LI MENGZHI v. COMMISSIONER OF REGISTRATION AND ANOTHER

HCAL 1513/2023

[2023] HKCFI 2933

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1513 OF 2023

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J U D G M E N T

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A.  Introduction

1.  Can a result which seems manifestly unfair and apparently unjust nevertheless be right?

2.  That question seems to me to arise in this present case, on the following basic facts:

(1)  The Applicant is a Chinese national born in the Mainland in 1966. On 27 November 2008, she was issued with a one-way permit (“OWP”) by the Mainland authority, based on her marriage on 21 July 2003 in Hong Kong (“2003 Marriage”) to a Mr Chan, who is a Hong Kong permanent resident (“HKPR”).

(2)  On 13 December 2008, she arrived in Hong Kong on the strength of that OWP and was permitted to stay in Hong Kong for many years.

(3)  On the face of it, the Applicant was ordinarily resident in Hong Kong for more than 7 years.

(4)  Indeed, the Applicant has lived and worked in Hong Kong, and almost single-handedly raised her daughter (now aged 19), paying Hong Kong taxes and into an MPF fund.

(5)  On 15 December 2015, the Applicant submitted an application for Verification of Eligibility of Permanent Identity (“VEPIC”) to the Immigration Department (“ImmD”).

(6)  VEPIC was subsequently recognized, and the Applicant was granted a permanent identity card (“PIC”) in 2020, as well as a HKSAR passport.

(7)  However, prior to that, the Applicant had in 2011 petitioned for divorce from Mr Chan in Fuzhou, PRC.

(8)  During those proceedings, it was discovered that – wholly unbeknownst to the Applicant – Mr Chan had previously been married and that marriage had not been dissolved. Hence, the Applicant was an innocent victim of Mr Chan’s bigamy.

(9)  The Fuzhou Court gave a judgment on 2 November 2012 (“Fuzhou Court Judgment”), declaring the 2003 Marriage to be invalid – a nullity – as Mr Chan already had a subsisting marriage at that time.

(10)  In December 2020, the Bureau of Entry and Exit Administration, Fujian Provincial Public Security Department (“FJPSD”) informed the ImmD that the OWP of the Applicant was invalid. In FJPSD’s letter, it is stated that, as the Fuzhou Court Judgment had invalidated the 2003 Marriage, the Applicant did not satisfy the requirements to apply to settle in Hong Kong under the laws of the Mainland.

(11)  As a result, the ImmD informed the Applicant that all the permissions to enter and stay in Hong Kong granted to her on the basis of her OWP had been vitiated, so that the Applicant is to be regarded as having entered or remained in Hong Kong without the permission of an immigration officer, and thus had never resided ordinarily in Hong Kong for a continuous period of not less than 7 years and has never been entitled to the right of abode under §2(b) of Schedule 1 to the Immigration Ordinance Cap 115 (“IO”).

(12)  The PIC of the Applicant was declared invalid by the Commissioner of Registration (“Commissioner”).

(13)  The Applicant appealed to the Registration of Persons Tribunal (“Tribunal”) against the decision of the Commissioner invalidating her PIC. By its decision dated 21 June 2023, the Tribunal determined that the Applicant does not have the right of abode in Hong Kong, and dismissed the appeal (“Tribunal’s Decision”).

3.  In short, the Applicant moved to Hong Kong in 2008 to join her husband with their daughter. She has plainly settled in Hong Kong, and has lived law-abidingly and productively here throughout the past 15 years or so. But, because of the bigamy of her husband, of which she was wholly unaware until she sought to divorce him years later, she is treated as if she never arrived lawfully and was never lawfully present or resident in Hong Kong, so that her PIC has been revoked (and she is possibly liable to be deported).

4.  I venture to suggest that, to most people, that would not instinctively sound fair or just.

5.  By Form 86 dated 24 August 2023, the Applicant seeks leave to apply for judicial review to challenge the Tribunal’s Decision, which confirmed the Commissioner’s prior decision to revoke the Applicant’s PIC, and which ruled that the Applicant did not have the right of abode in Hong Kong.

6.  On 29 August 2023, I gave directions for the Putative Respondents to file an initial response and the Applicant to file a reply, if any, and so as to bring the matter to a hearing on 15 November 2023.

7.  The first Putative Respondent, represented by Ms Lynn Hui, Government Counsel, filed an initial response on 26 September 2023. Mr Joseph Wong, Counsel for the Applicant, filed the Applicant’s reply to the initial response on 24 October 2023.

8.  At the hearing, the Applicant was represented by Mr Wong and the Commissioner was represented by Ms Hui, and they had no objection to treating the hearing as a ‘rolled-up” hearing.

9.  At the end of the hearing, I reserved my decision. This is my Judgment.

B.  The Law on Permanent Identity Card

10.  Regulation 3(2) of the Registration of Persons Regulations Cap 177A (“Regulations”) provides that if a registration officer is satisfied that a person who has applied for a PIC enjoys the right of abode in Hong Kong, the officer shall issue a PIC to such person.

11.  Persons enjoying the right of abode in Hong Kong are the permanent residents of Hong Kong: see section 2A of the IO. The categories of persons who are permanent residents of Hong Kong are set out in §2 of Schedule 1 to the IO. Relevant to the present purpose is the category provided in §2(b): “a Chinese citizen who has ordinarily resided in Hong Kong for a continuous period of not less than 7 years before or after the establishment of the Hong Kong Special Administrative Region”.

12.  The meaning of ordinary residence is defined in – or, perhaps strictly, a description of what is not to be treated as ordinary residence is found in – section 2(4) of the IO. Relevantly, section 2(4)(a)(i) provides that a person shall not be treated as ordinarily resident in Hong Kong during any period in which he remains in Hong Kong with or without the authority of the Director, after landing unlawfully.

13.  Section 2(2) of the IO deals with the meaning of landing unlawfully, as follows:

(2) References in this Ordinance to landing in Hong Kong unlawfully are references to landing in or entering Hong Kong in contravention of this Ordinance …, and for the avoidance of doubt it is hereby declared that no person shall be held not to have landed unlawfully –

(a) by reason only of any presumption, conclusive or impossible, that he cannot be guilty of an offence or is incapable of committing a crime; or

(b) on the ground only that he is not guilty of an offence under subsection (1) of section 38 in respect of paragraph (a) of that subsection.

14.  The Applicant’s PIC was originally granted under §2(b) of Schedule 1 to the IO, on the basis that she was a Chinese citizen who had ordinarily resided in Hong Kong for 7 years after she had lawfully entered Hong Kong on the strength of her OWP.

15.  However, as traversed above, in 2021, having received the information from the Mainland authority, the registration officer decided that the permission to land granted was vitiated and, thus, the landing was unlawful and the subsequent period of remaining in Hong Kong would not constitute ordinary residence. The registration officer declared that the Applicant had never had the right of abode and invalidated her PIC. The power exercised by the officer is authorized by regulation 3D(1) of the Regulations, which provides that where a registration officer is satisfied that a person to whom a PIC has been issued no longer has, or never had, the right of abode in Hong Kong, he may declare the PIC to be invalid.

16.  Section 3D(1) of the Registration of Persons Ordinance Cap 177 (“RPO”) allows a person aggrieved by the decision of the registration officer to invalidate a PIC to appeal to the Tribunal. Section 3D(4) of the RPO provides that:

An appeal under subsection (1) may only be brought by a person on the ground that on the facts of his case he enjoys the right of abode in Hong Kong and shall succeed if, and only if, the Tribunal determines that he has that right.

17.  Thus, the Tribunal does not “review” the decision of the registration officer in the exercise of his power to invalidate the PIC. Rather, the Tribunal has to make an independent assessment of the facts and decide for itself whether the appellant did or did not have the right of abode: see Li Su Shan v Director of Immigration [2002] 4 HKC, where Hartman J had to construe a comparably worded section 53D(1) of the IO in the context of an appeal to the Tribunal against a removal order.

18.  Regulation 21(2) of the Regulations also puts the burden on the appellant, when he appeals against the decision of a registration officer to the Tribunal, to prove that he has the right of abode in Hong Kong or is entitled to a PIC.

C.  Tribunal’s Decision

19.  The Tribunal’s analysis is in §§20-37 of the Tribunal’s Decision, as follows:

Whether the Appellant’s Landing was Unlawful

20. The Appellant arrived in Hong Kong on the strength of the OWP (but not otherwise). Where the OWP was invalid, it can hardly be challenged that her landing in Hong Kong would become unlawful.

21. The Appellant however contended, with reference to the wordings of section 2(2) of the Ordinance, that she could only be found to be landing unlawfully if she entered Hong Kong in contravention of the Ordinance. In this regards, the Appellant further submitted that:-

(1) She was not aware of Mr. CHAN’s prior marriage until her divorce proceedings in the Fuzhou Court in about 2011; and

(2) In the absence of knowledge, she could not be in contravention of section 11, 38 or 42 of the Ordinance.

22. In effect, the Appellant’s case was that she had no intention to defraud the ImmD when she landed in Hong Kong on the strength of the OWP, as she was labouring under an honest belief that the 2003 Marriage was a valid one.

23. As stated above, the Tribunal found the Appellant to be an honest and reliable witness and accepted her evidence. The Tribunal further found that the Appellant’s evidence that she had no knowledge of Mr. CHAN’s bigamy was consistent with the fact that she gave birth to her Daughter with Mr. CHAN 5 months after the 2003 Marriage; that 5 years after the 2003 Marriage she decided to move to Hong Kong to live with Mr. CHAN; and that her marriage with Mr. CHAN lasted for a relatively long period of time (i.e. around 8 years) before she asked for it to be dissolved.

24. The next question is, however, whether the Appellant’s innocence or absence of knowledge of Mr. CHAN’s bigamy was something which should be taken into account when considering whether the Appellant’s landing in Hong Kong was lawful. It was argued by the Appellant that this is a relevant factor as the Appellant could only be found to be ‘landing unlawfully’ if she entered Hong Kong in contravention of the Ordinance (with reference to the wordings of section 2(2) of the Ordinance).

25. The Tribunal rejects the Appellant’s contention. It has been observed by Au J (as he then was) in Ahmed v Registration of Persons Tribunal [2012] 2 HKC 119 that the references ‘landing in Hong Kong unlawfully’ in the Ordinance had a wider meaning than committing an office under section 38(1)(a) of the Ordinance (128G-H). The Tribunal is bound by this interpretation. In considering whether the Appellant’s landing in Hong Kong was lawful, the Tribunal could not limit itself to the narrow issue of whether the Appellant had committed any offence under the Ordinance only, but should give the wording ‘unlawful’ a wider interpretation to see if the spirit of the Ordinance could be violated if the Appellant was permitted to land by virtue of an invalid OWP. Quite clearly, the Appellant’s landing in Hong Kong could not sensibly be regarded as ‘lawful’ if what she relied on to land in Hong Kong was an OWP which was declared to be invalid.

26. In any event, it has been held in Tsui Siu Wai v Director of Immigration HCMP 1665/1994 (6 December 1994, unreported) and Kong Sau Mei v Director of Immigration [1999] 1 HKC 174 that a person’s knowledge of the falsity of his travel document or his involvement in the deception to immigration officer was irrelevant to the issue of whether he had landed unlawfully.

27. In this connection, Mr. WONG has referred the Tribunal to the authorities of Re Lee Ka Ming [1991] HKC 153, Re Roy Mahesh J [2020] HKCFI 1492 and Ng Wing Hung v Commissioner of Registration HCAL 125/2005 (4 July 2017, unreported). With respect, these authorities fail to lend any support to the Appellant’s contention.

28. In the premises, the Appellant’s landing in Hong Kong must be unlawful. The Respondent could not be said to be wrong in not considering the Appellant’s innocence as to Mr. CHAN’s bigamy.

Retrospective Effect

29. Mr. WONG further argued that the revocation of the OWP should not be regarded as having retrospective effect in vitiating the permission of the Director for the Appellant to land in Hong Kong.

30. The Tribunal was not persuaded by this argument. It was rather obvious that the subsequent permissions to land and stay in Hong Kong were granted to the Appellant on the condition that she was lawfully permitted to land and enter Hong Kong by virtue of the OWP. Once the OWP was declared invalid, the subsequent permissions to stay or remain must likewise become invalid.

31. Mr. WONG referred the Tribunal to a line of authorities, including L v C [2007] 3 HKLRD 819, Azad v Entry Clearance Officer Dhaka (No. C/2000/0501, 20 December 2000), Eugene Bethiaume v Dame Dastous [1930] AC 79 as well as section 11 of the Legitimacy Ordinance (Cap. 184) in support of his contention that a void marriage might still carry certain legal effects, such as the right to ancillary relief and preservation of certain status of the children born out of the void marriage. These authorities provide very little assistance to the Appellant’s case, as they only concern the private rights of the parties to a void marriage. It would be too-fetched to suggest that the immigration policy of the HKSAR would have to be changed in order to recognise that there was good faith in a void marriage.

Legitimate Expectation

32. The Appellant was first informed of the ImmD’s intention to approve her HKPR status by the ImmD’s Conditional Confirmation on about 17 September 2020. However, in the same letter, the ImmD also informed the Appellant that in case there was any evidence showing the OWP was invalid, the decision to approve the VEPIC application would be revoked and the Respondent might also declare that the HKPIC issued to her to be invalid and order it to be surrendered.

33. Given the clear wordings in the ImmD’s Conditional Confirmation, the Tribunal cannot see how the Appellant could fairly be said to be under an expectation that she would not be deprived of her HKPR status should contrary evidence subsequently emerge. Further, if there was any such expectation, it would be a subjective one orchestrated by the Appellant and could not be said to be legitimate.

Compassionate Reasons

34. The Tribunal has no jurisdiction to allow an appeal on compassionate ground under section 3D(4) of the ROPO, other than by a finding of fact that the Appellant enjoyed the ROA in Hong Kong. In the premises, this ground of appeal must fail.

Undue Delay

35. Similar to compassionate reasons, undue delay on the part of administrative body (if any) is not a fact relevant to the determination of whether the Appellant enjoyed the ROA in Hong Kong. This ground of appeal must also fail.

36. In any event, the Tribunal also observed that while the ImmD might be late in informing the Appellant of the Decision (by taking more than 5 years counting from the date when the Appellant provided the ImmD with the Fuzhou Judgment), the delay could not be said to be ‘undue’. In particular, it is notable that upon receiving the Fuzhou Judgment, the ImmD conducted an interview in December 2016 with the Appellant (who declined to answer any question); the ImmD further informed the Appellant that the lawfulness of her entry permission was under verification in July 2017 and sought comment on the lawfulness of the OWP from the EEAO in August 2017. No feedback was received from the EEAO between 2017 and 2020, but upon receiving the FPSD’s Letter in about December 2020, the ImmD informed the Appellant of the Decision in May 2021.

37. For the above reason, the Appellant’s complaint cannot be substantiated.

20.  The Tribunal examined the category under §2(b) of Schedule 1 to the IO and concluded that the Applicant has no right of abode in Hong Kong.

D.  Further Background

21.  A few further facts are necessary to understand the arguments on the Applicant’s proposed grounds of review.

22.  As said, the Applicant came to settle in Hong Kong in 2008 and was later granted a PIC in 2020.

23.  When the Applicant filed divorce proceedings in 2011, it seems she did so in Fuzhou because she held a property there, which the Applicant said was purchased using her income (but which she later sold during the proceedings). It was during those proceedings that Mr Chan’s bigamy came to light, hence the declaration of invalidity/nullity of the 2003 Marriage. The Applicant was given custody of the daughter, and Mr Chan was ordered to pay maintenance for the daughter, but which it seems he never paid.

24.  It is undisputed that the 2003 Marriage between the Applicant and Mr Chan was declared as invalid according to the Fuzhou Court Judgment. The 2003 Marriage was therefore void, before the issuance of the OWP by the Mainland authority to the Applicant in 2008.

25.  On about 3 May 2013, the Applicant notified the ImmD of the change of marital status (to ‘Divorced’), as well as residential address and telephone number.

26.  On 15 December 2015, the Applicant submitted her VEPIC application to the ImmD. On 4 January 2016, among other things in support of her VEPIC application, the Applicant submitted to the ImmD the Fuzhou Court Judgment. Since 2016, the ImmD has received a total of 4 further VEPIC applications from the Applicant, and replied to her that they would be considered jointly with her first VEPIC application.

27.  On 20 December 2016, the ImmD conducted an interview with the Applicant for a suspected case of aiding and abetting Mr Chan in committing perjury/bigamy and using/being in possession of an unlawfully obtained OWP. No prosecution was eventually instigated against the Applicant.

28.  It seems to be accepted that the Applicant was blameless and innocent. That was certainly the view of the Tribunal.

29.  By letter dated 10 August 2017, the ImmD sought the comments of the Entry and Exit Administration Office of the Ministry of Public Security on the validity and lawfulness of the Applicant’s OWP.

30.  In ImmD’s letter to the Applicant dated 17 September 2020, the ImmD stated (1) that it intended to approve the Applicant’s VEPIC application and establish her status as a HKPR under §2(b) of Schedule 1 to the IO, (2) that in case of any evidence showing the Applicant’s OWP (obtained on the basis of her marriage with an HKPR) was invalid, the decision to approve her VEPIC application would be revoked, and (3) that the PIC issued to the Applicant might be declared to be invalid and ordered it to be surrendered under regulation 3D of the Regulations.

31.  Also on 17 September 2020, the Applicant applied for and was issued with a PIC.

32.  By letter dated 18 December 2020, the Bureau of Entry and Exit Administration, FJPSD informed the ImmD that the OWP of the Applicant was invalid. In FJPSD’s letter, it is stated that, as the Fuzhou Court Judgment had invalidated the 2003 Marriage, the Applicant did not satisfy the requirements to apply to settle in Hong Kong under the laws of the Mainland.

33.  By letter dated 1 March 2021, the ImmD informed the Applicant, inter alia, that after re-assessment of her HKPR status:

(1) FJPSD provided information showing that the 2003 Marriage had been declared invalid by the Fuzhou Court Judgment.

(2) The Applicant was not qualified for proceeding to Hong Kong for settlement.

(3) The OWP was invalid.

(4) On the basis of (1)-(3) above, the ImmD intended to declare:

(i) all permissions granted to the Applicant for her entry and stay in Hong Kong to be invalid;

(ii) the Applicant would be deemed to have landed or remained in Hong Kong without permission of the Director;

(iii) the Applicant’s stay in Hong Kong since 13 December 2008 should not be treated as ordinarily resident in Hong Kong;

(iv) the Applicant had never ordinarily resided in Hong Kong for a continuous period of not less than 7 years;

(v) the Applicant was not a permanent resident of the HKSAR under §2(b) of the Schedule 1 to the IO;

(vi) the Applicant had never had the right of abode in Hong Kong; and

(vii) the PIC of the Applicant should be declared to be invalid under regulation 3D of the Regulations.

34.  In reply to the ImmD’s letter dated 1 March 2021, the Applicant provided written representations and supplementary information to the ImmD, stating, inter alia, that the 2003 Marriage was a de facto marriage and she should be entitled to Hong Kong resident status.

35.  By letter dated 26 May 2021, the ImmD informed the Applicant that all the permissions to enter and stay in Hong Kong granted to her on the basis of her OWP had been vitiated. The Applicant is regarded as having entered or remained in Hong Kong without the permission of an immigration officer, and thus has never resided ordinarily in Hong Kong for a continuous period of not less than 7 years and has never been entitled to the right of abode under §2(b) of Schedule 1 to the IO. On the same day, the PIC of the Applicant was declared invalid by the Commissioner.

36.  At the Tribunal hearing for the Applicant’s appeal against the decision of the Commissioner on 18 May 2022, the Applicant gave evidence on oath. In essence, the Applicant testified that she needed her PIC to live and work in Hong Kong; that she had been living a law-abiding life in Hong Kong for many years; and that she would want to stay in Hong Kong as her daughter was studying here. The Applicant was not critically cross-examined, nor was there any evidence to contradict her testimony. In general, the Tribunal found that the Applicant was an honest and reliable witness.

37.  Lastly, it can be mentioned that the Applicant’s household registration and PRC identity card have apparently already been cancelled. This means that she possibly has nowhere to be deported to, if she were to be deported by the ImmD (a possible consequence of revoking her resident status in Hong Kong).

E.  Proposed Grounds of Review

38.  The arguments deployed on this application in essence replicate those deployed before the Tribunal (see above).

39.  Reading the Applicant’s affirmation dated 24 August 2023 and the Applicant’s reply to the Initial Response dated 24 October 2023 together, and according to Mr Wong’s submissions at the oral hearing on 15 November 2023, the Applicant’s proposed grounds could be summarized as follows:

(1)  Ground 1: The Commissioner made an error of law in finding that the Applicant had landed in Hong Kong unlawfully under section 2(4)(a)(i) of the IO.

(2)  Ground 2: The Commissioner has failed to take into account relevant considerations in revoking the Applicant’s permanent resident status.

(3)  Ground 3: The Applicant is entitled to a legitimate expectation that her permanent resident status would not be revoked by the Commissioner.

(4)  Ground 4: The Commissioner has committed an unlawful fettering of discretion against the Applicant in revoking the Applicant’s permanent residence status.

(5)  Ground 5: The Commissioner’s decision in revoking the Applicant’s permanent resident status is irrational and/or Wednesbury unreasonable.

40.  As said, under section 3D(4) of the RPO, the question that the Tribunal has to decide for itself based on the facts was whether the Applicant had the right of abode in Hong Kong. The categories of persons with right of abode in Hong Kong are exhaustively listed in §2 of Schedule 1 to the IO, which is a word-for-word copy from Article 24(2) of the Basic Law. There is no power for the Tribunal (or the registration officer, or the judicial review Court) to grant right of abode outside the statutory and constitutional framework.

41.  To succeed on the leave application, the Applicant has to persuade this Court that it is reasonably arguable that the Tribunal was wrong to conclude that the Applicant did not have right of abode. To succeed substantively, the Applicant has to demonstrate the Tribunal was indeed wrong.

42.  The Tribunal concluded that the Applicant had failed to bring herself within §2(b) of Schedule 1 to the IO – which requires a continuous period of ordinary residence of not less than 7 years – or within any of the other categories under §2.

43.  I can deal with each of the five intended grounds of review in turn.

F.  Ground 1: The Commissioner made an error of law in finding that the Applicant had landed in Hong Kong unlawfully under section 2(4)(a)(i) of the IO

44.  Ground 1 is the main argument relied upon by the Applicant.

45.  Mr Wong for the Applicant submits that the Applicant should not be considered to have landed in Hong Kong unlawfully as (1) she has not contravened any provisions of the IO when landing in or entering Hong Kong on 13 December 2008; (2) she was completely innocent of the circumstances used to gain her entry into Hong Kong; and (3) the cancellation / revocation of the Applicant’s OWP by the Mainland authority should not be regarded as having retrospective effect in revoking / vitiating the Director’s permission for her to land in Hong Kong.

46.  To understand Mr Wong’s argument, it is convenient again to set out the relevant parts of section 2(4) of the IO as follows:

(4) For the purposes of this Ordinance, a person shall not be treated as ordinarily resident in Hong Kong –

(a) during any period in which he remains in Hong Kong -

(i) with or without the authority of the Director, after landing unlawfully; …

47.  In the Applicant’s Reply to the Initial Response dated 24 October 2023, Mr Wong described the Applicant as completely blameless and innocent (and in fact a victim of bigamy herself) because it was discovered during the course of divorce proceedings in Fuzhou, PRC in 2011 between the Applicant and Mr Chan that Mr Chan was previously married to another woman in the PRC and the marriage was never dissolved. At the hearing, Mr Wong reiterated that the Applicant is “a victim of bigamy”.

48.  Mr Wong says that the Applicant’s case is a novel one, on circumstances not really addressed or determined in previous Court decisions.

49.  Mr Wong submits that the previous cases in which an OWP had been rescinded were all cases in which the relevant OWP had been obtained by some form of fraud or misrepresentation (although not necessarily by the applicant himself/herself). The OWPs in those cases were forged, or false in a material particular, or unlawfully obtained or altered. In such cases, Mr Wong said, it is easy to see that the applicants had landed unlawfully in contravention of the IO, because the OWP in each case was invalid at the time when he/she entered Hong Kong.

50.  But, Mr Wong submits, there is a temporal distinction in this case, where it might be thought that the Applicant did not enter illegally at the time of her ‘landing’ in 2008. There is also the distinction in that nothing done by the Applicant could have ‘tainted’ her landing, and the bigamous marriage – of which the Applicant could have had no knowledge – is not something which should be thought to have tainted the landing. Lastly, Mr Wong submits that the fact of the bigamous marriage was not directly connected to the obtaining of the OWP and the Applicant’s entry to Hong Kong.

51.  Mr Wong emphasises that his submission is not advocating a general proposition that guilty knowledge is required in all cases before a person could be found to have landed unlawfully. But he points out that the Applicant in this case simply could not have had any knowledge that the OWP would or could be invalidated, at the time of her entry. He relies on obiter comments of Lord Bridge in R v Secretary of State for the Home Department, ex p Khawaja [1984] AC 74 at 119F:

I am not convinced that Reg v Secretary of State for the Home Department, ex parte Khan [1977] 1 WLR 1466, where it was held that the innocent wife who obtained leave to enter on a false passport procured for her by her husband was an illegal entrant, was rightly decided. In such cases the proper conclusion may depend on a variety of circumstances and I think it safer to express no present view but to leave such cases to be decided as they arise.

52.  That passage was cited in a decision of the Hong Kong Court of Appeal, Re Lee Ka Ming [1991] 1 HKC 153 at 160C-D. In the same case, at 167E, it was stated:

… it might reasonably be argued that a person who is entirely innocent of taking any part in the deception used to gain his entry should not himself be regarded as an “illegal entrant”.

53.  Mr Wong invites the Court to assess the special facts and circumstances unique to this case and, if necessary, adopt a slightly more flexible or nuanced approach as may be warranted to do full justice on those unique facts.

54.  It seems to me, on the undisputed facts of the present case, that a manifest unfairness might arise if the Applicant’s own victimhood is not able to be taken into account.

55.  Nevertheless, I regret I am driven to the conclusion that the Applicant’s blamelessness, innocence and her honest belief that the 2003 Marriage was valid do not change the fact that she landed in Hong Kong on the strength of the OWP, which was later declared to be invalid by the Mainland authority, and more importantly have no impact on determining whether the landing of the Applicant in Hong Kong was lawful.

56.  First, it might be noted that the ex p Khawaja case is a fairly old decision in the UK context, and that the Lee Ka Ming case predated the amendments made to the relevant parts of the IO in 1997. Secondly, Ms Hui for the Commissioner rightly refers to me to the case of Ahmed v Registration of Persons Tribunal [2012] 2 HKC 119, where Au J (as he then was) considered the effects of sections 2 and 38 of the IO. At §§43-46, he said as follows:

43. Second, the reference to s 2(2)(b) of the Ordinance does not assist [Counsel] any further. This section provides as follows:

‘(2) References in this Ordinance to landing in Hong Kong unlawfully are references to landing in or entering Hong Kong in contravention of this Ordinance …, and for the avoidance of doubt it is hereby declared that no person shall be held to have landed unlawfully –

(a) …

(b) on the ground only that he is not guilty of an offence under subsection (1) of section 38 in respect of paragraph (a) of that subsection.’

44. Section 38(1)(a) of the Ordinance provides as follows:

(1) Subject to subsection (2), a person who –

(a) being a person who by virtue of section 7 may not land in Hong Kong without the permission of an immigration officer or immigration assistant, lands in Hong Kong without such permission; or

(b) …

shall be guilty of an offence and shall be liable on conviction to a fine at level 4 and to imprisonment for 3 years.’

45. Section 38(1)(a) thus creates the offence whereby someone has landed in Hong Kong without the permission of an immigration officer.

46. All s 2(2)(b) of the Ordinance says is therefore simply that, for the purposes of the Ordinance, whether someone is to be regarded as ‘landing in Hong Kong unlawfully’ does not require the proof of the offence under s 38(1)(a). In other words, the references in the Ordinance (including by way of s 2(4)(a)(i) to ‘landing in Hong Kong unlawfully’) has a wider meaning than committing an offence under s 38(1)(a) of the Ordinance.

57.  Relying also on that authority, the Tribunal rejected the Applicant’s contention and ruled that the Applicant’s “landing in Hong Kong could not sensibly be regarded as ‘lawful’ if what she relied on to land in Hong Kong was an OWP which was declared to be invalid”: see §25 of the Tribunal’s Decision.

58.  The Tribunal also considered Tsui Siu Wai v Director of Immigration (unreported, HCMP 1665/1994, 6 December 1994) and Kong Sau Mei v Director of Immigration [1999] 1 HKC 174, which held that a person’s knowledge of the falsity of his travel document or his involvement in the deception to the immigration officer was irrelevant to the issue of whether he had landed unlawfully: see §26 of the Tribunal’s Decision.

59.  As regards the Applicant’s argument that the invalidation of the OWP of the Applicant by the Mainland authority should not have a retrospective effect, the Tribunal rejected it on the basis that “[i]t was rather obvious that the subsequent permissions to land and stay in Hong Kong were granted to the Applicant on the condition that she was lawfully permitted to land and enter Hong Kong by virtue of the OWP. Once the OWP was declared invalid, the subsequent permissions to stay or remain likewise become invalid”: see §30 of the Tribunal’s Decision.

60.  It is noteworthy that, as the starting point of its analysis of the validity of the OWP issued to the Applicant, the Tribunal considered the FJPSD’s Letter, which refers to the finding in the Fuzhou Court Judgment that the 2003 Marriage was invalid, states that the Applicant was not qualified for settlement in Hong Kong, and declares that the OWP issued to the Applicant was invalid under the laws of the Mainland. The Tribunal took account of the relevant principles on how the correspondence by the Mainland authorities should be approached, as summarised by Poon J (as the CJHC then was) in Ng Man Yin v Commissioner of Registration [2014] 5 HKC 1 (see §§16-17 of the Tribunal’s Decision). Having considered all the evidence available, the Tribunal concluded that the OWP issued to the Applicant was invalid.

61.  Indeed, it seems to me to be a matter of inescapable logic that the OWP issued upon the basis that there was a valid marriage must itself become invalid once it is recognised that the marriage was invalid. As is apparently in accordance with both PRC law and Hong Kong law, the 2003 Marriage was void ab initio, meaning that there was never any actual state of matrimony between the Applicant and Mr Chan. It is correct that, when she presented her OWP upon landing in Hong Kong, and for many years thereafter, the Applicant could not have known that it had been granted on a fundamentally mistaken and empty basis. It is also correct that the Applicant was wholly innocent of contributing to that mistaken basis. But the fact remains that the essence of the OWP and the permission to land in Hong Kong were to permit the Applicant to join her husband in Hong Kong, when in reality – even though through no fault on her part – she had no husband in Hong Kong.

62.  I have considered carefully Mr Wong’s submissions, including the three factors which he says might distinguish this case from previously decided cases, namely (1) the temporal distinction, (2) the lack of fault or taint on the part of the Applicant herself, and (3) the lack of direct connection between the fault and the obtaining of the entry to Hong Kong by the Applicant. I have also considered that for some purposes a marriage which is a nullity can be given some effect – for example, as regards ancillary relief, or the legitimacy of a child.

63.  However, I do not think that the Tribunal has committed any error of law in its analysis and in reaching the conclusion that the Applicant’s landing in Hong Kong in 2008 was unlawful and that the Commissioner could not be said to be wrong in not considering the innocence of the Applicant as to the bigamy of Mr Chan.

64.  Ground 1 therefore fails.

G.  Ground 2: The Commissioner has failed to take into account relevant considerations in revoking the Applicant’s permanent resident status

65.  In gist, Mr Wong submitted that the Commissioner has failed to consider the following:

(1)  The Applicant has all along acted in good faith and has had full intentions to live and settle in Hong Kong and take Hong Kong as her permanent home since landing in 2008.

(2)  She was completely innocent, had no knowledge of Mr Chan’s bigamy and had no knowledge of Mr Chan’s bigamy and herself was a victim of the bigamy.

(3)  She has lived in Hong Kong for more than 7 years on the legitimate expectation of being granted permanent resident status.

(4)  There are strong compassionate grounds for not revoking her permanent resident status.

(5)  There was undue delay by the Director in informing her of his decision to vitiate the permission for her to land or remain in Hong Kong.

66.  The above reasons (1)-(4), as put forward by the Applicant, are indeed humanitarian and compassionate grounds (in Ms Hui’s words), taking account of her personal circumstances. In her Form 86 and at the hearing, the Applicant did not provide any legal authorities for the relevance of these grounds to the determination of her right of abode.

67.  Ms Hui submitted that humanitarian and compassionate grounds need not be considered by the Commissioner (and the Tribunal) in determining whether the Applicant’s PIC should be revoked.

68.  In the Initial Response dated 26 September 2023, Ms Hui refers to Au J’s (as he then was) analysis in Cheung Kin Ho v Registration of Persons Tribunal (unreported, HCAL 2/2014, 30 May 2014) regarding the discretion exercisable by the registration officer under regulation 3D(1) of the Regulations, where at §33 he said that:

33. What that regulation therefore provides for is that, when it is found that a person who has been previously issued a HKPIC does not have the right of abode in Hong Kong, the registration officer has a discretion to (a) order the HKPIC to be invalid, and/or (b) order the person to surrender the HKPIC to him and/or (c) order the person to apply for an identity card (other than a HKPIC). All these are acts pertinent to invalidating the HKPIC. The “discretion” thus only goes to allow the registration officer to choose which acts he would adopt to treat the HKPIC as no longer valid. It would not entitle him to treat that person as having the right of abode again and to treat the HKPIC as valid.

69.  I respectfully adopt the Au J’s analysis. Mr Wong’s submissions on humanitarian and compassionate grounds (i.e. reasons (1)-(4) above) are rejected.

70.  As for the allegation of undue delay by the Director in informing the Applicant of the decision to vitiate the permission for her to land or remain in Hong Kong (i.e. reason (5) above), Ms Hui submitted that – as already considered by the Tribunal at §35 and 36 of the Tribunal’s Decision – undue delay on the part of an administrative body (if any) is not a fact relevant to the determination of whether the Applicant has the right of abode in Hong Kong; and the delay could not be said to be ‘undue’ in view of the time incurred by the ImmD for its investigation and liaison with the Mainland authority. I agree.

71.  Neither the Tribunal nor the Court has power to grant the Applicant the right of abode on compassionate or humanitarian grounds if she cannot bring herself within any of the categories under §2 of Schedule 1 to the IO.

72.  Ground 2 therefore also fails.

H.  Ground 3: The Applicant is entitled to a legitimate expectation that her permanent resident status would not be revoked by the Commissioner

73.  In her Form 86, the Applicant submitted that:

(1)  She has in good faith lived and settled in Hong Kong for more than 7 years on the legitimate expectation that HKPR status would be granted to her. The reasoning set out in Ground 2 is relied upon by her again.

(2)  When she was granted the HKPR status and issued with the HKSAR passport in September and October 2020, she was entitled to a legitimate expectation that the Fuzhou Court Judgment declaring the 2003 Marriage to be invalid (i.e. the nullity) would not have any bearing on her HKPR status and that her status would not be revoked by the Commissioner. There is at least an implied representation by the Director / Commissioner that the nullity would not affect her HKPR status in Hong Kong.

74.  As rightly pointed out by Ms Hui in the Initial Response, the ImmD only became aware of the Fuzhou Court Judgment in 2016 (when the Applicant submitted it to the ImmD in support of her VEPIC application) and then started investigation into the Applicant’s case. When the Director informed the Applicant by letter dated 17 September 2020 that the Director intended to approve her VEPIC application, it clearly stated that such intended approval was given based on the available information and record at that time, and that the approval would be revoked if there was evidence showing that the OWP of the Applicant was invalid. The Applicant acknowledged her full understanding of the content of that letter by signing on the reply slip at end of that letter on the same date. There was no representation made by the Director to the Applicant that she could expect her HKPR status would not be affected. At §33 of the Tribunal’s Decision, the Tribunal had the same observation.

75.  Similar to the analysis of Ground 2 above, I do not accept that this ground of legitimate expectation is reasonably arguable as it is irrelevant to the Tribunal’s determination of the material issue whether the Applicant has the right of abode in Hong Kong under the IO.

76.  Ground 3 therefore also fails.

I.  Ground 4: The Commissioner has committed an unlawful fettering of discretion against the Applicant in revoking the Applicant’s permanent residence status

77.  The Applicant contended that even if the Commissioner has found that she had landed (and remained) in Hong Kong unlawfully, the Commissioner still has a discretion in deciding whether to revoke her permanent resident status.

78.  The issue whether the Commissioner has the discretion in treating the Applicant as having the right of abode in Hong Kong even if the Applicant was found to have landed in Hong Kong unlawfully has been dealt with in the analysis of Ground 2 above.

79.  As set out in her Form 86, the Applicant’s case on Ground 4 is actually based on the same arguments as Ground 2. For the same reasons, I do not find the ground of unlawful fettering of discretion to be reasonably arguable.

80.  Ground 4 therefore also fails.

J.  Ground 5: The Commissioner’s decision in revoking the Applicant’s permanent resident status is irrational and/or Wednesbury unreasonable

81.  As set out in her Form 86, the Applicant’s case on Ground 5 is also based on the same arguments as Ground 2. I have dealt with the question of irrationality in that context as well.

82.  Therefore, where I have found Ground 2 to be not reasonably arguable, so must Ground 5 fail.

K.  Conclusion

83.  At the beginning of this Judgment, I posed the question whether a result which seems manifestly unfair and apparently unjust can nevertheless be right. This case demonstrates that – on unfortunate occasions – it can.

84.  On the law and principles applicable, none of the proposed grounds of review are reasonably arguable with any realistic prospect of success.

85.  Therefore, the Applicant’s application for leave to apply for judicial review is dismissed. Even had any of the grounds been thought arguable, it would have failed on the substantive review.

86.  However, I see no reason why the unfairness to the Applicant should be compounded by a costs order to follow the event. Therefore, in the exercise of my broad discretion as to costs, I make no order as to costs.

87.  I also express the hope that an appropriate way can be found for the Applicant and her student daughter lawfully to continue their life in Hong Kong.