abode. 160.I am satisfied, as I have recognised in a number of other applications, that ‘last ditch’ claims were no doubt made. But in the applicant’s case, his assertion that he intended to make a claim, as opposed to merely surrendering himself so that he could go home, must be viewed, I think, with some hesitation. I say that for the following reasons :
161.This evidence, in my view, tends to suggest that, in truth, in September 1997 the applicant had accepted what he then saw as the inevitable and surrendered himself so that he could return home to a normal life. He had every reason to do so. His living conditions were dire, he was separated from his wife and children and he knew that the right of abode issue was not going to be quickly resolved. 162.It was the applicant’s case that, when he surrendered himself at the offices of GIS on 3 September 1997, he did so in the company of both his mother and his younger sister. He was supported in this contention by the testimony of these two women. 163.However, the case summary prepared for the applicant in the year 2000 by Pam Baker & Co. describes an entirely different scenario, one in which the applicant was alone when he surrendered himself. In this regard, the relevant portion of the case summary reads :
164.I appreciate that caution must be exercised when looking to the accuracy of these summaries. Pam Baker & Co. were under pressure at the time to compile a large number of summaries. The contents of these summaries were not checked with their authors. In any event, the summaries were not meant to be exhaustive. However, in the present case, both the applicant and his sister recalled a visit to Ms Ma at Pam Baker & Co. for the specific purpose of giving instructions in respect of the case summary. The applicant’s sister said that she sat with the applicant when instructions were given. She said that, if anything had been said which she knew to be wrong, she would have intervened. 165.In such circumstances, it is difficult to imagine how the case summary could speak of the applicant being arrested and then delivered by the police to the Immigration Tower if in fact there was no involvement at all on the part of the police and the applicant made a planned visit in the company of his mother and sister. 166.During the course of the hearing, it was put to the sister that neither she nor the applicant’s mother had accompanied the applicant that day. This she denied. However, I confess to having considerable doubts as to whether they did in fact go with the applicant. 167.The sister, for example, when she was questioned on matters that fell outside of her witness statement, and therefore outside of the narrow confines of her supporting written evidence, asserted at least one matter of some importance that was inconsistent with the testimony of the applicant. 168.It was the applicant’s testimony that, having undergone processing at the offices of GIS on 3 September 1997 he was given a recognizance form which enabled him to return home in the company of his sister and mother. Indeed, at one stage the applicant went so far as to suggest that his understanding at the time was that this recognizance acted as some kind of official recognition that he did have right of abode, a matter which – naturally enough – pleased him. However, when the sister gave her evidence, she was specific in the assertion that she and her mother returned home alone that day and that her brother was taken immediately into custody by the immigration authorities. I appreciate that over a period of years memories do fade. However, the difference in recollection in this instance was stark. 169.At this juncture, it should also be said that I had considerable doubts as to the credibility of the applicant himself. The applicant gave his evidence in a calm, almost dull fashion. However, as his cross-examination progressed it became apparent that he was prepared to say almost anything which he believed would advance his case. 170.By way of example, admittedly in respect of a collateral matter only, it was put to the applicant that in 2001 he had been found working in an apartment and had been arrested. The applicant’s immediate reaction was to deny this. He had not been working, he said. He had done no more than go up to the apartment with his younger brother. The applicant however was then shown his cautioned statement made in 2001 in which he had admitted to working in the apartment, saying that he had been sent there by his brother who was not well and who had agreed a rate of pay with him. When confronted with this evidence by cross-examining counsel, the applicant could do no more than say that, in making his earlier denial, he had been ‘muddle-headed’. 171.As to events at the office of GIS on 3 September 1997, the applicant testified that he went to the reception counter in the company of both his mother and his sister. He produced his expired two-way permit and asked the officer on duty ‘if there would (or could) be an extension’. In his affirmation of 22 March 2006, he recalled saying words to similar effect; namely :
172.The applicant did not testify to any immediate exchange between himself and the officer. It was the thrust of his evidence, as I understood it, that he could not remember if there was any direct response. 173.Neither in his affirmation nor his testimony did the applicant assert that he had explained to the officer why he sought an extension of stay. As I understood the applicant’s testimony, it was to the effect that his purpose in making his request was to remain in Hong Kong until the right of abode issues had finally been clarified. I am aware, of course, that persons who applied for extensions of stay on the ground that they wished to await the outcome of the right of abode litigation have been included in the concession policy. But any application for an extension must have been on that ground. The applicant, as I have said, did not spell out to the officer why he was seeking an extension. The purpose for the request – if it is accepted that he made it – was not revealed. In the circumstances, I do not see how the request simpliciter can be classified as any sort of claim for right of abode. 174.It was the applicant’s testimony that the officer took his two-way permit and asked him to wait. She returned a few minutes later and gave him a form to complete, saying nothing as to the nature or purpose of the form. The form, it appears, was an ID 457, a form given to all persons surrendering themselves at GIS. 175.It was the applicant’s evidence that he filled out the ID 457 form at the reception counter itself. The applicant remembered that, while he was completing the form, his mother, who had not been well, complained that the air-conditioning in the reception area was too cold. The applicant’s younger sister therefore took his mother out into the corridor. The mother herself, when she testified, clearly remembered this incident. 176.According to the applicant, when he came to recording his mother’s personal details, as she was not present, he asked the officer at reception if it was necessary to record the details of her Hong Kong identity card. The officer replied that it was not necessary. In the circumstances, instead of going out into the corridor to ask his mother for her identity card, which would have been a relatively quick and easy thing to do, he merely recorded on the form that the details of her identity card were ‘unknown’. 177.I accept, of course, that the applicant could have had no idea of the later importance of the data contained in the ID 457. At the time it would have been filled out as a standard administrative form. I raise the issue, however, for two reasons. First, the applicant accepted that at the time he knew that any claim for right of abode rested on his mother’s residential status. In such circumstances, if his mother was with him at the time – and if he was determined to try to claim right of abode that day – it is puzzling why he would not have recorded evidence of her residential status. Second, the evidence given to the effect that, as he was filling out the form, his mother found it necessary to move away into the corridor, struck me as being simply too convenient to be true. In my judgment, it was evidence created to try and divert criticism that, if he really was seeking to claim right of abode, and if his mother was with him, surely he would have recorded the details of her identity card. 178.As for the requirement to record the mother’s Hong Kong address, the applicant put down only that it was ‘Hong Kong’. Earlier in the form, he had given his ‘communication address’ in Hong Kong but in doing so had recorded the address of an apartment in which his mother had lived earlier but no longer lived. 179.In short, nothing appeared on the face of the ID 457 form to indicate that the applicant’s mother – the applicant’s sole surviving parent – was a Hong Kong permanent resident or that the applicant hoped for an extension of stay because, as the child of a permanent resident, he had a legitimate interest in awaiting the determination of the right of abode issue. 180.After he had completed the ID 457 form, the applicant said that he was taken into an interview room. In this room, he said, a female interviewing officer, Ms Chow Wing Man, placed two forms in front of him. The first was a ‘grounds for non-removal’ form. The second was a card upon which were printed characters. The applicant testified that he was told to copy the characters on the card onto the ‘grounds for non-removal’ form. The interviewing officer said nothing to him before the instruction to copy was given and he said nothing to her. 181.The applicant said that he copied as instructed. He remembered that the words he copied were to the effect that he had overstayed in Hong Kong in order to remain with his family but that he now wished to return to the Mainland. Having copied these characters the applicant said that he then went on to write something extra, namely : “I want to stay in Hong Kong to look after my mother”. 182.When the interviewing officer read these extra characters, said the applicant, she became angry. She told him that he could not write this. If the applicant was to be believed, the statement he wrote would of course have been contradictory. On the one hand he would have written that he wished to return to the Mainland and on the other hand he would have written that he wished to remain to look after his mother. 183.According to the applicant, however, the interviewing officer, Ms Chow, did not ask him what it was that he wished to do, to go or remain. She did not explain the ramifications either way. She simply tore up the form and threw it into a waste paper basket. She then gave the applicant a new form, warning him not to add any words of his own. She told him that, if he did so, he would be held in custody until he had to appear in the magistrates court. 184.The applicant testified that, when it came to copying onto the second ‘grounds for non-removal’ form, he was not prepared to defy the immigration officer. He was afraid of the consequences. That form bears the following statement, a common form of words :
185.It was accepted that this second ‘grounds for non-removal’ form was not of itself capable of constituting a record of any claim for right of abode. 186.As I understand it, it was part of the applicant’s case that the form which was torn up and discarded was capable, under the concession policy, of constituting a record. The applicant could not be prejudiced by the fact that an officer in the Department, having received it, had chosen to destroy that record. 187.In my judgment, however, the allegation that the form was destroyed – in the circumstances asserted by the applicant – was an invention. I have little hesitation in rejecting it. 188.In any event, no claim for right of abode, even on the applicant’s evidence, was recorded on what was said to be the first form. What was recorded was a request to remain on compassionate grounds. 189.Towards the end of his testimony, when questioned by myself, although he had not earlier spoken of the matter, the applicant said that there had been an exchange between himself and the interviewing officer in which he had specifically raised the issue of right of abode. This exchange, he said, had taken place somewhere about, or between, the writing of the first form and its tearing up. 190.According to the applicant, Ms Chow, the interviewing officer, did, in fact, instruct him to record not only his birth date but why he had overstayed in Hong Kong. The applicant said that he replied that his main reason for wishing to stay in Hong Kong was to ‘fight for right of abode’. 191.If, in fact, Ms Chow did ask the applicant why he had overstayed, that would fly in the face of the applicant’s initial testimony that he was at the outset simply instructed to copy characters from a pre-written form. 192.The fact is that in the case summary prepared for the applicant in the year 2000 by Pam Baker & Co. it was recorded that Ms Wong did ask the applicant why he had overstayed :
193.It will be seen that the summary does not speak of Ms Chow, the interviewing officer, throwing any form into the waste paper basket. 194.In this respect, the applicant’s sister, in the course of her testimony, said that she knew – well before the visit to Pam Baker & Co. – that the first ‘grounds for non-removal’ form completed by her brother had been torn up and thrown into a waste paper basket. Her brother had told her about the incident. She said that she was with her brother when he gave his instructions for the preparation of his summary. She said that, if her brother had said something wrong, she would have corrected him. Yet there is no mention in the summary of Ms Chow discarding an already completed form. 195.In my judgment, much of the applicant’s case was invented or, if not invented, grossly distorted in order to create a substantive application. 196.On balance, I am satisfied that the applicant made no attempt to claim right of abode on the day of his surrender nor to make any other claim falling within the concession policy. What took place was a routine surrender. 197.Yes, I am sure that Ms Chow assisted the applicant in completing his ‘grounds for non-removal’ form. She may well have dictated the characters to be written or have provided some pre-written paper from which to copy. Perhaps even she may have acted in a waspish fashion. With standard interviews all day politeness can become worn. However, I emphasise again that these interviews were administrative in nature. Suggesting what to write or recording summaries were not of themselves wrong. Indeed at the time they may have been of genuine assistance. Of course, oppressive conduct (in all its forms) is another matter. In the present case, however, I do not think it has been shown that Ms Chow was in any way guilty of such conduct. 198.Accordingly, my determinations are as follows :
Madam Ng Mei Ling (2658, a ‘group one’ applicant) 199.The applicant was born in Fujian Province in 1967, one of five children. Her father came to Hong Kong in 1979, her mother following in 1991. When the change of sovereignty took place, only her father enjoyed permanent residence. 200.As with many other applicants from Fujian Province, it was the applicant’s testimony that in the months leading up to the change of sovereignty she learnt of rumours that, when the change took place, the children of Hong Kong permanent residents would be entitled to settle in Hong Kong. 201.It was the applicant’s case that, upon the urging of her parents, she applied for a two-way permit. She arrived in Hong Kong on 18 February 1997 with her family; that is, her husband and two children. They were permitted to remain until 12 April 1997. It was, however, their intention to remain until after the change of sovereignty in order to benefit from the rumoured amnesty. 202.In the days following the change, the applicant said that she saw on television that many people – adults and children – were queuing at the Immigration Tower in order, as she understood it, to pursue their claims for right of abode. Accordingly, said the applicant, on 8 July 1997 she and her husband went to the Immigration Tower to make their own claims. 203.On that day, she said, they went in the company of her father and her father-in-law. The two children were left at home. By 8 July 1997, the applicant and her husband had overstayed for a period of just under three months. 204.It was the applicant’s testimony that, enquiries having been made, they all went to the 13th floor to the offices of the General Investigation Section (‘GIS’). The offices were crowded. The applicant said that she and her husband were separated. She made her way to the reception counter with her father while her husband and his father reached the counter a short distance from them. 205.At the reception counter, said the applicant, her father took out his Hong Kong identity card – proof that he was a permanent resident – and showed it to the officer on duty. The applicant recalled her father saying words to the effect : “My daughter wants to remain”. Her father, when he testified, said that he asked the officer on duty if his daughter could stay in Hong Kong on a long-term basis. The applicant said that she took out her expired two-way permit and showed it to the officer. 206.According to the applicant and her father, the officer did not answer their request that the applicant be allowed to stay in Hong Kong on a long-term basis. Instead she studied the two documents given to her. 207.Although the applicant’s two children had their own two-way permits, it appears that the applicant’s document contained a notation to the effect that she was accompanied by her children. When the officer saw this notation, said the applicant, she asked where the children were. The applicant replied that they were at home. The officer then told her to go home and fetch them. 208.The applicant said she was handed back her expired two-way permit and she and her father made their way home, intending to return later that same day with the children. 209.However, while at home, the applicant said that she received a telephone call from her father-in-law to inform her that her husband, who had separately sought to remain in Hong Kong, had been arrested and was being repatriated. The news came as a shock. The applicant said that she decided not to return to the Immigration Tower that day with her children in case they suffered the same fate. 210.During the course of cross-examination, it was put to the applicant that her version of events could not be correct. If she had surrendered her expired two-way permit for inspection it would never simply have been handed back to her. It would have been kept and she would instead have been issued with documentation giving her temporary permission to remain in Hong Kong. 211.Evidence to this effect was given by the officer on duty at the reception counter, Ms Ko Wan Fung, an Immigration Assistant. Ms Ko had no independent recollection of events. She was only able to testify on the basis of her invariable practice. If an overstayer in the position of the applicant surrendered herself, said Ms Ko, and it appeared from her expired two-way permit that she was accompanied by children, and if those children were not with her, the matter would be referred to a superior officer. These were unusual cases and, as such, had to be referred to such an officer. 212.An overstayer such as the applicant might be given back her expired permit to go to another floor to have it photocopied, said Ms Ko, but no overstayer would be sent back onto the streets in possession only of an expired permit. As Ms Ko explained it, if an overstayer was sent away still in possession of an expired permit and was arrested by the police there would be no record that the overstayer had already attempted to surrender; no record, that is, in the possession of the overstayer or with the Immigration Department itself. 213.I had no difficulty accepting Ms Ko’s evidence as to the general practice. However, on or about 8 July 1997, so soon after the handover, officers of the GIS were still working under very considerable pressure. For example, many people who surrendered themselves at that time could not be processed the same day and had to be called back to be dealt with on another day. May it therefore have been the case that, under such pressure, Ms Ko chose to take what would have seemed to her at the time to be a practical shortcut and just sent the applicant home in possession of her expired permit to fetch her children? 214.Procedures are compromised. That is common enough. But, as Ms Ko made clear, releasing a person in the position of the applicant without regularising her residential status would have been no small matter. On a consideration of the evidence, I am not prepared to come to a finding that, having received the applicant’s expired two-way permit and studied it, Ms Ko simply gave it back, breaching what she would have known was a fundamental rule of procedure. 215.It was put to the applicant and her father that they had not gone to the Immigration Tower that day. Both denied the allegation. 216.The applicant was an emotionally fragile witness, one of the most emotional I have come across in the various hearings. At times she was verging on hysteria. I did not accept that her high emotion was evidence that she was telling the truth. There was evidence, to which I shall refer later, that the applicant was prepared to give evidence that was not accurate. But in respect of the visit on 8 July 1997, I detected a certain sincerity in the evidence of both the applicant and her father. In my judgment, while I could not come to any firm conclusion, I believe that the applicant and her father may well have been at the Immigration Tower that day. 217.As to whether or not the applicant and her father had a conversation with Ms Ko, perhaps even some form of guarded enquiry, is a more different question. The applicant has persisted in her version of events since at least 2000. It cannot be attacked as a recent invention. For example, the case summary prepared for the applicant by Pam Baker & Co. is to the following effect :
218.Why the applicant was present that day I cannot say. Perhaps it was just to be with the husband to see what would happen to him. Perhaps, as it turned out, she did make some guarded enquiry. I am satisfied on balance, however, that the applicant did not surrender her expired two-way permit and did not seek permission through her father to remain on a long-term basis in Hong Kong. 219.In any event, even if I am wrong in this regard, clearly there is no record of any claim made at the reception counter that day. 220.The applicant said that she returned to the Immigration Tower on 12 August 1997. This was approximately a month after her husband had been repatriated. During that month, said the applicant, her parents had tried to find out if there was any way in which people in her position could stay in Hong Kong. A friend, she said, informed them that it was possible to obtain an extension of stay. 221.On that basis, said the applicant, she went to the Immigration Tower in the company of her father, her father-in-law and her two children. They returned to the offices of GIS. Her father, she said, once again showed his identity card to the officer at reception while she again handed over her expired two-way permit. Both she and her father told the officer that she wished to remain in Hong Kong on a long-term basis. However, the applicant’s father testified to the effect, at least as I understood him, that the claim was not made with high expectations. “We just intended to go there to give it a try”, he said. 222.Neither the applicant nor her father spoke of any exchange with the officer at the reception counter concerning their claim. The applicant spoke of the officer studying the documents. She then spoke of being told to go to another floor to obtain photographs and have papers photostated. 223.While they had been at the reception counter, said the applicant, an ID 457 form had been given to her. This was left with her father-in-law to complete. When she and her father returned to the 13th floor, said the applicant, her father-in-law had completed the form. The applicant professed to having no understanding of the significance of the form. Neither she nor her father checked it. 224.The ID 457 form completed by the father-in-law gave no details whatsoever of the applicant’s parents. Instead, the father-in-law recorded his own details including his Hong Kong identity card number and his Hong Kong address. In the ‘instruction column’ on the left hand side of the form, he had written over the description ‘father and mother’ by putting the characters for ‘father-in-law’. 225.When the father-in-law, Mr Yeung Yan Hai, gave evidence, he confirmed that the purpose of the visit on 12 August 1997 was to see if it was possible for the applicant to settle in Hong Kong. If any such application was to be successful, he admitted, it had to flow from the fact that one of the applicant’s natural parents was a Hong Kong permanent resident. But if the purpose of the visit was as the father-in-law asserted; namely, to claim right of abode, and if he understood that any such claim had to be based on the residential status of a natural parent, it made no sense for him to fill in his own personal details. 226.When tested on the issue, the father-in-law retreated into excuses that he had been confused and vague as to how best to proceed. But the father-in-law struck me as a sensible enough man. He said that he filled in his own details because it was the custom in his home village that, upon marriage, a bride became a member of the groom’s family. That may be so. But he understood well enough that the basis for claiming right of abode could not spring from any loose, customary connection. 227.I am satisfied that the father-in-law did not wait for the applicant and her father to return in order to accurately complete the personal details form because he saw no need that day to put forward any evidence of the residential status of the applicant’s father. 228.Was a claim made by the applicant and her father that day? I am satisfied no claim was made. The applicant was not there to seek right of abode. She was there to surrender herself so that she and the children could return to the Mainland to be with her husband. 229.On 12 August 1997, however, because of the pressure of numbers, the applicant could not be interviewed that day. She was directed to return the following day, her expired permit being taken and a form of receipt being issued to her in its place : this, as Ms Ko had testified, being the set procedure. 230.The applicant said that she returned to the Immigration Tower the following day with her father, her father-in-law and her two children. Upon arrival, she said, she was taken into a room with her two children to be interviewed. Her father and father-in-law remained outside. 231.The applicant testified that she was asked by the interviewing officer why she had overstayed. As to her answer, there was some question of whether it consisted of a historical recitation only or whether, either in whole or in part, it consisted of a statement of present intent. The applicant’s evidence was ambiguous. In fairness to the applicant, however, not a woman of much education, I believe her evidence had to be taken as an assertion that she told the interviewing officer not only why she had overstayed but also attempted to say why she desired to remain in Hong Kong. 232.In her testimony, the applicant said that she told the interviewing officer that she wanted to live here in Hong Kong to look after her parents on a long-term basis. The officer, she said, replied that she could not remain in Hong Kong and that by overstaying she had breached the law. According to the applicant, the officer told her that she would be prosecuted. When she heard this, said the applicant, she became very frightened. Her father-in-law had described to her how her husband had been placed in handcuffs and she did not want this to happen to her. She was afraid, she said, that both she and her children might be placed in jail. 233.That the applicant should have been so frightened did not strike me as incongruous. It was plain from the moment the applicant commenced her testimony that she was a very timid person, verging on what I have earlier described as a state of hysteria. On several occasions she broke down in tears. 234.The applicant testified that she was handed a sheet of paper, a ‘grounds for non-removal’ form. She was also given a separate sheet of paper, she said, on which characters were written. She was told to copy these characters onto the ‘grounds for non-removal’ form. Afraid of the consequences if she objected, the applicant complied. The ‘grounds for non-removal’ form written by the applicant and signed by her is to the following effect :
235.This statement was, at the very least, prepared with the guidance of the interviewing officer, Ms Chow Wing Man. Not only does it bear a very close resemblance to another ‘grounds for non-removal’ statement made about a month earlier by another GIS officer but, seen on its own, it is simply too well composed, far too ‘official’. It also contains, of course, the familiar litany that the applicant overstayed ‘because of keeping company with my family’. 236.That being said, Ms Chow, the interviewing officer, did not suggest that this statement was the independent creation of the applicant. As Ms Chow put it, while the applicant would have been free to write what she wished, if she did not know how to express herself and sought assistance, then she would give that assistance, even if it meant suggesting particular characters to write. 237.While I think it is more likely than not that the applicant was asked to copy the characters making up her statement, it does not follow that she did so under protest. Indeed, during her testimony the applicant did not suggest that she made any form of protest or that she expressed a desire to the interviewing officer to write characters to a different effect. 238.The applicant protested, however, that she was still ‘forced’ to copy the characters. But, apart from informing the applicant that she would (or could) be prosecuted for overstaying, on the evidence it is apparent that any factor of fear which influenced the applicant was self-induced. 239.The applicant accepted that, after the ‘grounds for non-removal’ form had been completed, she was presented with a ‘no loss, no complaint’ form which she signed to the effect that she had no complaint. This document, she said, was simply placed in front of her and again she was instructed to sign. She complied without query. 240.With the various forms signed, the applicant said that she then attempted to show the interviewing officer, Ms Chow, photostat copies of her parents’ Hong Kong identity cards and also a photostat copy of the permit which enables her father to come to Hong Kong in October 1979. The purpose was to show that, through her father, she was entitled to right of abode. As I understood her evidence, the applicant suggested that these photostat copies had been prepared earlier that same day, the intention being to use them in support of her claim to remain in Hong Kong. The applicant said that she took the papers out of her handbag, wishing to give them to the interviewing officer. The officer, however, said that it was not necessary and refused to look at them. 241.In the result, said the applicant, she put the photostat copies back into her handbag. She went on to say that, when she returned to the Mainland, she took those same papers back to her home village. They were kept there together with other documents dating from about that time. It was the applicant’s evidence that she brought the photostat copies back to Hong Kong and gave them to her legal representatives. In short, it was her evidence that the same photostat copies which she had attempted to give to Ms Chow on 13 August 1997 were now available as exhibits for study by the court. 242.The applicant in her affirmation of 12 October 2006, made just a few weeks before the hearing, spoke of the attempted production of these documents to the interviewing officer. There had, however, been no earlier mention of them. For example, in the case summary prepared by Pam Baker & Co. the following only was said as to the interview on 13 August 1997 :
243.Equally, when the applicant was interviewed in May 2000 by the Removal Special Project Sub-Division of the Immigration Department, being given the opportunity to prepare her statement in advance, she only wrote the following :
244.When she testified, the applicant clearly was unaware of the fact that Hong Kong identity cards bear the date of issue. The photostat copy of her mother’s identity card which she said she produced to Ms Chow bore the date of issue of 29 July 1998, the photostat copy of her father’s identity card bore the date of issue of 10 November 1998. In short, these two documents at least were not even in existence in August 1997. 245.In my judgment, the applicant’s assertion that she attempted to produce various photostat copies proving residential status was an invention. It was put to the applicant during cross-examination that she had come up with this piece of evidence late in the day in an attempt to try and fill what she must have understood was missing from her case; namely, evidence of some record of an asserted claim for right of abode. This the applicant denied. 246.It is not for me to infer any particular motive for the manufacture of this evidence. But it is apparent that, without it, there was no evidence of any record in the possession of the Director. 247.Accordingly, my determinations are as follows：
Madam Chong Lai Wa (914, a ‘group five’ applicant) 248.The applicant was born in Fujian Province in 1957. Her mother came to live in Hong Kong in 1980, being followed by her father in 1993. At the change of sovereignty, therefore, her mother was a permanent resident. 249.The applicant’s first visit to Hong Kong was in November 1994. The applicant at that time was a married woman with three children, two daughters and a son. Her two-way permit authorised her to remain in Hong Kong until early January 1995. The applicant overstayed. Indeed, she remained living with her parents until she was arrested by police on 22 November 1998, almost four years after the expiration of her visitor’s permit. 250.The applicant said that she overstayed because her mother was not well and required her care. In addition, she said, she had heard rumours that, when the change of sovereignty took place, persons in her position – the children of Hong Kong permanent residents – would be granted an amnesty allowing them to settle in Hong Kong. It was her hope, said the applicant, that when the amnesty came she would be able to convert her illegal residence into a lawful one. 251.The applicant said that in the days following the change of sovereignty she learnt that there would be no amnesty. Watching television, she said, she saw that many people who went to claim right of abode were arrested and repatriated. However, in her affirmation made several weeks before the hearing; that is, on 3 October 2006, she said that she was also aware at this time of ‘controversies’ concerning the right of abode issue. While she knew that many claimants had been arrested and repatriated, she also heard that ‘young children’ of Hong Kong permanent residents were allowed to remain while the same applications made by ‘adults’ were refused. The applicant, of course, was very much an adult : a married woman with three children of her own. 252.It was the applicant’s evidence that, being aware that overstayers like herself would be arrested and repatriated, she did not come forward to claim right of abode. Instead, she remained in hiding. 253.On 22 November 1998, while on the street, the applicant was stopped by the police and arrested as an overstayer. 254.At the time of her arrest, at least as I understood her evidence, the applicant said that the arresting officer, having studied her expired two-way permit, told her that she had overstayed for a long time and asked why she had done so. She replied to the effect that she had overstayed to look after her mother. The applicant remembered giving her mother’s name. 255.Either at the scene of arrest, or later at the police station, it was the applicant’s evidence that she asked if she could remain in Hong Kong to look after her mother. She was told that she could not. When questioned as to what else, if anything, she had said at this time, the applicant testified that it went through her mind that her mother was a permanent resident but she did not articulate this. In the result, it was her specific evidence that she asked just the one question : ‘Can I stay in Hong Kong to look after my mother?’ 256.Whatever qualifications or reservations were in the applicant’s mind at the time, that single question, in my view, was not capable, even on the most generous interpretation, of amounting to a claim for right of abode; that is, a claim based on her mother’s residential status. Read in context, it could amount to no more than a plea based on compassion. 257.In her affirmation of 3 October 2006, the applicant said that, when interviewed at the police station and asked why she had overstayed, she answered that she had done so to take care of her mother. She said that she remembered writing down her mother’s name. She then went on to say the following : ‘I reiterated that I wanted to stay in Hong Kong to be with my mother who was a permanent resident and I asked whether this was possible. The officer replied that it was not and said that I had overstayed.’ 258.In the course of her testimony, however, the applicant made no assertion to the effect that she explained to the police that her mother was a permanent resident. Indeed, as I have mentioned above, when the issue was raised, she specifically said that she had not mentioned that fact although it had been in her mind. 259.The applicant, like so many others, was originally represented in her attempt to benefit from the concession policy by Pam Baker & Co. In the case summary prepared for the applicant by her then solicitors, the following was written :
260.That the applicant made reference to her mother while in police custody is not disputed. In his notebook, the arresting officer, constable Ng King Hei, wrote the following :
261.It was submitted that this entry in the arresting officer’s notebook constituted a sufficient record in terms of the concession policy. I did not agree. 262.First, in my judgment, there was no evidence that the applicant made a claim for right of abode to the police. In the course of her testimony the applicant made it plain that she did not. As to her statement in her affirmation, the applicant qualified this in her testimony by saying that, while her mother’s residential status had been in her mind at the time, she had not spoken of that matter. 263.In any event, the notebook entry itself makes no reference at all to the residential status of the applicant’s mother. 264.Some time was spent debating whether the police notebook was, in the circumstances of this case, capable of constituting a record at all under the concession policy. In my judgment, however, there being no claim for right of abode made by the applicant to the police, it followed there could be no record of a claim. The issue of whether the notebook was capable of constituting a record therefore did not arise. 265.Having spent a night in police custody, the applicant was transferred to the Victoria Immigration Centre (‘VIC’) where she was interviewed. The interview was conducted with the assistance of Mr Sae Lim Po Lin who acted as interpreter. It is to be noted that Mr Sae was a witness called on behalf of the Director in the application of Madam Tse Lai Yuk (number 3350), having also acted as an interpreter when that applicant was interviewed at the VIC. 266.During the course of the applicant’s interview at the VIC, a ‘grounds for non-removal’ form was completed. That form was written out by Mr Sae on behalf of the applicant. The following was written :
267.The applicant disputed the accuracy of this statement. She could nor remember saying anything about ‘tourism’. But she did recall saying that she had overstayed in order to look after her mother. However, during the course of her testimony, she said nothing that could be interpreted as constituting her recollection of making any sort of claim for right of abode. 268.During the course of the interview at the VIC, a personal particulars form was also filled out. This form too bears the same endorsement as the ‘grounds for non-removal’ form; namely, that the applicant gave the details orally and they were then written down on the form by the interpreter. 269.Concerning the applicant’s parents, nothing was written in the form concerning their Hong Kong residential status. Their names were given together with their dates and places of birth. Nothing appears in the form to even suggest that the parents lived in Hong Kong. To the contrary, one address only is given on the form, that being a village in Fujian Province. A long bracket is written alongside the names of the individuals described on the form to suggest that all of them – including the applicant’s mother and father – lived in the same village. The applicant protested that this was clearly wrong. No doubt it was. A number of objective errors were shown. But it does not necessarily follow that the fault lay with the interpreter or the interviewing officer. The applicant may have been the author of her own errors, either intentionally or unintentionally. Indeed, it was put to her during the course of cross-examination that she had reason to intentionally distort the family particulars to avoid her immediate family members from encountering any difficulties on her behalf. This she denied. 270.I would emphasise that no suggestion was made that the applicant was subjected to harsh or oppressive treatment either by the police or officials of the Immigration Department. 271.The applicant struck me as an essentially gentle person not prepared to manifestly exaggerate her evidence or invent portions of it. That, of course, was to her credit. But when her case in the first instance was so meagre; indeed, in my view, no real case at all, her application was one which could never expect to be successful. 272.For the reasons given, I am satisfied that she made no claim for right of abode at the time she was arrested by the police. 273.In respect of the interview at the VIC, a professional interpreter was used, that interpreter being conversant in the applicant’s dialect. The applicant said that there were errors in the two interview records. There may well have been some misunderstanding. But, even on the applicant’s own case, no claim for right of abode was made by her during the interview process at the VIC. Indeed in this last respect, it is important to return to the case summary prepared in 2000 for the applicant. This summary, of course, was created only some two years after the events in question. The summary reads :
274.Accordingly, my determinations are as follows :
Mr Siu Ting Kwong (2999, a ‘group one’ applicant) 275.The applicant was born in Guangdong Province in 1972, one of five children. His father came to Hong Kong in 1978, his mother being permitted to do so in 1989. 276.Like many others, the applicant said that, in the months leading up to the change of sovereignty, he heard rumours of an amnesty that would permit the children of Hong Kong permanent residents to settle in Hong Kong. However, he did not give the rumours much credence. His father, he said, had more belief in them. 277.As it was, the applicant did not come to Hong Kong until 1998, arriving here on a two-way permit on 3 July 1998, being permitted to stay until 27 August of that year. During the course of testimony, it was not suggested that the purpose of the visit was specifically designed for the purpose of claiming right of abode. The applicant was by then a married man, his wife remaining in the Mainland. 278.It was the evidence, however, that the applicant had always wished to settle and his family had wished him to join them. According to the applicant, when his mother applied for a one-way permit to settle in Hong Kong in the 1980s, she had included him as an accompanying child. However, as time passed, she had grown anxious that, if her application was granted, he may then be too old in terms of the policy to accompany her. She had therefore amended her application by removing the applicant and including his younger brother. As it happened, said the applicant, he was still of the right age to accompany his mother when her one-way permit had been granted in 1989. A miscalculation had therefore denied him right of abode under the one-way permit policy. 279.On 13 August 1998, the applicant and his father, Mr Siu Charn Kou, were arrested at a building site in Tseung Kwan O. The applicant’s father was a self-employed bricklayer and the applicant, it appears, was working with him. 280.The applicant and his father were taken first to Tseung Kwan O Police Station and from there were given into the custody of the Immigration Task Force at Central Government Pier. 281.Both were interviewed by Task Force officers later that day. The interview process took place in a large room, the applicant and his father being interviewed at separate desks a distance from each other. The interview process was not completed until the evening. 282.According to the applicant, although he could see his father across the room during the interview process, he could not hear what was being said between his father and the interviewing officer. The room, he said, was heavily air-conditioned and at some stage he noticed that his father was suffering badly from the cold. He therefore went across to his father and gave him his own shirt to wear. 283.By way of broad summary, the case presented by the applicant and his father was to the effect that, although no claim for right of abode was made during the course of the interview process, at the conclusion of that process the father, speaking on behalf of his son, addressed an immigration officer, telling the officer that his son, had – or should have – right of abode and that his arrest was therefore unreasonable. As for any record of that claim, while this exchange had not in any way been recorded, it was submitted that there was ample evidence in the interview documents themselves that the father was a permanent resident and that the applicant was his natural son. That evidence, in the circumstances, constituted a sufficient record. 284.At the outset, I record that, in the main, the applicant impressed me as a credible witness. He spoke slowly, even ponderously, taking time to consider his answers. In the course of his testimony, however, he conceded that he could not now remember much of what happened during the course of the interviewing process and immediately thereafter. Although entirely understandable, in the result, in respect of substantive issues, the applicant’s testimony was marked more by what he could not remember than what he could. 285.As to the fact that he had been illegally working in Hong Kong, in his cautioned statement made on the day of his arrest, the applicant admitted that he had been working as a bricklayer with his father. He signed his name to the following answer in the record of interview :
286.The father too, in his cautioned statement made at about the same time, put his signature to the following confirmation :
287.Both the father and son made affirmations in preparation for the hearing. These affirmations were made on 10 October 2006, just weeks before the hearing itself. 288.Although, in my view, nothing really turns on it, in his affirmation, the applicant explained in slightly different terms how he had come to be arrested. He accepted however that he had been working in breach of his conditions of stay. In his affirmation the following was said :
289.During the course of his testimony, the applicant appeared to suggest – and I would put it no higher than that – that he had not willingly put his signature to some of the statements appearing in his 1998 cautioned statement. He indicated that he had been ‘taught’ some of what appeared. The applicant was given time to read through the statement to try and identify those extracts which he indicated had not been freely made. Indeed, I adjourned to give him time to do so. When I returned, however, the applicant said that he could not now identify those extracts. Thereafter, during the course of cross-examination, when taken through the cautioned statement, for all intents and purposes, the applicant conceded that, in fact, he had not been ‘taught’ anything and that the statement was an accurate record of the admissions made by him that day. 290.Having completed his cautioned statement, the applicant was asked by his interviewing officer, Mr Shum Ho Hang, to complete a ‘grounds for non-removal’ form. The characters he wrote on that form were to the following effect :
291.In respect of these characters, the applicant said that at the time he did not know what he should write and therefore followed the guidance of Mr Shum. He did not testify that he had actively wished to write something else but had been prevented from doing so. He merely complied with the guidance given. 292.Mr Shum himself readily accepted that the characters appearing on the ‘grounds for non-removal’ form would have been written under his guidance. He said that he had standard instructions in cases of this kind to make a ‘preliminary’ investigation as to the residential status of interviewees to ensure that people who were lawfully in Hong Kong were not wrongly repatriated and, of course, to ensure that those who had the right to work in Hong Kong were not wrongly prosecuted. 293.To that end, he said, having checked relevant documents and come to a preliminary assessment, he would ask the interviewee – in this case, the applicant – to confirm his assessment : hence the applicant’s statement appearing on the ‘grounds for non-removal’ form to the effect that he did not have right of abode. Mr Shum went on to say that, as a matter of practice, he would also ask whether the interviewee was prepared to be repatriated. If the interviewee agreed, he would ask that person to record that fact too : hence the second sentence on the ‘grounds for non-removal’ form. 294.As to any claim for right of abode, as I have said earlier, it was not suggested that the applicant himself had made any such claim. It was instead the applicant’s case that the claim had been made on his behalf by his father as an act, seemingly, independent of any joint intention. 295.In the case summary prepared for the applicant in or about 2000 by Pam Baker & Co., it was recorded that the father had posted bail for the applicant. The father had informed an officer – whether he was the bail officer or another officer was not made clear – that he was a permanent resident and accordingly his son should not in any event have been arrested. The father had asked the officer why his son could not remain in Hong Kong as a permanent resident. He was told that his son would have to leave Hong Kong when his permit expired. 296.In his affirmation made some six years later, the applicant remembered matters somewhat differently. He said :
297.When testifying, the applicant said that, after his own interview was completed, he went across to his father. The implication appeared to be that it was at this time that he heard his father claim right of abode on his behalf. But, during the course of cross-examination, he admitted that his memory of what, if anything, was said was now so vague that he could remember almost nothing. 298.Despite the details set down in his affirmation, it was apparent to me that the applicant – understandably perhaps after so many years – really had no recollection of what, if anything, had been said by his father on his behalf and, when tested in cross-examination, was not prepared to commit himself to matters which he could not now remember. His testimony therefore as to the making of any claim on his behalf did not advance his case. 299.The father, in his affirmation of 10 October 2006, said the following in respect of how he came to claim right of abode for his son :
300.The father went on to say in his affirmation that he ‘repeated this assertion’ to the officer who was interviewing his son. 301.However, the father gave a different version of events when he testified. He was very clear in saying that, despite what had been recorded in his affirmation, he did not make any claim for right of abode to the officer who took a statement from him under caution. The claim, he said, had been made after his interview had been completed and when he had moved away from the interview desk to another spot in the room. 302.As to the nature of the claim, the father testified that he was venting his anger at the time, annoyed at the fact that his son should have been arrested. He said words to the following effect : ‘My son has right of abode. In 1997, people said that children would have right of abode but now you have arrested him.’ The father said that the officer replied to the following effect; namely : ‘It has nothing to do with me. If your son wants to live in Hong Kong, he must go back to the Mainland to deal with it.’ 303.In his affirmation, of course, the father had not spoken of receiving any response to his statement. In his affirmation, he had said that the interviewing officer had just smiled at him. 304.According to the father’s testimony, therefore, the claim was made in the course of a short, isolated conversation with a member of the Immigration Department who could no longer be identified. 305.I accept, of course, that claims for right of abode may be made in different circumstances. There is no required litany of words nor any formulistic context. 306.In the present case, as I have said, the applicant himself had virtually no recollection of the claim being made, certainly no recollection upon which any reliance could be placed. 307.His memory, of course, would have been that much better in the year 2000 when he gave his case summary to his then solicitors. Finding him to be a credible witness, I believe that some limited assistance can be obtained from that summary. 308.But it was, of course, the father who was asserted to have made the claim and, in my judgment, unless I could rely on the essential truthfulness of the father’s testimony, the applicant faced considerable difficulties. Regrettably, I could place no reliance on the truthfulness of what the father told me. 309.The father’s fairly radical departure from his affirmation meant that I had to consider his testimony with considerable care. In that departure the father appeared – in a broad sense at least – to be returning to the version of events set out in the case summary of 2000. But there was other departures equally concerning. 310.It seemed to be the father’s understanding that, if I concluded that his son had been working illegally, that finding would somehow fatally undermine the application. Accordingly, despite his son’s own admissions, and the admissions made in 1998 in the two cautioned statements, the father insisted that his son had not been working. His son, he said, had come to the building site that day for the single purpose of bringing him lunch. 311.When questioned as to why he had not said something very different in his cautioned statement, it was effectively the father’s testimony that a false statement had been placed before him and he had signed it because he had not dared to protest. In any event, said the father, the air-conditioning that day had made him so cold during the course of the interview that he could ‘hardly bear it’. It was the clear import of his testimony that the air-conditioning had been turned up in order to place pressure on him : this of course in a large room with other people present. 312.Although of very limited relevance, I cannot help observing that the father struck me as a weather-beaten individual used to working outdoors in all sorts of weather : hardly a pale and cloistered clerk. 313.As to the oppressive nature of the air-conditioning, the father testified that it was only when his son gave him his shirt that he was better able to bear the cold. However, when the father was asked why, if the interviewer was attempting to oppress him, his son should have been allowed to give him his shirt, the father then changed tack, protesting that no issue of ‘allowing’ had arisen. His son, he then said, had given him his shirt much earlier, indeed at the Tseung Kwan O Police Station. 314.This assertion flew in the face of the father’s earlier testimony and also the testimony of his son. It was also contradicted by the case summary prepared for the applicant in or about the year 2000. In that summary, it was said that the applicant and the father had been working shirtless at the building site when they were arrested and had been taken away by the police without being allowed to put on their shirts. 315.Could there, however, despite the father’s wayward testimony, be some truth in the allegation first made in the applicant’s case summary in the year 2000; namely, that there had been a conversation between the father and an unidentified immigration officer in which a protest had made by the father, a protest to the effect that, as a person entitled to right of abode, his son should not have been arrested and treated in the way he was treated? It was, in the circumstances, a plausible enough assertion. It is easy to imagine the father making just such a complaint on behalf of his son; doing so, as the father himself testified, while venting his annoyance at their treatment. 316.As I have said, in giving his testimony, the father appeared to abandon the contents of his affirmation and return instead to the assertions made in the much earlier case summary. In the result, even though the applicant’s case at the end appeared to be in tatters, it was not one that I could easily dismiss. 317.In a number of applications I have concluded that lies have been intended more to ‘gild the lilly’ rather than to disguise the fact that there is in truth no case at all. 318.In the present case, however, I could not bring myself to a finding that the father’s wayward testimony may have been mere ‘gilding of the lilly’. It was for the applicant to satisfy me on a balance of probabilities that a claim had been made. On a consideration of all the evidence, however, I could not be so satisfied. 319.As for the existence of a record of a claim, it follows that I was satisfied there was no such record. 320.It was submitted that the interview documents themselves were an ample record. They showed that the father was a permanent resident and that the applicant was his son. However, while I am not obliged to determine that submission, I have my doubts as to its merits. The documents related solely to an enquiry into possible criminal conduct on the part of the father and son. Any matters going to the applicant’s residential status concerned that enquiry. The asserted claim for right of abode was entirely independent, coming essentially as an afterthought. It could not be said that any of the data contained in the interview documents was obtained, directly or indirectly, as part of any sort of process in terms of which the applicant and/or his father were seeking to claim right of abode. To qualify as a record of a claim there must surely be some nexus between the claim and the record. 321.In the circumstances, therefore, my determinations are as follows :
Conclusion 322.My determinations may therefore be stated again (in summary) as follows :
20-23, 27-30 November, 1, 6-12 December 2006 Mr Kwok Sui Hay and Mr Sean Fang, instructed by Messrs Barnes & Daly, for the Applicants Mr Joseph Fok, SC leading Mr Daniel Wan, instructed by Department of Justice, for the Respondent 24 November 2006 Both parties were absent 4 and 5 December 2006 Ms Gladys Li, SC and Mr Sean Fang, instructed by Messrs Barnes & Daly, for the Applicants Mr Joseph Fok, SC leading Mr Daniel Wan, instructed by Department of Justice, for the Respondent 20 December 2006 Ms Gladys Li, SC leading Mr Kwok Sui Hay and Mr Sean Fang, instructed by Messrs Barnes & Daly, for the Applicants Mr Joseph Fok, SC leading Mr Daniel Wan, instructed by Department of Justice, for the Respondent |
Cases cited in this judgment
Further hearings and rulings under HCAL 81/1999