CHU SAI CHOI AND OTHERS v. THE DIRECTOR OF IMMIGRATION

HCAL1537/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO.1537 OF 2000

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J U D G M E N T

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1. There are three sets of applications before me for leave to apply for judicial review. The first is Chu Sai Choi and others (HCAL 1537 of 2000) and it involves 1350 applicants; the second is Yao Oi King and others (HCAL 2227 of 2000) with 423 applicants; and the third is Chu Shun Hing and others (HCAL 2575 of 2000), now with 4 applicants. All applicants purport to challenge removal orders said to have been made against them, as well as decisions allegedly communicated to them that, unless falling within a "Concession" announced in June 1999, they will be treated as affected by the Interpretation of the Standing Committee of the National People's Congress of 26 June 1999.

2. All the applicants are represented by the same firm of solicitors. In all cases I refused to grant leave on paper. It therefore fell for the applications to be pursued in court upon an oral application. Because of the manner and circumstances in which the applications came before me, I decided to hear all applications for leave on the same day, and today is that day.

3. All these applicants pray in aid in support of their applications the same grounds of application as those canvassed before me in Ng Siu Tung and others (HCAL 81 of 1999), Sin Hoi Chu and others (HCAL 70 of 2000), and Li Shuk Fan (HCAL 2 of 2000). In others words they say that they are entitled to the benefit of the judgments of the Court of the Final Appeal in Chan Kam Nga and Ng Ka Ling in January 1999. They also say, at least in their notice of application, that they should benefit from the announced policy of the Government as encapsulated in the statements made by the Chief Executive on 26 June 1999, that is, the date upon which the Standing Committee of the National People's Congress issued its interpretation of Articles 24(3) and 22(4) of the Basic Law.

4. On 30 June 2000, I handed down judgment in those three cases, namely, Ng Siu Tung, Sin Hoi Chu and Li Shuk Fan; judgments which held that there were no grounds established upon which to upset removal orders made or threatened, and that the applicants did not benefit from the 1999 judgments, and that the "Concession" announced by the CE, as interpreted and applied by the Government, could not avail the applicants.

5. That judgment was subject to an appeal. Judgment in that appeal has been handed down by the Court of Appeal yesterday, and the appeal failed. I shall refer to those cases as "the decided cases".

HCAL 1537 of 2000

6. There are 1350 applicants; falling within the various periods discussed in the decided cases. [The original application for leave asserted 1446 applicants. There is a summons for leave to amend the notice of application so as to reduce the number to 1350. After the hearing of this application but before perfection of the orders I make below, it was noticed that I made no order at the hearing as to the amendment. Leave to amend as sought is granted.] ¹ The application for leave to apply for judicial review was filed on 12 July 2000, and included an application for interim relief preventing removal of the applicants until determination of the proceedings; as well as an application for extension of time in which to make the application for leave to apply for judicial review. The grounds of application are, it seems to me, though I have not compared them side by side with the decided cases, to be taken straight from those lodged in the decided cases, and Ms Wong, who today appears for the applicants, confirms that that is so.

7. Relief is sought in the application against removal orders which are said to have been made by the putative respondent as well as against a decision of the Director said to be evidenced by letters sent to the applicants after 17 July 1999, to the broad terms of which I have already referred. There is no evidence at all before me of decisions made in the case of these applicants - no evidence of the removal orders, no evidence of the grounds of those orders, and no evidence of any letters sent to the applicants of the type specified in the Notice of Application. I am told by Ms Wong, who has said all that can possibly be said on behalf of the applicants, in the very difficult circumstances in which she has been placed, that removal orders have been made, and letters issued. Mr Wan, who appears for the respondent, tells me, however, that of the 1350 applicants in this particular case (that is HCAL 1537 of 2000) only 215 removal orders had been made. It is convenient at this stage to say that in the case HCAL 2227 of 2000, to which I shall later return, I am told by Mr Wan that only 21 removal orders have been made out of a total number of applicants in that case of 423 [originally 430 - see below]; and three removal orders made in the last of the three cases before me today.

8. There is, in short, no evidence of the decisions which are said to be under challenge.

9. No bundle has been prepared by the applicants' solicitors for today's hearing despite the size of these applications, and despite the fact that this hearing is, as they have for long known it would be, inter partes and set down for an hour. I have only last evening received a bundle. It is prepared by those acting for the putative respondent. It shows that the correspondence between the parties commenced in April this year, in which the solicitors for the applicants said that they were making an application for right of abode on behalf of their clients. All they did was to enclose a list of clients (512 at that stage) with no details about them save their arrival dates in Hong Kong, and no evidence or any specification of the basis upon which each claimed the right of abode. The solicitors asked for an undertaking that their clients be not removed until right of abode was granted, failing which they be not removed until determination of such judicial review as would be launched in the event that right of abode was not granted or conceded. Not surprisingly, the Director of Immigration replied saying that he was unable to consider the applications just by looking at a list of names, and said that, if the applicants wished to have their claims considered, they should provide details, the particulars of which requirements were then spelt out. There was an extraordinary response, so it seems to me, from the solicitors. It is dated 4 May 2000, and it says, in its relevant part: "The question, is whether you are prepared to grant the applicants right of abode subject to those particulars as requested in your letter being given. If not, then we respectfully ask you not to waste the time of the individual applicants and ours and we shall treat your letter dated 2nd May 2000 as a letter of refusal and we shall go straight to a judicial review."

10. By his response, the Director of Immigration pointed out, with commendable restraint, that: "As you know, the individual circumstances of your clients may differ and thus whether they have any claim, if at all, for right of abode in the HKSAR. It is the duty of this Department to consider each and every case as they present themselves. Hence, the request for information as stated in our previous letter dated 2 May 2000 is considered necessary. The Director will be unable to proceed without the necessary background and supporting evidence in relation to your clients' respective cases."

11. The solicitors instituted proceedings for judicial review nonetheless, using the grounds of applications pleaded in the decided cases.

12. There is, as I say, no verifying affirmation, that is, no affirmation verifying the facts asserted in the Notice of Application. Instead, there are a number of affirmations in all three cases from the solicitor acting for these applicants in which he stated what these applications are all about, in this sense that they are all designed to enable the applicants to stay in Hong Kong so long as the litigation in the decided cases is not concluded by a determination of the Court of Appeal and the Court of Final Appeal. In his affirmation, the solicitor says that he had understood from a statement made by the Deputy Secretary for Security on 30 June 2000 that the Government would not repatriate right of abode claimants who were applying for judicial review. Where he derived that information from I cannot quite tell, but it does not sit with the statement issued by the Government that day, nor with correspondence from the Director to these solicitors, in which correspondence it was made plain that no blanket undertaking was provided to potential applicants not to remove them.

13. Given my judgment of 30 June 2000, a judgment delivered after full consideration of the very grounds which these applicants wish to advance, I was not prepared to grant leave on the papers. A full note to that effect was sent to the applicants' solicitors, and they were told that they would need to fix a date for the oral hearing. If there was to be such a hearing, then they were to identify those whom it was said had written letters to the Immigration Department asserting the right of abode. (I did that because it was clear that, if there was a record of a claim of right of abode then, subject to some other considerations, those applicants might be said to be within the Concession; and because none of the other pleaded modes of asserting right of abode came within the Concession policy of the Government as upheld by my judgment). I pointed out also that there was no verifying affidavit.

14. What the solicitors then did was to issue a notice of appeal against my refusal to grant leave on the papers. It was pointed out to them that leave had, however, not been refused. There was then some very considerable delay before a date for this oral hearing was obtained. In the meantime, the solicitors wrote to this court in early November, again stating why the application was launched, and that there were inadequate resources to file affidavits or affirmations for each applicant; and further saying that the firm was unaware of any applicants who fitted within the Concession as that policy had been applied by the Government and approved, as it were, by this court. The court replied that it was content that affirmations at this stage for each applicant need not be filed, but said that at least one affidavit should be filed on behalf of all applicants speaking, as far as possible, to the truth of the assertions in the notice of application for leave to apply for judicial review or perhaps, as an alternative, a few affirmations from a representative group. But all that has not been done. All I have is an affirmation giving me a list of applicants, and the solicitor also stating that, as far as he is aware, none of the applicants exchanged correspondence with the putative respondent during the relevant period - a fact relevant to the question of the "Concession".

15. This is in my judgment, and I regret to have to say it, a poor state of affairs. If the solicitor has accepted instructions from so many applicants, it is no answer for him to say to this court, after such a long lapse of time between notice of application and hearing, that he has not the resources to cope. He has had time enough to cope with what little this court has asked him to do, and in accepting instructions and in continuing to act he is obliged to fulfil the requirements of the rules. There is still no evidence before me, in the form of an affirmation, of the decisions under challenge. For this reason, alone the applications must fail; that is, I cannot extend time, for I have no idea of the dates on which the decisions - such as were made - were made, nor any evidence about the delay or the reasons for it. Furthermore, I could not properly grant leave where there is no evidence of challenged decisions, not least where there is a dispute, as there is before me, whether decisions in most cases have in fact been made.

16. But all that apart, there is, in any event, no possible merit in these applications. Whichever test is adopted as the appropriate threshold test (see the two tests which are discussed in Wong Chung Ki and Chang Shu Ying v. The CE and the Secretary for Constitutional Affairs CACV 102 of 2000) this case does not meet those tests. Not only do I fail to have evidence as to what decisions are being challenged but, even assuming that the respondent has made removal orders in all cases, or made decisions in the case of the applicants, the points raised by the applicants as grounds of challenge to those decisions have been decided both at first instance (by myself and, separately, by Yeung J.) and also now by the Court of Appeal. The fact that the decided cases might go further on appeal does not in my judgment affect the matter in the circumstances that now prevail. I have had the advantage of reading the Court of Appeal's judgments. The Court of Appeal was, in the decided cases, unanimously of the view that the grounds there presented failed. They are the same grounds as the applicants now wish to pursue in this application. Quite apart from the matters procedural, the point is now in my judgment quite unarguable. Ms Wong asks me to say that it is unreasonable of the Director now to remove the applicants in the light of some suggested undertaking not to remove those applying for judicial review. The short answer to that contention is that such a decision is not a decision challenged in these proceedings. For the reasons which I have given, leave is refused in this case.

17. I did consider whether it would, in the circumstances, be appropriate to adjourn the applications for leave until such time as the Court of Final Appeal has issued judgments in the three decided cases from such appeals as may be launched against the decision of the Court of Appeal yesterday. I do not think it appropriate to take that course nor, I note, is that the course that has been taken by Yeung J. who, I am told, has since mid-July this year dismissed over 2000 applications for leave, applications launched on the same grounds as that before me today. To those of us which have been dealing with these cases, what is apparent, what has been happening, is that persons from the Mainland have on a daily basis continued to flow into Hong Kong, often on two way permits, for short stays, and have then overstayed seeking to climb onto the back of current litigation. As the correspondence in the present case, and the affirmations in the present case, make clear, all the applicants are seeking to do is to prolong their stay in breach of conditions of stay, for as long as possible. I see no valid basis in adjourning these applications.

HCAL 2227 of 2000

18. This case is in the same vein as the first. Here there were 430 applicants. [This figure, pursuant to leave to amend the notice of application, which I omitted at the oral hearing to give, but now grant, before perfection of the order, is now 423.] The decisions said to be challenged are the same - removal orders and decisions in a proforma letter issued to the applicants, or some of them, that they will be treated as affected by the Interpretation unless falling within the terms of the "Concession". This application is dated 26 September 2000. There is an affirmation in support, but it does not verify any facts asserted, and it says precisely the same as to the reasons for the applications as that filed in the first case. I made the same determination on 1 October 2000, namely, not to grant leave on the papers; and I again said that if in those cases there were those said to fall within the Concession, namely, where claims had been made to the Director of which he had a record in writing, the applicants who are said to fall within the terms of the Concession as determined by the court should be identified. I see a letter dated 7 November 2000 from the solicitors for the applicants to the Department of Justice saying that they are not aware of any applicant who falls "within the continuing definition of the Concession."

19. Again, in this case, there is no evidence of decisions to challenge, and in so far as the applicants rely in any event on the grounds in the notice of application for leave, these are issues which have already been decided. In so far as extensions of time are sought, they are refused. In cases where extensions are not necessary, leave is refused.

HCAL 2575 of 2000

20. In this case there are four remaining applicants. The notice of application for leave is dated 15 November 2000. There is nothing to distinguish this case from the other two to which I have referred. Accordingly, as with the other two cases, in so far as extension of time is necessary, it is refused; and in cases where extension of time is not necessary, leave is refused.

Costs

21. The putative respondent asks for costs. Whilst I recognize that on an application for leave to apply for judicial review, where the application is made exparte, even at an oral hearing a court might be slow to award costs if the putative respondent insists on appearing. This case somewhat different. It is quite obvious to me that the history of these proceedings made it imperative and inevitable that the respondent should appear. There was also in these applications embodied an application for interim relief that clearly require the presence of the respondent. The applicants' solicitors had all along been aware that pursuit of this application would mean that the court required the assistance of those appearing for the respondent. Indeed in this case those asking for the respondent has had, by reason of the conduct of the solicitors, to prepare themselves a bundle for this court's assistance. The application has nonetheless, quite devoid of merit, been pursued, and in the circumstances that I have described it seems to me that a costs order should be made in favour of the putative respondent. I shall accordingly order in each of these applications that the costs of and occasioned by the applications by the respondent be paid by the applicants.

1 This passage, as well as that on page 15 below, in square parenthesis, has been added, upon perfection of the judgment.