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 1 June 2007.
1. In my fourth report, I said that two hearings were scheduled for 2007 so that all outstanding applications (capable of being prepared and argued) could be determined and a final report submitted before 2008.
Cites 1 case
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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 : 2, 3, 25, 28 and 30 May 2007 Date of Handing Down Report : 1 June 2007 --------------------------------------- FIFTH REPORT TO THE --------------------------------------- Introduction 1.In my fourth report, I said that two hearings were scheduled for 2007 so that all outstanding applications (capable of being prepared and argued) could be determined and a final report submitted before 2008. 2.The first of the two hearings was scheduled for the month of May. Regrettably, however, for reasons which I shall explain, it was only possible to hear one case in that month; that case being the application of Madam Wong King Fan, applicant 3681. My findings in respect of that single case are contained in this report. 3.Although an adequate number of cases had been prepared for hearing in May, shortly before the hearing commenced I was informed by the Director of Legal Aid that legal aid had been withdrawn from a number of applicants on the basis that their cases lacked merit. As it transpired, legal aid was removed from ten applicants. 4.One applicant, 5286, had returned to the Mainland. He has been informed by letter of his loss of legal aid and asked to indicate his intentions. As at the date of this report, no response has been received from him. 5.The remaining nine applicants were in Hong Kong and I was able to speak to them; to a first group on 3 May and to a second group on 25 May. 6.All nine applicants have appealed the discharge of their legal aid. Their appeals are to be heard on 8 June 2007. 7.However, so that there will not thereafter be any undue delay in dealing with the cases of these applicants, I have given to each of them the substantive hearing date for his or her application. 8.The detailed directions that I have given to the nine applicants have been reduced to writing and have been, or will be, sent to each applicant together with a translation in Chinese characters. Copies of the two sets of directions are annexed to this report together with a translation of the first set. The second translation is still being prepared. 9.As to the way ahead, the position appears to be as follows :
10.In the circumstances, assuming that all the cases – with the exception of application 2144 – go ahead, it will still mean that just 15 cases now remain to be determined. There should be no difficulty in those 15 cases being heard later this year and a final report being submitted before year’s end. The single application Madam Wong King Fan (3681, a ‘group one’ applicant) 11.In respect of this application, it is accepted that there is no record of any claim. The application was advanced, however, on the basis that, at the time the applicant made her claim, she was subjected to a threat of prosecution and/or imprisonment. If it was not for this threat, it was said, the applicant would have recorded her claim. In the circumstances, so it was argued, the oppressive conduct of one of his officers has estopped the Director of Immigration from denying the existence of any record. 12.In my fourth report, I spoke of this issue of estoppel, concluding my remarks by saying :
13.On this basis, in the present case, I have determined the following three factual matters :
14.The applicant was born in Fujian Province in February 1970. Her father settled in Hong Kong in 1984, her mother joining him in 1992. At the change of sovereignty, therefore, only the applicant’s father was a permanent resident. 15.In early 1997, the applicant came to Hong Kong as a visitor. Her two-way permit allowed her to remain from 28 March until 22 April 1997. 16.The applicant at the time was a married woman, living with her husband in Shenzhen. She had two children. Although Minnan was her native dialect, the applicant said that, having lived in Shenzhen for several years, she had learnt to speak Cantonese. 17.It was the applicant’s case that her principal reason for coming to Hong Kong was to care for her grandmother. She said that an elder sister had also come from the Mainland for the same purpose. 18.After her arrival in Hong Kong, the applicant said that she learnt from her mother of a rumour that after the change of sovereignty Mainland-born children, whose mothers or fathers were Hong Kong permanent residents, would be granted an amnesty, enabling them to obtain an identity card and to settle in Hong Kong. The applicant said that the decision was made by her, and apparently by her elder sister too, to remain in Hong Kong until after the change of sovereignty in order to benefit from the amnesty. 19.This was not the first time that the applicant had overstayed. She had done so in 1991. On that occasion, she had been arrested by the police and detained pending her repatriation. She had not, however, been prosecuted. Nevertheless, the experience of her arrest, detention and repatriation would have remained with her. 20.It was the applicant’s case that on 16 July 1997, just a couple of weeks after the change of sovereignty, she went with her elder sister and her father to the offices of the General Investigation Section (‘the GIS’) on 13th floor of the Immigration Tower. Expressed in the broadest of terms, the purpose of her visit was to claim right of abode. But there was some confusion as to that issue. 21.When he testified, the applicant’s father, Mr Wong Yan Fai, said that by 16 July 1997 he knew that the rumours of an amnesty had been proved wrong. Despite this, he said, he was of the view that, under the Basic Law, he being a Hong Kong permanent resident, his two daughters were entitled to right of abode. The purpose of the visit was, therefore, to enable his two daughters to ‘demand’ their rights under the Basic Law. Quite what the effective difference was between a claim under the rumoured amnesty and under the Basic Law, the father was not able to explain. Nor frankly did he really attempt to do so, preferring, in my view, to avoid the issue. 22.If the father knew that the rumoured amnesty had been proved wrong, it seems likely that the applicant would have known too, if only through her father. In her testimony, however, the applicant’s evidence was somewhat ambiguous. At one stage she appeared to accept that she knew there was no amnesty, at another she indicated that she had no such awareness and went to the offices of GIS to seek to benefit under the amnesty. 23.Shortly after the applicant had commenced her testimony, two matters became obvious. First, although not visibly unsettled, she was nervous. Second, after almost ten years, understandably, her independent memory of what took place at the offices of GIS was negligible. The result, in my view, led to confusion in her evidence compounded by the fact that a great deal of what she said was founded more on what she now understood her case should be rather than what it was. 24.The applicant testified that, when she arrived at the offices of GIS with her sister and father, she was the one who went up to the counter to speak to the officer on duty. She was supported in this by her father who said that he hung back with his other daughter and did not himself take any part in the exchange. Indeed, it was the father’s evidence that at that time he spoke only the Minnan dialect, his knowledge of Cantonese being very limited. 25.It must be said, however, that this version of who spoke at the counter is different from the version recorded by Pam Baker & Co. in or about 2002. The solicitor’s record is to the following effect :
26.Bearing in mind the nature of the records of interview composed by Pam Baker & Co., I would not normally place much reliance on any inconsistency in an applicant’s case revealed by that applicant’s record of interview. In the present case, however, I cannot ignore the fact that the record of interview emphasises the fact that it was the father who spoke. It is said that he ‘specifically’ asked about an amnesty. 27.This was one of a number of inconsistencies. For example, in her affirmation of 1 February 2007, the applicant said that she spoke to the officer in Cantonese. However, the father, who had said he had overheard some of what his daughter said, asserting that at the time he did not speak Cantonese, found himself in a position where he had to say that, to his memory, his daughter spoke in Putonghua. 28.In my judgment, the father was not a credible witness, being prepared to say anything which, on the spur of the moment, he believed would advance his daughter’s case or extricate him from some difficulty in his testimony. 29.The applicant commenced her testimony by saying that she asked the officer at the counter if the children of Hong Kong permanent residents were able to apply for right of abode. The officer replied that there was ‘no such thing’. 30.Doing the best I can to give some structure to her evidence-in-chief, the applicant spoke of the officer examining her two-way permit and telling her that, as she had overstayed, she had broken the law and must return to the Mainland. The officer, she said, gave her a form to fill out. This was a standard ID 457 form. The officer told her that she must fill it out and then go back to the Mainland. If she did not then she would have to go to jail and would not be able to see her husband and children. 31.According to the applicant, her father must have overheard this because he then left the office, taking his other daughter with him. 32.According to the father, however, he only heard the officer tell his daughter that she could not stay in Hong Kong. It was his daughter, he said, who came back from the counter to tell him that, if she did not go back to the Mainland, she would be sent to jail. Having heard that, said the father, he decided that he must leave immediately, taking his other daughter with him. If both his daughters were detained, he said, there would be nobody left to care for their grandmother. 33.When she came to complete the ID 457 form, said the applicant, she could not record the details of her father’s identity card because he had already departed. 34.It was the applicant’s case, therefore, that the mention of possible imprisonment by the officer at the counter had an important consequence, prompting her father to leave and thereby denying her the opportunity to record on an official document that he was a Hong Kong permanent resident. However, in her affirmation of 1 February 2007, nothing is said by the applicant of any mention of incarceration by the officer at the counter. The affirmation reads :
35.That being said, there is a mention of prosecution and imprisonment in a much earlier document. The earliest written record of what the applicant said happened when she arrived at the offices of GIS is contained in a set of forms given to the Removal Special Project Sub-Division of the Immigration Department in about 2000, only some three years after the events in question. These forms were completed so that the Director could decide whether the applicant was entitled to benefit under the concession policy. Part C of the forms required the applicant to state how she had declared that she had right of abode. In answer, her father wrote for her :
36.In Part D of the same set of forms, the father wrote the following to similar effect :
37.These is, therefore, in Part C a mention of what would happen to the applicant if she refused to return to the Mainland. But the statement is very broad. It is not said, for example, who gave the warning, whether it was the officer at the counter or the officer who later interviewed the applicant or perhaps both. Nor, importantly, is the statement contained in Part C to be read as any kind of assertion that the applicant was specifically threatened. I say it is important because, of course, it is central to the applicant’s case that she was threatened with imprisonment if she attempted to write down anything which recorded the fact that she had sought right of abode. 38.In the early part of her evidence-in-chief, the applicant became confused as to what she asserted happened at the counter with what she asserted happened later during her interview. 39.The applicant said initially that, when she was at the counter, she was given a form to complete. She was nervous, she said, and did not know how to fill it out. The officer said he would teach her. He asked her why she had overstayed and, when she gave her reasons, insisted that she merely write that she had overstayed to keep company with her family. The applicant said that she refused to write this. The officer insisted, however, that she did so and even taught her the characters to write. Thereafter, said the applicant, she was taken to a small room. She was told by her interviewing officer that she must go back to the Mainland. If she did not, she would be prosecuted and may go to jail. This frightened her, she said, and so she wrote what she was told to write. 40.Clearly, the applicant, in her anxiety, had confused the filling out of the ID 457 form with the later completion of her ‘grounds for non-removal’ form. Errors of this kind do crop up for entirely innocent reasons. In his submissions, however, her counsel, Mr Kwok Sui Hay, said that this ‘telescoping’ demonstrated her honesty. She had told the court what she could remember, he said, she had not tailored her evidence according to the documentary evidence placed before. With respect, I do not see how that follows. It could equally be said that, because her story was an invention, she forgot to whom the oppressive conduct should be attributed. In my judgment, therefore, as to credibility, nothing turned on this initial confusion. 41.What I do consider relevant, however, is the nature of the threat that the applicant said was levelled at her. The threat, as initially described, was to the effect that she must return to the Mainland and that, if she refused to do so; that is, to agree to go back to the Mainland, she would be prosecuted. It was for that reason, said the applicant, that she agreed to write what was suggested to her; namely :
42.The threat I have just described is, of course, very different from the one which formed the basis of the applicant’s case; namely, that by intimidation she was prevented from writing anything down concerning her claim for right of abode. 43.In this regard, it is pertinent to note that in the record of interview prepared by Pam Baker & Co. in or about 2002, nothing is said in direct terms of any threat of prosecution and possible imprisonment. The record reads :
44.As to what was written down by the applicant on the ‘grounds for non-removal’ form, the record of interview says the following :
45.That record of interview would seem to accord with the applicant’s initial evidence-in-chief; namely, that she was told she must agree to return to the Mainland. If she did not, she would face criminal proceedings. 46.On the evidence given in numerous applications, it has emerged that officers in GIS, as a matter of course, sought to obtain the agreement of overstayers to return voluntarily to the Mainland. Agreement to return avoided protracted proceedings and, it may be said, was therefore for the benefit of both the overstayer and the immigration authorities. 47.I do not see, however, that advising an overstayer of the likely consequences if he or she did not agree to return to the Mainland would necessarily constitute abusive or oppressive conduct. 48.To cite it again, the statement made to the Removal Special Project Sub-Division in or about 2000, this being the applicant’s first statement, was as follows :
49.In that same set of documents, the following is said :
50.In summary, just some three years after the events in question, it was asserted that, having made a claim for right of abode, the applicant was informed that such a claim would not be recognised and that the applicant, as an overstayer, had to return to the Mainland or face prosecution. Having been told these things and encouraged to return, the applicant then co-operated with the authorities. 51.On balance, in my judgment, this is a credible, indeed likely, scenario. The applicant went with her father to the offices of GIS. There was a conversation as to the applicant being entitled to benefit from an amnesty. That conversation – however it was formulated – may be said, in practical terms, to constitute a claim for right of abode. However, having been told that there was no amnesty and that all overstayers had to return to the Mainland or face criminal proceedings, the applicant did, as many others no doubt did; that is, accepted what she saw to be inevitable and agreed to comply with whatever administrative processes would effect her repatriation with the minimum of punitive consequences. 52.The applicant was, in fact, prosecuted and fined $2,000 before being sent back to the Mainland. 53.However, as to the lack of a record of the applicant’s claim, that was not the case advocated before me. 54.On the objective evidence, it is plain that, having completed the ID 457 form, the applicant then had to wait to be interviewed. It was a wait apparently of several hours, suggesting that the GIS interviewing officers were working under pressure. 55.The interviewing officer was Immigration Assistant, Cheng Po Lin. It was during this interview, said the applicant, that she was directly threatened with prosecution and imprisonment if she wrote down anything suggesting that she had sought right of abode. 56.It is a little odd, however, that the applicant had no memory of whether the interviewing officer was a man or a woman. As I said in an earlier report, injustice rankles. If the applicant had been subjected to intimidation, I would have thought it probable that she would at least have remembered the sex of the intimidator. 57.When the interview commenced, said the applicant, she was asked why she had overstayed. She replied that she had overstayed in order to look after her grandmother but also in order to claim right of abode. 58.It was not clear from the applicant’s testimony whether, in the course of her interview, she attempted a second time to make a claim for right of abode or whether, having already been told at the counter that there was no amnesty, she was simply recording as an historical fact why she had overstayed. A little later in her testimony, in answer to a question by me, the applicant went on to say that she spoke in the following terms; namely, that her parents were permanent residents and that : “I hope there will be an amnesty and I hope that I can obtain right of abode in Hong Kong.” 59.In my judgment, that statement by the applicant was no more than a recitation by her of what she now understood she should have said. It was manifestly artificial. I gave it no weight. 60.It was the applicant’s evidence that, having spoken of seeking right of abode, she was told by the officer that she should not write this. If she insisted on doing so she would be prosecuted. In her affirmation of 1 February 2007, it was put more clearly :
61.It should be noted that the affirmation – prepared for the applicant – gives the sex of the interviewing officer as female although the applicant herself, as I have said, had no memory of whether the interviewing officer was male or female. 62.After her experience in 1991, said the applicant, she was afraid of what would happen and therefore felt she had no option but to write what she was instructed to write. 63.The characters written by the applicant, which I have cited earlier, formed a standard litany. I have seen numerous examples of the same wording. 64.The applicant said that she could not write all the characters and that she had to be assisted in doing so. 65.I have no difficulty in coming to the conclusion that the interviewing officer suggested the form of wording to the applicant. Nor do I have any difficulty in concluding that the officer may have assisted the applicant with the formation of one or more characters. The issue is whether the applicant was made to write those characters against her will because she was threatened. 66.As I have said on a number of occasions, the ‘grounds for non-removal’ form was an administrative document, a document that required completion in order to move forward the process of repatriation. It is plain that many interviewing officers assisted overstayers to put down a short and convenient form of words. It is equally plain that on numerous occasions they had to assist with the writing of characters. As a co-operative process, I do not see how it can be criticized. Of course, if it is not a co-operative process that is a different matter. 67.In my judgment, on a consideration of all the evidence, there was no substance in the applicant’s assertion that in her case it was not a co-operative process. I am confident that was an invention on her part to try and explain (and excuse) the lack of a record. 68.It was only in February of this year that a direct allegation of intimidation in the interview process was raised. The applicant’s earliest records indicate that, having been informed that there was no amnesty, she was entirely co-operative; in short, that she was not then forced (under threat) to do anything. Those records, in my view, are more likely to reflect the broad truth. 69.As I said earlier, it was quickly apparent to me that the applicant had very little independent memory of events that day. A good deal of her testimony therefore was created to advance her case without any regard for its truth. 70.By way of a postscript, I should mention that during the course of submissions, Mr Kwok Sui Hay referred to the fact that a number of applicants have complained of the conduct of the interviewing officer, Ms Cheng, during the course of interviews. That is a matter which I have taken into account. On every occasion that Ms Cheng has given testimony, I have been impressed by the direct, brusk, almost waspish manner in which she has explained herself. She does not possess an aura of kind concern. To that extent, no doubt, applicants may have remembered her. But it does not follow that Ms Cheng, because of her manner, has acted improperly. 71.I am quite satisfied that, if the applicant in this matter had been determined to record her claim, she would have been able to do so. The probabilities are that, at the time, having been told that there was no amnesty, there was simply no perceived need to record it. What was more immediately of advantage – as the applicant herself intimated as far back on the year 2000 – was to co-operate in the hopes of minimising any punitive consequences. 72.As to whether an oral claim for right of abode was made, that has proved more difficult. Although the evidence of the applicant and her father was suspect in several respects, the weight of all the relevant evidence has, at the end of the day, satisfied me that the applicant may well have claimed right of abode at the reception counter. 73.I reject the assertion that she repeated the claim in her interview. In my judgment, the probabilities very much suggest that the interview was uneventful, the applicant co-operating fully with the interviewing officer. 74.My determinations are as follows :
Mr Kwok Sui Hay and Mr Sean Fang, instructed by Messrs Barnes & Daly, for the Applicants Mr Joseph Fok, SC leading Mr Daniel Wan, nstructed by Department of Justice, for the Respondent The annexures 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 Date of Directions : 3 May 2007 --------------------------- D I R E C T I O N S --------------------------- 1.In our system of law, how you prepare for your cases is a matter for you. If you are successful in your appeals, or some of you are successful in your appeals, then, of course, your case will be presented by your Legal Aid lawyer. If you are not successful in your appeals, then it will be a matter for each of you how you wish to proceed. You may wish to get your own private lawyer, or you may wish to come to court yourself to argue your own case. As I have said, that is your decision. Equally, it is your decision whether you wish to proceed with your case at all. 2.I therefore intend to give each of you your hearing dates. These dates will be in September of this year. When your dates arrive, I will hear your case. If you have Legal Aid counsel because you have been successful in your appeals, then I will hear the case presented by your counsel. If you have not been successful, I will hear the case presented by you personally or by any lawyer that you or your families may have employed. 3.If you appear on your own to argue your case, I will assist you in order to help you understand the proceedings and what you can or cannot do during those proceedings. But remember, I will not be able to act as your lawyer. I am the judge and I must be impartial. 4.If you are going to appear on your own to argue your case, you may have somebody with you – a friend or a family member – to give you assistance. That person cannot speak for you but that person may perhaps help you with necessary papers that you have and may be able to remind you of questions to ask : things of that kind. 5.If you do not appear on the dates that I’m going to give each of you for your trials, I will assume either that you are not interested in proceeding further or that you are happy for the matter to be determined in your absence and I will proceed to deal with your case in your absence. In that case, I will, of course, do my best to look at all the evidence as fairly as I can. But if you are not present, of course, I will not have the benefit of your side of the story to assist me. 6.Accordingly, if, for any reason, you will not be able to appear to argue your case and you will not have a lawyer to argue it for you, you must let me know as soon as possible, that is, as well ahead of your hearing date as possible. Then, if you have a good reason – and it must be a good reason – for not appearing at that particular time, we will try and arrange for you to appear at another more suitable time. But you must understand that I will require a good reason why I should not proceed to hear your case on the dates I’m going to give you. 7.I think that it would be advisable for you to take precautions in case your Legal Aid appeals are not successful. By that I mean you must ask yourselves : “What do I do if my appeal fails? Do I get a lawyer? Do I appear on my own?” Because it is not going to help you to say, when you come before me in September : “I only learnt about my Legal Aid appeal in July and I haven't had time since then to get my papers in order.” Because the fact is that you have from today to start getting your papers in order. A wise person – it doesn't matter what field of business they are in – always makes plans in case things do not go as they hope, and I am telling you to act wisely. 8.There is one final thing I must mention to you before I give each of you your hearing dates. I, as a judge of this court, am answerable to the Court of Final Appeal. The Court of Final Appeal will be hearing submissions from the lawyers on 28 June concerning earlier cases that have been heard. During that hearing, it is possible that something will be said about applicants in your situation, that is, applicants who have had their legal aid removed because the Legal Aid Department considers that their cases lack merit. If the Court of Final Appeal gives any directions concerning applicants like you, that is, applicants who have lost their legal aid, then obviously I will have to obey those directions. If this results in any change to the hearing of your cases, you will be informed as soon as possible. 9.I will now give you your dates for hearing. [Brief discussion with counsel as to the time to be allocated for each case] 10.Applicant 904, I’ll deal with your matter last, for a reason to which I’ll come when I speak to you. 11.The first applicant is Applicant 1771. Your case will be heard on Monday and Tuesday, 10 and 11 September. 12.I now go on to Applicant 2979. Your case will be heard on 12 and 13 September. That’s the Wednesday and Thursday. 13.I now move on to Applicant 4138. Your case will be heard on Friday, 14 September and Monday, 17 September. 14.I now move on to 5075. Your case will be heard on Tuesday, 18 and Wednesday, 19 September. 15.I move on to the applicant 5440. Your case will be heard on Thursday, 20 and Friday, 21 September. 16.I emphasise to all of you again, those dates are, if I can explain it by using an image, cut into stone. All all of you to whom I have just given dates, I am told, are on recognisance. As I understand it, that means you have no difficulty in remaining in Hong Kong until your cases are heard. 17.I now move to the last applicant, that is, Applicant 904. Your case will be heard on Monday, 24 and Tuesday, 25 September. Those two days for you also are cut in stone. As far as Applicant 904 is concerned, I am told that you are here on a limit of stay until about 7 July. It will therefore be for you to make application to come back to Hong Kong for the hearing of your case. 18.The Director of Immigration in Hong Kong, I am told, will do his best to assist you. But the Director, of course, has no control or influence over the independent actions of the Mainland authorities. Your hearing has been put last in case there are any delays with the Mainland authorities. 19.So that all of you understand what I have said – because I have told you a lot of things – I am going to have my words reduced to in print and translated into Chinese characters. A copy, in English and Chinese characters, will be posted to each of you to the address which we have or to the address which you will give to my clerk. 20.So it is your responsibility this morning to make sure you give to my clerk a postal address where this document will reach you. Mr Chung, will come outside with you and will confirm these addresses with you. 21.So please go outside now; please wait for him and deal with him one by one.
Applicants, in person Mr Joseph Fok, SC, and Mr Daniel Wan, instructed by Department of Justice, for Respondent 中譯本 HCAL 81/1999 香港特別行政區 高等法院 原訟法庭 憲法及行政訴訟案件1999年第81號
在夏正民法官席前 指示日期：2007年5月3日 指 示 1.在我們的法律體系內，你怎樣準備你的案是你的事。如果你們哪一位上訴成功， 那麼他或她的案自然會由法律援助律師提出。如果你們上訴不成功，那麼你們打算怎樣處理是你們各人的事。你可以去找你自己的私人律師，而你也可以到庭自己就你的案進行爭辯。正如本席所說，那是由你決定。同樣地，你是否繼續進行你的案也是由你決定。 2.因此，本席打算給你們各人的聆訊日期。這些全都是今年九月份的日期。本席會在你的聆訊日期聆訊你的案。如果你上訴成功因而有法律援助律師，那麼本席會聆訊由你的大律師提出的案。如果你（上訴）不成功，那麼本席會聆訊由你自己提出的案或由不管是你還是你家人聘請的律師所提出的案。 3.如果你出庭自己就你的案進行爭辯，本席會協助你了解法律程序和在這些法律程序中，甚麼事你可以做與甚麼事你不可以做。但是記住，本席不能以你的律師的身分行事。本席是法官。本席一定要公正無私。 4.如果你打算出庭自己就你的案進行爭辯，你一位朋友或家人可以在旁邊協助你。雖然這個人不能代表你發言，但這個人可以幫助你打理你手上的文件而且也許能夠提醒你問甚麼問題之類。 5.你們各人的審訊本席稍後會個別安排審訊日期。如果你在該日期沒有出庭，本席會假設是你沒有興趣再繼續進行下去，或者是你樂意讓你的事項在你缺席時獲得裁定，而本席會在你缺席的情況下著手處理你的案。在這種情況下，本席當然會盡力公正地考慮所有證據。但是如果你沒有出席，本席自然沒有機會讓你的說法協助本席。 6.因此，如果你不會出庭就你的案進行爭辯，也不會有律師代表你進行爭辯，無論原因是甚麼，你必須盡快通知本席，也就是在你的聆訊日期之前盡早通知本席。那麼，如果你不會在那特定時間出庭是有好的理由 — 而這必須是好的理由，我們會嘗試為你安排另一個更合適的時間讓你出庭。但是你必須明白，本席不應在本席將會給你的日期內著手聆訊你的案的理由一定要是好的本席才會接納。 7.本席認為，你去防備你法律援助上訴不成功才是明智的做法。本席的意思是，你必須問自己：「如果我上訴失敗，我怎樣？我找律師嗎？我出庭自己處理嗎？」因為假使你在九月來到本席席前說：「我在七月才知道我法律援助上訴的結果，我從此沒有時間整理好我的文件。」，這樣是幫不了你的。而事實就是，從今日起你可以開始整理你的文件。無論從事哪一行業，聰明人恐防事與願違而必會早有準備。本席指示你們採取明智的行動。 8.在本席給你們各人的聆訊日期之前，本席一定要提及的最後一件事就是：身為本庭的法官，本席須向終審法院負責。終審法院將會在6月28日就較早前已聆訊的案件聆聽律師的陳詞。在該聆訊陳詞的過程中，有可能會談及你們這種處境的申請人，也就是由於法律援助署認為他們的案缺乏充分理據或成功機會不大而撤回或取消法律援助的申請人。如果終審法院就像你們一樣失去法律援助的申請人作出指示，那麼很明顯本席一定會遵循這些指示。如果因此令你們案件的聆訊有所改變，會盡快通知你們。 9.現在本席給你們各人的聆訊日期。 [與大律師就分配給各案的時間簡短地進行討論] 10.904號申請人，本席最後才處理你的事項。本席稍後對你說話時會告訴你這是甚麼原因。 11.第一位申請人是1771號申請人。在9月10日（星期一）和11日（星期二）會聆訊你的案。 12.現在本席轉到2979號申請人。在9月12日和13日會聆訊你的案。那是星期三和星期四。 13.現在本席談到4138號申請人。在9月14日（星期五）和9月17日（星期一）會聆訊你的案。 14.現在本席談到5075號申請人。在9月18日（星期二）和19日（星期三）會聆訊你的案。 15.本席談到5440號申請人。在9月20日（星期四） 和21日（星期五）會聆訊你的案。 16.本席向各位再次強調，（也許本席用一個生動方法來說明）這些日期是已經刻在石頭上。本席獲知，本席剛給予日期的各位是自簽擔保的。據本席理解，這就表示你們在香港逗留直到你們各案的聆訊是沒有困難的。 17.現在本席談到最後一位申請人，即904號申請人。在9月24日（星期一）和25日（星期二）會聆訊你的案。你這兩日也是已經刻在石頭上。就904號申請人而言，本席獲知你在香港的逗留期限大約在7月7日到期。故此，為了你案的聆訊，要由你去申請回來香港。 18.本席獲知，香港入境事務處處長會盡力協助你。但是，處長不能控制或影響大陸當局獨立自主的行動。你的聆訊安排在最後以防大陸當局有任何延誤。 19.為了使你們各位都了解本席所說過的話— 因為本席對你們說了很多 — 本席會（委派人）把本席說過的話錄成文字然後譯成中文。中英文各一份會寄去我們手上各位的地址或稍後你們給本席的書記的地址。 20.故此，今早是你們負責確保你們各自給本席的書記一個這份文件會寄達你們的郵遞地址。鍾先生會與你們到庭外，和你們確定這些地址。 21.現在請到庭外，等候鍾先生逐一處理你們的事。
申請人（無律師代表） 律政司委託霍兆剛資深大律師和溫孝庭大律師 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 Date of Directions : 25 May 2007 --------------------------- D I R E C T I O N S --------------------------- 1.In our system of law, how you prepare for your cases is a matter for you. If you are successful in your appeals, or some of you are successful in your appeals, then, of course, your case will be presented by your Legal Aid lawyer. If you are not successful in your appeals, then it will be a matter for each of you how you wish to proceed. You may wish to get your own private lawyer, or you may wish to come to court yourself to argue your own case. As I have said, that is your decision. Equally, it is your decision whether you wish to proceed with your case at all. 2.I therefore intend to give each of you your hearing dates. These dates will be in September of this year. When your dates arrive, I will hear your case. If you have Legal Aid counsel because you have been successful in your appeals, then I will hear the case presented by your counsel. If you have not been successful, I will hear the case presented by you personally or by any lawyer that you or your families may have employed. 3.If you appear on your own to argue your case, I will assist you in order to help you understand the proceedings and what you can or cannot do during those proceedings. But remember, I will not be able to act as your lawyer. I am the judge and I must be impartial. 4.If you are going to appear on your own to argue your case, you may have somebody with you – a friend or a family member – to give you assistance. That person cannot speak for you but that person may perhaps help you with necessary papers that you have and may be able to remind you of questions to ask : things of that kind. 5.If you do not appear on the dates that I’m going to give each of you for your trials, I will assume either that you are not interested in proceeding further or that you are happy for the matter to be determined in your absence and I will proceed to deal with your case in your absence. In that case, I will, of course, do my best to look at all the evidence as fairly as I can. But if you are not present, of course, I will not have the benefit of your side of the story to assist me. 6.Accordingly, if, for any reason, you will not be able to appear to argue your case and you will not have a lawyer to argue it for you, you must let me know as soon as possible, that is, as well ahead of your hearing date as possible. Then, if you have a good reason – and it must be a good reason – for not appearing at that particular time, we will try and arrange for you to appear at another more suitable time. But you must understand that I will require a good reason why I should not proceed to hear your case on the dates I’m going to give you. 7.I think that it would be advisable for you to take precautions in case your Legal Aid appeals are not successful. By that I mean you must ask yourselves : “What do I do if my appeal fails? Do I get a lawyer? Do I appear on my own?” Because it is not going to help you to say, when you come before me in September : “I only learnt about my Legal Aid appeal in July and I haven't had time since then to get my papers in order.” Because the fact is that you have from today to start getting your papers in order. A wise person – it doesn't matter what field of business they are in – always makes plans in case things do not go as they hope, and I am telling you to act wisely. 8.There is one final thing I must mention to you before I give each of you your hearing dates. I, as a judge of this court, am answerable to the Court of Final Appeal. The Court of Final Appeal will be hearing submissions from the lawyers on 28 June concerning earlier cases that have been heard. During that hearing, it is possible that something will be said about applicants in your situation, that is, applicants who have had their legal aid removed because the Legal Aid Department considers that their cases lack merit. If the Court of Final Appeal gives any directions concerning applicants like you, that is, applicants who have lost their legal aid, then obviously I will have to obey those directions. If this results in any change to the hearing of your cases, you will be informed as soon as possible. 9.What is set out above is what, a couple of days ago, I told a number of other applicants who have had their legal aid removed. 10.So that you do not forget what has been said, I will send you my directions in written form. I will also send a translation in Chinese characters. To ensure you receive these papers, it is your responsibility to make sure that you give to my clerk a postal address where you can be reached. My clerk will meet you outside the court immediately after this. 11.I now move to your dates of hearing. 12.The first person is applicant 4682. Your case will be heard on Thursday, 27 and Friday, 28 of September of this year. 13.The second person is applicant 2300. As not all of your case has been reduced to writing, your case may take a little longer. I am therefore giving you three days. So your case will be heard on Tuesday, 2, Wednesday, 3 and Thursday, 4 of October of this year. 14.I now move to the third applicant, applicant 4625. Your case will be heard on Friday, 5 and Monday, 8 of October. 15.Applicant 4625, I understand that you are not here on recognizance but on a limited stay. You have to go back tomorrow or the next day. I am told, however, that, if you speak to the immigration authorities, they will do the best they can to assist you to get an extension of stay or something similar. 16.So please go outside now. Please wait for my clerk and deal with him one by one. As for applicant 4625, an immigration officer will also come and speak to you.
Applicants, in person Mr Joseph Fok, SC, and Mr Daniel Wan, instructed by Department of Justice, for Respondent |
Cases cited in this judgment
Further hearings and rulings under HCAL 81/1999