LIMBU TIKARAM v. REGISTRATION OF PERSONS TRIBUNAL AND ANOTHER

HCAL 112/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW

LIST NO. 112 OF 1999

____________

________________

J U D G M E N T

________________

Introduction

1. This is an application for judicial review of the decision of the Registration of Persons Tribunal ("the Tribunal") dated 14 July 1999 (the actual decision was pronounced at the end of the hearing on 30 June 1999) when the Tribunal dismissed the Applicant's appeal against the decision of the Commissioner of Registration ("the Commissioner") made on 26 January 1999 refusing to issue a Hong Kong Permanent Identity Card to him. Leave was granted on 19 October 1999. At the hearing on 7 June 2000, leave was also given to the Applicant to amend his "Notice of Application" (the Amended Form 86A"). The Commissioner appears in these proceedings to defend the Tribunal's decision.

The Nature of the Applicant's Case

2. The dispute between the Applicant and the Commissioner (which the Tribunal decided in the Commissioner's favour) was whether the Applicant was the baby boy referred to in a Hong Kong birth certificate No. 959 YD2. It appears from the birth certificate that the baby was born to a Nepalese family. It was unnamed in the birth certificate but was recorded therein as having been born in Hong Kong on 6 March 1958. The father was stated therein be one "LIMBU Jagansing" and the mother "Tilarani".

3. At the appeal hearing before the Tribunal, the Applicant contended that he was the baby referred to in the said birth certificate. The way in which he sought to establish this was by (1) producing documentary records and (2) calling witnesses. Two witnesses were called: himself and a lady who claimed to be his sister.

Written Decision of the Tribunal

4. The written decision dated 14 July 1999 of the Tribunal consisted of some 22 pages. It was divided into the following parts:-

(1) Introduction (pp.1-2): this sets out briefly the history leading up to the appeal before the Tribunal and the nature of the Appellant's case;

(2) Application for verification of Eligibility for Permanent Identity Card (pp. 2-3): this sets out the Appellant's application to the Commissioner for an identity card;

(3) Respondent's Case: Discrepancies and Irregularities observed by HKID in the Appellant's Claim (pp. 3-8): although not expressly so stated, judging from the heading the Tribunal was setting out the Commissioner's arguments. The discrepancies were listed under sub-headings and were related to (a) the birth place of the Appellant's daughter, (b) whether the Appellant served with the British Army, (c) the Appellant's birthday, (d) the Appellant's period of study, (e) the name of the Appellant's father and (f) the name of the Appellant's mother;

(4) Matters Before the Hearing of Appeal (pp. 8-9): this records that the Tribunal explained procedural matters to the Appellant;

(5) Appellant's Case (pp. 9-13): this sets out the gist of the Appellant's submissions;

(6) Appellant's Evidence in the Hearing (pp. 13-17): the heading is self-explanatory;

(7) Evidence of the Appellant's sister (pp. 17-18): the heading is also self-explanatory;

(8) Discrepancies (pp. 18-20): it commences by stating: "Notwithstanding the Appellant's effort in offering explanations, the Tribunal felt that there remained a number of discrepancies in the documents submitted by the Appellant and in his testimony which would make the Appellant's case less probable". The discrepancies which were then set out were: (a) the names of the Appellant's parents were different in a letter dated 25 August 1998 from the Army, (b) the Appellant's name was different in a document dated 30 June 1996, (c) the Appellant's birthday was different, (d) the testimony of the Appellant's sister differed from the school record. The Tribunal then stated: "The above discrepancies are in addition to other discrepancies in relation to different names of the Appellant's father and mother appearing in different documents submitted by the Appellant";

(9) Standard of Proof and Finding (pp. 20-22).

5. The last heading is important because it records how the Tribunal arrived at the conclusion it did. The relevant parts state:-

"[After referring to the discrepancy in the birthplace of the Appellant's children as reported by the Appellant to the authorities respectively in Nepal and Hong Kong] ... It would therefore appear that the Appellant not only made lies to the [Commissioner], but also performed further acts to perpetuate his lies. Although the Appellant had given his explanation ... the Tribunal found that the explanation that it was to simplify matter was not reasonable ... [The Tribunal then went on to find that neither the Appellant's nor his sister's testimony was reliable]";

"... the conclusion is that the Appellant intended to support his application by a fabricated story in the hope that the [Commissioner] would accept the same";

"The Tribunal has carefully considered the oral testimony of the Appellant, the documents submitted to the [Commissioner] by the Appellant in the course of the application (Exhibit 58 ... and Exhibit 59) ... the Tribunal is of the view that the Appellant has not proved on balance of probability that he was the baby referred to in the Birth Certificate".

6. It can be seen from the above that in the approximately 22-page long written decision, the only place therein where the Tribunal dealt with the documents produced by the Applicant in relation to his case (as opposed to the effect of the documents on the Applicant's testimony) was at the last passage quoted above where the Tribunal said "The Tribunal has carefully considered ... the documents submitted ... ".

The Applicant's Documentary Evidence

7. The documents produced by the Applicant to the Tribunal were important because of the following reasons. It was (and is) accepted that the father named in the birth certificate ( Mr LIMBU Jagansing) had only one son and that the father had served with the British Army and was stationed in Hong Kong at the time of birth of the baby referred to in the birth certificate. The Appellant sought to establish before the Tribunal (by way of documents) that the father referred to in the birth certificate was one and the same person as the gentleman certified in the Army documents to be the Appellant's father.

8. Before dealing with the issues in this application, I shall set out the relevant documents produced by the Applicant to the Tribunal.

9. In a letter dated 9 June 1997 from the "Records Office, British Gurkhas Pokhara, Nepal" ("the Records Office") (produced as Exhibit 25 to the Tribunal), "LIMBU Jobansing" was certified inter alia to be a British soldier with service No. "21146178". His son was certified to be "LIMBU Tikaram".

10. In a letter dated 10 September 1997 from the "Gurkha Reserve Unit" in Brunei (produced as Exhibit 13), it was certified that "Tikaram Limbu, son of 21146178 Rifleman Jobansing Limbu ... is also known as Mankumar Limbu ... " and that Corporal Tikaram Limbu (also known as Mankumar Limbu) has a service number 21161426.

11. A letter dated 25 August 1998 from the Records Office addressed to the Commissioner was produced to the Tribunal as Exhibit 53. Case 2 in this letter is relevant to the Applicant (described as "21161426 Cpl Mankumar Limbu"). The family particulars shown therein inter alia were "Father: Jovansing Limbu; Mother: Mayadevi". The family particulars of "21146178 Rfn Jobansing Limbu" were inter alia "Wife: Tilmaya Limbu; Son: Tikaram Limbu". The letter was signed by "B Tamang" for Officer Commanding.

12. A letter dated 3 September 1998 (about 9 days after the last letter) from the Records Office to the Commissioner (produced as Exhibit 18(b)) stated inter alia:-

"As I re-investigated the case of 21161426 Cpl Mankumar Limbu ... , it is revealed that his father is identified as 21146178 Rfn Jobansing Limbu ... The rank 'Lt(QGO)' shown against father, Jovansing Limbu ... is an [sic] clerical error ... The above statement is also confirmed by 21146178 Rfn Jobansing Limbu who presented him-self at this office"(emphasis supplied).

This letter was also signed by "B Tamang" for Officer Commanding.

13. It is unclear if a letter dated 5 October 1997 from the Records Office was placed before the Tribunal. No exhibit number was given to it by the Tribunal. It certified that LIMBU Jobansing and LIMBU Jagansing were the names of one and the same person. At the hearing before me on 13 October 2000, the Commissioner submits that it has not been produced at the time. If by "produced" it means formal production as an exhibit the Commissioner is correct. However, it is apparent from the transcript of the Tribunal hearing that the Applicant tried to draw the Tribunal's attention to this document: see pp. 304 and 329-30 of the Exhibit Bundle and para. 42-3 and 51, Applicant's skeleton submissions. It appears from the transcript that the Tribunal did not deal with the document further except noting its existence. The written decision of the Tribunal seems to deal with it in a similarly casual manner when it says:-

"In replying to the grounds set out in paragraphs 3 and 4 thereof [probably referring to the Commissioner's "Summary of Facts"], the Appellant ... filed the Further Grounds of Appeal ("Further Grounds") with the Tribunal" (p. 9 of the decision);

"The Appellant annexed the following documents in the Further Grounds to support his case ... Letter from British Gurkhas Pokhara (5th October 1997) confirming Jobansing Limbu and Jagansing Limbu are the names of one and the same person" (pp. 12-3 of the decision).

The Present Application

14. Without the need to go into the details, it is clear that during the appeal hearing, the Applicant laid considerable emphasis on the documents he produced, especially those from the British Army (see those set out above in particular). The Applicant's main complaint in this Application is that the Tribunal has failed to take into account relevant matters, namely, the Army documents.

15. Mr Marshall for the Commissioner supports the Tribunal's decision on 3 main grounds:-

(1) there was no duty on the Tribunal's part to give any reason for its decision on the Applicant's appeal;

(2) in any event, the Tribunal has given adequate reasons when it dealt with the appeal because:-

(a) the Tribunal expressly stated it had carefully considered the documents submitted by the Applicant. Whether the Tribunal should accept the documents is essentially a question of fact for the Tribunal;

(b) the statutory procedure (Schedule 4, Rules 1 and 4, Registration of Persons Regulations, Cap. 177) provides that the Commissioner should supply a "Summary of Facts" to the Tribunal and the Applicant. The principal relevant facts for and against the Applicant have been included in this document and were read to the Tribunal at the appeal hearing. The Tribunal must have considered the matters in the "Summary of Facts";

(c) the Tribunal consisted of lay members and hence it would not be reasonable to expect from them a comprehensive written decision as if it were a judicial body;

(3) the grounds put forth in the Amended Form 86A are inadequate.

16. I disagree with Mr Marshall's point (1) above. There is no need to go into the analysis in great detail save to say this. The Tribunal was set up by the legislation to deal with:-

"any appeal by a person who is aggrieved by a decision of a registration officer not to issue a permanent identity card to that person" (s. 3D(1), Cap. 177).

Cap. 177 was enacted to:-

"provide for the registration of persons in Hong Kong, and of persons elsewhere who have the right of abode in Hong Kong ... " (the long title).

The question of whether there is a duty to give reasons has been discussed in quite a number of cases. In Tong Pon Wah v. Hong Kong Society of Accountants [1998] 2 HKLRD 427 the Court of Appeal dealt with this issue in relation to a disciplinary committee of the Hong Kong Society of Accountants. The court observed:-

"There exists no common law duty for a decision-maker to provide reasons. ... Traditionally, judicial decisions do not suffer from it. .... Lord Mustill acknowledged the sad fact that 'the law does not at present recognise a general duty to give reasons for an administrative decision'. In Doody [[1993] 3 ALL ER 92] at p. 107E, Lord Mustill found 'a perceptible trend [in judicial review cases] towards an insistence on greater openness ... in the making of administrative decisions'. This has developed into a general tendency. Endeavours, some rational and others robust, have commendably been made in common law jurisdiction countries to encourage the giving of reasons. For decisions involving matters of great importance or impact ... fairness virtually cries out for reasons. The interest affected in this category is one either very highly regarded by the law or very crucial to the complainant. At p. 110B, Lord Mustill suggested in Doody that 'such a duty [might], in appropriate circumstances, be implied'. See also Lloyd v. McMahon [1987] AC 625 at pp. 702-703; Lau Tak Piu & Others v. Immigration Tribunal [1992] 1 HKLR 374 at pp. 380 and 382. ... " (pp. 440-1, per Liu, JA).

The court then observed that it is now almost an uniform practice of government departments, once judicial review is on foot, to explain their decisions or action mostly at the leave stage.

17. The same issue was discussed by the Court of Appeal in Oriental Daily Publisher Ltd. v. Commissioner of Television and Entertainment Licensing Authority [1997] 3 HKC 93, 98-9 and 101-3. After commencing from the position that there is no common law rule requiring reasons to be given by an administrative tribunal, the court concluded that such a duty should be implied from the provisions of the statute relevant to that appeal. That part of the Court of Appeal's decision was not challenged on appeal to the Court of Final Appeal. The Court of Final Appeal nevertheless made the following comments:-

"It is possible that the duty [to give reasons for decision] may be put on a wider ground than implication as a matter of statutory construction. It may be said to arise under the common law in the following way. Considering the character of the tribunal, the kind of decision it has to make and the statutory framework in which it operates, the requirements of fairness demand that the tribunal should give reasons; there being no contrary intention in the statute" ((1997-8) 1 HKCFAR 289, per Li, CJ).

18. The character of the Tribunal can be found from the following provisions in Cap. 177: the long title (see above) and ss. 3C, 3D (especially s. 3D(4)) and 3E, Regulation 26A and Schedule 4 thereto. Without the need to set them out in detail, I conclude that the Tribunal's character is judicial or quasi-judicial. The kind of decision the Tribunal has to make is more easily ascertainable: see s. 3D of Cap. 177, especially s. 3D(4). To put it shortly, the Tribunal has to determine whether the appellant has satisfied it he enjoys the right of abode in Hong Kong. The importance of such a finding to anyone who wishes to stay in Hong Kong is well known and needs no repetition.

19. In these circumstances, I consider that there is a duty on the Tribunal's part to give reasons. In fact, the Tribunal apparently shared this view because, as far as I know, it has been the Tribunal's practice to give reasons for its decisions. In the present case, the Tribunal has done so extemporarily and has given full reasons afterwards.

20. With respect to Mr Marshall, I also disagree with his argument in point (2) above. As Mr Kwok for the Applicant correctly points out in the Applicant's skeleton submissions, "the credibility of the Applicant was not the central issue": see para. 67 thereof. Rather, it was whether the Applicant has succeeded in establishing his father was the same person referred to in the birth certificate as the baby's father. The documentary records adduced by the Applicant were per se one type of evidence which may prove this. The letters respectively dated 9 June 1997, 10 September 1997, 25 August 1998, 3 September 1998 and 5 October 1997 when read together clearly support the Applicant's case. The truthfulness and/or reliability of their contents do not depend on the credibility of the Applicant's testimony (or that of his witness). There was no suggestion, or finding, that the documents were forged, or were concocted by the Applicant or someone on his behalf or at his direction.

21. In these circumstances, even if one were to take into account that the Tribunal consisted of lay members (and the other matters relied upon by Mr Marshall in points (2)(b) and (c) above), the mere statement that:

"The Tribunal has carefully considered ... the documents submitted ... "

falls far short of the proper way in which it ought to have dealt with the matter. As stated above, the matter was clearly one of the central issues in the appeal, and not some oblique point which may not warrant a full consideration in the written decision. The Court of Final Appeal's observations on this point (in Oriental Daily v. Commissioner for TELA) are applicable:-

"... the reasons given should show that the tribunal has addressed the substantial issues before it and show why the tribunal has come to its decision. There may not be any need however to address every single issue. But the reasons should show that the issues that arise for serious consideration have been considered

... the reasons may not require great elaboration and they may be brief. It is only when they are defective in substance that they should be considered inadequate. Ultimately, what are adequate reasons in the circumstances of a particular case has to be approached sensibly" (emphasis supplied) (p. 291, Per Li, CJ).

22. No complaint has been made by the Applicant that the Tribunal was acting in a biased manner. It is therefore unnecessary to determine this issue. However, looking at the written decision "in the round", I must say that at the least the Tribunal's written decision has given an impression that there was an over concentration on looking for weaknesses (or discrepancies) in the Applicant's case. There was a complete lack of proper reference to (let alone analysis of) the documentary materials (coming from an apparently independent source) which were in his favour.

23. As regards Mr Marshall's point (3) above, I do not think I need to go further than to refer to the grounds in the Amended Form 86A at para. (A) and (G) to (J) under the heading "Conclusion".

24. By reason of the matters aforesaid, I agree with the Applicant's argument that the Tribunal has failed to take into account relevant matters: see para. 66-70, Applicant's skeleton submissions.

Other matters

25. Other grounds were put forth by the Applicant to challenge the Tribunal's decision including:-

(1) unfairness on the Commissioner's part in that documents used in the cross-examination of the Applicant were withheld from him until the time of cross-examination: reliance is placed on de Smith: Judicial Review of Administrative Action (1995) 5th Ed., 8-015 to 8-018; Supperstone & Gouldie: Judicial Review (1997) 8.17; In re D [1996] AC 593, 609, 615; Unaj Limbu v. The Commissioner for Registration HCAL No. 136 of 1999, p. 14 onwards;

(2) the Tribunal's failure to deal with the Applicant's case that the evidence produced by him was the same as that produced by his sister (who was issued with a Hong Kong Permanent identity card): see pp. 350-1, Exhibit Bundle and para. 55-6, Applicant's skeleton submissions.

Since I am able to determine this application based on the ground that the Tribunal has failed to take into account relevant matters, there is no need to deal with these further grounds.

Conclusion

26. In view of the matters above, I find in the Applicant's favour. The Commissioner raised no objection regarding the relief set out in the Amended Form 86A. There will be an order in terms of para. (1) to (3) of the relief sought. The Applicant has not indicated whether he seeks to have the matter re-considered by the same Tribunal or another one. I shall leave that matter to be discussed by the parties. There will be liberty to apply regarding that matter if that becomes necessary.

Costs

27. There is no reason not to adopt the usual rule that costs should follow the event. Costs of this application are to be paid by the Commissioner to the Applicant to be taxed if not agreed.