NG WING HUNG v. COMMISSIONER OF REGISTRATION AND ANOTHER

 HCAL125/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 125 OF 2006

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J U D G M E N T

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1.  In this application, the applicant seeks to judicially review the decision of the Commissioner of Registration (“the Commissioner”) refusing to issue a Hong Kong permanent identity card to him and the decision of the Registration of Persons Tribunal (“the Tribunal”) dismissing his appeal against the Commissioner’s decision.

The applicant

2.  The applicant was born in Quanzhou City (泉州市), Fujian Province (福建省) in 1962. His father (吴啓明) has passed away. His mother is Lai Suk Sen (賴叔森). He has one elder brother and one elder sister.

3.  On 22 May 1997, he came from the Mainland to Hong Kong on the strength of a One-way Chinese Exit Permit (“One-way Permit”).  The One-way Permit was issued by the Bureau of Exit-Entry Administration (“BEEA”) of the Public Security Bureau of the PRC on 16 May 1997.

4.  The applicant was given permission by the Director of Immigration (“the Director”) to remain in Hong Kong for seven years until 22 May 2004.  It is the applicant’s case that he has since ordinarily resided in Hong Kong.

5.  On 28 May 1997, upon his applications, the Commissioner issued to the applicant a Hong Kong Identity Card, and the Director also issued to him a Document of Identity for visa purposes, which was to expire on 28 May 2004.

Letters from BEEA

6.  By a letter dated 11 June 2002, the BEEA requested the Immigration Department to provide information on, inter alia, the movement records of the applicant since 16 October 2001. The BEEA also asked to be kept informed of the applicant’s departure from or entry into Hong Kong.

7.  The Immigration Department replied by letter dated 13 June 2002. Among other matters, it was stated that the applicant last left Hong Kong for the Mainland on 24 May 2002. It is the Commissioner’s evidence in this case that the Immigration Department had no record of the applicant returning to Hong Kong after that date.

8.  Then by letter dated 28 September 2002, the BEEA informed the Immigration Department that the applicant’s One-way Permit was obtained by unlawful means and it had been revoked by the BEEA. The Immigration Department was requested to revoke the applicant’s right to remain in Hong Kong and to repatriate him to the Mainland.

9.  The Director responded by letter dated 22 October 2002.  The Director requested for information on the applicant’s personal and family background, the reasons for the application and issue of his One-Way Permit and the documentary records for the One-Way Permit application.

10.  There was no reply to the Director’s request until two years later. By letter dated 14 May 2004, the BEEA provided information of the application’s date of birth and family background. It was stated that his mother’s name was “賴树森” (Lai Shu Sen). The letter reiterated that the applicant had used unlawful means when applying for settlement in Hong Kong and that he had no lawful reasons to settle in Hong Kong. There were attached to the letter copies of (1) an application form dated 8 August 1996 for settlement in Hong Kong said to have been submitted by the applicant, and (2) the applicant’s Chinese identity card.

11.  By another letter dated 31 May 2004, the BEEA informed the Immigration Department that the applicant made his application for settlement in Hong Kong on the ground of joining his uncle (表叔) 陈诚榕 (Chan Shing Yung), but investigation revealed that the applicant did not have such a relative.  The letter repeated its request to the Department to revoke the applicant’s right to stay in Hong Kong and to repatriate him to the Mainland.

12.  This was followed by a further letter dated 14 June 2004. In it, the BEEA informed the Immigration Department that 陈谢榕 (Chan Tze Yung) had been interviewed and he stated he did not know the applicant.  A copy of the record of the interview that took place in the afternoon on 13 June 2004 in the Mainland at the Huanggong Border Checkpoint (皇崗邊檢阻留室) was attached to the letter.  Mr Chan was also interviewed by the Hong Kong immigration officer on the following morning (14 June 2004) at the Hong Kong International Airport, during which he stated that he did not know any person called Ng Wing Hung.

13.  For ease of reference, the four letters dated 28 September 2002, 14 and 31 May 2004 and 14 June 2004 will be collectively referred to as “the 4 BEEA letters”.

The applicant’s arrest

14.  On 7 June 2004, immigration officers arrested the applicant in Hong Kong on suspended offences of using and possessing a forged or unlawfully obtained One-way Permit. The applicant was interviewed by Immigration Officers on four occasions. Other than stating that his document was genuine and lawful, the applicant declined to answer the questions put to him. He was released on recognizance on 14 June 2002.  On 22 November 2004, he was released unconditionally.  No prosecution was brought against him.        

The applicant’s application for Hong Kong Permanent Identity Card

15.  Prior to that on 2 June 2004, the applicant had made an application for verification of eligibility for a permanent identity card (“VEPIC application”) on the basis that he had ordinarily resided in Hong Kong for a continuous period of seven years. 

16.  On 7 July 2004, the Immigration Department wrote to the applicant’s solicitors requesting it to confirm the applicant’s whereabouts as from 22 May 1997 and to provide supporting documentary proofs.  The applicant’s solicitors replied by letter dated 10 September 2004, setting out the applicant’s business activities and residence in Hong Kong.  The letter    stated that the applicant had since May 1997 resided in Hong Kong at    various addresses. A number of documents, including utility bills, were attached to the letter to show that the applicant had been resident in Hong Kong.

17.  On 9 December 2004, the applicant’s solicitors wrote to the Immigration Department requesting it to promptly process the applicant’s VEPIC application.

18.  By letter dated 6 January 2005, the Immigration Department informed the applicant’s solicitors that the Mainland authority had informed the Department that the applicant’s One-way Permit was obtained unlawfully and it had been declared invalid. Consequently, the applicant’s permission to remain in Hong Kong was vitiated and he was liable to be removed from Hong Kong.  As his stay in Hong Kong was considered to be unlawful, the Director was minded to refuse the VEPIC application. The applicant was given two weeks in which to make representation. 

19.  By letter dated 19 January 2005 to the Director, the applicant’s solicitors requested to be provided with the factual basis and supporting documents for saying that the applicant’s One-way Permit was unlawfully obtained. 

20.  On 29 January 2005, the applicant applied to the Commissioner for a Hong Kong Permanent Identity Card.

21.  By letter dated 4 February 2005, the Director informed the applicant’s solicitors that the Mainland authority had advised that the applicant’s One-way Permit was obtained by deception. The letter explained that:

“… your client declared to the Mainland Authority that the purpose of coming to Hong Kong for settlement was to join his relative Mr Chan Tse-yung (陳謝榕) who was his uncle residing in Hong Kong and that the application was approved on such basis. However, it was later found that your client does not have such a relative in Hong Kong.” 

22.  The applicant’s solicitors wrote on 18 February 2005 repeating its request for supporting documents and identity of the Mainland Authority mentioned in the Director’s letter.  On the same day, the applicant made a second application for a Hong Kong Permanent Identity Card.

23.  By letter dated 23 February 2005, the Director declined the applicant’s solicitors’ request for documents, stating that the relevant correspondence with the Mainland authority needed not be disclosed to the applicant.  By letter dated 2 March 2005, the applicant’s solicitors maintained its request for supply of documents and further stated that the applicant’s One-way Permit was obtained lawfully.  

24.  This was followed by another letter dated 8 March 2005 in which the applicant’s solicitors raised doubts over the Mainland             authority’s assertion that the applicant’s One-way Permit was obtained unlawfully.  Among other matters, it was said that joining an uncle was not one of the recognized categories for the issue of a One-way Permit and that for an application to join a relative in Hong Kong, the applicant had to submit an invitation letter from the relative, which would have to be attested by a China attesting officer. There was thus no chance to make false representation.                                  

25.  By letter dated 29 March 2005, the applicant was informed his VEPIC application was refused.

26.  Further by letter dated 30 March 2005, the Commissioner informed the applicant that his application for Hong Kong Permanent Identity Card was refused.  The material part of the letter stated:

“… the previous permission to land granted by the Director of Immigration to him for residence in Hong Kong since 22 May 1997 is vitiated by the deception in that such was obtained by him in using an unlawfully obtained one-way permit issued by the Mainland authority. Your client’s stay or residence in Hong Kong is at all material times without the permission of the Director of Immigration and thus he may not satisfy the residence requirement to establish his Hong Kong permanent resident status.  Accordingly, your client is not eligible for Hong Kong permanent resident status under paragraph 2(b) of Schedule 1 to the Immigration Ordinance.”

Appeal to the Tribunal

27.  On 25 June 2005, the applicant through his solicitors appealed to the Tribunal against the refusal of the Commissioner under case no. ROPT 59/05.  The four letters from the BEEA and their attachments were disclosed to the applicant for the first time by way of the List of Exhibits for the appeal.

28.  Subsequently, the applicant’s solicitors conducted an inspection of the BEEA letters and came to know that they were facsimile transmissions. By letters dated 17 and 30 May 2006, the applicant’s solicitors requested the Immigration Department to obtain the originals of the letters and attaching documents for the purpose of the appeal. By letters dated 29 May and 13 June 2006, the Immigration Department declined the request and stated that it only received the letters and documents by way of  facsimile.

29.  The Tribunal heard the appeal on 26 and 27 June 2006. On 7 September 2006, the Tribunal rendered its decision dismissing the appeal.

The judicial review application

30.  On 30 November 2006, the applicant filed the Form 86A herein.  Leave to apply for judicial review was granted on 6 December 2006. The Notice of Motion was filed on 13 December 2006.

31.  The applicant seeks the following relief:

(1)     An order of certiorari to quash the decision of the Tribunal;

(2)      A declaration that the applicant is a permanent resident of the Hong Kong Special Administrative Region by virtue of Article 24(2)(2) of the Basic Law and paragraph 2(b) of Schedule 1 to the Immigration Ordinance;

(3)     Alternatively, an order that the appeal be remitted to the Tribunal with a direction that the Tribunal is to reconsider the appeal and reach a decision in accordance with the findings of the Court.

32.  In the Form 86A and the Notice of Motion, the applicant had also sought an order of certiorari to quash the decision of the Commissioner of 30 March 2005, refusing the application for a Hong Kong Permanent Identity Card.  But this is no longer pursued at the hearing.

Grounds for judicial review

33.  At the hearing, two principal grounds were argued by the applicant. They are:

(a)      The Tribunal’s decision was Wednesbury unreasonable in that there was no or insufficient evidence to prove that the applicant’s One-way Permit was obtained unlawfully by him under the PRC law.

(b)     The Tribunal’s decision was Wednesbury unreasonable in that it had failed to take into account a number of relevant considerations, but accorded manifestly excessive weight to the application form enclosed in the letter from the BEEA.

The Tribunal’s decision

34.  Before analysing the grounds of judicial review, it is necessary to look firstly at the reasons for decision given by the Tribunal.

35.  At the hearing before the Tribunal, two immigration officers were called. The applicant did not give evidence. He had however adduced a handwriting expert report and an expert opinion on PRC law. The handwriting expert, Professor Cheung, was not required to attend for cross-examination.  He had examined the signature of “Ng Wing Hung” on the application form for the applicant’s One-way Permit and compared it to  specimen signatures of the applicant. He concluded that they were different.  The PRC law expert, Dr Lin, gave evidence on what were the grounds under the PRC law for applying to come to settle in Hong Kong and for the revocation of One-way Permit. It is his evidence that joining one’s uncle is not a ground recognized by the PRC law for coming to settle in Hong Kong. The applicant also called Mr Henry Wan, the solicitor who handled for him in connection with an incident that happened on 16 June 2004, during which several people were arrested near the applicant’s residence. They were found to be in possession of a pair of handcuffs and two of them had claimed to be public security officials from the Mainland. It is the applicant’s case that these people were intending to kidnap and take him to the Mainland in connection with a commercial dispute.    

36.  In the decision delivered on 7 September 2006, the Tribunal identified the sole issue of the appeal to be whether the Commissioner had proved that the applicant obtained his One-way Permit by unlawful means.                           

37.  In dismissing the appeal, the Tribunal made the following rulings:

(1)     As the parties had agreed, the Commissioner bore the evidential burden of proving the applicant’s One-way Permit was unlawfully obtained. The standard of proof was a high degree of probability approximating to the criminal standard which requires a proof beyond reasonable doubt.

(2)     The decision to refuse to issue a Hong Kong Permanent Identity Card to the applicant was based solely on the results of the Special Investigation Section and the Right of Abode Section of the Immigration Department. On this point, although the Tribunal said the decision was made by Mr Ling [sic], the evidence filed in this application suggested that the refusal was not recommended or made by Mr Ling. Nothing turns on this point, however.

(3)     There was no sub-contracting of statutory duties from the Commissioner to the Director of Immigration.

(4)     The 4 BEEA letters were faxed by BEEA to the Immigration Department.

(5)     Full weight may be attached to the contents of the 4 BEEA letters.

(6)     By the letter dated 31 May 2004, the BEEA informed the Immigration Department that the applicant’s reason for applying to come to reside in Hong Kong was “to join his uncle (表叔), i.e. Chan Shing Yung (陳誠榕). However, after investigation by BEEA, it has been found that the [applicant] has no relative known to be Chan Shing Yung.”   

(7)     By virtue of the 4 BEEA letters, the Commissioner had discharged his burden of proving that the applicant’s One-way Permit was unlawfully obtained.

(8)    While Professor’s Cheung’s status as an expert was not disputed, the result of his examination was unreliable in that original documents had not been used in comparison. Accordingly, no weight should be attached to the contents of his report.

(9)    While there was no dispute that Dr Lin was an expert in PRC law, he was not an expert in the procedure of BEEA in relation to the grant or revocation of One-way Permits.

(10)   The 1986 Interim Measures for the Control of Chinese Citizens Travelling on Private Business to or from the Regions of Hong Kong or Macao (“the 1986 Interim Measures”) have not defined what are the “other special circumstances” (referred to in Article 7(5) thereof) for settling in Hong Kong or Macao. The interpretations mentioned in Dr Lin’s report, including the booklet published by the BEEA, had no binding legal force.

(11)     Article 7(5) of the Interim Measures confers a wide discretion on the BEEA to determine whether an applicant has “other special circumstances” for settling in Hong Kong or Macao.  The Tribunal is of the view that reunion with one’s uncle is a valid ground recognized by the relevant regulations in the PRC for granting One-way Permit.

(12)    Dr Lin’s view that reunion with one’s uncle is not a ground envisaged by Article 7 of the 1986 Interim Measures is rejected.

(13)    When applying for his One-way Permit, the applicant claimed to reunite with his uncle. When this was subsequently proved to be false, it amounted to “fabrication of situations” (編造情況) under Article 28 of the 1986 Interim Measures and Article 7 of the Explanations on Several Issues relating to the Implementation of the Law of the PRC on the Control of Exit and Entry of Citizens. The BEEA was justified in declaring the applicant’s One-way Permit invalid and in revoking it.

Standards of proof

38.  Mr Chow SC had submitted on behalf of the Commissioner that the correct standard of proof should be on balance of probabilities and not, as ruled by the Tribunal, a high degree of probabilities approximating to the criminal standard of proving beyond reasonable doubt.  As the question of the standard of proof does not form part of the applicant’s grounds and has no material bearing on the present application, it is not necessary to embark upon a detailed discussion of it. It suffices to say that I continue to hold the view expressed in Lui Hau Man v. Director of Immigration & Anor (unreported) HCAL 134/2002, 21 January 2003 paras.61-65, namely, the standard of proof should be the civil standard of balance of probabilities, but where civil liberty is at stake, or where the gravity of the occasion calls for it, the court may require to be satisfied on a higher degree of probabilities.

The 1^st Ground

39.  The applicant’s first ground challenges the Tribunal’s finding that the Commissioner had proved that the applicant’s One-Way Permit was unlawfully obtained.  The rationale of the Tribunal’s conclusion was as set out in paragraph 37(4) to (7) above.                

40.  Essentially, this is a finding of fact by the Tribunal. In general, the court in its supervisory jurisdiction should be extremely slow to review findings of facts made by a tribunal.  However, there are situations where the court will be entitled to review or intervene with the findings of facts. The position has been summarized in Wade & Forsyth: Administrative Law (9th edition, 2004) p.272-3 as follows:

“Findings of fact are traditionally the domain where a deciding authority or tribunal is master in its own house. Provided only that it stays within its jurisdiction, its findings are in general exempt from review by the courts, which will in any case respect the decision of the body that saw and heard the witnesses or took evidence directly. Just as the courts look jealously on decisions by other bodies on matters of law, so they look indulgently on their decisions on matters of fact. 

But the limit of this indulgence is reached where findings are based on no satisfactory evidence. It is one thing to weigh conflicting evidence which might justify a conclusion either way, or to evaluate evidence wrongly. It is another thing altogether to make insupportable findings. This is an abuse of power and may cause grave injustice. At this point, therefore, the court is disposed to intervene.

‘No evidence’ does not mean only a total dearth of evidence. It extends to any case where the evidence, taken as  whole, is not reasonably capable of supporting the finding; or where, in other words, no tribunal could reasonably reach that conclusion on that evidence.” 

41.  The thrust of the applicant’s submissions on this ground is that the 4 BEEA letters and the application form for the One-way Permit contain unexplained errors and irregularities that seriously undermined their probative value and they could not have provided sufficient evidence to enable the Commissioner to discharge his burden.  The defects identified by the applicant include:

(1)     The original of the 4 BEEA letters were not available and there were no official chop on any of them.

(2)     The name of the applicant’s mother was wrongly written on the application form as 賴树森 (Lai Shu Sen) when it should have been賴叔森 (Lai Suk Sen). The same mistake appeared in the BEEA letter dated 14 May 2004. Further, in the space for stating the family members in the Mainland, the applicant’s sister was omitted. It was pointed out it was most improbable that the applicant would have made a mistake about his mother’s name since, among other things, the application form shows he was educated and had worked as a teacher as well as employed by the Ministry of Justice and a law firm.

(3)     Although in the space for stating proof of financial guarantee (經濟担保), the name of Chan Shing Yung was given. There was no reference or indication in the application form of the relationship between him and the applicant. The term “表叔” (uncle) did not appear in the form.

(4)     The application form did not indicate the reason for the application. The space for stating the reasons for leaving the PRC had been left blank.

(5)     There was no endorsement of the BEEA on the application form. The space for the issuing authority to fill in the particulars of the document issued had been left blank.  

42.  At the hearing before the Tribunal, the chief investigation officer of the Special Investigation Unit, Mr Choi To, accepted that the matters in (2), (4) and (5) above were in his experience unusual.

43.  Mr Chow SC submitted that there was no proper basis for questioning the authenticity of the 4 BEEA letters. I agree in the light of Mr Choi’s evidence before the Tribunal, it was open to the Tribunal to accept that the 4 BEEA letters were faxed by the BEEA to the Immigration Department.

44.  As to the defects and irregularities in the 4 BEEA letters and the application form provided by the BEEA, Mr Chow SC argued that it was ultimately for the Tribunal to consider them and then to assess the weight to be given to the contents of the 4 BEEA letters. He pointed out that the applicant had chosen not to give evidence to explain how he obtained the One-way Permit and doubts about the reliability of the materials may be more readily discounted in the absence of contrary evidence: Weissensteiner v. The Queen (1993) 178 CLR 217, 227.

45.  There is no doubt that the 4 BEEA letters and their enclosures form the core basis for the conclusion that the applicant’s One-Way Permit was unlawfully obtained. It is therefore important to see the finding or conclusion of the BEEA as expressed in the 4 BEEA letters. The conclusion or finding of the BEEA is that the applicant obtained the One-Way Permit by deception in that he applied to join his uncle in Hong Kong when the person named as his uncle was not in fact his uncle.  In support of this finding, the application form and the interview record of Chan Tze Yung were provided by the BEEA.  

46.  The application form by itself did not show that the applicant applied for his One-Way Permit on the ground of joining his uncle in Hong Kong. It did not show that he had stated Chan Shing (or Tze) Yung was his uncle.  At the same time, the applicant had disputed that the application form was signed and made by him.

47.  The Tribunal had mentioned the applicant’s criticisms of the application form by incorporating his counsel’s written submissions. However, there was no indication in its written decision as to what view it formed on these submissions. There was whether they were accepted or rejected by the Tribunal.  There was also no indication whether the Tribunal regarded any of them as relevant, and/or how, if any, did they affect the reliability of the application form.

48.  As to the record of interview of Mr Chan had with the BEEA, it shows that Mr Chan did not know the applicant. It, however, also shows that the travel agency mentioned in the application form did exist and Mr Chan had in fact worked as its general manager. The address and home telephone number given on the application form also matched those of Mr Chan before he moved to his latest residence. Mr Lee SC who appeared for the applicant in the Tribunal had submitted on the reliability of Mr Chan and what he stated in the interview, which in turn underlines the reliability of the BEEA’s findings as contained in the 4 BEEA letters.  It was said that these were more than mere coincidence.  As in the case of the criticisms made of the application form, the Tribunal had not in its decision dealt with this aspect of the applicant’s submissions.

49.  The Tribunal had concluded that full weight should be attached to the 4 BEEA letters.  This necessarily means that the Tribunal was satisfied that the conclusions of the BEEA as expressed in the letters are reliable and can be acted upon.  In arriving at this conclusion, it is incumbent upon the Tribunal to give consideration to the reliability of the materials provided by the BEEA in support of its findings. Inevitably, the Tribunal must consider and deal with the applicant’s challenges on the application form and the reliability of Mr Chan and his statement. This is particularly so when the challenges made by the applicant are substantial. Indeed Mr Chow SC does not seek to argue that they do not give rise to any cause for concern.  However, the Tribunal had given no reason for holding that full weight may be attached to the 4 BEEA letters.

50.  In addition, when the Tribunal ruled that it was satisfied by exhibit 9 (i.e. BEEA’s letter dated 31 May 2004) that the BEEA had informed the Immigration Department that the applicant made the application on the ground of joining Chan Shing Yung and investigation revealed the applicant had no relative called Chan Shing Yung (para.30(3) of the decision), the Tribunal did not appear to have appreciated that the BEEA had in that letter made a mistake about the name of the alleged uncle. The correct name as stated in the BEEA’s letter dated 14 June 2004 should have been Chan Tze Yung.              

51.  While it is within the power and remit of the Tribunal to assess and to decide on the weight to be given to the evidence before it, it is equally the responsibility of the Tribunal to demonstrate by its reason and decision that it had properly addressed the issues raised before it as to the quality and reliability of the evidence. In light of the rather substantial and important challenges made by the applicant on the 4 BEEA letters and the documents attached to it, notably the application form and the statement of Mr Chan, it would not be sufficient for the Tribunal merely to indicate that full weight may be attached to the 4 BEEA letters and that with these letters, the Commissioner had discharged his burden of proof.  The fact that the applicant had not given evidence may be a relevant factor when the Tribunal came to assess the evidence. However, it is simply unclear form the decision of the Tribunal whether this had been considered by it. In any event, this does not excuse the Tribunal from having to address the arguments and issues raised by the applicant on the reliability of the 4 BEEA letters and the documents provided by the BEEA. In my view, the Tribunal’s conclusion is therefore unreasonable in the Wednesbury sense.      

The 2^nd Ground

52.  Under the second ground, the applicant’s complaint is that the Tribunal had improperly dealt with the report of Professor Cheung, the evidence and opinion of Dr Lin and the incident that happened on 16 June 2004, but had placed excessive weight on the 4 BEEA letters.

53.  I deal firstly with Dr Lin’s evidence.  Undoubtedly, PRC law is a question of fact and the Tribunal can only come to a conclusion on the basis of the evidence before it. The only evidence of the PRC law on what are the permissible grounds for applying to come to settle in Hong Kong came from Dr Lin.  The Tribunal, while accepted Dr Lin was an expert on PRC law, did not accept that he was an expert in the procedures of the BEEA over the grant and revocation of One-Way Permit. It would appear from the reasons given by the Tribunal that it was on this basis that it rejected Dr Lin’s evidence that joining an uncle was not under the 1986 Interim Measures a valid ground for applying to settle in Hong Kong. I find this reasoning hard to follow. Whether joining an uncle is a ground envisaged by the 1986 Interim Measures is a question of interpreting the statute and is a question of law. Whether Dr Lin is an expert in the procedure over the grant of One-Way Permit will not be determinative of the issue. 

54.  That aside, what is more disturbing is that in rejecting Dr Lin’s evidence and holding that the academic writings referred to by him had no binding status, the Tribunal proceeded to find as a fact that reunion with one’s uncle is a valid ground recognized by the PRC for the grant of One-Way Permit (para.32(6) of the decision). There is simply no evidential basis for this finding on the PRC law.  Whether joining an uncle is a recognized ground is of course relevant to the weight to be put on the 4 BEEA letters and the findings stated therein.

55.  As to the handwriting report of Professor Cheung, the Tribunal had given its reasons for placing no weight on it. It is not the function of the court in a judicial review to substitute its views for those of the Tribunal so long as there are proper basis for them. In this case, it is due to no fault of the applicant that handwriting examination and comparison could not be conducted on the original document. But then, as recognized by Professor Cheung, this posed a limitation. On this basis, it is open to the Tribunal to have regard to this limitation and to decide not to place weight on Professor Cheung’s report.

56.  Turning to the incident on 16 June 2004, this was canvassed at the hearing before the Tribunal. There was however, no mention of it in the Tribunal’s decision and it is unclear what weight, if any, did the Tribunal place on it.  I however accept Mr Chow’s submissions that this is merely circumstantial and given that the applicant himself had not testified it would carry little if no weight. Further, the fact that the applicant was wanted in the Mainland does not have a necessary bearing on whether he had obtained his One-Way Permit unlawfully.

57.  In short under the second ground, I accept that the Tribunal had erred in relation to its finding that joining an uncle is a ground for applying for or the grant of an One-Way Permit and had thereby taken into account irrelevant consideration.  It also failed to take into account the relevant evidence of Dr Lin on this aspect.

Relief

58.  In light of the above analysis, the decision of the Tribunal should be quashed.  As to the declaration sought by the applicant, as I had said in other cases, I do not consider it is appropriate for the court to usurp the function of the Tribunal especially when the declaration sought depends on finding of facts.  In the present case, it is complicated by the fact that the movement records show that the applicant last departed from Hong Kong in May 2002 but there is no record of his returning to Hong Kong.  Insofar as the applicant is relying on Article 2(2)(2) of the Basic law and para.2(b) of Schedule 1 to the Immigration Ordinance, the period of his ordinary residence in Hong Kong is of great importance and has to be resolved before it can be said that the applicant enjoys the right of abode in Hong Kong.  But this is not an issue that the court in judicial review proceedings is best equipped to resolve. The matter should be remitted to the Tribunal for determination. I do not accept that the doctrine of res judicata applies. Neither do I agree that this course is unfair to the applicant.    

Conclusion

59.  For the above reasons, the application for judicial review is allowed. There is an order quashing the decision of the Tribunal and remitting the appeal to another differently constituted Tribunal for reconsideration. Applying the normal rule of costs follow event, I make an order nisi that the Commissioner pays the costs of the applicant, to be taxed if not agreed.