Ng Siu Tung and Others v. The Director of Immigration

FACV No. 1 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2001 (CIVIL)

(ON APPEAL FROM CACV NO. 415 OF 2000)

____________________

____________________

____________________

J U D G M E N T

____________________

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

1.On 4 January 2008, Hartmann J submitted the 6^th and final report (“the 6^th Report”) pursuant to the remitter directed by this Court in its judgment handed down on 30 July 2002 and reported in (2002) 5 HKCFAR 499 (“the July 2002 Judgment”). The reason for the remitter was to determine certain factual issues relating to those applicants whose appeals cannot be disposed of by agreement pursuant to the directions given in the July 2002 Judgment.

2.In the 6^th Report, the judge dealt with the last 14 applicants involved in the appeal. They all claim to have made a claim for the right of abode in Hong Kong based on the Government’s Concession Policy which was announced on 26 June 1999 (‘the Concession Policy”). The factual issues in relation to each of these applicants are:

(1) whether he or she had made a claim for right of abode during the period covered by the Concession Policy; and

(2) if so, whether the Director of Immigration (“the Director”) has a record of that claim required by the Concession Policy. 

3.Having heard and considered evidence and submissions over 27 days, the judge found that only three of the applicants (Applicants 4625, 5088 and 5286) had made a claim for right of abode, but that there was no record of any claim in respect of any of the 14 applicants. In view of these findings, the Director is now seeking to have all their appeals dismissed. This is opposed by the applicants.

4.Before this Court, only two of these 14 applicants are legally represented. Of the other 12 applicants, 7 of them have filed their own written submissions pursuant to the Court’s directions but the remaining five have not done so. All the unrepresented applicants were notified of the date of hearing. Four of them (Applicants 4625, 904, 3583 and 4581) including one who has filed a written submission (Applicant 4625) have failed to turn up.

5.Each of the applicants challenges either one or both of the findings made by the judge in relation to him or her respectively. The judge made those findings after he had seen and heard all the witnesses. He was thus in the best position to assess their credibility. As we stated in our previous judgments dealing with the earlier reports, we will not interfere with a finding of the judge unless we are satisfied that he was plainly wrong in that there was no evidence or basis to support such finding or he had overlooked any evidence in favour of the applicant concerned or that he had misdirected himself as to the effect of the evidence. 

Applicant 5088 – Mr Yeung Ka Wong (楊加煌)

6.Mr Yeung alleged that on 17 and 18 July 1997 and 13 August 1997, he went with his elder brother to the Immigration Tower to assert his right of abode in Hong Kong. They said they brought along with them a document which they described as a “power of attorney” purporting to have been given by their father who was a Hong Kong permanent resident appointing the elder brother to act as his agent in claiming the right of abode on behalf of Mr Yeung and another son who was then in the Mainland.

7.Mr Yeung’s case was that on each of the occasions when he and his elder brother were at the immigration reception counter, they made a claim for right of abode and handed this power of attorney to the officer at the counter who was asked to retain it but the officer returned it to them. And so they took it back and left. It is not disputed that the power of attorney was capable of constituting a record for the purpose of the Concession Policy if it ever formed part of the records of the Department. Having considered the evidence, the judge was prepared to accept that claims might have been made on one or more of these occasions but found that there is no record of such claim in the possession of the Director.  

8.This finding is challenged by Mr Kwok Sui Hay, counsel for Mr Yeung. The basis of his contention is that the evidence showed that on each occasion, the officer at the counter had taken the document, put it in front of him and examined it but returned the document to Mr Yeung and his elder brother, having told them that their application would not be processed. It is submitted that the power of attorney had already come into the possession of the officer on behalf of the Director albeit for only a short period of time, that the fact that it was returned to Mr Yeung instead of being kept in the files of the Department should not be held against him; and that if the document had not been returned, it would have constituted a record of his claim. The situation, it is contended, is similar to that of Applicant 4387 (Mr Chow Wing Wai) in which the judge accepted that the record requirement for the purpose of the Concession Policy was met even though the relevant application letter which would have amounted to a record of a claim and which was left by that applicant with an officer, was probably discarded by the officer immediately afterwards. It is argued that there is no distinction between an officer immediately discarding the document (as in Applicant 4387’s case) and returning it to the applicant (as in the present case). Mr Kwok also relies on the analogy of a letter having been sent to the Director but was no longer in his files; in which case the record requirement was considered as having been satisfied.  

9.We do not think counsel’s submission can be sustained. The main purpose of the record requirement is to ensure that there is a clear, objective or uncontroversial basis for the Director to determine whether a claim had been made. (See paras. 210 and 211 of our judgment handed down on 10 January 2002.) To comply with this requirement, there must be something which is capable of being kept and intended to be kept as a record so that reference can be made to it subsequently for various purposes, such as verification. A record may take the form of either a document (such as an application letter) provided by an applicant or some data (such as an annotation) entered by the officers in the files of the Immigration Department. In the case of a document, it can only form part of the Director’s record for the purpose of the Concession Policy after he has received it with the intention that it be kept. This is because it is usually only upon receipt of a document that one would reasonably expect it to be kept in the Department’s files and to form part of its record. Whatever the Director does with it afterwards would depend on the nature and relevance of the document and the nature of the case under investigation. But if for whatever reason the document was discarded, lost or mislaid after its receipt, it still formed part of the Department’s record before that event and no fault could be laid at the door of the applicant. As this Court said in paragraph 20 of its judgment handed down on 5 January 2006 (“the January 2006 Judgment”), “it cannot be supposed that the existence of what was, at one time, a sufficient record to authenticate the right [of abode] could be lost or destroyed simply because the relevant document went astray after its receipt by the Department.” (Emphasis added.) But the important thing is that the document must first have been received by the Department in circumstances in which, in the normal course of events, it would form part of the record of the Department.

10.Whether a document has been received or not by the Department in such circumstances is a question of fact. No problem arises where a document is actually received. Where a document is sent by post, one would expect that in the normal course of events, the Director would have received it, and he is deemed or presumed to have received it, unless he can show that it was never received by him. See paragraphs 16 to 21 in the January 2006 Judgment. The fact that it is open to the Director to prove he had not actually received a document underscores the importance of receipt for the purpose of meeting the record requirement.

11.As we previously pointed out, it is frequently futile and unproductive to compare one applicant’s case with another. Each applicant’s case must depend on all its facts and circumstances. We do not think it is helpful to compare Mr Yeung’s case with the case of Applicant 4387 (although the facts were clearly different). Nor is it necessary to decide whether the judge was wrong in that case. Suffice it to point out that in Mr Yeung’s case, the judge found that the information office did not keep records as it was not part of its function to do so; and he also took the view that the power of attorney was never retained by the officers at the counter; nor was a copy made for record purposes. In paragraph 441 of the 6^th Report, he added:

“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 requirement of the concession policy.”

In paragraph 444, he further said:

“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.”

12.We are of the view that the judge was entitled to come to these conclusions. This is not a case in which the immigration staff had received a relevant document which was intended to be kept in the files but somehow discarded it or lost or mislaid it afterwards. There was never any intention on the part of the officer at the counter to receive the document and keep it. It was simply examined to ascertain the nature of the document and was immediately returned to Mr Yeung and his elder brother. The Director cannot in any real sense be regarded as having received it. Its momentary “possession” in the hands of the officers at the counter or in front of them on the table is not, in the circumstances of this case, sufficient to amount to its receipt for the purpose of keeping it as a record for the purpose of the Concession Policy. For the reasons just discussed, this case is clearly not analogous to the situation where a letter of claim is sent by mail to the Director but somehow goes astray. The applicant’s case must fail.

Applicant 2144 – Mr Leung Wai Keung (梁偉强)

13.On the date of hearing before the judge, Mr Leung was still serving a sentence in a Mainland prison as a result of his conviction of a criminal offence. Obviously he was unable to attend and give evidence in court. An attempt was made to arrange for him to testify by means of video link but this was not successful. So by agreement, his case was allowed to proceed in his absence.

14.Mr Leung overstayed after he had come to Hong Kong in April 1997 on a two-way permit. On 9 May 1998, when he attempted to return to the Mainland through the Lo Wu Checkpoint, he was prevented from doing so and told to report to the Immigration Department. On 12 May 1998, he went with his father to the General Investigation Section (“GIS”) of the Immigration Department in Wanchai. At the counter, they were given an ID457 form which was completed by the father who also put down the number of his own Hong Kong identity card as well as that of his wife. The judge was satisfied that this form was capable of constituting a record for the purpose of the Concession Policy if there had been a claim for right of abode at the counter. However, the judge noted that it was not alleged that he or his father had made a claim at the counter.

15.Mr Leung’s case was that he made a claim when he was later interviewed at the GIS office. As to this allegation, the evidence of the father who was not present during the interview could not assist him. The judge thus could only rely on Mr Leung’s written statement given to the Immigration Department in May 2000 and his affirmation filed on 1 June 2004 together with other materials before the court. As the judge said (at para. 517): “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”.  In the end, the judge found that neither Mr Leung nor his father had made a claim and that there was no record of any claim.

16.Ms Gladys Li SC on behalf of Mr Leung contends that the judge had failed to properly consider the evidence which is capable of corroborating Mr Leung’s case that he had made a claim during his subsequent interview at the GIS. Her argument runs as follows. On the ID 457 form, next to the father’s ID details, there was a notation “1^st Reg 12/79. No P of R” which means “first registration December 1979, no proof of relationship”. According to the immigration officer who gave evidence, it was the policy of the Department not to prosecute an overstayer if he was born before his parent was registered as a resident for the purpose of obtaining an identity card. Hence, in order to decide whether to prosecute an overstayer, the Department would conduct a check on the first registration date stated on the identity card of the overstayer’s parent. In the case of Mr Leung, it would be necessary to check both the father’s as well as the mother’s identity cards. But the Immigration Officer in charge of this case, Mr Alan Ho, admitted that only the father’s identity card had been checked and the mother’s was not. Under cross-examination, Mr Ho said that it was possible that at that time, the immigration officers already knew Mr Yeung had claimed his father was a permanent resident in Hong Kong (although he disagreed that this was the case). It is therefore argued that the absence of any check on the mother’s ID details tends to support the contention that during his interview, Mr Leung had mentioned that his father was a permanent resident in Hong Kong; otherwise, there would be no reason not to check the mother’s details as well. The judge should have taken that into consideration and should not have accepted Mr Ho’s evidence that it was a merely routine check.

17.In considering whether a claim had been made, the primary source of evidence must be the evidence of the applicant and the witnesses, including their statements and affirmations. Materials such the ID 457 form, GNR form, personal particulars form and other data, such as the minutes and notations on these documents or the records kept by the Director, would be secondary and corroborative evidence. As we said in our judgment handed down on 26 March 2004 when discussing the relevance and significance of the particulars of a parent’s identity card in the ID 457 form:

“It is also a piece of evidence which the judge has to consider when deciding the first question (i.e. whether the applicant had made a claim for right of abode) and has to be looked at in the light of the other evidence. The presence of such particulars in the ID 457 form without more is clearly not sufficient to enable the judge to conclude that a claim for right of abode had been made. But it may assist the court in coming to such a conclusion.”     

18.It must be emphasized that the use of the materials mentioned above in relation to the first question is limited to being supportive or corroborative evidence only (except in the rare case where it contains a clear statement or acceptance that a claim had indeed been made). In the absence of evidence from the primary source, such materials can seldom in themselves form the basis of a finding that a claim for right of abode had been made.  

19.In this case, in order to succeed, Mr Leung has two hurdles to overcome. First, he has to show that the absence of any check on the mother’s ID particulars was more likely than not due the fact that Mr Leung had said to the officer during the interview that his father was a permanent resident. However, it was no more than a possible explanation for the absence of any check on the mother’s ID particulars. There were other possible reasons for this omission which the judge accepted. As the judge said at paragraphs 523 to 525:

“523  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.”

20.In our view, having heard Mr Ho in evidence, the judge was perfectly entitled to accept his account. We also take the view that Ms Li’s submission makes too much out of the absence of an ID check on the mother. To suggest that this failure can go as far as to support the positive assertion that Mr Leung had made a claim during the interview is taking a quantum leap which is not justified in the circumstances of this case.

21.The second hurdle is the state of Mr Leung’s evidence. The only part of his affirmation which was relevant to the question whether a claim had been made was contained in paragraph 15 in which he said:

“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.”

22.In our view, even if one were to look at this evidence in the most favourable light, he was there far from saying what Ms Li submits should be attributed to him, that is, that his father was a permanent resident and he was implicitly claiming to have the right of abode in Hong Kong on that basis. It is important to bear in mind that the judge had also considered other evidence such as the GNR form, Mr Leung’s written statement made in May 2000 to the Immigration Department in connection with this case, and the Case Summary prepared by his former solicitors which made no reference to a claim having been made during his interview. Based on all the evidence, the judge identified, correctly in our view, a number of discrepancies. Faced with such quality of evidence, it is hardly surprising that the judge did not accept that Mr Leung had made a claim for right of abode. The notation or lack of it on the ID 457 form can do very little to help such a weak case.

23.We do not think Ms Li’s criticism of the judge is valid. Far from failing to properly consider the absence of a check on the mother’s ID particulars, the judge had indeed given it careful consideration in the light of other possible explanations to see whether it could support Mr Leung’s case. In the end, he came to the conclusion in paragraph 528 of the report that the materials relied upon by the applicant were “too tenuous to be of any weight.” We agree. There is no merit in Mr Leung’s appeal which must be dismissed.

Applicant 1771 – Madam Lam Nga Li (林雅莉)

24.Madam Lam testified that she had made a claim for right of abode on three occasions: two by herself and one by her mother. The first happened on 15 March 1998 after she was prevented from returning to the Mainland at the Lo Wu Checkpoint. She said she made a claim during an interview but the officer refused to take a record of it. The judge considered this as “an invention” since this allegation was not even mentioned in her affirmation or any of her earlier documents. The second claim was alleged to have been made on 17 March 1998 at the GIS where she told the officer that all her relatives had settled in Hong Kong and her parents needed her to look after them. The judge did not find her to be a credible witness but in any event doubted whether the words used amounted to a claim, holding that they appeared to be more like an explanation why she overstayed. As to the alleged claim made by the mother at the GIS on 23 March 1998, the judge had the gravest doubt whether such an assertion had been made and went on to hold that both Madam Lam and her mother had attempted to build their case largely on the basis of invention.

25.In her written and oral submissions to this Court, Madam Lam contends that the judge’s conclusion was unfair to her. However, she cannot identify any particular error on the part of the judge. There is no substance in her appeal which must be dismissed.

Applicant 2300 – Madam Li Yeuk Wai (李若惠)

26.Madam Li relied on the occasion when she went with her parents to the GIS on 2 January 1998. She alleged that her mother had asked the officer: Can my daughter (Madam Li) get an identity card? Can she get the right of abode in Hong Kong? Can she stay here? The judge held that while Madam Li and her mother were essentially credible witnesses, the words used were in the form of an enquiry only and it was not even clear whether it was made at the enquiry counter on the 2^nd floor or at the reception counter of the GIS on the 13^th floor.

27.In her written and oral submissions, Madam Li complains that the officer had failed to put down her claim on the record but that did not mean she had not made any claim. She also seeks the right of abode on compassionate grounds.  Notwithstanding her submissions, there is nothing to show that the judge was plainly wrong in coming to his conclusion in relation to her. This appeal must also fail.

Applicant 2979 – Mr Sit Kwong Kuen (薛光權)

28.Mr Sit’s case is that he had made a claim for right of abode on two occasions. On 11 December 1997, after he was arrested by the police for overstaying, he made a claim during an interview at the Tai Hing Police Station. The judge noted that this was “quite patently an invention” since what he said was not borne out by his cautioned statement in which he made no mention of his father or his mother being Hong Kong permanent residents. The second occasion, Mr Sit said, happened at an interview conducted on 13 December 1997 at the Victoria Immigration Centre: during such interview, he mentioned that both his parents were permanent residents, but the officer ignored him. This allegation was however not supported by either the GNR form or the personal particulars form in which he gave no details about his mother or deceased father. The judge was of the opinion that he was not a credible witness and was “prepared quite significantly to shift his evidence if he thought that it might advance his case”.

29.In his written and oral submissions, Mr Sit repeats that he had made a claim for right of abode on both occasions. However, he cannot point to anything showing that the judge’s assessment of his evidence was in any way unfair or incorrect. His appeal must be dismissed.

Applicant 4625 – Madam Kwok Ching Man (郭靜雯)

30.The judge was impressed that both Madam Kwok and her sister were credible witnesses. He was satisfied that on 2 December 1997, Madam Kwok went with her mother and sister to the Immigration Tower and made a claim for right of abode based on her parents’ residential status in Hong Kong. However, the judge found that there was no record of such a claim in either the ID 457 form or GNR form which contained nothing to indicate their parents were permanent residents. Madam Kwok said that this was because the officer did not explain to her that she could write what she wanted in these and other forms. The judge held, correctly in our view, that in the absence of any evidence of oppressive conduct on the part of the officers, this was not sufficient to account for the lack of any record of the claim for the purpose of the Concession Policy.

31.Madam Kwok did not turn up at the hearing before this Court. In her written submission, there is nothing to demonstrate how the judge went wrong in his conclusion that there was no record of a claim. Regrettably, she cannot benefit under the Concession Policy.

Applicant 4682 – Madam Lau Wun Hoi (劉桓開)

32.Madam Lau’s case was that on 22 October 1997, she went with her sister to surrender to the Immigration Department. According to the sister, she told the officer that their parents were permanent residents and asked whether Madam Lau could remain. This was however contradicted by Madam Lau and also not supported by the ID 457 form which the sister herself completed. The judge did not find the sister to be a credible witness. On the other hand, Madam Lau said that when she was interviewed she told the officer her parents were permanent residents and asked to remain in Hong Kong. However, a different version was put to the officer during his cross examination: that she told the officer that she had overstayed because her mother was ill. The judge believed that in truth, she could not recall what she had said during the interview. The judge also found there was no record of any claim.

33.In her written and oral submissions, Madam Lau simply asserts that she had made a claim but was overturned by the officer. There is no basis to show that the judge’s finding was wrong in any way. Her appeal must be dismissed.

Applicant 5075 – Mr Yau Shui Yuan(邱水源)

34.Mr Yau alleged that on 14 August 1997, he surrendered to the Immigration Department in the company of his father and cousin for the purpose of making a claim for right of abode. He said that he made the claim during an interview with an officer and even argued with the officer that he was entitled to an identity card. This allegation was not accepted by the judge since this evidence was not supported by the ID 457 form which was completed by the cousin in the presence of the father and yet did not contain the latter’s Hong Kong identity card number. Nor was the claim borne out by the GNR form which was also completed by the cousin without Mr Yau’s protest. In any event, it was conceded that there was no record of his claim; but Mr Yau complained that this was due to the officer’s failure in not copying this down. The judge rightly held that this was not sufficient for the purpose of the Concession Policy.

35.In his written and oral submissions, Mr Yau urges this Court to rule in his favour on compassionate grounds, stating that he has stayed in Hong Kong for almost 10 years and his father is not in good health. There is no reason to interfere with the judge’s findings. Mr Yau’s appeal cannot succeed.

Applicant 5440 – Madam Lam Kam Pui (林金配)

36.The judge stated in paragraph 327(i) of his original report that Madam Lam “did make a claim”. This appears to be inconsistent with what the judge had said immediately before that. Madam Lam in her written submission argues that it was not a mistake. However, in a Corrigendum dated 3 March 2008, the judge confirmed that this was indeed a typing error and that he meant to say Madam Lam did not make any claim. 

37.Madam Lam’s case was that on 11 December 1997 she went with her mother and sister to the GIS to surrender for the sole and specific purpose of making a claim. This was rejected by the judge since she did not even bring with her any proof of her father’s status as a Hong Kong permanent resident. The sister had also failed to put down her parents’ status in the ID 457 form although she said she believed it constituted a form of claim. Madam Lam testified that during a subsequent interview on that day, she told the officer that her father was a permanent resident and that she had the right of abode; she also said that initially she refused to copy the sample answer in the GNR form as requested by the officer but did so because she was threatened that if she did not, she would have to go to jail. The judge noted that this allegation of threat was not supported by her Case Summary prepared by her former solicitors or her own affirmation. He was satisfied that Madam Lam’s evidence “was exaggerated and in part probably entirely fabricated”.  There was also no record of any claim.

38.In her written submission, Madam Lam complains that it was due to dereliction of duty on the part of the officer in failing to record her father’s identity card number and that it was unfair for the judge to believe only the officer. This is repeated in her oral submission, Madam Lam suggesting that the officer’s evidence was self-contradictory. There is no basis for disturbing the judge’s findings. Her appeal is dismissed.

Applicant 904 – Mr Chong Kam Ku (庄金鼓)

39.Mr Chong did not attend before the judge but informed the court that he had an accident in the Mainland. Despite an adjournment and attempts to contact him, he had failed to turn up at the resumed hearing. His case was conducted in his absence.

40.It was his case that he surrendered to the Immigration Tower on 2 February 1998 together with his sister-in-law who acted as his interpreter for the dual purpose of returning to the Mainland to take care of his sick father who was a Hong Kong permanent resident but had gone back to the Mainland and to make a claim for right of abode. He said in his affirmation that he had made a claim during an interview. However, the judge noted that there was a material difference between his earlier accounts as stated or recorded in the Department’s file and his affirmation. Mr Chong’s version was not accepted. The judge also found there was no record of any claim made by him.

41.Mr Chong did not file any written submission and did not attend the hearing before this Court.  We see no basis to disturb the judge’s findings in relation to Mr Chong and we dismiss his appeal.

Applicant 3583 – Mr Wong Cheung Wan (王長云)

42.Mr Wong said that his father who is a Hong Kong permanent resident went to the Legal Aid Department as well as the Immigration Department to make several enquiries on his behalf concerning the right of abode but to no avail. So on 3 November 1997, Mr Wong surrendered to the Immigration Tower with the intention of returning to the Mainland because, he said, he was disappointed and his wife in China was also taken ill. Although in the ID 457 form, he gave the names, ages and Hong Kong address of his parents, he did not mention their Hong Kong identity card numbers and there was nothing about their residential status. However, he alleged that during the interview at the GIS, he initially wrote in a GNR form that he wanted to get an amnesty, but did not know how to write the relevant characters. He was then given another GNR form by the officer who suggested that he should copy the words which the officer had already written for him.

43.This allegation was not mentioned in his affirmation or Case Summary and the alleged partially completed form was nowhere to be found in the file. The judge described it as a “spur-of-the-moment invention”. But more importantly, while the judge found Mr Wong to be credible in most matters, he concluded that “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.”  

44.Mr Wong did not file any written submission and has failed to turn up at the hearing. We see no reason to disagree with the judge’s conclusions. The appeal must be dismissed.

Applicant 4138 - Mr Yeung Kam Shui (楊金水)

45.Mr Yeung was arrested by the police in the Yau Ma Tei area on 15 April 1998. He said he was there looking for an office of the Immigration Department to seek an extension of his two-way permit which had expired. This assertion was rejected by the judge as it was found that he did not even have his document on him when he was arrested. Mr Yeung also testified to the effect that during the interview under caution, he told the officer that his parents were Hong Kong permanent residents and he wanted to stay in Hong Kong as he had the right of abode here. His father also said that when he went to the police station to get bail for his son, he told the police officer that his son had the right of abode. However, this allegation (that a claim had been made to the police) was expressly abandoned by his former solicitors although he denied that he had given such instructions to the solicitors to abandon the allegation. In any event, the cautioned statement did not bear out his case: there was no mention even of his father and the address given was that of his grandmother and not that of his father.  The judge also found the father was not a credible witness and was confused.

46.Mr Yeung’s case was that on the following day, at the Victoria Immigration Centre, both he and his father who went there to seek bail for him had made claims for right of abode. There was however nothing in the GNR form or the personal particulars form to indicate his parents are permanent residents. It was alleged that the officer had asked him to copy from a set of characters and was hostile and behaved in a very fierce manner. Although Mr Yeung also said that with his experience in previous immigration offences, he knew the importance of having a record of his claim, nothing which could support his case was written. He blamed it on his own illiteracy. The judge did not accept his evidence and that of his father. He found no claim was made and there was no record of any claim.

47.Mr Yeung did not file any written submission, but turned up at the hearing. He said that there were occasions when the Government had granted amnesty in the past but he had missed these opportunities. He repeated that he had made a claim for right of abode to the authorities. He has failed to show how the judge was plainly wrong in rejecting his evidence. We would also dismiss his appeal.    

Applicant 4581 – Madam Hui Ching Na (許清娜)

48.There was no successful contact with Madam Hui since about February 2000 when she passed through Hong Kong on her way to the Philippines. Letters were written and sent to her last known Hong Kong and Mainland addresses. Her case was heard in her absence, the judge having been satisfied that all reasonable steps had been taken to notify her of the hearing before the judge.

49.Madam Hui’s case could only be found in the Case Summary prepared by her former solicitors in about 1999 and 2000. It was based on three alleged claims she had made. The first occasion was 14 October 1997 when she was arrested by the police for overstaying since 1990. The judge took the view that what was stated in the Case Summary did not amount to a claim having been made but rather an explanation of why she had overstayed for so long. The reference to the father being a permanent resident was not sufficient to turn what was an explanation into an assertion of a right of abode. Nothing in the possession of the police constituted evidence of any claim. The second occasion was when she was detained at the Victoria Immigration Centre. The GNR form and the personal particulars form gave the names of her father and mother, but said nothing concerning their residential status. There was no suggestion that she was subject to any oppressive conduct when completing these forms. Even the Case Summary stated that “although she 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.”  The judge concluded that such documentation was simply not enough to show she had made a claim at the Victoria Immigration Centre. The third basis of Madam Hui’s case was that according to the Case Summary, her father had written “numerous letters to the Director” asking that she be permitted to remain with him in Hong Kong. The judge noted that although it was said that he had sent numerous letters, the Director had no record of having received any of these letters. There was also no evidence that the father had kept any copies. As a result, the judge did not accept that the father had made any claim on behalf of Madam Hui.

50.Madam Hui did not file any written submission and did not turn up at the hearing before this Court. There is nothing to show that the judge had made any error in coming to his conclusions. This appeal must also fail.

Applicant 5286 – Mr Chong Man Kai (庄文楷)

51.Mr Chong was arrested by the police on 11 December 1997 at a construction site while he was an overstayer. His case was that he had made a claim for right of abode on two occasions. The first was made during an interview on the following day when he was detained at the Victoria Immigration Centre. The judge did not believe that he had done so, as he was more than happy to be repatriated rather than to face prosecution. There was no mention of any claim in the GNR form which Mr Chong said he signed without objection and in the absence of oppressive conduct on the part of the officer. However, the judge accepted that on 13 December 1997 when Mr Chong was about to be repatriated, his parents went to visit him at the Victoria Immigration Centre for the purpose of getting bail for him, and that during the course of doing so, the father had told the officer about his own residential status, but since no bail would be considered if repatriation was pending, not only was bail refused, there was also no record of any claim or application for bail. Thus while the judge found that the father might well have claimed the right of abode for his son, there was no record of such a claim in the Department’s file.

52.Mr Chong did not file any written submission. However, he attended court and expressed his hope that the Government would give him the right of abode. But he has not pointed out any basis for overturning the judge’s findings. His appeal must be dismissed.

Conclusion

53.For the reasons given above, the appeals of all these 14 applicants are dismissed. There will be no order as to costs. The costs of Applicants 5088 and 2144 will be taxed according to the Legal Aid Regulations.

54.This is the last group of applicants in this case. The disposal of their appeals in this judgment brings an end to this exceptionally long and unhappy litigation which was commenced in July 1999. We would like to express our thanks to the legal representatives acting for the parties, both solicitors and counsel, for the help which they have throughout the years given not only to the applicants but also to the Court. We are especially indebted to Hartmann J for the assistance which he has provided in his comprehensive reports. We are particularly impressed with the patience and fairness which he had displayed to the massive number of applicants, very often under difficult circumstances and the exemplary and judicious manner in which he dealt with the evidence.

Mr Justice Bokhary PJ:

55.My position in this appeal – which I explained on 30 July 2002, have repeated since and repeat again now – is as follows.  On 10 January 2002 I said in a minority judgment that I would allow all these appeals to the fullest extent in favour of all the appellants by (i) quashing all the removal orders and (ii) declaring that all the appellants are Hong Kong permanent residents with the right of abode here.  And I adhere to that.  I do not consider it appropriate for me to participate in resolving the issues which have arisen between the parties as to the effect of the majority’s judgment.  It would be otherwise if and to the extent that the members of the Court who formed that majority were now evenly divided amongst themselves on the resolution of those issues or any one or more of those issues.  But that is not the present situation.  So I adhere to everything which I said in my judgment on 10 January 2002, adding no more than as follows.  First, I respectfully join in the majority’s tribute to Mr Justice Hartmann and all the counsel and solicitors involved.  And then I conclude by paying another tribute.  It is to the dignity in adversity displayed by all the abode-seekers, including and especially the woman who made every effort to remain composed before ultimately breaking down in tears at the final hearing of this long and sad case.  My saying that may only be cold comfort to them.  But I consider it right to say it nevertheless.

Ms Gladys Li SC, Mr Kwok Sui Hay and Mr Sean H J Fang (instructed by Messrs Barnes & Daly and assigned by the Legal Aid Department) for the applicants 5088 & 2144

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

Applicant 904, Mr Chong Kam Ku, in person, absent

Applicant 1771, Madam Lam Nga Li, in person, present

Applicant 2300, Madam Li Yeuk Wai, in person, present

Applicant 2979, Mr Sit Kwong Kuen, in person, present

Applicant 3583, Mr Wong Cheung Wan, in person, absent

Applicant 4138, Mr Yeung Kam Shui, in person, present

Applicant 4581, Madam Hui Ching Na, in person, absent

Applicant 4625, Madam Kwok Ching Man, in person, absent

Applicant 4682, Madam Lau Wun Hoi, in person, present

Applicant 5075, Mr Yau Shui Yuan, in person, present

Applicant 5286, Mr Chong Man Kai, in person, present

Applicant 5440, Madam Lam Kam Pui, in person, present