Re Lau Yuk Fong

HCMP No. 2696 of 1994

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. This is an application for Judicial Review. The Applicant is seeking an order of certiorari quashing the Director of Immigration's decision on the 5th September 1994 to decline to exercise his discretion in her favour under s.13 of the Immigration Ordinance Cap. 115 to allow her to remain in Hong Kong.

2. She is one of the sad cases of a family which is split between family members who are able to live in Hong Kong and those unable to do so.

3. The Applicant has previously made application to be allowed to remain in Hong Kong on what I think can fairly be described as strong humanitarian grounds. Her efforts were unavailing and she sought to have one of the previous decisions set aside by way of Judicial Review.

4. These proceedings were not pursued to a conclusion as a consequence of a number of other applications of a similar nature being rejected and of the Court of Appeal determining that the scope for reviewing the exercise of the Director's discretion under s.13 was severely circumscribed.

5. Mr. Dykes for the Applicant distinguished the present case from other proceedings which had not been successful.

6. In the present case the Applicant and her husband had stated on affirmation that she had received a promise that she could remain in Hong Kong if she agreed to act as a prosecution witness in criminal proceedings taken against a 'snakehead' who assisted her and others in gaining entry to the territory.

7. She had agreed to this and had co-operated with the prosecution in the preparation of the case. At the trial the snakehead had pleaded guilty to the offence he was charged with and had been sentenced to serve a term of imprisonment.

8. The 2nd main ground advanced by Mr. Dykes was connected with this. He referred to the evidence on affirmation that the Applicant was fearful that if she was repatriated to China she may be the subject of a revenge attack by members of the snakehead syndicate. This belief was fortified by affirmation evidence of 2 villagers of her native village who gave evidence to the effect that sinister strangers had visited the village making enquiries concerning the Applicant's whereabouts and their belief that these men or their Associates were likely to subject the Applicant to retribution for her agreeing to co-operate in the prosecution of the member of the syndicate who had been sentenced to imprisonment.

9. It is evident from a perusal of the affidavit evidence that there are conflicts of evidence concerning these two features which distinguish the present case from other cases.

10. The Director refers to inquiries which have been undertaken and states that he does not believe that any promise was ever made to the Applicant that if she was prepared to give evidence against the snakehead she would be permitted to remain in Hong Kong.

11. The Director also states that he has caused inquiries to be made by his staff concerning the Applicant's fears of retribution and that he was satisfied that these fears were not well founded even assuming that her identity had become known to members of the syndicate.

12. Mr. Dykes submitted that it was necessary to resolve some of these conflicts of fact. To this end he applied for leave to cross-examine Senior Inspector Ho the Police Officer who the Applicant claimed had made the offer concerning her giving evidence. Senior Inspector Ho had also said that he had caused inquiries to be made and that he did not believe that any such offer had ever been made to the Applicant.

13. In addition to this Senior Inspector Ho, who had been the officer- in-charge of the snakehead case had given evidence on affidavit that he believed that it was unlikely that the Defendant in the proceedings had received information which would enable the Defendant or possibly any syndicate he may have been involved with to obtain details of the Applicant's identity.

14. In support of his application to cross-examine Senior Inspector Ho. Mr. Dykes submitted that Senior Inspector Ho's denial of making an offer amounted to a suppression of evidence and adopting the principle referred to by the Court of Appeal at page 595 of Ex parte Powis [1981] 1 WLR 584 the Senior Inspector should be cross-examined. Dunn, L.J. said :-

" Finally there was an application on behalf of the tenant to admit fresh evidence which the Divisional Court had refused to admit. Like the Divisional Court we considered the evidence de bene esse. What are the principles on which fresh evidence should be admitted on judicial review? They are (1) that the court can receive evidence to show what material was before the minister or inferior tribunal: Ashbridge Investments Ltd. v. Minister of Housing and Local Government [1965] 1 W.L.R. 1320, 1327, per Lord Denning M.R.; (2) where the jurisdiction of the minister or inferior tribunal depends on a question of fact or where the question is whether essential procedural requirements were observed, the court may receive and consider additional evidence to determine the jurisdictional fact or procedural error. see de Smith's Judicial Review of Administrative Action, 4th ed. (1980), at pp. 140, 141 and cases there cited; and (3) where the proceedings are tainted by misconduct on the part of the minister or member of the inferior tribunal or the parties before it. Examples of such misconduct are bias by the decision making-body, or fraud or perjury by a party. In each case fresh evidence is admissible to prove the particular misconduct alleged: see Reg. v. West Sussex Quarter Divisions, Ex parte Alhert and Maud Johnson Trust Ltd. [1974] Q.B. 24, 39, 43 per Orr and Lawton L.JJ.

There was discussion at the Bar as to the situation where a party deliberately suppressed material facts with the intention of misleading the Secretary of State. If that were the situation then it would be for the court to consider whether the conduct of that party could be described as fraudulent so as to permit the admission of fresh evidence.

It is said that there is a distinction between cases such as the West Sussex case where an order of certiorari was sought to quash the decision of an inferior tribunal after a hearing and cases such as the present where it is sought to quash the decision of the Secretary of State where there has been no hearing. We can find no such distinction and the remarks of the majority in the West Sussex case are quite general in their application to certiorari."

15. Mr. Dykes also placed reliance upon the speech of Lord Diplock at page 282 of O'Reilly v. Mackman [1983] 2 AC 237 :-

" Those disadvantages, which formerly might have resulted in an applicant's being unable to obtain justice in an application for certiorari under Order 53, have all been removed by the new Order introduced in 1977. There is express provision in the new rule 8 for interlocutory applications for discovery of documents, the administration of interrogatories and the cross- examination of deponents to affidavits. Discovery of documents (which may often be a time-consuming process) is not automatic as in an action begun by writ, but otherwise Order 24 applies to it and discovery is obtainable upon application whenever, and to the extent that, the justice of the case requires; similarly Order 26 applies to applications for interrogatories; and to applications for cross-examination of deponents to affidavits Ord. 28 r.2(3) applies. This is the rule that deals with evidence in actions begun by originating summons and permits oral cross-examination on affidavit evidence wherever the justice of the case requires. It may well be that for the reasons given by Lord Denning M.R. in George v. Secretary of State for the Environment (1979) 77 L.G.R. 689, it will only be upon rare occasions that the interests of justice will require that leave be given for cross-exatnination of deponents on their affidavits in applications for judicial review. This is because of the nature of the issues that normally arise upon judicial review. The facts, except where the claim that a decision was invalid on the ground that the statutory tribunal or public authority that made the decision failed to comply with the procedure prescribed by the legislation under which it was acting or failed to observe the fundamental rules of natural justice or fairness, can seldom be a matter of relevant dispute upon an application for judicial review, since the tribunal or authority's findings of fact, as distinguished from the legal consequences of the facts that they have found, are not open to review by the court in the exercise of its supervisory powers except on the principles laid down in Edwards v. Bairstow [1956] A.C. 24, 36; and to allow cross-examination presents the court with a temptation, not always easily resisted, to substitute its own view of the facts for that of the decision-making body upon whom the exclusive jurisdiction to determine facts has been conferred by Parliament. Nevertheless having regard to a possible misunderstanding of what was said by Geoffrey Lane L.J. in Reg. v. Board of Visitors of Hull Prison, Ex parte St. Germain (No. 2) [1979]1 W.L.R. 1401,1410 your Lordships may think this an appropriate occasion on which to emphasise that whatever may have been the position before the rule was altered in 1977 in all proceedings for judicial review that have been started since that date the grant of leave to cross-examine deponents upon applications for judicial review is governed by the same principles as it is in actions begun by originating summons; it should be allowed whenever the justice of the particular case so requires."

16. While this speech does provide valuable guidance as to the circumstances when it may be appropriate to endeavour to resolve conflicts of fact in judicial reviews I am by no means convinced having regard to the circumstances of the present case, that the speech is in fact authority to justify my making an order for cross-examination. It will be noted that Lord Diplock refers to the temptation which can arise for the court exercising the supervision to substitute its own view of the facts for those found by the tribunal. I have no doubt that this is a real difficulty and that it is only in exceptional cases that it is appropriate to make an order for a witness to be cross-examined in a Judicial Review.

17. Support for this view of the matter can be found at page 693 of the judgment of Lord Denning M.R. in George v. Secretary for State 77 LGR 689 :-

" It seems to me that, in general, cross-examination should not be allowed in prerogative writ proceedings or in proceedings for judicial review or in applications like this for compulsory purchase orders. There are very good reasons for this rule. First, usually the affidavits speak as to what took place before the determining body. It may be before a planning inspector, a magistrate or some one of that kind. He may have to make an affidavit as to what took place before him. It is undesirable that he should be subjected to cross- examination. We said so in a recent case about a certification officer. If he is not to be subject to cross- examination, nor should the applicant. Secondly, experience shows that on these procedural questions there is very little conflict on the affidavits. Thirdly, one party or the other might, by means of cross-examination, try to undermine the actual findings of the inspector or other officer holding the inquiry.

In general, therefore, cross-examination should not be allowed, but I would stress that there is nothing in law to prohibit it. It is undoubtedly permissible under the rules. It is covered by R.S.C. Ord. 53, r. 8(1), which brings in R.S.C. Ord. 38, r. 2(3), which in terms provides for cross-examination on affidavits. It is a matter for the discretion of the court. It seems to me that in these proceedings cross-examination should not be allowed except where the court believes it is necessary in order that justice may be done between the parties."

18. Our Court of Appeal has also expressed the view that it is necessary for a court reviewing a decision to avoid usurping the decision making function of a decision maker. At page 14 of Chan Sau Mui and Others v. The Director of Immigration Unreported being Civil Appeal 60 of 1992 Bokhary J. as he then was says :-

"The order for cross-examination grants the family leave to cross-examine Mr. Yeung on his affidavit of 26th March 1992, "on the aspect of family support".

It is not disputed that the relatives mentioned by Mr. Yeung are in Hong Kong. Rather, the argument advanced on behalf of the family runs thus. Mr. Yeung is asserting that they can be counted on to help the husband to took after the children if the wife is sent back to China. But they cannot. So he has got those facts wrong. And discovery, further evidence and cross- examination will show that he has got them wrong.

To begin with, I do not read Mr. Yeung's affirmation that way. It seems to me that, by referring to family service agencies and the Social Welfare Department, he has made this clear. He realises that the relatives in question may or may not be counted on. And he has considered what the position would be if the wife is sent back and the relatives turn out to be of no help.

But what if Mr. Yeung is indeed asserting what the family contends that he is asserting? Let us assume that for the moment. On such assumption, the Director of Immigration would have proceeded on a view of the facts which the family says is erroneous. But which side is right is not obvious. And to decide that the court would have to do something even more clearly impermissible than arrogating to itself appellate jurisdiction in respect of the Director of Immigration's decision. For it would, in effect, have to try the issue, usurping his role and turning an administrative function of his into a judicial one of its. I do not view that as permissible in the present state of the law's development. And the effect of granting discovery, leave to file further evidence and leave to cross-examine can only be to further such usurpation."

19. I have no doubt that were I to permit Senior Inspector Ho to be cross-examined I would introduce the problems referred to by Lord Denning and our Court of Appeal. During the hearing I informed the parties of my ruling not to permit Senior Inspector Ho to be subjected to cross- examination.

20. So far as the substantial issues of this application are concerned the outstanding question is whether the Applicant is able to establish that the decision made by the Director was Wednesbury unreasonable.

21. Mr. Dykes accepts that there was no requirement at law for the Director to give reasons for the decision he reached. I have no doubt that this is the correct position. The Director was undoubtedly performing an administrative act when he exercised the discretion reposed in him under s. 13 of the Ordinance.

22. Such a decision can readily be distinguished from the quasi judicial functions exercised by the Immigration Tribunal when hearing appeals.

23. Mr. Dykes contended that where no reasons are given for a decision and the decision is on the face of it unreasonable it would always be open to a court reviewing the decision reached to draw adverse inferences and readily to conclude that the reasoning was unsound.

24. Here one has to ask whether in the light of all the available evidence the decision was manifestly unreasonable.

25. So far as the promise to permit the Applicant to remain in Hong Kong is concerned it is not surprising that the Director was not prepared to believe the evidence adduced by the Applicant.

26. In the previous proceedings I have referred to the Applicant did not see fit to claim that such an inducement had been offered to her. Indeed on the contrary correspondence has been exhibited which indicated that the Applicant was seeking to obtain such treatment in view of the fact that other illegal immigrants who had given evidence had been allowed to stay in Hong Kong.

27. The reason given for not raising the matter on the first application was not very convincing. It was said that the Applicant at that stage did not wish to say anything which may antagonise the Police.

28. It is also necessary to consider the circumstances of the case against the snakehead. It is clear that the Defendant was caught flagrante delicto and that any evidence given by the Applicant would have been of peripheral importance. When Mr. Marshall for the Director described her as being in effect a body exhibit I do not think that this is an inaccurate characterisation of the function she was performing.

29. Taking all of these matters into account I do not think that the Director's decision could in any way be described as being unreasonable so far as this related to his unwillingness to accept the Applicants version of events when balanced against the inquiries made of the Police and their denial that any such offer had ever been made.

30. The other limb of the matter is not quite so simple. At the commencement of the hearing Ms. Datwani filed an affidavit in which she recorded the results of an investigation she had made concerning the file of documents relating to the criminal proceedings against the snakehead. While her evidence was generally in conformity with the evidence given by Senior Inspector Ho in this connection there was one matter where her evidence did suggest that there was at least a possibility that the Defendant may have known the identity of the Applicant.

31. She referred to the fact that the Applicant's name was included as being one of the prosecution witnesses. It was therefore quite possible that the counsel who had been representing the Defendant would have acquainted him of her identity.

32. Mr. Dykes referred to this as being a serious error of fact in the determination of the Director as he had proceeded upon an assumption that her name would have been unknown to members of the snakehead syndicate.

33. I do not consider this to have been a matter of great importance. Having regard to the nature of the evidence against the Defendant and the role which was assumed by the Applicant it would seem to me to be unlikely that the identity of the Applicant would have been a matter of great significance to the Defendant or possibly members of the syndicate. There would not seem to be any reason why they should wish to wreak vengeance against her.

34. What is the position if the decision maker has based his decision on partially erroneous facts?

35. Sir Derek Cons. considered a similar situation in Nguyen Ho and Others v. Director of Immigration [1991] 1 HKLR 576 at page 582 :-

" It is this approach which has principally occupied our time in this appeal and is set out in the second paragraph of the first ground of the Notice, namely, that the learned judge was obliged to admit evidence which demonstrates that the decision makers made a material error of fact in determining that the applicant's professed fear of persecution was not well-founded.

This proposition is based upon observation in Tameside, first by Scarman, LJ (as he then was), in the Court of Appeal at p. 1030:

"Secondly, I do not accept that the scope of judicial review is limited quite to the extent suggested by Mr. Bingham. I would add a further situation to those specified by him; misunderstanding or ignorance of an established and relevant fact."

and again by Lord Wilberforce at p. 1047 in the House of Lords:

"If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the Court must inquire whether those facts exist".

Further support can be found in the words of Sir Robin Cooke in Daganayasi v. Minister of Immigration [1980] NZLR 131 and in New Zealand Fishing Industry Association Inc. v. the Minister of Agricultural and Fisheries [1988] 1 NZLR 544.

I would most respectfully suggest that this approach must be in accordance with basic principles, for if the Court may properly interfere when the inferior tribunal has not taken into account some matter which it should have done, the Court must also be able to do so when the inferior tribunal has got that matter wrong. But it must be something that is plainly wrong or, as the judge below put it, "established unassailably to be erroneous". Courts must in no circumstances allow themselves to be enticed into the evaluation of a fact which is properly within the exclusive jurisdiction of the tribunal.

It must also be a material fact as is accepted by the ground of appeal itself. At times the judge below uses, as did Prof. Wade in his 6th ed. of Administrative Law, instead the word "decisive". But I do not read that as intending any meaning different from that usually attributed to the word "material" in this context."

36. Adopting this criteria I do not think that this error has been unassailably established or that it is a material fact.

37. I can see no reason to disagree with the statement made by the Director that even if the identity of the Applicant was known to members of the syndicate he would still have come to the conclusion that this was not a suitable case for him to exercise his discretion under s. 13.

38. Mr. Dykes emphasised that the evidence of the villagers was independent and that it had not been contested. However it is obviously not the case that the Director must accept as gospel every piece of evidence which is tendered to him.

39. It is necessary for him to exercise a measure of judgment. The fact that Mr. Tsui one of the other illegal immigrants who gave evidence and returned to China has not apparently been visited with any untoward consequences is perhaps significant. So also is the fact that the Applicant has been at large for some time in Hong Kong and no one apparently has attempted to molest her in any way in connection with the matter.

40. More important than this is the comparatively minor role she assumed and the considerable passage of time which has elapsed since she made herself available to give evidence.

41. I do not know the extent to which all or any of these matters were weighed in the balance by the Director as the reasons he gave were indeed brief. There are though no grounds to enable a court exercising a supervisory function to conclude that the decision reached by the Director was in any way irrationale.

42. Perhaps more accurately it can be stated that the evidence falls far short of meeting the test of being Wednesbury unreasonable.

43. There is a most helpful commentary on what is required at page 17 of the judgment of Litton, J.A. in Chan Heung Mui & Others v. Director of Immigration Unreported being Civil Appeal 168/1992 :-

" Here, the Deputy Director in his respective affidavits simply stated that after reviewing the papers he had come to the view that "no strong or powerful humanitarian grounds" had been made out by the respective applicants. Counsel's complaint is that he has not "condescended upon any particulars", nor has he given examples of how strong and powerful humanitarian grounds have been made out in other instances. Mr. Martin Lee Q.C. counsel for the appellants argues as follows :

(i) Good administration requires that when a Government authority resists an application for judicial review, it should play with all the cards face upwards on the table : see Sir John Donaldson MR in R. v. Lancashire County Council. ex parte Huddleston (1986) 2 AER 941 at 945g.

(ii) Here, the Deputy Director has simply made a bald assertion that no strong or powerful humanitarian grounds have been made out. That, says counsel, begs the question; if there were other considerations, such as, for instance, the fear of a great influx of immigrants if the policy was not tightly applied, these have not been stated by the Deputy Director; it must therefore be inferred that there are no such considerations which could justify the decision.

Attractive though these propositions may sound, in the skilful way in which they were put, I must reject them. It must always be borne in mind that it is for the Director and not for the courts to administer the scheme of immigration control under the Ordinance. If "irrationality" is the ground of challenge, the threshold is very high. It only applies to a decision which is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at it": per Lord Diplock in CCSU v. Minister for the Civil Service (1985) AC 374 at 410G.

The expression "Wednesbury unreasonableness" or "irrationality" is used so often by lawyers that it may take on a life of its own, separated from its roots. It is worth recalling the genesis of this ground of attack. For it to succeed the court must be able to infer that the decision-maker must have made a mistake of Law by, for instance, straying wholly outside the scope of the statute or taking into account totally irrelevant considerations: see Lord Diplock in CCSU at 410H."

44. For the reasons I have given I have come to the conclusion that this application must be dismissed. I will hear the parties on costs.