JAMES YAN v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL110/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.110 OF 2009

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BETWEEN

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JUDGMENT

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1.  In these proceedings, the applicant seeks to quash the following three decisions:

(1)   The decision of the Director of Immigration (“the Director”) made on 17 September 2008, vitiating the permission to land granted to applicant on 17 May 1991 and the permission to stay as a dependant of Madam Ngai Suen granted to the applicant on 22 July 1991;

(2)   The decision of the Director on 12 January 2009 that the applicant’s right of abode in Hong Kong was obtained by false representation on his identity and that all permissions to stay in Hong Kong granted to him since 1991 were vitiated; and

(3)   The decision of the Commissioner of Registration (“the Commissioner”) on 4 February 2009, declaring the Hong Kong Permanent Identity Card issued to the applicant to be invalid. 

2.  In his Form 86, the applicant also challenged a decision said to be made by the Director on 19 September 2008.  At the hearing, Miss Ma for the applicant accepted this is a mistake as the Director’s letter dated 19 September 2008 was to invite representations from the applicant on whether his right of abode should be vitiated and did not amount to any decision.

3.  The applicant seeks orders of mandamus to compel:

(1)   The Director to reconsider whether the applicant has right of abode in Hong Kong and whether the permission to stay granted to him should be vitiated; and

(2)   The Commissioner to reconsider the applicant’s eligibility for a Hong Kong Permanent Identity Card.

4.  The applicant also applies for an extension of time to make the judicial review application.

5.  Leave to apply for judicial review was granted on 22 October 2009.  The application for extension of time to apply for judicial review was reserved to the substantive hearing.

The applicant’s entries to Hong Kong

6.  It is the applicant’s case that the name given to him at birth is蔡明楚.  The applicant, however, has given no particulars of his date and place of birth.  According to the applicant, in 1984 he went to the Philippines and obtained through the Philippines Special Investor’s Resident Visa programme: (i) an Alien Certificate of Registration (ACR) no. 11183 and (ii) a Permit to Re-enter the Philippines (PRP) no. 259657. 

7.  According to the information on ACR no. 11183, it was issued to a person named “James Yan”, whose date and place of birth are 19 May 1947 and Baguio of the Philippines.   PRP no. 259657 was likewise issued to a person named “James Yan”.

8.  The record of the Hong Kong Immigration Department (“the Department”) shows that on 28 November 1990, an application for a visit visa to stay in Hong Kong for one month under the identity of James Yan was received from the applicant through the British Embassy in the Philippines.  The application was accompanied by two documents, being ACR no. 11183 and a PRC passport no. 478858 issued by the Embassy of the PRC in the Philippines on 14 August 1986.  The visit visa application was approved by the Director on 8 February 1991.

9.  According to the record of the Department, the applicant had in the meantime on 22 January 1991 entered Hong Kong under the identity of James Yan and on the strength of another PRC passport no. 1338856 also issued by the Embassy of the PRC in the Philippines but on 27 November 1990.  The applicant was permitted to remain on visitor condition on the strength of a transit visa issued by the British Embassy in the Philippines. On 29 January 1991, he departed from Hong Kong.    

10.  In the two PRC passports no. 478858 and 1338856, the holder was stated to be James Yan (蔡明楚) with the date and place of birth being 19 May 1947.

11.  The record of the Department further shows that on 17 May 1991, the applicant entered Hong Kong under the identity of James Yan and on the strength of the PRC passport no. 1338856.  He was permitted to remain on visitor conditions of stay until 17 June 1991 on the strength of a one-month visit visa issued on 13 April 1991 by the British Embassy in Manila.

12.  It is the respondents’ case that on 27 February 1991, the applicant entered Hong Kong under the identity of Cai Mingcong (蔡明聰) and on the strength of another PRC passport no. 857397 issued by the Foreign Affairs Office of the Fujian Province on 3 January 1991.  Based on an employment visa for 12 months, the applicant was permitted to remain on employment condition of stay until 27 February 1992 or two weeks after termination of contract, whichever is earlier.  A Hong Kong Identity Card (HKIC) no. W011095 (A) in the name of Cai Mingcong (蔡明聰) was issued to the applicant.  In the PRC passport no. 857397, the date and place of birth of the holder were stated to be 29 February 1956 and Fujian.

13.  It appears from Form 86 (which the applicant had verified on oath) that the applicant accepts he entered Hong Kong in 1991 with the PRC passport no. 1338856, although it is unclear whether his case is he had used that passport to enter Hong Kong once or twice in 1991.  The applicant however disputes he had entered Hong Kong under the identity of Cai Mingcong (蔡明聰) and on the strength of the PRC passport no. 857397.   

The applicant’s marriages

14.  It is the applicant’s case that in about 1980, he cohabited with Madam Cai Xiaohong (蔡小紅) in Fujian, China, but their relationship broke down in 1990.  Out of their cohabitation, they had four children, being three daughters by the name of Cai Jinchi (蔡金匙), Cai Langxiu (蔡朗秀), Cai Yuanman (蔡圓滿) and one son called Cai Rongyuan (蔡榮元).   All four children were born in Fujian of China with the respective dates of birth being 17 November 1980, 18 August 1982, 12 December 1984 and 5 March 1987. 

15.  According to the applicant, when he was in Hong Kong, he came to know Madam Ngai Suen (魏萱), who is a Hong Kong permanent resident.  On 13 June 1991, the applicant under the identity of James Yan married Madam Ngai at the Eastern Marriage Registry in Hong Kong.   The marriage was dissolved on 11 January 1995 under Divorce Suit no. 6181 of 1994; the decree nisi for which was granted on 24 November 1994.   

16.  The respondents take issue with the applicant’s contention that he only cohabited with Madam Cai in Fujian.  The respondents’ case is that the applicant under the identity of 蔡明聰 (Cai Mingcong) was married to Madam Cai in January 1980 in Fujian and they were divorced on 9 June 1997.  And the four children mentioned in paragraph 14 above were born during their marriage.   

17.  What is not in dispute is that on 5 October 1998, the applicant under the identity of James Yan married Madam Cai in Eastern Marriage Registry in Hong Kong.   Previously on 3 August 1998, they had by a Notice of Marriage given notice to the Director in his capacity as the Registrar of Marriages that they were to solemnize their marriage within three months’ time.   On that occasion, Madam Cai submitted a number of supporting documents, including: (i) a Chinese statutory declaration dated 3 August 1998 made by Madam Cai, in which she stated that between January 1980 and June 1997, she was married to蔡明聰 (Cai Mingcong) , who was born on 29 February 1956 in China; (ii) a Short Particulars of Divorced Person dated 3 August 1998 signed by Madam Cai, in which she stated her marriage with  蔡明聰 (Cai Mingcong)  was dissolved on 9 June 1997, as documented in a Civil Mediation Document (民事調解書) dated 9 June 1997 issued by the People’s Court of Shishi City, Fujian Province (福建省石獅市人民法院); and (iii) the Civil Mediation Document, which stated that 蔡明聰 (Cai Mingcong) and Madam Cai were married in January 1980 in Mainland China, with four children being born during their marriage and that upon the divorce application of蔡明聰 (Cai Mingcong) on 6 June 1997 and through the court’s mediation, the parties had agreed to a divorce with the custody of the children given to Madam Cai. The names and dates of birth of the four children recorded in the Civil Mediation Document are identical to those of the four children whom the applicant said were born as a result of his cohabitation with Madam Cai. 

The applicant’s application for residence in Hong Kong

18.  On 14 June 1991, one day after his marriage with Madam Ngai, the applicant, under the identity of James Yan, submitted an application for residence to join Madam Ngai (which was dated 14 May 1991).  On 22 July 1991, the Director approved the applicant’s application for residence as dependant of Madam Ngai and granted him permission to stay until 4 January 1992.   The applicant applied for a HKIC under the identity of James Yan and was issued with HKIC no. P108434 (1).  Upon his applications for an extension of stay, the applicant’s limit of stay was extended to 4 January 1993, 4 January 1994 and 4 January 1995.

19.  On 22 July 1994, the applicant, under the identity of James Yan, applied for unconditional stay after three years’ residence in Hong Kong.  On 19 August 1994, the Director approved the application for unconditional stay and cancelled the conditions of stay previously imposed on him.  Upon the applicant’s application on 19 August 1994, the Commissioner issued a new HKIC no. P108434 (1) with the residential status code being changed from “C” to “***”, to denote that the applicant enjoyed unconditional stay in Hong Kong. 

20.  By a Deed Poll dated 22 September 1994, the applicant changed his Chinese name from蔡明楚 to 蔡明聰 (Cai Mingcong).  On the same day, the applicant applied, and was given approval by the Commissioner, to change his Chinese name in the registered particulars of HKIC no. P108434 (1).  A new HKIC no. P108434 (1) with the Chinese name as 蔡明聰 (Cai Mingcong) was issued to the applicant. 

21.  As noted above, it was about this period of time that the applicant petitioned for divorce with Madam Ngai, with the decree nisi being granted in November 1994.

22.  On 23 July 1998, the applicant’s application for verification of eligibility for permanent identity card (VEPIC), under the identity of James Yan, was approved by the Director as he had stayed in Hong Kong for a continuous period of not less than seven years since 22 July 1991.  A Hong Kong Permanent Identity Card (HKPIC) no. P108434 (1) in the name of James Yan was issued to the applicant.  A smart HKPIC no. P108434 (1) registered under the identity of James Yan was issued to the applicant on 23 May 2005.

23.  Further, on 18 September 1998, the applicant, under the identity of James Yan, applied for a HKSAR passport.  The application was approved and a HKSAR passport no. H00698826 was issued to him on 24 September 1998.

24.  On 23 November 2001, the Director approved the dependant applications of Madam Cai and the four children.  On 30 November 2001, they entered Hong Kong on the strength of their respective PRC passports and were given permissions to remain as the dependants of the applicant and on time limit of stay up to 21 October 2002.  The permissions of stay were later extended a number of times and the last extension was up to 28 May 2008. Their latest extension applications made on 18 March 2008 were refused by the Director.

Investigations by the Director

25.  From January to March 2004, the Director received several letters of complaints alleging, inter alia, that the applicant had entered Hong Kong under two different identities by using a false PRC passport.   In response to the complaints, the Director carried out a number of investigations and enquiries.

26.  At the request of the Director, the Identification Bureau of the Hong Kong Police Force conducted a comparison of the fingerprints of the holder of HKIC no.W011095(A) (registered under the name of Cai Mingcong) and those of the holder of HKPIC no.P108434(1) (registered under the name of James Yan).  The results were communicated to the Director by a memo dated 29 March 2004 from the Commissioner of Police.  The comparison of the fingerprint records of the applications for the two identity cards shows that the two sets of fingerprints belong to the same person.  What this means is that the holders of the two identity cards, namely, Cai Mingcong and James Yan, are the same person.         

27.  The Director also sought assistance from the Consulate General of the Philippines in Hong Kong.  By letter dated 14 May 2004, the Director requested for verification of the authenticity of the various documents submitted by the applicant and his family members to the Director, including the applicant’s ACR no. 11183 and PRP no. 259697.  The Consulate General gave an interim reply on 4 October 2004, informing the Director that the Philippine Bureau of Immigration had confirmed the authenticity of the immigration certificates issued to the applicant and his family members, but required additional information for the correct identification of James Yan. 

28.  By letter dated 7 October 2004, the Director provided further information to the Consulate General, including copies of the two PRC passport, namely, (i) passport no. 1338856 issued under the name of James Yan on 27 November 1990 by the Embassy of the PRC in the Philippines, and (ii) passport no. 857397 issued under the name of Cai Mingcong on 3 January 1991 by the Foreign Affairs Office of the Fujian Province. 

29.  By letter dated 9 August 2006, the Consulate General of the Philippines in Hong Kong wrote to the Director enclosing a letter of the Philippine Bureau of Immigration dated 12 July 2006.  The material part of the Bureau’s letter states:

“ This is with reference to your letter dated July 03, 2006 for verification of immigration documents issued to JAMES YAN:

       1. Alien Certificate of Registration (ACR) # 11183; and

       2. Permit to Re-enter the Philippines (PRP) #259657

       Mr JAMES YAN, date of birth May 19, 1947 at Baguio City.  Picture appearing per index card on file is different from the picture per Xerox copy of ACR no. 11183 and PRP no. 259657 attached.   Indication of assumed name of JAMES YAN, the foregoing documents are spurious.”

30.  While waiting for the reply from the Philippines authority, the Director also wrote on 23 February 2006 to the Fujian Public Security Bureau to make enquiries on the identity of the applicant, the authenticity of his passports and the marital status of the applicant at the time of his marriage with Madam Ngai in Hong Kong on 13 June 1991.

31.  The Fujian Public Security Bureau replied by letter dated 1 June 2007 and provided the following information about the applicant:

(1) The applicant, also known as 蔡明樹 (Cai Mingshu), was born on 29 February 1956 with household registration at福建省石獅市 (Shishi City, Fujian Province), which was not cancelled.

(2) The applicant married to蔡小紅 (Cai Xiaohong) in 1980 and they had four children, namely, 蔡金匙 (Cai Jinchi), 蔡朗秀 (Cai Langxiu), and 蔡圓滿 (Cai Yuanman) and蔡榮元 (Cai Rongyuan).   

(3) The applicant and Madam Cai underwent a mediation and divorce in the court in Shishi City in June 1997 and custody of the children was granted to Madam Cai.

32.  As to the two PRC passports no. 138856 and 857397, the letter stated that they were not issued by the Fujian Province and the Director was asked to make enquiries to the issuing authorities.

33.  The Director wrote on 5 July 2007 to the PRC Embassy in the Philippines for the verification of the authenticity of the PRC passport no. 1338856.  The Embassy replied by fax dated 31 August 2007, stating that the passport in question was issued by the Embassy on 27 November 1990, based on copy of a PRC passport no. 478856 issued by the Embassy on 14 August 1986 together with ACR no. 11183 and PRP no. 259657.  The letter further states that the Embassy’s file has no record of what documents were submitted when the application for the PRC passport no. 478858 was made in 1986.

34.  In the meantime on 20 October 2005, the applicant was intercepted and detained for enquiry by immigration officers.  He was suspected of two offences, namely, possession and use of forged or unlawfully obtained travel documents and knowingly making a false statement to an immigration officer.  Under caution, he remained silent.  He was later released on bail.  No criminal prosecution was brought against the applicant as the Director considered the evidence was insufficient to prove the suspected offences on a criminal standard.  Since then, the applicant has been placed on recognizance with his HKPIC in his retention.

The decision to vitiate the permissions to land and remain in Hong Kong

35.  On 16 July 2008, the Director wrote to the applicant informing that he was considering vitiating the permission to land and the subsequent permissions to stay granted to the applicant and his family members and the applicant was invited to make representations to the Director within 14 days.  In the letter, after referring to the relevant background facts, the Director informed the applicant that: (i) the Department’s record shows he had entered Hong Kong under the identity of Cai Mingcong; (ii) the Consulate General of the Philippines had confirmed ACR No. 11183 and PRP no. 259657 were forged documents; and (iii) Fujian PSB had confirmed his real identity was Cai Mingcong, he was born in Fujian and he was married to Madam Cai between 1980 and June 1997.  The letter further stated that based on the above information, the Director was of the view that: (i) The permission to enter and remain in Hong Kong granted to the applicant under the identity of James Yan, the approval of his application for residence as dependant of Madam Ngai and the subsequent extensions of stay as well as the applicant’s right of abode were obtained by using a false identity; (ii) The applicant’s marriage with Madam Ngai in 1991 was void as the applicant was by then still validly married to Madam Cai; and (iii) As the applicant’s residence in Hong Kong was obtained by means of false identity, he was not qualified to be the sponsor to his family members.         

36.  The applicant responded to the Director’s letter by letter dated 28 July 2008.  He made the following points:

(1) James Yan and蔡明楚 were his alias.  He denied 蔡明楚was a different person.

(2) He had Madam Cai Xiaohong had cohabited in the Mainland since 1980 and they had four children.  They separated in 1990.  Thereafter he married Madam Ngai Suen and the two of them were divorced in 1994.  In 1997, he reconciled with Madam Cai and he married her in Hong Kong.  Before Madam Cai came to Hong Kong, they had never formally registered for marriage in anywhere.  Accordingly, he had not acted under a false identity and his and his family members’ immigration status were lawfully obtained.

(3) He had stayed in Hong Kong for ten odd years while his family members had stayed for almost ten years.  Their household registrations at the place of origin had been cancelled.  It would be very difficult for the children, who had studied in Hong Kong for many years, to re-adapt to the living environments in the Mainland.  He wished the Director could on humanitarian grounds exercise his discretionary power and allow his family to remain in Hong Kong.

37.  Having considered the representations made by the applicant, the Director remained of the view that the applicant obtained the permissions to enter and remain in Hong Kong by false identity and that the applicant’s marriage with Madam Ngai was void.  By letter dated 17 September 2008, the Director informed the applicant that the permission granted to him to enter Hong Kong on 17 May 1991 and the permission to remain in Hong Kong as dependant of Madam Ngai on 22 July 1991 were vitiated, and he was regarded as having entered and remained in Hong Kong unlawfully.  The letter also indicated that the permissions given to Madam Cai and their four children to enter and remain in Hong Kong were vitiated and they too were regarded as having entered and remained in Hong Kong unlawfully.

The decision to vitiate the right of abode

38.  By another letter dated 19 September 2008, the Director indicated that as his permissions to enter and remain in Hong Kong were obtained by using a false identity and were vitiated, his residence in Hong Kong was unlawful and could not be treated as ordinary residence such that the applicant was not eligible under paragraph 2(b) or other sub-paragraphs of paragraph 2 of Schedule 1 to the Immigration Ordinance to be a Hong Kong Permanent Resident or enjoy the right of abode in Hong Kong.  The Director further informed the applicant he was considering to declare his HKPIC no. P108434 (1) invalid and the applicant was invited to make representations within one month.

39.  The applicant through his solicitors herein made representations by letter dated 10 December 2008.  Apart from reiterating what the applicant had said in the previous letter of 28 July 2008, the letter also recounted the applicant’s entry to Hong Kong in 1991, his marriage with Madam Ngai in the same year and the subsequent divorce, the extension of stay and unconditional stay granted to him, the issue of HKPIC to him and the change of Chinese name from蔡明楚 to 蔡明聰by Deed Poll.  In addition, the letter stressed the following points:

(1)     The applicant only married Madam Cai in Hong Kong on 5 October 1998.  Their cohabitation in the Mainland did not constitute a legitimate marriage.  In support of this contention, a Chinese Opinion (見議書) by a Mainland lawyer (陳建忠) was attached.

(2) As to the authenticity of ACR no. 11183 and PRP no. 259657, reference could be made to a certification of authenticity issued by the Philippine Bureau of Immigration on 22 October 2008 apostilled by the Chinese Consulate on 19 November 2008.  The certification was attached to the letter.

(3) The Chinese Opinion (見議書) and the certification were provided by the applicant and the solicitors were not in a position to prove the authenticity thereof.

40.  The Chinese Opinion (見議書) stated that a certificate Xiaohong issued by the Village Committee of Linshi Village, Lingsiao Town in Shishi City on the marital status of 蔡明聰 (Cai Mingcong) and Cai proved that the two of them began cohabitation in January 1980, but had not registered the marriage in accordance with the PRC Marriage Law, thus it was not a valid marriage.  Although the Chinese Opinion stated that the Village Committee’s certificate was attached to it, it had no attachment when it was received by the Department.  The applicant had also not exhibited copy of this certificate in these proceedings.

41.  As to the certification of authenticity from the Philippine Bureau of Immigration, it made reference to ACR no. 11183 and PRC passport no. 1338856.

42.  After considering the representations made by the applicant’s solicitors, the Director remained of the view that the applicant’s HKPIC should be declared invalid.  The Director considered the reply from Fujian PSB dated 1 June 2007 was much more reliable than the Chinese opinion and that the applicant’s marriage with Madam Ngai was void since the applicant was then still married to Madam Cai.  The Director also considered the certification issued by the Philippine Bureau of Immigration added nothing new because it did not appear to have examined the pictures on the ACR and PRP and compared them to the pictures on record.

43.  By letter dated 12 January 2009, the Director informed the applicant’s solicitors that he still considered the applicant’s right of abode in Hong Kong based on his continuous ordinary residence since 1991 was obtained by false representation on his identity while all the permissions to stay in Hong Kong granted to him since 1991 had been vitiated.

The decision to declare the HKPIC invalid

44.  By letter dated 4 February 2009 to the applicant, the Commissioner declared the HKPIC no. P108434 (1) invalid and requested the applicant to return it to the Registration of Persons Department within 30 days.  The applicant was also informed of his right to appeal to the Registration of Persons Tribunal within 90 days.

45.  The applicant was invited, through his solicitors, to attend the Registration of Persons Office so that the letter dated 4 February 2009 could be served on him.  As he did not turn up on the appointed day, another letter enclosing the Commissioner’s letter dated 4 February 2009 was sent to the applicant’s solicitors by registered mail on 17 March 2009, requesting the applicant to return his HKPIC as soon as possible. Subsequently, the applicant was intercepted at Lo Wu Control Point when he intended to use the invalidated HKPIC for clearance upon arrival.  The HKPIC was impounded and the applicant was later released on recognizance.

The application for judicial review

46.  On 20 October 2009, the applicant commenced these proceedings to judicially review the 1^st, 2^nd and 3^rd Decisions.  The grounds for challenge are that the decisions are Wednesbury unreasonable and procedurally unfair.  The applicant also seeks an extension of time for making the application.

First challenge: Wednesbury unreasonable

47.  The applicant says the decisions are Wednesbury unreasonable in that there is no or no sufficient evidence to prove that: (i) the ACR no. 11183 and PRP no. 259657 are forged documents; and (ii) a marriage subsisted between the applicant and Cai Xiaohong when the applicant married Madam Ngai on 13 June 1991.  The applicant also complains that the Director and the Commissioner had failed to take into account relevant considerations, namely, the Chinese Opinion given by the Chinese lawyer and the certification of authentication issued by the Philippine Bureau of Immigration, both of which were provided by the applicant in his solicitors’ letter dated 10 December 2008.  Pausing here, it is to be observed that these two documents were provided to the Director after he made the first decision under challenge.  The complaint of failure to take these documents into account is therefore only relevant to the second and third decisions under challenge.

48.  In contending there was no or insufficient evidence to show that the applicant’s ACR and PRP were forged documents and that the applicant was validly married to Madam Cai when he married Madam Ngai in 1991, the applicant is in essence challenging the findings of fact made by the Director and the Commissioner.  The relevant legal principles in this regard are as summarized in Wade & Forsyth: Administrative Law (10^th edition, 2009) pp.229-230 as follows:

“Findings of fact are traditionally the domain where a deciding authority or tribunal is master in its own house. Provided only that it stays within its jurisdiction, its findings are in general exempt from review by the courts, which will in any case respect the decision of the body that saw and heard the witnesses or took evidence directly. Just as the courts look jealously on decisions by other bodies on matters of law, so they look indulgently on their decisions on matters of fact.

But the limit of this indulgence is reached where findings are based on no satisfactory evidence. It is one thing to weigh conflicting evidence which might justify a conclusion either way, or to evaluate evidence wrongly. It is another thing altogether to make insupportable findings. This is an abuse of power and may cause grave injustice. At this point, therefore, the court is disposed to intervene.

‘No evidence’ does not mean only a total dearth of evidence. It extends to any case where the evidence, taken as whole, is not reasonably capable of supporting the finding; or where, in other words, no tribunal could reasonably reach that conclusion on that evidence.” 

49.  Generally speaking, the court in its supervisory jurisdiction is cautious and extremely slow to review findings of facts made by a tribunal.  It is within the domain of the decision making tribunal to weigh and evaluate the materials and evidence before him and to come to a considered view on the facts.  Hence, in challenging findings of facts made by the tribunal, an applicant has to demonstrate that no tribunal could reasonably make that finding on the available evidence.     

50.  In the present case, on the question of whether ACR no. 11183 and PRP no. 259657 are forged documents, the direct evidence available to the Director are the 12 July 2006 reply from the Philippine Bureau of Immigration stating that the picture in the index card on file is different from the picture appearing on ACR no. 11183 and PRP no. 259657, that there is indication of the name of James Yan being assumed by someone and that the two documents in question are spurious.  There is at the same time the fingerprint comparison results of the Identification Bureau of Hong Kong Police, which shows that the applicant had used two different identities to enter Hong Kong, namely, (i) James Yan (蔡明楚subsequently changed to 蔡明聰) born on 19 May 1947 in Baguio City in the Philippines, and (ii) Cai Mingcong (蔡明聰) born on 29 February 1956 in Fujian province in Mainland China.  The Director also had before him the findings of the Fujian Public Security Bureau that the applicant’s true name is蔡明聰 (also known as 蔡明樹), that he was born in Fujian on 29 February 1956 with household registration at福建省石獅市 (Shishi City, Fujian Province), married to Cai Xiaohong in 1980 and had four children.      

51.  Plainly, it is open to the Director to accept and act on these materials and evidence.  In respect of the information received from the Philippine Bureau of Immigration and the Fujian Public Security Bureau, the authorities had established that the Director is entitled to accept and act on the facts and conclusions stated in the letter of an overseas authority: Wong Ka Hin v. Director of Immigration, unreported, CACV 1937/2001 (25 January 2005);  Tsui Siu Wai v. Director of Immigration, unreported, HCMP 1665/1994 (6 December 1994) and Li Fu Shan v. Director of Immigration [2002] 4 HKC 284, (2002) 10 HKPLR 409. 

52.  Miss Ma in her submissions questioned why the Philippines authority said that the ACR and PRP in question were spurious documents.  As a matter of law, by reason of the doctrine of presumption of regularity, the Director is entitled to act on the presumption that the overseas authority had conducted proper investigations before coming to its conclusions: see Choi Ka Tak  v. Director of Immigration, unreported, HCAL 97/2007 (23 July 2008).   That aside, the letter of the Philippine Bureau of Immigration had in its letter stated the reason for its conclusion, namely, the picture on its file and that appearing on the ACR and PRP in question are different and there is indication that someone had assumed the identity of James Yan.  Miss Ma also argued that the difference in the pictures might have been because the pictures were taken at different time.  This is speculative and there is no proper evidential basis to support it. 

53.  In my view, on the information received from the Philippine Bureau of Immigration, the Director is entitled to come to the view that ACR no. 11183 and PRP no. 259657 are forged documents.  Indeed, having regard to all the available materials and evidence, there is ample room for the Director to conclude that the applicant had obtained the permissions to land and remain in Hong Kong by using a false identity and by means of forged or unlawfully obtained travel documents.  In particular, it is relevant to note that the applicant’s case is that he had cohabited with Madam Cai since 1980 and they had four children, who were all born in Fujian.  However, as shown on ACR no. 11183, James Yan was born in Baguio City in the Philippines in 1947.  It is unclear how, on the applicant’s case that he was born James Yan, he would come to be living in the Mainland since 1980 until at least 1987 when the youngest of the four children was born.  As noted above, the applicant has said nothing as to his date and place of birth.     

54.  In respect of the certification that the applicant obtained from the Philippine Bureau of Immigration, the Director considered that this certification did not add anything new since the Philippine Consulate General in Hong Kong already by letter dated 4 October 2004 confirmed the authenticity of ACR no. 11183 and PRP no. 259657.  The subsequent conclusion of the Philippine Bureau of Immigration that the two documents were spurious was as a result of comparison of the pictures on the two documents and that kept in the records of the Philippine authority.  The Director noted that the certification provided by the applicant did not indicate an examination of the pictures on the documents had been carried out by the relevant Philippine authority.  The Director therefore did not consider the certification is sufficient to cause him to take a different view on the matter.  Accordingly, he maintained his view that the applicant’s permissions to land on 17 May 1991 and the subsequent permissions to remain were obtained by means of forged or unlawfully obtained travel documents.

55.  It is therefore not a case that the Director and/or the Commissioner did not have regard to the certification.  On the contrary, he had considered the certification but decided not to give weight to it or to act on it.  This is a conclusion that the Director and/or the Commissioner is plainly entitled to and which the court in its supervisory role will not intervene. 

56.  As to the question of whether the applicant was validly married to Madam Cai when he married Madam Ngai in 1991, the Director had considered the Civil Mediation Document which recorded that Cai Mingcong and Cai Xiaohong were married in Fujian in 1980, but were divorced by agreement in June 1997; the Short Particulars of Divorced Person dated 3 August 1998 signed by Madam Cai, which stated that her marriage with Cai Mingcong was dissolved on 9 June 1997 as per the Civil Mediation Document; and the  Statutory Declaration of Madam Cai dated 3 August 1998, declaring that between January 1980 and June 1997, she was married to Cai Mingcong, who was born in China on 29 February 1956. All these documents were supplied by Madam Cai to the Director in his capacity as Registrar of Marriages on 3 August 1998 when she and the applicant gave notice of their intended marriage.  There is in addition the letter from the Fujian Public Security Bureau dated 1 June 2007, stating that the applicant and Madam Cai were married in 1980 and underwent a divorce in June 1997.  Further, the Director had the fingerprint comparison results from the Hong Kong police, which prove Cai Mingcong and James Yan are the same person.

57.  Miss Ma submitted that the Short Particulars of Divorced Person, the Statutory Declaration and the Civil Mediation Document were made out and/or submitted by Madam Cai alone and not by the applicant.  This is immaterial.  They are materials available to the Director and the Commissioner and they are entitled to have regard to them when considering the applicant’s marital status at the relevant time.  After all, these documents were provided on the occasion and for the purpose of giving notice of intention to solemnise a marriage between the applicant and Madam Cai.  There is nothing before the Director or in these proceedings to suggest that these documents are doubtful, unreliable or otherwise should not be acted upon by the Director and/or the Commissioner.  Indeed, it is difficult to see why Madam Cai would consider herself to have been married and later divorced, and further took the trouble of filling out the Short Particulars of Divorced Person, making the statutory declaration and also supplying the Civil Mediation Document, if she had only cohabited with the applicant between 1980 and 1997.

58.  As for the criticism that the Director and the Commissioner when making the second and third decisions did not take into consideration the Chinese Opinion (見議書) by a Mainland lawyer, the Director (and also the Commissioner) was of the view that the information on the applicant’s marital status provided by the Fujian Public Security Bureau was more reliable than what was stated in this Chinese Opinion.  As noted above, the views expressed in this Chinese Opinion were based on a certificate from the Village Committee.  This certificate however was neither given to the Director nor in evidence in these proceedings.  It is pertinent to note that the applicant’s solicitors had stressed in their letter dated 10 December 2008 that they were not in a position to prove the authenticity of the Chinese Opinion and also the certification of the Philippine Bureau of Immigration.  In these circumstances, the Director and the Commissioner must be entitled to take the view that these documents are not to be relied or acted upon.  The applicant’s complaint that the Director and the Commissioner had failed to take into account the Chinese Opinion, hence relevant considerations, is not made out.

59.  In my view, there is an abundance of materials and evidence on which the Director and the Commissioner can justifiably conclude that the applicant and Madam Cai were validly married in the Mainland when the applicant married Madam Ngai in Hong Kong in June 1991.  It can hardly be said that no reasonable tribunal would have come to this view.

60.  For these reasons, the first challenge fails.           

Second challenge: Procedural unfairness

61.  The applicant’s second ground of challenge is that neither he nor his solicitors had been provided with evidence showing ACR no. 11183 and PRP no. 259657 are forged documents and also the existence of a valid marriage between the applicant and Madam Cai in 1991.  It is said that the letters communicating the decisions consist only of bare assertions and the underlying materials were not provided to the applicant to enable him to make representations on them.  Relying on the decision of Ooi Yen Khim v. Immigration Tribunal [2008] 4 HKC 271, (2008) 13 HKPLR 331, the applicant argues that the failure to make disclosure amounts to procedural unfairness.

62.  In Chu Ping Tak Tim v. Commissioner of Police [2002] 3 HKLR 679, Deputy Judge A Cheung (as he then was) summarised the court’s approach to  a complaint of failure to disclose documents or materials as follows:

“59. In my judgment, the position is as follows. Faced with a complaint based on non-disclosure of documents or material, the Court's task in a judicial review is, first, to determine whether as a matter of fairness and natural justice, the documents or material ought to have been disclosed to the applicant by the decision-making body so as to afford the applicant an opportunity to respond to the documents or material. At this first stage, it is not necessary for the applicant to establish prejudice as a ground of judicial review: Boddington v British Transport Police [1999] 2 AC 143, 174D-E (cited with approval in Leung Fuk Wah Oil at p 16, para 40).

60. Secondly, if the Court comes up with an affirmative answer to the first question, it should proceed to the second stage of the matter by considering whether to exercise its discretion to quash the decision of the decision-making body below or grant some other appropriate relief, if any. At this second stage, the fact that there has been (ex hypothesi) a breach of procedural fairness is, of course, by itself a relevant and indeed a weighty consideration to be taken into account. However, at this second stage, the absence of prejudice, if such is the case, is also a relevant factor to be taken into account: Boddington (supra); and Leung Fuk Wah Oil. In fact, as is demonstrated by the actual decision in Leung Fuk Wah Oil, if the non-disclosure did not produce a substantial prejudice to the applicant whatsoever, it would seem that the discretion of the Court would most likely, if not inevitably, be exercised against the grant of any relief: See p 27, para.76 of the judgment, where the Court of Appeal observed that:

‘Judicial review being a discretionary remedy, if Mr Leung does not, as a matter of substance, suffer prejudice, then the failure to observe the principle of fairness should not be a ground for quashing the decision.’ ”

63.  In the present case, the Director did not at the time of inviting representations from the applicant, supply to him the letter from the Philippine Bureau of Immigration and also the letter from Fujian Public Security Bureau.  However, the Director had in his letter dated 16 July 2008 informed the applicant that: (i) ACR no. 11183 and PRP no. 259657 were confirmed to be forged documents by the Philippine Consulate General; (ii) The Fujian Public Security Bureau had established that the applicant’s true identity is Cai Mingcong and he married Cai Xiaohong in 1980 and later divorced her on 9 June 1997; and (iii) further the records of the Department revealed the applicant had entered Hong Kong in 1991 under a different identity and was issued a HKIC under the name of Cai Mingcong.  The Director had therefore made known to the applicant the factual basis for his views on the applicant’s true identity, the genuineness of his ACR and PRP and also his marital relationship with Madam Cai.  The applicant and his legal advisers should be left with no doubt that the Director was drawing on information received from the Philippine and the Fujian authorities and also the gist of the information received.  Further, the Director’s view that the applicant was validly married to Madam Cai in 1991 was also based upon the several documents supplied by Madam Cai in 1998 to him in his capacity as Registrar of Marriages.  There is no evidence from the applicant to say that he was not aware of these documents, especially the Civil Mediation Document.  It would be surprising for him to say so, considering that the documents originated from Madam Cai, who is his wife and stands also to be affected by any decision to vitiate the permissions granted to the applicant to land and remain in Hong Kong. 

64.  Indeed, the applicant’s understanding of the Director’s case against him is clearly borne out by the fact that he had, after receiving the Director’s letter, gone to procure the certification of authenticity from the Philippine Bureau of Immigration and also the Chinese Opinion from a Mainland lawyer so as to rebut the information received by the Director.  Admittedly, he also sought legal assistance.  If the applicant or his solicitors did not know what case to meet or considered it necessary to see the underlying documents before making representations to the Director, one would expect them to ask for copies of the underlying documents.  No such request was made.           

65.  In my view, this is not a case where the principles of fairness and natural justice require the Director to have supplied to the applicant the copies of the letters received from the Philippine and Fujian authorities and other underlying documents upon which he based his findings of facts, in order that the applicant may respond to them and/or properly deal with the case against him. 

66.  As to the case of Ooi Yen Khim v. Immigration Tribunal, supra, on which the applicant seeks to rely, it is a case in which the Immigration Tribunal dismissed the applicant’s appeal without a hearing, relying only on a summary of facts provided by the Director of Immigration. There was therefore no opportunity for the Tribunal and the applicant to review and comment on the primary documents and underlying evidence relied upon by the Director of Immigration.  In quashing the Tribunal’s decision, Reyes J held that the Tribunal was obliged to make an independent assessment of the relevant facts and it would not be sufficient for it to adopt and accept the assertions in the Director’s summary of facts: [2008] 4 HKC 271, 279 at paras.24-25. Reyes J went on to observe that (at paras. 26-28):

“26. Ms. Ooi was similarly not provided with the evidence underlying the Director’s conclusions in the Summary. All she had was the Summary.

27. She was not in a position to comment on the unparticularised ‘information’ mentioned in the Summary. She could not (say) make submissions on whether such evidence was hearsay, whether any weight such be put on the material, or simply whether such material even taken at face value supported any conclusion being asserted.

28. It is true that she made no representations to the Immigration Department. But I am unable to infer much from her silence. This is because I doubt whether, the underlying “information” not having been provided to her, she was in a position to make any meaningful representations.

29.  The denial of the underlying material was in my view procedurally wrong. It was unfair and so a denial of natural justice.”

67.  As analysed in paragraphs 63 to 65 above, the present case is very different. 

68.  Even if it can be said that fairness and principles of natural justice require the Director to disclose to the applicant the letters from the Philippine and the Fujian authorities, I do not consider that the court should exercise its discretion to grant relief to the applicant.  This is because the applicant has not shown what he could and would have said in response to the underlying documents, if the Director had made disclosure of them when inviting him to make representations.   The applicant has not in these proceedings in any way responded to the underlying documents. It seems therefore the applicant had in his previous representations said all he could and wished to say in reply to the Director’s case.  The non-disclosure has therefore caused no prejudice to the applicant; and the  failure to observe procedural fairness should not afford a ground for quashing the decisions.       

69.  In the circumstances, the second ground of challenge also fails. 

Alternative avenues not exhausted

70.  In light of my conclusions on the grounds of challenge, it is not necessary to find on the respondents’ argument that the court should refuse to grant relief to the applicant as he has failed to exhaust the statutory avenues of appeal before making this judicial review application.  I need only observe that the explanations given by the applicant for not pursuing a review of or appeal against the impugned decisions (which the same as his reasons for the delay in making this judicial review) are neither satisfactory nor sufficient to amount to exceptional circumstances for the court to exercise discretion to grant remedy.   

Extension of time to apply for relief

71.  I turn finally to deal briefly with the application to extend the time for apply for judicial review.  There had been a lapse of some eight months between the date of the last decision impugned (4 February 2009) and the commencement of these proceedings (19 October 2009).  The applicant explained that as a businessman, he had spent most of his time working in the Mainland.  Although he had sought advice from solicitors, due to language barrier, he had failed to understand the advice given.  Further, between December 2008 and August 2009, he was able to travel between Hong Kong and the Mainland without any problem.  He therefore mistakably believed that the decisions did not have any legal effect.  It was until 18 September 2009 he was intercepted and detained at Lo Wu Immigration control point that he realised the gravity of the matter.  After obtaining legal advice, he immediately commenced these proceedings.   

72.  In my view, these explanations can hardly amount to good reasons for the court to extend time for making the application.  The delay is primarily caused by the applicant’s conscious decision to afford greater priority to his business instead of dealing expeditiously and carefully with the subject matter of this application.      

Conclusion

73.  By reason of the above matters, the applicant’s application for  judicial review is dismissed.  I also make an order nisi that the applicant pays the respondent the costs of these proceedings, to be taxed if not agreed.