Ng Siu Tung and Others v. Director of Immigration

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

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BETWEEN

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Before : Hon Hartmann J in Court

Date of Handing Down Report : 4 January 2008

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SIXTH REPORT TO THE COURT OF FINAL APPEAL

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Introduction

1.This report concerns the determination of 14 applications.

2.The first 11 applications were made by persons whose legal aid had been withdrawn from them on the basis that there was no merit in their applications.  In particular, as I understood it, it was said that in respect of each application, even if a claim for right of abode had been made, there was simply no record of it.

3.In my determination of these 11 applications, I was satisfied that there was no record and on this basis alone each had to fail.

4.A number of these applicants conceded that there was no record of their claims in the possession of the Immigration Department but submitted that this was due to the oversight, negligence, brusk conduct (falling short of intimidation) or poor practice on the part of immigration officers.  It was their submission that there would therefore have been a record if there had been no failure on the part of those officers of the kind described.  In my judgment, this submission was of no assistance to them.  In the judgment of the Court of Final Appeal dated 30 July 2002 (Ng Siu Tung and Others v. Director of Immigration (No.2) (2002) 5 HKCFAR 499, paras.30 and 31 the following was said :

“

It is submitted on behalf of the applicants that in all these cases, the absence of a record in the hands of the Immigration Department is due to deficient practices adopted by officers of that department.  The Court is therefore invited to treat these applicants as having met all the requirements of the Concession notwithstanding the absence of a record.

We cannot accept that this is how the January Judgment is to be applied.  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.”

5.Applicant 4581, Madam Hui Ching Na, may originally have been given legal aid but there had been no contact with her since early 2000.  Her application was heard in her absence.  It was not successful.

6.Only two applications were presented by counsel.  They are the last two in this report; namely, the applications of Mr Yeung Ka Wong (5088) and Mr Leung Wai Keung (2144).  Neither was successful.

7.As things stand, I am informed that all the applications referred to me have now been determined.  There are no outstanding applications.

8.Before concluding, it should be said that in October 2007, during the course of this last hearing, I received a large number of letters which can best be described as petitions.  The letters came in the main from applicants whose claims had already been heard and dismissed.  In broad terms, the letters asked me to exercise my discretion to review the applications and, whether on compassionate grounds or otherwise, to grant right of abode.  Some letters were received from persons who had never been claimants or who wrote on behalf of children who had never been claimants.  These people asked for their cases be taken into account.

9.All of the letters were written in Chinese characters.  Regrettably, therefore, before I could begin to consider them, they had to be translated.  This presented the Department of Justice and the Immigration Department with an unenviable task.  A delay in completion of the work was inevitable.  In the result, two files containing all relevant papers and translations were only delivered to me a few days before Christmas.

10.I am in the process now of acknowledging each letter, explaining briefly that I have a limited mandate and can be of no assistance to them and that, if they wish to take their matter further, they should first seek legal advice.

Madam Kwok Ching Man (4625, a ‘group one’ applicant)

11.The applicant was born in Fujian Province in 1970.  She was one of five children in the family.  Her father settled in Hong Kong in 1976, her mother joining him in 1984, bringing one child of the family with her.  By the change of sovereignty, both of the applicant’s parents were permanent residents.

12.The applicant married in the Mainland in 1991.  There are two children of the marriage.  

13.It was the applicant’s case that in early 1997 she discussed with her parents the possibility that, when the change of sovereignty took place, children of Hong Kong permanent residents would be able to obtain Hong Kong identity cards.  In anticipation of this happening, she said, she and her husband were able to obtain two-way permits to visit Hong Kong.  At that time there was only one child of the family, a daughter, and a permit was obtained for her too.  The family arrived in Hong Kong on 22 April 1997, being permitted to remain until mid-May.

14.As her husband did not have parents living in Hong Kong, he returned to the Mainland in accordance with the terms of his two-way permit.  The applicant and her daughter overstayed.  She overstayed, said the applicant, hoping that, when the change of sovereignty took place, both she and her daughter –then aged about 5 – would be able to obtain Hong Kong identity cards.

15.However, when the change of sovereignty took place, the applicant discovered that there was no general amnesty.  She was aware that people were being arrested and repatriated.  But she was also aware, she said, that people in her position were fighting for right of abode and that litigation was in process.  This encouraged her, she said, to remain in Hong Kong to await developments.

16.It was the applicant’s testimony that she would have continued to await developments in Hong Kong if it was not for the fact that, towards the end of 1997, she received a telephone call from her husband saying that she must return to the Mainland.  Her husband, she said, had been contacted by the local health authorities to say that the applicant was due for a ‘contraceptive check-up’.  In her affirmation of 21 March 2007, the applicant said the following in respect of this apparent requirement :

“	The local authorities required all pre-menopausal woman to attend a local clinic every three months to ensure that contraceptive measures were in place.”

17.According to the applicant, she was afraid that, if she did not return, her husband may be arrested.  In her affirmation, she said that she was also concerned that her parents-in-law may be arrested too.

18.Accordingly, she said, on 2 December 1997 she went to the Immigration Tower with her daughter.  They were accompanied by the applicant’s mother and the applicant’s younger sister who had settled in Hong Kong several months earlier.  As to the primary purpose of that visit, the applicant, who was supported in this by her younger sister, said that she wished to see if it was possible to claim right of abode and remain in Hong Kong.  The applicant explained her purpose in the following way.  If it was possible to claim right of abode, there would be no need for her to return to the Mainland.  She would then be able to advise the local authorities in Fujian Province that she had been accepted as a permanent resident in Hong Kong and was no longer subject to their jurisdiction. 

19.However, in her affirmation of 21 March 2007, the applicant did not state her purpose in such clear terms.  In that affirmation, she said that she felt she had no choice but to return to the Mainland.  As for her desire to discover whether she was entitled to right of abode, she went on to say the following :

“

At that time, I really did not understand what a claim was or what constituted making a claim.  Although at that time my main purpose was to return to the Mainland for the contraception check, I wanted to, and am sure I did, make it clear to the officer that my parents were Hong Kong Permanent Residents and I wanted to settle in Hong Kong.”

20.During the course of cross-examination, it was put to the applicant that she had not been under any form of coercion imposed by the health authorities in Fujian Province in late 1997.  It was put to her that she had surrendered herself for the simple reason that, some five months after the change of sovereignty and with no general amnesty announced, she appreciated that nothing was to be gained by remaining in hiding in Hong Kong and that it would be best to return to the Mainland to join her husband.  This was denied by the applicant.  However, in a statement prepared for the Removal Special Project Sub-Division of the Immigration Department in May 2000 – just some two and a half years after the event in question – the applicant, when describing her visit to the Immigration Department, made no mention of any need to return to the Mainland to undergo a contraceptive check-up.  Her statement was instead to the following effect :

“

However, after Hong Kong’s reunification on 1 July, no announcement had been made all along.  Therefore, on 2 December 1997, my family and I, with the permit for traveling to and from Hong Kong and Macau, went to the Immigration Department to make request for application for right of abode.  But the officer of the Immigration Department said that there wasn’t yet any mechanism for application for the right of abode in Hong Kong and I had to return to the Mainland to make the application.  After officer of the Immigration Department had looked at my document, he/she said that I had already overstayed and if I didn’t leave, I would be prosecuted.  At that time I was frightened and did not know that application for legal aid could be made.  So I just did as was told by the officer and surrendered myself and returned to the Mainland.”

21.The failure in the statement made in 2000 to mention any requirement to return to the Mainland for a contraceptive check-up has obviously raised the concern that it was a late invention, one created to try and explain why the applicant surrendered herself in December 1997.  However, despite that concern, I believe that the applicant may well have desired to discover whether she could claim right of abode.  Her younger sister put it in direct terms.  She said that the applicant wished to discover one-way or the other whether, by reason of her parents’ permanent residence, she was entitled herself to live in Hong Kong.

22.The applicant impressed me as an essentially credible witness.  She was calm, almost gentle.  She was not prone to exaggeration.  Her younger sister too, although somewhat more emotional, struck me as a credible witness.

23.If the applicant was called back to the Mainland for a contraceptive check-up – and there was no evidence to the contrary – I can well understand her feeling that the time had come to discover one way or the other whether she had any entitlement to live permanently in Hong Kong.

24.Both the applicant and her younger sister said that, upon arrival of the Immigration Tower, they went initially to make enquiries.  On the evidence, it is clear that they went to the enquiry counter on the 2^nd floor.  The applicant’s younger sister said that, as she spoke Cantonese the best, she spoke on behalf of the applicant.  Although she could not remember exactly what she had said, she told the officer at the counter that the applicant’s parents were permanent residents and she then asked if in the circumstances the applicant herself was entitled to stay in Hong Kong.  The officer, she said, asked to see the applicant’s two-way permit and, as the younger sister remembered it, replied to the effect that, as the applicant was the holder of a two-way permit, she was not entitled to remain in Hong Kong.  The officer then directed them to the offices of GIS on the 13^th floor.

25.At the offices of GIS, it was again the younger sister who spoke to the officer at the counter.  When she testified, the younger sister said that she told the counter officer that they had been directed to this floor.

26.On reflection, the younger sister could not remember – understandably after such a long lapse of time – whether she made her enquiry at the enquiry counter on the 2^nd floor or at the reception counter of GIS on the 13^th floor.  It was the clear thrust of her testimony, however, that she made only an enquiry. 

27.The younger sister went on to say that, having presented herself at the reception counter of GIS, she was then given an ID 457 form to complete.  She said that she had no idea of the purpose of the form.  She simply completed the details that she was capable of completing.  She was the one who completed the form for the applicant.  Indeed, she also completed a second form for the applicant’s daughter.

28.Nothing appears on the face of the ID 457 to indicate that the applicant’s parents were Hong Kong permanent residents.  Indeed, the applicant’s younger sister accepted that she initially wrote the character ‘nil’ in the column reserved for giving details of the Hong Kong identity card numbers of the applicant’s parents.  She then crossed out the character, she said, but did not replace it with anything else.

29.Both the applicant and her younger sister said that their mother, who had accompanied them to the Immigration Tower, had to report for work at 11 o’clock that morning and was therefore compelled to leave them before the ID 457 form was completed.  It was for that reason, they said, that her Hong Kong identity card number was not recorded on the face of the form.

30.After the form had been completed and handed back, the applicant was called for an interview.  She went in with her daughter.

31.Although the applicant could not remember the sequence of events during the course of the interview, she had some recollection of being asked by the interviewing officer, Mr Lui Chun Pong, whether her daughter had been going to school in Hong Kong.  She replied that her daughter had not been going to school.

32.The applicant recalled that she was then asked why she had overstayed and she replied that she had done so because she had wanted to be here when the change of sovereignty took place in order to remain permanently in Hong Kong.  According to the applicant, she was asked by the interviewing officer if she was talking about the rumoured amnesty.  She was told that there was no amnesty. 

33.The applicant said that she was then given a ‘grounds for non-removal’ form and, at the dictation of the interviewing officer, she wrote on that form.  The characters that she wrote were to the following effect :

“	I came to Hong Kong with my daughter Kwok [Wai] Sze on 22 April 1997.  I knew that we can stay in Hong Kong till 16 May 1997 but have overstayed because of keeping company with our family.  Now I and my daughter are willing to return to China.”

34.The applicant initially testified that she was happy enough to write the characters at the dictation of the interviewing officer.  However, she qualified this by saying that, when the interviewing officer asked her to write on the form, he did not explain “clearly and fully”, that she could write what she wished to write.

35.The applicant accepted that she did not object to what she was asked to write.  She accepted that she was under no particular form of compulsion.  It was rather her case that she did not know that she had a choice as to what she could write.  If she had been told by the interviewing officer that she could write whatever she wished, she said, she would have written exactly why she had overstayed; namely, that she had overstayed in anticipation of being able to obtain right of abode and still wished to do so.  As it was, she said, matters not being fully explained to her, she simply wrote what she was asked to write and put her signature to the document without complaint.

36.Although the interviewing officer, Mr Lui, had no independent recollection of the interview, he accepted that the characters written on the face of the ‘grounds for non-removal’ form must have been written with his assistance.  He would give assistance, he said, if it was needed.  It was his custom, however, to inform interviewees that they could write what they wished and certainly, he said, he would not prevent an interviewee from doing so.

37.On my assessment of all the evidence, when asked during the course of the interview why she had overstayed, I believe that the applicant may well have told the interviewing officer that, as the child of permanent residents, she had overstayed in anticipation of being able to live in Hong Kong permanently after the change of sovereignty.  In addition, I think that the applicant may well have told the interviewing officer that she still hoped to be able to live permanently in Hong Kong.  Objectively, I believe that would have amounted to a claim for right of abode, going further than a mere enquiry and amounting to a stated desire to remain permanently in Hong Kong based on the residential status of her parents.

38.That is not to say that I disbelieved the interviewing officer.  But it would have been so easy, even in the best of faith, to deflect a passing statement concerning a desire to remain in Hong Kong, to say simply that there was no amnesty.  The applicant, as I have said, struck me as an inherently gentle person, shy and unassertive.  There was no suggestion by her that she in any way debated the issue with the interviewing officer.

39.The difficulty, of course, is that there is simply no record of that claim.  Nothing is to be found in either the ID 457 form or the ‘grounds for non-removal’ form.  Nor is there anything to be found in any of the other papers retained by the Immigration Department.

40.It is not sufficient, in my view, for the applicant to say that, if the interviewing officer had fully explained matters to her, then she would have created a record.

41.In the circumstances, my determinations are as follows :

(i)	the applicant did make a claim of right of abode;
(ii)	the Director has no record of any claim.

Madam Lam Nga Li (applicant 1771, a ‘group one’ applicant)

42.It was this applicant’s case that she had made an oral claim for right of abode on two occasions while, on a third occasion, her mother had made a claim on her behalf and in her presence.

43.As to the existence of any kind of record of these claims, the applicant accepted that there was no record.  It was her assertion, however, that the fault for that lay not with herself but with individual immigration officers who neglected to record the claims.  This neglect, she said, amounted to a ‘dereliction of duty’.  The applicant did not at any time suggest that the immigration officers had refused to make a record of her claim nor that they had been guilty of oppressive conduct by threatening her or in some way preventing her from making a record.  Her case was restricted to an assertion of neglect.  However, for the reasons set out in my introduction, I did not consider this to be an answer to the admitted fact that there was no record in the possession of the Immigration Department.

44.The applicant was born in Fujian Province in 1970.  Her father settled in Hong Kong in 1978 and was joined by her mother in 1985.  The applicant’s younger brother and sister were able to settle permanently in Hong Kong with their parents, the applicant being the only member of the immediate family denied that privilege.

45.It appears that in 1993 the applicant made an application for a one-way permit.  However, this was refused by the Mainland authorities.

46.In January 1997, the applicant came to Hong Kong on the strength of a two-way permit.  She was permitted to remain until March of that year.  The applicant, who by then was married, was accompanied by her young daughter.  The applicant’s husband had come to Hong Kong a little earlier, his parents also being permanent residents.  However, being unable – at that time – to obtain a two-way permit, the husband had entered Hong Kong illegally.

47.It is apparent on the evidence that the family intended to remain in Hong Kong until the change of sovereignty took place, the expectation being that, as the children of permanent residents, they would then be able to benefit from an amnesty which would give them the same rights of residence as their parents.  The evidence in a considerable number of applications has shown that, in Fujian Province, in the months leading up to the change of sovereignty, there were widespread rumours of an amnesty.

48.At or about the time when the change of sovereignty took place, it appears that the applicant’s mother made enquiries at the Immigration Tower as to the existence of an amnesty.  On one occasion, said the applicant, she accompanied her mother to the Immigration Tower, going, she thought, to the 2^nd floor.  On each occasion, however, the advice given was to the same effect; namely, that any claim for permanent residence would have to be processed on the Mainland and not in Hong Kong.

49.Accordingly, the applicant accepted that, when the change of sovereignty took place, she quickly learned that there would be no amnesty.  However, she decided to remain in Hong Kong with her husband and daughter.  She was still hopeful of an amnesty, she said, and had heard that certain people had instituted litigation to challenge the lack of an amnesty.

50.In the result, the applicant remained in Hong Kong until March 1998.  At that time, according to her, a crisis arose which demanded her return to the Mainland.  The exact nature of this crisis was somewhat confused, different versions being given by the applicant and her mother.  But the applicant was the second person to speak of the need to return to the Mainland to undergo a contraceptive check.

51.Identification of any kind of crisis itself arose late in the day.  Several years earlier, in a case summary prepared by her first solicitors, Pam Baker & Co., the applicant had been recorded as saying that she had attempted to return to the Mainland because her request for right of abode had been refused and her daughter needed to start kindergarten.  To the same effect, when interviewed in May 2000 by the Removal Special Project Sub-division of the Immigration Department, the applicant had said :

“	As my request for staying in Hong Kong was rejected and my daughter, Yeung Chan Ni, had to return to the Mainland to start kindergarten, I decided to return to the Mainland myself.”

52.It was only in her affirmation of 18 January 2007 that the applicant spoke for the first time of a crisis.  She had learnt, she said, that her husband’s aunt had been arrested in Fujian Province for failing to comply with the operational dictates of the ‘one-child’ policy in the Mainland.  The aunt had apparently failed to attend a clinic for a mandatory contraceptive check-up.  The suggestion appeared to be made by the applicant that she was afraid that, if she herself did not return and submit to a mandatory check-up, she too may face some form of punishment including the possibility of her house being demolished.  When her mother testified, however, she said that the aunt had been arrested for the sole purpose of ensuring that the applicant herself returned to the Mainland for a check-up; in short, that the aunt had been detained as some sort of ‘hostage’.  The mother even spoke of the family planning authorities in Fujian telephoning Hong Kong to demand that the applicant return.

53.I have doubts as to the veracity of this evidence to explain the reason why the applicant was compelled to return to the Mainland, her case being that otherwise she would not have returned and would have remained in Hong Kong hoping for an amnesty.  Her earlier explanation, of course, had contained an implied acceptance that, having had her claim for right of abode rejected, she saw no purpose in remaining.

54.On 15 March 1998 the applicant attempted to pass through Lo Wu with her daughter and her father-in-law.  As an overstayer, the applicant was stopped and made the subject of an enquiry.

55.The interview record kept by the examining officer at Lo Wu shows that the reason why the applicant had overstayed for more than a year was investigated.  According to that record, it was asserted by or on behalf of the applicant, that she had overstayed for ‘humanitarian’ reasons; namely, to look after her husband’s grandmother, an elderly lady who required constant care.  The record indicates that the applicant’s father-in-law, who was present during the enquiry process, confirmed that the applicant had remained in Hong Kong to care for his mother.

56.In her testimony, when I originally asked the applicant what had been said at Lo Wu, she made no mention of making any claim for right of abode.  The meeting had been a ‘simple’ one, she said.  However, later in her testimony she said that she had in fact made a claim.  She told the officer, she said, that she had overstayed because she hoped to benefit from an amnesty when the change of sovereignty took place.  That was because she wished to live permanently with her parents in Hong Kong.  The officer, however, just looked at her.  He failed to write down her words.  That, she said, was a dereliction of duty on the part of the officer.

57.In my judgment, this assertion of making a claim for right of abode was an invention.  I was not prepared to accept that it may have been made.  Nothing had been said of it in any earlier papers, not even in her affirmation made with the help of her then solicitors just seven months before the hearing.

58.As it was, the applicant and her daughter were not permitted to leave Hong Kong that day.  They were instead referred to the offices of the General Investigation Section (‘GIS’) on the 13^th floor of the Immigration Tower.  Together with the applicant’s father-in-law, they presented themselves there two days later on 17 March 1998.

59.The applicant said that her father-in-law spoke on her behalf to the officer at the reception counter.  She remembered something being said to the effect that she had overstayed in order to look after her grandmother-in-law but she could not hear clearly.  The applicant said that she was then given an ID 457 form to fill out.  She gave the names of her parents but did not state their Hong Kong Identity Card numbers nor give any details of their residential status.  The applicant said that she did not state the numbers because she did not know them.

60.The applicant said that she was then called in for an interview.  The interview was conducted in Putonghua which she understood. 

61.As to what happened in that interview, in an interview record submitted to the Removal Special Project Sub-division of the Immigration Department in May 2000, the applicant had another right of abode claimant write the following on her behalf :

“

When I was asked why I stayed in Hong Kong until then, I answered, it is because all my relatives have settled in Hong Kong, I have no connection on the Mainland.  My parents and relatives in Hong Kong all need me to look after them, just like my grandmother needed to be look after when she was ill this time.”

62.In her affirmation of 18 January 2007, the applicant said the following :

“	The officer asked me why I had overstayed and I told him that my whole family had been settled for a long time in Hong Kong, I had no close relatives remaining in the Mainland.  I needed to take care of my aging parents.”

63.However, in her testimony, when initially asked about the interview, the applicant said nothing of making a statement to the effect that I have outlined.  She said merely that the officer told her what to write on the ‘grounds for non-removal’ form and that she did so.  The English translation of what was written on that form is to the following effect :

“	I have overstayed because of keeping company with my family.  I now want to go back to the Mainland together with my daughter, Yeung Chan Ni.”

64.When asked if she had been happy to write these words, the applicant said that she was.  She had in fact overstayed and it was now her wish to return to the Mainland as soon as possible to deal with the crisis there.  For that reason, she said, she was content to sign.

65.It was only later in her testimony, when I took her back over the chronology of her evidence, that the applicant asserted that she had told the interviewing officer that she had overstayed because her whole family had been settled in Hong Kong for a long time, that she had no close relatives remaining in the Mainland and that she had needed to care for her parents.

66.I accept that the applicant may simply have overlooked this important part of her evidence when she commenced her testimony.  It must have been a nerve-wracking experience presenting her own case, especially in the initial stages.

67.Although I regret to say that I did not find the applicant to be a credible witness, in this single respect I believe that she may have made an assertion along the lines outlined by her.  However, as Mr Fok SC, leading counsel for the Director, pointed out, it is doubtful whether the words spoken by her, even on a benevolent interpretation, could be said to amount to a claim for right of abode.  The words amount rather to an explanation for why the applicant had overstayed.  On an ordinary reading, they do not go so far as to constitute a purposive claim for right of abode; that is, an assertion that, through her parents, she has a legal right to remain in Hong Kong.

68.When asked by myself why, if she had said these words, she had not of her own initiative written them on the ‘grounds for non-removal’ form, the applicant replied to the effect that she had not done so because the interviewing officer had not dictated the necessary characters to her.  In short, as I understood it, it was her assertion that, having made her purported claim, but being content to accept the interviewing officer’s summary of what should be written on the ‘grounds for non-removal’ form, a duty then fell on the interviewing officer to include in his form of words her detailed assertion as to the why she had overstayed.  He had failed in that duty.

69.At the conclusion of her interview, the applicant was permitted to remain in Hong Kong for a further 7 days, being asked to return to the Immigration Department on 23 March 1998.  

70.The officer-in-charge of the applicant’s file at that time was Immigration Officer Tsang Wai Leung.  He was called to give evidence but was not cross-examined by the applicant.  In his statement, Mr Tsang explained that overstayers were normally subject to criminal prosecution.  However, overstayers who had young children may be exempted from prosecution if the Prosecution Section of the Immigration Department decided that would be the appropriate course.  So that the matter could be considered by the Prosecution Section, the overstayer would be given an appointment card to return to the Immigration Department a few days later, normally a week.  Such a card was given in this case.

71.Having considered the relevant evidence, I am satisfied that the procedures adopted by the Immigration Department in respect of the applicant and her daughter related solely to the issue of whether the applicant should be prosecuted.  Nothing appears in the documentary evidence to suggest otherwise.

72.On 23 March 1998, the applicant returned with her daughter to the offices of GIS on the 13^th floor of the Immigration Tower.  On this occasion she was accompanied by her mother.  It was her testimony that her mother went to the reception counter and spoke to an officer there.  In her statement of 18 January 2007, the applicant said the following in respect of this incident :

“

During the visit on 23 March 1998, my mother spoke to the officer at the counter, and after she did so, she came back and told me that she had spoken to the officer, saying that I, as daughter of Hong Kong permanent residents, was entitled to the right of abode.  She told me that the officer told her that the application had to be made in the Mainland, not in Hong Kong.”

73.However, when she testified, the applicant said that she was close enough to her mother to hear what was said.  She heard her mother, she said, claiming right of abode on her behalf.  When it was suggested to the applicant that this version of events was different from the one contained in her statement, she replied to the effect that her mother could not know that she had overheard.  That was why she had reported back to her.

74.As to the purported conversation at the reception desk, the mother herself testified to the following effect; namely, that she told the officer that, now that Hong Kong had returned to China, Hong Kong children were entitled to apply for right of abode.  She said she told the officer she had heard that there would be an amnesty for the children of Hong Kong permanent residents.  When asked if she had said anything to the officer about her daughter, the mother replied that she had.  She had told the officer, she said, that her daughter should not have to go back to the Mainland, that she was being forced to go back because a family member had been arrested and only if she went back to the Mainland would that family member be released.  According to the mother, the officer at the reception counter said very little in reply, saying that it appeared to him to be a matter for the Mainland authorities.

75.At no time during the course of her testimony, at least as I understood it, did the mother assert that she had told the officer at the reception counter that she and the husband were permanent residents and that the applicant was their daughter.  It was her testimony, however, that she said words to the officer to the effect that ‘we have been waiting for the right of abode for so long.’

76.If I accept the evidence of the applicant and her mother, I believe it would amount to a claim for right of abode.  The relationship of mother and daughter would have been apparent and any objective listener would have taken the mother’s words to amount to an assertion that her daughter should not be in her present predicament because she should be entitled to right of abode.  The real issue, in my judgment, is whether the mother made any such assertion.  Frankly, I have the gravest doubts that she did.

77.In her affirmation of 18 January 2007, the applicant’s mother said the following as to the conversation at the reception counter, stating matters which she did not refer to in her testimony :

“

I told the staff that my husband and I had lived in Hong Kong for a long time, that my daughter was often alone in the Mainland – her husband travelling frequently to Hong Kong – and I said to the staff that my daughter, being a child of Hong Kong permanent residents, was entitled to the right of abode.”  [my emphasis]

78.The evidence revealed, however, that in March 1998, when the conversation had taken place, the applicant’s husband had not been travelling frequently to Hong Kong.  A statement made by the husband in other proceedings revealed that he had come as an illegal immigrant to Hong Kong in late 1996 and had remained here for all of 1997 into 1998.  Immigration records showed that it was only from late 2002 until the present time that the husband had made regular, lawful trips to and from Hong Kong.  It was put to the mother that what was asserted in her affirmation of January 2007 was an invention, one made on a misunderstanding of the true historical context; namely, that, because the husband had in recent years been coming and going frequently, she had assumed that the practice must have reached back to 1997 and early 1998 when, in fact, it had not.  The mother had real difficulties dealing with this suggestion.  Although she protested not to understand, I am satisfied she knew full well what was being put to her and could only do her best to avoid the question.

79.By the time the applicant and her mother had completed their testimonies, it was apparent to me that both had attempted to build their case largely on the basis of invention.  Their assertions changed from minute to minute.  When the mother’s testimony began to be at odds with the daughter’s earlier testimony, the daughter on several occasions interrupted either to attempt to prompt the mother or to protest that, as an elderly person, she could not be expected to remember events. 

80.I am satisfied, therefore, that, even though the applicant came to Hong Kong hoping to benefit from a rumoured amnesty, once the rumour was proved to be false, she herself made no claim for right of abode nor did her mother make any claim on her behalf.

81.In addition, as I have said earlier, the applicant’s assertions as to the lack of any record of a claim were incapable of advancing her case. 

82.My determinations are as follows :

(i)	the applicant did not make an claim for right of abode;
(ii)	the Director has no record of any claim.

Mr Yeung Kam Shui (applicant 4138, a ‘group one’ and ‘group five’ applicant)

83.The applicant was born in Fujian Province in November 1972, one of three children.  His father settled in Hong Kong in 1978, his mother joining him in 1985.  When his mother came to Hong Kong, she was able to bring one child with her, the applicant’s eldest brother.

84.In 1986, 1987 and 1991, the applicant either entered Hong Kong unlawfully or entered lawfully and overstayed.  This, he said, was evidence of his long-lasting determination to be in Hong Kong with his family and, if at all possible, to settle here permanently.

85.In February 1998, some seven or eight months after the change in sovereignty, the applicant came to Hong Kong on the strength of a two-way permit, being authorised to remain until early March.  He overstayed.  He did so on this occasion, he said, because he had heard rumours in his village that it may be possible to claim right of abode in Hong Kong.

86.After his arrival, said the applicant, he and his father went to the enquiry counter on the 2^nd floor of the Immigration Tower to discover whether there was a process through which he could claim right of abode.  According to the applicant, he was told that there was ‘no such thing’.

87.The applicant struck me as a reasonably quick-witted person.  It is more likely than not, I think, that some seven or eight months after the change of sovereignty he would have heard something to the effect that people in his position, indeed many from his own province, were not successfully claiming right of abode.  But even if I am wrong in that regard, on his admission, he knew soon after his arrival in February 1998 that, according to the immigration authorities, there was no process in Hong Kong for seeking right of abode.  Early in his testimony, the applicant said that, having received a negative answer to his enquiry, he felt he had no alternative other than to return to the Mainland.  As he put it : “What else could I do?  I had no way out.”

88.However, the applicant did not return to the Mainland when his permit expired.  He remained in Hong Kong

89.On 15 April 1998, in the early afternoon, the applicant was arrested by the police.  The arrest took place in the immediate vicinity of the Yau Ma Tei Fresh Fruit Market temporary loading area.  He was then taken to the Yau Ma Tei Police Station.

90.The applicant knew that for an overstayer to be caught working could have serious ramifications.  But he was not working at the loading area, he said, nor seeking work.  The applicant explained that he was, in fact, looking for an office of the Immigration Department where, he had been told, he could apply to extend his two-way permit.

91.His explanation, in my judgment, was false.  The applicant protested that he was a man of little education.  But, as I have said, he was quick witted enough.  He knew full well the case he had to meet and the pitfalls that had to be avoided. 

92.The applicant said that he had gone to Yau Ma Tei that day, a district he did not know, without obtaining the address of the Immigration Department office or even attempting to ascertain its approximate location.  He said he did not think of telephoning ahead.  He simply went to the area, he said, and began his search, asking people on the street if they could help him.  Nobody he stopped, however, was able to do so.  On the applicant’s own evidence, he was wandering in the Yau Ma Tei area for several hours before he was arrested and at the time of his arrest still had no idea of the location of the Immigration Department office.

93.It was the applicant’s testimony that he was attempting to locate the office so that he could seek an extension of his two-way permit and perhaps, by that route, seek right of abode.  However, when arrested, he had no documents on him.  He had left all the documents at home with his father, he said.  He attempted to explain this by saying that he was afraid he might lose the documents.  It was therefore his intention, when he found the immigration office, to telephone his father and ask his father to bring the documents to the office.  His father, he said, had a bag in which the documents could be placed.  The documents would therefore be more secure if carried through the streets by his father.  It was all totally unconvincing.  Many of the answers, in my view, were invented on the turn. 

94.I am unable to say why the applicant was in Yau Ma Tei that day.  However, I reject the suggestion that he was attempting to find an Immigration Department office in order to seek an extension of his already expired two-way permit.

95.At the Yau Ma Tei Police Station, the applicant made a cautioned statement.  The brief exchange of recorded questions and answers was to the following effect :

“	Q.	Until when were you allowed to stay in Hong Kong?
	A.	Until 7 March 1998.
	Q.	What have you done since your arrival in Hong Kong until today?
	A.	I have fun around every day.
	Q.	Have you ever worked in Hong Kong?
	A.	No, I haven’t.”

96.It was the applicant’s case, however, that, when asked why he had overstayed by the interviewing officer, he told him that he had done so in order to claim right of abode so that he could be ‘reunited’ with his father.  According to the applicant, the interviewing officer said that he had ‘no idea about this right of abode matter’ and did not bother to record the answer.

97.The applicant accepted that the statement, which was written for him, was read over to him.  When he realised that nothing had been said to the effect that he had overstayed in order to claim right of abode, he said, he queried this omission with the officer.  The officer, however, replied to the effect that right of abode had nothing to do with the reason for his arrest.  The applicant said he did not protest further.  “I felt I had no way out,” he said.  “So I signed the statement.”

98.However, when it was put to the applicant that he had also signed an endorsement to the statement acknowledging that he was able to correct, alter or add anything to the document, he then said that he had in fact made a request to add something more to the statement.  He wished to add characters to the effect that he had right of abode and wished to be reunited with his father.  Because he was effectively illiterate, said the applicant, he asked the interviewing officer to write that for him.  The officer, however, simply asked why he could not write it himself and when the applicant explained that he was illiterate the officer refused to copy the extra words. 

99.In the result, it was the applicant’s eventual assertion that the interviewing officer had not merely neglected to record his claim for right of abode but had specifically refused to do so, demeaning the applicant for his lack of education. 

100.In his affirmation dated 19 January 2007, made with the assistance of his then solicitors, the applicant said that, when he was taken to Yau Ma Tei Police Station, he told an officer, presumably the interviewing officer, that his parents were Hong Kong permanent residents and that he wanted to stay in Hong Kong to be with them as he had right of abode.  The officer, he said, replied that he did not know about this matter.  In the affirmation, the applicant went on to say that he was then interviewed under caution.  However, in an exchange of correspondence between the Department of Justice and the applicant’s then solicitors, more particularly in a letter dated 27 January 2007, the applicant’s solicitors said that, having taken instructions from their client, they were able to confirm that –

“	… the Applicant’s appeal relies on the claims made to the Immigration Department and does not rely on the claims for right of abode made to the Police.  Indeed, we do not know that there has been any suggestion to the contrary made in respect of this Applicant to date.”

101.It was for this reason, I understand, that the Director did not call any member of the Police Force to give evidence.  The applicant, however, protested that he had never given such instructions to his solicitors.  During his testimony he insisted that his claim made to the interviewing police officer had always been an important part of his case.

102.The cautioned statement itself contains nothing which, directly or indirectly, supports the applicant’s assertions.  Indeed, there is no mention even of the applicant’s father.  What is of direct relevance, however, is the fact that the applicant’s Hong Kong address given in the cautioned statement is not the address of his father where apparently he had been staying.  It is puzzling why, if, in fact, the applicant was at that time determined to state his right to live permanently in Hong Kong because of his father’s residential status that he would not have given his father’s address.  It was put to the applicant that his principal concern was to avoid a prosecution for working illegally in Hong Kong and to avoid implicating his father and that was why he had provided a false address.  This was denied by the applicant who said that the address he had given was that of his paternal grandmother.  He explained that, when he had come into Hong Kong, he had intended to overstay and, to avoid the police catching him, had given his grandmother’s address rather than his father’s address.  For purpose of transparency, he said, he decided he should give that same address a second time.

103.On the balance of probabilities, may the applicant have made an oral claim for right of abode during the taking of his cautioned statement?  I am satisfied that he did not.  

104.The applicant’s father, Yang Chang Szu, testified that he went to the Yau Ma Tei Police Station to try and find his son.  According to the father, he said to a police officer : “My son has the right of abode and I want him to be bailed out.”  He said to another officer : “I am a permanent resident and all are entitled to right of abode.”  But no bail was secured.

105.It was the testimony of the applicant’s father that he returned to the Police Station the following day and was told that his son was being transferred to the Victoria Immigration Centre and he must seek bail there.  The father said that he immediately made his way to the Victoria Immigration Centre and, after a long wait, saw his son being transferred into the custody of the Immigration Department.

106.The father was not a credible witness.  He could be as emotional and aggressive as his son.  Volume and outrage all too often were substituted for the truth.  This was compounded by much of his testimony being confused. 

107.The records show that the applicant was transferred to the Victoria Immigration Centre on the day after his arrest.  The records further show that, on his arrival, he was interviewed by the Duty Officer in the Reception Office, Immigration Officer David Luk. 

108.It was the applicant’s case that, during this brief interview, he told Mr Luk that he was entitled to right of abode through his father who in 1997 had agreed that he should be able to exercise it.  He also told the officer, he said, that his father was already in the immediate vicinity of the reception office and ready to bail him out.  According to the applicant, however, without any enquiry being made, he was informed by Mr Luk that he would receive no bail. 

109.In his affirmation of 7 March 2007, Mr Luk said that every day the Duty Officer received many suspected immigration offenders from the police.  It was standard practice, he said, to ask both illegal immigrants and two-way permit overstayers whether they had any local connection; that is, a family member or relative, or any fixed abode in Hong Kong.  The purpose of this practice, he said, was to determine whether the person should be referred to the Processing Unit for detention or to the Recognisance Office so that a decision could be made as to bail.  Although obviously Mr Luk had no independent recollection of his brief interview with the applicant, he had no reason to think, he said, that he would have done anything other than follow the standard practice.  He said that if he had been informed by the applicant that he had a father in Hong Kong and/or a fixed place of abode, he would certainly have referred the applicant to the Recognisance Office.

110.It was, however, the applicant’s case – supported by the testimony of his father – that he had not arrived at the Victoria Immigration Centre at or about two in the afternoon, as the records of the Centre show, but had instead arrived in the morning.  As best I understood it, it was the applicant’s testimony that his father was waiting for him inside the Centre when he arrived.

111.Indeed, it was the father’s testimony, as best as I understood it, that when he was admitted into the Centre he told an immigration officer that he was carrying a notarial certificate which, together with his own identity card, showed that his son had right of abode.  When he asked for bail for his son, he said, he was simply told : “no bail”.

112.As to when the father arrived at the Immigration Centre, after a lapse of nine years I believe more trust can be placed in the written records.  As Mr Luk said, the record did not pretend to be accurate to the minute.  But it was not possible that the record would show the transfer taking place in 2 o’clock in the afternoon when it had taken place at least two hours earlier.  In preferring the written record, I take into account that in a case summary prepared in or about 2000 by Pam Baker & Co. it is said that, by the time the applicant arrived at the Victoria Immigration Centre, ‘it was the afternoon’. 

113.Surprisingly, bearing in mind that much of the applicant’s testimony, and that of his father, was centred on a failure to obtain bail, the case summary says the following :

“

Mr Yeung [the applicant] himself reiterated when speaking to the Immigration Officer that his parents are Hong Kong residents, he should be allowed to stay and get bail.  The officer told him to record all his family members details onto the form provided, which Mr Yeung did.  He was subsequently released on recognizance.”

114.This suggests that there was, in fact, an interview in the Recognisance Office as a result of which the applicant was granted bail.  But that, as the records showed, was wrong.  The applicant was not granted bail.  Nor is there any record of him completing the required form to even attempt to obtain bail. 

115.The following day, 17 April 1998, the applicant was interviewed by another Immigration Officer, Mr Lai.  During this interview a personal particulars form was completed together with a ‘grounds for non-removal’ form.  The personal particulars form gave details of both the applicant’s father and mother and their Hong Kong address.  Nothing appears on the face of the form, however, to indicate that either of them was at the time permanent residents.

116.The ‘grounds for non-removal’ form is very much a bureaucratic document, reading as follows :

“	My name is Yeung Kam-shui, Fujianese, Mandarin-speaking.  I hold no government position in the Mainland, (and I) am not a cadre.  I have been overstaying in Hong Kong without extension (of stay) or taking up any employment.  I wish to go back to the Mainland as soon as possible.”

117.The applicant said that, so that the ‘grounds for non-removal’ form could be completed, the interviewing officer wrote out a set of characters and asked him to copy them.  It was the applicant’s case that he felt he had no alternative but to do as demanded.  However, at this time, he said, he told the interviewing officer that his father was a Hong Kong permanent resident and as a result he had right of abode.  He asked the officer to add this to the set of characters as he himself did not know how to write it out.  For a second time, according to the applicant, his lack of literacy was used to demean him.  According to the applicant, the officer’s response was to say, well, if you cannot write it yourself then it will not be written.

118.The attitude of the interviewing officer, said the applicant, was hostile; he behaved in a ‘very fierce’ manner.  The applicant made the surprising assertion that – at that time, many years before the concession policy was created – he knew how important it was to have it recorded in writing that he had overstayed because he believed he was entitled to right of abode.  But he was defeated, he said, by his illiteracy.

119.In my judgment, no claim for right of abode was made during the interview.  I am satisfied on the probabilities that the applicant, with his history of immigration offences, once he was arrested, knew that he would have to be repatriated and was concerned in the main to reduce any possible criminal culpability. 

120.In any event, even if I am wrong, it is clear that there is no record of any claim.

121.Concerning the lack of a record, it was the applicant’s submission that, if the various officials who dealt with his arrest and repatriation, had done their jobs properly and fairly then there would have been a record.  The lack of a record could not therefore be blamed on him.  But, as I set out in the introduction, inadvertence, even poor practice, is not capable of constituting a form of estoppel.

122.In the circumstances, my determinations are as follows :

(i)	neither the applicant, nor his father on his behalf, made a claim for right of abode;
(ii)	there is no record of any claim in the possession of the Director.

Mr Chong Man Kai (5286, a ‘group one’ applicant)

123.This applicant’s legal aid had been discharged before his solicitors had been able to prepare and file any affirmation on his behalf.  The applicant was virtually illiterate and for some time prior to the hearing (which took place on 11 and 12 October 2007) he had been living in the Mainland with his family.  It is not surprising, therefore, that he had not made any affirmation or statement in preparation for his hearing.

124.The applicant was assisted in presenting his case by his uncle, Mr So Cheung Yik, a Hong Kong permanent resident.  While Mr So was able to give a certain amount of advice to the applicant, and undoubtedly gave him a good deal of moral support, he knew little about the details of the applicant’s case and was himself a stranger to legal process. 

125.As it was, however, the applicant’s case was not complex.  It was founded on two asserted claims for right of abode.  The first, he said, was made by himself on 12 December 1997 when he was being held at the Victoria Immigration Centre.  The second, he said, was made by his mother and father the following day at the Victoria Immigration Centre when they attempted to obtain bail for him.  

126.The applicant was born in Fujian Province in 1961, one of five children.  His father settled in Hong Kong in 1978, his mother – suffering from a number of chronic illnesses – joined her husband in 1986.  At the change of sovereignty, therefore, both the applicant’s parents were permanent residents.

127.The applicant, by then a married man with one child, came to Hong Kong on 14 November 1997.  It was his second visit.  His two-way permit authorised him to remain until 9 December 2007.  However, he overstayed.  He did so, he said, in order to look after his mother.  He said nothing of wishing to claim right of abode.

128.His father, however, who had come down overnight from Fujian Province to testify at the hearing, remembered that his son had come to Hong Kong because rumours were still persisting that there would be an amnesty for children of permanent residents.  In this regard, the father said that he and his son went to the Immigration Tower to ask whether his son was entitled to apply for right of abode.  They were told that it was not possible. 

129.The father’s testimony in this regard accords with a statement made by the applicant in July 2000 in documents submitted to the Removal Special Project Sub-Division of the Immigration Department.  In that statement, the applicant said the following :

“

On the expiry date of my travel document, i.e. 9 December, accompanied by my father CHUANG Mou-huan, I went to the Immigration Department in Wan Chai to apply for an extension of stay and submit my proof of identity, seeking permission for me to reside in Hong Kong.  However, I was refused.  Therefore, I chose to overstay.  Two days later, i.e. 11 December, I was detained for investigation by the police and was handed over to the Immigration Department.”

130.However, when the applicant himself gave evidence, he did not speak of any visit to the Immigration Tower.  Indeed, during the course of his evidence he said on two occasions that he did not go to the Immigration Department to make enquiries.  It was only when he was shown the statement written in July 2000 that he remembered that he had, in fact, gone with his father to the Immigration Tower on 9 December 1997.

131.As I have said earlier, the father came down overnight to give evidence in this application.  His son had given evidence the previous day.  The father came directly to court and met his son who was waiting for him.  The opportunity for collusion was therefore limited.  In any event, the father impressed me as a credible witness. 

132.I am satisfied on the probabilities that the father and the applicant did go to the Immigration Tower to make enquiries concerning right of abode.  Over a span of almost ten years, it is not overly surprising that the son should have forgotten the incident. 

133.The applicant was arrested by police on 11 December 1997, a couple of days only after his two-way permit had expired.  The police made a raid on a construction site on Lantau.  The applicant was found on the 12^th floor of one of the buildings under construction.  The applicant testified that he had not, however, been working illegally.  He had gone to the site, he said, to look for a clansman.  Apparently, the clansman had heard from others that extensions of stay could be obtained by two-way permit holders.  The applicant said that he had gone to the construction site to find out more about the matter.

134.I am not in a position to determine whether the applicant was or was not working unlawfully.  The applicant, however, must have appreciated that there was a risk he would be prosecuted for breaching his conditions of stay by working.  To some degree that would have coloured his subsequent actions. 

135.The applicant spent the night of 11 December 1997 in police custody.  He accepted that he did not at any time, while in police custody, make a claim for right of abode.  However, he remembered telling the police, he said, that his mother and father were permanent residents and he hoped that they would be able to arrange bail for him.  The applicant’s memory of events in this regard accords with the case summary prepared for him by Pam Baker & Co. :

“

… on 11 Dec 1997, he was identity checked in Lantau and arrested for overstaying.  He told police his father is permanent resident who can come and post bail for him.  The police said no.  The police asked him what he was doing in Hong Kong.  Mr Chong told police he came to be with his mother and father.”

136.The day after his arrest; that is, on 12 December 1997, the applicant was transferred to the Victoria Immigration Centre.  The documentary evidence shows that he was referred by the reception office to the recognisance office.  The officer on duty at the reception office that day, Immigration Officer Lui Fung Ming, said that he would have been referred only if he had indicated some possibility of being able to obtain bail. 

137.It was in the recognisance office that the applicant was interviewed by Senior Immigration Assistant Wong Kwok Fai.

138.It was policy at that time that two-way permit holders who had overstayed for less than a month would not have to complete a personal particulars form and would not be prosecuted.  The applicant was not, therefore, required to complete a personal particulars form.  However, he did put his signature to a ‘grounds for non-removal’ form. 

139.Somewhat unusually, the ‘grounds for non-removal’ form was a sample form, all of it pre-written, the only requirement being to fill in certain details.  According to the interviewing officer, there were so many illegal immigrants and overstayers at that time that, in order to speed up the process, sample forms were run off.  The applicant’s ‘grounds for non-removal’ form contained the following :

“	I overstayed in Hong Kong without taking up unlawful employment or (applying for) an extension of stay.  I cannot find any relatives in Hong Kong to bail me out but I hope that I would be arranged to return to Mainland China as soon as possible.”

140.The Minan interpreter, Mr Sae Lin Po Lin, endorsed the form to the effect that during the interview and the completion of the form, the Fujian dialect was spoken. 

141.The form also bore an endorsement to the effect that its contents had been written by the interpreter at the applicant’s dictation.  The form being pre-written, that was not possible.  But, as the interpreter testified, the essential intention was to signify that the applicant agreed to what was written on the face of the form.

142.As to the completion of the ‘grounds for non-removal’ form, the applicant said that, as a person who was virtually illiterate, he had very little understanding of the contents of the form.  It was completed for him, he said, and he was simply told where to put his signature.  The applicant accepted, however, that the form was read over to him.  He understood, he said, that he was required to return to the Mainland and said that he was agreeable to being repatriated.

143.As to his claim for right of abode, it was the applicant’s testimony that, before the ‘grounds for non-removal’ form was put before him, he spoken to the interviewing officer.  He told the officer, he said, that both of his parents were permanent residents and that he wanted them to come to the immigration centre to bail him out.  He told the officer, he said, that he wished to remain in Hong Kong in order to look after his mother.  According to the applicant, the interviewing officer reply by saying : “No way”.  The ‘grounds for non-removal’ form, of course, contains, an assertion on the part of the applicant that he was unable to find any relatives in Hong Kong to bail him out.  This is in direct contradiction to his statement that he had earlier told the interviewing officer that both his parents were permanent residents and he wanted them to come to the immigration centre for the specific purpose of obtaining bail for him.  But little reliance can be placed on the ‘grounds for non-removal’ form.  As I have said, it was a pre-written form.  It was not therefore ‘tailored’ to the occasion.  More than that, the interpreter accepted that, after such a long period of time, he could not say for sure that the applicant had understood all of the contents of the form. 

144.The interview only took place in the recognisance office because, as Immigration Officer Lui Fung Ming testified, the applicant must have indicated that it was possible he could obtain bail.  In my judgment, therefore, it may well be the case that at some time prior to completion of the ‘grounds for non-removal’ form the applicant did speak to the interviewing officer in the terms he spoke of during his testimony.

145.But did that amount to a claim for right of abode?  In my judgment, it did not.  His claim was not to a right to remain in Hong Kong by reason of his parents’ residential status.  His claim was instead to remain in Hong Kong to look after his mother, a claim based on compassionate grounds.

146.But even if I am wrong in that regard, there is simply no record of that claim.

147.The completion of the ‘grounds for non-removal’ form may in retrospect have been unsatisfactory.  But the applicant himself accepted that the form was read to him in a dialect which he understood.  He further accepted that he signed the form without objection, appreciating that it contained a statement that he was willing to be repatriated.  It may well be that, rather than facing the risk of prosecution for working unlawfully in Hong Kong, the applicant was more than happy to be repatriated.  Whatever the position, there can be no suggestion that the applicant was in any way made the subject of oppressive conduct, the result being that he was denied the ability to write what he had sought to write.

148.The applicant’s parents did not come to the Victoria Immigration Centre that day.  The applicant said that he was not allowed to try and contact them.  That, I think, is unlikely.  Evidence in other hearings has shown that detained persons were given the opportunity to contact family and friends in order to secure bail.  It is possible that the parents could not be contacted.

149.Whatever the true position, at 4.30 that afternoon the applicant was placed in the cells for the night, the recommendation being that he be repatriated the following day to the Mainland.

150.Shortly before his physical repatriation, apparently while the applicant was waiting to board a vehicle, his parents arrived at the Victoria Immigration Centre and, seemingly from some distance, were able to see him and very briefly communicate with him. 

151.It was the father’s testimony that, when he got to the Victoria Immigration Centre that day, he went to an office in order to seek bail for his son.  In that office, he said, he spoke to an immigration officer.  He showed the officer his identity card.  He said that he told the officer that he and his wife were permanent Hong Kong residents and wanted to bail out their son so that he could remain permanently in Hong Kong.  He told the officer that, as the two of them were getting old and his wife was often ill, they hoped that the son would be able to stay in Hong Kong to look after them.  According to the father, however, the officer said that bail was not possible.  His son had already been put on a list for repatriation and was being sent back to the Mainland that day.

152.The father said that he and his wife were then able to see the applicant but only from a distance. 

153.I found the father to be a dignified, inherently credible witness.  Upon first consideration, it may seem unlikely that the father would have combined a claim for right of abode with a request for bail.  But that, I think, approaches the matter from the viewpoint of somebody who is educated in law.  I can understand a parent, desperate not to lose a son, seeking bail on the basis that the son had a real connection with Hong Kong, indeed an entitlement to stay here permanently.

154.In the circumstances, I accept that the father may well have claimed right of abode for his son.  Again, however, the difficulties arises in attempting to identify some record.

155.When the father gave his testimony, he did not speak of the officer recording the details of his identity card in any log or other book.  He spoke only of showing his identity card to officer.  I am informed that there is no record in any log or journal kept at the time recording the visit of the applicant’s father.  Nor does anything appear in the applicant’s file which was compiled during his detention.

156.In this latter respect, evidence was given that, if an application for bail had been made, it was standard practice at the Victoria Immigration Centre to request that the application be reduced to writing so that the request could be transferred to the recognisance office.  However, no such document is to be found in the applicant’s file.

157.In the circumstances, while I am satisfied that the father did make a claim for right of abode on behalf of his son while his son was in Hong Kong, I regret that I can identify no record of any such claim in the possession of the Director.

158.In the circumstances, my determinations are as follows :

(i)	the father did make a claim for right of abode on behalf of the applicant;
(ii)	there is no record of any claim in the possession of the Director.

Mr Yau Shui Yuan (5075, a ‘group one’ applicant)

159.The applicant was born in Fujian Province in 1961, one of five children.  His father settled in Hong Kong in 1978, his mother being able to join him nine years later.  When the change of sovereignty took place, both were permanent residents.

160.The applicant married in the Mainland in 1990.  Three children were born of his marriage, the youngest in 1993.

161.In May 1997, the applicant arrived in Hong Kong.  He was travelling on a Mainland passport which contained a visa permitting him to visit Thailand.  He was allowed to remain in Hong Kong for a week.  The applicant, however, did not continue on to Thailand.  He remained in Hong Kong, staying with his parents.  He did so, he said, because, like many others, he had heard rumours that, when the change of sovereignty took place, there would be an amnesty permitting the children of permanent residents to settle in Hong Kong.

162.As to how he came to be travelling on a Mainland passport, the applicant said that in 1996 he had been given a two-way permit allowing him to come to Hong Kong to be with his parents.  He knew that this precluded him from obtaining a second permit before the handover took place.  He therefore obtained a passport, he said.  However, Thailand had never been his true destination.  It had always been Hong Kong.

163.According to the applicant, on 3 July 1997, he went alone to the Immigration Tower in Wanchai.  He hoped to be able to claim right of abode.  However, frightened that he might be arrested, he said that he did not attempt to make a claim.  He expressed it as follows in a affirmation dated 26 January 2007 (prepared with the assistance of his then solicitors) :

“

… I saw many people at the Immigration Tower were being arrested.  I did not fully understand why they were being arrested, but as I had overstayed I thought that I might also be arrested.  I therefore left.  My mother’s rheumatism was particularly bad at the time, and I did not want to risk being detained or repatriated as this would prevent me from taking care of her.”

164.The applicant testified that, at the Immigration Tower, he did not really know what was going on.  He did not, therefore, appreciate at that time that his hopes for an amnesty were false.  Indeed, if his testimony was to be believed, some six weeks later when he surrendered himself to the immigration authorities he still believed that, if a claim could be made, it would be successful. 

165.The records reveal that the applicant surrendered himself on 14 August 1997.  On that occasion, he said, he went to the Immigration Tower in the company of his father and a cousin, Mr Yau Chiu Kwun, a long-term Hong Kong resident.

166.The applicant was certain in his testimony that his single purpose for surrendering himself that day was in order to claim right of abode.  His father was there, he said, ‘to support my pursuit of the right of abode’ and also, if the applicant was arrested, to secure bail for him.

167.The applicant’s cousin, Mr Yau, had an important role to play.  In his affirmation, the applicant said that it was to ‘act as a guide and to provide translation if needed’.  It was the applicant’s case that his cousin knew that his purpose that day was to claim right of abode and understood he was there to assist in that endeavour. 

168.For reasons to which I will come, I am satisfied that the applicant had no intention of claiming right of abode that day.  The probabilities, in my view, indicate that the applicant surrendered himself on 14 August 1997 for the single purpose of being repatriated.  However, if I am wrong in that regard and if the applicant’s stated purpose that day was to claim right of abode, his cousin did nothing to assist him.  In his final submissions, the applicant had to accept that fact, saying that his cousin had not paid attention to his words. 

169.During the course of cross-examination, the applicant denied that his memory of events on 14 August 1997 was poor.  He had a good recollection, he said.  If so, this does not appear to have been the case in or about the year 2000, much closer to the events in question.  In his case summary, prepared by Pam Baker & Co. at about that time, the following is said :

“	Mr Yau [the applicant] is illiterate and inarticulate.  His memory of what happened is foggy….”

170.In this regard, it should be mentioned that, when the applicant was interviewed in July 2000 by the Removal Special Project Sub-Division, although in the papers he made mention of his visit to Hong Kong in 1997, he did not speak of it in any way as being a visit during which he claimed right of abode.  No mention was made of a visit to the Immigration Tower on 14 August 1997.

171.The applicant attempted to explain this apparent inconsistency by saying that in the intervening years he had been able to think much more about the events of 14 August 1997.

172.As to what happened that day, it was the applicant’s case that he was referred to the 13^th floor, to the offices of GIS.  The applicant testified that he told the officer at the reception counter that he wished to stay in Hong Kong.  According to him, an exchange then took place.  The applicant insisted on several occasions that, with the change of sovereignty, he was now entitled to remain permanently in Hong Kong.  The officer at the counter, however, told him that it was not possible and that he would have to return to the Mainland to make an application.

173.The applicant recalled being given a personal particulars form, an ID 457, and recalled that his cousin, the literate one, completed the form.  When he testified, the cousin recognised his handwriting on that form.  In his affirmation of 26 January 2007, the applicant said that his cousin completed the form ‘with information supplied by me and my father’. 

174.The ID 457 form, however, while it gives the names of the applicant’s parents does not record their identity card numbers in the column provided for that purpose, not even the number of the father’s identity card.  Yet, if both the applicant and his father are to be believed, the father was present at that time and was aware that the single purpose of the visit was to claim right of abode, a status that had to be conferred on the applicant by reason of the residential status of one or more of his parents.  It is puzzling, therefore, if the evidence of the two is accepted, that not even the father’s identity card number was recorded.

175.In his affirmation, the applicant said that he could not recall why the details of his father’s identity card had been omitted.  However, during the course of testimony, he said that the three of them asked the officer at the counter how to fill in the form, including presumably the column requiring the insertion of identity card details, but were given no answer.  In the circumstances, the applicant suggested that they did not know how to complete the relevant column.

176.That I do not accept.  The cousin, who was called to give evidence, struck me as a reasonably competent individual and in any event he had managed to put the required details in other columns.  In my assessment, the assertion that the counter officer refused to help them in completing the form was a recent invention.  Nothing to similar effect appears in the applicant’s affirmation nor in any earlier documents.

177.After the personal particulars form had been completed, the applicant said that he was called into a room to be interviewed.  The records reveal that the interviewing officer was Immigration Assistant Yip Ka Man who at the time was a member of Team M3, the team which dealt with PRC passport overstayers.

178.In his affirmation, the applicant said the following concerning the earlier part of the interview process :

“

I was then taken to an interview room.  Kwun [the cousin] did not come through with me.  Once in the interview room, I spoke to the officer in Putonghua and told him that I wanted to take up residence in Hong Kong and also apply for an identity card.  The officer then spoke, but did so in Cantonese and I could not understand what he was saying.”  [my emphasis]

179.However, in his affirmation of 26 March 2007 Mr Yip said that in August 1997 he was able to speak both Punti and Putonghua and ‘could communicate effectively with interviewees in both dialects’.  I have no reason to disbelieve him, and no reason to think that, if spoken to in Putonghua, he would not have answered in Putonghua.

180.When the applicant gave evidence, I found it difficult to know with any real certainty whether he was referring to what had been said at the reception counter or had been said later during the course of the interview.  After the passing of some ten years, I think the applicant himself – understandably – had difficulty distinguishing between what had been said on the one occasion or the other.

181.As best as I understood it, the applicant testified that, when the interview process commenced, the interviewing officer asked him why he was there; that is, why he had surrendered himself.  The applicant said he replied that he had come to apply for an identity card.  The officer replied : ‘No’.  The applicant said that he attempted to advocate his cause by saying that sovereignty had now changed, his parents were Hong Kong permanent residents and he was therefore entitled to an identity card.  The officer, however, insisted that there was ‘no such policy’.  The applicant recalled the officer telling him that he would have to return to the Mainland, that he had already overstayed for three months and that he must go back and make any claim there.

182.Although it was the applicant’s case that he had on more than one occasion asserted his right to live permanently in Hong Kong on the basis that his parents were permanent residents, the interviewing officer, he said, refused to write these things down.  Instead, the officer wrote some characters himself and asked the applicant to copy them onto a ‘grounds for non-removal’ form.  According to the applicant, when he told the interviewing officer that he was illiterate and could not do so, the officer then went outside and called his cousin into the room.

183.At this stage, said the applicant, his cousin began to act as a translator.  In his affirmation, the applicant said the following :

“

Kwun [the cousin] then acted as the translator.  He used Minnan to explain what the officer was saying.  Through Kwun, I repeated my wish to take up residence in Hong Kong to take care of my mother.  I described how she was suffering particularly at that time from her rheumatism.  The officer responded by saying that I could not stay and must return to the Mainland.  I felt that I had no choice but to accept that I would be removed.”

184.As to the manner in which he came to put his signature on the ‘grounds for non-removal’ form, the applicant said the following in his affirmation :

“

The officer then took out a pen and a form.  He spoke to Kwun in Cantonese, and Kwun began to write on the form, while the officer was speaking.  After Kwun finished writing, he explained the content of what he had written to me in Minnan.  The officer then put the form in front of me and, in Cantonese, asked me to sign my name.”

185.In his affirmation, therefore, the applicant accepted that his cousin explained to him (in his home dialect) what had been written on the ‘grounds for non-removal’ form.

186.During the course of his testimony, the applicant said that nevertheless he did not understand.  I had difficulty in accepting that.  It may not have all have ‘sunk in’ at the time.  No doubt he was anxious.  But he would have understood the important fundamental; namely, that what was written contained no claim for right of abode.

187.The characters written by the cousin on the form were to the following effect :

“

I, Yau Shui Yuen, arrived at Hong Kong on 24 May this year.  Originally, I was to go to Thailand via Hong Kong, but as my mother was ill and had to have an operation after I arrived at Hong Kong, I remained in Hong Kong so as to take care of her.  I know that I have overstayed since 1 June this year.  I declare that I have no right of abode in Hong Kong or other country except in China.  I now hope to return to the Mainland as soon as possible.”

188.At the foot of the ‘grounds for non-removal’ form, the following short endorsement was written :

“	The contents above are dictated orally by Yau Shui Yuan and translated by cousin Yau Shiu Kwun …”

189.It is plain that the applicant – a fairly slow, unsophisticated person – could not, and did not, dictate the contents of the form.  What was written in all probability was composed by the interviewing officer.  But that does not mean that was written was somehow false or was not at the time acknowledged by the applicant as being acceptable to him.

190.When he testified, the applicant’s evidence was ambiguous.  He said that he did speak to his cousin as to what was to be written on the form.  However, he said, he just told his cousin to write the characters that had already been prepared by the interviewing officer.  He said that he did not instruct his cousin to write down on the form that he was claiming right of abode.  He did not do so, however, because his cousin already knew what his purpose and wishes were.  Perhaps leading from this last assertion, in his closing submissions the applicant appeared to suggest that his cousin had let him down by not paying attention to his words and simply copying the characters given to him by the interviewing officer.

191.When the cousin himself was called to give evidence, he made it plain that he had little, if any, memory of what had taken place.  He said that he had gone along that day to help.  He had been the one who did the writing.  He had not expected it to become ‘a big affair’.  In the result, he said, he had not paid much attention.

192.The cousin’s testimony was relatively brief.  As to his character, however, he did not strike me as being timid.  He was a man of relatively mature years.  Although I come to the conclusion with some hesitation, and do not base too much on it, it would have been unlikely, I think, that the cousin would have written out the characters he did without any form of protest or enquiry if he knew that the applicant was still insistent on claiming right of abode.

193.But if I am wrong and a claim for right of abode was made either at the reception counter or in the interview room, there is simply no material capable of constituting a record of any such claim.  Indeed, the ‘grounds for non-removal’ form makes a statement to the opposite effect; namely : “I declare that I have no right of abode in Hong Kong.”  According to the interviewing officer, all PRC passport overstayers were requested to make this declaration.

194.The applicant conceded that there was no record of his various asserted claims.  But the fault for this, he said, should not be visited upon him.  If the officers who dealt with him on 14 August 1997 had written down all that he said then there would have been a record created.  The fault therefore lay in the inadvertance or poor practice of those officers.  Inadvertance or poor practice, however, are not sufficient to create any form of estoppel.

195.In the circumstances, my determinations are as follows :

(i)	the applicant did not make a claim for right of abode.
(ii)	there is no record of any claim in the possession of the Director.

Mr Sit Kwong Kuen (applicant 2979, a ‘group one and group 5’ applicant)

196.The applicant was born in Guangdong Province in 1965, the eldest of four children.  His father settled in Hong Kong in 1973, being joined by his mother in 1986.  Unfortunately in that same year his father died.  Despite this however the applicant’s mother continued to live in Hong Kong and by mid-1997 had become a permanent resident.

197.The applicant came to Hong Kong for the first time on 11 April 1997, his two-way permit authorising him to remain until early June.  According to the applicant, his principal reason for coming to Hong Kong was to remain here until the change of sovereignty.  Like many others, he believed that, as the child of Hong Kong permanent residents, he would then be able to claim the right to permanent residence.  The applicant therefore remained in Hong Kong as an overstayer.

198.In his affirmation of 29 January 2007, the applicant accepted that, soon after the change of sovereignty had taken place, he discovered that there would be no amnesty for people in his position.  However, different rumours were circulating, he said.   These include the rumour that, as he was claiming right of abode, if he surrendered himself to the immigration authorities, he would be allowed to remain in Hong Kong.  He was encouraged by his mother and younger brother to surrender himself.  But despite this encouragement, said the applicant, he was nervous that he would be repatriated.  In addition, he had heard that people sent back to Guangdong Province were being made to pay heavy fines.  He therefore decided not to surrender himself but to await developments.

199.On 11 December 1997, said the applicant, he was on his way to meet his brother when he was stopped by police and arrested.  At that time, his expired two-way permit was left at his mother’s home and, without any form of documentation on him, he was suspected to be an illegal immigrant.  The applicant was taken to the Tai Hing Police Station where he made a cautioned statement.  It was during the course of making this statement, he said, that he made the first of two claims for right of abode. 

200.During the interview with the statement-taking officer, he said, he emphasised that his deceased father had been a permanent resident.  His mother and brother were also ‘Hong Kong people’.  He told the officer, he said, that he had overstayed in Hong Kong to see if, upon the change of sovereignty, an amnesty would be granted to people in his position allowing him to live here permanently.  He informed the officer that he wanted to remain in Hong Kong, one of his primary concerns being the need to care for his mother.

201.In his affirmation of 29 January 2007, the applicant spoke of this asserted claim for right of abode in the following terms :

“

I explained to the interviewing officer that my father was a Hong Kong permanent resident but had passed away.  I said that my mother and my younger brother came to Hong Kong and were Hong Kong residents.  I also said that I needed to stay in Hong Kong to take care of my mother, and asked whether that was possible.”

202.During the course of the hearing, I put it to the applicant that there was a difference between the mere statement that a parent was a Hong Kong permanent resident – in this case, the applicant’s father – and making a claim for right of abode based on that status.  In response to my observation, the applicant immediately shifted the emphasis of his recollection.  He remembered telling the interviewing officer, he said, that his deceased father had been a permanent resident and through him “I could have right of abode”.  That change, in my judgment, was quite patently an invention; sadly, one of a number.  The longer the hearing endured, the less credible the applicant became.

203.As it is, the cautioned statement contained nothing that may reasonably be read as constituting, directly or indirectly, a claim for right of abode.  There was no mention of the applicant’s late father having been a Hong Kong permanent resident; indeed, no mention of him at all.  Nor was anything said of the applicant’s mother being a ‘Hong Kong person’.  The mother was only mentioned in the context of her advanced age and the need for the applicant to look after her.

204.The relevant portion of the cautioned statement made at the Tai Hing Police Station was to the following effect :

“	In the period when I was in Hong Kong, I lived at my mother’s home at To Kwa Wan and took care of my mother at home because she, my old mother, suffers the diseases old people suffer …
	My exit and entry permit for travel to Hong Kong and Macau expired on 11 June 97.  But as my mother was old, I remained in Hong Kong up to approximately July to take care of her.  By approximately July, I learnt from people from the same village that if one has overstayed, one will be fined heavily when one returns to the Mainland.  Therefore, I remained in Hong Kong, staying at To Kwa Wan …”

205.At no time did the applicant suggest that during the statement taking he was in any way subject to oppressive behaviour by the interviewing officer.  To the contrary, he praised the officer, Constable Chan Siu Fai, as being polite and considerate.  He remembered the Constable giving him water to drink and getting a blanket for him so that he could stay warm.  Nevertheless, he said that the Constable had failed in his duty to record his claim for right of abode and to that extent the cautioned statement had deviated from what he had said and from what he wished to have recorded.

206.As to the contents of the statement, the applicant accepted that they were all true.  His concern, of course, was not with what appeared in the statement but what did not.

207.As to why, if his claim for right of abode was so important to him, the applicant had not added to his statement or asked to amend it, it was the applicant’s evidence that he was ignorant of such things and did not know how to do it.  While I accept that the applicant was no doubt under stress, nervous and largely at a loss in strange surroundings, the fact remains that, on his own admission, the interviewing officer was considerate and, in addition of course, the applicant signed an endorsement at the end of the statement saying that he knew he was free to make any amendment, correction or supplement that he wished.

208.On 12 December 1997, the applicant was moved from the Tai Hing Police Station to the Victoria Immigration Centre where on the following day; that is, on 13 December 1997, he was again interviewed.

209.In respect of this interview, the testimony of the applicant was markedly different from that of Immigration Officer Sin Fu Ming, the officer who testified that he was the one who conducted the interview.

210.First, the applicant testified that he underwent two separate interviews that day, not just one, and it seemed to him that they were conducted by different officers.  In this regard, in his affirmation of 29 January 2007, the applicant spoke of having a first interview, being taken back to his cell and then —

“	After a while, I was taken into another room, and saw another Immigration officer.  This officer produced another form.”  [my emphasis]

211.This second interview, said the applicant, was conducted by an officer who was not in uniform but was wearing civilian clothing.  His most startling assertion, however, was that this second interview was conducted in total silence.  His evidence was to the effect that he was escorted to a large table that was raised above the others.  There were a lot of papers on the table.  The man at the table – in civilian clothing – tapped his finger on one sheet of paper and with hand movements indicated to the applicant that he was to copy from that paper onto another paper which was placed in front of him.  The applicant said that he complied with this instruction without speaking.  When he had copied the characters, the officer indicated, again with hand movements, that he should sign.  The applicant duly signed.  That being done, he was then escorted back to his cell.

212.The document which the applicant completed during that purported second interview was identified by him as a ‘grounds for non-removal’ form, the characters that he copied being translated to the following effect :

“	I am called SIT Kwong Kuen, a person of Guangdong Province and speak in Cantonese.  I have overstayed in Hong Kong without applying for extension of stay and taking up employment.  Now I want to return to Mainland China as soon as possible.”

213.During the course of cross-examination, the applicant was asked how it was, if no questions were asked, the ‘grounds for non-removal’ form contained an assertion that he had not taken up employment in Hong Kong.  The applicant had no answer. 

214.The applicant, of course, made no assertion that any claim for right of abode was made during this purported second interview.  It was afterall, according to him, conducted in silence.  It appeared to be the thrust of his evidence that he really did not know what he was signing, had no idea of the true import of the document and simply did what he was instructed; in short, in such circumstances, he could not have been expected to write down any sort of claim for right of abode.

215.It was, however, the applicant’s case that in the first purported interview he had made an oral claim.  According to the applicant, the purpose of this first interview appears to have been simply to complete a personal particulars form.  It was when he was completing this form, he said, that he made his claim.  In his affirmation of 29 January 2007, the making of the claim and the response to it is described as follows :

“

I told the Immigration officer that both my parents are Hong Kong permanent residents and that my younger brother also came and is a Hong Kong resident and that I should be able to stay in Hong Kong.  The officer ignored me and told me not to talk so much and told me that these things were not important – ‘we don’t need that’ – and just do what he told me to do.”  [my emphasis]

216.I have emphasised the phrase ‘both my parents’ in that extract from the affirmation because during his testimony the applicant laid considerable emphasis on the assertion that in December 1997, although his mother was a Hong Kong permanent resident, he did not appreciate that fact and had therefore relied only on the fact that his deceased father had been a permanent resident and that his claim to remain in Hong Kong was through him and him only.  Indeed, at one part of his testimony, after I had told him that by December 1997 his mother would have been a permanent resident, he acknowledged that this was a matter he had not earlier understood.  The contents of his affirmation, of course, was not consistent with this.

217.As to the completion of the personal particulars form, details were not given of the father.  It was the applicant’s evidence that, when he came to the line requiring him to give details of his father, he hesitated.  It was then, he said, that he told the immigration officer who was with him that his deceased father had been a permanent resident.  It appeared to be the applicant’s testimony that, if his father had been alive, he would definitely have written something on the form to the effect that his father had been a Hong Kong permanent resident and he wished to remain in Hong Kong on the strength of that status.  It was only the fact that he did not wish to speak of the dead, said the applicant – that being his custom, or at least his family’s custom – that gave him pause before writing.  As it was, he said, the officer told him that it was not important and there was therefore no need to write down that his father he had been a permanent resident. 

218.The applicant said that this conversation with the immigration officer was continuing as he wrote down details of his mother on the next line.  He put nothing about her immigration status, he said, because at that time, as I have just said, he did not appreciate that she was also a Hong Kong permanent resident.

219.The applicant said that he was planning to write something on the personal particulars form to record his statement that, as the son of a permanent resident, he should be entitled to stay in Hong Kong but was not able to do so because the form was then taken away from him.  The officer apparently told him that there was nothing more that need be written on the form.  In the result, nothing was written about his brother or sister or other family members in Hong Kong.  A line was put through this portion of the form.

220.It was, therefore, the applicant’s case that, the opportunity to record his claim in this first interview was denied him while the opportunity to make a record in the second interview was also denied him, the second interview of course being conducted in silence, he having no idea of the nature or purpose of that interview.

221.On behalf of the Director, however, Immigration Officer Sin Fu Ming testified that there was only one interview that day.  That single interview was conducted by himself.  I am satisfied that Mr Sin’s evidence must be correct.  Both the personal particulars form and the ‘grounds for non-removal’ form bear his handwriting.

222.Mr Sin said that, contrary to the assertion of the applicant, he was not dressed in civilian clothing.  He and the other immigration officers came to work everyday in uniform.  Mr Sin also denied that there was any raised table of the kind described by the applicant.  All the tables in the working area, he said, were on the same level.

223.Mr Sin had no independent recollection of the interview but said that, if any interviewee wished to endorse a personal particulars form with specific information or wish to say anything in a ‘grounds for non-removal’ form, he would have been permitted to do so.

224.The ‘grounds for non-removal’ form contains a familiar order of characters.  It is very unlikely that those characters would have been written by the applicant without assistance.  But Mr Sin accepted that he kept a stock of sample answers to which he could refer if an interviewee required assistance.  In this regard, I can do no better than refer to his affirmation of 21 March 2007:

“

… I had come across interviewees who had indicated a willingness to return to the Mainland, but had difficulty in organizing their answers to the questions that I put in completing the Grounds for non-removal forms.  For these cases, having heard their answers given during the interview, I would provide 1 or 2 sample statements for their consideration and reference as appropriate to assist them to complete the Grounds for non-removal form.  During my attachment to the Processing Unit, I had used approximately five samples written in Chinese.  However, due to the lapse of time, I cannot retrieve or remember the contents of the samples that I had used at the material time save that I recall they covered the more common cases that I came across on a day to day basis in the Processing Unit.  The interviewees were entirely free to decide (i) whether they wished to make reference to the said sample at all; and (ii) whether they wished to adopt the contents of the sample in whole or in part.  If the interviewees wished to make reference to the said sample, they were free to make any addition, deletion, or amendments, as appropriate, and I would not direct the interviewees to follow the exact wordings of said sample against their will.”

225.As I have said earlier, in my opinion the applicant was not a credible witness.  It was apparent that he was prepared quite significantly to shift his evidence if he thought that it may advance his case.  Although not highly educated, the applicant well understood the dynamics of what was required to prove his case.  His cross-examination of witnesses illustrated that.

226.In my judgment, if, when making his cautioned statement, the applicant had explained that he had remained in Hong Kong hoping to claim amnesty, his father being a Hong Kong permanent resident, I see no reason why something to that effect would not have been written on the face of the statement.  It appears to me that the applicant’s main concern in the course of his interview was not to record a claim for right of abode but was rather to co-operate with the interviewing officer as to how he had come into Hong Kong and to put himself into a sympathetic light, again unsurprisingly, by talking of his responsibility to care for his aged mother.  In fact, as it transpired during the course of the hearing, at the time his mother was just 53 years of age and in good health.  She was not, therefore, an old woman prone to the ailments of old age as appears in the cautioned statement.

227.It is to be remembered that the applicant did not suggest that Constable Chan who took the cautioned statement, or Mr Sin who conducted the interview at the Victoria Immigration Centre, threatened or intimated him.  In essence, his allegations were restricted either to an assertion of neglect or of deficient, brusk practice.

228.As for the single interview at the Victoria Immigration Centre, I find it difficult to believe that the applicant could in good faith have such an erroneous memory of what took place.  During the course of his testimony, he admitted that not a great many incidents of high moment had happened in his life and that was why he had a very clear memory of the events in question.  If that was the case and he did have a good memory of events then he must have intentionally distorted his recollection for tactical purposes.  Indeed, I am sure he did in order to try and explain why, if he was anxious to record a claim for right of abode, he had nevertheless written nothing on the particulars form or the ‘grounds for non-removal’ form.

229.As to the record of any claim, it was the applicant’s case that the cautioned statement was itself the record of the first claim while the personal particulars form was the record of the second claim.  It appeared to be his case that these documents should have contained the claims and, as such, were relevant records.  But, of course, as the applicant himself admitted, while they were records, they did not record, directly or indirectly, the claims for right of abode which the applicant said he had made.  In the circumstances, in my view, they could not constitute records of any claim. 

230.My determinations are therefore as follows :

(i)	the applicant did not make a claim for right of abode;
(ii)	the Director has no record of any claim.

Madam Li Yeuk Wai (2300, a ‘group one’ applicant)

231.This applicant’s legal aid was also discharged before her solicitors were able to prepare and file any affirmation on her behalf.  Thereafter, acting without the benefit of any form of legal representation, it is not surprising that the applicant did not prepare any affirmation or statement of her own.  In the circumstances, when she presented her case, it was necessary to guide her slowly through her evidence to understand both the basis of her application and the matters of asserted fact which supported it.  The applicant was virtually illiterate.  This was a further factor which added to her difficulties in presenting her case.  As it turned out, however, her case was not complex.  Her application was based on a single visit to the offices of GIS on 2 January 1998.

232.The applicant was born in Fujian Province in 1961, one of five children.  Her father settled in Hong Kong in 1979, her mother joining him in the mid-1980s.  It appears that, at the change of sovereignty, both were permanent residents.

233.The applicant came to Hong Kong on 10 January 1997, her two-way permit authorising her to remain until 1 March 1997.  The applicant, however, overstayed.  She did so, she said, because of the rumour that, when the change of sovereignty took place, there would be an amnesty permitting people in her position to be reunited with their parents in Hong Kong.

234.During the course of the hearing, it transpired that the applicant had overstayed on two previous visits to Hong Kong in 1993 and 1996.  On both those occasions she had been prosecuted, being fined $2,000 on the first occasion and $6,000 on the second.  When the applicant overstayed on this third occasion, therefore, she well understood the risk of prosecution and, on her own admission, understood that the longer she overstayed the more severe the likely punishment. 

235.Like so many others, it took only a matter of days after the change of sovereignty for the applicant’s expectations of an amnesty to be dashed.  The applicant said that she heard of people in her position being arrested.  In the circumstances, she said, she went into hiding in her parents’ home. 

236.However, at about the end of 1997 the applicant said that people spoke to her mother, commenting that her daughter had overstayed for a very long time while others in her position had apparently applied for and been granted Hong Kong identity cards.  The applicant said that, in light of what was said, it was decided that it would be best to go to the Immigration Tower ‘to check’ if it was indeed possible to obtain an identity card.

237.The applicant said that she went with her father and her mother to the Immigration Tower on 2 January 1998.  They went first, she said, to the enquiry counter on the 2^nd floor.  She remembered that there were many people at the counter.  She said that somebody who understood their dialect made an enquiry on their behalf.  She did not remember what was said, she said, she only remembered that they were directed to the 13^th floor.  When they arrived at the offices of GIS on the 13^th floor, she remembered that there were two officers at the reception counter.  Her mother went up to these officers and asked : “Can this daughter of mine get an identity card?  Can she get right of abode in Hong Kong?  Can she stay here?”

238.Her mother spoke in the Minnan dialect, said the applicant, and it was possible that the officers did not understand what she had said to them.  However, she had some vague recollection that one of the officers replied : ‘No, no such thing.’

239.Thereafter, said the applicant, they were given a form, an ID 457.  She said that they did not know the purpose of the form and were puzzled as to how best to fill it out.  Her father, she said, was the most literate of the three of them and he therefore filled out the form while she and her mother stood next to him.

240.Nothing emerges from the information given in the form to suggest that the document was completed in order to support any kind of application for right of abode.  Although it would have been easy for the father to put down his own Hong Kong Identity Card number and that of the applicant’s mother, he did not do so.  More than that, he gave as his address the home village in Fujian Province not his place of residence in Hong Kong.

241.After the ID 457 form had been completed, said the applicant, she and her mother gave it to one of the officers at the reception counter.  Thereafter, said the applicant, she was called into a room to be interviewed.  Her memory of this interview was very vague.  For example, she could not recall whether the interviewing officer was male or female.  She could not remember whether she went in with one of her parents or alone.  All she remembered of the interview, she said, was being asked to copy characters onto a form.  When shown her ‘grounds for non-removal’ form, she recognised this as the form onto which she had copied the characters.  Those characters followed the familiar litany :

“	I have overstayed because of keeping company with my family and now want to go back to China.”

242.The applicant said that she had no memory of the dialogue that took place between herself and the interviewing officer.  She copied the characters, she said, because, as an overstayer, indeed one who had been prosecuted on two previous occasions, she was very nervous.  She accepted that she could not remember being threatened in any way by the interviewing officer.  She accepted that she had put her signature to the document.

243.There was, therefore, no suggestion made by the applicant that she had claimed right of abode during the interview.

244.As for the copying of characters, the fact that she was virtually illiterate would explain why she had required assistance.

245.For this third offence of overstaying, the applicant was prosecuted and fined $4,800.  She accepted that, when given an opportunity to speak in mitigation at the court, she had said nothing concerning a desire to claim right of abode.

246.The applicant spoke of making a further claim for right of abode when she returned to Hong Kong in 1999.  The records show, however, that she had entered Hong Kong on this occasion on 10 March 1999 after the closure of the concession period.  

247.In the result, therefore, the applicant’s assertion that she had claimed right of abode was based on one incident only; namely, the words that her mother spoke to the two officers at the reception counter of GIS.

248.During the course of the hearing, the applicant twice described what her mother had said and on both occasions she framed her mother’s words not in the form of any sort of claim but rather as an enquiry.  Indeed, admitting that her memory of events was vague, during the course of cross-examination, the applicant accepted that her mother’s words may even have been spoken at the enquiry counter on the 2^nd floor and not at the reception counter of GIS.

249.The applicant struck me as an essentially credible witness.  She did not exaggerate.  From the outset, she accepted that her memory of events – after so many years – was very vague.  She did not overtly invent matters.

250.Although, at the beginning of the hearing, I explained as clearly as I could that I had jurisdiction to determine only two questions under the concession policy, it struck me during the course of the hearing that the applicant did not really understand the policy at all.  Her claim seem to be based more on the fact that, as she was here at the change of sovereignty, and as she was the child of Hong Kong permanent residents, those facts alone warranted her obtaining the right of permanent residence in Hong Kong.  Like a number of others, she added the assertion that she had now been in Hong Kong over seven years as the result of the ongoing litigation and that fact too entitled her to permanent residence.

251.In about May 2000, the applicant submitted details of the basis upon which she sought right of abode to the Removal Special Project Sub-Division of the Immigration Department.  In her bundle of documents, she did not make any assertion that she had claimed right of abode on 2 January 1998.  Instead, at that time too it seemed to be her assertion that her mere presence in Hong Kong at the change of sovereignty was sufficient.  In this regard, she made the following declaration :

“	I was present in Hong Kong from 1996 to December 1997 and also surrendered myself to the Immigration Department.  According to judgment handed down by the Court of Final Appeal, I should be entitled to the right of abode in Hong Kong.”

252.In my judgment, it was clear that on 2 January 1998 the applicant had gone with her parents to the Immigration Tower to surrender.  That I am satisfied was her essential purpose.  It is to be remembered that she had a husband and son in Fujian.  It is also to be remembered that she had been in hiding since July of the previous year.  I accept that an enquiry as to the possibility of remaining in Hong Kong may have been made, either on the 2^nd floor or at the reception counter of GIS.  But I can put it no higher than that.

253.The applicant was at one time represented by Pam Baker & Co.  Like so many others, she had a summary of her case prepared.  That summary, however, does not speak of any form of claim for right of abode being made, either by the applicant or by her mother.  It speaks only of the applicant herself asking if she could stay in Hong Kong to be with her family.  The relevant portion of the case summary reads :

“

… Ms Li surrendered to Immigration Department rather than wait until she was arrested.  Accompanied by both her parents, she surrendered to Immigration Department Wanchai on 2 January 1998.  There she asked the officer if she could stay in Hong Kong with her family, the reply was no you cannot.  Ms Li is almost illiterate and her Family History form was completed by her father.”

254.One clear claim for right of abode was recorded in or about May 2000, not by the applicant but by her younger sister who was a Hong Kong permanent resident.  The bundle of documents prepared for the Removal Special Project Sub-Division contained a declaration by the younger sister to the following effect :

“

In late 1997, my elder sister LI Yeuk-wai went to the office on the 13th floor of the Immigration Department in Wan Chai to make a verbal claim to the officer of the Immigration Department : ‘I, LI Yeuk-wai, am entitled to the right of abode and can stay in Hong Kong for re-union with my parents.’  But the officer of the Immigration Department turned down her claim, saying that the Immigration Department then had no such a mechanism which allowed one to apply for settlement in Hong Kong and told her to return to the Mainland to make an application.”

255.This assertion, of course, was made by a person who was not present at the time.  More importantly, it was never made by the applicant herself, certainly not in the course of her testimony.

256.In summary, therefore, while I found the applicant to be an essentially credible witness, there was no evidential basis, in my view, which enabled me to conclude that a claim for right of abode was made.  But, even if I am wrong in that regard, it is clear, in my view, that there is no record of any such claim.  The ID 457 form, as I have said, while it could so easily have contained relevant information as to the residential status of the applicant’s parents – both of them being present at the time and the father himself filling out the form – contains nothing related to their residential status.  The ‘grounds for non-removal’ form takes the matter no further.

257.In all the circumstances, my determinations must therefore be as follows :

(i)	neither the applicant nor her mother made a claim for right of abode;
(ii)	the Director has no record of any claim.

Mr Chong Kam Ku (904, a ‘group one’ applicant)

258.This applicant’s hearing took place in his absence.  However, he had been present in court in early May 2007 when I directed that his hearing would take place on 24 and 25 September 2007.  At the time, I had informed the applicant that the dates were ‘cut in stone’. 

259.As to his absence from the hearing, on 20 September 2007 a faxed letter was received from the applicant saying that he was in the Mainland and had suffered a fracture of his foot or leg.  His doctor, he said, had told him that it would take ‘nearly half a year’ to recover.  In the circumstances, said the applicant, he was not in a position to attend the hearing which, at that stage, was just four days away.

260.My clerk replied by fax to the effect that I was prepared to adjourn the hearing until 31 October 2007.  However, I was not prepared to grant a longer adjournment unless the applicant provided the court with an official medical report.  This response was not only faxed to the fax number from which the applicant’s letter had originated but was also sent by registered post to the last known physical address of the applicant in Hong Kong; that is, the address of his parents.  Although the applicant’s father had died in 1998, immigration records showed that the mother was still in Hong Kong and it was possible therefore that she was still at the same address.  The registered letter was not returned nor was any notification received from the post office that it was unclaimed.

261.To try and ensure that the applicant received my response, a member of my staff was able to contact a Ms Cheung who confirmed that she had sent the original letter by fax on behalf of the applicant and that she had received the response.  Despite this, however, nothing further was heard from the applicant.  Attempts were made on the night before the hearing to contact Ms Cheung but they were unsuccessful.

262.On the morning of 31 October 2007, the applicant’s name and the name of Ms Cheung were called.  There was no response.

263.In the circumstances, I proceeded with the hearing.  If indeed the applicant had been injured and was not able to travel, the burden was on him to supply reasonable evidence of that fact.  The indications are that he received my letter requesting formal medical details of his condition.  He chose not to reply. 

264.The applicant was born in Fujian Province in 1967, one of seven children.  His father settled in Hong Kong in 1980, his mother joining him in 1988. 

265.In an affirmation dated 26 January 2007 prepared with the assistance of his then solicitors, Messrs Barnes & Daly, the applicant said that, shortly after the change of sovereignty, he received a telephone call from his father saying that he had read in newspapers that the children of Hong Kong permanent residents were themselves entitled to live permanently in Hong Kong.  Prior to this, the applicant said, he had not heard of any rumours to like effect. 

266.The applicant continued by saying that he then applied for a two-way permit and entered Hong Kong on 18 November 1997, being permitted to remain until 1 December of that year.  His purpose for coming to Hong Kong was to secure the right to live here permanently.

267.After he had arrived, said the applicant, he and his father went to the information office on the 2^nd floor of the Immigration Tower.  The applicant said that he did not understand Cantonese and his father did the talking for him.  His father told him that he had asked whether the children of Hong Kong permanent residents were entitled to right of abode and had been told that there was no such thing. 

268.Shortly before the expiration of his two-way permit, the applicant said that he went back to the Immigration Tower, this time on his own.  He went to make further enquiries, to see whether perhaps matters had changed.  He put it as follows in his affirmation :

“	I asked whether there was any entitlement to the right of abode.  The reply was simply ‘no, there is nothing like that’.  Much the same as what my father and I had been told before.”

269.At that time, therefore, on his own case, the applicant well knew the official position; namely, that a claim for right of abode could not be lodged by a person in his position with the Immigration Department.

270.In January 1998, immigration records show that the applicant’s mother and father left Hong Kong for the Mainland.  According to the applicant, a few weeks after his departure, his father telephoned him from the Mainland to say that he was ill.  As it was, his father was to die shortly thereafter.

271.The applicant surrendered himself on 2 February 1998, going to the Immigration Tower with his wife’s younger sister.  As to his purpose, in his affirmation the applicant said the following :

“

I had a dual purpose in going to the Immigration Department.  On the one hand I wanted to return to the Mainland to take care of my father who was gravely ill, and on the other, I wanted to press my claim for right of abode based on his status.  Although when I previously visited there with my father I had been told that I was not eligible, I was not altogether satisfied with this.  With the assistance of someone who speaks Cantonese fluently, I would be able to press my claim concerning right of abode.  For this reason I decided to go with my sister-in-law.”

272.However, in an interview record submitted to the Removal Special Project Sub-Division of the Immigration Department in April 2000, just two years after his surrender, the applicant did not speak of having a ‘dual purpose’ in surrendering.  He spoke of no need to return to the Mainland to care for his father who was seriously ill at the time and who the records show was in the Mainland at that time.  The interview record speaks only of a desire to remain in Hong Kong :

“

In early February 1998, I approached the General Investigation Section at Room 1307, Immigration Tower, Wan Chai, requesting to be allowed to stay in Hong Kong to take care of my parents since according to provisions of the Basic Law, a person born on the Mainland to a Hong Kong permanent resident has the right of abode in Hong Kong.”

273.The applicant and his sister-in-law – who was only 14 years old at the time – were referred to the 14^th floor to the offices of the Outside Investigation Section (‘OIS’).  This was because the applicant had originally come into Hong Kong as part of a group tour.

274.According to the applicant, when he reached the offices of OIS, he asked his sister-in-law to enquire whether a person in his position; that is, the son of permanent residents, had right of abode.  His sister-in-law, he said, spoke to an officer who said that he did not have any such right.

275.In her affirmation of 23 January 2007, the sister-in-law, Ms Sze Kam Kam, made an assertion to the same effect :

“	When we got to the upper floor, Mr. Chong’s travel document was produced to the officer at a counter.  I told the officer Mr. Chong’s parents were permanent Hong Kong residents and asked whether he was entitled to live and stay in Hong Kong.  The officer simply replied ‘No, not at all’.”

276.The sister-in-law remembered the applicant completing a personal particulars form.  While it was the applicant’s case that he wanted to press his claim for right of abode based on his father’s status, it appears he did not take any proof of that status.  The personal particulars form does not give the identity card details of either parent.  That being said, of course, his parents were already in China and had been there for several weeks.

277.According to both the applicant and his sister-in-law, the applicant was then taken into a room to be interviewed, the sister-in-law having to wait outside.  Indeed, in a case summary prepared for the applicant by Pam Baker & Co., it is said that the sister-in-law ‘was not allowed to accompany him into the room’.  As a person who had virtually no knowledge of Cantonese, if his sister-in-law had been directed to remain outside, it would, of course, have placed the applicant at a real disadvantage.

278.It was, however, the evidence of Mr Ho Yuen Tung, the Immigration Assistant who conducted the interview, that, on all the evidence, it is apparent that the sister-in-law was present during the interview and even acted as interpreter.  Mr Ho observed not only that he had written on a minute that the applicant spoke the ‘Fuzhou dialect’ but had also taken a photostat copy of the sister-in-law’s identity card and placed it in the file.  He would only have done this, he said, if the sister-in-law had been present during the course of the interview.  It was not the practice to make photostat copies of the identity cards of relatives who merely waited outside.  It was quite common, said Mr Ho, to use relatives as interpreters.  The interview process was purely administrative and, if a relative could interpret, it saved the delay of having to telephone for an official interpreter. 

279.On the basis of the documentary evidence contained in the immigration file, I think it is more likely than not that the sister-in-law did accompany the applicant into the interview and did act as an interpreter during the course of the interview.  This is of some importance because, according to the applicant, when he was presented with the ‘grounds for non-removal’ form, he had difficulty understanding it.  In this regard, he said the following in his affirmation :

“

I tried to read the words ‘Please state your grounds for non-removal’ but I could not understand them, and I asked the officer what they were, and he read them out for me.  I still did not understand their meaning.  At this point the officer told me to copy the words written on another piece of paper or card into the space on the form, and I did so.  He said if I did not copy then I would not be allowed to return to the Mainland.  He then asked me to sign, in two places and I did that.”

280.If the sister-in-law had been present – as I believe she was – she would, despite her young age, have acted as interpreter, doing her best to ensure there was no misunderstanding.  She would also have had a fuller understanding of the traditional (as opposed to simplified) characters written out by the interviewing officer to assist the applicant.

281.The applicant was clearly guided as what to write on the ‘grounds for non-removal’ form.  The sentences are arranged in an orderly fashion, the relevant points being covered to ensure the administrative purposes of the form are met.  But that does not mean that the assistance given to the applicant was improper.  It is not suggested in any of the records available to me that an untruth was written.  The following was written on the ‘grounds for non-removal’ form :

“

I, CHONG Kam-ku, came to Hong Kong for visit on 18 November 1997, I should return to Fujian Province with a tour group on 1 December 1997 as scheduled but I overstay in Hong Kong because I have been staying in Hong Kong to take care of my father who has fallen ill.  I know it is wrong to overstay and I now request the authorities to arrange for me to return to Fujian Province as soon as possible.”

282.As to what took place during the course of the interview, the case summary prepared by Pam Baker & Co. tends to mirror what the applicant submitted to the Removal Special Project Sub-Division in April 2000; namely, that he wanted to remain in Hong Kong :

“	He told the officer that his parents are permanent residents and that he wanted to stay in Hong Kong but they did not reply to this.  The interviewing officer asked why he overstayed.  He said that his father is sick and he needs to stay to look after him.”

283.There is no mention there of any ‘dual purpose’.  Of course, without hearing from the applicant himself and giving him a chance to explain, I appreciate the potential dangers of too rigid a reading of his earlier written versions.  They may not have been written with an understanding of the need for a full explanation placed in context.  But that being said, with the applicant making the choice not to attend I am compelled to do the best I can with the material I have.  That material, in my view, tends to show a material difference between the earlier accounts and the much later account in the affirmation.

284.In my judgment, again doing the best I can, the records in the possession of the Director tell against the applicant’s versions of what took place, particularly having to fend for himself in the interview.  In addition, as I have said, there are inconsistencies in the applicant’s versions of what took place.  On balance, therefore, I conclude that there was no claim for right of abode made.  There may have been enquiries, that I accept.  But enquiries are a different matter.

285.But even if I am wrong in respect of an oral claim being made, it is apparent that there is no record of any claim in the possession of the Director.  Nothing appears in the personal particulars form nor in the ‘grounds for non-removal’ form.  I have had the opportunity to read through the immigration file but could find nothing in that file which could constitute a record of any claim.

286.The applicant’s father died in or about April 1998 by which time the applicant was back in the Mainland.

287.The applicant returned to Hong Kong on 20 April 1998, being permitted to remain until 13 May 1998.  He said that he returned to continue his struggle for right of abode.  He spoke to his clansmen, he said, who told him there was little that could be done. 

288.On 29 May 1998, the applicant was arrested.  The cautioned statement records that he was arrested at 8.15 in the morning outside a construction site.  In the cautioned statement the applicant wrote that his mother was sick and he needed to stay in Hong Kong to take care of her.  He said that, ‘as soon as his mother had recovered, he had intended to leave Hong Kong’.  However, the immigration records indicate that on 29 May 1998 the applicant’s mother was not even in Hong Kong.  She had left Hong Kong on 6 May 1998 and was not to return until 18 June of that year.  In short, the applicant’s statement was a lie. 

289.In his affirmation of 26 January 2007, the applicant said that the police were rude to him and for this reason he did not dare to say anything other than to put forward a ground of sympathy.

290.In his interview record in April 2000, the applicant said that, while he was in Hong Kong at this time, he had been to the Immigration Tower to request an extension of stay “regarding the right of abode issue” but “was rejected”.  It is not clear what this was intended to mean.  Did he merely seek an extension on his two-way permit or did he intend to say that he made a further claim?  Without the benefit of testimony, the ambiguity remains.  However, it is to be noted that in his affirmation of 26 January 2007 no mention is made of this.  In the affirmation, the applicant spoke only of making enquiries with his clansmen and of waiting for developments.  He spoke of no approach to the immigration authorities.

291.In the circumstances, my determinations are as follows :

(i)	the applicant did not make a claim for right of abode;
(ii)	there is no record of any claim in the possession of the Director.

Madam Lam Kam Pui (5440, a ‘group one’ applicant)

292.The applicant was born in Fujian Province in November 1974, one of five children.  Her father settled in Hong Kong in 1981, her mother only being able to join him in 1993.  At the change of sovereignty, therefore, it was just the father who enjoyed the status of a permanent resident. 

293.In addition to the mother, two children of the family were able to settle in Hong Kong, an elder brother of the applicant and a younger sister.

294.It appears that in 1996, wishing to join her family in Hong Kong, the applicant had made an application in the Mainland for a one-way permit.  That application was refused.

295.In April 1997, the applicant came to Hong Kong on the strength of a two-way permit.  She was authorised to remain until mid-May.  She overstayed.  She did so, she said, because, like so many others from Fujian Province, she had heard rumours that, when the change of sovereignty took place, it would be possible for her to obtain the right to live permanently in Hong Kong.  It was the applicant’s case that this rumour was given support by assurances received from her mother and her younger sister in Hong Kong that the Basic Law guaranteed her a right of permanent residence.

296.Like so many others, however, when the change of sovereignty took place, the applicant was disappointed to discover that there was no declared amnesty.  Indeed, the applicant read in the media that many people who went to claim right of abode had been arrested and repatriated.  In particular, she said, she discovered that an old school companion from her village had been arrested and sent back to the Mainland.  The applicant said that she was aware that some children were not being repatriated but she did not think that any exemption granted to them would apply to her as she was an adult.

297.In the circumstances, she said, she went into hiding.  As she put it, she dared not go out.  Some five months later, however, on 11 December 1997, the applicant surrendered herself at the offices of GIS on the 13^th floor of the Immigration Tower. 

298.She went to the Immigration Tower, she said, in the company of her mother and her younger sister.  They went first to the enquiries counter on the 2^nd floor and from there they were referred to the offices of GIS. 

299.As to the reason for her surrender, the applicant contended that, while she appreciated that there was a risk she might be arrested and repatriated, her sole purpose that day was to claim right of abode in order to be able to remain permanently in Hong Kong.  More than that, she said that she was fairly confident she would be able to make her claim successfully.

300.Her asserted optimism, of course, flew in the face of fact that, on her own admission, she had been in hiding for the past few months and, as she was reluctantly forced to accept during the hearing, she had no knowledge of any material change in the attitude of the Hong Kong authorities concerning the issue of an amnesty to people in her situation.  The applicant, however, denied that she had surrendered herself because, after several months in hiding, she saw no alternative other than her surrender and repatriation.  Her faith, she insisted, still lay in the Basic Law itself and the guarantee it provided to her.

301.While I accept that the applicant no doubt overstayed in Hong Kong, like so many others, in anticipation of an amnesty, I am unable to accept that her surrender to the immigration authorities on 11 December 1997 was for the sole and specific purpose, as she repeatedly emphasised, of claiming right of abode. 

302.Among other things, the applicant knew at the time that, if she had any right to benefit from an amnesty, it had to be based on her father’s residential status.  He was a permanent resident but her mother was not.  In the circumstances, if the sole purpose of the applicant’s visit was to claim right of abode, it is puzzling that she did not take with her any proof of her father’s status.

303.It was the applicant’s testimony that, on their arrival at the offices of GIS on the 13^th floor, her younger sister led the way to the reception counter.  At the counter, her younger sister showed the officer the applicant’s expired two-way permit and asked if the applicant, as the child of a Hong Kong permanent resident, could make an application to live in Hong Kong.  In her affirmation of 14 February 2007, the sister, Madam Lam Kam Ying, put it as follows :

“	I handed over my sister’s Two-way Permit and said to the counter officer words to the effect ‘my father was a Hong Kong permanent resident, this (gesturing to my sister) is my elder sister, can she make application to stay and live in Hong Kong?’”

304.Both the applicant and her younger sister accepted that the counter officer’s reply was unambiguous.  The sister expressed it as follows in her affirmation :

“	The officer said this was not possible and that, if she wanted, she could go back to Mainland China to apply.”

305.Although, in her final submissions, the applicant asserted that her sister’s brief conversation with the counter officer had amounted to a claim for right of abode, it was never suggested in testimony by either the applicant or her sister that it had been anything other than an enquiry; in short, a question as to whether it was possible to make a claim.

306.In her affirmation cited above, the applicant’s sister described her words as being in the form of an inquiry and not a claim.  In her affirmation of the same date, the applicant gave a mirror description :

“

She told the officer about our father being a permanent resident of Hong Kong and asked if her sister (meaning me) could apply to stay in Hong Kong?  I understood the response to be that I had overstayed, and even if I was eligible, an application could not be made there, but I had to go to the Mainland to apply.”

307.The case summary prepared for the applicant by Pam Baker & Co. is reasonably early support for the contention that an enquiry was made at the reception counter.  It reads :

“

They went to the Immigration Department, Wanchai, 13th floor, and asked the officer, ‘can I get an extension to be with my Hong Kong parents.  I believed that after the changeover, I should be able to stay.’  The officer gave her a form and told her that she cannot stay, if she wants to apply, she will have to go back to the Mainland.”

308.That advice, of course, would have fitted with what the applicant herself must have anticipated; namely, that claims were not being entertained in Hong Kong and overstayers were still being repatriated.

309.It was the evidence of the officer on duty at the counter that day, Immigration Assistant Leung Wing Yee, that, if a claim for right of abode had been made, he would have taken specific steps.  He would have —

“

… asked her to produce the supporting documents, if available, such as her birth certificate and her parents’ Hong Kong identity cards, and would request her to make photocopies of the supporting documents.  When she returned to the reception counter to submit the completed form ID 457, I would also collect the original and the copy of her travel document and copies of any other supporting documents submitted by her.  All the papers submitted would be put together for further processing by a Senior Immigration Assistant.”

310.As the evidence revealed, no such process was undertaken.

311.I am satisfied, therefore, that, while an enquiry as to right of abode may have been made, no claim was made.

312.As to what then transpired in the reception area, it was the applicant’s testimony that the ID 457 form which had been given to her at the counter was filled out by her sister while she and her mother went to another floor so that she could be photographed.  According to the applicant, the personal particulars form was therefore completed in her absence.  More than that, it was handed back to the reception officer by her sister before she and her mother had returned.

313.The ID 457 form does not contain any details of the residential status of the applicant’s parents.  There are no details of their Hong Kong Identity Card numbers.

314.The younger sister, however, made it plain in her testimony that she believed the ID 457 form was effectively a form in support of a claim for right of abode.  It was therefore, she accepted, an important form.  Despite this, she put down no information to indicate the residential status of her father, he being the one with permanent residence.  Nor did she put down any details of siblings; no details, for example, pertaining to herself to show that other immediate family lived in Hong Kong.

315.The sister said that she did not bother to get her mother’s identity card details because her mother was not a permanent resident.  In respect of her father, however, she said that she went back to the reception counter to ask if she could telephone home to obtain the details of his identity card.  Her implied purpose for the request was so that she could record on the face of the form that her father was a permanent resident.  It was the sister’s testimony that the officer at the counter – presumably the same officer who had told her no claim for right of abode could be made in Hong Kong – advised her that it was not necessary to record her father’s identity card details.  Accordingly, she said, she did not make the call.

316.When it was put to the sister that, if she remained intent on recording the applicant’s right to permanent residence, it is strange that nothing whatsoever was recorded on the face of the document, she replied to the effect that she gave her parents residential address and thought that the address would be sufficient.  If the Immigration Department required details, they could contact the parents at that address, she said.

317.The younger sister, in my judgement, was an intelligent witness.  She was not, however, a credible witness.  She was far too easily roused to indignation.  I do not believe that she completed the ID 457 form in any sort of belief that it constituted a form to support a claim for right of abode.  On her own evidence, before handing over the form for completion, the counter officer had told her that a claim for right of abode could not be made in Hong Kong.  Why therefore would he immediately give her a form to seek what was not capable of being sought?

318.It was the testimony of the applicant herself that, after she and her mother had returned to the 13^th floor, she was taken in for an interview.  Her mother and sister remained outside.

319.During the course of the interview, said the applicant, some writing was placed in front of her and she was asked to copy it onto a ‘grounds for non-removal’ form.  The characters, in translation, were to the following effect :

“	I overstayed in Hong Kong to keep company with my family.  I now want to return to China.”

320.Although the applicant had already been advised at the counter that she could not claim right of abode in Hong Kong, she said that she objected to having to write these characters.  She told the officer that her father was a permanent resident and she had the right to live in Hong Kong with her family.  The officer, however, told her that she should just copy the characters “and that will do”.  The applicant said that she then complied.  She complied, she said, because she was frightened.  In her evidence-in-chief the applicant made some mention of the interviewing officer telling her that, as an overstayer, she would have to go to court and should take $6,000 with her, failing which she would have to go to jail.  It seemed, therefore, to be her evidence that she was given a prosecution notice even before she had completed her ‘grounds for non-removal’ form.  In cross-examination, however, there was a considerable shift, the assertion being to the effect that the interviewing officer had made a direct threat that, if she did not copy the characters, she would have to go to jail.

321.It was the applicant’s evidence that the conduct of the interviewing officer offended her so much that, when she left the interview, she complained to her mother and younger sister.  Her mother commented that the officer’s conduct had been ‘unreasonable’.  According to the applicant, the three of them then complained to a staff member.  They were told, however, that the applicant would still have to be returned to the Mainland.  In the result, or so it appears, the complaint was taken no further.

322.If the applicant is believed, her interview was therefore an event in which she was threatened with imprisonment and denied the opportunity to write what she really wished to write.  The interview itself was followed by a complaint made to the Immigration Department in the company of her mother and sister.

323.However, the case summary prepared by Pam Baker & Co. does not speak of any threat nor of any subsequent complaint.  It reads :

“

Ms Lam was taken into a room alone.  In the room Ms Lam told the officer she wants to stay here to be with her mother and father.  The officer said that was not possible.  For such an application, she must apply in the Mainland.  The officer gave her sample Grounds and told her to copy it.  The officer then told her to bring $6000 and be at Wanchai on 16 Dec 1997 for prosecution.”

324.The applicant’s affirmation of 14 February 2007, made only some seven months earlier, makes no mention of a threat :

“

The officer showed me another piece of paper and told me to copy the words on that paper into the space provided on the Grounds for Non-Removal form.  I protested.  The officer said that I should just copy the words and that would be enough.  I said that I wanted to stay and to make an application.  I said that my father was a permanent resident and that I had the right to live here with my parents and that I wanted to be with them.  The reply was simply – you don’t need to write that, just copy the words.

After I came out of the interview room I told my younger sister about the interview with the officer.  I told her that the officer in the interview room required me to copy a sentence from a piece of paper onto a form, and told me that I did not need to write anything else.”

325.During the course of cross-examination it was shown that, in respect of later dealings with the Immigration Department, the applicant had been prepared to lie if she thought it would assist her.  She admitted as much.  The applicant was therefore a witness whose assertions demanded to be weighed with particular care.  As to the interview, I am satisfied that the applicant’s evidence was exaggerated and in part probably entirely fabricated. 

326.But even if I am wrong, there is no record of any claim.  It was – or more correctly, became – the applicant’s case that there would have been a record if the interviewing officer had not threatened her.  It appears that the applicant attempted to transform being told that she would have to attend court into some form of threat, a threat made during the course of the interview itself.  I have no hesitation in rejecting that assertion.  I note, for example, that the case summary by Pam Baker & Co. does not describe it in any way as a threat.

327.In the circumstances, my determinations are as follows :

(i)	the applicant did make a claim for right of abode;
(ii)	the Director has no record of any claim.

Madam Lau Wun Hoi (4682, a ‘group one’ applicant)

328.The applicant was born in Guangdong Province in 1962, the eldest of five children.  Her father settled in Hong Kong in 1980, her mother joining him in 1988.  At the change of sovereignty, therefore, both parents were Hong Kong permanent residents.

329.In 1995, while still living in the Mainland, the applicant was divorced from her husband.  The couple agreed that the two children of the marriage should remain with the husband in his home. 

330.The applicant came to Hong Kong in February 1997, her two-way permit authorising her to remain until April.  This was her third visit.  Like so many others, she had heard rumours that, when the change of sovereignty took place, there would be an amnesty which would enable people in her position to live permanently in Hong Kong.  After her arrival, said the applicant, she discussed the matter with her mother who was keen that she should overstay in order to take advantage of the rumoured amnesty.

331.As it was, again like so many others, the applicant’s expectations were dispelled.  The applicant testified that on 3 July 1997 her father went to the Immigration Tower in Wanchai hoping to obtain confirmation that there was indeed an amnesty.  However, when he returned, he reported that he had seen people being arrested and taken away in vehicles.

332.The applicant remained in hiding until 22 October 1997 when she went to the Immigration Tower to surrender herself.  She testified that she did so because she could not continue to stay in Hong Kong without the ability to walk freely on the streets.  Reading that into the context of her testimony as a whole, I took it to mean that she was of the view that the matter had to be settled one-way or the other.  Either she would be permitted to remain as the child of permanent residents or she would be repatriated. 

333.The applicant said that she went to the Immigration Tower with her younger sister, Lau Choi Ngan.  She said that both of her parents had to work and were not therefore able to accompany her.  As I understood it, therefore, when both she and her younger sister gave evidence, it was their assertion that just two of them went to the Immigration Tower.  However, at the very end of her case, when I asked the applicant if she wish to call any further witnesses, she said that she and her sister had, in fact, been accompanied that day by a friend.  For a short time she indicated that she wished to call this friend.  However, she then accepted that she did not know how to contact the friend and did not wish to call that person.

334.Both the applicant and her younger sister testified that, when they arrived at the Immigration Tower, they went first to the enquiries counter on the 2^nd floor.  The applicant said that she could not remember what had been said at the counter.  She could only remember that she had been referred to the offices of GIS on the 13^th floor.

335.The younger sister, however, purported to have a better memory of what was said at the enquiries counter.  The younger sister said that she went with the applicant that day for two reasons; first, to give her sister moral support and, second, to try and discover the true position concerning right of abode.  For that reason, she said, she asked the officer at the enquiries counter whether a child of Hong Kong permanent residents had right of abode.  As I initially understood the younger sister’s testimony, it was to the effect that she was told quite firmly that there was no such entitlement.  However, she went on to indicate that what she was told at the counter was essentially ambiguous. 

336.It was the applicant’s testimony that, when they arrived at the offices of GIS, her younger sister went to the reception counter.  The applicant said that she heard her younger sister say to the officer at the counter that the applicant wanted to go back to the Mainland and needed to know how that could be achieved.  It was the applicant’s testimony, therefore, that her younger sister spoke only of surrender for purposes of repatriation. 

337.However, when the younger sister herself came to testify, she said that she told the officer that their parents were Hong Kong permanent residents and asked whether, even though the applicant was an overstayer, it was possible for her to remain in Hong Kong.  It was, therefore, the younger sister’s testimony that she made a claim for right of abode, or at least made an enquiry concerning right of abode at the reception counter.

338.The younger sister accepted that this time she did receive a clear reply; namely, that there was no entitlement or policy of the kind suggested by her.  She said that she was given a personal particulars form, an ID 457, told to fill it out and told to wait until the applicant’s name was called.

339.As to the completion of the ID 457, this was done by the younger sister who was more literate.  When the applicant herself was asked if she understood the nature of the ID 457 form, she replied with a rare and disarming frankness that she understood it to be a document which had to be completed by people in order to be returned to the Mainland.

340.The younger sister herself did not suggest that the form was understood by her in any way to be related to a claim for right of abode.  For example, she said that she telephoned one of her parents to get their dates of birth to insert into the form but did not bother to find out their Hong Kong Identity Card numbers which would have confirmed their status as permanent residents.

341.In her affirmation of 2 March 2007, the applicant said that she did not obtain the Identity Card numbers of her parents as she ‘did not consider that it was important’.

342.I pause at this juncture to say that, in my opinion, the applicant did not exaggerate her evidence.  If she could not remember, she said so, explaining that too many years had passed.  The applicant considered each question put to her and spoke calmly in answer. 

343.Her younger sister, however, was far more aggressive, sometimes not waiting for a question to be completed before giving an answer.  During cross-examination, she rose to almost every question with an air of indignation.  I did not find the younger sister to be a credible witness.  While I accept that there may well have been an enquiry made on the 2^nd floor concerning the issue of right of abode, if such an enquiry had been made I am sure that both the applicant and her younger sister would have been advised in accordance with standard practice that any claim to live permanently in Hong Kong would have to be processed on the Mainland.

344.I do not accept the testimony of the younger sister that she either made a claim for right of abode or, at the very least, made an enquiry concerning it at the reception counter on the 13^th floor.  It was the first time that such an assertion had arisen.  It had not been mentioned by the younger sister in her affirmation while the applicant herself, in her testimony, spoke only of the younger sister asking about the process of surrender for purposes of repatriation.

345.In any event, there is no record of any such claim.  The ID 457 form, completed by the younger sister herself, contains no indication of any kind that the parents of herself and the applicant were permanent residents.

346.After the completion of the ID 457, the applicant testified that she was called in for an interview.  Her sister, she said, remained outside.  Her younger sister confirmed that this was the case. 

347.However, during the course of cross-examination, it was suggested to the applicant that her younger sister had, in fact, been with her during the interview process.  In this regard, the applicant was referred to a case summary prepared by her original solicitors, Pam Baker & Co.  The summary contained the following :

“	After completing the ‘natural’ family members form, Mdm Lau was taken to a separate room for interview.  Her sister was permitted to stay with her.  They explained that her parents are permanent residents and that Mdm Lau needed to stay to care for her mother.”

348.It was also pointed out to both the applicant and her younger sister that the last entry on the ID 457, which had originally contained the word ‘nil’ in black ink, had been over-written in blue ink, the clear inference being that this last entry – which gave the details of the younger sister herself – had been amended with a new pen.  The ‘grounds for non-removal’ form completed during the course of the interview was also in blue ink, the thickness of the nib suggesting that both the last entry on the ID 457 and the entry on the ‘grounds for non-removal’ form may well have been completed with the same pen.  It was put to both the applicant and the younger sister that this tended to suggest that the last entry on the ID 457 form, which, as I have said, related to the sister herself, was not completed until both were in the interview room and the interviewing officer – probably because of the presence of the sister – asked the sister to fill in her own details.

349.Both the applicant and her younger sister, however, were firm in their memories that the applicant had been interviewed alone.  The applicant said that any statement in the case summary by Pam Baker & Co. to a different effect must have been the result of an misunderstanding.

350.As to what occurred during the interview, the applicant testified that the interviewing officer, Immigration Assistant So Tsz Chung, asked her why she had overstayed for so long.  The applicant said that she told the officer that her mother and father were Hong Kong permanent residents and that she did not wish to leave Hong Kong but wished to stay here with them.  A little later in her testimony, she went on to say that she told the officer her mother, a Hong Kong permanent resident, was the one who ‘kept me here’.  I understood this phrase to mean that it had been the mother who had prevailed on the applicant to overstay. 

351.In her testimony, therefore, the applicant made an assertion that the issue of right of abode was raised with the interviewing officer.  However, when the applicant was given the opportunity to cross-examine the interviewing officer and put her case to him, she did not suggest that she had said anything at all concerning right of abode.  Instead, she put it to the officer on more than one occasion that she had said words to the following effect : ‘My mother is ill and I overstayed in order to look after her.’  The applicant was, of course, a stranger to court process.  She must have been nervous.  Sometimes, in such circumstances, the obvious can be overlooked.

352.But when all matters are taken into account, I believe the applicant, in truth, could not recall what she had said during the interview.  That was the reason for her somewhat ambiguous testimony.

353.Indeed, when the applicant gave her testimony, she said that the interviewing officer did not enter into any sort of dialogue with her.  She said that the officer simply handed her a card, instructing her to copy the characters on the card onto the ‘grounds for non-removal’ form.  The characters followed the familiar litany :

“	I overstayed because of keeping company with my family members.  Now I wish to return to China.”

354.Although the interviewing officer, Mr So, had no independent recollection of the interview, he said that it was his practice, if an interviewee had difficulty with characters or sought assistance, to write out some appropriate characters on a piece of paper and asked the interviewee to copy them.  If however the interviewee wished to write something else then he or she was free to do so. 

355.It was the applicant’s testimony that she did not want to write the characters which she was told to copy.  She wrote them down however, in the belief that she could not question the officer or suggest to him some alternative form of characters.  She said that she was very frightened at the time, her fear arising out of the fact that she was an overstayer.  The applicant accepted that she did not question the officer or suggest any alternative form of characters.  She simply copied the characters that she had been told to copy.  She further accepted that the officer did not threaten her in any way or act in an oppressive manner towards her.  As I understood it, her case was simply that, as she was an overstayer and he was a public figure in authority, she believed that she had no entitlement to enter into any sort of debate with him as to what should be written on the form.  As I have said in respect of earlier applications, it was a form of self-induced timidity. 

356.In all the circumstances, I cannot be satisfied that the applicant made a claim for right of abode during the interview.  But even if I am wrong in that regard, there is no record of any claim.

357.The ID 457 form which was completed by the sister gives no indication of the residential status of the parents.  I have already cited what was written on the ‘grounds for non-removal’ form.  There is nothing there capable of constituting a record.

358.In all the circumstances, my determinations are as follows :

(i)	the applicant did not make a claim for right of abode;
(ii)	the Director has no record of any claim.

Mr Wong Cheung Wan (3583, a ‘group one’ applicant)

359.This applicant’s hearing commenced on 29 October 2007, three days after his appeal against the discharge of his legal aid had been refused.  I asked the applicant if he was sufficiently prepared to proceed.  He informed me that he was.

360.The applicant was born in Fujian Province in 1962, the eldest of four children.  His father came to Hong Kong in 1973 and has lived here since then.  His mother was able to join him in 1982, bringing two children of the family.

361.In or about 1990, the applicant came into Hong Kong as an illegal immigrant.  He was arrested, prosecuted and sent back to the Mainland.

362.The applicant returned to Hong Kong on 14 March 1997, his two-way permit enabling him to remain until 11 April 1997.  He overstayed.  Like so many others, he did so, he said, because he had heard that, when the change of sovereignty took place, the children of Hong Kong permanent residents would themselves be entitled to right of abode.

363.The applicant said that on 8 July 1997, he went with his father to the Immigration Tower.  He was aware that many people were being arrested and repatriated.  However, he still wished to check whether a person in his position would be entitled to remain permanently in Hong Kong.  The applicant said that he was too nervous to go into the building itself.  So he remained outside while his father went in to make enquiries.  His father, he said, reported to him that he could not claim right of abode in Hong Kong and that, to do so, he would have to return to the Mainland.

364.However, hoping that there would be a change for the better, the applicant said that he continued to overstay.  Indeed, in August 1997, he said, he went with his father to the Legal Aid Department, hoping to join others fighting for right of abode.  His application, however, was not processed.  He received no tag nor did he complete any application form.  He was told, he said, that he was not able to join in the litigation as he had been born before either of his parents became permanent residents.  There is no suggestion that anything other than a general form of enquiry was made at the offices of Legal Aid.

365.The following month, in September 1997, the applicant said that he returned with his father to the Immigration Tower to make further enquiries.  During the course of cross-examination, however, he was reminded that in his affirmation of 18 July 2007 he had asserted that his father had merely telephoned the Immigration Department.  The applicant said that his affirmation was correct and that his memory was at fault.  There had not been a second visit.  There had only been a telephone call.  The information that his father received, he said, remained unchanged.  As to whether there was one or more visits to the Immigration Department, the case summary prepared for the applicant by Pam Baker & Co. tends to support the assertion that there was only one.  It reads :

“	I came to Hong Kong in March 1997 and in July and September my father and I went to Immigration and made telephone enquiries.  But the Immigration officers all said they would not give any amnesty and settlement.”

366.On 3 November 1997, the applicant went on his own to the Immigration Tower in order to surrender himself.  In this regard, the case summary prepared by Pam Baker & Co. is to the following effect :

“	I waited in vain in Hong Kong for 8 months and on 3 November 1997, carrying my disappointment in my hands, I went to Immigration Wanchai, 13th floor, to surrender.”

367.During the course of his testimony, the applicant made it plain that his principal purpose for surrendering himself was to secure his return to the Mainland.  Not only was he disappointed that his wait for an amnesty had been in vain but his wife was not well.  As he put it in a letter addressed to the court a day or so before the hearing :

“	… in November 1997, my wife in my native place had appendicitis and needed me to return there urgently, so I surrendered myself to the Immigration Department.”

368.The suggestion in the applicant’s affirmation of 18 July 2007 that he went to the offices of GIS ‘to make one last attempt to pursue my right of abode’ and, only if that was not successful, would he return to the Mainland goes directly against his testimony and the contents of his letter.

369.The applicant’s recollection of what happened at the offices of GIS was (understandably) vague.  The applicant recalled an officer – seemingly the officer on duty at the reception counter – asking him why he had overstayed for so long.  The applicant said that he replied to the following effect : “I overstayed because I thought there would be an amnesty.  But I know now that there is no amnesty and so I want to return to the Mainland.”  This testimony accords with the case summary prepared by Pam Baker & Co.; namely, that, disappointed there was no amnesty, the applicant surrendered himself so that he could be returned to his family in the Mainland.

370.The applicant had no real memory of completing a ‘personal particulars form’.  When shown the document, he recognised his handwriting.  But he could not remember the circumstances in which the document had been completed.  Suffice to say that the ID 457 form, while it gives the names, ages and the Hong Kong address of the applicant’s parents, does not give their Hong Kong identity card numbers nor does it say anything, direct or indirect, as to their residential status.

371.It is to be noted that in the case summary prepared by Pam Baker & Co. no suggestion is made that the applicant at any time made an enquiry about right of abode or asserted a claim in that respect.  All the case summary records is the following :

“	I was asked to complete a family background document.  Immigration officers asked me why I overstayed that long before wanting to return to the Mainland.  I answered that I was waiting for the amnesty, but now that there was no amnesty, I wanted to return to the Mainland.”

372.The applicant struck me as a slow, taciturn individual.  I found him in most matters to be credible.  Indeed, I gained the strong impression that he wished simply to tell his story as he remembered it in the hope that somewhere in it I would be able to extract sufficient to find that he was entitled to benefit under the concession policy.

373.The applicant clearly understood the importance of a record in successfully advocating his case and only in one respect – concerning the possible existence of a record – did he make a foray into what, in my assessment, was a spur-of-the-moment invention.  During his interview, the applicant said that he was asked a second time why he had overstayed so long.  He then replied that he had overstayed believing there would be amnesty.  More than that, he wrote on a ‘grounds for non-removal’ form characters to that same effect.  However, he said that he did not know how to write the characters for the word ‘amnesty’.  He therefore asked the interviewing officer, Ms Ma Suk Kwan, for assistance.  However, the interviewing officer then gave him a new sheet on which to write, suggesting an entirely new form of words.  He complied with that suggestion, copying the characters that she had written.  As to the first sheet of paper, the one that was partially completed, he said, he did not know what had happened to it.  But that would constitute a record.  The applicant’s GIS file was examined but there was no partially completed ‘grounds for non-removal’ form found in it.

374.The ‘grounds for non-removal’ form contained in the file, the one to which the applicant put his signature, is in familiar form.  It reads :

“	I have overstayed because of keeping company with my family.  I now want to return to Fuqing City, Fujian Province, China.”

375.Ms Ma, the interviewing officer, said that, if an interviewee did not know what to write, she would assist.  But an interviewee, she said, was always free to write what they wished.

376.As I have indicated earlier, in the Pam Baker & Co. case summary, nothing is said specifically of what occurred during the interview.  The summary makes no mention of any partially completed document.  The applicant’s affirmation is more detailed but nor does it make any mention of a partially completed form.  It says only :

“

I was then taken into another room for an interview.  I recall that the officer was female.  She asked me the same question as had the counter officer – namely why I had overstayed for so long.  I gave the same reply, i.e. that I thought there would be an amnesty.  The officer gave me a form, and another piece of paper and told me to copy the words down on to the space in the form.”

377.In any event, even if there had been an initial, partially completed form, on the basis of the applicant’s testimony, it would not have amounted to a record of a claim.  According to the applicant, all he wrote, or began to write, was an explanation of why he had overstayed; namely, that he had overstayed because he believed there might be an amnesty.  That, of course, is different from making an assertion that he is entitled to remain permanently in Hong Kong.

378.In summary, while I am satisfied that the applicant’s father did make enquiries on his son’s behalf concerning right of abode – once by a personal visit and once by telephone – I am satisfied they were no more than enquiries.  Even if I am wrong in this regard, there is no record of these contacts.

379.I am further satisfied that by November 2007 the applicant had accepted what he then saw as being the reality of the situation; namely, that there was – and would be – no amnesty.  He therefore surrendered himself so that he could return to his life in Fujian Province.  Even on the applicant’s own evidence, taken at its highest, it would distort matters to find that he made a claim for right of abode.

380.Concerning the visit to the Legal Aid Department by the applicant and his father, while I accept that such a visit was made, on the evidence, as I have said earlier, it did not amount to anything more than a general enquiry.  In any event, the judgment of the CFA given in January 2002 deals with the issue, para.219 of the judgment reading as follows :

“

According to the evidence, it was the practice of the Legal Aid Department to accept applications and consider their merits in order to decide whether to grant legal aid or not.  Those persons who were ‘turned away’ were likely to have been people who had made general inquiries only and had been informed by the staff of the rulings of the court at the relevant time.  If they were not merely making enquiry and were serious about their claims, they would have insisted on applying for legal aid to pursue their claims and their applications would normally have been accepted and considered, even if consideration resulted in refusal of the application.  There were also those persons who had been granted legal aid but later, upon legal advice, had their legal aid certificates discharged.  However, after the Chan Kam Ngadecision at first instance was publicised, if they had applied again, they would have been reconsidered. In any event, the approach which these persons made to the Legal Aid Department cannot be regarded as a claim because it was not a claim made to the Immigration Department of which there was a record.”

381.As for the applicant’s surrender to GIS on 3 November 1997, it was his submission that the ‘grounds for non-removal’ form which he signed constitutes evidence both of a claim for right of abode and a record of that claim.  In his letter addressed to the court, the applicant put his argument in the following way :

“

In the column of ‘reason for overstaying’ in the surrender form, I wrote that I overstayed for keeping company with my family.  That is to say, my parents have been living in Hong Kong for more than 20 years, I came for reunion with my father and mother and thus overstayed.  Because the term right of abode had not yet been created back then, keeping company with my family is indeed a claim that I have the right and the obligation to stay in Hong Kong to take care of my aged and ailing parents, especially my mother whose health is poor.”

382.It is a disarming submission but, in my opinion, of no weight.  No matter how it is read, the ‘grounds for non-removal’ form does no more than explain why the applicant had overstayed and then state a wish; namely, the desire to return to the Mainland.  It is not capable of constituting either a claim or a record of a claim.

383.Accordingly, my determinations are as follows :

(i)	that the applicant did not make a claim for right of abode;
(ii)	there is no record of any claim in the possession of the Director.

Madam Hui Ching Na (4581, a ‘group one’, ‘group five’ and ‘group six’ applicant’)

384.This applicant may originally have had legal aid but there has been no contact with her since about February 2000 when apparently she passed through Hong Kong on her way to the Philippines.  This is despite the fact that a number of letters have been written to her.

385.By letter dated 23 July 2007, addressed to her last known Hong Kong and Mainland addresses, the applicant was informed that her application had been set down for hearing on 9 and 10 October 2007.  She was informed that, if she did not attend, her application would be determined in her absence.  As with all other correspondence sent to the applicant, the letter was in both English and Chinese.

386.The applicant did not attend court on either 9 or 10 October 2007.  In the result, her application was determined in her absence. 

387.The applicant’s last known Hong Kong address was problematic.  I say that because it was the address of her father who died in 2003.  Although in October 1997 the applicant recorded in a personal particulars form that she had a brother living at the same address, it is not known whether, after his father’s death, the brother continued to live there and, if so, for how long. 

388.The Mainland address appears to be more certain.  It is the address which the applicant wrote on her personal particulars form in October 1997 and which she recorded again in an application submitted to the Philippines Consulate General in Xiamen in December 1999 when applying for a non-immigrant visa to visit the Philippines.  It is the address of her village in Fujian Province, the village where she was raised.  

389.For what it is worth, it should be said that none of the letters addressed to the applicant’s last known Hong Kong or Mainland addresses have been returned.

390.During the course of 2007, aside from the one letter written by the Registrar of the High Court, two letters were written to the applicant by the Department of Justice, the first dated 13 June and the second dated 11 July.

391.In my judgment, all reasonable steps had been taken to contact the applicant to advise her of the hearing of her application.  It is to be remembered that the essential burden has rested on her to pursue her claim.  She has not shouldered that burden.  Indeed, the probabilities suggest she had simply abandoned her claim.

392.Because there has been no contact with the applicant since early 2000, no formal papers were prepared for her, or by her, setting out the basis of her claim to be a beneficiary under the concession policy.  There was only one document in which the claim had been outlined.  That is a case summary prepared by Pam Baker & Co. in or about 1999 or 2000.

393.In that summary, three separate claims are outlined.  First, a claim made to the police when the applicant was arrested as an overstayer on 14 October 1997; second, a claim made to the Immigration Department on the following day at the Victoria Immigration Centre and, third, a number of claims apparently contained in letters written by the applicant’s father to the Director of Immigration between October 1997 and February 1998. 

394.By way of background, it should be said that the applicant was born in July 1954 in Fujian Province.  She was one of six children.

395.The applicant came to Hong Kong on the strength of a two-way permit in May 1990.  Although she was married with three children, she overstayed.  Indeed, she remained in Hong Kong as an overstayer until her arrest by the police on 14 October 1997, a period in excess of 7 years.

396.The applicant may well have overstayed in order to look after her parents.  The records showed that her mother was not a well woman.  Among other ailments, she was a diabetic.  Her mother died at a relatively young age in 1993.  Her father was to die 10 years later in 2003.

397.The applicant’s case summary also gave as one of her reasons for overstaying the anticipation that, when the change of sovereignty took place, there would be an amnesty for the children of Hong Kong permanent residents. 

398.Concerning the applicant’s asserted claim for right of abode made while in police custody, the case summary records the following :

“	After being arrested, [the applicant] told police that she had stayed to be with her father who is a permanent resident.  Her mother had died, and her father needed her to stay and care for him.  She was asked for her parents’ names, address and other details, which she gave.”

399.On an ordinary reading of that extract, I have difficulty in concluding that it amounts to a claim for right of abode.  In my view, it amounts rather to an explanation of why the applicant had overstayed for so long.  Yes, it does mention the fact that her father is a permanent resident but I do not see that this on its own, in the context of what is written in the case summary, can transform what is an explanation into an assertion of a right in law.

400.As is mentioned in the case summary, it is clear that the applicant did give certain personal particulars to the police.  These appear in an Overstayer Referral Proforma dated 14 October 1997.  There is however nothing on the face of that document which, directly or indirectly, constitutes evidence of any claim.

401.As the applicant was transferred into the custody of the Immigration Department on the day of her arrest, no cautioned statement was taken from her by the police.  It is possible, of course, that the arresting officer may have made certain notebook entries.  The notebook, I understand, was destroyed in accordance with normal police practice many years ago.  Its contents are not known.

402.In the circumstances, I cannot be satisfied that a claim for right of abode was made while in police custody.  Even assuming that a claim for right of abode was made, there is simply no record of any such claim.  

403.As I have said, the applicant was transferred into the custody of the Immigration Department at the Victoria Immigration Centre on the day of her arrest.  While there, she completed a personal particulars form and, in the course of an interview, put her signature to a ‘grounds for non-removal’ form.

404.The personal particulars form gives the names of the applicant’s father and her deceased mother but says nothing concerning their residential status. 

405.The ‘grounds for non-removal’ form is a pre-written form to which the applicant placed her signature.  It is very much an administrative form, bureaucratic in its language.  It reads :

“	I, HUI Ching-na, have overstayed in Hong Kong.
	I have not worked or applied for extension in Hong Kong.
	I wish to return to the Mainland China as soon as possible.”

406.As to what occurred in the custody of the Immigration Department, the applicant’s case summary is to the following effect :

“

She completed a family background form giving her parents’ address.  She was asked whether her father could post bail for her but [the applicant] had so far been unable to contact her family by telephone.  She was then held in detention pending prosecution.  Although [the applicant] cannot recall whether she specifically asked to be permitted to remain in Hong Kong with her father on the basis of his permanent resident status, she believes she probably did.”  [my emphasis]

407.It will be seen from the portion of the case summary that I have emphasised that, even at the time the summary was prepared, the applicant could not remember whether she had in fact made a claim for right of abode.  She could put it no higher than she believed she probably had.  

408.No suggestion is made in the case summary that, when completing her personal particulars form or when putting her signature to the ‘grounds for non-removal’ form, the applicant was in any way made the victim of oppressive conduct.

409.In the circumstances, in my view, there is simply not enough evidence to show that the applicant did claim right of abode at the Victoria Immigration Centre.  But if I am wrong in that regard, and it is assumed that such a claim may have been made, there is no record of any such claim.

410.On 17 October 1997, the applicant was convicted of breach of her conditions of stay and sentenced to six months’ imprisonment.  Upon her release from prison in early 1998 she was repatriated.

411.According to the case summary, while she was serving her term of imprisonment, the applicant’s father wrote a number of letters to the Director of Immigration asking that, upon his daughter’s release, she be permitted to remain in Hong Kong.  In this regard, the case summary is to the following effect :

“

Throughout the time that [the applicant] was imprisoned, her father wrote numerous letters to the Director of Immigration asking that she be permitted to remain with him after her release.  He is now elderly and unable to remember the precise dates, but he emphasises that he wrote numerous letters to the Director of Immigration in this period.”

412.Although the case summary asserts that the father wrote ‘numerous’ letters to the Director of Immigration while his daughter was in prison, the Director has no record of any letter being received from him during that period.  The adjective ‘numerous’ is, of course, open to interpretation.  But, on an ordinary reading, it would indicate more than just one or two letters.  If more than just one or two letters were in fact written during this period of time, it seems unlikely that the Director should not have a record of receiving even one.

413.It is also to be noted that, if letters were written by the father to the Director of Immigration when the applicant was serving her prison sentence, there is no evidence that he kept copies.  Their content is therefore a matter of conjecture.  Did they contain claims for right of abode or were they simply requests seeking an exercise of compassion on the part of the Director by allowing the applicant to remain in Hong Kong to look after an aged parent?  The case summary, if anything, obliquely suggests the latter.

414.It is pertinent to note that the evidence revealed that the applicant’s father did keep copies of some of the letters that he wrote.  These, however, were all letters written after the closure of the concession period at a time when there would have been a dawning appreciation of the importance of having claimed right of abode during the concession policy.  However, even these later letters remain somewhat ambiguous, the lines being blurred between what may be read as recording a past claim for right of abode or a past request based on compassionate grounds only for the applicant to be allowed to remain in Hong Kong to care for the father.

415.I find it difficult to accept that, after the concession period had closed, the father then kept copies of all his letters but had failed to do so before.  This raises a real doubt in my mind as to whether there were any earlier letters.

416.In all the circumstances, I have come to the following determinations :

(i)	the applicant did not make a claim of right of abode;
(ii)	the Director has no record of any claim.

Mr Yeung Ka Wong (5088, a ‘group one’ applicant)

417.This applicant was the first of the two applicants who had the benefit of legal representation, his counsel being Mr Kwok Sui Hay.

418.The applicant was born in Fujian Province in 1962, one of four children.  His father settled in Hong Kong in 1981, his mother joining him in 1988.  By the change of sovereignty both had become permanent residents.  Two of the applicant’s siblings, his elder brother and a sister, were also able to settle in Hong Kong before the change of sovereignty.

419.At the change of sovereignty, only the applicant and one brother still lived in the Mainland.  The applicant was then 35 years old.  He was married and had two children.

420.It was the applicant’s evidence that he had long wished to settle in Hong Kong.  In the months preceding the change of sovereignty he had heard rumours, he said, that, when the change took place, there would be an amnesty permitting the children of Hong Kong permanent residents to take up residence in Hong Kong.  He therefore applied for a two-way permit, hoping to be in Hong Kong when the handover took place.  His permit, however, only permitted him to come to Hong Kong on 16 July 1997 for a period of 30 days.

421.The applicant said that when he arrived in Hong Kong he was informed by his elder brother that the rumoured amnesty had proved to be false.  However, he was told that people were still actively pursuing the right to settle in Hong Kong.  For this reason, said the applicant, on the very day of his arrival, having left his luggage at his parents’ home (or perhaps more correctly, the home his parents shared with his elder brother), he and his elder brother went to the Immigration Tower in Wanchai to seek to claim right of abode.

422.It was an important part of the applicant’s case that, before departing for the Immigration Tower, his father made out a power of attorney.  In that power of attorney, the father appointed the elder brother, already a Hong Kong resident, to act as his agent in claiming right of abode on behalf of the applicant and the other son of the family who still lived in the Mainland.

423.The applicant testified that he was present and witnessed his father writing out the power of attorney.  The English translation of the document is to the following effect :

“	POWER OF ATTORNEY
	I, Yeung Sai Ming, holder of identity card no. xxxxxxx(x) hereby appoint my eldest son Yeung Ka Lung as attorney with full power to make on my behalf claims to right of abode in Hong Kong for my two sons Yeung Ka Wong and Yeung Ka Hing to the Immigration Department because I am troubled by various diseases and old age and I am inconvenienced in many ways.  I hope that the Government will grant approval for that.”
	Thanks.
	Yeung Sai Ming (signature)”

424.At that time the father was hardly in his ‘old age’, he was in fact 62 years old and worked at a factory.  But, according to both the applicant and his elder brother he was not in good health.  The applicant added that his father did not know his way around or ‘how to speak’ which I took to mean that his father remained unfamiliar with Hong Kong and Hong Kong ways.

425.It was the applicant’s case that, armed with the power of attorney, he and his elder brother went to the Immigration Tower that same day; that is, on 17 July 1997.  The applicant remembered that they went to the enquiries counter on the second floor.

426.As to what took place at the counter, as the applicant was not conversant in Cantonese, he had to leave matters to his brother and rely on what he reported to him.  In his affirmation of 8 August 2007, the brother, Yeung Ka Lung, said the following :

“

When we got to the counter, I took the document out of my pocket and handed it to the officer at the counter, who took it and put it on the counter in front of him.  I told the officer that this was a Power of Attorney document from my father and that my two younger brothers were entitled to the right of abode in Hong Kong under the Basic Law.  I told the officer, gesturing towards my younger brother [the applicant], that one of my younger brothers was with me to obtain his right of abode.  The officer looked at my brother’s Two-way Permit.  I told the officer my father was already a permanent resident of Hong Kong.  The officer asked whether my father had a ‘black seal’ on his ID card when my brother was born.  I said he had not.  The officer replied that they did not process these sorts of things there and that such applications had to be made in the Mainland and in any event right of abode would only be granted to those who were born after at least one parent had become a permanent resident of Hong Kong.  The Power of Attorney and my brother’s Two-way Permit were given back to us, and we left the office.”

427.If it is accepted that this conversation may have taken place then, in my judgment, even though it took place at the enquiries counter, it would have constituted a claim for right of abode made by the brother on behalf of the applicant.

428.During the course of his testimony, the elder brother said that he pressed the power of attorney on the officer at the counter, wanting him to place it into the records of the Immigration Department.  The officer, however, refused to accept it.  The information office, of course, referred matters, if necessary, to other sections.  It did not itself keep records of that kind.

429.In April 2000, less than three years after the event, the applicant was able to describe the visit to the Immigration Tower in some detail.  His record of interview with the Removal Special Project Sub-Division of the Immigration Department was to the following effect :

“

I … went together with my blood elder brother, Yeung Ka Lung, on the morning of 17 July 1997 to the Enquiry at the second floor of the Immigration Department at Wan Chai to enquire about and ‘claim’ the handling of right of abode in Hong Kong.  The officer on duty was a male.  He replied: If you want to have right of abode in Hong Kong handled, either of your father and mother should be a Hong Kong permanent resident at the time of your birth.  Only in such case can you have it handled.  That was the first time I was rejected.

No document was accepted.”

430.The insertion of the final phrase – “No document was accepted” – is, in my view, of some relevance.  The applicant and his brother spoke only of two documents that were shown to the officer at the counter, the applicant’s two-way permit and the power of attorney.  It must have been expected, of course, that the two-way permit would be given back to the applicant.  It was his effective identity card while in Hong Kong.  That would leave just the power of attorney which, as I have said, the elder brother, during his testimony, said he attempted to give to the officer.

431.It should also be mentioned that in the year 2000 the applicant wrote on a number of occasions to the Director of Immigration, speaking of events in 1997.  For example, in a letter dated 13 February 2000, he wrote :

“	On 17 July 1997, I went to the second floor of the Immigration Tower in Wan Chai to make a declaration to a male officer on duty and requested to have my right of abode application processed.  But the duty officer rejected my request and did not verify my permanent resident status for me.”

432.It was the evidence of both the applicant and his brother that they returned to the Immigration Tower the very next day; that is, on 18 July 1997, indeed to the same counter.  As to how this came about, the brother said the following in his affirmation :

“

Upon returning home we discussed the matter with our parents, who wanted us to return to the Immigration tower to clarify the position.  According to my understanding of the Basic Law, my younger brothers were entitled to the right of abode.  Therefore, on 18 July 1997 my younger brother and I returned to the same counter at the Immigration Tower.  I reiterated that under the Basic Law, if either of the parents had lived in Hong Kong for 7 years, then the children born to them in the Mainland would be entitled to right of abode here.  The officer told me such applications had to be lodged in the Mainland.”

433.Again, in my view, if it is accepted that this conversation took place, it would have amounted to a claim for right of abode.  This was no mere enquiry.  According to the brother, it amounted to an assertion of the applicant’s rights under the Basic Law.

434.In his affirmation, the brother said that, despite being rebuffed on two occasions, he still did not accept that the applicant had no entitlement to right of abode.  He knew that, if his brother went back to the Mainland, he would never be able to obtain a one-way permit.  His age stood against him.  He said that he therefore suggested to his brother that he should remain in Hong Kong.  As the brother said in his affirmation :

“	At this time there was a lot of confusion as to the issues relating to right of abode, and there were various reports in the news about the issues, and we hoped they would become clearer.”

435.Both the applicant and his brother spoke of a third visit to the Immigration Tower.  The brother described it as follows in his affirmation :

“	My younger brother’s permission to remain was due to expire on 14 August 1997.  I went back with him on 13 August 1997 to try to seek a way for my brother to obtain right of abode.  However, the advice we obtained was the same as that on 17 and 18 July 1997.”

436.The visits of 18 July and 14 August were also mentioned by the applicant in his record of interview with the Removal Special Project Sub-Division and mentioned (in a general way) in at least one letter dated 24 February 2000 addressed to the Director of Immigration.

437.As to whether a claim for right of abode may have been made on 17 July 1997, or on either of the two subsequent occasions, much depended on the testimony of the applicant’s elder brother, Leung Ka Lung.  He was the one who spoke to the immigration officers and was said to have made the claims.  However, when the brother first started to give his evidence, he was, in my view, cagey and evasive, acting as if there was somehow some merit in avoiding issues.  It seemed to me that he fundamentally misunderstood the purpose of testimony.  Stern words ensued.  I attempted to make it plain to him that the purpose of giving evidence was not to play a game of cat and mouse.  The brother was clearly shaken by my intervention.  But, having been informed of the essential purpose of evidence, his testimony thereafter was, I believe, a good deal more honest.

438.Were visits made to the Immigration Department on the three occasions described by the applicant and his brother?  I am prepared to accept that they may well have been.  No doubt the applicant – and his family – were anxious at the time to secure the best outcome for the two sons of the family who remained in the Mainland and in the circumstances repeated visits are understandable.

439.Were claims made on one or more of those visits?  Again, I am prepared to accept that they may well have been made.  Normally, of course, only enquiries would be made at the enquiries counter but that does not mean that direct assertions of right may not also have been made.  Certainly the elder brother spoke in his affirmation – and also his testimony – of making an assertion of right on behalf of the applicant and, in the final analysis, although I approached his testimony with some caution, I was not able to reject that evidence as it related to the three visits.

440.In my judgment, however, while I accept on the probabilities that one or more claims for right of abode were made, there is no record of any such claim in the possession of the Director.

441.The information office, as I have said, did not keep records.  It was not part of its function.  The power of attorney drawn up by the father may have been examined by the officers at the counter but it was never retained nor was a copy made for record purposes.  The fact that, for the moment or two when the power of attorney was examined, the officers had the document in their possession is, in my view, simply not sufficient to meet the requirements of the concession policy.

442.In Ng Siu Tung and Others v. Director of Immigration (2002) 5 HKCFAR 1, at 73A, the CFA said :

“

The Director of Immigration requires that, to constitute a claim, there must either be something in writing or it was made in such a way that the Immigration Department would have kept a record of it.  In other words, it need not be in writing, but there must be a record of such claim with the Department.  In our view, this requirement is neither a misinterpretation of the policy decision nor misapplication of it.”  [my emphasis]

443.By way of illustration, on page 75 of the same judgment (para.221), the Court said the following :

“

With regard to those who had registered with the Legal Aid Department between 8 December 1998 and 29 January 1999, again their intention to lodge a claim for right of abode was sufficiently clear.  However, the Legal Aid Department did not process their applications for legal aid but wrote the Legal Aid pro forma replies to them saying that they need not take any action since the Court of Final Appeal would soon be hearing and determining the same issues.  Unfortunately, the Legal Aid Department did not forward their names, about 1,000 in number, to the Immigration Department before the end of the Concession period.  This may be understandable in view of the large number of applicants during this period of less than two months.  The list was only forwarded to the Immigration Department about a year later in December 1999.  In other words, while these persons had intended to lodge a claim for right of abode through the Legal Aid Department, their claims were not processed, and the Immigration Department at the relevant time did not have any record of their claims.  Hence, these claims do not fall within the policy decision.”

444.Even if it was demonstrated that the officers should properly have kept the original or referred the applicant to another department where his claim could be properly dealt with and a file opened, that would point to nothing more than deficient practice.

445.Concerning the power of attorney, in April 2000 the applicant’s elder brother also made a statement for the Removal Special Project Sub-Division which ended with the following sentence :

“	As the staff of your Department refused to accept the power of attorney that I tried many times to hand in to the Enquiry at the second floor of the Immigration Department, I sent the power of attorney to the Immigration Department by post.  I am not clear of the time when I sent it.”

446.That statement, however, was deleted by the brother by putting a line through it.  On the face of it, therefore, it was an assertion which was acknowledged as being incorrect.

447.When the brother testified, he said he could not remember what had happened to the power of attorney.  He said he had actually looked for the original at his home the right before giving evidence.

448.No mention was made of posting the document to the Immigration Department within the concession period in the brother’s affirmation and nothing appears in the case summary prepared by Pam Baker & Co.  Suffice to say that the Immigration Department has no record of receiving the power of attorney through the post.

449.On that basis, I do not see how it can be claimed that the document may nevertheless have been posted.  That would constitute a generous guess not a rational deduction.

450.On 20 November 1997, in the early hours of the morning, the applicant and his elder brother were in a taxi which was stopped at a police road block.  The applicant was arrested as an overstayer.

451.At the police station, the applicant put his signature to what appears principally to be a standard administrative document bearing the title ‘overstay’.  The document does, however, record a brief series of questions and answers in which the applicant says nothing about coming to Hong Kong to claim right of abode but speaks instead of coming to visit his relatives and continuing to overstay in order to spend Christmas here.  The applicant did not accept the accuracy of the document and complained as to the manner in which it was taken.  As a piece of evidence, I considered the document to be essentially irrelevant and gave it no weight.

452.Later that same day, the applicant was transferred to the Victoria Immigration Centre and the following day; that is, on 21 November 1997, he was interviewed by Immigration Officer Chiu Wai Hung, an officer in the Processing Unit.

453.Officers in the Processing Unit dealt with overstayers who it was believed had no local connections or fixed abode in Hong Kong.

454.It was the applicant’s case that, to the best of his memory, the interviewing officer, Mr Chiu, spoke to him in Cantonese while he replied as best he could in a mixture of Putonghua and Minnan.  The implication was that there must have been only limited understanding.  Mr Chiu, however, said that he spoke Putonghua and, if he believed that there was a language barrier to communication, he was able to call in an interpreter.

455.In his affirmation of 8 August 2007, the applicant said the following as to the course of the interview :

“

During the interview I asked to be released and told the officer I wanted to remain in Hong Kong to care for my parents.  I told the officer that my parents were permanent residents of Hong Kong and I had the right to be with them.  The officer did not comment on this, but asked whether I had worked and I replied that I had not.  I was then told to complete a form called a ‘grounds for non-removal’.”

456.However, when he testified, the applicant’s evidence was much more ambiguous.  He said he remembered saying he wanted to stay in Hong Kong to look after his parents but could not remember making a claim for right of abode.  At best, he said that “perhaps” he had told the interviewing officer that his parents were in Hong Kong and he “should have the right of abode”.  This, in my view, left the matter very much in doubt.

457.It was the applicant’s case that he was told to copy characters onto the ‘grounds for non-removal’ form from another piece of paper.  Accordingly, although the characters were in his handwriting, they did not reflect his wishes.  The ‘grounds for non-removal’ form was to the following effect :

“	I, Yeung Ka Wong, have overstayed in Hong Kong.  I have not taken any job in Hong Kong.  I speak Mandarin and Minnan Dialect.  I now want to go back to the Mainland as soon as possible.”

458.When he testified, Mr Chiu accepted that, if necessary, he would assist interviewees with what to write and, in this respect, kept a number of precedent forms.  It appears almost certain that such a form was employed.

459.During the course of cross-examination, it was put to the applicant that he had a pen in his hand and there was nothing therefore to prevent him from putting his claim into writing.  The applicant admitted that he had made no complaint but he said he “did not understand” and so, when he was directed to copy, he simply did so.  At that time, he said, he “knew nothing”.

460.In the same interview, the applicant completed a ‘personal data’ sheet.  In that document, he gave details of both his parents and set down their Hong Kong address.  But nothing appears in that document indicating that the parents were Hong Kong permanent residents.

461.At the conclusion of the interview, the interviewing officer, Mr Chiu, completed a standard minute which he labelled “M3”.  The minute was a pre-printed form which he completed largely by deleting what was not applicable.  He did not delete the following :

“	4.	Subject has incentive to leave Hong Kong …
	5.	Subject’s presence in Hong Kong is not required by Police.”

462.Under the heading of ‘recommendation’ Mr Chiu left the following; namely, that he recommended —

“	passing the file to PD Section for consideration of O/S [overstaying] charge and following ‘VR’ [voluntary repatriation] afterwards.”

463.In summary, he recommended passing the file to the Prosecutions Section for a possible prosecution, this to be followed by his voluntary repatriation.

464.However, at the foot of the form Mr Chiu wrote the following words :

“	He was informed to be interviewed by another officer within two weeks.”

465.On behalf of the applicant, Mr Chiu was questioned as to why he would have written this endorsement in a standard case.  He replied to the effect that he had simply recorded what he had told the applicant; namely, that he would in due course; that is, within the next two weeks, be contacted about his prosecution and repatriation.

466.It was put to Mr Chiu that the applicant had claimed right of abode during the interview and he had acknowledged that claim by writing down that he would be interviewed concerning it at a later stage.  This Mr Chiu denied.  If the applicant had claimed right of abode, he said, he would have asked him to write that down on his ‘grounds for non-removal’ form and would have referred the matter to the Removal Section.  The matter would then have been out of his hands.

467.In the final submissions made by counsel on behalf of the Director, the following was said in respect of the minute, M3 :

“

Mr Chiu Wai Hung, the interviewing officer who made the notation on Minute M3, explained that he did this according to his own practice.  The purpose of the notation was to indicate that he had told the detainee that he would be seen by another officer within two weeks and informed of what was to happen to him.  This was necessary since a final decision to prosecute would not be taken until after the interview and the repatriation would follow thereafter.  The Immigration Department file showed that the Applicant was seen by other Immigration Department following the interview in relation to his prosecution and also the practical arrangements for his repatriation.”

468.That, I am satisfied, is an accurate historical summary.

469.While I accept that the endorsement, being somewhat cryptic, is open to interpretation, I had no reason to disbelief Mr Chiu.  I found him to be an impressive witness.  He explained in clear, persuasive terms why he followed certain practices.  I am satisfied that, if the applicant had made a claim for right of abode, he would not have recognised it by putting a short, ambiguous note at the bottom of his minute and then failing to follow it up.  I am satisfied that he would have taken more definitive steps.

470.In any event, it would be illogical for Mr Chiu to recommend possible prosecution and repatriation while at the same time noting an assertion that the applicant claimed the lawful right to reside in Hong Kong and undertaking that the claim would be investigated.

471.In the circumstances, I am satisfied that, having been arrested as an overstayer, the applicant knew that he would be repatriated and submitted to that process.  I do not accept that he tried to resist it by claiming right of abode.

472.But even if I am wrong in that regard, there is simply no record of any claim.  The minute M3, as I have said, is not and cannot be taken as a record.

473.For the reasons given, my determinations are as follows :

(i)	the applicant’s elder brother did make a claim for right of abode on behalf of the applicant and in his presence;
(ii)	however, there is no record of any claim in the possession of the Director.

Mr Leung Wai Keung (2144, a ‘group one’ applicant)

474.This was the second represented case, the last to be heard, and, in a number of ways, one of the most problematic.

475.In December 2005, the applicant was arrested in the Mainland for the offence of kidnapping.  He was convicted of that offence and, I am told, was sentenced to 11 years’ imprisonment.  He is presently serving that sentence.  In light of this – more especially as the applicant is incarcerated in North West China – it was not feasible for him to attend court in person.  Attempts were therefore made to have him testify by way of a video link.  Regrettably, this was not possible.

476.In the result, it was agreed that the hearing would proceed in his absence, the application being supported by the testimony of the applicant’s father, Mr Leung Ho Shum, and written statements made by the applicant; in particular, his affirmation made on 1 June 2004.

477.The applicant was born in Guangdong Province in 1974, one of three children in the family.  He was the middle child, having an older sister and a younger brother.

478.The applicant’s father settled in Hong Kong in 1979.  His mother, was permitted to join him (together with the applicant’s younger brother) in 1991.  When the change of sovereignty took place, the applicant’s father was therefore a permanent resident but his mother was not.  His mother was only to acquire that status in September 1998.

479.The testimony of the father was that in the months leading up to the change of sovereignty he became aware of the rumour of an amnesty.  He discussed the matter with his son, the applicant, and it was agreed that, if possible, his son should come to Hong Kong in order to benefit from the amnesty.  That amnesty, of course, allowed the children of Hong Kong permanent residents born in the Mainland to settle in Hong Kong.  It was the father’s testimony that he even made a trip to the Mainland to help his son secure a two-way permit.

480.In the result, the applicant was able to come to Hong Kong in April 1997 as a visitor, being permitted to remain until early June.  The applicant, however, overstayed.  On the evidence, I am satisfied that his primary reason for overstaying was in anticipation – if he was in Hong Kong when the change of sovereignty took place – of being able to benefit from the rumoured amnesty.

481.In his affirmation, the applicant said that, when the change of sovereignty took place, both he and his father were “shocked” to learn that abode seekers who went to the Immigration Department were being arrested and repatriated.  But this did not appear to be happening to everybody, he said.  Some people were being allowed to remain for the time being on recognisance.  The impression gained was that younger people – those under 18 – were the ones who were allowed to remain.  As the father put it in his testimony : “My impression was that, because he was an adult, he [the applicant] would definitely be arrested and removed”.

482.In his affirmation, the applicant said that in the weeks after the change of sovereignty he learnt that some abode seekers had instituted legal action to try and secure their right to settle in Hong Kong.  As the applicant expressed it : “I thought that if they won then I would also win.”

483.In his testimony, the father said that neither he nor his wife wanted to see their son leave them.  The father said that he was not well at the time, suffering from kidney stones, and he benefited from having his son’s care.  The father testified that he made a visit to the Immigration Tower to see if there was an answer to the problem.  To the best of his memory, he said, he went to the enquiries counter.  He was told that, if his son wished to settle in Hong Kong, he would have to return to the Mainland and make his application there.  It could not be done in Hong Kong.

484.After his visit, said the father, there was a family discussion at which it was agreed that his son should return to the Mainland to await events there.  The father recalled that, in any event, his son was leading a very restricted life in Hong Kong, being afraid to venture out for fear of arrest.

485.That being the case, when the decision was made that the applicant should return to the Mainland, neither he nor his father could have been under any illusions that a claim for right of abode made by the applicant in Hong Kong at that time would have stood any realistic chance of success.  Their only hope lay in the eventual success of the litigation that they knew had been instituted.

486.At this juncture, I should say that I found the father to be an honest witness.  As Ms Gladys Li SC, the applicant’s counsel, observed, he did not fall into the trap of invention or embellishment to try and improve the case for the applicant.  If the father could not remember, he was willing to say so. 

487.The evidence revealed that on 9 May 1998 the applicant attempted to leave Hong Kong via Lo Wu.  By then, of course, he had overstayed for close to a year.  He was stopped and interviewed.  The father, who said that he went with his son for fear that he might be arrested, was not present during the interview.

488.It was not part of the applicant’s case that any form of claim was made at Lo Wu.  It appeared to be accepted that the interview notes made by the interviewing officer accurately recorded the reason given by the applicant for overstaying; namely, that he had done so in order to care for his father who had been suffering from kidney stones.  In short, at Lo Wu the applicant did not protest that he should be entitled to right of abode or had overstayed in the hope that he may be able to claim that right.  His stated reason for overstaying was based instead on the compassionate ground of caring for his father.

489.It was the applicant’s case, however, that, having been referred to the Immigration Tower for administrative processing as an overstayer, he decided that he would then “at least … try to assert my right and the reason for overstaying.”

490.It was on 12 May 1998 that the applicant, in the company of his father, presented himself at the offices of GIS.

491.The father testified that he was the one who spoke to the officer at the counter.  He conceded that he could no longer remember what had been said but he did remember that three documents were given to the officer; first, his son’s Mainland identification, second, the document given to his son at Lo Wu and, third, his own Hong Kong identity card.  The father recalled that his identity card was held for some time, certainly longer than was necessary simply to examine it.  But why it had been held he did not know.

492.In his affirmation, the son said that all the documents delivered up at the reception counter had been photostated.  He was able to remember this, he said, because later that day, when his fingerprints were taken, he saw the copies in his file.  However, an examination of the file revealed no copy of the father’s identity card.  Nor was there any indirect evidence that a copy may at one time have been in the file.  For example, the file index gave no such indication.  In my judgment, the probabilities indicate that no copy was made.  This was an error of recollection on the part of the applicant and, in so far as it may be relevant, an error of recollection too on the part of the father.

493.In any event, while this aspect of the evidence may potentially have gone to issues of credibility, it was of no greater importance.  I say that because it was not part of the applicant’s case that a claim for right of abode was made at the reception counter.

494.What the evidence did reveal is that the officer at the reception counter gave an ID 457 form either to the applicant or to the father for completion and that it was the father who attended to the work of filling in the form.

495.Although the father readily accepted that he had no idea of the purpose of the ID 457 form, in the column reserved for details of the applicant’s parents he gave both the number of his Hong Kong identity card (showing him to be a permanent resident) and the number of his wife’s card.  In order to get his wife’s number, he said, he had to telephone her.

496.It was put to the father that he simply filled in the details of the two identity cards because the form asked him to do so.  The father, however, did not accept that it was such a mindless exercise.  He filled in the numbers, he said, to prove his status as a permanent resident and also to show his relationship with his son.  As he put it, in answer to one question : “I wanted to show that this son of mine had parents who were in Hong Kong.”

497.I am satisfied on the evidence that the father had hoped at all times to find a way, through his status as a permanent resident, of securing right of residence for his son.  Accordingly, whether he understood the overall purpose of the ID 457 or not, when he recorded the details of his identity card and that of his wife, he did so to demonstrate both their own residential status and, through that status, their son’s link to Hong Kong.

498.All too often in hearings before me, the identity card number of one or more parents were not recorded in ID 457 forms for the simple reason that the parent in question was not physically present.  On this occasion, while it would have been easy for the father to leave blank the box requiring his wife’s identity card number, he chose to make a telephone call to obtain that number from her.  In my view, it is more likely than not that he did so for the purpose he described in his testimony.

499.In my judgment, the recording of the father’s identity card number on the ID 457 was capable of constituting the record of a claim for right of abode – if there had been such a claim.

500.But, as I have said, it was not asserted that a claim for right of abode was made at the reception counter.  The applicant’s case was based instead on the making of an oral claim later in the administrative process, during the applicant’s interview.

501.When that interview took place, the applicant’s father waited outside the interview room.  As he was not present, he could not testify to what was said and done.  As to the making of a claim for right of abode, therefore, the applicant’s case was based entirely on the written records read in conjunction with assertions made by him in his various statements.

502.In his affirmation of 1 June 2004, made with the assistance of his solicitors, the applicant said the following as to what was said and done during the interview :

“	In the interview room I recall saying to the officer that I wanted to stay in Hong Kong, and that my father was sick.  I asked the officer whether I could stay.  The officer responded with: ‘It’s not my decision.’  I then said ‘If one parent is a Permanent Resident is it true that Mainland children can apply for right of abode.’  There was no reply.
	I was then told to complete the Grounds for Non-Removal form in the manner directed by the officer.’

503.The ‘grounds for non-removal’ form bears the standard recitation –

“	I have overstayed because of keeping company with my family.  I now want to return to China.”

504.The applicant has not at any time asserted that he was made to write what he did under duress.

505.The ‘grounds for non-removal’ form therefore does not – on its face – advance the applicant’s case.

506.The applicant’s first written statement in support of his claim appears to be contained in the record of interview kept by the Removal Special Project Sub-Division.  These papers date from May 2000.  At that time – just two years after the event in question – the applicant was only able to describe how he had claimed right of abode by saying the following :

“

Around May in 1998, I went to the General Investigation Section on 13/F, Immigration Tower, Wan Chai in person.  A female officer took a record of my relationship with my father and my identity documents.  My photograph was submitted and my information in Hong Kong was verified.  At that time, the Immigration Department issued me with a one-week recognizance pending trial by the court of Hong Kong.”

507.Nothing is said in that statement (which the applicant had time to prepare) of any specific claim for right of abode or even any enquiry being made as to whether such a claim could be made.  At best the statement records an assertion that a “record” of the applicant’s relationship with his father was taken.  What constituted that “record” was remains.  The applicant may have been referring to the ID 457 form or to his recollection that his father’s identity card was photostated and the photostat copy put in the file.  If it was the latter, I have earlier said that, in my opinion, no such copy was made.

508.The second record would appear to be the case summary prepared by the applicant’s first solicitors, Pam Baker & Co.  In my judgment, less weight can be given to this summary than to the earlier interview record.  The earlier interview after all consisted of the applicant’s own words.  The summary was made without any reference to him and was never intended to be exhaustive.  In respect of the attendance at GIS, the summary was to the following effect :

“

[The applicant] reported to the Immigration Department, Wanchai, on 12 May 1998, again accompanied by his father.  His father explained to the officer that the reason [the applicant] had overstayed was for family reunion.  As best he recalls, he asked: ‘Both parents are in Hong Kong.  Does he have the right to stay here?’  The officer simply replied that [the applicant] had overstayed and must return to the Mainland.”

509.The summary does not contain any assertion that a claim for right of abode was made during the applicant’s interview.  As I have read it, it says nothing of the interview itself but focuses instead on what was said earlier at the reception counter by his father and the counter officer.  But, as I have said, the case presented to me was not based on any exchange at the reception counter between the father and the counter officer.  The father himself, when he testified, had no memory of what had been said at that time.

510.In his affirmation of 1 June 2004, while the applicant spoke of the counter officer making photostat copies, he did not speak of his father making any claim on his behalf to that officer :

“

I produced to the officer at the reception room counter my Two-Way Permit and Mainland ID card and my father handed to the officer his ID card.  I believe that the officer went away and obtained copies of these documents.  He then came back and handed the originals back to us.  I believe that, because later, when my fingerprints were taken, I saw copies of these documents on the file.”

511.When the father made his supporting affirmation on the same date; that is, on 1 June 2004, he did not make any independent assertion as to what had happened at the reception counter.  His statement said simply :

“	The affirmation of my son to be signed contemporaneously herewith has been translated to me.  I confirm that to the best of my knowledge, information and belief the facts and matter described in that affirmation are true.”

512.During the course of the hearing, evidence emerged that from about 2001 the applicant had begun to take heroin.  Indeed, in December 2004 he was arrested in Hong Kong for possession of the drug and subsequently convicted.  The father admitted quite candidly that he knew his son had been an addict since about 2001.

513.On this basis, it appears that, when the applicant gave his instructions to Pam Baker & Co and, two or three years later, gave further instructions to his solicitors, Barnes & Daly, he may, to a greater or lesser extent, have been under the influence of his addiction.  May that account for the different versions?  Perhaps it may.  But, if so, the confusion was fairly deep, the one version suggesting a claim by the father, or at least an enquiry by him, the second suggesting a claim, or perhaps also an enquiry, by the applicant himself at a later stage of the proceedings when he was no longer in the company of his father.

514.Equally, of course, it may be said that to assume the confusion must have emerged primarily out of the applicant’s heroin addiction would be speculation and that to give the most beneficial interpretation possible to the conflicting statements based on such speculation would be wrong.

515.As to the applicant’s failure to testify, it was submitted on behalf of the Director that I should not give an undue benefit to the applicant by reason of the fact that he did not testify and could not thereby have his credibility tested, a test to which the great majority of other applicants submitted themselves.  On behalf of the applicant himself, it was argued that his failure to testify was not voluntary and that, in the circumstances, he should not be penalised.  In my judgment, it would have been wrong either to penalise the applicant for his failure to testify or to assume he must be entirely credible because he had avoided cross-examination.  In attempting to reach a just determination I have had to take all the available evidence into account.

516.If I am to conclude that the applicant may have claimed right of abode during his interview, I can only do so on the basis of the facts asserted in his affirmation of 1 June 2004, an affirmation made some six years after the event.  The question therefore is what reliability can I place on those assertions, assertions that – as an objective fact – remain untested by way of cross-examination?

517.As I have indicated, reliability, in this context, can only be judged by having regard to all relevant circumstances and I believe the most compelling of these circumstances must be the presence or absence of corroborative evidence.

518.For the applicant, Ms Li argued that corroboration was to be found in the case summary prepared by Pam Baker & Co. in or about 2002.  The discrepancy between the case summary and the affirmation, it was said, should in all the circumstances be considered immaterial.  I am unable to agree.  As I have said, the summary speaks of the father making a claim, or enquiry, on behalf of the applicant at the reception counter when father and son were together.  The affirmation, however, speaks of the applicant making a claim, or enquiry, himself, not in the same conversation at the reception counter, but at a later stage when the father was not even present.  Different events are being described.  In such circumstances, I do not see how I can classify the differences as being immaterial.

519.I do accept, of course, that, with the passage of time, memories become blurred.  A conversation can be remembered but, in a continuing scenario, not exactly who said what and when.  The case summary may therefore be said to be some corroboration.  But is it sufficient?  Again, this can only be determined by looking at all relevant circumstances.

520.In doing so, I must take into account one issue which received considerable attention; namely, an endorsement made on the applicant’s ID 457 form.  It was accepted that the notation was made by an immigration officer when the applicant’s file was checked.  This checking, I understand, probably took place on 13 May 1998, the next day.  The notation was as follows :

“	1st Reg 12/79.  No P of R.”

521.Mr Ho Kin Chung, who at the time was an Immigration Officer at GIS, was the officer who considered the applicant’s file.  The notation, he said, was not made by him but would have been made by another officer under his instruction.  The notation meant : “First registration December 1979.  No proof of relationship.”

522.Mr Ho said that, if an overstayer gave the identity card details of one or more of his parents in the form ID 457, it was his practice to make a record check of the number, or numbers, confirming the date of first registration.  At the time, he said, one of the factors which determined whether an overstayer should be prosecuted was whether, if one of his parents was a permanent resident, he had been born before or after the parent achieved that status.  The check, therefore, may have been of some help to the prosecutions section.

523.It was pointed out to Mr Ho that (seemingly) a record check had only been made in respect of the father, who was, in fact, a permanent resident but not in respect of the mother who had not yet acquired that status.  Mr Ho had no independent recollection of the file and could not say why there had been an omission.  It may have been oversight.  It may have been that the check on the mother was made but nothing put down when it was learnt that she had not yet become a permanent resident.

524.Mr Ho denied that the check would have been made as some sort of ‘follow-up’ check in the event that a claim for right of abode had been made.  If such a claim had been made, he said, the interviewing officer would have collected all relevant documentation and specifically referred the matter to him for consideration of that claim.

525.Whether Mr Ho’s practice was useful or not I cannot say.  But I have no reason to doubt its purpose.  If it had been made in respect of a claim for right of abode, it is surprising that there was nothing more specific spelt out in the file, in particular no form of minute from the interviewing officer referring to the fact that a claim had been made.

526.In the circumstances, I do not see how the notation can be said to support the assertion that the applicant made an oral claim for right of abode during his interview.

527.IF a claim for right of abode had been made by the applicant during his interview why did he fail to mention it in his statement made in May 2000 to the Removal Special Project Sub-Division?  That was just two years after the event.  The applicant’s memory would still have been relatively fresh.  The applicant may not have been a man of sophistication but he must have appreciated the importance of the statement.  Pam Baker & Co. circulated detailed instructions.  This was the applicant’s first real, opportunity to describe in simple terms how he came to claim right of abode.  But he said nothing about a conversation in the interview process, nothing at all. 

528.In the final analysis, therefore, while I accept that there may be some corroboration for the applicant’s affirmation, it is in my view entirely too tenuous to be of any weight.

529.I am not prepared to accept the affirmation on its own.  There are too many inconsistencies in the case generally, despite the fact that I found the father to be a credible witness, to justify me doing so.

530.What also causes difficulties, of course, is the fact that the asserted claim was couched in the form of a question; that is, an enquiry, rather than a statement of right under law.  I accept, of course, that a claim can be made in the form of a question.  But each case must be determined according to its own facts and in the present case, taking into account the history of events, if anything was said, which I doubt, the evidence points to it being exactly what it is described as being : an enquiry only.

531.By way of a postscript, it is to be emphasised that, in coming to my findings, I have not in any way been guided by a moral compass.  Put bluntly, the criminal history of this applicant was irrelevant to me.  I have had no mandate to assess suitability.  My mandate has been limited to answering hard-edged questions of fact.

532.My determinations are therefore as follows :

(i)	neither the applicant nor his father made a claim for right of abode.
(ii)	there is no record of any claim in the possession of the Director.

Conclusion

533.My determinations may therefore be stated again (in summary) as follows :

1.	Madam Kwok Ching Man (4625) :
	“	(i)	the applicant did make a claim of right of abode;
		(ii)	the Director has no record of any claim.”
2.	Madam Lam Nga Li (1771) :
	“	(i)	the applicant did not make an claim for right of abode;
		(ii)	the Director has no record of any claim.”
3.	Mr Yeung Kam Shui (4138) :
	“	(i)	neither the applicant, nor his father on his behalf, made a claim for right of abode;
		(ii)	there is no record of any claim in the possession of the Director.”
4.	Mr Chong Man Kai (5286) :
	“	(i)	the father did make a claim for right of abode on behalf of the applicant;
		(ii)	there is no record of any claim in the possession of the Director.”
5.	Mr Yau Shui Yuan (5075) :
	“	(i)	the applicant did not make a claim for right of abode.
		(ii)	there is no record of any claim in the possession of the Director.”
6.	Mr Sit Kwong Kuen (2979) :
	“	(i)	the applicant did not make a claim for right of abode;
		(ii)	the Director has no record of any claim.”
7.	Madam Li Yeuk Wai (2300) :
	“	(i)	neither the applicant nor her mother made a claim for right of abode;
		(ii)	the Director has no record of any claim.”
8.	Mr Chong Kam Ku (904) :
	“	(i)	the applicant did not make a claim for right of abode;
		(ii)	there is no record of any claim in the possession of the Director.”
9.	Madam Lam Kam Pui (5440) :
	“	(i)	the applicant did make a claim for right of abode;
		(ii)	the Director has no record of any claim.”
10.	Madam Lau Wun Hoi (4682) :
	“	(i)	the applicant did not make a claim for right of abode;
		(ii)	the Director has no record of any claim.”
11.	Mr Wong Cheung Wan (3583) :
	“	(i)	the applicant did not make a claim for right of abode;
		(ii)	there is no record of any claim in the possession of the Director.”
12.	Madam Hui Ching Na (4581) :
	“	(i)	the applicant did not make a claim of right of abode;
		(ii)	the Director has no record of any claim.”
13.	Mr Yeung Ka Wong (5088) :
	“	(i)	the applicant’s elder brother did make a claim for right of abode on behalf of the applicant and in his presence;
		(ii)	however, there is no record of any claim in the possession of the Director.”
14.	Mr Leung Wai Keung (2144) :
	“	(i)	neither the applicant nor his father made a claim for right of abode.
		(ii)	there is no record of any claim in the possession of the Director.”

10-11 September 2007

Applicant (legal aid discharged), Lam Nga Li, in person, present

Mr Joseph Fok, SC and Mr Daniel Wan, instructed by Department of Justice, for the Respondent

12-13 September 2007

Applicant (legal aid discharged), Sit Kwong Kuen, in person, present

Mr Joseph Fok, SC and Mr Daniel Wan, instructed by Department of Justice, for the Respondent

14, 17-18 September 2007

Applicant (legal aid discharged), Yeung Kam Shui, in person, present

Mr Joseph Fok, SC and Mr Daniel Wan, instructed by Department of Justice, for the Respondent

18-20 September 2007

Applicant (legal aid discharged), Yau Shui Yuan, in person, present

Mr Joseph Fok, SC and Mr Daniel Wan, instructed by Department of Justice, for the Respondent

20 and 24 September 2007

Applicant (legal aid discharged), Lam Kam Pui, in person, present

Mr Joseph Fok, SC and Mr Daniel Wan, instructed by Department of Justice, for the Respondent

21 September 2007

Applicant (legal aid discharged), Lam Kam Pui, in person, present

Ms Gladys Li, SC, Mr Kwok Sui Hay and Mr Sean Fang, instructed by Messrs Barnes & Daly, for the Applicant (legal aided) (present in the afternoon)

Mr Joseph Fok, SC and Mr Daniel Wan, instructed by Department of Justice, for the Respondent

27-28 September 2007

Applicant (legal aid discharged), Lau Wun Hoi, in person, present

Mr Joseph Fok, SC and Mr Daniel Wan, instructed by Department of Justice, for the Respondent

2 October 2007

Applicant (legal aid discharged), Li Yeuk Wai, in person, present

Mr Joseph Fok, SC and Mr Daniel Wan, instructed by Department of Justice, for the Respondent

5 and 8 October 2007

Applicant (legal aid discharged), Kwok Ching Man, in person, present

Mr Joseph Fok, SC and Mr Daniel Wan, instructed by Department of Justice, for the Respondent

9 October 2007

Applicant (legal aid discharged), Hui Ching Na, in person, absent

Mr Joseph Fok, SC and Mr Daniel Wan, instructed by Department of Justice, for the Respondent

11 and 12 October 2007

Applicant (legal aid discharged), Chong Man Kai, in person, present

Mr Joseph Fok, SC and Mr Daniel Wan, instructed by Department of Justice, for the Respondent

15-17 and 26 October 2007

Mr Kwok Sui Hay and Mr Sean Fang, instructed by Messrs Barnes & Daly, assigned by Director of Legal Aid, for the Applicant 5088, Yeung Ka Wong

Mr Joseph Fok, SC and Mr Daniel Wan, instructed by Department of Justice, for the Respondent

29 October 2007

Applicant (legal aid discharged), Wong Cheung Wan, in person, present

Mr Joseph Fok, SC and Mr Daniel Wan, instructed by Department of Justice, for the Respondent

31 October 2007

Applicant (legal aid discharged), Chong Kam Ku, in person, absent

Mr Joseph Fok, SC and Mr Daniel Wan, instructed by Department of Justice, for the Respondent

19-20 December 2007

Ms Gladys Li, SC and Mr Sean Fang, instructed by Messrs Barnes & Daly, for the Applicant 2144, Leung Wai Keung

Mr Joseph Fok, SC and Mr Daniel Wan, instructed by Department of Justice, for the Respondent