SHUM NGAI WOH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 2603/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2603 OF 2000

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R U L I N G

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1. This is an application for leave to apply for judicial review. It was on my direction that an oral hearing inter partes was ordered. As the Applicant is in custody, I ordered that it be brought before me as a matter of urgency.

2. The Applicant, apparently a divorced mother, was born on the Mainland in March 1975. According to her affirmation, in or about September of this year, she applied for a two-way permit to come to Hong Kong. The permit was granted and it is common cause that she arrived in Hong Kong on 11 October. Her permit allowed her to remain in Hong Kong for 3 months. However, the permit was clearly endorsed to the effect that she was not permitted to take any employment - either paid or unpaid - while she was in Hong Kong.

3. When the Applicant arrived at Lo Wu, she gave as her address in Hong Kong, a room in Sau Mau Ping. In her affirmation, however, she said that she went to join a cousin at another address, an apartment in Fook Wing Street, Shamshuipo. The Applicant said that this accommodation was very small and her presence created difficulties for her cousin and her cousin's husband. It was therefore agreed that she would take up residence in a nearby villa in Shamshuipo. The Applicant said that she commenced residing there on or about 4 November. It was close to her cousin and the rates were cheap.

4. On the night of 8 November, the police, together with officers of the Immigration Department, visited the villa. The Applicant was found in her room by two officers who questioned her. The Applicant was searched and, according to the officers, a tube of lubricant and 2 condoms were found in her handbag.

5. The Applicant was then arrested on the basis that she had breached her conditions of stay in Hong Kong and was engaged in prostitution. She was apparently cautioned and replied: "I do work as a prostitute. I am not providing sex service to clients now, so why do you arrest me?" It should be said, however, that later she refused to sign a declaration confirming that she had said these words.

6. Consequent upon her arrest, officers went to the address in Sau Mau Ping which the Applicant had given at Lo Wu. They discovered that the Applicant had not been at that address and indeed the occupants of that residence had no knowledge of the Applicant. In addition, the officers checked the registration book of the villa to see whether, in accordance with obligations imposed by law, there was a record in the register of the Applicant's stay. On the basis of the Applicant's affirmation, there should have been a record of her having stayed there for some 3 or 4 nights. But no record relevant to the Applicant was found.

7. Finally, it should be noted that the Applicant was interviewed. Part of that interview took place in the presence of a solicitor. When asked about the condoms and the lubricant in her handbag, the Applicant replied that she did not know how those items had got there for they did not belong to her. It appears that the Applicant refused to answer questions as to why she had come to Hong Kong or where she had been staying.

8. Mr Ho, who appears on behalf of the Applicant, has argued with considerable vigour that the Applicant was at that time facing possible criminal charges and quite sensibly (no doubt) had been advised by her solicitor that she should not answer questions. Accordingly, nothing is to be taken from the fact that she refused at that time to state her position in full.

9. Against this background, what then is the basis upon which leave is sought? It appears to be on the basis that the decision of the Director (and of the Immigration Tribunal which heard the Applicant's appeal) was unreasonable and contrary to natural justice. In this regard, the Notice of Application - in paragraphs 14 and 15 - reads:

"The Applicant was alleged that she had involved in the prostitution activities. The Immigration Department did not use the word "proved" but only the word "suspected" in their descriptions of breaching her conditions of stay. The Immigration Department did not give their reasoning of suspicion after inquiry from the Applicant's lawyer. The Assistant Director of Immigration only relied on their suspicion to make a removal order was unreasonable and contrary to natural justice.

An allegation of prostitution against a Chinese woman is a very serious and insulting allegation. The Immigration Department failed to provide any grounds to support this suspected allegation.

I pause only to say that no doubt an allegation of prostitution against any woman - Chinese or otherwise - is a matter of considerable seriousness.

10. In essence, therefore, as I understand the application, it is that the decision of the Respondent was irrational and perverse. But why is it alleged to be so?

11. Mr Ho has referred to the fact that there was no criminal prosecution of the Applicant and that therefore there was no way of having the matter objectively 'tested' as to the true facts. But in this regard, I have been referred by Mr Marshall, who appears for the Respondent, to an earlier decision given by myself in the matter of Gurung Kesh Bahadur v. The Director of Immigration, HCAL 11/2000, in which, on a submission of exactly the same nature, I said the following:

"The legislature has entrusted to the Director of Immigration (acting through his officers) a wide discretionary power to grant or refuse permission to land in Hong Kong to persons who have no right to reside here. That discretion is not dependent in any way on the institution and outcome of criminal proceedings even where, on the contemplated evidence, a criminal offence may be revealed. If in the circumstances of an individual case, there are facts to be decided then the decision is one to be taken by the Director and the court has no power to intervene save in a case where it is shown that the Director has acted irrationally or perversely.

12. I continued a little later in that judgment:

"It appears to me that in essence, Mr Harris has argued that the decision to rely on the evidence was unreasonable because it not only constituted a reliance on 'untested' allegations but was compounded by procedural unfairness. I have already said that, in my judgment, the Director had no duty to prosecute in the criminal courts to 'test' the evidence. The duty was solely to consider the evidence and to make the necessary decisions of fact according to law."

13. I have in addition been reminded by Mr Marshall of the fundamental principle that, when considering a decision of an administrative tribunal, this Court must bear in mind that factually what is relevant is what was before the decision-maker at the time the decision was made. It is not for this Court to interfere with that decision on the basis that some other matters have subsequently come to light.

14. As I see it, the fundamental question is whether there is or could on further consideration be any sort of arguable case to suggest that the Director has acted irrationally or perversely or in bad faith in making the decision that the Applicant had breached her conditions of stay. I confess that, on the evidence that was before the Director at the relevant time, I can find no grounds whatsoever for suggesting that he acted in anything but a rational manner and in good faith too.

15. First, the Applicant had given an address when she entered Hong Kong and, upon inquiry, was found never to have gone to that address and not even to be known to the persons who lived there.

16. Second, she was found not in a residence with family or friends but in - some form of hotel - a villa - and in that villa was found to be in possession of both lubricant and condoms which are known to be accessories in the trade of prostitution.

17. Third, when questioned under caution, she admitted that she was a prostitute.

18. Fourth, she did not deny having the accessories to which I have referred in her possession but simply denied later that they were hers.

19. Fifth, when interviewed, the Applicant chose (in the main) to keep silent. The Director, therefore, had to come to a decision based upon that fact.

20. As to the correct test to be applied, the test laid down in R. v. The Director of Immigration ex parte Ho Ming Sigh [1993] 3 HKPLR 157 is - to use the words of Kempster JA - whether the material before the judge discloses matters which, on further consideration, might demonstrate an arguable case. The question to be asked then is this: "May the Court at the substantive hearing come to the finding that the Applicant has an arguable case?" If so, leave should be granted. In my judgment, however, the Applicant has not satisfied the test.

21. Mr Ho has argued with considerable energy that there is no proof that the Applicant was a prostitute. He has pointed to the fact that the Applicant, in her affirmation, denies engaging in prostitution. Her alleged confession is, therefore, hotly disputed. He points to the fact that the Applicant denies that the condoms and lubricant belonged to her. But what must be looked at is the material placed before the decision-maker at the time the decision was made. In addition, provided the decision-maker takes into account only matters of relevance, he is entitled to exercise his discretion as he deems fit. With respect to Mr Ho, he appears to argue that the Director is constrained in his decision making to the principles of the criminal law, that somehow the onus lies on the Director to prove the Applicant to be a prostitute. But the Director, in making his decision, does not act as a judge in a criminal trial.

22. As to the fundamental question of fairness, I do not see that the Applicant has been treated unfairly but in any event the question of fairness (or natural justice) must be approached with caution in matters of this kind. Stock J (as he then was) dealt with the issue in some depth in Thapa Indra Bahadur v. The Secretary Far Security HCAL 18/99 and at page 15 said:

"I think it can be safely assumed, and the courts have all along moved on the assumption that the legislature intended, in the case of the refusal of entry to those who have no right to enter, and in the case of the removal of illegal immigrants, or of those without the right of abode and whose permission to remain has expired, that generally speaking, the rules of natural justice will not apply. That has for long been the law and there is nothing in the Immigration Ordinance that detracts from the accepted approach."

23. The Application for leave is therefore dismissed. In the circumstances, there is no need for me to consider the question of bail.

24. Before concluding, however, there is one matter to which reference should be made. Various affirmations have been filed on behalf of the Director and it appears that they were served on the solicitor representing the Applicant. However, they did not come to the attention of Mr Ho until this morning. That being the case, I gave Mr Ho an adjournment so that he could read the affirmations. Mr Ho later complained that his client had not been given opportunity to consider the various matters in the affirmations but he did not ask for a further adjournment to take instructions. But in any event, in my view, what counts is not the post facto protestations of the Applicant, what counts is the material placed before the Director at the time he was asked to make his ruling.

25. As far as costs are concerned, having heard from counsel, I will not make any order for costs. Mr Marshall has very fairly conceded that there is a broad discretion vested in the Court at this early stage. The Court itself has invited the Director to make representations and in the light of that it may be seen as being unfair - in the circumstances of this particular case - to visit upon the Applicant, the costs of the Director. I wish to stress, however, that the exercise of my discretion in this case is not to be taken as a precedent for future applications.

26. My orders, therefore, are as follows:

(1) that the application for leave is refused;

(2) that there will be no order as to costs;

(3) insofar as may be required, there will be a certificate for two counsel.