LEI CHAOHUI v. REGISTRATION OF PERSONS TRIBUNAL AND ANOTHER

CACV 119/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 119 OF 2013

(ON APPEAL FROM HCAL NO 97 OF 2011)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  We hand down this judgment in English as the judgment below was also written in English. For the benefit of the applicant, a Chinese translation of this judgment (prepared by Court Interpreter) is handed down at the same time.

2.  The applicant was born in the Mainland.  He came to Hong Kong in June 2010 using a One-Way Permit[1].  He applied for Verification of Eligibility for Permanent Identity Card (“VEPIC”) in September 2010.  The application was refused on 19 November 2010.  Despite that, he applied for a Permanent Identity Card on 10 December 2010 and the application was refused by the Commissioner of Registration.  The applicant appealed to the Registration of Persons Tribunal and the appeal was dismissed on 25 October 2011.

3.  The applicant then applied for judicial review against the decisions of the Tribunal and the Commissioner.  He was represented by counsel in the application.  The application was heard by Au J on 23 May 2013.  On the same date, the learned judge gave judgment refusing the application.

4.  By a notice of appeal of 5 June 2013, the applicant appealed against the judgment of Au J.  After the lodging of the appeal, substantial time was taken by the preparation of the appeal bundles and unsuccessful applications for legal aid.

5.  On 3 August 2014, the applicant requested for translation of documents.  He also indicated he needed to raise funds and asked for the fixing of the date of hearing the appeal be postponed.  On 11 August 2014, Government Counsel acting for the Commissioner and Director of Immigration indicated that they were willing to prepare the translations but suggested that it should be done after the hearing date was fixed.  Government Counsel consented to the postponement for fixing date.  She also indicated that the Commissioner and the Director of Immigration reserved the right to ask for security for costs.

6.  On 14 August 2014, a master acting as the Registrar of Civil Appeals granted the application for postponement of fixing of date.  He also directed the applicant to give notice to the court and the other parties when he was ready to fix the hearing date for the appeal.

7.  There was no progress in the appeal until 31 March 2017 when the Registrar of Civil Appeals raised concern on the lack of progress and notified the parties by letter of 3 April 2017 of the possibility of striking out the appeal for want of prosecution.

8.  The applicant responded by letter on 12 April 2017.  He was apparently under the misapprehension that the Commissioner and the Director sought security for costs.  He also requested the Court to grant him legal aid and to have the appeal disposed of on the papers.

9.  The Court replied on 25 April 2017 informing the applicant that the Court did not have the power to grant legal aid in civil cases.  The Court invited the Commissioner to indicate if he agreed to the disposal of the appeal on the papers.

10.  By a letter of 27 April 2017, Government Counsel informed the Court and the applicant that she had no objection to paper disposal.

11.  In the meantime, the applicant has resided in Hong Kong for more than 7 years and on 21 June 2017 his eligibility for permanent identity card was verified.  He made an application for permanent identity card on 7 June 2017 and the application was granted on 21 June 2017.

12.  Notwithstanding the latest development, the applicant insists on pursuing the appeal as he regards himself as having suffered from injustice over the years due to the rejection of his applications in 2010 and 2011.

13.  According to the case of the applicant, the injustice stemmed from the refusal of the Commissioner to accept that his father Mr Lui Tat (雷達) was born in Hong Kong notwithstanding that in the official record kept by the Government, including a Certificate of Registered Particulars of 3 September 2009, his place of birth was stated to be Hong Kong.

14.  The place of birth of Mr Lui Tat has immense significance in the applicant’s application for Hong Kong permanent identity card.  His case was based upon art 24(3) of the Basic Law which is reflected in paragraph 2 of Schedule 1 of the Immigration Ordinance, Cap 115.  Au J set out the relevant analysis at [19] to [24] as follows:

“19. The applicant’s case that he is a permanent resident of Hong Kong is premised on categories (a) and (b) of paragraph 2 of Schedule 1 (“the Schedule”) of the Immigration Ordinance (Cap 115).  His case is as follows.

20. Paragraph 2 of the Schedule provides that persons falling within the six categories listed thereof would be a permanent resident of Hong Kong. 

21. Under category (a), a person is a permanent resident of Hong Kong if he is “a Chinese citizen born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region”. The applicant says Mr Lui (ie, the applicant’s father) belongs to a person under category (a) as Mr Lui was born in Hong Kong.

22. Category (c) says a person is a permanent resident of Hong Kong if he is a “person of Chinese nationality born outside Hong Kong before or after the establishment of [the HKSAR] to a parent who, at the time of birth of that person, was a Citizen falling within category (a) or…” The applicant says he satisfies category (c) because (i) he is a Chinese national born outside Hong Kong, and (ii) he was born to Mr Lui who is a person under category (a).

23. There are no disputes that Mr Lui and the applicant are both Chinese nationals and that the applicant was born outside Hong Kong.  The crucial question in the applicant’s HKPIC application was thus whether Mr Lui was born in Hong Kong.

24.   Effectively, both the Commissioner and the Tribunal dismissed the applicant’s HKPIC application on the basis that they were not satisfied on the materials presented before them that Mr Lui was born in Hong Kong and thus fell within paragraph 2(a) of the Schedule.  As such, the applicant also cannot show that he fell under paragraph 2(c) of the Schedule.”

15.  For the sake of completeness, we shall briefly refer to paragraph 2(b).  That sub-paragraph provides that Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than 7 years before or after the establishment of the Hong Kong Special Administrative Region shall be permanent residents of Hong Kong.

16.  According to paragraph 2(c), the relevant point in time for assessing if Lui Tat was a Hong Kong permanent resident for determining the applicant’s right to permanent residence is the date of birth of the applicant.  Hence, the applicant cannot rely on paragraph 2(b) because at the time of his birth (he was born in the Mainland in 1970), Lui Tat had not been continuously ordinarily residing in Hong Kong for at least 7 years.

17.  Notwithstanding dispute as to his place of birth, Lui Tat had been living in the Mainland since his infancy.  On his own account, Lui Tat was born on 4 December 1956 and his father (雷一鳴) died in Taiwan in 1956.  His mother was also in ill-health and was unable to take care of him.  According to his own statement of 4 August 2000 given to the Registrar of Births and Deaths[2], Lui Tat said he was brought back to the Mainland in 1959[3] to be taken care of by his maternal grandmother.  His mother subsequently died in 1961.  He remained in the Mainland and got married in December 1969.  He had three children, the applicant in 1970, another son in 1972 and a daughter in 1987.  Lui Tat obtained a One Way Permit and came to Hong Kong on 17 June 1986.  He got his identity card on 3 July 1986.  After staying in Hong Kong for 7 years, he obtained a permanent identity card on 20 September 1993.

18.  To facilitate travelling, Lui Tat had also applied for and obtained a Document of Identity for Visa Purposes.  He first obtained such a document in 1987.  It was replaced in 1993, the earlier one was reported as lost.  In that document, the place of birth was stated as “Hong Kong (N/P)”.

19.  Lui Tat applied for naturalisation and on 2 September 1996 the application was granted.  In the Certificate of Naturalisation as a British Dependent Territories citizen, his place of birth was stated to be “Hong Kong (no proof)”.

20.  Lui Tat also applied for a British passport. After his naturalisation, the United Kingdom government issued to him a passport in 1996.  In the British National (Overseas) passport issued on 26 October 2006, his place of birth was stated as “Hong Kong”.

21.  In May 2000, Lui Tat submitted an application for post-registration of birth pursuant to the Births and Deaths Registration Ordinance Cap 174.  After consideration of the materials and records available, the Registrar did not find sufficient evidence to prove that Lui Tat’s place of birth was in Hong Kong and declined the application on 9 January 2001[4].

22.  In the applicant’s appeal heard by the Tribunal on 29 August 2011, the Tribunal came to the conclusion that there was insufficient evidence to prove Lui Tat was born in Hong Kong: see paragraph 33 of the Decision of the Tribunal[5]. 

23.  Before Au J, counsel for the applicant challenged the decision of the Tribunal based on the arguments set out at [25] to [29] of the judgment,

“ 25. In this judicial review, Mr Hon for the applicant advances his case on the bases that can be summarised as follows:

(1) The Commissioner and the Tribunal in arriving in their Decisions respectively failed to take into account a relevant factor, which is the “official record” of the Department which stated that the place of the birth of Mr Lui is Hong Kong, and

(2) The Commissioner and the Tribunal’s Decisions are irrational in the public law sense as they contradict the said “official record” of the Department which stated that Mr Lui’s place of birth is Hong Kong.

26. The “official record” referred to by Mr Hon is the Certificate of Registered Particulars of Mr Lui dated 3 September 2009 (“the Certificate”) issued by the Department which stated at item 3(iv) thereof that the place of birth is “Hong Kong”.

27. As Mr Hon has pointed out, the ultimate issue in this judicial review application is whether it is unlawful for the Commissioner and the Tribunal to have arrived [at] their respective Decision[s] in light of the information contained in the Certificate.

28. In this respect, counsel accepts that the information contained in paragraph 3 of the Certificate was in fact provided by Mr Lui himself.  But he emphasises that in item 3(iii) thereof, where the date of birth was stated, it was marked “unverified”, while in contrast, the place of birth as stated in item 3(iv) was not so qualified.

29. Counsel therefore says the Department’s own document and information (i.e., the Certificate) shows that Mr Lui was born in Hong Kong.  Thus, in coming to the conclusion that they were not satisfied that Mr Lui was born in Hong Kong, the Commissioner and the Tribunal had either failed to take this relevant material into consideration, or if they had so taken this into account, their decision is clearly irrational.”

24.  The judge rejected counsel’s submission for the reasons given at [32] of the judgment:

“ It is however clear to me that the mere fact that information is contained in the Certificate and without more cannot be regarded as the Department’s acceptance of Mr Lui’s stated place of birth to be correct. This is so because:

(1) It is common ground that although Mr Lui has always claimed that his place of birth is Hong Kong, he is unable to provide any birth certificate or relevant travel documents to prove the same in his various and numerous applications made to the Department for identity documents. The Department also has been unable to find his birth record from the register of births and deaths.

(2) At the same time, the Certificate clearly stated that it was issued pursuant to Mr Lui’s request to certify that, when Mr Lui applied to obtain his Hong Kong identity card in 1986, he himself provided to the Department the information (as set out in paragraph thereof), which included, among others, that the place of birth was Hong Kong.

(3) In the circumstances, taking the above two observations together, the Certificate does nothing more than to certify that the said information was provided by Mr Lui himself when he applied for the identity card in 1983.

(4) At the same time, the Director’s evidence filed in this application (which is not challenged) shows that such information provided in the applications for Hong Kong identity card would not be and has not been verified by the Department. Further, the Director’s evidence also shows that the Hong Kong identity card issued to Mr Lui since 1986 (which also has since been replaced a few times over the years), and the British Dependant Territory Passport and the Hong Kong Document of Identity that have been issued to him, all stated effectively that his claimed birth place of Hong Kong has not been verified.

(5) As such, there is nothing before me to support the contention that the place of birth information provided in the Certificate must be taken to have been verified and accepted accurate by the Director or the Department.

(6) In my view, in light of the clear words stated in the Certificate (as mentioned above), the fact that some of the items of information, such as the “place of birth”, are not remarked as “unverified” and without more adds nothing more to show that all such information stated in the Certificate had been verified and accepted as accurate by the Department.

(7) In this respect, it is pertinent to note that a similar argument as the one now advanced by the applicant based on the place of birth information stated in the Certificate was made in Chen Chengzhi v Director of Immigration (unreported, HCAL 40/2005, 13 March 2006). In that case, the Director refused the applicant’s application for a certificate of entitlement to the Right of Abode in Hong Kong, where the applicant claimed to be a permanent resident of Hong Kong as she was born to the mother (a Chinese national) who was allegedly born in Hong Kong. The Director (and the Tribunal in that case) dismissed the application as they were not satisfied that the mother was born in Hong Kong. One of the grounds of the judicial review made against those decisions was that it was irrational for the decision maker to come to that conclusion when the Certificate of the mother stated (without being remarked as “unverified”) that her place of birth was Hong Kong. Chu J (as she then was) came to the same conclusion that the place of birth stated in the Certificate (even though not remarked as “unverified”) cannot be taken as accepted by the Director to be accurate and rejected this ground of judicial review.”

25.  The Certificate of 3 September 2009 was in these terms,

“登記事項證明書 – 香港身份證X號

憑藉香港法例第177章《人事登記條例》第2條及第10條所分別賦予的權力，本人現按照你的書面要求，作出下列的證明：

一、 你是香港身份證（號碼X）的持有人。

二、 你首次登記身份證的日期為一九八六年七月三日。

三、 你於一九八六年七月三日登記領取身份證，並向本辦事處提供下列資料：

   （i） 姓名 – 雷達（LUI，Tat）

   （ii） 別名 – 並無紀錄

   （iii） 出生日期 – 一九五六年十二月四日（未經證實）

   （iv） 出生地點 – 香港

   （v） 申報的國藉 – 中國

一九九六年九月十九日申報為英國藉

   （vi） 婚姻狀況及其後的改變 – 未婚：

一九九三年六月十七日填寫已婚，並填報配偶姓名為関秀霞；

一九九三年九月二十日，你通知本辦事處關笑霞為你的配偶；

一九九六年九月十九日，你通知本辦事處你是單身；

二零零四年十一月二十四日，你通知本辦事處你已離婚；

二零零九年八月七日，你通知本辦事處关笑霞為你的配偶，並聲稱你已與她離婚，同日，你填報你是已婚，並填報陳玉賢為你的配偶。

  （vii） 由你代為申請登記兒童身份證的子女姓名 – 並無紀錄

四、  二零零九年八月七日，你填報的住址為「香港新界青衣長安邨安泊樓718室」。 ”

26.  It is quite clear from the Certificate (as it expressly stated so) that the information at paragraph 3(iv) were those provided by Lui Tat at the time when he applied for an identity card in 1986. There was no representation whatsoever in the Certificate that the Registrar or the Director of Immigration had accepted the information as accurate or verified.

27.  Au J further noted that the Certificate was not relied upon by the applicant at the proceedings before the Tribunal.  Thus, he said at [40]:

“ I accept for the purpose of argument that the Certificate is a piece of evidence relevant to the question of whether Mr Lui was born in Hong Kong. However, this evidence was in fact not relied on by the applicant in his HKPIC application with the Commissioner or at the hearing before the Tribunal. Moreover, after seeing all the evidence relied on by the applicant (which did not include the Certificate) to prove that Mr Lui was born in Hong Kong, the Tribunal had asked the applicant as to whether he wanted more time to provide more materials to the Tribunal to prove Mr Lui’s birth place, which was the only crucial matter to be decided in the appeal. The Tribunal further noted that the Department had previously also asked the applicant to provide more evidence and materials without any success. The applicant however said it was unnecessary and did not ask for any time (as offered by the Tribunal) to submit any further evidence (such as the Certificate) to prove his case.”

28.  In any event, Au J took the view that even assuming one could have regard to the Certificate in the judicial review (which he held against: see [41] to [44] of his judgment), it would make no difference as it added nothing to the other materials which had been considered by the Tribunal, see [46] to [47] of the judgment.

29.  Au J also highlighted the following propositions of law in the judgment:

(a)   whether or not Lui Tat was born in Hong Kong is a question of fact and the applicant bore the burden to prove the same by evidence: see [37];

(b)  the determination of that question of fact is entrusted to the Commissioner and the Tribunal and the court would not interfere with findings of fact in an application for judicial review unless there is procedural unfairness or a failure to take into account relevant matters, or unless irrelevant matters have been taken into account, or the finding is unsupported by evidence, or unless it is Wednesbury unreasonable: see [38]; and

(c)   in a judicial review the court will not generally entertain arguments not raised before the decision-maker below, that is, the Commissioner or the Tribunal in the present case: see [42]. 

30.  It is not the function of an appeal to allow an unsuccessful litigant to re-argue the case afresh without regard to the conduct of the case below.  This Court will only disturb a judgment below if there are errors on the part of the judge below.  Thus, it is wholly wrong for an appellant to rely on evidence which he should have adduced but failed to adduce at the court below.

31.  In this connection, the Court directed on 12 June 2017 (and notified the parties by a letter of 13 June 2017) that if the applicant wished to rely on new evidence, he should apply by summons for leave to do so and support the application by evidence to demonstrate that he satisfied the three criteria laid down in Ladd v Marshall [1954] 1 WLR 1489.  In the directions, the Court clearly set out those three criteria, viz:

(a)   The evidence was not available at the first instance hearing despite reasonable diligence on the part of the applicant;

(b)  The evidence would, if believed, probably have an important influence on the outcome, though it need not be decisive;

(c)   The evidence is apparently credible.

32.  The applicant has not filed a summons seeking leave though he filed an affirmation on 21 June 2017.  In that affirmation, he did not state that he sought leave to adduce new evidence and did not identify such new evidence.  He did not attempt to explain in respect of each piece of new evidence if the criteria of Ladd v Marshall, supra, were satisfied.

33.  In the absence of a proper application for admission of new evidence before us, we would ignore evidence placed before us other than those that had been placed before Au J.  In other words, we would confine our consideration to the materials in the appeal bundles.

34.  In the notice of appeal of 5 June 2013, the applicant mainly repeated his own statement of his case.  He failed to appreciate the significance of burden of proof as he considered that the Tribunal was wrong to conclude that Lui Tat was not born in Hong Kong as there was no evidence to such effect.  There is no need for the Commissioner to establish that Lui Tat was not born in Hong Kong.  Rather, the onus is on the applicant to prove that Lui Tat was born in Hong Kong.  The Tribunal found that the applicant failed to discharge that onus.  Au J held that the arguments advanced on behalf of the applicant did not vitiate such finding by the Tribunal.

35.  We agree with the legal propositions set out at [29] above.  We wish to add that proposition (b) equally applies in respect of the assessment of whether an applicant has adduced evidence to discharge his burden of proof.  We further agree with Au J’s analysis in respect of the Certificate of 3 September 2009.  We cannot find any flaws in Au J’s conclusion that there had not been any acceptance by the Commissioner as to the accuracy of Lui Tat’s repeated assertions as to his place of birth.  The rejection of the application for post-registration of birth is the clearest evidence in that regard.  We do not discern any errors on the part of the judge.

36.  We do not find it necessary to engage in the arguments of the applicant regarding the place of residence of the mother of Lui Tat at the time of her death.  This is not a question germane to this appeal as it was not a point raised below.  It is an evidence sensitive point as the Commissioner may have wished to file some evidence in response had the point been raised below.  According to established principle, the applicant cannot raise such a point on appeal: see Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356.  In any event, even assuming the mother had been a resident of Hong Kong, such fact does not establish that Lui Tat was born in Hong Kong.

37.  Given that the applicant was represented by counsel at the court below and there had not been any request on his behalf that the proceedings should be conducted in Chinese, his present complaint about the lower court proceedings were in English has no merit whatsoever.

38.  Equally, the submission that the judgment was not signed is unmeritorious.  There is only one original copy of the judgment and it is signed and kept in the court file.  It has always been the practice of the court that copies sent to parties are not signed.

39.  Having considered all the written submissions, we do not find any ground for disturbing Au J’s judgment.

40.  In the circumstances, we dismiss the appeal and order the applicant to bear the costs of the Commissioner and the Director. Such costs are to be taxed if not agreed.