NG CHUN HING AND OTHERS v. DIRECTOR OF IMMIGRATION

[English Translation]

CACV 380/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 380 OF 2002

(ON APPEAL FROM HCA NOS. 2211 & 2214/2002)

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JUDGMENT

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Hon Woo JA:

Background

1. The 7 appellants in this case are 7 of the 300 plus plaintiffs in HCA 2214 & 2411/2002.  In those two cases, by their Statements of Claim endorsed on the Writs of Summons, the plaintiffs applied for writs of habeas corpus and injunctions to prohibit the defendant, namely the Director of Immigration, from “making decisions of repatriation [against the plaintiffs] during the subsistence of their court actions.”

2. The causes of action as set out in the Statements of Claim were as follows.  The plaintiffs came to Hong Kong on the strength of Permits to and from Hong Kong and Macau which they obtained by lawful means.  They applied for the right of abode in Hong Kong, and for the purpose of processing their applications, the defendant extended their lawful stay in Hong Kong by giving them permits commonly known as “going-out passes”.  According to paragraph 4I(i) of the Application for an Extension of Stay (Form ID 91) issued by the Immigration Department, where a Mainlander who had lawfully stayed in Hong Kong for 3 years applied in Hong Kong for unconditional stay for the purpose of reunion with his/her parents/spouse who resided in Hong Kong, the defendant should grant him/her unconditional stay in Hong Kong.  The plaintiffs claimed that they satisfied the requirements under paragraph 4I(i) of Form ID 91, but the defendant refused their applications.

3. Pursuant to Order 18, rule 19 of the Rules of the High Court and/or the Court’s inherent jurisdiction, the defendant applied to have the plaintiffs’ Statements of Claim endorsed on the Writs of Summons struck out on the following grounds:

(a)        the Statements of Claim disclosed no reasonable cause of action; and/or

(b)       the Statements of Claim were scandalous, frivolous or vexatious; and/or

(c)        the Statements of Claim were otherwise an abuse of the process of the court.

The defendant also applied for dismissal of the plaintiffs’ actions.

4. The defendant’s said application regarding the two actions was heard before Deputy High Court Judge Cheung (as he then was).  Judgment was delivered on 16 September 2002, allowing the defendant’s application to strike out the plaintiffs’ Statements of Claim and dismiss their actions.  The causes of action in the two cases were identical, as were the contents and paragraph settings of Deputy Judge Cheung’s two judgments.  Therefore, the same approach will be taken in this judgment regarding the plaintiffs’ appeals.

The grounds of appeal

5. The plaintiffs’ grounds of appeal can be summarised as follows:

(1) Pursuant to the Basic Law of the Hong Kong SAR and the judgment of the Hong Kong Court of Final Appeal (the CFA) delivered on 29 January 1999, the 7 plaintiffs were entitled to the right of abode in Hong Kong, otherwise they would have no reason at all for being able to stay lawfully in Hong Kong for more than 3 years.  Their stay was lawful and not as a result of tolerance or sufferance by the Immigration Department.

(2) The plaintiffs meet the requirements for applying for an extension of stay as set out in Form ID 91, and the Immigration Department cannot deprive them of their entitlement by putting up sundry excuses.

(3) Even if the Statements of Claim contained in the Writs of Summons in these actions are procedurally improper, the defect can be rectified and the litigation can continue, and the Statements of Claim should not be struck out.

The right of abode litigation and its outcome

6. Following Hong Kong’s return to Mainland China on 1 July 1997, a number of individuals born in the Mainland applied to the Immigration Department for the right of abode in the Hong Kong SAR (“right of abode”).  These applications triggered a series of legal proceedings.  There were thousands of such applications and proceedings.  On 29 January 1999, the CFA delivered its judgments in Ng Ka Ling & others v The Director of Immigration (1999) 2 HKCFAR 4 and Chan Kam Ngar & others v The Director of Immigration (1999) 2 HKCFAR 82.  The judgments of these two cases are the judgments referred to in the abovementioned item (1) of the grounds of appeal.  In Ng Ka Ling, the CFA held that Article 24(2)(3) of the Basic Law is not subject to Article 22(4) [people must come to Hong Kong on the strength of one-way permits issued by the Mainland authority (“one-way permits”)] in that when children of Chinese nationality born outside Hong Kong of Hong Kong permanent residents (“permanent residents”) apply for the right of abode, they do not have to obtain one-way permits before they can be granted that right.  In Chan Kam Ngar, the CFA held that children of Chinese nationality born outside Hong Kong of permanent residents, whether they are born before or after at least one of their parents has acquired permanent residence, are persons within Article 24(2)(3) of the Basic Law and entitled to the right of abode.

7. On 26 June 1999, the Standing Committee of the National People’s Congress of the People’s Republic of China issued its interpretation on the question of the right of abode (“NPCSC’s interpretation”), by which the above judgments of the CFA were superseded and hence no longer applicable.  On 10 January 2002, in Ng Siu Tung & others v The Director of Immigration (FACV 1-3/2001 (10 Jan 2002, unreported)), the CFA elucidated the relationship between the two cases Ng Ka Ling and Chan Kam Ngar and the NPCSC’s interpretation as well as the effects thereof and made a conclusive determination on the issue of the right of abode.

8. Being a case determined by the CFA, Ng Siu Tung is binding on this Court. The NPCSC’s interpretation is also binding on this Court.  According to Ng Siu Tung and the NPCSC’s interpretation, by which this Court must abide, children of Chinese nationality born outside Hong Kong of permanent residents must satisfy one of the following three conditions before they can be granted relief by the court:

(1) The applicant arrived in Hong Kong before 1 July 1997, and at least one of the applicant’s parents was already a permanent resident at the time of the applicant’s birth.  Persons in this category are entitled to apply or continue to apply in Hong Kong for the right of abode, without having to obtain one-way permits; or

(2) [Persons with legitimate expectations] The applicant had received: (a) the pro-forma letter issued by the Legal Aid Department between 7 December 1998 and 29 January 1999, stating that the applicant did not have to take part in the then existing legal proceedings or commence new proceedings, or (b) the letter issued by the Secretary for Security on 24 April 1998 to the effect that the Immigration Department would abide by the judgment of the court in processing the right of abode applications.  For those in this category, the Director of Immigration should consider exercising the discretion conferred upon him by sections 11, 13 and 19(1) of the Immigration Ordinance (Cap. 115) and not remove the applicant from Hong Kong before a decision is made; or

(3) [Persons who benefit from the government’s concession policy] (a) The applicant was in Hong Kong during the period between 1 July 1997 and 29 January 1999, and (b) he/she made a claim of the right of abode to the Immigration Department during that period when he/she was in Hong Kong, and (c) the Immigration Department has a record of that claim or the claim had been referred to the Immigration Department by other officials of the Hong Kong Government in the course of executing their duties.  If there are documents that can clearly (i) identify the applicant as a child of permanent residents; (ii) provide particulars of the applicant, such as the date and place of birth; and (iii) request the arrival of the applicant in Hong Kong for the purpose of settlement or request the grant of the right of abode to the applicant, then the Director of Immigration should treat them as right of abode claims.  For persons in this category, the Director of Immigration should consider the applicant’s application in accordance with the abovementioned judgments in Ng Ka Ling and Chan Kam Ngar.

9. If an applicant does not satisfy any of the conditions set out in paragraph 8 above, he/she does not have the right of abode; even though his/her father or mother was already a permanent resident at the time of his/her birth, he/she has to obtain a one-way permit from the Mainland authority before he/she can exercise his right of abode in Hong Kong as a permanent resident.

10.  The plaintiffs’ claim in this appeal was not made on the basis of their having satisfied any of the above three conditions, whereupon they can acquire the right of abode in Hong Kong pursuant to the judgment in Ng Siu Tung.  The basis of their claim for relief as pleaded in their Statements of Claim was that, as they had been lawfully staying in Hong Kong for more than 3 years, the defendant could not or should not remove them from Hong Kong.  They applied for writs of habeas corpus and injunctions to prohibit the defendant from repatriating them.

The decision of the trial judge

11. In his judgment which runs to 26 pages, Deputy Judge Cheung canvassed the plaintiffs’ causes of action and made the following conclusions:

(1) The plaintiffs all landed in Hong Kong on the strength of Permits to and from Hong Kong (commonly known as “two-way permits”) and were permitted by the defendant to remain in Hong Kong as visitors for a specified period pursuant to section 11 of the Immigration Ordinance.  The plaintiffs never left Hong Kong after their period of stay expired, nor had they been granted permission by the defendant to extend their stay pursuant to section 11(5A) of the Ordinance.  The plaintiffs were therefore overstayers in Hong Kong.

(2) The plaintiffs had been issued with recognizances (commonly    known as “going-out passes”) by the defendant under section 36 of the Ordinance.  However, the recognizances were only interim security for permitting the plaintiffs, who were overstayers or illegal immigrants, to remain in Hong Kong as an alternative to detention, pending repatriation or the issuance of removal orders.  The recognizances did not amount to any permission granted pursuant to the Ordinance by the defendant to the plaintiffs to stay in Hong Kong.

(3) The plaintiffs had overstayed in breach of the period of stay or, having landed in Hong Kong unlawfully, remained in Hong Kong.  By doing so, they had committed criminal offences as stipulated in sections 41 and 38(1)(b) of the Immigration Ordinance.

(4) Individual plaintiffs also relied on the fact that the defendant had issued them with “interview paper” as support for their claim that they had been permitted to stay in Hong Kong lawfully.  Deputy Judge Cheung was of the view that the defendant had not permitted or authorised the plaintiffs to stay in Hong Kong lawfully; rather, the defendant had suffered those plaintiffs, who had no right to stay in Hong Kong, to continue to stay in Hong Kong without permission or authorisation for the sole reason that they were awaiting the outcome of their litigation.  Deputy Judge Cheung cited the following cases to support his decision:

(i) Lai Yau Chik v Director of Immigration [2002] 2 HKC 546,                      

(ii)   Huang Bingzhi v Immigration Tribunal, HCAL 1718/2000 (Court of First Instance), CACV 357/2001 (23/1/2002) (Court of Appeal),

(iii)  Re Wong Shu-hung v Immigration Tribunal [1985] HKLR 463, and

(iv) Mak Yui Ming v Attorney General [1981] HKLR 435.

(5) The defendant had issued removal orders against the plaintiffs pursuant to section 19 of the Ordinance.

(6) Form ID 91 is one of the many general forms printed and issued by the Immigration Department.  The description of the categories of applicants set out in that form is neither comprehensive nor specific, and cannot be taken as a representation to the public of the defendant’s policy on the relevant issue.  The description is not binding on the defendant and the government.

(7) Even if Form ID 91 did have a binding effect or did constitute a statement of the defendant’s stipulated policy regarding the plaintiffs’ applications for extension of stay, the plaintiffs still failed to satisfy the conditions set out in the form, in particular the condition under paragraph 4I(i) of the form regarding the categories of the applicants.  The plaintiffs’ circumstances did not meet the requirement of “ordinary residence in Hong Kong for a continuous period of 3 years”.

(8) Deputy Judge Cheung held that the plaintiffs’ Statements of Claim did not disclose any arguable claim and were “frivolous or vexatious” within the meaning of Order 18, rule 19 of the Rules of the High Court.  Accordingly, he struck out the plaintiffs’ Statements of Claim and dismissed their actions.

12. In my judgment, Deputy Judge Cheung’s above decisions are beyond reproach.  Those decisions also correctly and completely answered the plaintiffs’ first and second grounds of appeal.  In my view, those grounds of appeal must fail.

13. Prior to the delivery of the judgment of Ng Siu Tung on 10 January 2002, the dispute and litigation over the right of abode issue had not been conclusively resolved and determined.  It was therefore proper for the defendant and the Immigration Department to suffer the plaintiffs to stay in Hong Kong pending final determination of that issue, and understandably time was needed during that period to consider the plaintiffs’ applications for extension of stay.  However, this should not be taken to mean that the defendant had permitted or authorised the plaintiffs to stay in Hong Kong.  Their stay in Hong Kong was not “lawful” and, as such, could not be regarded as ordinary residence in Hong Kong.  It follows that the plaintiffs could not acquire the right to continue to stay in Hong Kong by reason of that stay.  The defendant could therefore lawfully issue removal orders against them.  The application for injunction as set out in the plaintiffs’ Statements of Claim had no prospect of success and, indeed, were also not arguable and constituted an abuse of the process of the court.  The writs of habeas corpus applied for in the Statements of Claim would be granted only when the plaintiffs’ personal freedom was restrained, but the plaintiffs had not been detained by the Immigration Department and, therefore, the relief of habeas corpus was not applicable.  Even if that relief were applicable, the plaintiffs’ applications were, for the reasons set out above, not arguable.  In my view, it was at once legitimate and reasonable for Deputy Judge Cheung to strike out the Statements of Claim and dismiss the plaintiffs’ actions.

14. The third ground of appeal stem from the plaintiffs’ misunderstanding of what Deputy Judge Cheung stated in paragraphs 50 and 51 of his judgment.  These two paragraphs read as follows:

“Procedural impropriety 

50. I wish to add the following.  The Senior Government Counsel representing the Director of Immigration also pointed out in her submission that the subject matter raised in the writ of summons falls within the domain of public law, hence the action should not be commenced by way of ordinary writ of summons, but should be instituted by way of judicial review proceedings under Order 53 of the Rules of the High Court: see O’Reilly v Mackman [1983] 2 AC 237.  However, the Senior Government Counsel representing the Director agreed that under Order 2, rule 1(3) of the Rules of the High Court, the Court shall not completely set aside a writ by which proceedings are begun on the ground that the proceedings are required by the Rules of the High Court to be begun by an originating process other than the one employed.

51. In my view, where plaintiffs have an arguable case, then even though they have used the wrong process for commencing the action, that does not mean it cannot be cured or amended; even if an amendment is not possible and the Statements of Claim have to be struck out and actions dismissed, that also does not mean they cannot re-litigate the matter by adopting the correct legal process.  In light of the above, I have considered the striking-out application on the basis of whether the plaintiffs have an arguable case and not on the basis of the above procedural complaint.  And as aforesaid, I hold that the plaintiffs do not have an arguable case, and in all the circumstances, I am of the view that the Statements of Claim should be struck out and the actions dismissed.  I make the relevant orders accordingly.”

15. Plainly, procedural defect was not the reason why Deputy Judge Cheung allowed the defendant’s application and struck out the plaintiffs’ Statements of Claim and dismissed their actions.  Deputy Judge Cheung considered the substance of the plaintiffs’ claims to decide whether they were arguable.  In other words, even if the plaintiffs had adopted the proper legal process, their case and arguments still did not support their claims against the defendant and enable them to continue to stay in Hong Kong unconditionally.

Conclusion

16. Having carefully considered the plaintiffs’ claims and arguments as well as the reasons for Deputy Judge Cheung’s decisions, I respectfully agree with his judgment.  In my view, the plaintiffs did not have any reasonable cause of action or any arguable case to support their claims and actions.  I have also considered in detail plaintiffs’ various grounds of appeal and I see no merit in any of them.  Accordingly, I take the view that the appeal stands to be dismissed.

17. In my view, an order nisi should be made that the plaintiffs do pay the defendant’s costs of the appeal.

Hon Cheung JA:

18. I respectfully agree with Woo JA’s judgment in the present appeal and the reasons therefor.   I only wish to express my views on the issue regarding the contents of the General Form ID 91.

General Form ID 91

19. The plaintiffs in this appeal are all Mainland residents.  They entered Hong Kong from the Mainland by virtue of Permits for Travelling to and from Hong Kong and Macau.  Upon their entry into Hong Kong, they were permitted to stay in Hong Kong as “visitors” for a specified period of time.  The permission was granted by the Director of Immigration, who exercised his power conferred upon him by section 11 of the Immigration Ordinance.  All the plaintiffs had stayed in Hong Kong for 3 years or more.

20. Paragraph 4I(i) of the Notes for Guidance set out in the Application for an Extension of Stay (General Form ID 91) prepared by the Immigration Department states that: “Application for unconditional stay to reunite with resident spouse/parents by persons from the Mainland who have lawfully stayed in Hong Kong for 3 years”.  The Plaintiffs contended that they met the requirement of paragraph 4I(i).

The judgment in Ng Siu Tung

21. In my view, paragraph 4I(i) of General Form ID 91 cannot by itself form the basis of the plaintiffs’ entitlement to unconditional stay in Hong Kong.  On this complex issue involving the eligibility of Mainland residents to stay in Hong Kong, the plaintiffs just cannot solely rely on the Notes for Guidance contained in an application form as the basis of their claim for unconditional stay in Hong Kong.  In my view, the plaintiffs must first meet the requirements set out in the judgment of the Court of Final Appeal in Ng Siu Tung v The Director of Immigration [2002] 1 HKLRD 561 before they can stay in Hong Kong.  The greatest benefit that the right of abode entails is the right to stay in Hong Kong unconditionally.  Thus, the pre-condition for granting relief to the plaintiffs was that they had to be eligible for the right of abode in Hong Kong.  It cannot be the case that, on the one hand, Mainland residents are not permitted to stay in Hong Kong because they fail to meet the requirements set out in Ng Siu Tung, but on the other hand they can bypass the judgment in Ng Siu Tung and obtain unconditional stay in Hong Kong by relying on paragraph 4I(i) of General Form ID 91 after remaining in Hong Kong as visitors for 3 years.  This certainly is not the legislative intent of the Basic Law or the Immigration Ordinance.

Discretion

22. Furthermore, even if the Director of Immigration exercises his discretion to permit Mainland residents who do not meet the requirements set out in Ng Siu Tung to stay in Hong Kong, this form is only one of the documents required for an application for unconditional stay. This form must be submitted together with other relevant documents to the Immigration Department for consideration.  Apart from this form, a Mainland resident applying for unconditional stay in Hong Kong must complete and submit another standard form to the Immigration Department, namely a “Declaration of Application for an Extension to Stay”.  That Declaration expressly requires the applicant (or his/her parents) to declare that, at the time of the application, the applicant has already ordinarily resided in Hong Kong for a continuous period of 3 years.

Three years’ continuous ordinary residence in Hong Kong 

23.  Sections 2(4)(a)(i) and (ii) of the Immigration Ordinance provide that:

(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; or

(ii) in contravention of any condition of stay.       

24. The plaintiffs in this case did not meet the requirement of ordinary residence in Hong Kong.  Where visitors coming to Hong Kong on the strength of two-way permits remain in Hong Kong upon the expiry of the time limit of stay, they contravene a condition of stay, and   their 3 years’ residence in Hong Kong will not be treated as ordinary residence in Hong Kong.  For this reason, the plaintiffs were never eligible for unconditional stay in Hong Kong.

Lawful stay in Hong Kong for 3 years

25. Even if the plaintiffs could rely solely on General Form ID 91 as the basis of their applications, they still failed to meet the requirement of “having lawfully stayed in Hong Kong for 3 years” as stated in paragraph 4I(i) of the Form.

26. Any person permitted to land in Hong Kong subject to a condition of stay cannot be treated as a lawful stayer unless that person is, either before or after the expiry of that condition of stay, granted permission to continue to stay by the Director of Immigration pursuant to section 11 of the Immigration Ordinance.  In the present case, the Director of Immigration had not granted permission under section 11 to the plaintiffs to continue to stay in Hong Kong.

Recognizance

27. The plaintiffs contended that, as they had signed documents commonly known as “going-out passes”, they had been permitted to stay in Hong Kong lawfully.  These documents were recognizances signed and issued under section 36 of the Immigration Ordinance. They were documents which the Director of Immigration, in exercise of his statutory power, required the plaintiffs to sign.  The recognizances were an alternative to the exercise by the Director of his power of detaining the plaintiffs under section 27, 32 or 34 of the Immigration Ordinance, in that the plaintiffs, who had entered into the recognizances, were free from detention upon the terms of the recognizances.

28. Section 27 of the Ordinance authorises an immigration officer to detain “a person who may be examined” under section 4(1)(a) or who is required to submit to further examination following an examination under section 4(1)(a), and this includes any person arriving in Hong Kong, landing in Hong Kong or leaving Hong Kong.  After an immigration officer has examined “a person who may be examined” under section 4(1)(a), he can grant permission under section 11 to that person to land in Hong Kong.  Such permission is subject to conditions such as time limit of stay. 

29. Sections 32(2A) and (3A) of the Immigration Ordinance also empower the Director of Immigration and his subordinates to detain a person (including an illegal immigrant or an overstayer who is in breach of conditions of stay) pending the decision as to whether or not a removal order should be made under section 19(1)(b) against that person, and to detain a person against whom a removal order has been made, pending his removal from Hong Kong under section 25.

30. Under section 36, a recognizance is applicable to a person who can be detained under section 27, 32 or 34 but is not so detained at the time.  The plaintiffs in the present case definitely came under this category.  If they applied for extension of stay, they would have to be further examined, and they were persons who could be detained.  The application of a recognizance to a person who can be detained but is not at the time so detained is, in my view, not in any way contrary to human rights legislation.

31. The issuance of recognizance is an administrative measure intended to provide an alternative to detention, and is wholly distinct from the granting by the Director of Immigration of permission to overstayers to continue to stay in Hong Kong lawfully.  For this reason, the plaintiffs also did not meet the requirement of lawful stay.  The argument that the plaintiffs as overstayers had not been prosecuted is irrelevant to the determination of the plaintiffs’ status in Hong Kong.  

Conclusion

32. I take the view that Deputy Judge Cheung’s decision is correct.  The plaintiffs’ Statements of Claim should be struck out for disclosing no reasonable cause of action, and their actions should be dismissed.

Hon Woo JA:

33. We unanimously dismiss the appeal and make an order nisi that the plaintiffs do pay the defendant’s costs of this appeal.  If neither party raises an objection with this Court regarding the order nisi within 14 days after the delivery of this judgment, the order will become absolute.