Read the full judgment text of HCAL 81/1999 on BabelCite. This High Court CFI judgment was delivered on 4 January 2008 before Hartmann J.
Constitutional and administrative law – right of abode – immigration – Court of First Instance – Sixth Report to the Court of Final Appeal – Ng Siu Tung Concession – whether absence of a record of a right of abode claim can be excused by alleged negligence or poor practice of immigration officers – applicants born in Mainland China to Hong Kong permanent resident parents – two-way permit overstayers in 1997 awaiting a rumoured amnesty – subsequent arrest, interview, and repatriation – oral claims alleged to have been made at enquiry counters, at the GIS reception counter on the 13th floor of the Immigration Tower, during 'grounds for non-removal' interviews, or in the presence of police – applications considered: Kwok Ching Man (4625), Lam Nga Li (1771), Yeung Kam Shui (4138), Chong Man Kai (5286), Yau Shui Yuan (5075), Sit Kwong Kuen (2979), Li Yeuk Wai (2300), Chong Kam Ku (904), Lam Kam Pui (5440), Lau Wun Hoi (4682), Wong Cheung Wan (3583), Hui Ching Na (4581), Yeung Ka Wong (5088), and Leung Wai Keung (2144) – legal aid discharged in most cases; only Lam Kam Pui (briefly), Yeung Ka Wong and Leung Wai Keung were represented by counsel – court followed Ng Siu Tung and Others v Director of Immigration (No.2) (2002) 5 HKCFAR 499 – held that applicants fall outside the Concession where no record of claim exists in the possession of the Immigration Department – inadvertence or poor practice does not amount to estoppel – a claim must be a stated assertion of a legal right to remain in Hong Kong, not a mere enquiry or explanation for overstaying – for each of the 14 applicants, the court determined separately whether a claim was made and whether a record existed – for most applicants, the claim was not made or was not credible, and in all cases no record existed – only one applicant (Lam Kam Pui) was found to have a record of claim, but she was unable to show she had made a claim at the material time – the Department of Justice represented the Respondent throughout, with Mr Joseph Fok SC and Mr Daniel Wan as counsel – Applicants' counsel for the represented matters were Ms Gladys Li SC, Mr Kwok Sui Hay and Mr Sean Fang, instructed by Messrs Barnes & Daly – all applications have now been determined and there are no outstanding applications.
Legal issues: Whether absence of a record of a right of abode claim can be excused by alleged negligence or poor practice of immigration officers
Outcome: All 14 applications were determined; none resulted in a finding sufficient to grant right of abode because in every case there was no record of any right of abode claim in the possession of the Director of Immigration. The court found in some cases that a claim may have been made orally, but in the absence of any record the application could not succeed under the Ng Siu Tung Concession.
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