Cheung Kin Ho and Others v. Registration of Persons Tribunal

HCAL 2/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 2 OF 2014

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REASONS FOR DECISION
AND
DECISION ON COSTS

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A.  INTRODUCTION

1.On 30 May 2014, I dismissed the applicants’ leave application to apply for judicial review after hearing, with reasons to be handed down later.  I also said I would deal with the question of costs in the written reasons.

2.These are my reasons and decision on costs.

B.  THE FACTS

3.The applicants were born in the Mainland.  They came to Hong Kong in January 2002 on the basis of the respective Entry Permits issued to them.  All these permits were issued on the basis that they were children of a Mr Zhang and Madam Lam as their father and mother respectively. Mr Zhang is a Hong Kong permanent resident.

4.The fact that they were children of Mr Zhang was confirmed by the Guangdong Provincial Public Security Bureau (“GDPPSB”) in 2000 at the request of Hong Kong Immigration Department.  The Immigration Department made the request when it received Mr Zhang’s applications for Entry Permits on behalf of, among others, these applicants for their unconditional entry to and settlement in Hong Kong.  Mr Zhang stated in the applications that the applicants were his children.

5.With the above confirmation from GDPPSB, the Immigration Department issued the respective Entry Permits to the applicants for their unconditional entry to Hong Kong.  The Mainland authority also correspondingly issued the respective PRC Entry-Exit Permits.

6.After their arrival in Hong Kong, they were issued with their Hong Kong permanent identity cards (“HKPIC”).  The applicants have lived in Hong Kong since their arrival.

7.In January 2003, the GDPPSB notified the Immigration Department that Mr Zhang was in fact not the natural father of the applicants, and that the PRC Entry-Exit Permits issued by the GDPPSB in 2002 were thus obtained by using false information and had been revoked.  It further asked the Immigration Department to revoke the applicants’ right of abode in Hong Kong and repatriate them back to the Mainland.

8.Notwithstanding that the Immigration Department received the above GDPPSB’s notification in January 2003, it only started to interview Mr Zhang and the applicants on this matter in around June 2009.  The Director of Immigration explained that the Immigration Department only started to interview Mr Zhang and the applicants in 2009 as the immigration officers needed time to have an “accurate and in-depth assessment” of the matter before taking any course of action[1].

9.Mr Zhang in fact stated at the interview that the applicants were not his natural children but the children of his brother or sister[2]. At the same time, the applicants claimed in essence that they were not aware of the fact that Mr Zhang was not their natural father.

10.Thereafter, In August 2010, the Immigration Department informed the applicants that their Entry Permits were declared invalid and their stay in Hong Kong were unlawful.  The applicants were also informed that they would be repatriated to the Mainland, but they were given 14 days to make any objection to the revocation of the Entry Permits and repatriation.

11.The applicants’ legal representatives later made written representations requesting the Director of Immigration to exercise discretion to allow them to maintain their Hong Kong permanent resident status.  This was refused by the Director as he maintained the view that the applicants could not meet any of the criteria for Hong Kong permanent resident status as provided in the Immigration Ordinance (Cap 115) (“the IO”).

12.Eventually, on 2 June 2011, the applicants were each served with a letter dated 11 May 2011 whereby the Commissioner declared their HKPICs to be invalid as they never had the right of abode in Hong Kong.

13.In August 2011, the applicants appealed to the Registration of Persons Tribunal (“the Tribunal”) against the decision declaring the invalidity of their HKPICs.

14.In the appeal, the principal basis relied on by the applicants to contend that they enjoyed the right of abode in Hong Kong (and thus were entitled to be issued with the HKPICs) was that, by the time the Immigration Department sought to revoke their HKPICs, they had already acquired 7 years of ordinary residence in Hong Kong and were thus permanent residents in Hong Kong according to Art 24(2)(2) of the Basic Law[3] and paragraph 2(d) of Schedule 1 of the IO[4].

15.The Tribunal heard the appeal on 28 August 2013.  By its decision dated 7 October 2013, the Tribunal dismissed the appeal.  The fundamental basis of the decision is that the applicants are not permanent residents of Hong Kong as their residence in Hong Kong since 2002 (when they entered on the basis of the Entry Permits) was made possible as a result of fraud and thus could not be regarded as ordinary residence as a matter of law, even if the fraud was not committed by the applicants[5].  In this respect, the Tribunal relied on s 2(4)(a)(i) of the IO and the authority of Kong Sau Mei v Director of Immigration [1999] 1 HKC 174 at 184B-C per Keith J (as he then was).

16.The applicants applied for leave to apply for judicial review on 6 January 2014.  As mentioned above, I heard the leave application on 30 May 2014.  The Commissioner as the putative interested party attended the hearing as directed by the court, and opposed the application.

C.  GROUND OF JUDICIAL REVIEW – LEGITIMATE EXPECTATION

17.Although the applicants have raised a number of grounds in the Form 86 and in the skeleton filed for the hearing of the leave application, when it comes to the hearing, Mr Cooney SC[6] for the applicants confirms that he would rely on and pursue only the ground of legitimate expectation. The court therefore is required to look at and deal with this ground alone in determining whether leave should be given.

18.Under this ground, it is the applicants’ contention that the Immigration Department had represented to them, and thus they had a legitimate expectation, that their residence in Hong Kong would be regarded by the authority as ordinary residence.  The representations relied on by the applicants are:

(1)  The Immigration Department issued to the applicants their respective smart HKPICs in between September 2003 and May 2009, confirming their continued permanent residency.

(2)  For the 1^st applicant, the Immigration Department permitted his wife and son to come to Hong Kong and remain for seven years from 8 June 2011 and issued their respective HKIDs on 10 June 2011.  This was made only on the basis that the 1^st applicant was a permanent resident of Hong Kong;

(3)  For the 2^nd applicant, the Immigration Department permitted his wife to come to Hong Kong on 31 October 2008 on a one‑way permit, issued by the Mainland authority on the basis that the 2^nd applicant was a Hong Kong permanent resident;

(4)  For the 4^th applicant, the Immigration Department permitted his wife and son to come to Hong Kong on 14 January 2009 under the one-way entry permit issued also on the basis that he was a permanent resident of Hong Kong.

19.The applicants submit that the above acts by the Immigration Department amount to representations that it continued to treat the applicants’ stay in Hong Kong as permanent residents (and therefore their residence is ordinary residence).  The effect of the representations is further underlined (say the applicants) by the fact that they were all made after the Immigration Department had already received GPPSB’s notification in 2003 regarding the purported fraud.

20.I find this ground of legitimate expectation not reasonably arguable for the following reasons.

21.Mr Cooney rightly does not challenge the Commissioner’s submission that a legitimate expectation cannot render something which is unlawful to becoming lawful.  That is why the doctrine is called “legitimate” expectation.  In other words, the court will not give effect to a purported expectation where to do so would involve the decision-maker acting contrary to the law.  See Ng Siu Tung v Director of Immigration (2002) 5 HKCFAR 1 at paragraph 101, where it is said:

“…Whether an expectation is legitimate, and to what extent, must also depend upon what the applicants are entitled to expect. The requirement of legitimacy means that judicial decisions ‘must be founded not only on what the claimant factually expected, but also on what the claimant, bearing in mind any relevant considerations of policy and principle, was entitled to expect’… It follows that, to the extent that an expectation of a benefit which cannot legally be accorded, it is not a legitimate expectation…” (emphasis added)

22.Thus, as submitted by Mr Chang for the Commissioner, the validity of any legitimate expectation will be limited by the express words of the relevant statute:

(1)  In R v Department of Education and Employment, ex p Begbie [2000] 1 WLR 1115, Peter Gibson LJ at p 1125D stated that “any expectation must yield to the terms of the statute under which the Secretary of State is required to act”.  This was echoed by Laws LJ who said at p 1129E that “I agree that this appeal should be dismissed on the short ground that to give effect to Mr Beloff’s argument would entail our requiring the Secretary of State to act inconsistently with [the express words of the relevant statute].”

(2)  In R v Director of Public Prosecutions, ex p Kebilene [2000] 2 AC 326 the House of Lords rejected a claim of legitimate expectation (that the DPP would not consent to a prosecution) on the basis that such alleged expectation was contrary to “clear statutory intent” and “contradicted by the language of the statue” (p 368E, Lord Steyn).

(3)  In R (Aggregate Industries UK Ltd) v English Nature [2003] Env LR 83 at paragraph 117, Forbes J stated “any legitimate expectation must yield to the terms of any statute and the Council cannot estop itself from discharging its statutory functions in the public interest”, and the only legitimate expectation the applicant would enjoy is that the Director “will properly discharge its statutory duties”.

23.In the present case, the purported expectation that the applicants’ residence in Hong Kong would be regarded as ordinary residence is clearly contrary to s 2(4)(a)(i) of the IO, which provides as follows:

“(4) For the purposes of this Ordinance, a person shall not be treated as ordinarily resident in Hong Kong-

(a) during any period in which he remains in Hong Kong-

(i) with or without the authority of the Director, after landing unlawfully; or

…”

24.Given that it is not (and cannot be) disputed that the applicants’ entry and stay thereafter in Hong Kong based on the Entry Permits (which were obtained by fraud) is unlawful, their residence in Hong Kong cannot be regarded as ordinary residence as expressly provided for under s 2(4)(a)(i) of the IO.

25.In the premises, no legitimate expectation in the form as submitted by the applicants could arise or be permitted.

26.However, Mr Cooney seeks to contend that the legitimate expectation advanced by the applicants does not require the decision‑maker to act contrary to the law.  Leading counsel’s arguments run as follows.

27.Although Mr Cooney does not dispute (fairly and rightly so) the effect of s 2(4)(a)(i) of the IO, he says notwithstanding this provision, the registration officer still possesses a discretion under regulation 3D(1) of the Registration of Persons Regulations (Cap 177A) (“the Regulations”) not to invalidate or cancel a person’s HKPIC even it is shown that that person does not have the right of abode in Hong Kong.

28.Regulation 3D(1) provides as follows:

“Where a registration officer is satisfied that a person to whom a permanent identity card has been issued no longer has, or never had, the right of abode in Hong Kong, he may by such means as he may determine declare the card to be invalid, order it to be surrendered to a registration officer and order the person to whom the card was issued, unless he is an exempt person or an excluded person or lives outside Hong Kong, to apply for an identity card other than a permanent identity card at such place, in such manner, and within such period, as he may require.” (emphasis added)

29.Leading Counsel therefore says given the words “he may...” in this regulation, the registration officer is given a discretion not to invalidate or cancel a HKPIC even when someone is shown not have the right of abode in the first place.  As such, the legitimate expectation relied on by the applicants is that, given the Immigration Department’s above representations, it is legitimate for them to expect that the registration officer would exercise the discretion in their favour not to cancel or invalidate their HKPICs.  This does not (says Mr Cooney) require the decision-maker to act contrary to the law but is only to hold the authority to the representations on how the registration officer would exercise the discretion.

30.Sections 1A and 3A of the Registration of Persons Ordinance (Cap 177) (“ROPO”) provide effectively that only a person who has the right of abode in Hong Kong could apply for and be issued a HKPIC.  Thus, implied in Mr Cooney’s above arguments is that regulation 3D(1) provides the registration officer with a direction to treat someone who as a matter law[7] does not have the right of abode in Hong Kong to have a right of abode.

31.That is a startling proposition and with respect to Mr Cooney, I am not persuaded.

32.In my view, on a plain and ordinary reading of regulation 3D(1), the words “he may” are clearly referring to the acts to “declare the card to be invalid, order it to be surrendered to a registration officer and order the person to whom the card was issued, […], to apply for an identity card other than a permanent identity card at such place, in such manner, and within such period, as [the registration officer] may require”.

33.What that regulation therefore provides for is that, when it is found that a person who has been previously issued a HKPIC does not have the right of abode in Hong Kong, the registration officer has a discretion to (a) order the HKPIC to be invalid, and/or (b) order the person to surrender the HKPIC to him and/or (c) order the person to apply for an identity card (other than a HKPIC).  All these are acts pertinent to invalidating the HKPIC.  The “discretion” thus only goes to allow the registration officer to choose which acts he would adopt to treat the HKPIC to be no longer valid.  It would not entitle him to treat that person as having the right of abode again and to treat the HKPIC to be valid.

34.This reading of the regulation is also consistent with:

(1)  The meaning of s 2(4)(a)(i) of the IO which has a mandatory effect of disentitling a person who has unlawfully entered Hong Kong to have his residence in Hong Kong to be treated as ordinary residence.  The discretion of the registration officer given under the Regulations (as a subsidiary legislation) could not have been intended to treat something not permissible by the primary ordinance to becoming permissible.

(2)  Ss 1A and 3A of the ROPO, which provide effectively that only a person who has the right of abode in Hong Kong could apply for and be issued a HKPIC.  Again, the discretion of the registration officer given under the Regulations could not have been intended to permit the registration officer to act contrary to these provisions of the primary legislation.

35.In further support of his above submissions on the registration officer’s discretion, Mr Cooney also seeks to rely on regulation 5(1A) of the Regulations.

36.Regulation 5(1A) provides that:

“The registration officer shall not cause an identity card to be prepared in the case of an applicant who-

(a) has landed in Hong Kong unlawfully within the meaning of the IO, unless the applicant is in possession of a document issued under the Ordinance authorizing him to remain in Hong Kong …” (emphasis added)

37.Mr Cooney submits that this regulation also shows that a registration officer is given a discretion to issue an identity card (which by definition includes a HKPIC[8]) to someone who has landed unlawfully in Hong Kong in certain situation.  Counsel however emphasises that his primary arguments are premised on the above construction of regulation 3D(1) and his submissions in relation to regulation 5(1A) are only supportive and secondary to those primary contentions.

38.Given the above reasons I have rejected Mr Cooney’s primary submissions, I do not think these secondary submissions would assist him further.  In any event, these submissions on regulation 5(1A) are in my view also untenable.  The definition of “identity card” only includes a HKPIC. Thus, although this regulation refers to the issue of an “identity card”, when read in the context of someone who has entered Hong Kong unlawfully, it must be intended to mean the issue of an identity card other than a HKPIC.  It therefore does not give the registration officer a discretion to issue a HKPIC to a person who has entered Hong Kong unlawfully.

39.For these reasons, I do not find the ground of legitimate expectation to be reasonably arguable.  I therefore refuse the leave application.

D.  COSTS

40.It is accepted that the usual costs order in a contested unsuccessful leave application is no order as to costs, and that the court should only order costs against an unsuccessful applicant when there are exceptional circumstances or good reasons to justify doing so.  In deciding whether there are such good reasons or exceptional circumstances, the court will look at a host of factors.  I have listed out non-exhaustively some of those factors that are usually considered by the court in Television Broadcasts Limited v Communications Authority (unreported, HCAL 3/2013, 22 July 2013) at paragraphs 5 and 6, and I do not propose to repeat them here.

41.In the present case, Mr Chang for the Commissioner has asked for costs of this application based on the following what he submits to be exceptional circumstances:

(1)  The application is a hopeless one;

(2)  The application is made purely to advance the applicants’ personal interest;

(3)  The Commissioner’s presence has rendered significant assistance to the court; and

(4)  The applicants in fact have a rolled-up hearing of the intended judicial review.

42.With respect to Mr Chang, I do not find this case to be one that justifies ordering costs against the applicants.

43.Although I do not regard the ground in support of the intended judicial review reasonably arguable with a realistic prospect of success, given Mr Cooney’s above arguments (which I note are only raised at the hearing but not contained in the skeleton or Form 86), I would not say the leave application is a hopeless one.

44.Further, I would not regard the hearing as effectively a rolled‑up hearing as the Commissioner has not yet filed full evidence to deal with the question of legitimate expectation.  The disposal of this ground in this application is also premised solely on legal arguments.

45.Given my above observations, although I have found Mr Chang’s presence for the Commissioner at the hearing of significant assistance, and I accept that the application is made to advance the applicants’ personal interest, these factors alone would not justify the court to depart from the usual costs order and to award costs against the applicants.

46.I therefore order that there be no order as to costs in this leave application.

47.Lastly, I wish to thank Mr Cooney SC and Mr Chang for the helpful assistance they have given to the court in this matter.

Mr Nicholas Cooney SC leading Mr Jacky Ip and Mr Jeffrey Tam, instructed by Messrs Yip, Tse & Tang, for the 1^st to 4^th applicants

Mr Jonathan Chang, instructed by Department of Justice, for putative interested party