MA CHI CHING AND ANOTHER v. DIRECTOR OF IMMIGRATION AND OTHERS

[English Translation – 英譯本]
HCMP 3423/2013 &
HCMP 3424/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 3423 & NO 3424 OF 2013

(ON AN INTENDED APPEAL FROM HCAL 96/2013)

________________

DECISION

Hon Cheung JA (giving the decision of the court):

1. The two applicants filed an application for leave to apply for a judicial review of the removal orders imposed on them by the Director of Immigration, the dismissal by the Immigration Tribunal of their appeals against the removal orders, and the withdrawal of their Hong Kong Identity Cards by the Commissioner of Registration.

2. Anthony Chan J of the Court of First Instance refused the application for leave on 13 November 2013. The applicants took out a summons on 23 December 2013 to apply for leave to appeal out of time against the decision of Anthony Chan J.

Facts of the case

3. On 27 May 1996, the 1^st applicant married a Hong Kong permanent resident Chan Chun Mou (transliteration) (‘Chan’) in Hong Kong. Chan was at that time married to a mainland lady called Wong.  Chan’s marriage to Wong was discovered in 1999/2000.  On 10 February 2000, Chan pleaded guilty to and was convicted of the charge of bigamy.

4. As Chan was a married person at the time he married the 1^st applicant, according to section 20(1)(c) of the Matrimonial Causes Ordinance, Cap 179, their marriage was null and void.  The Immigration Department revised their records on 16 February 2000 and deemed the marriage between Chan and the 1^st applicant to be null and void.

5. Nevertheless, in July 2003, the 1^st applicant was granted a one-way permit to come from the Mainland to reside in Hong Kong on the status as Chan’s spouse.  The 2^nd applicant is the daughter of the 1^st applicant, who was born within her marriage prior to the one with Chan.  She was granted a two-way permit to come to stay in Hong Kong as a visitor in April 2006.

6. On 10 May 2006, the two applicants were arrested by the police on suspicion of employing a person not lawfully employable and breach of conditions of stay respectively.  On 12 May 2006, as records showed that the 1^st applicant’s marriage to Chan was null and void, the Immigration Department decided to investigate as to how the 1^st applicant had obtained a one-way permit.  On 19 May 2006, due to lack of evidence, the authorities decided not to prosecute the two applicants for the suspected offences but continued to investigate as to how the 1^st applicant had obtained a one-way permit.

7. In September 2006, the 2^nd applicant was also granted a one-way permit to come to reside in Hong Kong as the daughter of the 1^st applicant.  They were issued with a Hong Kong Identity Card respectively.

8. Between December 2007 and November 2009, the Immigration Department tried to contact the 1^st applicant but to no avail.  Eventually, on 19 November 2009, the Immigration Department arrested the 1^st applicant on suspicion of offences of using and possessing a false and unlawfully obtained one-way permit.  She was granted bail.  On 8 December 2009, the 1^st applicant was interviewed under caution and she exercised her right of silence.  She was later given bail.  On 23 December 2009, the 1^st applicant divorced Chan.  On 7 January 2010, the 2^nd applicant was interviewed under caution and she exercised her right of silence.

9. On 10 August 2010, the Immigration Department issued a letter dated 6 August 2010 to the Department of Public Security of Guangdong Province, asking the latter to verify the legality of the one-way permits of the two applicants.  On 15 November 2010, the Immigration Department received a reply dated 12 November 2010 from the Department of Public Security of Guangdong Province, stating that since the 1^st applicant’s marriage to Chan was null and void, the two applicants were not eligible to come to settle in Hong Kong and that the two one-way permits previously issued to the two applicants were revoked.

10. In July 2012, the authorities decided to invalidate the permission to stay previously granted to the two applicants, withdrew the identity cards issued to them, and issued in January 2013 removal orders against them.

Grounds of appeal

11. The two applicants’ grounds of application can be summarised into three points:

1)  The applicants needed time to seek legal aid and legal advice.  In addition, a number of mistakes were made when documents were filed with the court.  Therefore the application was delayed.

2)  The applicants never accepted or agreed that Chan was bigamous. Anthony Chan J did not deal with this issue in a full and proper way.

3)  Anthony Chan J expressed his sympathy to the two applicants and was of the view that there was delay on the part of the Immigration Department but he erred in not granting leave.

Legal principles

12. The applicants are actually applying for extension of the time limit for lodging the appeal.  The court has to consider the following four factors:

1)  The period of the delay;

2)  The reasons for the delay;

3)  The prospect of success of the appeal; and

4)  The prejudice caused to the respondents in case the time limit for lodging the appeal is extended.

The view of this court

13. This court refuses the application for the following reasons.  In the present case, the applicants must lodge an appeal within 14 days of the order of Anthony Chan J.  The appeal period expired on 27 November 2013.  The applicants had delayed for about a month in filing the application.  This was a rather long delay.  The reasons they gave for the delay were not reasonable.  What is more important, in our view, the applicants have not provided a ground for appeal that stands a reasonable chance of success.

14. In Wong Ka Hin (transliteration) v Director of Immigration (CACV1937/2001), the Court of Appeal has clearly laid down the legal principles applicable in the present case:

“15. Pursuant to section 2(4)(a)(i) of the Immigration Ordinance, a person shall not be treated as ordinarily resident in Hong Kong during any period in which he remains in Hong Kong after landing unlawfully. In Kong Sau Mei v Director of Immigration, if the person concerned has entered the territory on a passport which the Director of Immigration later has a reason to believe to have been unlawfully obtained, this person is deemed to have entered the territory unlawfully, and the Director of Immigration may issue a removal order. In this case, Keith J pointed out that immigration officers permitted the person concerned to enter Hong Kong because they at that time did not have any reason to suspect the passport held by this person might have been unlawfully obtained. The Immigration Department, having permitted the person to enter Hong Kong, discovered later the unlawful act. It is evident that the permission to enter was obtained by deception practised on immigration officers, and therefore should be cancelled. Under these circumstances, even if the unlawfully obtained passport was not obtained by this person personally with unlawful means and the passport was genuine and valid, the Director of Immigration still has the power, and it is reasonable, to issue a removal order.

16. In this case, the Director of Immigration is entitled to be satisfied with the information contained in the letter dated 26 February 2003 from the Bureau of Exit and Entry Administration and to accept the conclusion drawn by the Bureau to find that the one-way permit was unlawfully obtained. As to how the Bureau came to this conclusion, it is an affair for the Mainland authority. This legal principle has been established in a number of cases. See cases such as Li Fu Shan v Director of Immigration, Tsui Siu Wai v Director of Immigration, and Fung Suet Fong v Director of Immigration.

17.  In Attorney General v Immigration Tribunal and Chen Huan Qiong, Yeung J, citing two English cases, pointed out that there were clear authorities to the effect that the absence of knowledge of the falsity of the travel document is not relevant to whether a person has landed unlawfully.”

15. The only basis available for the two applicants to come to reside in Hong Kong lawfully is that the 1st applicant is the wife of Chan in a lawful marriage.  If this marriage was null and void in the first place, the two applicants would not have any legal ground whatsoever to come to reside in Hong Kong.  Whether the 1st applicant knew Chan was bigamous is irrelevant to the legality of her entry to Hong Kong.  The Director of Immigration has the power to revoke the permission granted to them to reside in Hong Kong and to issue removal orders against them.  The Commissioner of Registration is also entitled to revoke their identity cards.

16. The two applicants contended that although the Immigration Department had on 16 February 2000 revised their internal records to deem the marriage between the 1st applicant and Chan null and void, the Department nonetheless still permitted them to enter Hong Kong on a one-way permit in 2003 and 2006 respectively.  The Director of Immigration did not explain what actions had been taken to prevent the applicants from coming to Hong Kong after the revision of their internal records.  However, this court does not find this to be of any assistance to the two applicants as there was not any legitimate reason for them to come to Hong Kong to start with.  The authorities further show that a person who has landed unlawfully does not have the right to be permitted to stay in Hong Kong, nor can he have a reasonable expectation of the same.  The court would intervene only if the Director of Immigration abuses his power illegally or unreasonably.  See Chan To Foon and others v Director of Immigration and another [2001] 3 HKLRD 109, at p 124.  There is no evidence in the present case to suggest that the Director of Immigration acted unlawfully or abused his power when he permitted the two applicants to enter Hong Kong in 2003 and 2006 respectively.  Taking it to the highest, he did not follow up the matter after the records had been revised.  Nevertheless, this court cannot see how this can constitute a cause of action to challenge his decision.

17. As to the lapse of time from May 2006 when the Director of Immigration started to investigate how the 1st applicant had obtained her one-way permit to July 2012 when the applicants’ permissions to remain were invalidated and their Hong Kong Identity Cards withdrawn, and to January 2013 when removal orders were issued, this court accepted the respondents’ submissions that they needed time to conduct investigation.  This again did not constitute a cause of action to challenge the decision in question.

18. The two applicants said they had no family ties in the Mainland and it was unreasonable to order them to leave Hong Kong for the Mainland.  The Hong Kong authorities, in making the decisions in question, had already taken into account their representations made in respect of the decisions that the authorities intended to make.  The authorities exercised their discretion in refusing to permit the two applicants to continue to reside in Hong Kong.  This court does not see any error in their exercise of the discretion.

Conclusion

19. Based on the aforesaid reasons, the application is dismissed with costs of this application to the respondents.  The costs that the two applicants should each pay are taxed at $10,000.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr P. Y. Lo, Barrister-at-law