Ng Chun Hing and Others v. Director of Immigration
Read the full judgment text of CACV 380/2002 on BabelCite. This Court of Appeal judgment was delivered on 20 January 2003.
1. The 7 appellants in this case are 7 of the 300 plus plaintiffs in HCA 2214 & 2411/2002. In those two cases, by their Statements of Claim endorsed on the Writs of Summons, the plaintiffs applied for writs of habeas corpus and injunctions to prohibit the defendant, namely the Director of Immigration, from “making decisions of repatriation [against the plaintiffs] during the subsistence of their court actions.”
Cites 6 cases
|
[English Translation] CACV 380/2002 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 380 OF 2002 (ON APPEAL FROM HCA NOS. 2211 & 2214/2002) ____________________ BETWEEN
____________________ Before: Hon Woo and Cheung JJA Date of Hearing: 8 January 2003 Date of Judgment: 20 January 2003 ____________________ JUDGMENT ____________________ Hon Woo JA: Background 1.The 7 appellants in this case are 7 of the 300 plus plaintiffs in HCA 2214 & 2411/2002. In those two cases, by their Statements of Claim endorsed on the Writs of Summons, the plaintiffs applied for writs of habeas corpus and injunctions to prohibit the defendant, namely the Director of Immigration, from “making decisions of repatriation [against the plaintiffs] during the subsistence of their court actions.” 2.The causes of action as set out in the Statements of Claim were as follows. The plaintiffs came to Hong Kong on the strength of Permits to and from Hong Kong and Macau which they obtained by lawful means. They applied for the right of abode in Hong Kong, and for the purpose of processing their applications, the defendant extended their lawful stay in Hong Kong by giving them permits commonly known as “going-out passes”. According to paragraph 4I(i) of the Application for an Extension of Stay (Form ID 91) issued by the Immigration Department, where a Mainlander who had lawfully stayed in Hong Kong for 3 years applied in Hong Kong for unconditional stay for the purpose of reunion with his/her parents/spouse who resided in Hong Kong, the defendant should grant him/her unconditional stay in Hong Kong. The plaintiffs claimed that they satisfied the requirements under paragraph 4I(i) of Form ID 91, but the defendant refused their applications. 3.Pursuant to Order 18, rule 19 of the Rules of the High Court and/or the Court’s inherent jurisdiction, the defendant applied to have the plaintiffs’ Statements of Claim endorsed on the Writs of Summons struck out on the following grounds:
The defendant also applied for dismissal of the plaintiffs’ actions. 4.The defendant’s said application regarding the two actions was heard before Deputy High Court Judge Cheung (as he then was). Judgment was delivered on 16 September 2002, allowing the defendant’s application to strike out the plaintiffs’ Statements of Claim and dismiss their actions. The causes of action in the two cases were identical, as were the contents and paragraph settings of Deputy Judge Cheung’s two judgments. Therefore, the same approach will be taken in this judgment regarding the plaintiffs’ appeals. The grounds of appeal 5.The plaintiffs’ grounds of appeal can be summarised as follows:
The right of abode litigation and its outcome 6.Following Hong Kong’s return to Mainland China on 1 July 1997, a number of individuals born in the Mainland applied to the Immigration Department for the right of abode in the Hong Kong SAR (“right of abode”). These applications triggered a series of legal proceedings. There were thousands of such applications and proceedings. On 29 January 1999, the CFA delivered its judgments in Ng Ka Ling & others v The Director of Immigration (1999) 2 HKCFAR 4 and Chan Kam Ngar & others v The Director of Immigration (1999) 2 HKCFAR 82. The judgments of these two cases are the judgments referred to in the abovementioned item (1) of the grounds of appeal. In Ng Ka Ling, the CFA held that Article 24(2)(3) of the Basic Law is not subject to Article 22(4) [people must come to Hong Kong on the strength of one-way permits issued by the Mainland authority (“one-way permits”)] in that when children of Chinese nationality born outside Hong Kong of Hong Kong permanent residents (“permanent residents”) apply for the right of abode, they do not have to obtain one-way permits before they can be granted that right. In Chan Kam Ngar, the CFA held that children of Chinese nationality born outside Hong Kong of permanent residents, whether they are born before or after at least one of their parents has acquired permanent residence, are persons within Article 24(2)(3) of the Basic Law and entitled to the right of abode. 7.On 26 June 1999, the Standing Committee of the National People’s Congress of the People’s Republic of China issued its interpretation on the question of the right of abode (“NPCSC’s interpretation”), by which the above judgments of the CFA were superseded and hence no longer applicable. On 10 January 2002, in Ng Siu Tung & others v The Director of Immigration (FACV 1-3/2001 (10 Jan 2002, unreported)), the CFA elucidated the relationship between the two cases Ng Ka Ling and Chan Kam Ngar and the NPCSC’s interpretation as well as the effects thereof and made a conclusive determination on the issue of the right of abode. 8.Being a case determined by the CFA, Ng Siu Tung is binding on this Court. The NPCSC’s interpretation is also binding on this Court. According to Ng Siu Tung and the NPCSC’s interpretation, by which this Court must abide, children of Chinese nationality born outside Hong Kong of permanent residents must satisfy one of the following three conditions before they can be granted relief by the court:
9.If an applicant does not satisfy any of the conditions set out in paragraph 8 above, he/she does not have the right of abode; even though his/her father or mother was already a permanent resident at the time of his/her birth, he/she has to obtain a one-way permit from the Mainland authority before he/she can exercise his right of abode in Hong Kong as a permanent resident. 10.The plaintiffs’ claim in this appeal was not made on the basis of their having satisfied any of the above three conditions, whereupon they can acquire the right of abode in Hong Kong pursuant to the judgment in Ng Siu Tung. The basis of their claim for relief as pleaded in their Statements of Claim was that, as they had been lawfully staying in Hong Kong for more than 3 years, the defendant could not or should not remove them from Hong Kong. They applied for writs of habeas corpus and injunctions to prohibit the defendant from repatriating them. The decision of the trial judge 11.In his judgment which runs to 26 pages, Deputy Judge Cheung canvassed the plaintiffs’ causes of action and made the following conclusions:
12.In my judgment, Deputy Judge Cheung’s above decisions are beyond reproach. Those decisions also correctly and completely answered the plaintiffs’ first and second grounds of appeal. In my view, those grounds of appeal must fail. 13.Prior to the delivery of the judgment of Ng Siu Tung on 10 January 2002, the dispute and litigation over the right of abode issue had not been conclusively resolved and determined. It was therefore proper for the defendant and the Immigration Department to suffer the plaintiffs to stay in Hong Kong pending final determination of that issue, and understandably time was needed during that period to consider the plaintiffs’ applications for extension of stay. However, this should not be taken to mean that the defendant had permitted or authorised the plaintiffs to stay in Hong Kong. Their stay in Hong Kong was not “lawful” and, as such, could not be regarded as ordinary residence in Hong Kong. It follows that the plaintiffs could not acquire the right to continue to stay in Hong Kong by reason of that stay. The defendant could therefore lawfully issue removal orders against them. The application for injunction as set out in the plaintiffs’ Statements of Claim had no prospect of success and, indeed, were also not arguable and constituted an abuse of the process of the court. The writs of habeas corpus applied for in the Statements of Claim would be granted only when the plaintiffs’ personal freedom was restrained, but the plaintiffs had not been detained by the Immigration Department and, therefore, the relief of habeas corpus was not applicable. Even if that relief were applicable, the plaintiffs’ applications were, for the reasons set out above, not arguable. In my view, it was at once legitimate and reasonable for Deputy Judge Cheung to strike out the Statements of Claim and dismiss the plaintiffs’ actions. 14.The third ground of appeal stem from the plaintiffs’ misunderstanding of what Deputy Judge Cheung stated in paragraphs 50 and 51 of his judgment. These two paragraphs read as follows:
15.Plainly, procedural defect was not the reason why Deputy Judge Cheung allowed the defendant’s application and struck out the plaintiffs’ Statements of Claim and dismissed their actions. Deputy Judge Cheung considered the substance of the plaintiffs’ claims to decide whether they were arguable. In other words, even if the plaintiffs had adopted the proper legal process, their case and arguments still did not support their claims against the defendant and enable them to continue to stay in Hong Kong unconditionally. Conclusion 16.Having carefully considered the plaintiffs’ claims and arguments as well as the reasons for Deputy Judge Cheung’s decisions, I respectfully agree with his judgment. In my view, the plaintiffs did not have any reasonable cause of action or any arguable case to support their claims and actions. I have also considered in detail plaintiffs’ various grounds of appeal and I see no merit in any of them. Accordingly, I take the view that the appeal stands to be dismissed. 17.In my view, an order nisi should be made that the plaintiffs do pay the defendant’s costs of the appeal. Hon Cheung JA: 18.I respectfully agree with Woo JA’s judgment in the present appeal and the reasons therefor. I only wish to express my views on the issue regarding the contents of the General Form ID 91. General Form ID 91 19.The plaintiffs in this appeal are all Mainland residents. They entered Hong Kong from the Mainland by virtue of Permits for Travelling to and from Hong Kong and Macau. Upon their entry into Hong Kong, they were permitted to stay in Hong Kong as “visitors” for a specified period of time. The permission was granted by the Director of Immigration, who exercised his power conferred upon him by section 11 of the Immigration Ordinance. All the plaintiffs had stayed in Hong Kong for 3 years or more. 20.Paragraph 4I(i) of the Notes for Guidance set out in the Application for an Extension of Stay (General Form ID 91) prepared by the Immigration Department states that: “Application for unconditional stay to reunite with resident spouse/parents by persons from the Mainland who have lawfully stayed in Hong Kong for 3 years”. The Plaintiffs contended that they met the requirement of paragraph 4I(i). The judgment in Ng Siu Tung 21.In my view, paragraph 4I(i) of General Form ID 91 cannot by itself form the basis of the plaintiffs’ entitlement to unconditional stay in Hong Kong. On this complex issue involving the eligibility of Mainland residents to stay in Hong Kong, the plaintiffs just cannot solely rely on the Notes for Guidance contained in an application form as the basis of their claim for unconditional stay in Hong Kong. In my view, the plaintiffs must first meet the requirements set out in the judgment of the Court of Final Appeal in Ng Siu Tung v The Director of Immigration [2002] 1 HKLRD 561 before they can stay in Hong Kong. The greatest benefit that the right of abode entails is the right to stay in Hong Kong unconditionally. Thus, the pre-condition for granting relief to the plaintiffs was that they had to be eligible for the right of abode in Hong Kong. It cannot be the case that, on the one hand, Mainland residents are not permitted to stay in Hong Kong because they fail to meet the requirements set out in Ng Siu Tung, but on the other hand they can bypass the judgment in Ng Siu Tung and obtain unconditional stay in Hong Kong by relying on paragraph 4I(i) of General Form ID 91 after remaining in Hong Kong as visitors for 3 years. This certainly is not the legislative intent of the Basic Law or the Immigration Ordinance. Discretion 22.Furthermore, even if the Director of Immigration exercises his discretion to permit Mainland residents who do not meet the requirements set out in Ng Siu Tung to stay in Hong Kong, this form is only one of the documents required for an application for unconditional stay. This form must be submitted together with other relevant documents to the Immigration Department for consideration. Apart from this form, a Mainland resident applying for unconditional stay in Hong Kong must complete and submit another standard form to the Immigration Department, namely a “Declaration of Application for an Extension to Stay”. That Declaration expressly requires the applicant (or his/her parents) to declare that, at the time of the application, the applicant has already ordinarily resided in Hong Kong for a continuous period of 3 years. Three years’ continuous ordinary residence in Hong Kong 23.Sections 2(4)(a)(i) and (ii) of the Immigration Ordinance provide that:
24.The plaintiffs in this case did not meet the requirement of ordinary residence in Hong Kong. Where visitors coming to Hong Kong on the strength of two-way permits remain in Hong Kong upon the expiry of the time limit of stay, they contravene a condition of stay, and their 3 years’ residence in Hong Kong will not be treated as ordinary residence in Hong Kong. For this reason, the plaintiffs were never eligible for unconditional stay in Hong Kong. Lawful stay in Hong Kong for 3 years 25.Even if the plaintiffs could rely solely on General Form ID 91 as the basis of their applications, they still failed to meet the requirement of “having lawfully stayed in Hong Kong for 3 years” as stated in paragraph 4I(i) of the Form. 26.Any person permitted to land in Hong Kong subject to a condition of stay cannot be treated as a lawful stayer unless that person is, either before or after the expiry of that condition of stay, granted permission to continue to stay by the Director of Immigration pursuant to section 11 of the Immigration Ordinance. In the present case, the Director of Immigration had not granted permission under section 11 to the plaintiffs to continue to stay in Hong Kong. Recognizance 27.The plaintiffs contended that, as they had signed documents commonly known as “going-out passes”, they had been permitted to stay in Hong Kong lawfully. These documents were recognizances signed and issued under section 36 of the Immigration Ordinance. They were documents which the Director of Immigration, in exercise of his statutory power, required the plaintiffs to sign. The recognizances were an alternative to the exercise by the Director of his power of detaining the plaintiffs under section 27, 32 or 34 of the Immigration Ordinance, in that the plaintiffs, who had entered into the recognizances, were free from detention upon the terms of the recognizances. 28.Section 27 of the Ordinance authorises an immigration officer to detain “a person who may be examined” under section 4(1)(a) or who is required to submit to further examination following an examination under section 4(1)(a), and this includes any person arriving in Hong Kong, landing in Hong Kong or leaving Hong Kong. After an immigration officer has examined “a person who may be examined” under section 4(1)(a), he can grant permission under section 11 to that person to land in Hong Kong. Such permission is subject to conditions such as time limit of stay. 29.Sections 32(2A) and (3A) of the Immigration Ordinance also empower the Director of Immigration and his subordinates to detain a person (including an illegal immigrant or an overstayer who is in breach of conditions of stay) pending the decision as to whether or not a removal order should be made under section 19(1)(b) against that person, and to detain a person against whom a removal order has been made, pending his removal from Hong Kong under section 25. 30.Under section 36, a recognizance is applicable to a person who can be detained under section 27, 32 or 34 but is not so detained at the time. The plaintiffs in the present case definitely came under this category. If they applied for extension of stay, they would have to be further examined, and they were persons who could be detained. The application of a recognizance to a person who can be detained but is not at the time so detained is, in my view, not in any way contrary to human rights legislation. 31.The issuance of recognizance is an administrative measure intended to provide an alternative to detention, and is wholly distinct from the granting by the Director of Immigration of permission to overstayers to continue to stay in Hong Kong lawfully. For this reason, the plaintiffs also did not meet the requirement of lawful stay. The argument that the plaintiffs as overstayers had not been prosecuted is irrelevant to the determination of the plaintiffs’ status in Hong Kong. Conclusion 32.I take the view that Deputy Judge Cheung’s decision is correct. The plaintiffs’ Statements of Claim should be struck out for disclosing no reasonable cause of action, and their actions should be dismissed. Hon Woo JA: 33.We unanimously dismiss the appeal and make an order nisi that the plaintiffs do pay the defendant’s costs of this appeal. If neither party raises an objection with this Court regarding the order nisi within 14 days after the delivery of this judgment, the order will become absolute.
Plaintiffs: Ng Chun Hing, in person. Chu Chi Pui, in person, absent; submissions to the Court made by his father Chu Kwok Yin (朱國賢). Chiu Ka Wing, in person, absent; submissions to the Court made by his mother Hon Lin Ho (韓連好). Tang Ke Ling, in person; submissions to the Court made by her husband Chan Chuen (陳尊).
Defendant: Ms Joyce Poon, Senior Government Counsel, for the defendant. Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor. |
Cases cited in this judgment
Further hearings and rulings under CACV 380/2002