Lau Tak Pui and Others v. Yam Lai San (Minor) and Others

CACV000179/1991

Civil Appeal No 179 of 1991

Headnote

Immigration Ordinance (Cap 115). The grounds on and the circumstances in which an Immigration Tribunal is required to give reasons for its determinations, together with the ambit of such reasons, considered.

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Coram: Hon Sir Derek Cons, V-P, Kempster and Clough, JJA

Dates of Hearing: 19 and 20 December 1991

Date of handing down Judgment: 8 January 1992

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J U D G M E N T

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Kempster, JA:

1. On 25 Match 1991 the Immigration Tribunal established pursuant to s 53F of the Immigration Ordinance (Cap 115) determined that Lau Tak Pui and Lau Tak Mui had not been born in Hong Kong, that the Removal Orders made by the Deputy Director of Immigration on 4 February pursuant to s 19 were therefore valid and that their appeals against such orders should be dismissed. On 11 May that Tribunal made a like determination for the like reason in relation to a Removal Order which had been made against Yam Lai San on 11 April. By leave and order for consolidation both determinations were challenged on judicial review before Mayo J who, on 15 October, ordered that they be removed into the High Court and quashed and that the Tribunal, differently constituted, should rehear the appeals The members of the Tribunal whose determinations have been quashed appeal to this court to set aside the order of Mayo J as being erroneous in fact, law and principle. The Director of Immigration, who was a respondent to the application for judicial review, is also a respondent to these appeals but was not represented before us.

2. The reasons given for the determination of the Tribunal in relation to the applicants Lau Tak Pui and Lau Tak Mui were as follows:

"After careful consideration of the evidence given by all parties concerned and by the witnesses presented, the Tribunal has come to the conclusion that the Appellants have not discharged the burden of proof that they were born in Hong Kong and therefore do not enjoy the right of abode in Hong Kong under Section 2A of the Immigration Ordinance.

The Appeal is dismissed."

Those for the determination of the Tribunal in relation to the applicant Yam Lai San read:

"It is common ground that Mr. & Mrs. Yam have given birth to a daughter Yarn Lai-san (the appellant). This Tribunal has considered all the facts and evidence presented and has heard the witnesses. The Tribunal has found many of them not particularly helpful in supporting the claim that the appellant was born in H.K. This Tribunal is unable to find consistent evidence given by the father and the mother in the process of delivering their daughter Lai-san. Further to the contradicting evidence presented the Tribunal has found that the father had displayed ignorance of the delivery of a baby which he claimed was done by him when his son was born in Feb. 1991. Hence, this Tribunal has good reasons to believe that the appellant was not born in H.K. and does not enjoy the right of abode in H.K.

Case dismissed."

3. Mayo J found that these reasons failed adequately to set out the findings of fact which, he held, the Tribunal was obliged by s 53D to make. That section is in the following terms:

"(1) On an appeal under section 53A against a removal order -

(a) where the Tribunal determines that on the facts of the case as it finds them the appellant -

(ia) does not enjoy the right of abode in Hong Kong; and

(i) does not have the right to land in Hong Kong under section 8(1); and

(ii) does not, disregarding the effect of the removal order under section 19(4), have the permission of the Director of Immigration to remain in Hong Kong,

it shall dismiss the appeal; and

(b) in any other case it shall allow the appeal and rescind the removal order.

(2) The decision of the Tribunal under this section or section 53C shall be final."

Section 53C provides for the dismissal of an appeal without a hearing.

4. The judge did not accept that the proceedings before the Tribunal were vitiated by the presence of its respective legal advisers during the deliberation of the adjudicators but, by Notce under 059 r6(1)(b), the applicants intimated that, if necessary, they would seek to rely on this matter in support of the judge's order.

5. In this court the scope or enquiry has ranged far beyond the implications of s 53D and, in substance, the applicants have relied upon the proposition that the principles of natural justice or the requirement of fairness obliged the Tribunal to furnish them with reasons for its decisions at least as full as are required of a District Judge under s 60(1) of the District Court Ordinance (Cap 336) or of a judge of the High Court under RSC 042 r5B(1). Such requirement is, it may be observed, also mentioned in the judgment of Donaldson J in Tramountana v Atlantic Shipping [1978] 2 All ER 870 at p 872. What was recommended by "Justice" (Administrative Justice. Some Necessary Reforms-1988) is, the applicants contend, already part of the Common Law.

6. On 29 June 1892 an application for a writ of habeas corpus was made to the Full Court of Hong Kong on behalf of Chan Kwun Cheun who was subject to an order for banishment made by the Governor under s 3 of Ordinance No 8 of 1882 and had been detained pursuant to s 1 -of Ordinance No 4 of 1885. The first mentioned section provided that "Every order ... prohibiting any person from residing or being within this Colony shall contain a statement of the grounds upon which it is made." The stated grounds were that. the applicant was a "suspicious and dangerous character well-known as such to the police." The court held that this formula was inadequate and, accordingly, was bad on the face of it. It conveyed no information to the applicant and, to quote the Chief Justice:

"They are the conclusions upon which the order is made, and not in any liberal sense the grounds for making it."

After mentioning Capel v Child (1832) 2 Cr & J 558 he continued:

"If, therefore, a banishment order can be made because a person is dangerous to the peace of the Colony, the facts out of which the danger arises must appear in the statement of grounds."

The applicant was discharged from custody. In Re Chan Kwun Cheun [1910] 5 HKLK 182 at p 183.

7. In England s 12 of the Tribunals and Inquiries Act 1971 expressly requires reasons to be given by a wide range of tribunals while decisions of an adjudicator or of the Immigration Appeal Tribunal, confirmed in its role by s.12 of the Immigration Act 1971, are subject to the same requirement by rule 39 of the Immigration Appeals (Procedures) Rules 1972 (1972 No 1684). No equivalent is to be found in the Third Schedule to the Hong Kong Immigration Regulations but, albeit reasons are not specifically called for, s 53D of the Immigration Ordinance has been held impliedly to require the Tribunal to set out for the benefit of an appellant the facts which it finds and upon which it bases its determination. Cheung Cheong v A-G [1987] HKLR 356 per Silke and Clough JJA (obiter); In the Matter of an  application by Tse Chuk Fuk MP No 537 of 1987 (Unreported)per Godfrey J; In re Sit Woo Tung [1990] 2 HKLR 410 at pp 423-424 per Kaplan J. Upon the first two of these authorities Mayo J relied in the instant cases.

8. It falls to consider whether, even in the absence of statutory requirement express or implied, the applicants have made good their submission that natural justice or the principle of fairness demands reasons. After a thorough review of the English and other Commonwealth authorities the High Court of Australia answered this question in the negative as regards administrative decisions of an appeal board stated by the relevant statute to be final; specifically in relation to the exercise of choice as between rival candidates for promotion in the public service. Deane J stated "The ordinary Common Law position" at p 217:

" ... where, as a matter of ordinary construction, the relevant statutory provisions do not impose an obligation to give reasons, the rules of natural justice will not remedy the omission."

That court suggested that in special circumstances, natural justice might require reasons to be given. Public Service Board of New South Wales v Osmond [1986] 60 ALJ 209. The 4th (1980) edition of De Smith's "Judicial Review of Administrative Action" reaches the same conclusion on the cited authorities at p 148 but on the following page the. author nonetheless suggests:

"Both the pervasive duty to act fairly and the express duty to give reasons imposed upon many tribunals may persuade the courts to develop the existing case law."

At p 548 of the 6th edition (1988) of "Administrative Law" Professor Wade suggests that "a right to reasons is an indispensable part of a sound system of judicial review."

9. In giving his judgment in Public Service Board of New South Wales v Osmond Gibbs CJ mentioned Norton Tool Co Ltd v Tewson [1973] 1 WLR 45, Alexander Wachinery (Dudley) Ltd v Crabtree [1974] ICR 120 and R v Immigration Appeal Tribunal Ex parte Khan [1933] QB 790. At p 122 of Alexander Machinery (Dudley) Ltd v Ciabtree Sir John Donaldson had suggested that the tribunal might briefly state, for example,

"that they are not satisfied in relation to the evidence given by a particular witness or that they are satisfied and so on."

Gibbs CJ sought to explain the findings of Sir John Donaldson, sitting as the President of the National Industrial Relations Court, that the failure to state reasons on the part of the industrial tribunals from which the appeals in the first two of the cited cases were brought involved errors of law by referring to s 12 of the Tribunals and Inquiries Act 1971. Mutatis mutandis he sought to explain the quoted part of the judgment of Lord Lane CJ in the third cited case. by referring to the Immigration Appeals (Procedure) Rules 1972. Lord Donaldson MR has now explained that the application of s 12 of the Tribunals and Inquiries Act 1971 to industrial tribunals exercising their jurisdiction under the Industrial Relations Act 1971 "... never occurred to anyone at the time" and that the material decisions "were not based on any such consideration." He went on to say that in his belief the judgment of Lord Lane CJ in R v Immigration Appeal Tribunal Ex parte Khan owed nothing "to the fact that the Immigration Appeal Tribunal is required by statute to give some reasons for its decisions." R v Civil Service Appeal Board [1991] 4 All ER 310 at pp 317 and 319. This case was not reported at the time of argument before Mayo J. On reflection I am satisfied that Lord Donaldson must have consulted Lord Lane on the matter.

10. The part of the judgment of Lord Lane CJ quoted by Gibbs CJ read:

"Speaking for myself, I would not go so far as to endorse the proposition set forth by Sir John Donaldson that any failure to give reasons means a denial of justice and is itself an error of law. The important matter that must be borne in mind by tribunals in the present type of circumstances is that it must be apparent from what they state by way of reasons first of all that they have considered the point which is at issue between the parties, and they should indicate the evidence upon which they have come to their conclusions."

Gibbs CJ did not cite the part of Lord Lane's judgment which followed namely:

"Where one gets a decision of a tribunal which either fails to set out the issue which the tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis upon which they have reached their determination upon that issue, then that is a matter which will be very closely regarded by this court, and in normal circumstances will result in the decision of the tribunal being quashed. The reason is this. A party appearing before a tribunal is entitled to know, either expressly stated by the tribunal or inferentially stated, what it is to which the tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not. Secondly, the appellant is entitled to know the basis of fact upon which the conclusion has been reached. Once again in many cases it may be quite obvious without the necessity of expressly stating it, in other cases it may not."

11. Both extracts from Lord Lane's judgment, given in the context of the judicial review of a decision of an Immigration Appeal Tribunal which had purported to give reasons, were cited by Lord Donaldson in R v Civil Service Appeal Board at p 319 in support of his finding that, in determining the appeal of a prison officer who was not entitled to appeal to an industrial tribunal against the amount of compensation awarded to him for unfair dismissal, the Civil Service Appeal Board, from which there was no appeal, was "a fully judicial body" and that natural justice required it to give:

"outline reasons sufficient to show to what they were directing their mind and thereby indirectly show not whether their decision was right or wrong, which is a matter solely for them, but whether their decision was lawful. Any other conclusion would reduce the board to the status of a free-wheeling palm tree."

McCowan LJ agreed, adding at p 323:

"... I see no reason why the board need take more than a few simple sentences to state those reasons."

Relying on Public Service Board of New South Wales v Osmond Lord Donaldson found the proposition that there was a general rule of the Common Law or, if that were doubtful, a principle of natural justice that a public law authority should always or even usually give reasons for its decisions unarguable: At pp 325 and 326 Leggatt LJ said:

"Without an obligation to give reasons the board's procedures cannot be checked, let alone challenged; and without reasons neither the person dismissed nor the court can tell whether to apply for or to grant judicial review ... there are not here .. any valid grounds for adhering to the general rule that there is no duty to give reasons. On the contrary, there are here particular grounds for departing from the general rule ... In my judgment the duty to act fairly in this case extends to an obligation to give reasons. Nothing more onerous is demanded of the board than a concise statement of the means by which they arrived at the figure awarded."

12. While I hesitate to analyse the differences I am quite satisfied that the decision considered in Public Service Board of New South Wales v Osmond was administrative and that those considered in the other cases above mentioned were judicial. I am equally satisfied that the Hong Kong Immigration Tribunal was and is a fully judicial and non-domestic body when hearing such appeals as those of Lau Tak Pui, Lau Tak Mui and Yam Lai San, that there was and is no right of appeal from its decisions and that, as Mr McCoy on their behalf- has emphasised, it exercises powers affecting the liberty and residential and citizenship rights of appellants pursuant to statutory provisions of some complexity. These are special circumstances which, quite apart from any implication to be derived from the wording of s 53D, as to which I express no opinion, require as a matter of fairness the provision of outline reasons showing to what issues the Tribunal has directed its mind and the evidence upon which it has based its conclusions. As Lord Bridge stated in Lloyd v McMahon [1987] 1 AC 625 at pp 702 and 703:

"In particular, it is well-established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness."

Mr Graham, on behalf of the members of the Tribunal, has not contended to the contrary.

13. Turning then to the adequacy of the reasons given in the respective appeals they show that the only issue which, by reason of s 2(1), 2A and Schedule 1 para 2 of the Ordinance and of para 2(1)(a) of the Hong Kong (British Nationality) Order 1986 (No 948 of 1986), fell for their determination, namely the appellants' places of birth, had been addressed and, by necessary implication, that all the evidence germane to that issue had been considered. The conclusion that the applicants had not been born in Hong Kong was the basis of fact upon which the Tribunal determined that they did not enjoy a right of abode in the Colony. The requirements stipulated by the Full Court in In re Chan Kwun Cheun, being a statement of the grounds for the findings, and of natural justice, being at least as stringent as any which may derive from the terms of s 53D, were met; in the reasons relating to Yam Lai San amply so. It is not suggested that either determination was aberrant on its face. No more is there evidence before us to show that either determination amounted to a "ritual incantation." As Sir John Donaldson MR said in R v Home Secretary ex parte Swati [1986] 1 WLR 477 at p 483:

" .. it is to be expected that the same reason will underly the refusals in a number of cases and, if that occurs, I do not understand why the reasons should not be described in the same words in each such case."

14. If I am right in my conclusions it is necessary now to consider the applicants' contention that the decisions were vitiated by the fact that the Legal Adviser to the Board remained with the adjudicators throughout their deliberations, that his advice to them should have been given in the presence of the parties or their representatives and that justice was not seen to be done. No point is pursued in relation to the evidence adduced before Mayo J and before this court.

Section 53G(2) provides that:

"The Tribunal and any adjudicator may in the discharge of any function under this Ordinance consult any member of a panel of legal advisers to the Tribunal appointed by the Attorney General."

Thus the adjudicators may turn to a properly appointed legal adviser in relation to matters of fact as well as of law. In any event, by analogy with the practice of the professional clerks to lay justices in England, the retirement by a clerk with his justices for the whole of their deliberations does not invalidate their verdict or decision. R v Welshpool Justices ex parte Holley [1953] 2 QB 403. As Lord Goddard CJ explained at p 406:

"It is often difficult to disentangle what is purely a question of law from a question of fact and a discussion on law must have regard to the. particular facts of the case to which it is desired to apply the law."

The decision of the Divisional Court in R v Consett Justices ex parte Postal Bingo Ltd [1967] 2 QB 9 was to the same effect. To suggest that the advice of the legal adviser must be given in the presence of the parties or their representatives is novel and, in my view, unsustainable. As Lord Morris observed in Chien Sing Shou v The Building Authority [1967] HKLR 352 at p 362, the procedure of the Architects' Disciplinary Board being in question:

"the members of the Board. are not under obligation to repeat in public anything or everything said in the privacy of their deliberations."

I believe this statement of principle to be applicable to the legal adviser. Other considerations apply to the legal adviser to the Medical Council of Hong Kong. The contentions raised in the applicants' Notice fail.

For the foregoing reasons I would allow these appeals by the members of the Tribunal, set aside the order of Mayo J and restore the material decisions. I would also make an order nisi that the members of the Tribunal should have their costs here and below.

Sir Derek Cons, V-P:

15. It is well established that the common law, which enshrines the principles of natural justice, does not of itself require a public law authority or tribunal always, or even usually, to give reasons for its decision. The reported authority to that effect was said by Gibbs, C.J., in Public Service Board of New South Wales v. Osmond [1986] 60 ALJ 209 at 211, to be overwhelming. Nevertheless he accepted that notwithstanding the lack of any general obligation, circumstances might establish a special case in which natural justice would require reasons to be given. I take the recent case of R. v. Civil Service Appeal Board ex parte Cunningham [1991] 4 All ER 310, upon which Mr. McCoy so fervently relies, to be no more than an illustration of such a special case, the majority finding appropriate circumstances in the operation of the Board in general, Leggatt, L.J., confining himself to those which pertained to mr. Cunningham alone.

16. Authority for such a special case is to be found in the oft-quoted words of Lord Bridge in Lloyd v. McMahon [1987] AC 625 at 702:

"My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well-established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness."

The majority of the court were influenced by the character of the Board, i.e. that it was "a fully judicial body" or that it carried out "a judicial function".

17. Taken in the context in which they were spoken I do not for my part take the words of Lord Bridge to propose the "requirements of fairness'' as a philosophical concept to be applied for its own sake, thereby giving a court carte blanche to enforce what it personally considers desirable in any given set of circumstances. The "additional procedural safeguards" are to be imposed only - ("the courts ... will readily imply so much and no more") - to ensure that a man is not deprived of the practical advantages or opportunities which in all fairness he needs to have. This is clearly illustrated by the rules already well established. For example, a man needs to know the case against him so that he can properly meet it; he needs to have the opportunity to put forward his own case, for it may well influence the conclusion of the decision-maker. So, argues Mr. McCoy in the present instance, man also needs to know the factors which have in fact influenced the decision-maker so that he may properly know, in circumstances where it is available, whether to exercise his right of appeal in law, the view taken in. Northern Tool Co. Ltd. v. Tulson [1972] ICR 501, or whether to apply for the decision to be judicially reviewed, approved by the New South Wales Court of Appeal in Osmond and probably also by Lord Donaldson in Cunningham, in referring to the need for the Board to show "that it acted lawfully". (Since reserving our judgments the Times Newspaper report of 18th December, R. v. Secretary of State for the Home Department ex parte Walsh, has, come to my attention. It shows that the Divisional Court there applied a comparable approach to require the Home Secretary to disclose to a prisoner receiving a sentence of imprisonment for life the exact length of his tariff period.)

18. There is great force in the argument, which I would willingly and respectfully adopt, but for two reasons. The first, as a matter of authority, that it was rejected by the High Court of Australia in Osmond. The second, as a matter of principle, that, if taken to its logical conclusion, it would contradict the rule that there is no general obligation to give reasons; for all decisions of subject authorities, whether domestic, administrative or otherwise, are amenable to judicial review. All would therefore be bound to give reasons, except in those instances where, as Lord Lane observed in R. v. I.A.T. ex parte Khan [1983] 1 QB 790 at 794, the reasons are perfectly obvious. This court has, I think, always encouraged the giving of reasons, and I would for my part continue to do so. But to impose such requirement in all cases would be a reform of the law properly available only to the legislature.It is important to note, in my view, that despite the lead taken in' the English jurisdiction, the legislature has not thought fit to enact general legislation or to impose a specific requirement upon the Tribunal.

19. Nevertheless, after considerable hesitation, I have come to agree with my Lord that the fact that the Tribunal acts judicially, whatever may be the difficulties in defining precisely that concept, and that the rights in question are of vital importance in modern society, make it a special case, such that the Tribunal should give adequate reasons for the decisions to which it has come.

20. I have no hesitation then in agreeing with my Lord that in the two instances in question the reasons given by the Tribunal were in the event adequate, and that the presence of the Legal Adviser during the course of the adjudicators' deliberations was not objectionable.

21. I too would allow the appeals and adopt the orders suggested by my Lord.

Clough, JA:

22. I agree that this appeal should be allowed. In arriving at that conclusion I do not find it necessary to look beyond the statutory scheme of the relevant provisions of the Immigration Ordinance (Cap. 115) and what I consider, in agreement with my Lord Kempster, to have been compliance with those provisions by the Tribunal. In my judgment the procedural provisions of the Ordinance, which were helpfully considered by Godfrey J. in Re Tse Chuk-fuk M.P. No. 537 of 1987 (unreported 13th April 1987), are sufficient, if complied with, to achieve justice. In my opinion there is therefore no need to supplement those provisions with a common law natural justice procedural requirement based on principles of fairness obliging the Tribunal to give reasons for its determination.

23. Mr. Graham, for the Director of Immigration, very properly did not seek to press the argument before this court that the Tribunal was not obliged to give any reasons for its determination. He contended, in effect, that whether this court were to adopt the principles of fairness applied by the majority of the court in R. v. Civil Service Appeal Board, ex parte Cunningham (1991) 4 All ER 310 (C.A.) (a case not reported at the time Mayo J gave judgment below) or to confine itself to consideration of the Trihunals determinations by reference to the procedural requirements implicit in the relevant provisions of the Ordinance, the Tribunal had satisfied either test by giving sufficient reasons for its determinations. There was never, as in the Cunningham case, any effective issue as to whether the Tribunal was entitled under the Ordinance to give a determination without any reasons, the effective issue was whether the reasons given were a sufficient discharge of its duty by the Tribunal in each case.

24. In determining whether or not the court should, in the interests of natural justice, supplement procedure laid down in legislation for bodies which are required to act judicially the test is whether that statutory procedure necessarily ought to be supplemented because it is insufficient to achieve fairness and justice. In the Cunningham case dicta to this effect emanating from high authority was cited. Thus McCowan L.J. cited passages from the speeches of Lords Reid, Morris and Wilberforce in Wiseman v. Borneman [1971] AC 297 (H.L.). At p.308B Lord Reid said:

" Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard-and-fast rules. For-a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this .unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation."

At p.309 A-B Lord Morris said:

" The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only 'fair play in action.' Nor do we wait for directions from Parliament. The common law has abundant riches: there may we find what Byles J. called 'the justice of the common law' (Cooper v. Wandsworth Board of Works (1863) 14 C.B.N.S. 180, 194)."

At p.317 F-G Lord Wilberforce said:

" I am not, therefore, satisfied with an approach which merely takes the relevant statutory provision (Finance Act, 1960, section 28(4)), subjects it to a literal analysis and cuts straight through to the conclusion that Parliament has laid down a fixed procedure which only has to be literally followed to be immune from attack, it is necessary to look at the procedure in its setting and ask the question whether it operates unfairly to the taxpayer to a point where the courts must supply the legislative omission."

25. In the Cunningham case Lord Donaldson MR and Leggatt L.J. both cited from the speech of Lord bridge in Lloyd v. McMahon (1987) AC 625 (H.L.). At p.702-3 Lord Bridge said:

" My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well-established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness.''

26. In the light of this high authority the question arises whether due compliance by the Tribunal with the relevant provisions of the Ordinance, (as applied in recent Hong Kong cases) does result in the achievement of justice and the attainment of fairness. Under section 19(1)(b) the Director is empowered to make a removal order against a person on various grounds requiring him to leave Hong Kong. Section 53A(1) and (2) provide:

"53A(1). A person. against whom a removal order has been made by the Director of Immigration or the Deputy Director of Immigration may appeal to the Tribunal against the removal order on the ground that on the facts of his case -

(aa)  he enjoys the right of abode in Hong Kong; or

(a) he has the right to land in Hong Kong under section 8(1); or

(b) he had at the date when the removal order was made the permission of the Director of Immigration to remain in Hong Kong.

(2) A person who wishes to appeal under subsection (1) shall serve written notice of appeal; stating his grounds of appeal and the facts upon which he relies, upon an immigration officer or immigration assistant, within 24 hours of being notified of the' removal order under section 19(5):

Provided that such notice shall not preclude such person from raising other facts prior to the determination of his appeal by the Tribunal and relying upon those facts." (Emphasis supplied)

Section 53D provides for the determination of appeals as follows:

"(1) On an appeal under section 53A against a removal order-

(a) where the Tribunal determines that on the facts of the case as it finds them the appellant -

(ia) does not enjoy the right of abode in Hong Kong; and

(i) does not have the right to land in Hong Kong under section S(1); and

(ii) does not, disregarding the effect of the removal order under section 19(4), have the permission of the Director of Immigration to remain in Hong Kong

it shall dismiss the appeal; and

(b) in any other case it shall allow the appeal and rescind the removal order.

(2) The decision of the Tribunal under this section or section 53C shall be final." (Emphasis supplied)

27. The practice and procedure of the Tribunal is the subject of section 53G which provides:

"(1) The practice and procedure on appeals under section 53A, and of the Tribunal shall be such as.shall be prescribed, and without prejudice to the generality of the foregoing and of section 59, the following matters may be prescribed and provided for under section 59-

(a) the number of adjudicators who shall hear and determine any appeal;

(b) provision as to witnesses and the production of documents similar to that in sections 21 and 22 of the Magistrates Ordinance (Cap. 227);

(ba) provision for the payment of an' allowance to witnesses at a hearing of an appeal similar to that contained in rules made under section 9B of the Criminal Procedure Ordinance (Cap. 221) for the payment of an allowance to witnesses in criminal proceedings before any court;

(c) the hearing of an appeal in the absence of the appellant where he cannot attend by reason of illness or injury or where his attendance would present a threat to the health or safety of other persons at the hearing or in other circumstances; and

(d) provision empowering the Tribunal to allow, if it thinks fit, the appellant and respondent to be represented by counsel or a solicitor.

(2) The Tribunal and any adjudicator may in the discharge of any function under this Ordinance consult any member of a panel of legal advisers to the Tribunal appointed by the Attorney General."

28. These provisions are supplemented by regulation 9A and the Third Schedule of the Immigration Regulations which deal further with matters of procedure and include (in paragraph 13 of the Third Schedule) a requirement that the Tribunal keeps "a summary or record of proceedings in every appeal which comes before it in such form as the chief adjudicator may determine."

29. In Cheung Cheong v. Attorney General [1987] HKLR 356 (C.A.) Silke J.A. (as he then was) commented obiter on the procedure of the Tribunal in the following terms with which I formally concurred at the time:

"I would only wish to add this. The right of appeal conferred by s.53A of the Immigration Ordinance (Cap. 115) is a restricted one. The burden of proof is placed squarely upon an appellant. That appellant must lodge his Notice of Appeal setting out the grounds upon which he relies within twenty-four hours of his being informed of a removal order having been made.

In these circumstances it is necessary where, under the provisions of s.53D, a hearing takes place, that there be evidence placed before the Tribunal and by that I mean, in nearly every case, oral evidence. That was not done here and it is from this that the difficulties, to which my Lord the Vice-President has referred, stem.

Second, the Tribunal is enjoined by s.53D(1)(a) to find facts, for it determines the appeal:

' .... on the facts of the case as it finds them ......

It would seem that the practice has grown up of using a proforma 'Reasons for Decision' wherein such facts as are found by the Tribunal are not set out. For myself, I would have thought it to be the _duty of the Tribunal to, at least shortly, set out the actual facts which it finds and upon which it bases its determination. These matters affect the liberty of the individual and a man is entitled to know upon what basis the Tribunal finds against him." (Emphasis supplied)

30. In Tse Chuk Fuk's case (decided on the 13th April 1987), where the Tribunal had given no reasons for its determination of an appeal and had not stated the findings of fact on which it reached its decision, Godfrey J. applied the above cited dictum of Silke J.A. in quashing the Tribunal's determination and remitting the case to the Tribunal to rehear it and state the facts as it found them. In the course of his judgment Godfrey J. made a number of observations regarding the Tribunal's procedure with which I agree. After citing the dictum of Silke J.A. he said:

" In my judgment, a man is entitled to know upon what basis the Tribunal finds against him, so as to enable him make an informed judgment on the question whether or not he had a proper ground for an application to the Court for a review of the tribunal's decision."

Adverting to the Attorney General's contention in correspondence that the Tribunal was not obliged to give reasons for its determination of an appeal, Godfrey J. observed:

" In my judgment, it is not the failure to give reasons, but the failure to state 'the facts of the case as it finds them' something which, in my judgment, is required by Section 53D, which is objectionable in the instant case."

31. The reasoning of Godfrey J. in Tse Chuk Fuk's case and of Silke J.A. in Cheung Cheong's case was applied by Kaplan J. in In re Sit woo-tung [1990] 2 HKLR 410 where the Tribunal's decision was quashed and a re-hearing before another Tribunal ordered. In that case the applicant's alleged right of abode depended upon his actual or deemed legitimacy and the Tribunal had failed in its determination to address all the relevant issues and the factual matters pertinent to those issues. It is, I think, significant that leading counsel for the applicant had relied on the judgment of Lord Lane in R. v. Immigration Appeal Tribunal, ex parte Khan [1983] 1 QB 790 (C.A.). At the end of a careful judgment Kaplan J. observed (at p.427D):

" I conclude ...... by one further quotation by Lord Lane in the Khan case at page 794.

'The important matter that must be borne in mind by Tribunals in the present type of circumstances is that it must be apparent from what they state by way of reasons first of all that they have considered the point which is at issue between the parties and they should indicate the evidence upon which they come to their conclusions.'

In my judgment it is not enough for it to be said that the applicant will know precisely the grounds which led to the refusal of the appeal when. he applies for judicial review and is given a copy of the notes of' evidence and findings of the adjudicators. These matters, which affect the liberty of the subject, are far too important to be dealt with in. such an haphazard manner."

32. Thus, it seems to me that the proper interpretation and application by the Hong Kong courts of the procedural provisions of the Ordinance, in particular the requirement in section 53D(1)(a) (".... where the Tribunal determines that on the facts of the case as it finds them ....), has demonstrated that these provisions (which exclude any appeal from the Tribunal's determination) provide adequate machinery to ensure that an appellant receives justice and fair treatment by the Tribunal if it complies with the requirements of the Ordinance. It is, in my opinion, implicit from the terms of section 53D(1) that the Tribunal is obliged to articulate findings of fact material to the issues arising in the appellant's case and then to apply the relevant law to those facts in such a manner that it becomes possible for the appellant's advisers to assess whether there are grounds for challenging the Tribunal's determination by way of judicial review.

33. In the end the result is virtually the same as that contemplated by a strong court in Khan's case in relation to a tribunal which was expressly obliged by statute to give reasons for its determination, but, in my judgment, it is not necessary to resort to the reasoning in the Cunningham case to reach that result because justice and fairness do not require any supplementation of the relevant provisions of the Ordinance which are sufficient in themselves.

34. I agree with the reasoning of my Lord Kempster for holding that in the circumstances of the present cases the Tribunal had properly discharged its duty in articulating sufficiently the bases for its determinations in accordance with the spirit and intendment of section 53D of the Ordinance. There is nothing I can usefully add to those reasons. I also agree with my Lord Kempster's reasons for rejecting the arguments of Mr. McCoy in support of the applicants' respondents' notice relating to the role played by the Tribunal's legal adviser in these cases.

Representation:

G.J.X. McCoy (M/s Wong, Hui & Co) for Appellants/Respondents P. Graham and S.H. Kwok (Crown Solicitor) for 2nd Respondent/Appellant