CHAN CHUN SUM v. CHAN KWAN CHIN AND ANOTHER

1989, M. P. 1153

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H E A D N O T E

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    Wardship proceedings instituted after the making of a removal order by the Director of Immigration against a minor who did not have the right of abode in Hong Kong were struck out as being an abuse of the process of the court . In re Arif (an infant) [1968] 1 Ch. 643, A v. Liverpool City Council [1981]2 W. L. R. 948 and In re F (a minor) [1989]1 All E. R. 1155 followed.

1989 M. P. No. 1153

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. I am delivering the judgment in this case, that was heard in chambers, in open court as it involves issues of constitutional and public importance in wardship proceedings.

2. By a summons issued on the 14th June 1989, the Attorney General on behalf of the Director of Immigration, seeks to be joined as a party interested in wardship proceedings under 0.15 r.6 of the Rules of the Supreme Court and to strike out the originating summons filed on the 23rd May 1989 on the grounds that it is an abuse of the process of the court under 0.18, r 19(l)(d).

3. The facts reveal that Madam Chan Kwan Chin (the defendant) entered Hong Kong illegally in 1981 or 1982 and went to cohabit with Mr Chan Chun Sum (the plaintiff) a Hong Kong resident to whom she claimed she was married in accordance with Chinese customary law in 1979. As a result of her cohabitation she gave birth to a daughter (the minor) on the 10th June 1983. Since the defendant came to Hong Kong she has never had an identity card but she obtained one for the minor for the period from the 1st December 1983 until the 23rd April 1986 by the use of a third person's identity card. However, no subsequent application has been made.

4. The plaintiff said that he first met the defendant in Guangzhou in 1979 but denied that the was ever married to her. He agrees that he cohabited with the defendant in Hong Kong and that he is the father of the minor. The plaintiff and defendant separated in August 1988 when the defendant took the minor with her.

5. The defendant and the minor were arrested by the police on the 29th March 1989 and were detained in custody. The defendant was interviewed by an Immigration Officer on three occasions in April 1989 when she stated that she wanted to take the child to China, but later changed her mind to he present position that she is willing to give up custody to the plaintiff.

6. On the 23rd May 1989 a removal order was made against the defendant and the minor under section 19(1) (b) of the Immigration Ordinance (the Ordinance) on the grounds that under section 7(2) of the Ordinance neither had the right of abode or the eight to land in Hong Kong. The defendant decided not to appeal, but lodged an appeal on behalf of the minor to the Immigration Tribunal. The hearing of the appeal has been deferred pending the decision in the present case.

7. The plaintiff filed an originating summons on the same date as the removal order in which he applied for orders that the minor be made a ward of court, that he be given care and control, and that the minor be not removed from the jurisdiction without leave. Upon the filing of an originating summons, the minor automatically became a ward of court by virtue of section 26(2) of the Supreme Court Ordinance. The effect of the wardship also prohibits the removal of the ward from the jurisdiction without leave of the court.

8. On the 21st June 1989 Mayo J. made inter alia, orders that the minor remain a ward of court with care and control to the plaintiff, and for the minor to be released from detention.

9. Mr Whaley who appeared for the Attorney General submitted that the wardship proceedings are an abuse of the process of the court for the effect has been to fetter or to clog the decisions of the Director of Immigration in carrying out his statutory duties under the Ordinance in the control of immigration into Hong Kong. That the jurisdiction in wardship is in conflict with the powers conferred upon the Director of Immigration under the Ordinance with which the court is not entitled to interfere. Mr Whaley referred me to In re Mohamed Arif (an Infant) and In re Nirbhai Singh (an Infant) (1968)1 Ch. 643 where Lord Denning M. R. had this to say at 660, 661 and 662 : -

"First, it is said that once a child has been ordered to be removed, there is no jurisdiction to make him a ward of court. I do not think it necessary to determine that point. I can well see that there may be exceptional cases where such a jurisdiction may be desirable. Second, it is said that at any rate, even if there is jurisdiction, it ought not to be exercised in cases like the present one. I think that this second submission is correct: It seems ........ Parliament laid down a full and complete code to govern the entry or removal of immigrants from the Commonwealth and has entrusted the administration of it to the immigration officers. So much so that the courts ought not to interfere with their decisions save in the most exceptional circumstances…. The Court will not exercise its jurisdiction so as to interfere with the statutory machinery set up by parliament. The wardship process is not to be used so as to put a clog on the decisions of the immigration officers or as a means of reviewing them."

10. Mr Whaley also referred to In re F (a minor) [1989] 1 All E. R. 1155 where the count held:-

"HELD - it was an abuse of process to use the wardship jurisdiction to keep within the jurisdiction a child who had overstayed his leave to enter thereby impeding the immigration authorities in exercising their statutory power to remove the child, since if the court were to make the child a ward of court in such circumstances it would be putting a fetter or a clog on the discretion given by Parliament to the immigration authorities and would frustrate the immigration legislation. However, there could be rare and exceptional cases where the use of the wardship jurisdiction could be necessary for the welfare of the child pending consideration of his position…….."

11. In another case to which my attention was drawn, A. V. Liverpool city Council and Another [1981] 2 W. L. R. 984, the House of Lords considered the wardship jurisdiction vis-a-vis a local authority which had obtained a care order in respect to a child. It was held that the general inherent power of the court in its wardship jurisdiction was available to fill gaps or supplement the powers of the local authority, but not to supervise the exercise of discretion within the field committed by statute to the local authority.

12. Mr Martion Lee, counsel for the Official Solicitor, acting on behalf of the minor, pointed to the different procedure upon an order for deportation in England where the appellant has to leave the jurisdiction before the appeal is heard whereas in Hong Kong the appellant will remain until the appeal process is completed and before any removal order is executed. Accordingly, he submitted that the gap between the decision to make a removal order and the hearing of the appeal would not act as a clog or fetter upon the discretion of the Director of Immigration during this period. Mr Lee argued that the object of the continuation of the wardship was to be in aid of the appeal with a view to legal representation being available for the minor when it is the intention of the defendant to produce evidence to support her contention that she is married to the plaintiff which if successful would cause the minor to be legitimate and entitled to stay in Hong Kong. However, if the minor is dewarded, this would probably deprive the minor of any entitlement to legal representation as legal aid is not available in the Immigration Tribunal. Mr Lee relies upon a passage in Re F (a minor) where Butler-Sloss L. J. had this to say at p.1158: -

"This is not to say, however, that wardship may never be instituted in cases where the position of the child concerned is being considered or has been considered under the immigration legislation. I do not think that Hollings J. was saying that there is no jurisdiction to continue wardship proceedings in any circumstances where immigration officials may wish to act. That position was left open by Lord Denning M. R. in Re A (an infant) and in my judgment there are cases in which the use of wardship may be necessary for the welfare of the child, bearing always in mind that those occasions are likely to be exceptional and that the jurisdiction must not be invoked or continued in such a manner as to clog the discretion of, or implementation of the decision of, the Secretary of State. It would seem to me desirable that if wardship is to be instituted in the rare cases where it might be appropriate, the plaintiff's claim should indicate on the face of the originating summons that the purpose of the issue of the wardship is to safeguard the welfare of the child while the Secretary of State is considering the immigration implications."

13. The Court of Appeal in Re F was able to fill the gap to exercise its wardship jurisdiction in the exceptional circumstances of that case whilst enquiries were made by the Secretary of State because the minor had been given temporary permission to remain in the United Kingdom whereas in the instant case the minor has never received permission to remain in Hong Kong. There are no exceptional circumstances in this case that can justify any interference with the duties of the Director of Immigration or to review the making of the removal order. Indeed, there had been no complaint that the immigration officer who made the removal order did not act honestly or fairly in coming his decision.

14. The duties of the Director of Immigration must be looked at as a whole and not in isolation for he has various duties to perform at different stages. He is empowered to detain a person pending investigation as to whether permission to remain in Hong Kong will be granted or whether a removal order is to be made. If a removal order is made, he has power to continue the detention pending an appeal.

15. The argument that wardship was sought for legal representation to be available for the minor upon the appeal is an irrelevant consideration. Legal representation for the appeal is in any event a matter of discretion to be decided by the adjudicator of the immigration Tribunal.

16. Wardship proceedings are wholly inconsistent with the statutory powers conferred upon the Director of immigration for under wardship, the minor cannot be removed from the jurisdiction without the leave of the court. Such proceedings will necessarily amount to a fetter at any stage when the Director of immigration is required to exercise his statutory power. Nevertheless although the welfare of the child is not a factor that can be taken into account, humanitarian grounds are taken into consideration.

17. The functions of the Director of Immigration cannot be hamstrung by wardship proceedings which were clearly instituted by the plaintiff in order to thwart those powers that have been specifically given by the legislature to control the vexed policy of immigration and deportation in Hong Kong. The court's powers are limited to the remedy of judicial review in an appropriate case. The orders bade by Mayo J. on the 21st June 1989 were therefore made without jurisdiction.

18. A Social Welfare report was obtained pursuant to the order of Mayo J. which will no doubt be placed before the authorities who, I am sure, will give sympathetic consideration to the situation of the minor. The child has lived in Hong Kong since she was born and is now just over six years of age. She is at present under the care and control of the plaintiff who has assistance from some of his relatives and a child minder. The child is attending kindergarten near her home at Sau Mau Ping. In the hope that he will be able to keep the child, the plaintiff has approached the Education Department to arrange for the child to be placed in Primary One. However, the issue as I have said is a matter for decision by the immigration authorities.

19. As a result there will be an order for the Attorney General to be made a party to the proceedings as the 2nd defendant whilst the originating summons will be struck out as an abuse of the process of the court.