FOK TONG v. DIRECTOR OF IMMIGRATION

1997, AL No.40

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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J U D G M E N T

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1. This is an application for judicial review by Mr Fok Tong who married a lady called Madam Chen Yinghua ("Madam Chen"). She comes from Mainland China. He had been married twice before and had five children by two previous marriages. He married again a Mainland Chinese lady on 16 August 1996 in Taishan City, China and he said that he was advised that he should not have any more children according to the family planning rules in China.

2. After they got married, Madam Chen joined a tour to Thailand and after she finished the tour, she came to Hong Kong on 23 September and deliberately overstayed and reported to the Immigration Department at the end of October, just a few days before she was due to give birth and the Immigration Authority very properly allowed her to stay to give birth to her child called Fok Pak Ho. She then went back to China on 22 January and knowing all the problems about children and problems with regard to the number of children in China where they have their policy, she became pregnant again. I confess I find it somewhat surprising that this should happen. This would be this gentleman's seventh child. He says that they wanted to keep the baby and they did not report it to any persons in the Mainland. She then hid, according to his latest affidavit, at her parent's house in Taishan City.

3. She left China on 3 June by getting a visa. So far from hiding from anyone, she went to an official in Guangzhou and got the appropriate visa from the Thai Consulate to go on another tour. It was a visa issued by the Royal Thai Consulate on 27 May in Guangzhou. She then came to Hong Kong and said to the Immigration authority that she was a transitee, that is a person just stopping for a short period of time, and they gave her a seven day visa which was stamped into her Mainland passport, but she did not leave for Thailand. This was obviously a subterfuge. She appears to have done this deliberately to hide the fact, otherwise she would not have got a visa to Hong Kong. So she was permitted to stay here until 10 June. He says that she approached the Immigration Department on 10 June asking for mercy to give birth to her baby and she said she was interviewed by a Mr Tam of the Public Relations Department who has put in an affidavit. The applicant then made an application for judicial review.

4. This came to me and I could not understand, because it was a written application by this applicant himself, what the basis of the application was and what was the decision that he was seeking to challenge. Therefore I gave him an opportunity to come and address me in court. He appeared in person and put in a statement without telling me that Madam Chen had come into Hong Kong by this method of subterfuge. He said that she would be punished if she went back to China and may have a compulsory abortion. He said that he had gone to the Immigration Department to extend her stay and had been refused.

5. When these matters come before judges nowadays we seek to be vigilant to ensure that no injustice is caused to people, particularly relating to children. Judges are very sensitive about this subject and therefore should do all in their power to ensure that the court is given the fullest information. I therefore gave leave. The actual note I made was that "this case was fit for further investigation".

6. The Immigration Department very properly have put in an affidavit. They issued this summons saying that leave should not have been given had I been provided with all the information and at any rate there has been no decision made. They have provided me with full information. What it discloses is that this lady is an overstayer and she is obviously pregnant and she has got into Hong Kong by a device of pretending to go to Thailand and deliberately overstayed. In one sense, as young women come into Hong Kong from Mainland China as illegal immigrants, Madam Chen is illegally here at the moment. She is in breach of her visa, being an overstayer.

7. Recently I have noticed in Magistrates appeals a larger number of illegal immigrants, being young pregnant Mainland Chinese ladies, who come here deliberately to have their child because they obviously consider that the child if he can have a right to stay in Hong Kong may have a better opportunity of getting work. However, those persons are dealt with on the same basis as an ordinary illegal immigrant and are deported. It must be remembered that there is a great pressure on Hong Kong, as far as population is concerned. Genuine Hong Kong residents give birth to children and the Government has to provide education facilities and other support facilities for such children. At the moment, there are current challenges to a number of children who are in Mainland China who wish to come to Hong Kong and those will be dealt with in due course.

8. As far as this case is concerned, whilst I consider I was right to allow this matter to be further investigated, it would be wrong of me to allow this matter to continue any further. First of all, there is no decision or removal order that has been made. Secondly, this lady is illegally here. Although judges are vigilant to ensure that young children are protected, equally we must ensure that those who get into Hong Kong by a method of either telling lies to the immigration control or utilising this method of pretending to go to Thailand when the object is to have a child in Hong Kong, or people that come over the border illegally to give birth, are sent back to China.

9. It is not for us to inquire into what happens in China, that is a matter for the Mainland authorities. Our jurisdiction solely goes to whether or not a person is lawfully here. Whilst, therefore, I have some sympathy for the applicant, this has happened to him before, this is not the first time he has done this by pretending that his wife was going to Thailand. He has already had one child born here quite wrongly and now he wishes to have a second.

10. In my judgment, I should not permit this matter to continue any further. I therefore strike out the leave I gave and the application for judicial review is dismissed. What steps Madam Chen wishes to take is a matter essentially for her but as long as she realises that at the present moment she is unlawfully here.