XCHRX EDILBERTO J. ZUNIGA v. ELVIN RAMON L. ZUNIGA AND OTHERS

THE JUDGE HAS AUTHORIZED PUBLICATION OF THIS JUDGMENT

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDING NO. 788 OF 1994

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H E A D N O T E

Wardship - whether an abuse of process because intended to thwart immigration control.

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J U D G M E N T

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1. This is a most unusual case concerning a baby boy called Melvin Zuniga, who was born in Hong Kong on the 6th September 1993.

2. The Plaintiff is his grandfather who is a permanent resident of Hong Kong. He has made Melvin a ward of court.

3. The Attorney General has applied to be joined to these proceedings, and this was granted without objection. Having been joined, the Attorney General seeks the dismissal of these wardship proceedings on the grounds that they are an abuse of the process of this court and are designed solely to thwart the decision of the Director of Immigration to remove Melvin from Hong Kong.

4. The law applicable to cases such as this is not in dispute and is, as I set out, in Nguyen Dang Vu & Other v. The Attorney General (unreported) MP4257 of 1993 judgment delivered 3rd January 1994. In that case, following previous decisions in England and Hong Kong, I held that it was an abuse of process to institute wardship proceedings, however laudable, when the only object of those proceedings was to gain time during which it was hoped that persuasion could reverse the decision to remove the unfortunate young man. (Although I dismissed those proceedings, nevertheless hearts did soften and I understand that the minor in that case is now in California with his relatives.)

5. It is accepted that there may be exceptional cases where it might be permissible to institute wardship proceedings after a removal order has been made. Is this case one of them?

6. The facts are, as I have said, unusual and tragic.

7. The 2nd Defendant is the child's mother, who is a Philippine national, who came to Hong Kong from the Philippines on or about 9th April 1990 to join her resident husband Mr. Chan whom she married in Hong Kong on the 1st November 1989. At the time that Melvin was born on the 6th September 1993, the 2nd Defendant was living separate and apart from Mr. Chan. As a result of her marriage to Mr. Chan, she had managed to acquire a dependent visa which was due to expire on 9th October 1993. Thus at the time of Melvin's birth in Hong Kong, she was legally permitted to remain in Hong Kong. The 1st Defendant is also a Philippine national and a Hong Kong resident. He is the son of the Plaintiff. He developed a relationship with the 2nd Defendant, and it is conceded on all sides that he is the father of Melvin.

8. Melvin was born in the Kwong Wah Hospital, but shortly after he was born, the 2nd Defendant checked out of the Hospital, leaving the child behind. Cutting a long story short, the grandparents eventually obtained the child and have been looking after him ever since.

9. In October 1993, both the 1st Defendant and the 2nd Defendant were arrested for possession of dangerous drugs and they were duly convicted. The 1st Defendant was sentenced to 3 months' imprisonment at Hei Ling Chau Rehabitation Centre, and the 2nd Defendant was sentenced to a total of 6 months' imprisonment in Tai Lam Correctional Institution. The 2nd Defendant's visa to remain in Hong Kong expired on the 9th October 1993 and therefore, when she was released from prison, she became an overstayer and was transferred to Victoria Immigration Centre where she was detained as an overstayer pending deportation.

10. In the meantime, certain proceedings were taken under the Protection of Women and Juveniles Ordinance, but in due course, these proceedings were dismissed.

11. Both the 1st Defendant and 2nd Defendant were present in court before me. The 1st Defendant wishes his father to have care and control of the child as he realizes that he is irresponsible, immature, has no funds and no experience or knowledge of how to raise an infant. He specifically told me that he wishes the child to remain in Hong Kong being looked after by his parents. It is clear that if this is allowed to happen, the grandparents would attempt to adopt Melvin. The 2nd Defendant told me quite clearly that she wishes the child to remain in Hong Kong because she has nowhere to take the child in the Philippines. She has told the Plaintiff that she has no money and no job and nowhere to live in the Philippines. She lost contact with her family many years ago and cannot now expect any support from them. Further the Plaintiff affirms that he was told by the 1st Defendant and believes that the 2nd Defendant, in order to survive in Hong Kong, earned her living as a prostitute. The Plaintiff completes this part of his affirmation in the following terms :-

"I dread to think what might happen to said child if she continues to stay in this field when in the Philippines (a reference to prostitution). Indeed I am truly worried that said child will be abandoned by her."

12. It is not without significance that she did abandon the child in the Hospital just days after he was born.

13. An affidavit was placed before me from Mr. C.M. Cheng, an Immigration Officer. He was familiar with the departmental files relating to Melvin and the 2nd Defendant. Miss Watson, who appeared on behalf of the Attorney General, helpfully made it clear that the Director of Immigration was not aware of the matters which I have set out above when he made his decision to remove Melvin on the 16th March 1994. However, the Plaintiff's solicitor has now written to the Director of Immigration and set out the matters, to which I have made reference, which are, of course, set out in the Plaintiff's affirmation in these proceedings. Miss Watson has assured me that the Director will now reconsider Melvin's case in the light of these new circumstances and will make a fresh decision. In the meantime, if the wardship proceedings are dismissed, Melvin will not be removed until the Director has made a decision, and if the decision is adverse to Melvin, then he will not remove Melvin until he has given reasonable notice to the Plaintiff to enable him to seek leave to apply for judicial review of the new decision. In those circumstances, says Miss Watson on behalf of the Attorney General, there can be no need whatsoever for these wardship proceedings. If the Director permits Melvin to stay, as all the parties to this matter sincerely hope, these proceedings will be unnecessary. If, however, the Director decides to remove Melvin notwithstanding the new representations, then if these proceedings are still in existence, they serve only to thwart the implementation of the Director's decision to remove Melvin, and as such can only be an abuse of process in accordance with the case above-cited and the cases referred to therein.

14. Miss Van Langenberg, who appears for the Plaintiff, urges me to say that there are exceptional circumstances in this case. One exceptional circumstance, she says, flows from the Parent and Child Ordinance No. 17 of 1993, which came into force on the 11th of March 1993. She points out that in Section 5, there is a presumption that a man is the father of a child if he was married to the mother of the child at any time, and if there arises by virtue of that marriage a presumption of law that the child is the legitimate child of that man. She submits that as the 2nd Defendant was married to Mr. Chan at the time when the child was born, there is a presumption that he is the father of that child although everybody knows that that is not the case.

15. However, under Section 6 of this Ordinance, any person may apply to the court for a declaration that a person named in the application is, or was, in law, his parent. That means that Melvin may apply to the court, through the official solicitor, for a declaration that the 1st Defendant is, in fact, his father. If that is granted, then that would add considerable force to any adoption application made in due course by the Plaintiff.

16. I do not see how this argument affects the issue as to whether or not the wardship proceedings are an abuse of process. There is nothing to stop the official solicitor acting on behalf of the child making such an application for a declaration of parentage. The Director of Immigration is going to consider Melvin's case not in the light of whether or not, he is likely to be adopted by his grandfather, but in the light of, whether or not, there exists in his case such strong humanitarian grounds so as to justify the exercise of his discretion to permit Melvin to remain in Hong Kong.

17. I have given this matter very careful consideration and that is why I reserved judgment. It seems to me that there is a proper way to deal with a situation such as this. If somebody on behalf of an infant child feels that there are special circumstances to justify the exercise of the Director's discretion to permit the child to remain, then representations have to be made to the Director. If the Director permits the child to remain, then that is the end of the matter. If the child is to be removed, then the only course open to those acting on behalf of the child is to apply for judicial review of the Director's decision. This is not an easy task in the light of the wide terms of the discretion and the way in which the courts have approached similar cases. However, the Director has made it clear that he is prepared to exercise his discretion where strong humanitarian grounds are shown. If a case were to come before the court where there were undoubtedly strong humanitarian grounds, but yet the Director failed to exercise his discretion to allow the child to remain, then it is open to the court, in the exercise of its discretion, to say that such decision was one to which no reasonable Director exercising his statutory discretion could have arrived at.

18. The plain fact of the matter is that we are not yet at that stage in regard to this case. Proper, reasonable and powerful submissions have now been made to the Director in support of Melvin's application to remain in Hong Kong. I have no reason to believe that the Director will not give these representations the most careful consideration. The discretion to be exercised is that of the Director and it matters not what is thought by any judge. However, it does appear to me that this is a most unusual case, and if Melvin were to be returned to the Philippines with the 2nd Defendant, there must be a very real risk that he will be abandoned. I have no doubt that the Director will take this and the other matters into consideration. As Miss Watson has fairly stated that the child will not be removed pending the decision-making process and will not be removed without giving the Plaintiff an opportunity for applying for judicial review, I can see no reason why these wardship proceedings should be allowed to continue. Miss Van Langenberg says that the Plaintiff may not be able to get legal aid to challenge the Director's decision if it is adverse to Melvin's application. Again, it is not for me to interfere with the discretion of the Director of Legal Aid, but I am sure when she reads this judgment and, of course, takes into account what is said by the Director, she may take the view that this is one of those cases where legal aid should be considered with some care. I do not believe that the uncertainty with regard to legal aid is a factor which would lead me to conclude that the wardship proceedings are other than an abuse of the process of this court.

19. I reiterate what was said by Lord Denning in Hanif v. The Secretary of State for Home Affairs [1968] 2 A.E.R. 145 where 151 he said :-

"The policy of the statute is to place immigration control in the hands of the Immigration Officers, trusting that they will exercise their powers fairly and, as I believe they do, humanely also. So long as they exercise it honestly and fairly, the courts cannot and should not interfere. They will not issue a writ of habeas corpus or certiorari so as to review the decisions of the Immigration Officers. Nor will they allow the wardship jurisdiction to be used for a light purpose."

20. In this case, the Director of Immigration must be given an opportunity of considering the new material. Wardship proceedings were commenced at a time before the new material was submitted to him for his consideration. The only purpose of those wardship proceedings was to prevent him giving effect to the removal order which on the information he then had seemed to be a proper exercise of discretion. He is now going to look at the fresh circumstances and he must be permitted to do so in the absence of these wardship proceedings.

21. In all the circumstances, therefore, I am bound to conclude that these wardship proceedings are an abuse of process in line with the cases cited, and that in those circumstances, I have no choice but to dismiss them. It has been agreed between the parties that costs shall follow the event and I, therefore, make an order that the Plaintiff do pay the Defendants' costs to be taxed, if not agreed. There will be legal aid taxation of the Plaintiff's costs.

22. In view of the importance of this matter from the viewpoint of Melvin, I authorize publication of this judgment. It goes without saying that I accepted the undertaking given by Miss Watson on behalf of the Director that no steps would be taken to remove Melvin until the Director had made his decision, and if that decision was adverse, then a reasonable time would be given to the Plaintiff to consider, whether or not, to apply for judicial review.

Postscript

23. Whilst preparing this judgment I was informed that the Director had re-considered the matter and had rescinded the removal order against Melvin. "All's well that ends well."