Ng Siu Tung and Others v. The Director of Immigration

FACV No. 1 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2001 (CIVIL)

(ON APPEAL FROM CACV NO. 415 OF 2000)

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Between

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

Date of Hearing: 28 June 2007

Date of Judgment: 25 July 2007

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J U D G M E N T

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

Introduction

1.In a judgment delivered on 30 July 2002, (2002) 5 HKCFAR 499, (“the July 2002 Judgment”), this Court remitted certain factual issues to Hartmann J for determination in respect of those applicants in this appeal who claim to have a right of abode in Hong Kong based on the Government’s Concession Policy (“the Concession Policy”) announced on 26 June 1999 and whose appeals cannot be disposed of by agreement pursuant to the directions given in the July 2002 Judgment. On 7 February 2007 and 1 June 2007, the judge submitted his Fourth and Fifth Reports respectively (“the Fourth Report” and “the Fifth Report”).

2.In the Fourth Report, the judge dealt with seven applicants. One of them (Applicant No. 2999) subsequently consented to a dismissal of his appeal, leaving six applicants whose appeals require to be disposed of by this Court. They are Applicants Nos. 3085, 4058, 3350, 3343, 2658, and 914.

3.Only one applicant (Applicant No. 3681) was dealt with in the Fifth Report. This was because 10 others had their legal aid certificates discharged only shortly before the hearing scheduled before the judge. One of them had returned to the Mainland and no response was received from him. The other nine had lodged appeals against the discharge of legal aid, resulting in the hearing of their cases before the judge having to be aborted. The judge, who was rightly concerned that there should be no further delay, subsequently fixed dates in September and October 2007 for hearing these cases.

4.At the hearing which led to the Fourth Report, in the course of discussing the number of applicants whose appeals are still outstanding, the attention of the judge was drawn to the case of Applicant No. 2144. It transpired that he was detained in prison in the Mainland and would not be released for at least a few years.

5.There are thus four matters which are presently to be dealt with by this Court:

(1) the appeals of the remaining six applicants whose cases were dealt with in the Fourth Report;

(2) the appeal of the applicant whose case was dealt with in the Fifth Report;

(3) the application made by the Director of Immigration (“the Director”) for directions as to how the appeal of Applicant No. 2144 should be disposed of; and

(4) the Director’s ex parte application on notice seeking an order that the remitter in respect of 11 applicants (including the 10 mentioned in paragraph 3 above) whose legal aid had been discharged be rescinded and that further directions be given in respect of these appeals.

Applicants dealt with in the Fourth Report

6.The six applicants before this Court who were dealt with in the Fourth Report had testified before the judge and called their parent or parents or relatives to give evidence on their behalf. In respect of each of them, the judge found that he or she did not make any claim for right of abode and the Director had no record of any claim. The Fourth Report set out in detail the evidence in respect of each of these cases, the judge’s analysis of the evidence and his conclusions. It is not necessary for the present purpose to repeat them in this judgment save as follows.

(1) Applicant No. 3085 – Madam Sze Lai Ha

Her case was that having overstayed for more than two months, when she surrendered to the Immigration Department on 12 August 1997, she made a claim for right of abode but was prevented from recording her claim on the Grounds for Non-removal Form (“the GNR form”) as a result of the oppressive conduct of the interviewing officer. The judge rejected her evidence holding that it was “unconvincing, smacking constantly of invention”, a “gross post-rationalization, effectively an invention”. (Paragraphs 51 and 58 of the Fourth Report)

(2) Applicant No. 4058 – Madam Yang Xiu Hua

Her case was that on 12 August 1997, she went with her father to the Immigration Department to see whether it was possible to pursue her claim for right of abode, that as a result of the officer’s stern and abrupt attitude, she was frightened and did not write down her claim as she had wished and that she was also not allowed to get details of her father’s identity card. The judge did not accept her evidence, commenting that her allegation of misconduct on the part of the officers was “at worse [sic.] an invention, at best a gross exaggeration”. (Paragraph 93 of the Fourth Report)

(3) Applicant No. 3350 – Madam Tse Lai Yuk

She alleged that after she was arrested for overstaying on 28 November 1997, she had made a claim for right of abode on two occasions: first, when she was interviewed under caution at the police station and secondly, when she was later brought to the Victoria Immigration Centre and interviewed again. However, because she only spoke the Fuqing dialect which the interviewing officers and the interpreter did not understand, her claim was not recorded as it should have been. The judge however found that contrary to her allegation, she had a working knowledge of Putonghua in which she communicated with the officers and the interpreter. Her allegation was described by the judge as “manifestly tactical and did not reflect the truth.” (Paragraph 148 of the Fourth Report)

(4) Applicant No. 3343 – Mr Tse Chung Ching

His case was that after several previous futile enquiries, finally on 3 September 1997 he surrendered to the Immigration Department where he was asked to fill in a GNR form and an ID 457 form. He said that when he was interviewed, he put down a claim in the GNR form but the form was torn and thrown away by the interviewing officer. The judge found that it was a routine surrender; that his case “was invented or, if not invented, grossly distorted in order to create a substantive application”, and that what he had allegedly written did not in any event amount to a claim. (Paragraph 195 of the Fourth Report)

(5)     Applicant No. 2658 – Madam Ng Mei Ling

She alleged that on 8 July 1997, she went to the Immigration Department with her husband, her father and father-in-law to make a claim; that her father produced his identity card and she showed her two way permit to the officer, but the officer refused to look at the documents or accept any copies; that she turned them away asking her to bring her children on the following day; and that she did not do so for fear that she and her children might be arrested and repatriated like her husband. She produced in court what she said was a copy of her parents’ identity cards that were shown to the officer on the day in question. The judge however discovered that those documents were manufactured by her and that her allegation was an invention. (Paragraph 245 of the Fourth Report)

(6) Applicant No. 914 – Madam Chong Lai Wa

She had overstayed since 1995 and was arrested on 22 November 1998. In her earlier affirmation, she said that when she was interviewed by the police, she made a claim for right of abode. However, in her evidence in court, she did not say she had made a claim. The judge was satisfied that she did not and there was no record of any claim. (Paragraphs 262 and 272 of the Fourth Report)

7.Although Messrs Barnes & Daly are still their solicitors on record, each of the applicants filed and made submissions on his or her own. The effect of their submissions is that the judge was wrong to make the findings concerning them and that they qualify under the Concession Policy. As we said repeatedly in our previous judgments dealing with the earlier reports, in order to succeed, each of the applicants must show that the judge was wrong in making the findings of fact in respect of his or her case in that there is no basis to support those findings or the judge had overlooked evidence in his or her favour; or alternatively the judge had misdirected himself as to the effect of the evidence.

8.The judge of course had the advantage of hearing all the witnesses including the applicants. In our view, he had thoroughly and fairly assessed all the evidence before making those findings, giving sound and cogent reasons for rejecting the applicants’ cases. Having carefully considered the submissions presented by these applicants, we are not satisfied that the judge was wrong or had misdirected himself. The appeals of these six applicants must be dismissed.

Applicant dealt with in Fifth Report

9.Applicant No. 3681, Madam Wong King Fan, said that on 16 July 1997, she went with her sister and father to the Immigration Department and made a claim for right of abode at the reception counter, but did not write this down in the ID 457 form when she was later interviewed by an officer because she was threatened with imprisonment by the officer if she attempted to do so. The judge accepted that she did make a claim at the General Investigation Section (“the GIS”) counter, but rejected her evidence that she had made a claim before the interviewing officer and that there was no record of her claim because she was threatened by the officer. The judge took the view that “a good deal of her testimony therefore was created to advance her case without any regard for its truth.” (Paragraph 69 of the Fifth Report)

10.Her counsel, Mr Kwok Sui Hay together with Mr Sean H J Fang, did not challenge these findings of fact. Accepting that the Director did not have a record of her claim, what Mr Kwok seeks in effect is a waiver of the record requirement in respect of Madam Wong’s case. As we understand it, his rather subtle submission can be summarized as follows. Officers of the Immigration Department had previously alleged that there was a practice to the effect that if a person had made a claim for right of abode at the reception counter, that person would be brought before a more senior officer for an interview and a record of such interview would be kept. If, counsel submits, there was indeed such a practice or if this practice was adhered to by the immigration staff, there would inevitably be a record of the claim. However, the documents relied on by the officers did not, Mr Kwok argues, establish that such a practice had existed and even if it had, it was never followed, as in the case of Madam Wong. That being the case, applicants in the same position as Madam Wong who had made a verbal claim for right of abode at the reception counter would have no opportunity to have a record of their claim kept in the files of the Director. It follows that it would be quite unfair to insist on the record requirement for this category of applicants. Such requirement should be waived in their case.

11.This submission cannot be sustained. As we said in our judgment delivered on 10 January 2002 (“the January 2002 Judgment”), the record requirement is a separate and discrete requirement for the implementation of the Concession Policy. It is a reasonable and rational application of that policy. Without such a requirement, it would be extremely difficult, if not impossible, to implement the policy. (See paragraphs 210 and 211 of that judgment.)  This requirement is not linked to any particular practice or arrangement adopted at the relevant time. As Mr Fok SC leading Mr Daniel Wan for the Director, points out, at that stage, the Immigration Department had introduced a number of practices and arrangements intended to cope with the large number of persons making enquiries or lodging claims for right of abode all at the same time. Any deficiency in those practices and arrangements, unless it involves oppression or misconduct on the part of immigration staff, cannot be relied on by an applicant to excuse the absence of a record of a claim or to support the argument that the record requirement could or should have been satisfied. In the July 2002 Judgment, we made it clear that:

“In cases where nothing capable of amounting to the required record of a claim for right of abode exists, the applicant necessarily falls outside the Concession. The argument that a record ought to have come into existence if the applicants’ claims had duly been noted is not an answer to the requirement that there must be a record of the claim in the possession of the Immigration Department.” (paragraph 31)  

12.There is no basis for submitting that the record requirement can be waived in the case of Madam Wong or any person in a similar situation as that of Madam Wong.

13.In any event, Mr Kwok’s submission does not assist Madam Wong’s case.  The judge had expressly found that she had not made any claim during the subsequent interview and did not believe that there was no record of her claim because she had been threatened by the interviewing officer. There is no challenge to such findings. That must be the end of her case. Her appeal must be dismissed.

Applicant No. 2144 – Mr Leung Wai Keung

14.As mentioned earlier, this applicant was said to have committed a criminal offence in the Mainland and was sentenced to imprisonment there for 5 or 6 years. It would seem that it is unlikely that he would be released in the next two to three years. The Director is concerned that if the appeals of the last batch of applicants are to be disposed of in the near future, his case is likely to be the only one left but cannot be dealt with for a very long time. In seeking directions from this Court, it is suggested that there are three possible options: (1) this applicant’s case be heard in his absence; (2) his case be adjourned until after his release from prison; and (3) his case be dismissed without prejudice to his right to recommence fresh proceedings as he wishes and when he is ready.

15.Mr Fok SC submits that the first two options are not really feasible. With regard to the first option, he argues that in view of the allegations made by this applicant, it would be unfair and unreasonable that the Director should be deprived of an opportunity to cross-examine the applicant on his case. This applicant, it is said, was arrested while he was trying voluntarily to return to the Mainland after his two way permit had expired; it is alleged by him that he had made a claim for right of abode at the Lo Wu Checkpoint and again when he was investigated at the GIS of the Immigration Department, and that the record of his claim appeared in an ID 457 form completed at the GIS on which the particulars of his parents’ Hong Kong Identity Cards were written (apparently not in his own hand). The Director wishes to challenge the veracity of his case, in particular the circumstances under which the ID particulars were given. It is submitted that it would be difficult if not impossible for the court to make any reliable finding without testing the applicant’s allegations by cross-examination. The second option, counsel submits, is also not viable by reason of the serious problems which might arise in relation to the resolution of his case in view of the uncertainty as to the time when the applicant would be released from prison. Counsel commends the third option as the most reasonable solution, because it is not known whether the applicant would still want to pursue his case after his release from prison; but his right will not be prejudiced since he can always start fresh proceedings based on any new removal order which might be made in respect of his future presence in Hong Kong.

16.On the other hand, Ms Gladys Li, SC submits that the Director’s suggestion is in effect asking the Court to dismiss this applicant’s case for want of prosecution without the requirements for exercising such a discretion being satisfied. Counsel accepts that it is unsatisfactory to wait until the applicant’s release to proceed with his case. However, she argues that there is nothing to stop the case from being heard in his absence since both parties have filed a sufficient amount of documentary materials before the court and the applicant’s father is always ready to testify as a witness on behalf of the applicant.

17.We do not find the second and third options acceptable. It is obviously unreasonable and unsatisfactory to keep the applicant’s case pending for a long and uncertain period of time. This litigation has, because of the large number of applicants involved, been going on since 1999 and the events were alleged to have occurred nearly 10 years ago. If the case of this applicant is to be dragged on for another few more years, it would then be most unsatisfactory to the witnesses involved (including the applicant’s aged father, not to mention the immigration staff) to be asked to recollect and be cross-examined on what happened in the early years after the handover. However, to dismiss the applicant’s case even without prejudice to his right to recommence fresh proceedings in future is inappropriate for the reasons submitted by Ms Li, particularly in view of her indication that the parties can proceed with the case now. The perceived difficulties facing the Director are not insurmountable. The possibility of taking the evidence of the applicant in the Mainland, either through an examiner and/or by telecommunication means, can and should be explored by the parties. If this should prove for whatever reason to be impractical after due efforts have been made, the question of admissibility of the applicant’s affirmations or statements at the hearing without calling him can be dealt with by way of hearsay notices and counter-notices, and no doubt the court can decide whether to accept such evidence and if so, the weight to be attached to it. While we perfectly understand the Director’s position, we take the view that in the circumstances of this case, the fairest way to deal with this applicant’s case is to adopt the first option and we so direct. 

Applicants whose legal aid had been discharged

18.When this litigation was first commenced in the Court of First Instance in 1999 (HCAL No. 81 of 1999), there were more than 5000 applicants. They were all on legal aid. The main legal issues were determined by this Court in the January 2002 Judgment. Since then, most of the applicants have had their cases disposed of according to the principles decided in that judgment and the directions given in the July 2002 Judgment. The vast majority of the cases were disposed of by agreement while others were decided by this Court following Hartmann J’s five reports.

19.We are told that there are now only 14 applicants left. Of these remaining applicants, 11 of them had their legal aid certificates discharged. They are Applicants Nos. 904, 1771, 2979, 4138, 5075, 5440, 4682, 2300, 4625, 5286 and 4581. Mr Fok submits that the discharge of their legal aid was based most probably on the ground that there are no merits in these cases. It is also pointed out that so far, a substantial amount of court time had been consumed and legal costs incurred to bring all the cases before Hartmann J but most of them turned out to be totally unmeritorious. In respect of these 11 cases, there is little prospect of success because even making the assumption that all of the applicants in these cases had made a claim for right of abode to the Immigration Department, there is no record of any of their claims. That being the case, it would be futile to waste further time and costs to have them heard before Hartmann J.  Counsel seeks an order that the remitter in respect of these 11 cases be rescinded so that they can be dealt with by this Court and in this connection, he asks for further directions on how to dispose of these cases.

20.We do not think we should accede to this application. First, whatever the reason for having their legal aid discontinued, we cannot assume that the cases of these applicants are completely without any prospect of success. That the Director does not, as a matter of fact, have any record of a claim by any of these applicants does not preclude any of them from seeking to show that the absence of a record was the result of oppressive or improper conduct on the part of the immigration staff and that he or she could have written down a claim in some of the immigration documents, had he or she been allowed to do so. Secondly, apart from two applicants from whom no response was received, the other nine applicants have all been given hearing dates in September and October to show that they fall within the Concession Policy. Having waited for 8 years, they should not be deprived of their day in court now simply because the Director, rightly or wrongly, considers that their cases are weak or even hopeless. This would certainly create a sense of grievance for these applicants. To dispose of their cases in a summary way at this stage of the litigation is not justified by the desire to save time and costs.

Conclusion

21.For the reasons discussed above, we make the following orders:

(1) the appeals of Applicants Nos. 3085, 4058, 3350, 3343, 2658, and 914 be dismissed;

(2) the appeal of Applicant No. 3681 be dismissed;

(3) the appeal of Applicant No. 2144 be heard in his absence; and

(4) the application to rescind the remitter in respect of the appeals by Applicants Nos. 904, 1771, 2979, 4138, 5075, 5440, 4682, 2300, 4625, 5286 and 4581 be refused;

(5) there be no order as to costs for this hearing; and

(6) the applicants’ own costs be taxed according to Legal Aid Regulations.

22.Once again, we acknowledge that we have been greatly assisted by the two comprehensive reports prepared by the judge in connection with these cases.

Mr Justice Bokhary PJ:

23.Adhering to my minority view in favour of all the abode-seekers, I respectfully join the refusal to rescind the remitter.  With the last of these sad cases in sight, I cannot help wondering what could be more in keeping with the true spirit of reunification, now in its tenth year, than a humanitarian exercise of executive discretion in favour of the abode-seekers still here in this city of, after all, immigrants.

Mr Kwok Sui Hay and Mr Sean H J Fang (instructed by Messrs Barnes & Daly and assigned by the Legal Aid Department) for the applicant/appellant 3681

Ms Gladys Li SC, Mr Kwok Sui Hay and Mr Sean H J Fang (instructed by Messrs Barnes & Daly and assigned by the Legal Aid Department) for the applicant/appellant 2144 and applicants/appellants 904, 1771, 2979, 4138, 5075, 5440, 4682, 2300, 4625, 5286 and 4581 whose legal aid has been discharged

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