Re Or Ko (also known as or Siu-ko) and Others

CACV 131/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 131 OF 2012

(ON APPEAL FROM HCAL 31/2012)

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JUDGMENT

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Hon Cheung CJHC:

1.This is an appeal from the refusal of Lam J (as he then was) to grant leave to apply for judicial review.

The facts

2.The four applicants are respectively the wife and daughters of a Chinese male known as Cheung Woon‑tung. The applicants were all Mainland residents but came to Hong Kong in 2001 and 2002 respectively by way of one‑way permits issued on the basis that Cheung Woon‑tung was a Hong Kong permanent resident.  The Director of Immigration subsequently came to the conclusion that Cheung Woon‑tung was not a permanent resident and that the one‑way permits were obtained by him from the Chinese authorities unlawfully and fraudulently.  The Director took the view that the permissions for the applicants to land and remain in Hong Kong were null and void because they had been obtained by fraudulent means.  Their stays in Hong Kong had been illegal.  The Director accordingly issued removal orders against the applicants.  The applicants appealed to the Immigration Tribunal against the removal orders.

3.According to the Director’s investigations, a Cheung Woon‑sing, a younger brother of Cheung Woon‑tung, entered Hong Kong illegally back in 1980 and, in accordance with the then government policy, obtained a Hong Kong identity card no [edited].  He married a Zheng Xiaohong (鄭小紅), alias Zheng Hong (鄭紅) in the Mainland in 1986 (pursuant to local customs) – they were formally married in 1990.  In 1987, Cheung Woon‑sing became a Hong Kong permanent resident and was issued with a Hong Kong permanent identity card bearing the same number.  Unfortunately, Cheung Woon‑sing died of leukemia in the Mainland in 1996.  After his death, Cheung Woon‑tung obtained his deceased brother’s Hong Kong identity card and home return permit from his widow and came to Hong Kong by impersonating him.  On 13 September 1997, Cheung Woon‑tung, impersonating his deceased brother, applied to the Immigration Department for a replacement Hong Kong identity card on the pretext that the original one was lost.  In his application form, he stated the name of his wife as Zheng Hong.  He was issued with a replacement card.  In 2001, Cheung Woon‑tung, impersonating his deceased brother, “changed” the name of Cheung Woon-sing to Cheung Woon‑tung and obtained a replacement identity card bearing the same number and the “new” name.  In his application form, his wife was said to be Or Ko, the 1^st applicant.  As mentioned, in 2001 and 2002, Cheung Woon‑tung successfully obtained from the Mainland authorities the relevant one‑way permits to enable his wife and daughters to come to Hong Kong.

4.The Director started his investigations in 2003 and in 2004, Cheung Woon‑tung jumped bail and has since disappeared.  The Director has since by correspondence verified the facts mentioned above with the Guangdong Provincial Public Security Bureau (“the GPPSB”).  Moreover, it has obtained a statement from Madam Zheng, the widow of Cheung Woon‑sing, which corroborated the relevant facts.

5.At the hearing before the Tribunal, the Director relied heavily on his correspondence with the GPPSB and the statement obtained from Madam Zheng to prove his case.  Moreover, at the direction of the Tribunal, the Director also produced and relied on a fingerprint expert report dated 13 August 2010 to establish his case.  Essentially, fingerprint comparisons showed that one and the same person had applied for Hong Kong identity card no [edited] on 12 December 1980 and 8 December 1987, whereas a different person had applied for replacement Hong Kong identity cards bearing the same number on 13 September 1997 (that is, the replacement identity card for the supposedly lost card) and on 24 April 2001 (as a result of the change of name).  The fingerprints of the second person matched that of Cheung Woon‑tung’s, taken by the Immigration Department on 2 February 2004 when he was interviewed during the Director’s investigations.

6.At the hearing before the Tribunal, the applicants put the Director to strict proof of all his allegations.  They chose not to give evidence, nor did they call or adduce any evidence.

7.The Tribunal had no difficulty in making findings essentially identical to that made by the Director.  The appeals were accordingly dismissed on 13 December 2011.

The proceedings below

8.The applicants applied for leave to apply for judicial review to challenge the Tribunal’s dismissal of their appeals. But it was refused by the judge.  The judge considered that the contents of the letters from the GPPSB were sufficient to prove that a false representation had been made by Cheung Woon‑tung to the Mainland authorities to produce the one‑way permits, namely, that he was a lawful Hong Kong permanent resident.  The judge noted that the applicants were not able to give evidence to dispute the death of Cheung Woon‑sing and how the one‑way permits were procured.  The judge considered that on the evidence available, the irresistible conclusion is that Cheung Woon‑tung had entered Hong Kong illegally in 1997 by using the identification documents of the deceased Cheung Woon‑sing.

The applicants’ arguments

9.In this appeal, Mr William Allan, for the applicants, essentially argued that both the GPPSB letters and the statement of Madam Zheng constituted highly prejudicial, untested and unaccepted evidence.  The makers were not called to give evidence and the applicants were not able to cross‑examine them.  Not even the originals of the GPPSB letters were produced.  There was therefore a breach of natural justice in the proceedings before the Tribunal and the applicants’ right to a fair hearing guaranteed under article 10 of the Hong Kong Bill of Rights was infringed.  Mr Allan also criticized the fingerprint expert evidence on the ground that some of the fingerprint samples used for comparison purpose were only copy samples.

My view

10.The applicants were of course entitled to a fair hearing before the Tribunal as required by common law as well as article 10 of the Hong Kong Bill of Rights. But what constitutes a fair hearing varies with the facts and circumstances. As the Tribunal correctly recognised, the case law has firmly established that the Tribunal, as an administrative tribunal, is not bound by the strict rules of evidence.  What is required of them are that they use their commonsense and experience of life; go about their task in a fair‑minded manner; make up their minds in a level-headed way; and then give their decision and the reasons for it in plain and simple language.  Chan Choi Hung v Director of Immigration [1994] 1 HKLR 416, 424; Mahon v Air New Zealand [1984] 1 AC 808, 820G‑821A/B.

11.The Tribunal was fully aware that the letters from the GPPSB and Madam Zheng’s statement were hearsay evidence.  The Tribunal also recognised, correctly, that there is a long line of authorities in Hong Kong to the effect that these types of GPPSB letters are admissible evidence before the Tribunal, and the weight to be attached to them must depend on the facts and available evidence adduced by both sides: Tsui Siu Wai v Director of Immigration, HCMP 1665/1994, 6 December 1994 (Patrick Chan J); Li Fu Shan v Director of Immigration, HCAL 813/2001, 7 November 2002 (Hartmann J); Fung Suet Fong v Director of Immigration, HCAL 108/2002, 10 January 2004 (Chung J); Wong Ka Hin (王家衍) v Director of Immigration, CACV 1937/2001, 25 January 2005 (Woo VP and Andrew Cheung J); Choi Ka Tak v Director of Immigration, HCAL 97/2007, 23 July 2008 (Chu and Lam JJ).

12.In particular, in Li Fu Shan, Hartmann J (as he then was) pointed out in paragraph 78 that these GPPSB letters typically contain evidence of certain facts, more particularly, that the authority responsible for managing the one‑way permit scheme and issuing the permits has investigated the matter; that it has made a finding that the applicant’s permit has been obtained by fraud; that it has specified the matters in respect of which the fraud has been exercised; and that it has sought the cancellation of the applicant’s permit and his return (as is the case here).  It is a matter for the Tribunal whether it is or is not prepared to accept those facts.

13.On the facts and evidence of the present case, the Tribunal was entitled to accept the relevant GPPSB letters as admissible evidence of the matters stated therein, including, importantly, the fact that Cheung Woon‑sing had died in the Mainland in 1996.

14.Likewise, in relation to Madam Zheng’s statement, the Tribunal was entitled to admit the statement and give the statement its appropriate weight.

15.It was, of course, open to the applicants not to give or adduce any evidence (even though, on the facts alleged by the Director, they should have been in a position to give evidence in relation to many of the matters involved).  But the inevitable consequence of their adopting that course of action was that, before the Tribunal, there was simply no evidence to contradict the GPPSB letters and Madam Zheng’s statement.  In particular, there was no evidence to contradict the death of Cheung Woon‑sing in the Mainland in 1996.  This uncontradicted fact is, as the judge pointed out, quite fatal to the applicants’ case, whose entries into Hong Kong were based on permits applied for 5 years after Cheung Woon‑sing’s demise.

16.In those circumstances, I find nothing unfair with the Tribunal admitting and relying on the GPPSB letters and Madam Zheng’s statement (whom even the 1997 replacement identity card application form stated to be Cheung Woon-sing’s wife) as evidence to make the relevant findings.

17.As regards the fingerprint expert evidence, the fact that some of the fingerprint samples used were copy samples has been raised before the Tribunal and the applicants have had full opportunity to cross-examine the expert on this and all other relevant matters.  All this was before the Tribunal.  The weight to be attached to the expert evidence was a matter for the Tribunal, not the court sitting in a judicial review application.  The Tribunal was entitled to accept the report and come to the conclusion that the person who applied for the relevant identity cards back in 1980 and 1987 was a different person from the one who applied for a replacement identity card in 1997 and another one in 2001 following the change of name.

18.In my view, this is again fatal to the applicants’ case.  Based on this piece of evidence, there can be no doubt that the person who had “his” name changed from Cheung Woon-sing to Cheung Woon-tung in 2001 and who subsequently, in the name of Cheung Woon-tung, applied for the applicants’ one-way permits, was not the Cheung Woon‑sing who had sneaked into Hong Kong back in 1980 and obtained his permanent resident status in 1987.  Since the one‑way permits were obtained on the basis of the permanent resident status of Cheung Woon-sing, they must have been obtained unlawfully and fraudulently.

19.The court, sitting in its supervisory jurisdiction in judicial review proceedings, simply has no basis to disturb the Tribunal’s findings.  In any event, for the reasons given above, the Tribunal was absolutely entitled to make the findings as it did and dismissed the applicants’ appeals accordingly.  The judge has therefore rightly dismissed the application for leave to apply for judicial review as not being reasonably arguable at all.

20.I would dismiss the appeal with no order as to costs.

Hon Fok JA:

21.I agree with the judgment of the Chief Judge.

Hon McWalters J:

22.I agree.

Hon Cheung CJHC:

23.The appeal is accordingly dismissed with no order as to costs.

Mr William Allan, instructed by Kent Tam & Co, for the applicants