NG SIU TUNG AND OTHERS v. THE DIRECTOR OF IMMIGRATION

FACV No. 1 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2001 (CIVIL)

(ON APPEAL FROM CACV NO. 415 OF 2000)

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J U D G M E N T

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Chief Justice Li, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ :

1. Pursuant to a remitter ordered by this Court in its judgment of 30 July 2002, Hartmann J dealt with 22 of the applicants in this appeal who claimed to have a right of abode in Hong Kong on the ground that they qualified under the Government's Concession Policy announced on 26 June 1999. On 3 October 2003, the judge submitted a report of his findings ("the Report") in respect of these 22 applicants for the disposal of their appeals by this Court.

2. As a result of the judge's findings, eight out of the 22 cases were disposed of by consent. Another eight were dealt with by this Court in its judgment of 9 January 2004. In respect of the remaining six applicants, namely, applicants 204, 593, 733, 1084, 1623 and 3174, the judge found that they did not make a claim for right of abode and that the Director of Immigration ("the Director") had no record of any claim.

3. At the hearing before this Court on 13 December 2003, we were informed that these six applicants had their legal aid certificates discharged and were acting in person and that the Director had purported to serve a notice of that hearing on these applicants who were either still remaining in Hong Kong or had returned to the Mainland. The Court adjourned their cases, gave directions for them and the Director to file written submissions and indicated that their cases would be dealt with on paper unless an oral hearing was considered necessary or desirable, in which event a hearing date was tentatively fixed for 13 February 2004. Since then, applicant 3174's legal aid certificate was renewed.

4. With the exception of applicant 204, written submissions were filed by these applicants, either by themselves or on their behalf, and by the Director. In the event, it is considered not necessary to have an oral hearing and their cases are dealt with on the basis of these submissions. This judgment deals only with the appeals by these six applicants.

5. In respect of these applicants, the main contention is that the judge was wrong in finding that they had not made any claim for right of abode and that the Director has no record of any claim. It must be borne in mind that those findings of fact were made by the judge, having had the advantage of hearing witnesses and assessing their credibility. Hence, in order to succeed, each of the applicants has to demonstrate that the judge's finding, in respect of his or her case, is wrong in that there is no evidence or basis for making the finding of fact which he did or the judge had failed to take into account evidence which is in his or her favour.

Applicant 204 - Mr Chan Kin Piu

6. Mr Chan's case was dealt with by the judge in paragraphs 145 to 161 of the Report. He was arrested on 3 November 1998 when he was found working in a building in contravention of a condition of stay. He alleged that although he had made a claim for right of abode, he was actively prevented by the oppressive conduct of immigration officers from putting this down in the immigration records. The judge rejected his evidence on both allegations as an exercise of invention. He has not filed any written submission pursuant to the Court's directions.

7. There is nothing to show that the judge's finding was wrong in any way. Mr Chan's appeal is dismissed.

Applicant 593 - Ms Cheng Siu Yin

8. Ms Cheng's case was dealt with by the judge in paragraphs 415 to 429 of the Report. She overstayed since October 1996 believing, she said, there would be an amnesty. However, she only surrendered to the Immigration Department on 14 January 1998 (more than 6 months after 1 July 1997). The judge did not accept her evidence that she had made a claim for right of abode, commenting that her evidence was "incapable of belief" and "shifted from question to question". In particular, he disbelieved her on what she said about the manner in which immigration officers tried to hide from her the nature of the immigration forms on which she copied standard answers as directed by these officers. He also rejected her allegation that she had made a claim before the magistrate when she was prosecuted for breach of conditions of stay.

9. Ms Cheng's written submission refers to the circumstances under which she attended the Immigration Department to make a claim for right of abode. She now says that she told the immigration officers who interviewed her that her father was a Hong Kong permanent resident, giving particulars of his identity, that she applied to remain in Hong Kong for settlement so as to keep her family company and live with them. However, this seems to be at variance with what she said in her oral evidence at the hearing and with her Summary of Case. It is clearly an attempt to improve her case which was rejected by the judge.

10. There is no basis for disturbing the judge's finding. Ms Cheng's appeal is dismissed.

Applicant 733 - Ms Cheung Suet Kam

11. Ms Cheung's case was dealt with by the judge in paragraphs 173 to 188 of the Report. She was pregnant when she arrived in Hong Kong and later witnessed her sister's repatriation following her unsuccessful claim for right of abode. The judge found that Ms Cheung was aware of the reason for the rejection of her sister's claim, but waited until almost delivery before presenting herself to the immigration authority for the sole purpose of delaying repatriation until after she had given birth to her child in Hong Kong.

12. In her written submission, apart from setting out the history of her claim for right of abode and exhibiting the letters she had written to the authorities, she makes two new allegations: (1) she had written down her parents' identity card numbers, ages and address in the ID457 form; and (2) she was actually subjected to threats by immigration officers when she was asked to fill in the necessary forms. No reason is given explaining why she did not make these allegations at the hearing before the judge. In respect of the first allegation, she has produced nothing in support. Nor has she said anything as to how and why these particulars were made in the form. There was no mention of this in the Report. Had this allegation been raised at the hearing, be it in relation to the question as to whether she had made a claim or whether there was a record of a claim, the judge would have dealt with it like he did in respect of those applicants who had made the same allegation. In respect of the second allegation, the judge found that she was not a credible witness and that she was in fact free to write down what she wished to say in the immigration records. In these circumstances, her new allegations must be rejected.

13. Ms Cheung has failed to show that the judge's finding is wrong. Her appeal is dismissed.

Applicant 1623 - Ms Kwok Siu Ping

14. Ms Kwok's case was dealt with by the judge in paragraphs 325 to 340 of the Report. The judge found that although she had stated in her affirmation that she had made a claim for right of abode to immigration officers, she did not testify to this effect in court. The judge accepted that she was in a state of distress when she visited the Immigration Tower and was clearly overwhelmed by the ordeal of having to testify at the hearing. However, having considered her affirmation as well as oral evidence in court, the judge was not able to find that she had made a claim for right of abode or that there was any record of a claim by her. Her mitigation before the magistrate when she was prosecuted for overstaying in January 1998 did not contain any record of a claim.

15. In her written submission, she claims that because she had a history of mental illness, she was overwhelmed by the circumstances in court and did not do well when giving evidence. She enclosed two medical records in support of her complaint. It is to be noted that the first record was dated some time in 1976 and the second one, although dated 11 December 2003, does not say anything more than stating what her condition was in 1976 adding that she was discharged upon recovery. It is not clear whether the judge was aware of this alleged mental condition which appears to be rather doubtful. But it is evident that the judge had already given allowance for her behaviour in court and was sympathetic towards her.

16. There is nothing in her written submission which shows that the judge was in any way wrong to make a finding against her. Ms Kwok's appeal is dismissed.

Applicant 3174 - Mr Tai Lin Fat

17. Mr Tai's case was dealt with by the judge in paragraphs 241 to 251 of the Report. Pursuant to the Court's directions, he has made written submissions both by himself and by counsel after his legal aid certificate was renewed.

18. In his own written submission, he repeats his claim, explains why his evidence in court was confused and seeks to raise new points and give a different account. He submits that the judge should not have rejected his evidence. It is not necessary to set out his various submissions here. Suffice it to say that they fail to show that the judge's finding is wrong.

19. His counsel further argues that the judge's finding was flawed for two main reasons. First, in the light of all the evidence, the judge was wrong to conclude that Mr Tai's evidence was "vague and uncertain" when in fact it was clear that he had made a claim for right of abode. Secondly, the judge had failed to appreciate the significance of the fact that the Hong Kong identity card numbers of Mr Tai's parents were put down in the ID457 form and was wrong to hold that "it contained no endorsement to the effect that a claim was being made". This, it is submitted, cannot be considered correct in the light of what was said by this Court in paragraphs 29 to 40 of the judgment delivered on 9 January 2004. Counsel argues that this error might have coloured the judge's consideration of Mr Tai's evidence on whether he had made a claim for right of abode.

20. In paragraph 36 of that judgment, we said :

"However, once it is accepted that the form should be viewed in the light of the fact that a claim for right of abode has been made by the relevant applicant, the insertion of the particulars of a parent who has permanent residence in Hong Kong, including the parent's identity card number, takes on new significance. When the applicant inserts particulars of a parent's identity card number and the applicant has claimed or is claiming right of abode, the form does not have a merely neutral character. The particulars point in the direction of a claim for right of abode, no matter that the form is regarded by the Department as having an essentially neutral character."

21. This was said in connection with the situation where the judge was deciding what constituted a record of a claim for right of abode after he had, having regard to the other evidence before him, concluded that the relevant applicant had made a claim for right of abode. However, it does not mean that the presence of particulars of a parent's identity card in the ID457 form is relevant only to this second question which the judge has to decide. It is also a piece of evidence which the judge has to consider when deciding the first question (i.e. whether the applicant had made a claim for right of abode) and has to be looked at in the light of the other evidence. The presence of such particulars in the ID457 form without more is clearly not sufficient to enable the judge to conclude that a claim for right of abode had been made. But it may assist the court in coming to such a conclusion.

22. In the case of Mr Tai, the judge accepted that he had overstayed in the hope that there would be an amnesty but found that he must have realised from what he saw in the news that this was not the case. Notwithstanding what Mr Tai said in his own documents about having made a claim for right of abode, the judge considered that his evidence as to what transpired on the day when he surrendered himself to the Immigration Department was generally vague and uncertain. These comments were made obviously in the light of what Mr Tai had testified in court. Mr Tai said, for instance, that he had told the immigration officer at the reception desk that it was his intention to remain in Hong Kong in order to be with and care for his parents. He could recall virtually nothing about his interview except asserting that he was told to copy characters in the forms. The judge found that Mr Tai knew that he would have to be repatriated and hence complied with the investigation process. At the end, the judge did not believe that Mr Tai surrendered for the purpose of making a claim for right of abode or that he had made a claim, although the judge could not discount the possibility that some query had been made.

23. It is to be noted that in the ID457 form which relates to Mr Tai, his parents' names and particulars including their Hong Kong identity card numbers were stated. The judge made reference to this form but noted that it was completed by his father and not by Mr Tai (although he was admittedly literate) and that it had omitted to mention information such as: Mr Tai was married with children in the Mainland, and he had two brothers in Hong Kong. It is clear from these comments that the judge must have found the evidential value of this form to be highly suspect, to say the least.

24. Apparently the judge dealt with this form in relation to the question whether there was a record of any claim and it is not clear whether he had taken this form into account when he considered the question whether Mr Tai had made a claim for right of abode and if so, how much weight he had given to it. However, it would seem from what the judge said about Mr Tai's evidence that Mr Tai was clearly not an impressive witness and that the judge, who had the benefit of watching him give evidence in court, was entitled to come to the conclusion that he did not make a claim for right of abode and that there was no record of any claim. The fact that particulars of his parents' identity cards appear on the ID457 form did not assist him on the question whether he had made a claim or whether there was any record of a claim.

25. In the light of all the evidence, it cannot be said that the judge's finding is wrong. Mr Tai's appeal must be dismissed.

Applicant 1084 - Mr Fu Kwong

26. Mr Fu's case was dealt with by the judge in paragraphs 430 to 453 of the Report.

27. He said that during the three periods he was in Hong Kong after the handover, he had paid a number of visits to the Immigration Department with either one or both of his parents and claimed right of abode or tried to obtain a permanent identity card: first, between 19 December 1997 and 12 January 1998; second, when he surrendered on 27 March 1998, and third, at the end of 1998. On each of these occasions, he said, he brought with him the necessary documents and presented them to the officers but the officers declined to accept them. He gave evidence of the interview he had given to the officers and how he was assisted in giving an incorrect answer on the "ground for non-removal" form.

28. The judge did not believe that Mr Fu had made any claim for right of abode on these occasions. He expressed surprise that although Mr Fu had portrayed himself as a man of forceful character and was able to recollect some matters in detail, no record was made of any of his alleged claims. The judge said that he was unable to rely on Mr Fu's evidence and found that if he had been so determined to assert a claim for right of abode, he would have availed himself of the opportunity to write down his claim for right of abode in the relevant forms and that if he had wished to give documents to the officers, those documents would have been accepted and placed on file. The judge also held that what Mr Fu said in mitigation before the magistrate when he was prosecuted for breach of condition of stay did not amount to a record of a claim.

29. In his written submission, Mr Fu alleges that the judge's finding was inconsistent with the evidence and the facts. He repeats his evidence regarding his visits to the Immigration Department. He also seeks to adduce new documents and to argue new points. Many of these documents and arguments are not relevant and/or cannot be allowed to be re-opened.

30. However, there are a number of matters which cast doubt on the judge's finding against Mr Fu. First, the judge accepted that Mr Fu had, in anticipation of making a claim for right of abode, taken the trouble to obtain a notarial certificate from the Mainland authority certifying his relationship with his parents and an English translation of such certificate. If he had not been serious about his claim, why would he have taken so much trouble? And if he anticipated making a claim, is it not likely that he would have made a claim for right of abode on the many occasions he visited the Immigration Department? Secondly, the ID457 form relating to him contains particulars of his parents' identity cards. The judge merely referred to such a form having been completed by Mr Fu but did not go on to consider the relevance of such particulars. As discussed above, the presence of such particulars may be relevant on the questions whether an applicant had made a claim for right of abode and whether there was a record of any claim. Thirdly, the judge said in paragraph 438 of the Report that he was unable to accept that Mr Fu surrendered himself on 27 March 1998 solely to process a claim for right of abode. This might be interpreted to mean that the judge did not rule out the possibility that one of the purposes of that visit could have been to make a claim for right of abode.

31. These are important matters which the judge should have considered together with the other evidence before him when he made a finding in respect of Mr Fu. It is difficult to tell whether the judge considered these matters and how much weight, if any, he gave to them. We do not know whether if the judge sufficiently considered them, his conclusion would have remained the same. For these reasons, it would not be satisfactory to rely on the judge's findings against Mr Fu and they must not be allowed to stand. His case should be remitted for reconsideration by the judge.

Conclusion

32. The appeals of these six applicants are therefore disposed of as follows:

(1) The appeals of applicants 204, 593, 733, 1623 and 3174 be dismissed;

(2) The findings in respect of applicant 1084 be set aside and his case be remitted for reconsideration by the judge;

(3) There be no order as to costs, except that applicant 3174's own costs be taxed according to legal aid regulations.

Mr Justice Bokhary PJ:

33. My position in this appeal - which I explained on 30 July 2002, have repeated since and repeat again now - is as follows. On 10 January 2002 I said in a minority judgment that I would allow all these appeals to the fullest extent in favour of all the appellants by (i) quashing all the removal orders and (ii) declaring that all the appellants are Hong Kong permanent residents with the right of abode here. And I adhere to that. I do not consider it appropriate for me to participate in resolving the issues which have arisen between the parties as to the effect of the majority's judgment. It would be otherwise if and to the extent that the members of the Court who formed that majority were now evenly divided amongst themselves on the resolution of those issues or any one or more of those issues. But that is not the present situation. So apart from saying that I adhere to everything that I said in my judgment on 10 January 2002, I say no more than that to the extent that the other members of the Court decide anything in favour of any of the appellants, such decision has my respectful support.