RE DAVID PANNICK QC

HCMP 2374/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MICELLANEOUS PROCEEDINGS NO. 2374 OF 2003

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BETWEEN

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REASONS FOR DECISION

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The application

1. By a Notice of Motion dated 5 June 2003, the Applicant sought admission under section 24(4) of the Legal Practitioners Ordinance Cap. 159 to advise and appear on behalf of the Director of Immigration in relation to an application for leave before the Court of Final Appeal made pursuant to section 24 of the Hong Kong Court of Final Appeal Ordinance Cap. 484. This application is due to be heard by the Appeal Committee on 17 July 2003.

2. The leave application (necessitated by the refusal of leave to appeal by the Court of Appeal on 21 March 2003) arises out of judicial review proceedings taken out by one Lau Fong ("Ms Lau") against the Director of Immigration seeking to quash three decisions made by him in October 1999. I shall presently deal with the issues that were before the Court of Appeal and which will arise in the leave application.

3. The application for admission was opposed by the Hong Kong Bar Association. At the hearing before me on 26 June 2003, Mr William Marshall SC appeared for the Applicant and Mr Richard Khaw appeared for the Hong Kong Bar Association. Ms Jenny Fung represented the Secretary for Justice and although I did not need to call upon her to make submissions, she did provide a helpful skeleton submission. The position of the Secretary for Justice in the present application was that she was neutral.

4. After hearing submissions from Mr Marshall and Mr Khaw, I made an order admitting the Applicant for the purposes of advising and appearing for the Director of Immigration in FAMV 14 of 2003 (that is, the leave application to which I have referred). I also said that I would hand down the reasons for my Decision at a later date.

The matter for which the Applicant seeks admission

5. I must first put the application for admission in context by setting out the issues likely to arise out of the leave application before the Appeal Committee of the Court of Final Appeal.

6. The facts surrounding Ms Lau's application for judicial review are contained in the Judgment of Hartmann J dated 29 June 2000 at First Instance and in the Judgment of Rogers VP dated 13 December 2002 in the Court of Appeal (with which Woo JA and Sakhrani J agreed). Insofar as they are relevant to the leave application, they can be stated as follows:

(1) On 23 December 1995, Ms Lau entered Hong Kong on the strength of what is known as a "One-Way Permit" issued by the Bureau of Exit Entry Administration of the Ministry of Public Security of the PRC. This Permit was said to have been issued on 21 November 1995. The basis for the One-Way Permit being granted seems to have been that Ms Lau's husband, said to be one Leong Wai Ming ("Mr Leong") was a Hong Kong permanent resident. They were later divorced in about 1998, it would appear.

(2) Not having the right of abode when she entered Hong Kong (as defined by Article 31 of the Basic Law and section 2A of the Immigration Ordinance Cap. 115), Ms Lau required permission from the Director of Immigration to remain in Hong Kong.

(3) Initially, she was given permission to remain in Hong Kong for 12 months pursuant to the exercise of powers under sections 7 and 11 of the Immigration Ordinance. Further extensions were later given, the last being one up to 9 January 2003. She was also given a Hong Kong Identity Card and a Certificate of Identity.

(4) While residing in Hong Kong under the permission granted by the Director of Immigration, Ms Lau frequently travelled to and from the Mainland.

(5) On 5 September 1999, she travelled to the Mainland. On 4 October 1999, when she was crossing the border at Lowu back to Hong Kong, Ms Lau was stopped by Immigration officers. She was refused permission to land under section 11 of the Immigration Ordinance and was detained under section 32 of that Ordinance as well. On 6 October 1999, she was given a document headed "Authorisation for Detention under Section 32(1)(a)" stating that she would be detained for two months pending her removal from Hong Kong. On the same day, she was told that she would be removed from Hong Kong.

(6) The basis for the Director of Immigration's actions (comprising the three decisions as aforesaid) was that it was suspected that the One-Way Permit that had been used to enable her to arrive and stay in Hong Kong, had been obtained illegally. Specifically, the suspicion was that the marriage to Mr Leong was a sham. The Director of Immigration had for some time been carrying out investigations into the status of Ms Lau's marriage to Mr Leong. During the course of such investigations, the Director had received a letter dated 28 June 1999 from the Ministry of Security in Beijing informing him that Ms Lau had obtained the One-Way Permit by fraud. It should be pointed out as part of the relevant context here that Ms Lau had earlier made an illicit attempt to gain entry into Hong Kong in 1993. At that time she arrived from Bangladesh using a passport apparently from that country in the name of Uasha Chakma. She claimed then to have been married to Mr Leong in Bangladesh, in total contrast to what she told immigration officials in 1996 that she had married Mr Leong in the PRC in April 1990. The Bangladesh passport was a forgery.

7. The application for judicial review was dismissed by Hartmann J in a judgment handed down on 29 June 2000. The learned judge held against Ms Lau on a number of grounds. Principal amongst these was that the decisions made by the Director of Immigration were not Wednesbury unreasonable. The Wednesbury principles applied because, according to the learned judge, the Director of Immigration was, in October 1999, in the position of being able to decide whether or not to allow Ms Lau to enter Hong Kong and if so, on what conditions, pursuant to the exercise of his powers under section 11 of the Immigration Ordinance. He held against her submission that the case of R v Home Secretary ex parte Khawaja [1984] AC 74 was applicable insofar as that case dealt with the burden and standard of proof required for establishing fraud in a certain immigration cases. This was because, unlike one of the applicants in Khawaja, Ms Lau had not already entered Hong Kong nor was she entitled to do so at the relevant time. Hartmann J came to this view on the basis that whatever permission Ms Lau had been given to remain in Hong Kong following her entry here in December 1995 (see paragraph 6(1) above), this had expired as soon as she left Hong Kong to go to the Mainland in September 1999 by reason of section 11(10) of the Immigration Ordinance. In this regard, the learned judge referred to his own decision in Director of Immigration v Gurung Kesh Bahadur.

8. The Court of Appeal, in a judgment handed down on 13 December 2002, allowed Ms Lau's appeal and reversed Hartmann J's decision. The three decisions of the Director of Immigration were as a result quashed. By the time the appeal was heard, Bahadur had already been determined by the Court of Final Appeal (judgment was given on 30 July 2002). This accounted for the delay in the Court of Appeal hearing Ms Lau's appeal.

9. The Court of Appeal's decision placed much emphasis on the effect of the Court of Final Appeal's decision in Bahadur. The conclusion reached was that Ms Lau was to be treated as someone who, like the applicant in Bahadur, was merely exercising her right of travel as a resident of Hong Kong, albeit a non-permanent one. Accordingly, the principles of Khawaja applied and the Court of Appeal held in effect that Ms Lau could not be deprived of her status in Hong Kong without a proper hearing directed to the issue of the circumstances of her alleged fraud. As Rogers VP said in paragraph 12 of the judgment, "It is the method of establishing the existence of those circumstances which is important in the present case". The Court of Appeal thought that sections 19(1)(b)(ii) and (iia) gave to the Director of Immigration adequate power to investigate and deal with any fraud on the part of Ms Lau, although if he did exercise such powers, there would then be appropriate procedures for Ms Lau to challenge such exercise.

10. On 21 March 2003, the Court of Appeal refused the Director of Immigration's application for leave to appeal to the Court of Final Appeal. It did not consider that there was involved any question of great general or public importance or otherwise.

11. It is in these circumstances that the application for leave to appeal is due to be heard by the Appeal Committee on 17 July 2003.

12. In the Notice of Motion seeking leave from the Court of Final Appeal, the issues of whether there exists any point or points of great general or public importance or otherwise are expanded into some 18 paragraphs. However, for present purposes, I need only refer to 3 of such paragraphs:-

"2. The issue is whether the immigration authorities are obliged to re-admit to Hong Kong a person claiming to be a non-permanent resident returning during the currency of a purported previous leave when his or her initial entry and limit of stay, subsequent limits of stay, and, in addition, his or her status as a non-permanent resident, are all based on fraud.

.........

12. However, the present case raises an important question not considered in Bahadur (because it did not arise on the facts): may the immigration authorities refuse to re-admit to Hong Kong a person claiming to be a non-permanent resident returning during the currency of a previous limit of stay if her previous limit of stay and her status as a non-permanent resident are based on fraud?

.........

17. The Director of Immigration summarises the above issues which will fall to be considered and decided in the Court of Final Appeal, if leave is granted, as follows:

(1) Whether the immigration authorities are obliged to re-admit Madam Lau under Article 31 of the Basic Law when her previous purported leave and the issue of her Hong Kong Identity Card resulted from and were based on fraud.

(2) Whether as a matter of construction Madam Lau can rely on a 'status' obtained by fraud when she was not 'qualified' to receive that status 'in accordance with the laws of the Region' (Articles 24 and 31 of the Basic Law).

(3) Whether, in the alternative, the Director of Immigration can rely on the common law principle that a person cannot take advantage of their own fraud.

(4) Whether the Director of Immigration may lawfully choose to apply sections 4, 11 and 18 of the Immigration Ordinance (Cap. 115) or whether his powers are confined to those specified in section 19."

13. In practical terms, the point said to be one of great general or public importance can be stated as follows:-

(1) Can the Director of Immigration, using the provisions of sections 4, 11 and 18 of the Immigration Ordinance, refuse entry to a non-permanent resident who has an identity card and who had earlier been granted permission to remain in Hong Kong (and therefore prima facie the right to re-enter Hong Kong:- see Bahadur), on the basis that the initial entry into and permission to remain in Hong Kong which gave rise to the obtaining of the identity card, were based on fraud?

(2) Or must the Director of Immigration allow that person to enter Hong Kong first and then take whatever appropriate measures under section 19 of the Immigration Ordinance?

The applicable principles

14. As I said recently in Re McGregor QC, unreported, HCMP 1692/2003, 9 June 2003, the relevant principles regarding admission of overseas counsel are contained in cases like Re Flesch QC [1999] 1 HKLR 506.

15. The only aspect that is relied upon by the Applicant in the present case is what one can loosely term the "Court of Final Appeal" ground. In Flesch QC, Chan CJHC (in the context of an application for admission to appear in a tax case in the Court of First Instance) emphasised the weight that a court will attach to an application for admission where the relevant case involved the determination of principles that might have a substantial impact on Hong Kong jurisprudence and which may likely end up in the Court of Final Appeal:- see 513I-514B, 516B-C (at paragraph (6)). The word "substantial" does not appear in the judgment of Chan CJHC but it is in my view implicit.

16. The factor I have just referred to in the previous paragraph, applies to hearings at all levels of Hong Kong's judicial system. However, what should also not be forgotten is the particular importance placed by Chan CJHC in Re Flesch on the Court of Final Appeal as being itself an independent factor:- see 510C-E, 511F-512B, 513B-E, 515H-I (at paragraph (3)). Here, quite apart from important principles of law that would impact substantially on Hong Kong jurisprudence, the following points should be noted:-

(1) The Court of Final Appeal is at the pinnacle of Hong Kong's judicial system. Just as the Judicial Committee of the Privy Council represented Hong Kong's highest court before 1 July 1997, so the Court of Final Appeal has this status now.

(2) The Court of Final Appeal, like its counterparts in the United Kingdom, Australia and New Zealand (amongst other jurisdictions), has an important, if not pivotal, role in the development of the common law worldwide. The decisions of this Court in the law of libel (Cheng v Tse Wai Chun (2000) 3 HKCFAR 339), in the law of limitation (Bank of East Asia v Tsien Wui Marble Factory Limited (1999) 2 HKCFAR 349) and in the Right of Abode cases, provide ready examples of this.

(3) It is therefore right as a matter of principle that the Court of Final Appeal should have available to assist its deliberations at least the same pool of counsel that was available to the Judicial Committee of the Privy Council prior to 1 July 1997. In fact, I can see the force of the argument that perhaps the pool should be even larger, provided of course only overseas counsel of the highest calibre appears in that court.

(4) Accordingly, in my view, where a hearing before the Court of Final Appeal is involved, the court will be more, rather than less, inclined than at any other level to admit overseas counsel. This is provided of course that the matter is one that is substantial and in which overseas counsel is able to contribute significantly by reason of his expertise. An application, say, for an extension of time would rarely meet these criteria.

17. What I have just said does not in the least undermine the importance of a strong and independent local Bar. Indeed, I believe that the Hong Kong Bar will not only benefit from the contribution that overseas counsel have made in the past (and in the future), but will be strengthened by it.

18. Much emphasis was laid by Mr Khaw on the fact that the hearing for which the Applicant seeks to be admitted is only an application for leave to appeal. Put like that, the matter may seem superficially too simple to require the input of overseas counsel. However, the court must always look at the nature of the application and the issues that arise from it. An application for leave before the Court of Final Appeal is nonetheless still a matter (and usually a substantial one) before that court.

19. With these principles in mind, I now approach the present application.

The present application

20. It will of course be a matter for the Appeal Committee of the Court of Final Appeal to decide whether or not the appeal which the Director of Immigration seeks to bring, does indeed involve points of great general or public importance or otherwise, such that leave to appeal should be granted. I should not state my views on this one way or the other.

21. Nevertheless, I am able to say that the application for leave before the Appeal Committee is a substantial one. The contents of the Notice of Motion will require the Appeal Committee to hear arguments (however brief) which may ultimately have to be canvassed again at greater length should leave be granted. The Appeal Committee will be addressed on relevant provisions of the Immigration Ordinance as well as the Basic Law itself. All this will be in the context of what I have set out above. I am in the circumstances convinced that the Appeal Committee will derive much assistance in this area of the law from the Applicant, who is a well known and experienced practitioner in the field of human rights and constitutional law.