NG SIU TUNG AND OTHERS v. DIRECTOR OF IMMIGRATION

HCAL 81/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.81 OF 1999

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THIRD REPORT TO THE
COURT OF FINAL APPEAL

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Introduction

1. This third report determines 19 individual applications.  To date, therefore, in all three reports, 65 applications have been determined.

2. While the disposal of cases by way of contested hearings has been steady, if often hard fought, the accrued resolution of disputed issues of principle and fact has led to the settlement of 91 applications without the need for a hearing.

3. In addition, 10 applications have been withdrawn.

4. In the result, as I understand it, there are now only 68 cases outstanding.

5. As at the end of May of this year, the applicants in the great majority of these outstanding cases, over 60 of them, had not yet filed their evidence.  However, assuming, once their evidence is filed, that a settlement rate is obtained similar to the rate obtained so far, there is no reason why those remaining cases which must go to trial cannot be dealt with by the end of 2007.

6. In this regard, the following ‘hearing periods’ have been set :

(i)	20 November – 20 December 2006,
(ii)	2 – 31 May 2007, and
(iii)	3 September – 31 December 2007.

7. For convenience, this third report has been divided into parts.  They are as follows :

Part One :	Two applications by applicants from whom legal aid was withdrawn
Part Two :	Two ‘group six’ applications
Part Three :	One ‘group four’ application
Part Four :	Eight ‘group one’ applications
Part Five :	Six ‘group two’ applications

Part One

8. When the second tranche of hearings commenced, I was informed that a number of applicants, previously granted legal aid, had now had their legal aid withdrawn.

9. In Part Five of my second report, I described the steps taken to assist those applicants and, in addition, set out my determinations in respect of all but two of them.

10. My determinations in respect of those remaining two are set out below.

Madam Li Lu Ye, also known as Li Luk Yip (2233 : a ‘group one and group two’ applicant)

11. This applicant’s case was not heard in time to be contained in my second report.  This was because the applicant, having first obtained a short adjournment of approximately one month, then sought a much longer adjournment in order, she said, to attempt to raise sufficient funds to obtain private legal representation.  Her case was therefore adjourned to January of this year, an adjournment in excess of six months.

12. Shortly before the hearing on 16 January of this year, the applicant sought a further adjournment of at least three months.  She did so on the basis that she still needed time to be able to attempt to borrow money to pay for legal representation and also, as she put it, ‘to gather further evidence’.  However, having heard submissions, I was satisfied, first, that, if she had not already been able to raise sufficient funds, there was no realistic prospect of her being able to do so in the next three months and, second, that, in fact, there was no clearly identifiable further evidence to be gathered.  The applicant’s case therefore proceeded, being heard on 16 and 17 January 2006.

13. The applicant was born in Fujian Province in 1955.  Her father came to Hong Kong in 1974, her mother following in 1983.  At all material times, both her parents were permanent residents.

14. The applicant testified that she claimed right of abode on four separate occasions during the concession period.

15. The relevant history of her matter, however, commenced in 1989, well before the concession policy began.  In May 1989, the applicant, who at that time was a married woman with four children, came to Hong Kong to visit her parents.  Her two-way permit obliged her to return to the Mainland in July.  The applicant, however, overstayed.  She was eventually arrested in October 1989 and charged with two criminal offences; first, with breaching her conditions of stay and, second, with altering her two-way permit.  The applicant pleaded guilty to the charges and was sentenced to a total of three months’ imprisonment suspended for a year.

16. In a cautioned statement made in October 1989, the applicant explained why she had committed the offences for which she was convicted :

“The (reason) is, I wanted to live with my parents so much.  In addition, I wanted to take care of my mother who was in poor health.  So, after my limit of stay in Hong Kong expired, I did not leave Hong Kong and overstayed in Hong Kong.  However, I feared that my residential status would be disclosed easily, so I bought a bottle of correction fluid and altered the information on the Two-way Exit Permit.”

17. In September 1992, the applicant returned to Hong Kong, her two-way permit allowing her to remain until October.  Again, however, she overstayed.  Indeed, she remained in Hong Kong until March 1997 – a few months before the change of sovereignty – when she was arrested.  She was again charged with two offences; this time with breaching her conditions of stay and with being in possession of another person’s Hong Kong identity card.  She pleaded guilty to both charges and was sentenced to imprisonment for nine months.

18. During the course of the hearing, when questioned about her conviction in March 1997, the applicant protested that she had not, in fact, been in possession of another person’s identity card.  The applicant said that, at the time of her arrest, the police had acted ‘fiercely’ towards her.  She had been assaulted.  In addition, the identity card had been planted on her; in short, the police had fabricated a case against her.  She had made no protest in court, she said, and had pleaded guilty because she had been afraid of further assaults.

19. This explanation, in my view, was not credible.  It struck me as a spontaneous invention, one which she was then forced to embroider.  It was clear, I think, that she invented this explanation because she was well aware of the suggestion being put by counsel for the Director that she was the sort of person who in the past (in 1989 and 1992) had been prepared to try and deceive the authorities by using manufactured, altered or illicitly obtained evidence and was attempting to do the same in the hearing before me.

20. The applicant was clearly a woman of limited education but it in no way followed that she was mentally dull.  She was never impolite nor aggressive.  But nevertheless she could be very persistent.  Rulings sometimes had to be repeated several times before she would accept them.  She clearly understood the burdens she faced and did her best to overcome them.  It became obvious to me, however, that all too often she was prepared to enlarge upon incidents, or invent them entirely, if she thought it would advance her case. 

21. During the course of her evidence, the applicant stressed that, when she had been arrested by the police in March 1997, she had made a statement in which she had made a claim for right of abode.  She said that, in preparing for her case, she had attempted to obtain a copy of her statement but had been informed that it had been destroyed.  In the result, she said, she had been deprived of important written evidence of her claim.  However, even if such a claim was made, written evidence of it, while it would go to issues of credibility, would not otherwise have advanced her case.  This is because the claim was not made in the period encompassed by the concession policy (from 1 July 1997 to 29 January 1999) and nor does the Immigration Department have a record of it.

22. According to the applicant, her first claim for right of abode made within the concession period was made on 1 September 1997.  The claim was made, she said, after she had served her prison sentence and was being interviewed by an immigration officer for the purposes of her repatriation to the Mainland.

23. When the interview took place, said the applicant, she told the interviewing officer, Immigration Officer Chan Hok Man, that she had come to Hong Kong to care for her father who had broken his leg.  She protested, she said, that she did not wish to go back to the Mainland.  She told the officer, she said, that both her parents were permanent residents and, through them, she was also a permanent resident.  She had heard, she told the officer, that others had been released on bail so that they could remain in Hong Kong as permanent residents.  She sought to benefit from the same scheme.  She was told, however, that there was no such scheme and that she would have to return to the Mainland.  Only then, said the applicant, did she reluctantly write down the words on the interview form that the officer demanded she copy from a text.  The English translation of what is written on the ‘grounds for non-removal’ form is to the following effect :

“I, Lee Luk Yip, on 1 Sep 1992 came to HK with permission from Lo Wu.  In HK, from 23 Oct 1992.  I overstayed from 24 Oct 92 until 1 March 1997 was arrested by police.  Later the court sentenced me to prison for 9 months.  I have finished imprisonment, want to return to Mainland China as soon as possible, but my two-way permit had already expired, please help me to arrange everything.”

24. In my view, what is written on the form is too well composed, too well structured in its flow of information, to have been written by the applicant without any assistance by the interviewing officer.  That being said, Mr Chan, the interviewing officer, accepted that, if an interviewee consented, he would assist, if necessary, in completing the form.

25. The characters written on the form are in the applicant’s own hand.  According to Mr Chan they are in simplified characters, a form of writing with which he had limited familiarity.  There are apparently a number of mistakes in the writing.  Mr Chan said that, if an interviewee wrote the characters, he would not correct any mistakes.  It would be different, of course, if he wrote on behalf of the interviewee.

26. The applicant testified that, being semi-literate, she made the mistakes when she was forced to copy what Mr Chan had written on a separate piece of paper.  As to the use of simplified characters, the applicant said that she asked if she could use these characters and was given permission.

27. On the balance of probabilities, for the reasons I have given, I am satisfied that the applicant must, to a material degree, have written at the dictation of the interviewing officer or copied what he had written for her.  The more difficult question is whether the characters were written after the applicant had made on oral claim for right of abode and had, as she asserted, been told she could not make such a claim.

28. The applicant’s oral testimony was unambiguous.  On the basis of that testimony, if it is accepted, she made a claim.  However, when the applicant set out her case to her first set of solicitors, Pam Baker & Co., the summary of her case was far less direct.  The summary said the following :

“Ms Li told the interviewing officer she does not want to go back yet, she wanted to get bail to stay in HK to look after her father (who had just broken his leg).  The officer said, you cannot refuse to return, you have overstayed for so long (since 1992).  You have broken the law, you are not allowed to stay.  The officer then wrote out on a separate piece of paper these Grounds for Non Removal for her to copy.”

29. When I suggested to the applicant that her case summary had not contained any of the direct language she testified she had used in the interview – a direct claim, for example, that through her parents she too was a permanent resident – the applicant responded by asserting that her then solicitors had somehow acted in a way which prevented her from giving her full story.  I took this to mean that the solicitors had dealt with her perfunctorily and did not accurately record the details of her claim.  It is a fact, of course, that Pam Baker & Co. at that time were working under very considerable pressure.  Accuracy in such circumstances cannot always be assured.

30. However, in the applicant’s affirmation of 19 November 2002, a much fuller document, nothing was said there either of any direct claim for right of permanent residence through her parents.  The affirmation, in so far as it is relevant, reads :

“When I was asked to copy words down on the Grounds for Non-Removal, I again told the officer I did not know how to write.  Nevertheless, I was told to copy something written by the officer.  I repeated that I did want to stay in Hong Kong.  The officer replied, harshly: ‘If you do not know how to write how dare you come to Hong Kong?  You want to be a beggar?  Aren’t you afraid you will end up a beggar?’  I told the officer ‘My parents are here, how can I become a beggar?’  I told her again I wanted to stay to take care of my parents.”

31. I do accept on the probabilities that the applicant, in the course of the interview, may well have expressed a desire to remain in Hong Kong with her parents.  As far back as 1989 she had made such a request.  But just as in 1989 (in her cautioned statement), her stated desire was based on compassionate grounds and not, even indirectly, on any asserted right.

32. There is nothing in the case summary or the affirmation to suggest, directly or indirectly, that the applicant was seeking to stay in Hong Kong because she believed that through her parents she had a lawful right to do so.  It was only in the course of her oral testimony, when she was asked by myself to state what she remembered saying, that the applicant made direct reference to rights of permanent residence and the like.  I appreciate, of course, that testimony is intended to create a fuller, more detailed story.  In the present case, however, it struck me that the applicant’s testimony was tailored to what she now knew she had to prove and did not reflect an attempt in good faith to remember what had in fact been said.

33. On the day the applicant was interviewed, and two days before on 30 August 1997, she completed a number of forms other than her ‘grounds for non-removal’ form.  One of these forms bore the heading ‘My Personal Particulars’.  In that form, the applicant filled in all the required details of both her parents : their names, ages, places of birth, occupations and address in Hong Kong.  However, no details of their identity cards or residential status was sought and none was given.  In my judgment, therefore, this form is not itself evidence of a claim for right of abode nor does it contain information which may be said to support any oral claim.

34. On 30 August 1997, the applicant had filled out another information sheet, this one entitled : ‘Information on Detainee’.  That form, however, gives no information as to her parents and their status in Hong Kong.  The only information sought and given concerning the parents is their place of birth : in each case, Fujian.

35. In summary, therefore, while I accept that on 1 September 1997 the applicant may well have asked if it was possible to remain in Hong Kong in order to be with and care for her parents, I am unable to accept that any such request was capable of amounting to a claim for right of abode.

36. Even if I am wrong in that regard, the difficulty still arises of attempting to discover any record of a claim resting with the Director.  In my view, none of the documents completed by the applicant upon her discharge from prison in 1997 are capable, directly or indirectly, read singularly or together, of constituting such a record.

37. As I have said, however, it was the applicant’s case that she had claimed right of abode on four separate occasions during the concession period.  What then of the remaining three alleged claims?

38. It was the applicant’s case that she made these three claims in July 1998 when she returned to Hong Kong to visit her parents.  On this occasion the applicant arrived in Hong Kong on 2 July and departed on 9 July.

39. On 8 July, said the applicant, she and her father went to the Chinese Visitors Office in order to claim right of abode.  The applicant testified that she took a piece of paper with her on which she had written to the following effect :

“I, Li Luk Yip, want to apply for right of abode in Hong Kong, claiming to have right of abode, born on 1 December 1955.”

40. The applicant produced what she said was this piece of paper.  It bore her signature and the date : ‘1998.7.8’.  In addition, on a Immigration Department label, was written the address of the Chinese Visitors Office.  Attached to the paper are photostat copies of her parents’ identity cards.  According to the applicant, she had only recently located these papers again.

41. The applicant’s father testified that he went with his daughter to the Chinese Visitors Office and said he was able to remember his daughter taking a piece of paper with her.  He identified the paper produced by his daughter as the one in question.

42. As to the events that day, the applicant said that she showed the paper to an officer at the counter who told her that she could make no claim.  The applicant accepted that the officer took no papers from her and, to the best of her memory, made no record in any book or ledger.  Being unable to take the matter further, the applicant said that she and her father then left.

43. During this visit to Hong Kong in July 1998, the applicant said that she also went to the Immigration Tower, to the offices of the General Investigation Section on the 13^th floor, in order to claim right of abode.  However, on this occasion too she was informed that she could not make any claim and left without being able to leave any papers or, to the best of her knowledge, without the officer at the counter making any sort of record.

44. On 9 July 1998, the applicant returned to the Mainland.  She said that she went with her father to Lo Wu.  However, she did not wish to return to the Mainland, she was desperate to remain with her parents in Hong Kong.  Accordingly, she said, she informed an officer at the immigration counter that she wished to remain in Hong Kong.  She was then referred to another officer.  In her view, he (or she) was probably a more senior officer.  She was taken to a room, she said, where she was interviewed for some 30 to 40 minutes.  During this interview process, she said, she was asked to fill out a lengthy interview form written on A4 paper and signed the document.  She was told, however, that as her two-way permit was expiring that day she would have to return to the Mainland immediately and she was escorted back to the counter where her passport was stamped for purposes of her return.  

45. According to the applicant, therefore, her three claims were made at three different locations : the Chinese Visitors Office, the 13^th floor of the Immigration Tower and Lo Wu.

46. However, when the applicant gave her case summary to Pam Baker & Co. nothing appears to have been said of any of these attempts to claim right of abode.  Nor was anything said in the applicant’s affirmation made in November 2002.  While this is understandable in respect of the first two attempts, where no papers were handed over or forms filled out, it raises concerns in respect of the asserted attempt made at Lo Wu.  After all, on this last occasion, according to the applicant, she was interviewed for half an hour or more and completed a lengthy interview form, putting her signature to it.

47. The only mention made in any pre-hearing document of any of these attempts to claim right of abode appears in a document submitted to the immigration authorities to enable them to consider any alleged claims.  That document is dated 30 May 2000 and gives direct details of only one occasion on which a claim was made.  Under the heading ‘How did you declare that you had right of abode in Hong Kong at that time?’, the following is written :

“I went to the Immigration Department at Wanchai on 8 July 1998 to assert right of abode.  I requested to extend my stay to remain in Hong Kong for application.  I was refused.  I went back to the Mainland on 9 July 1998.”

Nothing is said in that document of the Lo Wu interview and the completion of an interview form.  Indeed, the first indication that the applicant claimed to have been interviewed at length at Lo Wu arose in mid-2005 when she wrote to the Immigration Department requesting copies of all relevant papers.  No relevant papers have been located.

48. In March 2002, the applicant’s father wrote to the Director of Immigration on behalf of his daughter, seeking permission for the applicant to remain in Hong Kong ‘under the concession policy’.  The letter consists essentially of a plea based on compassionate grounds and not too much can made of the fact that it does not detail any occasions when the applicant was said to have claimed right of abode.  But, in so far as it is relevant, the following only is said :

“My daughter came to Hong Kong to visit relatives in September 1992.  It was because I, Li Ching Chuen, fell and broke my leg and was inconvenient to move about.  My daughter remained in Hong Kong to take care of my daily living until she was arrested by the Police.  She was put in jail and was repatriated to the Mainland in March 1997.  In July 1998, she came to Hong Kong to visit her relatives and returned to the Mainland in the same month.  She came to Hong Kong again in March 1999 till today to claim right of abode.”

49. In respect of the three claims that the applicant said she made in July 1998, evidence was given by the Director that no documentary evidence could be found of any of the three occasions having taken place.  Importantly, there was no evidence of any interview having taken place at Lo Wu.  It was the Director’s case that all three asserted claims were inventions.

50. I confess to being concerned as to the genuineness of the piece of paper that the applicant testified she signed on 8 July 1998 and took with her to the Chinese Visitors Office.  When the applicant gave evidence, she said she had only recently located the document after mislaying it presumably for over seven years.  The probabilities, I believe, support this being an invention.

51. I do accept, however, that the applicant may have gone either to the Chinese Visitors Office or to the Immigration Tower at some time during her visit in July 1998 to enquire as to an extension of stay and also perhaps to enquire if it was possible to claim right of abode.  That possibility cannot be rejected.  It has not been shown to me, however, that any claim as such; that is, a claim for right of abode, was made on those occasions.  But even if I am wrong in that regard, the applicant herself has accepted that there would be no record of any claim.

52. As for the applicant’s testimony that she claimed right of abode at Lo Wu in the course of a lengthy interview there, I am satisfied this was a recent invention.  During the course of her testimony, the applicant emphasised how important this interview was to her case.  Yet none of the early papers prepared on her behalf or completed by her makes mention of it.

53. While, of course, entry and exit forms are destroyed after a relatively short period of time, it seems unlikely to me that, if the interview process had been as the applicant described it, that there would be no record of it at all in the archives of the Immigration Department. 

54. My determinations are therefore as follows :

(i)	The applicant did not make any claim for right of abode, either in 1997 or 1998;
(ii)	the Director has no record of any claim.

Madam Ngan Pui Yuk (2785 : a ‘group one’ applicant)

55. At or about the time this applicant’s legal aid was discharged, she returned to the Mainland.  Since returning, she has married and now has a child.

56. Early attempts to contact the applicant were unsuccessful.  Eventually, however, contact was made with her and, in a letter dated 21 April 2006 written from Fujian Province, she confirmed that, although she herself would not be able to attend court to give evidence, she still wished her application to be considered.  In this regard, her letter said the following :

“I originally planned to attend the hearing in Hong Kong but it is a pity that I cannot go due to practical family obligations and economic constraints.  I have no choice but to stay in the Mainland to wait for the outcome of the hearing.  I am sorry that I haven’t informed you any earlier by mail that I am agreeable to have an ex parte hearing, and I am sorry for having caused you all the inconvenience at your work.”

57. The applicant was born in Fujian Province in 1974.  She was one of four children.  Her father came to live in Hong Kong in 1986, her mother joining him in 1994.  Two of the applicant’s siblings later joined their parents. 

58. In her affirmation of 29 November 2002, the applicant said that she came to Hong Kong in 1995 in order to visit her family.  Her two-way permit authorised her to remain until 8 December of that same year.

59. It was the applicant’s case that, while she was here, she learnt of rumours that, when the change of sovereignty took place, the children of Hong Kong permanent residents – people in exactly her position – would be entitled to claim the right themselves to live permanently in Hong Kong.  In anticipation of being able to secure that right, the applicant said that she did not return to the Mainland but remained in Hong Kong waiting for the change of sovereignty.

60. When the change of sovereignty took place, of course, the Hong Kong Government did not recognise any such entitlement.  No amnesty was granted to persons in the position of the applicant.  Tired of having to live in hiding, the applicant said that she felt she had no option but to surrender herself in order to return to the Mainland.  In this regard, in her affirmation of 29 November 2002 (para.11), she said the following :

“On 15 September 1997, I went to the Immigration Department with a friend for the purpose of surrendering and finally seeking direct answers about how to assert my right of abode.  My parents did not accompany me because they were both working. I decided to surrender because I had been living a clandestine life for more than 2 years.  I lived in Tseung Kwan O Temporary Housing Area with my parents during my stay in 1995 to 1997. Immigration Task Force officers frequently patrolled the area, sometimes with dogs, and often arrested illegal immigrants close by to where I was living with my mother and father. I did not want to stay in Hong Kong any more living under cover. My father’s enquiries with Immigration had established one thing – that there would not be any amnesty for people like me.  I felt I had no option but to return to mainland, notwithstanding that I had spent two years in Hong Kong waiting for the Handover, and the change of the law towards children of local parents.”

61. When she surrendered herself on 15 September 1997, the applicant went to the offices of the General Investigation Section (‘GIS’) on the 13^th floor of the Immigration Tower.  She was not in the company of either of her parents.

62. What must be noted, of course, is that the applicant went to the office of GIS for the specific purpose of surrendering herself and being returned to the Mainland.  She did so in the knowledge, as she believed it to be, that people in her position were not able successfully to claim right of abode and that no purpose was served in continuing to live in hiding in Hong Kong.

63. Upon her arrival, in all probability while she waited in the reception area, the applicant completed an ID 457 form.  On that form, in respect of her mother and father, she recorded thef birth, the fact that they were married and in addition gave their Hong Kong address.  However, she wrote nothing in the column reserved for the details of their Hong Kong identity cards.  Similarly, the applicant gave the names of her brother and sister, confirming that they lived with her parents, but gave no details whatsoever of their Hong Kong identity cards.  Accordingly, nothing appears on the face of the ID 457, directly or indirectly, to record the fact that either of the applicant’s parents were, at the time the form was completed, persons who enjoyed right of abode in Hong Kong. 

64. That no proof of her parent’s rights of residence was recorded was to be expected if the applicant’s intention (and expectation) was only to be repatriated.

65. In her affirmation of 29 November 2002, the applicant said that, when she was called in for her interview, the interviewing officer asked her why she had overstayed for so long.  She explained, she said, that her father was a permanent resident and that she had decided to remain with her family in Hong Kong in the hope that, upon the change of sovereignty, she would finally be able to live permanently with her parents in Hong Kong. 

66. I have little difficulty in concluding on the probabilities that such a statement was made by the applicant.  She had overstayed for a considerable period of time and I am satisfied that no doubt her principal reason for doing so was the expectation of obtaining right of abode upon the change of sovereignty. 

67. However, I do not see that any such statement can be said to constitute a claim for right of abode; that is, some sort of assertion, direct or indirect, that she was entitled to the right to live permanently in Hong Kong by reason of her parentage.  The statement spoken of by the applicant in her papers is simply an explanation of an historical set of circumstances, a set of circumstances which at the time, so her own evidence indicates, she no longer believed to be applicable.

68. The applicant said that, when she was given the ‘grounds for non-removal’ form, she understood from what was printed on the form that she was required to state why it was that she objected to being removed from Hong Kong.  The printed English endorsement on the form (in bold print) reads : “Please state your grounds for non-removal.’  The applicant said that accordingly she started to explain in writing why she had remained so long in Hong Kong, that her father was not well and needed to be cared for and that her whole family was in Hong Kong.  However, according to the applicant, the interviewing officer warned her that, having overstayed so long, when she was taken to court (to be prosecuted for overstaying), if she wrote too much on the form she may find herself in trouble with the court.  According to the applicant, the interviewing officer then took away the form on which she had been writing and replaced it with a fresh form.  He then dictated to her what she should write on this fresh form. 

69. It was the applicant’s case that this fresh form was the one found in her GIS file and exhibited in evidence.  This form contained, she said, the dictated characters which, in translation, read :

“I overstayed because I was with family members.  I now want to return to China.”

70. On the papers, and of course I am obliged to go only by what appears on the papers, not having had the advantage of hearing the applicant give testimony, her case appears to have been fairly consistently pleaded. 

71. When the applicant’s first solicitors, Pam Baker & Co., recorded the summary of her case, the following was said in respect of the initial conversation with the interviewing officer :

“The officer asked why she had overstayed so long.  Ms Ngan [the applicant] explained that her father is a permanent resident, that she wanted to stay with her whole family who are in Hong Kong but the Immigration Department does not permit it.  So I am surrendering to go back to the Mainland.”

72. As to the manner in which the ‘grounds for non-removal’ form came to be completed, the following is said in the Pam Baker & Co. summary :

“Ms Ngan [the applicant] began writing her own humanitarian-oriented justifications for having overstayed so long.  She began to write that her father had twisted his back and needed to be cared for, and that her whole family was in Hong Kong.  The officer said, however, there is no need to say so much, it will only cause you trouble.  The officer disposed of that sheet and dictated what she should write instead.”

73. In her much later affirmation of 29 November 2002, the applicant supplemented her earlier case summary by saying the following :

“… I thought for a moment, and then proceeded, as the Summary [prepared by Pam Baker & Co.] states, to put down reasons for having remained for so long, i.e. the need for my father to be supported, the fact that my entire family lives in Hong Kong.  The officer took this away and suggested that I could get into trouble for writing so much down.  He said I had overstayed for two years.  If I put too many reasons down, the court might not like them.”

74. The Immigration Assistant who interviewed the applicant, Mr Tam Kwok Ho, testified that, although he had no independent memory of the interview, he would never have prevented an applicant from writing what he or she wished on a ‘grounds for non-removal’ form and would certainly not have destroyed any such form, forcing an interviewee to complete a new form in accordance with his dictation.  Interviewees, he said, were free to write what they liked.

75. When questioned by myself, Mr Tam accepted that there might be occasions, albeit rarely, when he would do away with a partially completed ‘grounds for non-removal’ form and replace it with a fresh one.  This may have happened, he said, if, for example, the form contained a great many mistakes, too many to be corrected in any decipherable way. 

76. In answer to questions by myself, Mr Tam said that he would never have destroyed a ‘grounds for non-removal’ form simply because he was not happy with what was written on the form.  He said that, if, for example, he considered what was written on the form to be utterly irrelevant, or to go to matters beyond his competence, he would simply have referred the matter to his senior officer. 

77. In this aspect of his evidence, I have no reason to disbelieve Mr Tam.  Why would he wish to prevent the applicant from writing too much, warning her that it may cause her trouble in court?  It is not as if the applicant, in her papers has asserted that she wrote anything that, on an objective assessment, could be said to have raised alarm bells, perhaps putting the ordinary administrative process of her case in danger of being derailed.  In both her case summary and her affirmation, the applicant spoke only of writing of compassionate matters : that her father was not well and needed care, and her whole family was in Hong Kong.  These were everyday statements.  On the evidence, it is apparent that they were written in similar form by many hundreds of persons who surrendered themselves to the GIS.

78. In my opinion, such statements would not on any reasonable assessment have put the applicant at increased risk when she appeared in the magistrates’ court.  Indeed, the opposite is the case.  They constitute litigation.  In addition, Mr Tam, the interviewing officer, would have known that the contents of the ‘grounds for non-removal’ form would be highly unlikely to ever see the light of day – as direct evidence – in any court proceedings.  The ‘grounds of non-removal’ form was a purely internal document.

79. According to the applicant, Mr Tam clearly did not like her writing so much.  But if that was the case, the most obvious course for Mr Tam to take would surely have been to tell the applicant that she need not write any more rather than taking and discarding the form – with its attendant risk that the applicant may raise a complaint – and starting all over again with a new form.

80. In summary, having heard Mr Tam give evidence, and looking to all the evidence available to me, I cannot accept on the probabilities that, in the light of what the applicant said she was writing on the form, Mr Tam would have removed that form from her and presented her with a fresh form, then dictating to her exactly what she should write.  

81. In coming to this conclusion, I have not ignored the fact that the words that appear on the ‘grounds for non-removal’ form exhibited in evidence do follow a familiar format; indeed, they are almost, character for character, the same as many endorsements made by many other applicants interviewed at GIS.  I am sure that, in filling out the form, the applicant received some assistance from Mr Tam.  It was accepted by Mr Tam that, if it was required, he would give some assistance.  But that finding does not mean that the applicant was not permitted to write as she wished if she wished.

82. In any event, even if I am wrong in this regard, assuming that the applicant did write on an earlier ‘grounds for non-removal’ form, I fail to see how it can be said that what she wrote was capable of constituting a claim and/or a record in accordance with the concession policy.  The applicant, on her own evidence, wrote nothing to indicate that either of her parents have right of abode.  Her assertion that she wrote on the form that one of the reasons for overstaying was to be with her whole family is not an assertion, even indirectly, that one or more of her parents enjoyed right of permanent residence.

83. My determinations are therefore as follows :

(i)	The applicant did not make any claim for right of abode;
(ii)	the Director has no record of any claim.

Part Two

Madam Law Yuet King (2448, a ‘group six’ applicant)

84. This applicant’s claim is based on the assertion that in December 1998, while she was in Hong Kong, her father wrote a letter on her behalf to the Director of Immigration in which he claimed that she was entitled to right of abode.

85. The Director has been unable to locate any such letter.  It is the Director’s case that the letter was not written and posted in December 1998 as alleged but was written at a much later time; in short, that it was an artifice created in an attempt to make a case where no case had previously existed.

86. The applicant was born in Guangdong Province in December 1977, the eldest of four children.  The applicant’s father came to live and work in Hong Kong in 1979, her mother being granted permission to join him here in 1991.  All of the children of the family – with the exception of the applicant – now have right of abode in Hong Kong.

87. Although the applicant regularly visited Hong Kong, she was raised and educated in the Mainland and, having graduated in accountancy, was married in 2002.  She and her husband run a hardware store in the Mainland.  They have two children.

88. Prior to the change of sovereignty, the applicant, still a student, sought a one-way permit so that she could join her family in Hong Kong.  She was informed that she did not qualify under the scheme.

89. With the change of sovereignty approaching, the applicant said that her father spoke to her about the provisions of the Basic Law which he believed would enable the applicant to claim right of abode.  In addition, he sent her newspaper clippings on the subject. 

90. In light of what she had learnt from her father, the applicant testified that she made enquiries concerning the issue to her of a two-way permit so that she could be in Hong Kong when the change of sovereignty took place.  She was informed by the Mainland authorities, however, that no more permits were being issued for that period of time. 

91. In the result, said the applicant, wishing in any event to finish her studies, it was only in late 1998 that she applied for and was granted a two-way permit.  She arrived in Hong Kong on 11 December 1998, being permitted to remain until 8 January 1999.

92. Although the applicant testified to having little recollection (after all of these years) of specific events, she was able to recall that, when she came to Hong Kong in December 1998, it was her desire at that time to join her family here on a permanent basis.  I found the applicant to be a credible witness, speaking without embellishment to what she remembered and no more.  Having regard to the migratory history of her family, I have no reason to doubt that in late 1998 the applicant did hope to settle here, that hope being shared by her parents.

93. After she had arrived in Hong Kong, the applicant testified that she and her father made several visits to the Immigration Department – it appears to the Immigration Tower itself – to try and discover how to obtain the right to live permanently in Hong Kong.  These visits, however, ended in frustration.

94. The applicant had very little memory of what was said during these visits.  Her father, however, had a better memory of them.  He recalled being told that, if his daughter wished to live permanently in Hong Kong, she had to return to the Mainland to make an application there. 

95. During cross-examination, when asked by counsel why he had not, in the circumstances, encouraged his daughter to return to the Mainland and make a further application for a one-way permit, the father replied that making such applications on the Mainland required personal connections and money.  The implication was that he and his daughter had neither.

96. The father struck me as an inherently decent man and a credible witness.  He felt strongly that he had somehow let his daughter down in not securing right of abode for her.  This led him on occasions to become quite emotional and defensive.  It led him also to being drawn into making statements of certainty when initially in his testimony he had admitted that his memory was not good.  The father was far from being a disinterested witness.  But, as I have said, I found him to be fundamentally credible and was drawn, on the probabilities, to accept much of what he said.

97. The father was the proprietor of a business selling traditional herbal remedies.  He opened his shop in 1985 in Hung Hom and, although he has moved premises from time to time, has always remained in the same street.  The father testified that he spent a great deal of time at the shop, so much so that there was a small cockloft area above the shop which he used as living quarters.  For a single trader, attempting to make a living in Hong Kong in a competitive business, that did not strike me as unusual.

98. As a businessman, the father said that it was necessary for him to correspond on a regular basis with various government departments.  He said he had a drawer in his shop in which he kept all such correspondence; that is, copies of letters sent by him together with the replies.

99. The father testified that on 19 December 1998, frustrated at the lack of headway made visiting the Immigration Department, he sat down in his shop and wrote a letter to the Director of Immigration.  The letter was written in Chinese characters in his own hand.  When it was completed, the father said that he went to a nearby stationery shop and made a photostat copy of the letter.  He then posted it that same day.

100. The photostat copy of the letter was produced into evidence.  In translation, it read :

“	Dear Sir,
	I, Law Nam Chuen, holder of ID Card No. … came to Hong Kong in early’79 while my wife Tang Siu Ling, holder of ID Card No. … came to Hong Kong in early’91.  We have now left our daughter Law Yue King (born on 27 December 77) in the countryside without anybody to take care of her for many years, which makes our entire family in Hong Kong very much worried.  However, according to the Basic Law, children born by Hong Kong people in the Mainland have automatically become entitled to right of abode in Hong Kong since the reunification.  Now, my daughter has come to Hong Kong by a two-way permit to visit her relatives.  May I ask in what manner and by what formalities a certification on residence in Hong Kong can be obtained?  Would you, Immigration Director, make allowance for the actual situation we are in and spare some time to give us instruction in spite of being fully engaged.  I hereby express many thanks for that!!!
		Yours faithfully,
		Applicants
		Law Nam Chuen
		Tang Siu Ling
		Date: 19 December 1998
	Address: G/F., 84 Baker Street, Hung Hom, Kowloon  Tel 26329093”

101. The father could not remember if he had discussed writing the letter with his daughter.  The applicant herself had no memory of the circumstances surrounding its writing and dispatch.  It was clear that anything she knew of the letter had come from her father.  Her case, therefore, rested almost entirely on his testimony and any evidence he was able to produce in support of that testimony.

102. The contents of the letter quite clearly, in my view, do constitute a claim for right of abode.  The issue, as I have said earlier, is whether the photostat copy produced into evidence is a copy of a letter written and posted in December 1998 or whether it is a copy of a much later creation, a false document.

103. In his affirmation of 20 September 2004, the father said the following as to how he came to write the letter :

“My daughter has referred to the many enquiries we had made with Immigration.  Her limit of stay was approaching, and we did not seem to be getting anywhere, so I decided that I would write to Immigration …

As was my usual practice, I kept a copy of the letter.  I always keep copies of letters and other documents submitted to the Government, for example relating to my business.  A few doors down from my Chinese medicine shop in Baker Street, Hung Hom (which I still own) there was a stationers and a copy machine inside, and I copied the letter there.

I affixed a stamp on the envelope, which had the address of the Director of Immigration thus: Director of Immigration, Wanchai Tower, Gloucester Road, Wanchai.  I also wrote on the envelope my return address.  I posted the letter in a mailbox near my home within a short walk from our building.  There was no response to the letter.”  [my emphasis]

104. During the course of cross-examination, the father was asked to recall more exact details of how he came to write the letter.  He said that the letter would have been written at about two o’clock in the afternoon when business was fairly quiet.  As I understood his testimony, this was based more on what he recalled he would have done rather than what he clearly remembered doing.  The father continued by saying that, bearing in mind that the writing would no doubt have been interrupted from time to time by customers, he estimated that it would have taken him a minimum of an hour and a half to write the letter.  On that basis, the letter would not have been finished until about 3.30 in the afternoon.  The father said that he then went to the nearby stationery shop to get a photostat copy of the letter before returning to his shop to address an envelope and stamp it.  That, he said, would have taken an extra 15 minutes.  Having addressed and stamped the envelope, the father said that he went to the nearby post box; that is, in Hung Hom.  On the basis of his various estimates, the father said that he would, therefore, have posted the letter a little while before 4 o’clock in the afternoon.  I record his actual words (in translation) being : “I did so, I suppose, at almost 4 o’clock but not yet.”

105. According to the father, the letter was addressed to the Director of Immigration, Wanchai Immigration Tower, Gloucester Road, Wanchai, Hong Kong.  The address was therefore, on the basis of his evidence, both specific and accurate.

106. Having been drawn to this series of time estimates, the father was then shown a computer record which revealed that on the same afternoon; that is, on the afternoon of 19 December 1998, he had passed through immigration control at Lo Wu on his way to the Mainland, the time of clearance being 4.46 that afternoon.

107. If the father’s time chronology as to the writing and posting of the letter was correct, it would mean that he must have been able to make the journey from Hung Hom to Lo Wu in less than an hour.  This was not impossible but nevertheless would have been cutting it very fine.  On behalf of the Director, it was submitted that this was one of the telling factors which went to demonstrate the falsity of the father’s testimony.

108. However, counsel for the father pointed out that the KCR’s own website averaged the journey from Hung Hom to Lo Wu at ‘just 40 minutes’.  More importantly, to cite counsels’ submissions, “the father would have had ample time to travel to Lo Wu even if he started writing the letter at around 2 p.m. and completed it at 3:30 p.m.”  Counsel continued : “The Court should of course bear in mind that these were just very rough estimates of the father.  He could have started at, say, 1:45 p.m. and finished by 3:15 p.m.  His estimate of 1.5 hours for writing a 12-liner is … on the generous side.”

109. In my judgment, there is substance in the submissions of counsel for the applicant.  Even if the father, in his anxiety to assist his daughter, was drawn to a series of firm time estimates, after more than seven years and without any written record to assist him, I think it would be unfair to hold him exactly to those estimates without allowing him some leeway based on the fact that clearly, in giving those estimates, he was working more on what he believed would have been the position rather than what he remembered clearly had been the position.

110. During cross-examination, the father was referred to the fact that in his evidence-in-chief he had said he had posted the letter near his shop in Hong Kong while in his affirmation of 20 September 2004 he had said he had posted it ‘near my home within a short walk from our building’.  In this regard, the father was pointed to the fact that his wife had declared that she lived in a public housing unit in Tsz Ching Estate in the Wong Tai Sin area.

111. It was put to the father that there was a material discrepancy therefore between his testimony that he posted the letter near his shop in Hung Hom and his affirmation in which he said he posted it near his home, that home being in Wong Tai Sin.

112. The father accepted that he and his wife lived in a public housing unit at Tsz Ching Estate in the Wong Tai Sin area.  He explained the suggested inconsistency, however, by saying that he spent so much time at his shop, sometimes staying overnight in the shop’s cramped living quarters, that he often – inadvertently – referred to his shop as ‘home’.  The father was not prepared to accept that he may have posted the letter in the Tsz Ching Estate (which may have involved a longer journey to get to Lo Wu).  The wording in the affirmation, he said, had simply been a misuse of language, no more than that.

113. This apparent inconsistency in the father’s evidence caused me concern.  In one paragraph of his affirmation, when he spoke of obtaining a copy of the letter, he described his shop in clear terms as a ‘Chinese medicine shop in Baker Street’.  Yet, in the next paragraph, when describing the posting of the letter, he said that he posted it ‘near my home within a short walk from our building’.  All too often, when evidence has been invented, the proof of the invention lies in inconsistencies of this kind. 

114. However, that being said, I found myself unable to reject the father’s testimony that what had been said in his affirmation was simply a misuse of language, a misunderstanding perhaps between the drafter of the affirmation and the father, one which was not picked up at the time of signing.  In his testimony, the father spoke of using his shop as his home.  In addition, as the applicant’s counsel pointed out, he gave his Hung Hom address in his affirmation and also gave it in the disputed letter of 19 December 1998 as well as a later undisputed letter sent to the Director.

115. In the result, although, as I have said, the issue caused me some concern, it did not, either on its own or considered with other issues, draw me to conclude that the father’s evidence must be rejected.

116. One of the other matters put to the father during the course of cross-examination was that, not having received a reply to his letter of 19 December 1998, he had never bothered to query why there had been no acknowledgement.  That, it was said, was not consistent with the actions of a concerned father.

117. This submission, it seemed to me, put the father in a state of some panic.  After some equivocation, he said that he believed that he had, in fact, sent a follow up letter to the Director and may still have a record of this.  The lunch adjournment was therefore extended to give him time to look for records.

118. When the father returned, he produced the photostat copy of what he said was a statement written in his own hand and signed by him.  The statement bore the date : 23 July 1999.  This statement, said the father, had been sent to his daughter’s then solicitors, Pam Baker & Co.  The statement spoke of a number of matters related to the attempt to secure right of abode for the daughter.  It opened, however, by saying the following : “On 19 December 1998, a letter was sent to the Immigration Department to ask about the matter of Law Yuet King’s staying to live in Hong Kong.  However, up to now there has been no reply.  I attach of a copy of that letter.”

119. There was nothing to suggest that this was not a genuine statement sent to Pam Baker & Co. in July 1999.  To that extent, in my view, it gave general support to the father’s evidence, showing at least that the existence of the letter was raised as early as mid-1999.

120. The father, however, testified that to his memory, he had sent a copy of the statement to the Director.  That, in my view, was an invention.  Leaving aside the unusual step of copying confidential instructions to a firm of solicitors to the Government Department against whom the solicitors were to act, the father did not produce any covering letter or anything of that kind which in the circumstances may reasonably have been expected to enable the Department of Immigration to understand the purpose of having such a statement copied to it. 

121. But even if I was wrong in rejecting the father’s evidence, the statement, if it was copied to the Director, was only sent some seven months after the letter of 19 December 1998 had been sent.  As such, at a time when the father and his daughter were receiving legal advice as to the daughter’s claim, it could hardly be called a follow up letter.

122. As I have indicated, the question of whether a letter was or was not posted on 19 December 1998 was not an easy matter to determine.  In my judgment, the father was on occasions guilty of exaggeration and, in respect of the one matter I have mentioned, of lying to the court.  On balance, however, as I have said earlier, I found the father to be an essentially credible witness.  I was of the view that, where he departed from a plain recitation of what he remembered, he did so in an attempt to ‘gild the lilly’ rather than shore up fundamentally false evidence.  Accordingly, I believe that the letter may well have been written on 19 December 1998 and posted to the Director on that day.  On the probabilities, therefore, that is my finding.

123. In its judgment of 5 January 2006, the CFA held that, when it is found that a claim to right of abode has been made by the posting of a letter but the Director has no record of receiving the letter, then the rebuttable presumption applies that a letter posted will be received in the ordinary course of post by the person to whom it is addressed.  As to the operation of that presumption within the concession policy, the CFA said (paras.19 and 20) :

“The question then is whether the presumed fact of receipt of the letter claiming right of abode is sufficient to satisfy the record requirement of the concession policy. It is not disputed that if the original letter making the claim was in the files of the Department, it would constitute a sufficient record. Nor is it disputed that, if there was a notation in the files that such a letter had been received, though the letter was subsequently lost or mislaid, there would be a sufficient record. The Director argues, however, that, if a letter claiming right of abode has been lost or mislaid and no notation of its receipt has been made in the Department’s records, there is no compliance with the record requirement of the concession policy.

We do not accept this argument.  The context is the determination of the existence or otherwise of a constitutional right, namely the right of abode, and it cannot be supposed that the existence of what was, at one time, a sufficient record to authenticate the right could be lost or destroyed simply because the relevant document went astray after its receipt by the Department.”

124. In the present case, nothing was put before me which, in my view, rebutted the presumption that, the letter having been adequately addressed and posted by the father, it was received by the Director and was somehow thereafter mislaid.

125. By way of a footnote, it should be mentioned that during the hearing the question was canvassed of what should be the correct transliteration of the applicant’s surname.  It could be ‘Lo’, ‘Luo’ or ‘Law’.  Indeed, as counsel for the applicant noted, in one of the Director’s movement records the applicant’s name was transliterated as ‘Luo’ and not ‘Law’.  Elsewhere, the records show that ‘Lo’ was used.  In the absence of evidence as to the exact methodology of the record searches conducted by the Immigration Department, said counsel, was it not possible that a search was conducted under the wrong transliteration?  As counsel put it, “one would never find an apple in a box of oranges and, likewise, one would never find a letter from ‘Law’ if it was registered as a letter from ‘Luo’ or ‘Lo’.

126. My determinations are therefore as follows :

(i)	The applicant, while she was in Hong Kong, and through her father, did make a claim for right of abode;
(ii)	the Director does have a record of that claim.

Madam O Ngan Mui (2789, a ‘group six’ applicant)

127. The applicant was born in Fujian Province in 1966.  She is one of seven children.

128. The applicant’s father came to Hong Kong in 1973.  Two years later, in 1975, the applicant’s mother joined him.  Two of the applicant’s sisters and a brother were permitted to accompany the mother in order to settle here.  The applicant, however, was denied permission.

129. In September 1998, the applicant came to Hong Kong, her two-way permit authorising her to remain until 12 October of that year.  Although she was married with two children, the applicant said that the essential purpose of her visit was to look after her mother who suffered from heart disease.  Her father too was frail.  She said that her parents hoped she could remain permanently in Hong Kong to care for them and, if it was possible, she hoped to be able to remain too.

130. In the result, the applicant did not return to the Mainland.  She stayed with her parents.  But caution had to be exercised, she said.  She was told by her family that she should not go out for fear of arrest.

131. It was the applicant’s evidence that on 26 October 1998, about two weeks after her two-way permit had expired, she wrote a letter to the Director of Immigration.  The envelope, she said, was addressed to the Director ‘at Immigration Tower’.  Also written on the envelope, she said, as a return address, was the address of her parents’ apartment.

132. The applicant said that she did not keep a copy of the letter.  She remembered, however, that the letter was to the following effect :

“My mother suffers from heart disease.  I want to stay in Hong Kong to take care of my mother.  I want to settle here and obtain an ID card.”

133. In the case summary prepared for the applicant by Pam Baker & Co. it is recorded that the applicant also wrote in the letter that she wished to be placed ‘on recognisance’.  In her affirmation of 14 August 2004, however, the applicant corrected that.

134. As to how, if she did not keep a copy of the letter, the applicant was able to remember its date, in her affirmation of 18 January 2006 she said the following :

“I can simply say that the date did stick in my mind as the date on which I wrote and sent the letter.  I have remembered (without prompting from my solicitors) that the day of the week was a Monday.”

135. The applicant said that she did not confide in her parents that she was writing the letter.  However, she wrote it in their apartment.  She posted it, she said, when her mother was asleep and when she was able to slip out of the apartment for a short time.  The post box was in the near vicinity.

136. On behalf of the applicant, it was said that, in the circumstances, it was understandable that she had not confided in her parents.  After all, she had come to Hong Kong to take care of them not to cause them worry.  The applicant herself expressed her concern as follows :

“I did not tell my mother about writing to Immigration as I thought that it was quite possible that Immigration might come to arrest me as I had overstayed.  I did not want her to worry.”

137. As to why at that time she should decide to write to the Director seeking permission to settle in Hong Kong, the applicant said that a friend, Madam Lee Chun Chun, had told her that a few months earlier – in or about the summer of 1998 – her brother had been placed on recognisance and able to move freely around Hong Kong.  As I understood the applicant’s testimony, while she did not pretend to understand the true nature of a recognisance it was in her mind evidence that successful applications to the Director were still possible.

138. Suffice to say that, despite a number of other letters from the applicant and/or her family being found in the records of the Immigration Department, the letter of 26 October 1998 has not been located.

139. In the course of submissions, counsel for the Director said that particular caution should be exercised when dealing with a ‘phantom’ letter of the kind testified to by the applicant; that is, a letter of which no copy has been kept and in respect of which there is really no independent evidence of its existence.  As counsel put it, the scope for embellishment is all the greater where there is not even a copy of an alleged letter.

140. Those, of course, are common sense submissions and I have approached the applicant’s evidence with caution.  But that being said, one of the matters that impressed me about the applicant’s testimony was its marked absence of embellishment.  The applicant’s account of how she came to write the letter and dispatch it was unusual but not inherently improbable.  The applicant, not well educated nor sophisticated, gave her evidence in a plain, unvarnished fashion.  She was not shaken in cross-examination.  In the course of submissions I was urged by her counsel to take account of the manner in which she gave her evidence and, in my opinion, for good reason.  She was a credible witness.

141. Demeanour, of course, must itself be approached with care.  But in my judgment the applicant’s evidence was not undermined by the objective evidence.

142. For example, the applicant was cross-examined as to why, if she had not received a reply to her letter of 26 October 1998, she had not written a follow-up letter.  Attempting as best she could to remember her thought processes back in late 1998, the applicant said that the idea of a follow-up letter was not something she thought of.  That in itself, depending of course on the factual circumstances, is not inherently unlikely.  A failure to reply may be taken as a refusal, a sign perhaps that the application was not worthy of a response.

143. In addition, however, her counsel pointed to the evidence that in November 1998, some two to three weeks after the letter of 26 October 1998 had been posted, the applicant’s parents had gone to the Immigration Department to ask whether their daughter could settle in Hong Kong and be given an identity card.  They were told it was not possible and that any application must be made in the Mainland.  As counsel put it, in light of this, there was no reason to write a follow-up letter.

144. The concern that the applicant had simply invented her letter was, of course, central to the hearing.  But if it was an invention, it was not a late invention.  To the contrary, in a letter to Pam Baker & Co. dated 23 July 1999 – some nine months after the event – the following is written :

“On 26 October 1998, I wrote to the Immigration Department to claim that I had right of abode, but have not received any reply from the Immigration Department.”

145. At the end of 1999, a letter was sent to the Immigration Department and received by it.  As with many of the applicant’s letters, this one was written on her behalf by her sister.  It read, in part, as follows :

“On 16 September 1998, I came to Hong Kong for social visit again and have stayed until now because my mother suffers from heart attacks often and needs someone by her side to take care of her.

…

On 26 October 1998 I wrote a letter to the Immigration Department to make the claim that I had the right of abode but no reply has been received.”

146. There were, of course, a number of inconsistencies in the applicant’s evidence.  No purpose is served in a laborious examination of all those that were hi-lighted by counsel for the Director.  Inconsistencies are to be expected.  Considered in the full context of an applicant’s evidence, they may undermine or even strengthen that evidence.

147. In the present case, I have been unable to dismiss what, in my opinion, is the very real likelihood that the applicant did write the letter of 26 October 1998, that she did post it and that it was received.

148. But that still leaves a fundamental question; that is, whether the letter itself constituted a claim in terms of the concession policy.  To repeat, according to the applicant, the letter said no more than the following :

“My mother suffers from heart disease.  I want to take care of my mother.  I want to settle here and obtain an ID card.”

149. In my judgment, regrettably, those words do not, and cannot, amount to a claim for right of abode.  On any ordinary reading, the letter is no more than a plea to be allowed to settle in Hong Kong on humanitarian grounds; namely, to care for a sick parent.  Yes, there is a request made for the issue of an identity card but that, of itself, cannot be read as a claim founded on any asserted right by the applicant.  The issue of an identity card, in the context of the letter, is, in my view, no more than a requested consequence of permitting the applicant to remain in Hong Kong to care for her mother.

150. I am aware, of course, that the words must be considered in the context not necessarily of what is actually said but what is clearly intended to be said.  But regrettably, no matter how generously I approach what was written, I am unable to come to the conclusion that, on any ordinary reading, what is to be drawn from the underlying meaning of the words is consistent with a claim for right of abode in terms of the concession policy.

151. While I am satisfied therefore that the letter was written, posted and, on the probabilities, no doubt received by the Director, I am unable to find that it constituted a claim for right of abode.  My determinations are therefore as follows :

(i)	The applicant did not make a claim for right of abode;
(ii)	the Director does not have a record of a claim.

Part Three

Ms Tsui Siu Fung (3525 : a ‘group four’ applicant)

152. This application was dealt with on the papers only.  No witnesses were called to give testimony.  The application was based on the assertion that the applicant made a claim for right of abode when she appeared before a magistrate on 6 March 1998 in answer to a charge of overstaying; that is, of breaching her conditions of stay.  The record of that claim, it was asserted, was to be found in various documents produced in evidence.

153. As a group four claim, it was necessary for me to determine the following three matters :

(a)	whether the applicant, when she appeared before the magistrate, made a claim for right of abode;
(b)	if so, whether, having regard to the circumstances in which the claim was made, it was made to the Immigration Department; and
(c)	if so, whether the Director has a record of that claim as required by the concession policy.

154. The applicant was born in Guangdong Province in December 1977.  Her father came to settle in Hong Kong five years after her birth, in 1982.  Her mother was able to join him in 1994, coming to Hong Kong on the strength of a one-way permit. 

155. When the applicant’s mother applied for her permit, she applied to include all her children; that is, the applicant and her two brothers.  However, only one child, the youngest, was allowed to accompany the mother.  In the result, the applicant and her elder brother remained in the Mainland.

156. In her affirmation of 30 December 2005, the applicant said that in 1996, the year she completed her studies, she was persuaded by her father to apply for a one-way permit.  However, when she did so, said the applicant, she was informed that she was not eligible to make such an application.  As the applicant understood it, she was found to be ineligible, first, because her mother had not yet lived in Hong Kong for seven years (presumably the time required for her to obtain permanent residence) and, second, because the applicant herself was more than 14 years old.  In the result, said the applicant, she applied for a two-way permit and was able to visit her family at the end of that year.

157. In her affirmation, the applicant said that a few months later; that is, in April 1997, her father came to the Mainland.  During his visit, she said, they discussed the right of abode issue.  Believing that, after the change of sovereignty, she would be able to settle permanently in Hong Kong with her family, the applicant said that she resigned from her job and submitted an application to the Mainland authorities for a two-way permit.

158. Her application was still pending, said the applicant, when the change of sovereignty took place.  In the days following the change, she said, her father told her about the large number of ‘Mainland children’ – people in the same position as herself – who had gone to the Immigration Tower in Wanchai to pursue their claims for right of abode.  In light of this, said the applicant, she went to the Mainland authorities to try a second time to obtain a one-way permit.  She was told, however, that no instructions as to any change of policy concerning the issue of one-way permits had been received and that her application could not be processed.

159. Shortly thereafter, said the applicant, her application for a two-way permit was approved.  This enabled her to come to Hong Kong on 18 August 1997, her permit permitting her to remain until 3 October 1997.

160. After her arrival, said the applicant, she learnt that a large number of ‘Mainland children’ had commenced legal proceedings against the Government to pursue their rights under the Basic Law.  Believing that, if these litigants were successful, she would be able to share in their success, the applicant said that she remained with her family in Hong Kong to await the outcome of the litigation.

161. By March 1998, however, it being apparent that the litigation would take a considerable period of time, the applicant said that she and her parents agreed that it was best if she returned to the Mainland to await the outcome there.  Accordingly, said the applicant, on 1 March 1998 she went to Lo Wu with her father in order to return to the Mainland.

162. However, having breached her conditions of stay by overstaying for a period of some five months, the applicant was not permitted to return to the Mainland.  Her two-way permit was taken from her and she was directed to report to the headquarters of the Immigration Department in Wanchai.  The evidence shows that she did so on 3 March 1998, reporting to the offices of GIS.

163. In processing her case, the decision was made by officers of the Director that she should be prosecuted for breaching her conditions of stay.  Accordingly, on 6 March 1998 the applicant appeared before Mr Peter White, a magistrate, at the Western Magistracy.

164. The applicant pleaded guilty to the charge of breaching her conditions of stay.  At the hearing before me, however, it was submitted that what was said by her during the course of mitigation amounted to a claim for right of abode.

165. In this regard, the transcript of proceedings records the opening exchange between the magistrate and the applicant as follows :

“	Court :	Yes, go ahead, miss.
	Applicant :	My parents are here.  We are separated.  I am ill myself.  I have bronchitis.
	Court :	Yes, …
	Applicant :	Life is difficult for me in China, very lonely back in China.
	Court :	Miss, I am sympathetic.  I understand it is difficult to be separated from your parents and other loved ones.  But I am afraid you, like everyone else, has to wait until your chance to come to Hong Kong arrives.  It is not permissible for you simply to stay on without permission.  You are fined $1,000.

166. In my judgment, there is nothing in this brief exchange that can reasonably be interpreted as a claim for right of abode.  The applicant has said no more than that her parents are in Hong Kong while she must live in the Mainland and the separation was causing her distress.

167. This brief exchange, however, did not end matters.  The applicant spoke further, the transcript recording the following exchange :

“	Applicant :	My father has been in Hong Kong for over 10 years but my application for coming to Hong Kong hasn’t been permitted.
	Court :	Well, is it being considered or is it still waiting for consideration?
	Applicant :	I was not allowed to get an application form.
	Court :	Well, why weren’t you allowed to get an application form?
	Applicant :	I was told that my mother had not stayed for seven years.
	Court :	Well, I’m not quite sure what the criteria are in China because - - in relation to when you’re permitted to come into Hong Kong.  Is it because you’re a young woman that you’re not being given an application?  Is that what you’re suggesting?
	Applicant :	The Chinese authorities said to me that my mother has not lived for seven years so …
	Court :	Lived for seven years in Hong Kong?
	Applicant :	Yes, correct, so I was denied application.”

168. Again, I can find nothing in this exchange which can reasonably be interpreted as a claim for right of abode.  Yes, the applicant has spoken of her father being in Hong Kong for more than ten years, and that statement, I think, may be read as an assertion that he was a Hong Kong permanent resident.  But, neither directly nor indirectly, does the applicant assert that, as a result of her father’s residential status, she should be entitled to live in Hong Kong.

169. The exchange, on an ordinary reading, is not focused on what the applicant perceives should be her entitlement in Hong Kong.  To the contrary, it is focused on the complaint that, despite the length of time her father has lived in Hong Kong, the Mainland authorities have not been prepared to issue her a one-way permit, the apparent reason being that her mother herself has not lived in Hong Kong for a required period of seven years.

170. When the applicant said that she had been denied the right to come and settle in Hong Kong by the Mainland authorities, the magistrate made a number of enquiries as to her personal circumstances, concluding with some brief advice.  This final portion of the exchange is recorded as follows :

“	Court :	Well, whereabouts do you live in China?
	Applicant :	I am already working in Guangzhou.
	Court :	Which company do you work for?
	Applicant :	I already resigned because I have come here for several months.
	Court :	Right, and you’re married or single?
	Applicant :	Single.
	Court :	Right, and how old is your father?
	Applicant :	50.
	Court :	And what does he do for a living?
	Applicant :	A warehouse worker.
	Court :	Well, perhaps - - I’m not quite sure what the conditions are that apply to your application, but perhaps it might be helpful if he goes back with you and helps you make the application.  But you’re not permitted simply to ignore our rules because you’re unhappy with the treatment you’re getting in China.  That’s no way to sort the trouble out.  That will only get you into more trouble.  I think you’ve just got to keep hoping and keep trying.”  [my emphasis]

171. As the magistrate noted, she was unhappy with the treatment she was getting in the Mainland.  There is no focus, direct or reflected, on what the applicant believes should be her position, as the child of a permanent resident, under Hong Kong law.

172. I have so far broken down the exchange between the magistrate and the applicant into three sections, looking at each section individually.  But, in my judgment, even when the exchange is read as a whole, it cannot amount to a claim for right of abode.

173. Counsel for the applicant, Mr Kwok Sui Hay, submitted that what clearly came across in the opening exchange was the stated desire of the applicant to be able to live permanently in Hong Kong with her parents.  Her father, it then emerged, had lived in Hong Kong more than ten years. Thereafter, said Mr Kwok, what was said focused on the applicant’s ‘application’, to settle in Hong Kong.  As Mr Kwok put it, “on the basis that the magistrate understood and responded to the applicant’s wish to settle in Hong Kong, and that the applicant gave details in relation to her own immigration status and her parents’ status (including but not limited to the fact her father had been in Hong Kong for over 10 years), the applicant’s claim for right of abode was complete.”

174. Mr Kwok submitted that, by analogy, I should consider whether the same exchange, if it had taken place between the applicant and an immigration officer at GIS, would have constituted a claim for right of abode.  The answer, suggested Mr Kwok, was obviously yes.

175. But that analogy, in my view, is of little assistance.  In the many applications that I have dealt with to date I have attempted to understand the true meaning of conversations not only by looking to the words themselves but, importantly, to the context in which they were spoken and, equally important, by having regard to what I believe the applicant was attempting to say at the time.

176. In the present case, the applicant was not sitting across a desk from an immigration officer dealing with issues concerning her immigrant status.  In the present case, she was speaking in a criminal court in mitigation of her offence.  Her words cannot be divorced from that context.  What she was attempting to do was to convey to the magistrate the pity of her situation.  The applicant described a situation in which she was separated from her parents because she had been denied permission by the Mainland authorities to come and live with them in Hong Kong.  That, in my view, cannot be equated to any kind of assertion, no matter how oblique, that she believed she had a right under Hong Kong law, as the child of a permanent resident, to settle here. 

177. Being satisfied that no claim for right of abode was made by the applicant, it follows that I am satisfied no claim was made to the Immigration Department and nor is there a record of any such claim.  But what if I am wrong in respect of the purported claim?

178. If I am wrong and it is held that a claim was made, I am satisfied that the claim was made to the Immigration Department and thereby satisfies the second requirement of the concession policy.  I say that because it is apparent that the exchange took place in the presence of a representative of the Director; that is, the prosecuting officer, Immigration Officer Wong Ho Yin.  Mr Ho, as an authorised representative of the Director, was not only present but made brief notes of the exchange.  In this regard, he wrote :

“Parents separated, ill myself (bronchitis), live in China, not happy, very lonely in China, 1K.”

179. The third requirement of the concession policy; namely, demonstration of the fact that the Director has a record of the claim, is, at first approach at least, not so easy to resolve.

180. But it seems to me that, if the applicant’s address in mitigation is held to constitute a claim, it must follow that the prosecuting officer’s short, hand-written notes on that address must constitute a record.  The notes, which I have cited above, may not speak, directly or indirectly, of any claim for right of abode or of any right of residence held by the father.  But, on its face, the notes constitute a record of the address in mitigation and that address is itself the claim.

181. In this regard, the CFA, in its judgment of January 2004, in considering the record requirement, said the following (para.28) :

“The purpose of the requirement that there be a written record of a claim in the possession of the Director was to provide a form of verification to enable the Director to implement the concession policy (see January judgment, para.210).  The existence of this purpose does not mean that the Director should disregard the fact that an applicant has claimed right of abode when considering whether documentary materials constitute evidence of the making of such a claim.  On the contrary, as far as the Director is concerned, he knew that each applicant asserted that a claim for right of abode was made and he is now aware of the Judge’s findings.  If, viewing the relevant documentary material in that light, it may, on its face, fairly be said to constitute evidence corroborating the fact that a claim for right of abode had been made, the concession policy requirement for a record is satisfied.”

182. In the circumstances, if I am wrong and it is held that the applicant did make a claim for right of abode, I am of the view that the remaining two requirements of the concession policy have been met.

183. However, my findings as they stand, are as follows :

(i)	The applicant did not make any claim for right of abode;
(ii)	no claim was made to the Immigration Department, and
(iii)	the Director has no record of any claim.

Part Four

Madam Lui King Fong (2471, a ‘group one’ applicant)

184. The applicant claims to be entitled to benefit under the concession policy on the basis of statements made by her at the offices of the General Investigation Section (‘GIS’) on 5 November 1998.

185. The applicant was born in Guangdong Province in August 1968.  At the time of her birth, her father had been living and working in Hong Kong for several years.  In 1983, the applicant’s mother was permitted to come to Hong Kong to join her husband.  The applicant, however, had to remain in the Mainland.

186. Prior to the change of sovereignty, the applicant married a Hong Kong permanent resident.  A child was born of the marriage, a son.  He was born in Hong Kong.  When the change of sovereignty took place, therefore, the applicant’s parents, husband and son all enjoyed right of abode.  Her desire to share that same privilege, at all material times, on the evidence given, was obvious. 

187. As it transpired, in 2003 the applicant was granted a one-way permit to settle in Hong Kong.  She has now lived in Hong Kong for three years.  However, while she has resident status, she does not have right of abode.  That is why she proceeded with her application.

188. Two moths after the change of sovereignty, on 1 September 1997, the applicant entered Hong Kong to be with her husband and son.  Her two-way permit allowed her to remain until 23 November 1997.

189. At about that time, said the applicant, she was suffering from severe menstrual bleeding.  She consulted a doctor and, to her understanding, was diagnosed as having a tumour in her uterus.  The doctor who diagnosed her condition, she said, wanted to conduct a further examination in January 1998, several weeks after her two-way permit was due to expire.

190. In light of this, said the applicant, she went with her husband to the CVO to seek an extension of stay.  The visit was made on 18 November 1997.  Although her application was supported by a letter from her doctor saying that she was suffering from ‘menorrhagia and adenomyosis’, a decision was made at the CVO that she was not suffering from any ‘major medical problem’ and she was given only a two-day extension.

191. The applicant declined to accept the extension, choosing instead to remain in Hong Kong as an overstayer.  Indeed, on the evidence, it is apparent that the applicant remained in Hong Kong as an overstayer for the balance of 1997 and the whole of 1998.  She did so, she said, because, aside from her ill health, she had to care for her husband and her infant son.

192. It appears that in or about October 1998 the doctor who had been monitoring the applicant’s gynaecological condition, became concerned that she may be suffering from further medical complications.  In the result, the applicant was referred to the Kwong Wah Hospital.  The applicant was admitted to that hospital on 20 October 1998 for a series of tests.  Seemingly, a thyroid condition was diagnosed. 

193. In an affirmation made on 21 January 2006, the applicant said that, after her discharge from the hospital on 24 October 1998, she was told to return a few days later in order to make an appointment for a follow-up examination.  When she did so, and produced her two-way permit, she was denied an appointment.  According to the applicant, the receptionist who dealt with her said that her two-way permit had expired, that she was not permitted to remain in Hong Kong and that an appointment could not therefore be fixed.

194. Initially, at least as I understood it, the applicant’s testimony appeared to be to the effect that the follow-up appointment was in respect of the diagnosed thyroid condition.  However, when it was put to the applicant that, at the time of her discharge, she was given a follow-up appointment for that condition, she said that she had in fact been seeking an appointment in respect of her gynaecological condition.  

195. After such a long lapse of time, it is understandable that there were vagaries in the applicant’s evidence.  What appears to be clear, however, is that, after her discharge from the Kwong Wah Hospital, the applicant did return a few days later and did attempt to make an appointment resulting in an altercation of some kind.  In the result, the applicant was left with the impression – rightly or wrongly – that she was being denied treatment.

196. That being the case, the evidence indicated that a few days later, on 3 November 1998, the applicant attempted to cross the border at Lo Wu in order to obtain medical treatment in the Mainland.  However, as an overstayer she was stopped and interviewed. 

197. The applicant accepted that, in broad terms, the record of the Lo Wu interview was accurate.  As to why the applicant was seeking to return to the Mainland, the record contained the following statement : ‘Since she was an overstayer in Hong Kong, the Hospital Authority failed to provide treatment for her.’

198. Nothing appears on the face of that record to suggest that the applicant made any assertion that, because of her parents’ residential status, she was entitled to right of abode.  The record makes no reference at all to the applicant’s parents, speaking only of her husband and her son.  The applicant, however, did not suggest that she had made any claim for right of abode at Lo Wu.  To the contrary, it was her evidence that at that time she did not appreciate that she could even make a claim for right of abode.  Although she knew of the on-going right of abode issue, she said that it was her understanding at the time that only ‘children’, as that word is defined by age and not parentage, could seek right of abode.

199. It was her evidence, however, that during the day or so between being stopped at Lo Wu and being referred for further processing to the offices of GIS, she had had a conversation with a friend.  During this conversation the subject of claims for right of abode was raised and, according to the applicant, her friend informed her that all Mainland ‘children’, whatever their age, were entitled to seek right of abode.  It was as a result of this conversation, said the applicant, that she decided to raise the issue of her own right to claim right of abode when she reported to the Immigration Tower.

200. It does not seem improbable to me that, having been refused permission to leave Hong Kong, and no doubt being in a state of considerable anxiety, the applicant may well have discussed her predicament with a friend, matters turning to what many at the time perceived to be the entitlement of people such as the applicant under the Basic Law to settle in Hong Kong.

201. While perhaps not an epiphany, this conversation with a friend was of material importance to the applicant’s case.  It explained, for example, why, on her evidence, she made no claim for abode at Lo Wu but did so a couple of days later at the offices of GIS.

202. The conversation, however, was recorded in the applicant’s affirmation made in June 2004 but was not recorded in her case summary prepared much earlier by her solicitors, Pam Baker & Co.  The applicant said that she was surprised that there was no mention of this conversation in the summary as she was sure that she had mentioned it.  She denied any suggestion that the conversation was a later invention on her part.

203. When cross-examined on the making of the summary, the applicant said that it had been a confused affair.  There had been too many people seeking to register their claims and, to her memory, there had not been a one-on-one interview.  It seemed to be the applicant’s evidence that the summaries were, because of the overwhelming pressures on the solicitors at the time, almost ‘production line’ entities.

204. I have not, to my memory, heard detailed evidence as to how the summaries were prepared.  But it does seem that they were not the produce of careful interview sessions.  They are not detailed.  That being the case, while their value remains, I believe they must be approached with some caution.

205. In the present case, I found the applicant, although often emotional and overwrought, to be an essentially credible witness and I am prepared to accept, on the probabilities, that her case summary may not have included everything she attempted at the time to tell her solicitors.

206. On the morning of 5 November 1998, the applicant, together with her husband and son, went to the offices of GIS on the 13^th Floor of the Immigration Tower.  The applicant was given an ID 457 form to complete.  In doing so, she gave the details of both of her parents including their identity card numbers. 

207. When the ID 457 form had been completed, the applicant said that she was then called in to an office to be interviewed.  The interviewing officer was Ms Lindy Yu Man Yan, an Immigration Assistant.

208. At an early stage of the interview, said the applicant, a male officer, seemingly of more senior rank, came over to say that there was some doubt as to the accuracy of her father’s identity card number which she had written down on the ID 457 form.  To ensure that the correct number was obtained, the applicant said that she telephoned her father.  The officer then went away but returned to query the mother’s identity card number.  In the result, she said, she made a second call, this time to her mother.

209. In cross-examination, the applicant accepted that there were no doubt inconsistencies in her evidence.  For example, she admitted that she could not now remember with confidence if she had made two telephone calls to confirm her parent’s identity card numbers or whether she had made one call, dealing with both identity card numbers in that call.  She was adamant, however, that she had been asked to contact her parents in order to confirm the accuracy of their identity card numbers.

210. The evidence of the immigration officers, including Mr Ho Kin Chung, an immigration officer who worked in the same room, was to the effect that, as a matter of invariable practice, the task of checking the accuracy of identity card numbers appearing on an ID 457, if it was necessary at all, was not done until the interview with the Immigration Assistant was completed.  It was not the practice for a check to be conducted simultaneously with the interview.

211. It was central to the applicant’s evidence that she was asked to check on the correctness of her parents’ identity card numbers.  Her testimony in this regard was out of the ordinary.  An examination of the ID 457, however, shows that both identity card numbers have in fact been corrected, the father’s number being struck through and replaced in altogether different handwriting with the correct number.  That, in my view, must lend some support for the applicant’s assertion.

212. In addition, the interviewing officer, Ms Yu, said in her affirmation of 18 February 2005 that, if an interviewee indicated that his or her parents were Hong Kong residents, it was her usual practice to check whether the identity card numbers written on the ID 457 form were legible.  If those numbers were unclear, Ms Yu said that she would invite the interviewee to make a call to confirm the correct number.  

213. In the circumstances, I do not think it is possible to reject the applicant’s contention that, for whatever reason, and whatever the normal practice, on this occasion some sort of simultaneous check was made.  What must always be remembered is that standard practice is not always slavishly adhered to and does give way, to a greater or lesser extent, to the pressures of the moment.

214. For example, Mr Ho Kin Chung, the immigration officer who worked in the interview room, said that he would not himself become involved in the interview of persons such as the applicant.  However, as the senior officer, and therefore to some extent the supervising officer, I find it difficult to believe that he might not, from time to time, have felt it necessary to quite properly exercise supervisory powers by assisting in the successful conclusion of an interview.

215. When the interview with Ms Yu continued, said the applicant, she asked Ms Yu if it would be possible to obtain an extension of stay so that her medical problems could be treated in Hong Kong.  The applicant said that she had a number of her medical papers in her possession at that time.  According to the applicant, Ms Yu said that she had already overstayed and must return.  The applicant said that she told Ms Yu that a nurse at the Kwong Wah Hospital had told her that, if she was able to secure some valid travel document, then she would be given an appointment.  This statement, however, according to the applicant, earned a rebuke from Ms Yu who asked if she accepted at face value what everybody told her.  Ms Yu said : “If they told you to jump off a building, would you do so?”

216. This display of sarcasm, said the applicant, upset her greatly.  She replied that Mainland people like herself had tried very hard over a long period of time to secure reunion with their families.  Her own parents had been in Hong Kong for many years and, as their child, she should have the right to remain in Hong Kong with them, that is, the right to become a Hong Kong permanent resident.  The applicant said that she spoke of the hardship that many families suffered trying to secure right of abode for one of their members. 

217. In her emotional state, the applicant said that she then spoke of the tragic circumstances of the ‘Chan Kin Hong’ case.  This was a case which concerned the suicide in October 1998 of a woman traumatised by her husband’s cross-boarder extra-marital affairs who threw herself and her two children from a building, all three being killed.

218. Whether the applicant’s analogy was apt or not, I am of the view that, in her distress, the applicant may well have spoken of the case.  It was shown to be a case which had attracted considerable publicity in the weeks before the applicant visited the GIS.  That it fitted appropriately into the time sequence of events was, in my view, support for the fact that it was not a much later invention by the applicant.

219. What was said during this emotional outburst by the applicant was central to her claim.  On the basis of her evidence, this was the only occasion on which she asserted her entitlement to right of abode; that is, to live permanently in Hong Kong by reason of her parents’ residential status.

220. During cross-examination it was put to the applicant that her emotional outburst was so important to her case that, if true, it would surely have been spoken of in some unambiguous manner in her original case summary.  As it was, her case summary only said the following :

“Later she was taken into a room and interviewed.  There she explained to the officer about her medical problem and denial of medical care in Hong Kong because of her immigration status as an overstayer.  She said that the children without permits have an on-going court case and she wants to be placed on recognizance.”

221. The applicant, as I have indicated earlier, spoke of the difficulties encountered in ensuring that an accurate and detailed case summary was prepared.  She went on to stress that with Barnes & Daley, her later solicitors, there had been the opportunity for a one-on-one interview and she had been able to state her case more clearly.  In her affirmation made with the assistance of Barnes & Daley, the applicant said the following :

“I remember that at one point I said to the officer that I wanted a recognizance, referring to the fact that I was sick and needed to go to Kwong Wah hospital.  Another officer who was standing by, and overheard me say this then said this to me: ‘Even if you have a recognizance, you cannot go to hospital.  Who told you could do this?  If someone tells you that you should jump out of the building – do you do so?  If someone says you will win Mark 6 tomorrow, do you believe them?’

I felt very angry at this point, and argue with this other officer.  I said that mainlanders such as I had expended a lot of effort to come to Hong Kong.  I told him that my parents had lived in Hong Kong for many years and that ‘we want family reunion’.  I said ‘Mainlanders should have right of abode’.  I mentioned the despair of some families fighting for right of abode, and referred to Chan Kin Hong, who was driven to suicide.  I remember that I became extremely emotional and cried loudly.”

222. While obviously the absence from the case summary of unambiguous details concerning the applicant’s outburst is a matter that must be given due weight, in my judgment it would be wrong in the present case to make too much of the fact.  It seems to me that the applicant’s description of the manner in which her case summary was prepared may have some accuracy.  I repeat the obvious fact that the case summaries were only intended to be brief documents, fairly general in nature in most instances, albeit ones identifying the essentials of claims.

223. As I have said earlier, during the course of cross-examination, the applicant had to accept that there were a number of inconsistencies in her testimony when compared with what had been said in her case summary and her affirmations.  By way of example, in her affirmation (cited above) the applicant had attributed the sarcastic comments which gave rise to her emotional outburst not to Ms Yu, the interviewing officer, but to ‘another officer’ who overheard what was being said.

224. For the Director, it has been submitted that they point to the fact that the applicant’s case, while perhaps founded on some central core of truth, was essentially invented.  I have approached the applicant’s evidence with considerable caution.  That being said, however, I reiterate that she struck me as an essentially credible witness.  That the exact sequence of events should become confused is not, in my view, surprising.  Memory is fallible.  This is so over a period of months let alone years.

225. As to the balance of her interview with Ms Yu, the applicant said that, when she had finished her emotional outburst, it must have been obvious that she was very upset.  The applicant said she remembered a male officer suggesting to Ms Yu that the interview should be completed in another room.

226. The applicant testified that she was taken to another room.  She was in tears.  She said that she took out her medical papers for Ms Yu to examine.  Ms Yu advised her that, having regard to the seriousness of her medical condition, she should return to the Mainland as quickly as possible.  Ms Yu, said the applicant, gave her a lot of advice.  

227. Realising that any objection on her part was hopeless, the applicant said that she agreed to return to the Mainland and was persuaded to record her agreement on a ‘grounds for non-removal’ form.  Not certain what to write, the applicant said that Ms Yu wrote out a series of characters on piece of paper and she copied these characters, partially in traditional and partially in simplified form.  In translation, the characters are to the following effect :

“I have overstayed because of sickness which is not supported by any proof.  I now want to return to China.”

228. In respect of the applicant’s assertion that she was removed to another room, it is a fact that there were other interview rooms on the same floor.  As Ms Yu herself accepted, if an interviewee was causing a scene, disturbing others in the main interviewing room, then common sense perhaps dictated that the interviewee be removed to another room.

229. On the evidence, there was no suggestion that the applicant had been to the offices of GIS other than on this one occasion.  She could not have been certain, therefore, that there were in fact other rooms available for conducting interviews. 

230. In summary, I am satisfied on the probabilities that the applicant did make an oral claim for right of abode, the record of that claim being found in the ID 457.  As for the ID 457, it is apparent that care was taken at the time, albeit by members of the GIS, to ensure the accurate recording of the parents’ identity card numbers.

231. My determinations are therefore as follows :

(i) The applicant did make a claim for right of abode;

(ii) the Director does have a record of that claim.

Mr Chong Wing Suen (1003, a ‘group one’ applicant)

232. The applicant was born in Fujian Province in 1971, one of four children.  At this time, as I understand it, he is the only child of the family still living in the Mainland.

233. The applicant’s father came to Hong Kong in 1979, the applicant’s mother being permitted to join him in 1990.  She became a permanent resident in December 1997.

234. By 1997, the applicant’s sister and younger brother had obtained permission to settle in Hong Kong.  That left just the applicant and his elder brother still living in the Mainland.

235. The applicant said that in 1997, several months before the change of sovereignty, he and his elder brother were contacted by their father who urged them to come to Hong Kong so that they would be here on 1 July.  The father, having been in Hong Kong for so long, had experience of earlier amnesties and believed that an amnesty would be granted when the change of sovereignty took place.

236. The applicant said that he, his elder brother and his elder brother’s wife were able to obtain two-way permits.  The three of them came to Hong Kong in May 1997, the applicant being permitted to remain until 4 June of that year.  However, as the three of them wished to be in Hong Kong when the change of sovereignty took place, and as their two-way permits all expired before 1 July 1997, all three overstayed.

237. The applicant said that he waited to see what would happen after the change of sovereignty.  On the first working day after the change, he said he recalled that several thousand people had gathered outside the Immigration Tower in Wanchai.  He learnt that some of these people were repatriated but others obtained ‘walking permits’ which, as he understood it, allowed them to remain in Hong Kong.  His hopes, he said, were not therefore dashed.

238. According to the applicant, it was on 14 July 1997 – just two weeks after the change of sovereignty – that he, his elder brother and his brother’s wife decided that they should go together to the Immigration Tower to claim the right to live permanently in Hong Kong.

239. In the course of submissions, it was emphasised on behalf of the applicant that by mid-July 1997 matters concerning right of abode remained very much in a state of flux.  I was, for example, referred to a headline in the South China Morning Post of 13 July 1997 which said :

“Lawyers join children in abode fight”.

240. In my judgment, the probabilities support the applicant’s contention that he went to the Immigration Tower on 14 July 1997 not simply to surrender himself as an overstayer but to seek to claim the right to live permanently in Hong Kong. 

241. According to the applicant, when he arrived at the ground floor of the Immigration Tower together with his brother and sister-in-law, there were many people there.  The atmosphere appeared to be tense.  The applicant said that a large number of immigration officers were present.

242. The applicant said that he noticed many people waiting in a queue.  In cross-examination, it was put to him that he must have been mistaken as the last day of the queuing system on the ground floor had been 5 July 1997, some nine days earlier.  The applicant, however, insisted that there had been a queue.  In this regard, it was emphasised on behalf of the applicant that he did not say there was a queuing system in place – which was adopted in the days following the handover to separate claimants and non-claimants – only that he saw a long queue.

243. The applicant said that, on the ground floor, the three of them gave their two-way permits to an immigration officer.  The officer who examined their permits was told that they wished to stay in Hong Kong in order to live here and that they wished to know how to obtain a ‘walking permit’.

244. The applicant said that, after their permits had been examined, they were told to join the queue.  They did so and were escorted up to the 13^th floor; namely, to the offices of GIS.

245. It was put to the applicant that, when the three of them first spoke to an immigration officer concerning the right to live in Hong Kong, that exchange would not have been on the ground floor but would have been on the second floor at the information office.  It was suggested that, if an enquiry had been made as to right of abode, they would all have been told at the information office that they must process their claims back on the Mainland.  Their permits having expired, they would then have been referred to the offices of GIS.  The applicant, however, rejected this suggested sequence of events.  His memory of events on the ground floor, he said, was still clear.

246. As to the location of this initial conversation, the applicant’s brother testified that, when they arrived at the Immigration Tower, they did not take an escalator, an escalator being the means by which people are conveyed from the ground floor to the second floor.

247. On arrival at the 13^th floor, the applicant said that they went into a large, crowded office.  The applicant said he went to the counter.  As to what was said by him to the counter officer, in his affirmation of 2 September 2005, the applicant recalled the following :

“I submitted my two-way permit and asked the Immigration Department official whether I could have a walkabout paper.  I was told that such document was only given to children and I was an adult so I would not have one.  I then told the Immigration Department official that I wanted to stay in Hong Kong.”

248. The applicant testified that at the counter the three of them were given ID 457 forms to complete.  In completing his ID 457 form, the applicant gave all relevant information concerning his mother and father; their ages, place of birth and Hong Kong address.  He did not, however, give details of their Hong Kong identity card numbers, his father at that time being a permanent resident.  He did not do so, said the applicant, because he did not remember the numbers.

249. The applicant said that when he handed back his form, the immigration officer drew a circle around the area where the identity card numbers of his parents should have been inserted.  The circle appears on the original document produced in evidence.  As to his reaction when he saw the circle drawn, in his affirmation of 2 September 2005 the applicant said the following :

“I did ask the Immigration Department official whether it was necessary to call my parents to find out the numbers for their Hong Kong permanent resident identity cards.  However, that official said there was no need for me to do so, and I could leave it blank.  If he said it was necessary to make a phone call, I would have called and checked with my parents.”

250. It was put to the applicant that he had never spoken of this conversation in any early documentation.  For example, nothing had been said of it in his interview in April 2000 with the Removal Special Project Sub-Division when he was required to give details of all claims made.  In that interview document, the following had been written :

“On 14 July 1997, I went to the Immigration Department at Wan Chai.  I was instructed to fill in a form the following words ‘I overstayed because I like Hong Kong and have been watching Hong Kong’s reunification with the motherland’.  I got an appointment with the Immigration Department to go back one week later.”

251. As it is, that statement confuses two visits which the applicant made to GIS, reducing them into a single occurrence, the first being the visit on 14 July and the second being a return visit made on 23 July 1997.  In addition, as is obvious, the interview notes are not in any way a detailed recitation of what occurred.  Elsewhere in his interview documents, however, the applicant did go on to say the following :

“At that time, I would have returned directly to the Mainland through Lo Wu on time if I had not had the intention to find a way for right of abode in Hong Kong.  Why should I have gone to the Immigration Department at Wan Chai?”

252. The circle on the applicant’s ID 457 is in some ways an enigma.  I have no recollection of other ID 457 forms which have omitted to record details of parents’ ID cards being circled in this way.  It is therefore unusual.  Why in this instance would the omission of the ID card details of the applicant’s parents have been circled?  Clearly the omission must have been considered relevant at the time. 

253. As to what else took place at that time, the evidence shows that the applicant, his brother and his brother’s wife were given receipts for their expired two-way permits and told to report back to the Immigration Department on 1 August 1997, some two weeks hence.

254. In cross-examination, the applicant was reminded that in neither his testimony nor his affirmation of 2 September 2005, had he said anything to suggest that on 14 July 1997, either on the ground floor or at the offices of GIS, had he claimed that this father was a permanent resident, that, of course, being the foundation upon which any claim for right of abode had to be made.

255. In his case summary prepared by Pam Baker & Co. the applicant had, however, given the following instruction :

“We queued up on the 13^th floor.  There was a big queue.  When I spoke to the immigration officer I said our father was a permanent resident and asked if we could be put on recognizance.  The officer said no, we were too old.”

256. A reading of this summary indicates that the applicant had again reduced two visits to the Immigration Department to a single visit.  So whether the conversation the applicant spoke of in the case summary took place on 14 July 1997 or the later date; that is, on 23 July 1997, is not certain.

257. Matters were made no clearer during the course of cross-examination when the applicant, having first said that, yes, he did tell the counter officer his father was a permanent resident, went on to accept that he could not remember clearly if he had in fact done so.  As the applicant put it, he could not now be clear on the matter but he believed he had done so.

258. It is, in my view, understandable after so many years that the applicant could not remember clearly what, if anything, he had said in respect of his father.  But if, as I have found, he had gone to the Immigration Tower in an attempt to seek right of abode, it seems likely to me that something would have been said of his father’s residential status.

259. I would add that, in my view, the applicant was essentially a credible witness.  He gave his evidence in a plain, straightforward fashion.  I detected little evidence of invention.  In cross-examination, he allowed himself to become tetchy and argumentative but, while that gave me pause, it did not undermine my finding that the applicant, battling with the confusion of several events all of them now many years old, was attempting to speak of events as he best remembered them.

260. To support the applicant’s evidence, two primary matters were raised by his counsel.  First, was the unusual circling of that portion of the applicant’s ID 457 where he had omitted to record the details of his parents’ ID cards.  The second was the fact that the applicant had not been ‘processed’ that day but had instead been told to report back to the Immigration Department on 1 August 1997, some two weeks later.

261. As to the second matter; namely, that the applicant had been told to return some two weeks later, in my second report (paras.32 and 33) I said the following :

“… on a more general basis, the evidence revealed that in the days following the change of sovereignty, because of the large number of people either seeking to claim right of abode or simply surrendering themselves in order to be repatriated, the Immigration Department was forced to set up an administrative system to deal with the pressure of numbers.  In this regard, the CFA in its judgment of January 2004 (para.45) observed :

‘Ms Gladys Li SC [counsel for the applicant] submits that the Director’s own system was such that he could distinguish between those who had made a claim from those who had not by the manner in which they were handled by the Department.  It is said that the receipts for documents and other departmental records showing the dates on which the applicants attended the Immigration Department are themselves evidence that a claim for right of abode was made.’

The Director, however, claimed that it was not necessarily possible in this way to distinguish between those who had made a claim and those who had not.  In this regard, the CFA noted (para.46) :

‘The Director submits that there are … difficulties with this argument.  One is that it seems that some non-claimants were asked to return on a subsequent date for processing.’

However, the CFA went on to say :

‘Nonetheless, the circumstances may well give rise to the probable inference that an applicant returned to the Department for further processing.  In the case of applicant no. 3122, the Departmental file contains two copies of receipts dated 4 and 24 July 1997 for documents.  The question is whether the copy receipts in the Director’s possession give rise to an inference, based on the Department’s procedures for processing claims, that the applicant made a claim for right of abode.  If so, the receipts would constitute evidence of a claim for right of abode having been made.’”

262. On behalf of the Director, it was submitted that the applicant, together with his brother and sister-in-law, were asked to return later simply because the pressure of numbers did not enable the Immigration Department to process their surrenders that same day.

263. Counsel for the applicant, however, argued that the programming of the applicant to return on a much later date was critical.  In this regard, counsel relied on the evidence of a senior Immigration Officer, Tam Lee Man, who in respect of a number of other applicants had said that routine cases (i.e. standard surrenders) were invariably scheduled for the next day, perhaps to another unit.  Non-routine cases, however, which required a longer time to process would be scheduled for a later date and were always referred back to GIS.

264. In my second report, in respect of this form of scheduling, I said the following (paras.41 and 42) :

“The difficulty, however, is that, as Mr Pang [Mr Pang Kin Mo, a Senior Immigration Officer] made clear, on 4 July 1997 a significant number of two-way permit overstayers who were not claiming right of abode were dealt with in essentially the same way.

There was, however, as I understood the practice at that time, one important difference.  As Mr Pang accepted, overstayers who were not claiming right of abode, if they could not be interviewed that same day, were told to return as soon as possible, invariably within a few days, perhaps just two or three.  Right of abode claimants, however, were not processed with such urgency.  To put it simply, for what are self-evidently rational reasons, non-claimants were given priority so that they could be processed and repatriated with the minimum of delay.  Claimants, however – those whose claims would have to be investigated – could be dealt with at more leisure.”

265. In the passages I have just cited, Mr Pang Kin Mo was referring to a system in place in the days immediately following the change of sovereignty.  But, as counsel for the applicant pointed out, there was evidence that the same system remained essentially in place some ten days later.

266. The applicant, as I have said, was not requested to return the next day, or two or three days later, but some 16 days later.  Clearly, the applicant was not given priority.

267. That brings me back to the enigmatic circle on the applicant’s completed ID 457 form.

268. As I have said, the circling of that portion of the form where the applicant should have recorded the ID card details of his parents indicates that on 14 July 1997 the counter officer (or some other officer who arranged for the applicant to return at a later date) considered the omission to be of some importance.  But why?  The obvious inference, one to which the applicant testified, was because the applicant had, in one way or the other, made it plain that, through his father, he wished to remain permanently in Hong Kong, but had not written down evidence of his father’s residential status.

269. Considered in that light, the circling of the ID 457 may also explain why the applicant was only asked to return more than two weeks later.  His case – that day – was not considered to be a routine case, it was considered instead to be a non-routine case, one that would take longer to process and was not a priority.

270. Non-routine cases, of course, included cases in which applicants did not wish to be repatriated; cases, for example, in which applicants asserted a right to remain permanently in Hong Kong.  Non-routine cases were always referred back to GIS.

271. In summary, therefore, while this has not been the strongest case, I am nevertheless satisfied on the probabilities that on 14 July 1997 the applicant did make it known that, through his father, he wished to remain permanently in Hong Kong and that, in all circumstances, it amounted to, and was understood to be, a claim for right of abode.

272. As for a record of that claim, I am satisfied that the record is to be found in the circling of the ID 457 and in those documents which show (in light of the administrative practice at the time) that the applicant had a receipt given to him for his expired two-way permit and was told to return for further consideration of his case only some two weeks later.

273. I appreciate that neither the circling of the ID 457 nor the administrative documentation related to the applicant being told to return some two weeks later, considered in isolation, on their face, constitutes a claim.  But, considered in context, in my judgment, they do however constitute evidence that a claim had been made.  In this regard, in its judgment of January 2004 – (2004) 7 HKCFAR 24, paras.27 and 28 – the CFA said :

“The critical question is whether the relevant documentary material constitutes, on its face, either a claim for right of abode or evidence that a claim for right of abode has been made.  But that does not mean that it is impermissible to have regard to other circumstances in determining whether the documentary material constitutes, on its face, evidence that such a claim is, or has been, made.  It is permissible, for example, to characterize the documentary material as constituting such evidence in the light of the circumstances in which it was brought into existence, for example, by reference to the fact that the applicant has made a claim for right of abode, so long as one is doing no more than characterizing what appears on the face of the documentary material.

28. The purpose of the requirement that there be a written record of a claim in the possession of the Director was to provide a form of verification to enable the Director to implement the concession policy (see January judgment, para. 210).  The existence of this purpose does not mean that the Director should disregard the fact that an applicant has claimed right of abode when considering whether documentary materials constitute evidence of the making of such a claim.  On the contrary, as far as the Director is concerned, he knew that each applicant asserted that a claim for right of abode was made and he is now aware of the Judge’s findings.  If, viewing the relevant documentary material in that light, it may, on its face, fairly be said to constitute evidence corroborating the fact that a claim for right of abode had been made, the concession policy requirement for a record is satisfied.”

274. Before concluding with the events of 14 July 1997, it should be mentioned that the applicant’s elder brother, Chong Wong Yi, also testified as to what took place on that day.  His evidence followed that of the applicant closely – too closely in my view.

275. The elder brother accepted that he had not been obliged to reduce his memory of events to writing until a few weeks before the hearing.  In light of that, when it was suggested to him that he must have discussed the matter with the applicant, especially bearing in mind the importance of the matter to the applicant, the brother denied that he had done so.  Although he and the applicant had been living in Hong Kong for the past several years, the brother said that they had each been too busy getting as with their own lives to ever have the opportunity to discuss the applicant’s case.  I did not believe a word of it.

276. I am satisfied that there must have been discussions between the applicant and his elder brother.  Sadly, I am also satisfied that the brother based his testimony very largely on those discussions.  In the result, I could place little, if any, reliance on what the brother had to say.

277. That does not mean, however, that I disbelieved the applicant.  As I have said, I found him to be an essentially credible witness.

278. Although the applicant, his brother and his sister-in-law were originally scheduled to return to GIS on 1 August 1997, they were in fact contacted and asked to return on an earlier date; namely, on 23 July 1997.  All three went in on that date.

279. After they had arrived at the offices of GIS, the evidence shows that the applicant, his brother and his brother’s wife were each interviewed by the same officer.

280. The applicant was confused as to who had interviewed the three of them, one officer or more, and in what sequence.  However, the applicant said that he recalled telling the officer who interviewed him that he wished to stay permanently in Hong Kong and wanted a ‘walking permit’.  The officer told him, however, that he was not eligible for a ‘walking permit’ and that, if he wished to claim the right to live in Hong Kong, he must return to the Mainland and make the application there.

281. The applicant said that he was then given a ‘grounds for non-removal’ form.  He said that the interviewing officer showed him a piece of paper with characters on it and told him to copy them.  The applicant in his testimony accepted that he knew he could refuse to write what the officer had told him to write.  He said he was afraid, however, that if he did so it might somehow constitute a breach of the law.  He was uncertain as to what was or was not permissible.  In the circumstances, he said, he complied with the officer’s demand.  The characters he wrote were to the following effect :

“I overstayed because I like Hong Kong.  Now I wish to return to China.”

282. In whatever sequence the applicant, his brother and sister-in-law were interviewed, it is apparent in my view that they were effectively treated in the same manner.  It can be no coincidence that each of them wrote exactly the same characters on their ‘grounds for non-removal’ form.

283. A good deal of evidence was given and tested as to events on 23 July 1997.  In my judgment, however, a detailed recitation of that evidence will not take matters further.

284. What is crucial, I think, is that, having considered that evidence at length, I have found nothing in it to detract from or undermine my finding that on 14 July 1997 a claim in terms of the concession policy had been made by the applicant.

285. My determinations are therefore as follows :

(i) The applicant did make a claim for right of abode;

(ii) the Director does have a record of that claim.

Madam Lee Yuan Ling (4703, a ‘group one’ applicant)

286. The applicant was born in Guangdong Province in November 1977.  She is one of three children.  She has two younger brothers.

287. The applicant’s family has a reasonably long connection with Hong Kong.  The applicant’s grandfather was the first to come to Hong Kong.  He was followed by the applicant’s father in 1982.  Accordingly, when the change of sovereignty took place, both the applicant’s father and her parental grandfather enjoyed right of permanent residence.

288. It should also be noted that in 1993 the applicant’s mother was granted permission to come to Hong Kong to join her husband.  By July 1997, although she was not yet a permanent resident, she too had clearly made Hong Kong her home.

289. The applicant herself struck me as a fairly timid character.  The evidence revealed that in late 1997 she was not a well person, suffering from a thyroid problem.  However, in contrast to his daughter, the father, Mr Lee Yip Kuen, who was a principal witness, struck me as a bolder character, a man prepared to speak his mind, even in adverse circumstances.

290. The father testified that, shortly before the change of sovereignty, he read reports in the media that, when the change took place, the children of Hong Kong permanent residents would be entitled (in terms of the Basic Law) to settle in Hong Kong.  The father said that he kept a copy of one of the articles.  This was produced into evidence.  In light of this, the father said that he contacted his daughter, telling her to obtain a notarial certificate verifying that she was his biological daughter.  This was done.  The certificate was dated 22 July 1997.

291. In her testimony, the applicant said that she obtained the notarial certificate in the hope that it would assist her in claiming right of abode.  As it was, the applicant came to Hong Kong on 24 July 1997 in the company of one of her brothers.  Both of them, she said, were intending to secure the right to settle in Hong Kong with their parents.  On the evidence, I do not think there can be any doubt that the applicant and brother did come to Hong Kong for that purpose.

292. The applicant and her father testified that on 31 July 1997 they went together to the Immigration Tower.  They were accompanied by the brother who had come with the applicant to Hong Kong.  They made their way, they said, to the 2^nd floor of the building where the information counter was situated.  The father, it was said, spoke on behalf of his children.  He spoke first to an officer at the counter, telling him that his two children were from the Mainland and asking if it was possible to process an application for them to remain permanently in Hong Kong.  He was told that it was not possible.  If an application to live permanently in Hong Kong was to be made, it had to be made back in the Mainland.  Not to be deterred, the father joined the queue again, making an enquiry of another officer at the counter.  However, he received the same advice.

293. The visit to the Immigration Tower having been unsuccessful, the applicant and her father testified that they took a taxi that same day to the offices of the Legal Aid Department.  The father said he had heard that people were taking legal action against the Government to enforce the right to settle in Hong Kong and he wanted his children to join in that action.

294. It was not disputed that a visit was made to the Legal Aid Department on that day.  The applicant’s brother was considered for the granting of legal aid and there is a record to that effect.  The applicant herself, however, was held not to be eligible for consideration.

295. In the result, in respect of the applicant, neither the visit to the Immigration Tower nor the visit made later that same day to the Legal Aid Department formed the basis of her claim for right of abode. 

296. The applicant’s claim was based instead on what she and her father testified happened at the offices of GIS when the applicant surrendered herself for repatriation some five months later, on 11 February 1998.

297. It was the applicant’s evidence that, although her brother returned to the Mainland when his two-way permit expired, she remained in Hong Kong to await developments in the on-going right of abode matter.  There were also, it was said, pressing personal reasons for her remaining.  She needed to look after her grandfather here and, in addition, she was afraid for her safety if she was forced to return to the Mainland.  Before coming to Hong Kong, her home apparently had been burgled by a gang, a traumatic event for her.

298. By early 1998, however, according to both the applicant and her father, it was apparent that remaining in Hong Kong as an overstayer served no purpose.  The applicant spent almost all her time in the family home, afraid to go out.  She was bored.  More fundamentally, there appeared to be few, if any, developments in the right of abode matter.

299. The father testified that he had first learnt of the existence of the GIS office from a friend.  This was the office where overstayers, like his daughter, were processed.  That was why, he said, he and his daughter went to the offices of GIS at the Immigration Tower on 11 February 1998.

300. The applicant, as I have said earlier, struck me as a timid, unassertive person.  In my view, her testimony revealed that by 11 February1998 she had become resigned to being repatriated and went to the offices of GIS to submit herself to the necessary bureaucratic process for achieving that end.

301. When she was interviewed at GIS, in the absence of her father, the applicant said that, when given the ‘grounds for non-removal’ form, she told the interviewing officer : ‘My parents are in Hong Kong.  I want to live with them and also take care of my grandfather.’  The applicant accepted, however, that, when given a sample card to copy she did so on the basis that what was written on the card was more or less the same as she had said. 

302. She appears to have written what she was asked to write without demur.  The characters she wrote made up a standard litany, clearly dictated to her in some way :

“I have overstayed because of keeping company with my family.  I now want to return to the Mainland.”

303. The applicant’s father – in my view, a far more assertive person – testified however that he had a dual purpose in accompanying his daughter that day.  Although he appreciated that she would no doubt have to be repatriated, he believed that the visit to the GIS presented one last chance to see if there was some way he could have his daughter ‘registered’ as a permanent resident.  Believing that justice had deserted his family, said the father, he wished to make one last attempt on behalf of his daughter.

304. In the course of submissions, counsel for the applicant said that, having regard to the father’s knowledge of the issues, his determination and insistence, to conclude that he would simply have given up without at least making one final attempt was unlikely.  In my judgment, there was merit in this submission.

305. As to what occurred at the offices of GIS, the father said that he went with his daughter to the reception counter.  He said that the officer were shown his daughter’s expired two-way permit, his own Hong Kong identity card and the notarial certificate which had been obtained in July 1997, the document that proved that the applicant was the daughter of a Hong Kong permanent resident.

306. According to the father, he told the counter officer that he was a permanent resident of Hong Kong.  The father told the court that, at or about the time of the change of sovereignty, he had learnt the importance of the phrase ‘permanent resident’.  He said that he then asked the counter officer if there was any way that his daughter could register the fact that she was the child of a Hong Kong resident so that she could come to live permanently in Hong Kong.  The counter officer, having examined his daughter’s expired two-way permit, said that his daughter had overstayed and she must therefore be sent back to the Mainland.  It was the father’s evidence that he spoke again, asking a second time if there was any way in which his daughter could register the fact that she was entitled to live in Hong Kong.  He received the same negative response.

307. Standard procedures adopted in the reception area of GIS meant that all persons surrendering themselves were given an ID 457 form by the counter officer which they then filled out in the reception area itself or somewhere nearby.  The applicant and her father, however, recalled collecting the form from another office and filling it out in that other office.  In that regard, I am satisfied that their memories simply failed them.  After so many years, it was an understandable lapse.

308. The ID 457 was completed by the applicant while her father sat next to her.

309. The father said that, although he did not know the true purpose of the ID 457 form, he believed at the time that it may have a function to play as a record of a claim for right of abode.  For that reason, he said, he ensured that, when his daughter was required to give details of her family, she gave not only his own details, including details of his Hong Kong identity card, but details also of her paternal grandfather, including details of her grandfather’s Hong Kong identity card.

310. An examination of the ID 457 form shows that details of grandparents are not specifically requested (although there is a column for ‘other close relatives’).  The insertion of the grandfather’s details, especially the giving of his identity card number, was an unusual feature which, in my judgment, supported the father’s evidence.

311. It is also to be noted that, while the details of the applicant’s mother were entered on the ID 457, her identity card number was not given.  The father explained that this was because at that time his wife, who came to settle in Hong Kong in 1993, was still not a permanent resident and he therefore did not consider it necessary or important to have her identity card number recorded.

312. It was put to the father during cross-examination that the true reason why the name and relevant details of the grandfather were given was to ensure that the applicant was able to plead in mitigation that she had been required to overstay in Hong Kong to help care for him.  This was denied.

313. In my judgment, if the father is to be believed, a claim for right of abode was made by him on behalf of his daughter at the counter of the GIS.  The conversation at the reception counter, considered in context and taking into account the documents that were shown to the counter officer, was more than a mere enquiry.

314. As for a record of the claim, if the father is believed, that record is the ID 457 which contains full details of both the applicant’s father and grandfather, two men having right of abode.

315. On behalf of the applicant, it was submitted that, on close study, the ID 457 acts both as a claim and the record of it.  I am unable to go that far.

316. The core issue, of course, is whether, on the probabilities, the evidence of the father (and the applicant) is to be accepted.

317. On behalf of the Director, it was put to the father and the applicant that no claim for right of abode was made on 11 February 1998.  The purpose of the visit had been simply to surrender and to be repatriated with the minimum possible penalty.  Counsel for the Director emphasised that the father himself had agreed in his evidence-in-chief that there was no real possibility of successfully claiming right of permanent residence for his daughter.  As he said : ‘The Legal Aid Department did not allow us to go into a lawsuit and the Immigration Department did not allow us to register.  All the relevant registration avenues in Hong Kong had been tried.”

318. The counter officer at the time was Ms Chow Wing Man, an Immigration Assistant.  Understandably, she had no independent recollection of any conversation at the counter with the father.  She could only say that, if a claim for right of abode had been made, she would have asked the applicant to make copies of supporting documents and would have referred the matter to a senior officer.

319. I do not reject Ms Chow’s testimony – in so far as it goes.  In my judgment, however, bearing in mind the numbers of people going to the reception counter at about that time, I do not accept that every request or assertion that could be interpreted as a claim for right of abode would have been dealt with according to what has been alleged to be standard practice.  Standard practice, as I have said elsewhere, must have been subject to the imperatives of the moment.

320. Nor do I accept that counter officers, although junior in rank, would have been entirely ignorant of prevailing immigration policy that claims to settle in Hong Kong must be made on the Mainland.  In the plainest of cases, in the event of the matter being raised by an applicant who came to the counter, I believe it is possible, perhaps even probable, depending on the circumstances of each case, that such a person may have been told simply : ‘No, it is not possible, you must return to the Mainland to make an application.’

321. It was put to the father and the applicant that their assertion that a claim had been made on 11 February 1998 was a late invention.  In this regard, they were taken to the interview bundle prepared by the applicant, apparently with the help of her father, in the year 2000.  This was the bundle submitted to the Removal Special Project Sub-Division.  It was pointed out that, although other alleged claims were described in detail, nothing was said of any claim made on 11 February 1998.  A study of the interview bundle shows this to be the case.  While the applicant went into considerable detail in describing the visit to the Immigration Tower on 31 July 1997 and the later visit that same day to the Legal Aid Department, no details of a claim for right of abode were given in respect of the applicant’s surrender to GIS.

322. Both the applicant and her father accepted that, in the year 2000, when the interview forms were given to them by Pam Baker & Co., they were told to record details – each on a separate sheet – of each and every time that right of abode had been claimed.  The applicant’s forms, when completed, consisted of a bundle of 62 pages.  The forms were divided into different parts, Part C being for the recording of the details of actual claims made and Part D being for the recording of any additional material.

323. In Part C, as to what took place at the offices of GIS, the applicant wrote the following :

“I entered Hong Kong on the strength of Permit for Travelling to and from Hong Kong and Macau on 24 July 2004.  I overstayed until a certain day in February 1998 and asked my father to accompany me to the Immigration Department on the 13/F to register for returning to my home town.  An officer checked my documents and then gave me a form to fill out, together with a Notice of Court Hearing, and took ten fingerprints of mine.”  [my emphasis]

324. At the top of the page on which this is written, a ‘Yes/No’ box was required to be ticked to indicate whether, in respect of the incident described, it was alleged that a claim for right of abode was made.  Rather strangely, the ‘No’ was ticked.  However, in another box directly beneath it, the date of making any claim was to be inserted and a date was given in that box. 

325. On balance, I am satisfied therefore that the applicant’s description was intended to record a claim for right of abode.  But what is written, of course, asserts no actual claim, certainly not one made by the father on behalf of his daughter.

326. Equally, Part D is silent on any actual claim.  The following only is written :

“I came to Hong Kong on 24 July 1997 and overstayed until February 1998.  During that period of time, I lived with my parents, my elder brother and my grandfather, enjoying family happiness.  But good times didn’t last long.  After the Two-Way Permit had expired, I dared not go out and stayed in a small room every day.  Approximately on 8 February 1998, I asked my father to take me to the 13/F of the Immigration Department to register for returning to my native place.  After the officer had gone through my documents, I was given a form to fill out.  10 fingerprints were taken.  I was given a Notice for Attendance at Court.”  [my emphasis]

327. Both the father and the applicant denied that their version of what took place at the offices of GIS was a late invention.

328. In the course of her testimony, the applicant said that initially she and her father had been of the view that the most powerful basis for her claim rested on events which had taken place on 31 July 1997, first at the Immigration Tower and, second, at the office of Legal Aid.  As the applicant’s counsel pointed out, knowing that there was a record requirement, it was understandable that the applicant and her father would have thought that their strongest claim was the one supported by the Legal Aid pink card given to the father on 31 July 1997 and which he still possessed.  

329. At that time, said the applicant, neither she nor her father had fully appreciated the significance of what had taken place at the offices of GIS on 11 February 1998.  It was only much later, she said, that she and her father sat down together to attempt to recall what had in fact happened at the offices of GIS.

330. In the course of his testimony, the father said that it was only after his son, a representative plaintiff in one of the right of abode cases, had lost his case before the CFA that he and the applicant had discussed matters with Pam Baker & Co. and had come to appreciate the importance of the GIS visit.  That was when details of the claim were recorded in the case summary prepared by his daughter’s solicitors.  That would have been in or about April 2002.  In that summary, inter alia, the following was written :

“They were given a form to complete giving Ms Lee’s and her ‘natural’ family members details.  This form does not include a space for grandparents, however Ms Lee and her father specifically included her grandfather on the form, stating his HKPR identity card number, to show that they were a family of two-generations of permanent residents….”

331. Depending on the circumstances, it may of course be understandable that lay persons, such as the applicant and her father, may not have fully understood the significance of events in the context of the concession policy until more fully advised.  The fundamental purpose of the visit to GIS in February 1998 was after all to enable the applicant to surrender herself and be repatriated and that is what transpired.  While the lack of an early record is therefore a cause for concern, that concern, in my view, cannot in this case be determinative.

332. In order to try and explain further why there had been no early written assertion of a claim being made at the offices of GIS, the father said that he was concerned that his daughter’s status as an overstayer may somehow have vitiated the legal validity of any claim he had attempted to make on her behalf.

333. There was nothing in this contention by the father.  This assertion, in my view, was an obvious exercise in post-rationalisation. 

334. That being said, however, while certainly there were failings in the father’s evidence, I believe that he may well have made a last ditch attempt to seek right of abode for his daughter at the offices of GIS.  Although this was not the easiest case to determine, I could not escape from the conclusion that, if I was to find that there had been no claim made, I might, on the facts, be doing the applicant an injustice.

335. In the result, therefore, albeit with some hesitation, I have come to the following conclusions :

(i) The applicant did make a claim for right of abode, the claim being made on her behalf by her father;

(ii) the Director does have a record of the claim.

Mr Lau Chun Chung (1884, a ‘group one’ applicant)

336. The applicant was born in Fujian Province in 1971, one of four children.  In 1984, his mother settled in Hong Kong.  In 1994, ten years later, his father was able to settle here too.  When the change of sovereignty took place, the only members of the immediate family remaining in the Mainland were the applicant and a younger sister.

337. It was the applicant’s case that in early 1997 his mother told him that rumours were circulating that, when the Basic Law came into effect, the Mainland born children of Hong Kong permanent residents would be able to settle in Hong Kong.  Although he had been on previous visits to Hong Kong, said the applicant, when he arrived here in April 1997 his primary purpose was therefore to wait until the change of sovereignty took place so that he could benefit under the Basic Law.

338. The applicant’s two-way permit authorised him to remain in Hong Kong until 13 May 1997.  He remained, however, until after the change of sovereignty.  It is evident, in my view, that he did so in order to be able to claim right of abode.

339. In the days following 1 July 1997, the applicant said that he knew that many people – people in his position – had gone to the Immigration Tower in order to claim right of abode.  He learnt to his surprise, he said, that many of them were arrested and repatriated.  This was a surprise, he said, because he felt the meaning of the relevant article in the Basic Law was clear.

340. In this respect, it was emphasised by the applicant’s counsel that in the days and weeks following the change of sovereignty, notwithstanding the attitude adopted by Government, there was real concern – and debate – as to the true meaning of the relevant provisions of the Basic Law.  For example, the South China Morning Post of 13 July 1997 ran a story on its front page headed : “Lawyers join children in abode fight”.

341. The applicant said that on 16 July 1997 he went to the Immigration Tower in order to claim right of abode.  He said that he did not hold much hope that he would be successful.  He knew that he may be arrested and subjected to punishment as an overstayer.  But he felt he still had to try to register his claim.

342. The applicant accepted that his memory of many matters had faded.  Indeed, he accepted that for a time he forgot that he went to the Immigration Tower on both 16 and 17 July 1997, telescoping the events of two days into one.

343. But, in giving his evidence, the applicant remembered that he and his mother went to the 13^th floor of the offices of GIS for the first time on 16 July 1997.  They went to that particular floor, said the applicant, because, as he remembered it, they spoke to some other people who had also overstayed and followed them.

344. The applicant said that he went to a counter and spoke to an officer.  He told the officer that, in terms of the Basic Law, the children of permanent residents should be entitled to right of abode.  The officer asked him whether he had been born before or after his parents became permanent residents.  When he replied that he had been born before, the officer told him that only those born after were entitled to apply for right of abode.

345. According to the applicant, he was then given a personal particulars form to complete, an ID 457.

346. In completing the form, details of the applicant’s parents were given including both their identity card numbers.  The applicant was able to record the identity card details, he said, because his mother was with him.  She, of course, carried her own identity card but in addition carried a card with details of all the family’s members.  That was her habit.

347. After he had completed the form, said the applicant, he gave it to the officer at the counter together with his two-way permit.  He was then told to wait.

348. According to the applicant, after a time had passed, a second officer came out.  This officer gave him a receipt for his two-way permit plus a photocopy of it and asked the applicant to return the next day.

349. The applicant said that, during the conversation with the second officer, he again raised the issue of the rights accruing under the Basic Law to the children of permanent residents.  He was also asked by this second officer whether he had been born before or after his parents had become permanent residents and, when he said he had been born before, was again told that only those born after could claim right of abode.

350. The applicant recalled saying to the second officer that, on his reading of the Chinese text of art.24 of the Basic Law, he should be entitled to live in Hong Kong.  He could not remember if the second officer replied to this but he did not think so.

351. In summary, therefore, it was the applicant’s case that on 16 July 1997 he made two assertions that he was entitled to right of abode; the first to a counter officer when he arrived at the offices of GIS, the second to the officer who told him that he must return the following day.  The reply to both assertions was that, as he was born before his parents became permanent residents, he was not entitled to make any such claim.

352. As for the record of the applicant’s claims, that, in my view, was to be found in the ID 457 form completed after the first claim but before the second, that form containing both identity card numbers of the applicant’s parents.

353. I must say that, in respect of events on 16 July 1997, the applicant impressed me as a credible witness.  He answered questions calmly and thoughtfully.

354. The fact that he should put the same assertion to two officers, one after the other, did not surprise me.  His evidence was that he had read the relevant article of the Basic Law and believed it spoke plainly of his rights.  He had come to Hong Kong for the specific purpose of claiming right of abode and it is entirely plausible that he should push the point.

355. The applicant’s evidence as to what took place on 16 July 1997 was, in general, supported by the testimony of his mother who accompanied him.  The mother was personable but clearly very anxious not to say anything that might undermine her son’s case.  In the result, while I did not dismiss her evidence, because it was so clearly – and understandably – partisan, I approached it with considerable caution and in the final analysis was able to come to my determinations with only the barest reference to it.

356. The probabilities indicate that the counter officer who dealt with the applicant was an Immigration Assistant, Mr Chan Tse Hong.  On 16 July 1997, Mr Chan was working in the offices of GIS as a temporary ‘reinforcement’, that being just his third day.  He was at the time a very junior officer.

357. After such a long lapse of time, Mr Chan said that he had no independent recollection of dealing with the applicant.  Mr Chan said that if anybody wished to make a claim of any kind it was his standard procedure (during his period of secondment) to do no more than give the person an ID 457 form to complete and to ask the person to obtain photostat copies of any documents that would be used in support of the claim.  Mr Chan said that it was not his function to consider the merits of any claim.  He would tell the person that the claim should be dealt with when the next step in the process took place; namely, the interview.

358. At that time, said Mr Chan, to the best of his memory, he was not too clear himself as to the right of abode issue.  In the short period of time that he worked at GIS, he said, he had too many people to deal with to spend time with any individual giving advice.

359. Mr Chan struck me as being an honest witness who gave his evidence in a straightforward manner.  But, of course, he could only talk of what his general practice had been at the time.

360. The evidence shows that the second officer who dealt with the applicant on 16 July 1997 was Senior Immigration Assistant, Tam Lee Man.  Mr Tam said that he was the officer who gave the applicant the receipt for the surrender of his two-way permit and who told him to come back to the offices of GIS the next day.

361. It was Mr Tam’s evidence that, in the days following the change of sovereignty, GIS was often not in a position to process all the persons who came to the office on any given day.  Persons who could not be processed were asked to return another day.  Mr Tam said that it was part of his duty to screen the cases of such persons to decide whether they should be dealt with on their return by GIS on some other section.

362. Mr Tam said that cases would only be referred to other sections when GIS could not handle them.  While all difficult or complex cases were referred back to GIS, it meant that, if there was still sufficient capacity, run-of-the-mill surrender cases would also be referred back.

363. Overstayers who claimed right of abode were treated as difficult or complex cases, said Mr Tam, and were therefore always referred back to GIS.

364. Mr Tam accepted – as a general proposition – that if a claim for right of abode was made at the counter, the matter may have been referred to him by the counter officer.  He would then have come out to speak with the person.  Mr Tam accepted, however, that no record of any such instance would (necessarily) be retained.

365. Mr Tam accepted that by 16 July 1997 he would have had some knowledge of the Immigration (Amendment) (No.3) Ordinance which had come into force on 1 July 1997.  This was the legislation which differentiated between those born before and after one of their parents had acquired permanent residence.  Nevertheless, said Mr Tam, he would not have had a sufficiently good knowledge of it to be able to give the advice described by the applicant.  Nor was it his function to do so.

366. But, with respect to both Mr Tam and Mr Chan, the essential nature and intent of the Ordinance was simple enough.  I find it difficult to accept that – at that time – Mr Tam at least would not have felt confident enough, if the need arose, to give some straightforward advice in respect of it.

367. Mr Tam struck me as an honest witness doing his best to recall how matters had been those many years earlier.  But Mr Tam, like Mr Chan, had no independent recollection of individual cases and could only describe what he remembered was his general practice.

368. General practice, however, is all too often punctuated with exceptions.  Officers in the position of both Mr Chan and Mr Tam did not work as automatons.  Help, I am sure, would have been given when needed and from time to time that would have included advice.

369. What must also be taken into account is that the giving of advice in appropriate cases – counselling – was part of the Immigration Department’s policy at the time.  In this regard, for example, as the applicant’s counsel emphasised, the following evidence was given by the Immigration Department as general evidence :

“After the enactment of the Immigration (Amendment) (No. 3) Ordinance on 10 July 1997 which had introduced the Certificate of Entitlement Scheme and the Director’s formulation of the notice on 11 July 1997 (which was formally published in the Gazette on 16 July 1997), all IIs and TWP overstayers who turned up on 13/F to claim ROA, whether it was a fresh attendance or an attendance previously scheduled by way of recognizance or ID359 … would be counselled for departure, irrespective of whether they were Group A and Group B persons.”

370. During the course of his testimony, Mr Tam said that cases involving claims for right of abode, which were likely to be more complex and time-consuming, would not be referred back the following day for processing, they would be referred back several days later.  In the present case, of course, the applicant was asked to return the following day.

371. But this was not an absolute rule.  It depended on the pressure of numbers and, the evidence suggested that from about 15 July 1997 onwards there was a decrease in that pressure.  In addition, of course, ‘counselling’ by Mr Chan and/or Mr Tam may have resulted in the belief that the applicant would no longer press his claim.  Indeed, in this regard, the applicant did say that, after the advice, he believed he must have misunderstood the true position under the Basic Law.

372. The following day, as requested, the applicant returned to the offices of GIS.  His mother accompanied him.

373. He was interviewed by Ms Pauline Cheng Po Lin, an Immigration Assistant.  In the course of that interview, the applicant completed a ‘grounds for non-removal’ form, the English translation of the Chinese characters being to the following effect :

“I have overstayed because of keeping company with my family.  I now want to return to China.”

374. It was the applicant’s testimony that these characters – which make up a familiar litany – were written on a card or piece of paper and he was told to copy them onto the ‘grounds for non-removal’ form.

375. The applicant said that he had earlier been given a ‘grounds for non-removal’ form on which, to the best of his memory, he had written to the effect that he wished to live in Hong Kong to look after his mother who was ill and other ‘things like that’.  At this time, he said, he asked Ms Cheng if he had right of abode under the Basic Law.  She too asked if he had been born before or after his parents had become permanent residents and, when he said it had been before, she too told him that he could not claim.

376. It was then, said the applicant, that Ms Cheng took his partially completed ‘grounds for non-removal’ form, discarded it and replaced it with a fresh form, telling the applicant what to write on that form.

377. The applicant said that, when he queried this, an officer who happened to be behind Ms Cheng at the time warned him that he had better do as instructed or he would be in trouble.

378. While, in my judgment, the applicant was certainly given assistance in completing the ‘grounds for non-removal’ form, and may well have copied the characters, I do not accept that he was threatened in the way he described.  When he testified in respect of this matter, the applicant did so tentatively, almost lamely.  I gained the impression that he felt he had to find some way to explain why he had not claimed right of abode in writing when he completed the ‘grounds for non-removal’ form and was prepared to invent evidence to do so.

379. As for the applicant’s mother, her evidence in respect of the interview on 17 July 1997 was so fractured and poor that effectively it disintegrated.

380. As for the applicant’s assertion that, during his interview with Ms Cheng, he asked yet again about his rights under the Basic Law, I doubt very much whether that was a truthful recollection.

381. That being said, however, the fact that I rejected much of the applicant’s evidence as to what happened on 17 July 1997 does not mean that I rejected his evidence as to the events of the day before.  A witness may fabricate or exaggerate part of his evidence while telling the truth in respect of another part.  Indeed, in the long series of hearings before me, one of my most difficult tasks has been to sift articles of truth from articles of tactical embellishment.

382. At the end of the day, although this was one of the more difficult cases for me to decide, I could not dismiss the very real possibility that on 16 July 1997 the applicant may have claimed right of abode in the manner he described.  In short, despite a number of concerns, I was drawn to the conclusion that the probabilities did favour the applicant as to the events of 16 July 1997.

383. As a postscript, it should be said that, in coming to my determinations, I did take into account two letters written by the mother in 1999 on behalf of her son.  On behalf of the Director, it was emphasised that in neither of these letters was it said that the applicant had claimed right of abode.  For example, in a latter dated 23 June 1999 the following only was said of the applicant’s surrender in July 1997 :

“… what happened later on greatly disappointed me.  The government of Hong Kong not only did not implement the ‘One Country Two Systems’ policy but also repeated put pressure on us, (i.e.) those who wished to stay with (their) parents.  The terms such as ‘imprisonment’ and ‘repatriation upon arrest’ were seen in the media continuously.  Out of anxiety, I had to surrender myself to the Immigration Department uneasily, unwilling and reluctantly.  On 24 July 1997, (I) was sentence to two months’ imprisonment suspended for two years and fined three thousand dollars at the Western Magistracy.  (I) had to leave Hong Kong upon the time limit.  I really didn’t expect such punishment would be imposed (because I) surrendered myself.  (I) was compelled to leave (my) parents and return to the Mainland.”

384. In a second letter dated 28 June 1999, the mother wrote (on behalf of the applicant) :

“I came to Hong Kong in April 1997 and stayed until 28 July 1997.  At that time, as I didn’t know how to seek legal aid or apply for the Hong Kong Permanent Identity Card and the right of abode, I was compelled to return to the Mainland.”

385. But, as was pointed out by the applicant’s counsel, these two letters were not letters that were specifically focused on the concession policy and any entitlement under it.  Nor were they letters which purported to describe events in detail.

386. In December 2001, however, although the applicant was acting under the misapprehension that he had only visited the offices of GIS on one occasion, that is, on 17 July 1997, he said the following in an interview with the Removal Special Project Sub-Division :

“On 17 July 1997, I … went to the Investigation Division at the 13^th floor of the Immigration Department in Wan Chai along with my mother, Hung Yuet Wah, to inquire into matters with respect to Article 24(3) of the Basic Law and claimed that I had right of abode in Hong Kong.  However, as soon as the staff member of the Immigration Department learnt that at the time of my birth, neither of my parents was a Hong Kong permanent resident, he told me that Article 24(3) of the Basic Law did no apply to me.”

387. My determinations, in respect of 16 July 1997, are therefore as follows :

(i) The applicant did make a claim for right of abode;

(ii) the Director does have a record of the claim.

Madam Kwok Chung Lam (1590 : a ‘group one’ applicant)

388. The applicant was born in Fujian Province in November 1963, the youngest of five children.  Her father came to Hong Kong in 1979, her mother joining him in 1981.  Although the applicant’s mother applied to take all her children to Hong Kong, only one child was allowed to accompany her.  The applicant was one of the children forced to remain in the Mainland.

389. In June 1996, the applicant, who had now been married and had children of her own, came to Hong Kong to visit her parents.  She testified that it was at about this time that she learnt that, when the change of sovereignty took place, the Mainland-born children of Hong Kong permanent residents would be entitled to settle here.  With that expectation, she said, she decided not to return to the Mainland but rather to stay with her family to await developments.  It should be said that at this time the applicant was estranged from her husband.

390. In the days following the change of sovereignty the applicant did not herself attempt to claim right of abode.  However, she paid close attention to media reports.  She learnt, she said, that many people like her had gone out to ‘register’ but she also learnt that many of them had been arrested and repatriated.

391. At about this time, she said, she also learnt that a number of people in her position had commenced litigation against the Hong Kong Government to try and secure their right to settle here.  Her father told her, she said, that, if this litigation was successful, her own right to remain in Hong Kong would be secured.

392. The applicant said she therefore remained at home with her parents – effectively in hiding for fear of arrest – awaiting developments in the litigation.  She soon came to realise, however, that the litigation would take a long time to be resolved.  The decision was then made, she said, almost by way of a sudden impulse, that she would return to the Mainland and await developments there and at the same time apply for a one-way permit.

393. As to the obtaining of a one-way permit, the applicant admitted that she was aware at the time; that is, in October 1997, that the Hong Kong Government was requesting people in her situation to return to the Mainland in order to process their applications to settle in Hong Kong through the Mainland authorities.  Counsel for the Director submitted that this was no doubt a principal reason for wishing to surrender herself and be repatriated.  As counsel put it in their submissions :

“On 9 October 1997, Keith J gave judgment in the original right of abode test cases upholding the ‘Certificate of Entitlement’ scheme.  At that time, persons (such as the applicant) who were born before their parents became Hong Kong permanent residents were not even being granted legal aid.  The position for someone like the applicant was therefore quite clear : she did not qualify for right of abode but, even if she did, an application to establish that status had to be pursued on the Mainland.”

394. Among the reasons given by the applicant for wishing to return to the Mainland, was the fact, she said, that she had personal matters to attend to.  Her parents-in-law, for example, who were looking after her children, were anxious for her to return.

395. The applicant said it was her intention to go direct to Lo Wu but her father said that she could not return to the Mainland without first surrendering herself to the Hong Kong immigration authorities.  For this reason, she said, on 17 October 1997 she went to the Immigration Tower with her brother and was referred to the offices of GIS on the 13^th floor.

396. Against this background, with nothing else being said, the probabilities would suggest that, when the applicant went to the offices of GIS, she was seeking to do no more than secure her repatriation with a minimum of fuss and, hopefully, a minimal penalty for having breached her conditions of stay.  It was the applicant’s case, however, that she had an additional reason for surrendering herself and that was to ‘register’ the fact that she had overstayed in Hong Kong in order to claim right of abode.  Such ‘registration’, she believed, would assist her if the litigation against the Hong Kong Government was eventually successful.

397. The applicant’s brother, Mr Kwok Chun Pak, testified that he accompanied the applicant to the offices of GIS.  He said it was, however, the applicant who dealt with all the formalities.  He sat some distance away.  In the result, although he had some recollection of the applicant arranging for a photograph of herself, his evidence did not advance matters.

398. The applicant herself testified that she first went to the reception counter and told the officer that she was there to surrender.  She gave the officer her expired two-way permit.  She was then given an ID 457 form to complete.

399. The ID 457 records the names of the applicant’s parents.  It gives their birth dates, the fact that both were born in China and gives their Hong Kong address in Tsuen Wan.  The form, however, gives no details of their Hong Kong identity card numbers.  Nor, a little surprisingly, does the form, which asks for details of natural brothers and sisters, give any details of the applicant’s brother who was physically in her company at the time.

400. During the course of cross-examination, it was put to the applicant that, if she had that day been seeking not only to surrender herself but also to ‘register’ her right to settle in Hong Kong by reason of her parents’ residential status, surely she would have ensured that she had some evidence of that status with her, for example, photostat copies of her parents’ Hong Kong identity cards.  The applicant answered this by saying that when she went to surrender herself she had no idea what documents or other proof would be required of her.

401. It was the applicant’s evidence that, having completed the ID 457 form, she was called across to speak to a female immigration officer.  That officer, she said, identified herself as a Ms Lau.  The Immigration Assistant who interviewed the applicant that day was in fact Ms Lau Sze Mun.

402. It was the applicant’s evidence that Ms Lau asked her if she had brought a photograph of herself and a photostat copy of her two-way permit.  When she replied that she had not, she was told that she must do so and then report back.  However, Ms Lau, when she testified, said that, when an overstayer approached the reception counter to surrender, it would be the officer at the counter who would ask the overstayer to obtain a photograph and a copy of their two-way permit.  She said she had no recollection, as an interviewing officer, of attending to that task herself.

403. Although normally, with the parties attempting to recall events many years old, nothing much would turn on such a small matter, I mention it because in the present case it is the first conflict in radically different versions of events given by the applicant and Ms Lau.

404. Returning to the applicant’s chronology of events, she said that, when she returned with a photograph and a copy of her two-way permit, Ms Lau took her into a room and an interview began.

405. Considering that events had taken place more than eight years earlier, the applicant’s purported memory of what was said and done in the interview was extraordinarily structured and detailed.  In my judgment, it smacked of contrivance. 

406. In her affirmation of 14 February 2006, the applicant said she recalled Ms Lau asking her why she had overstayed for so long and there being a conversation to the effect that she had overstayed in anticipation of being able to claim right of abode after the change of sovereignty had taken place.  In this regard, in her affirmation, the applicant said the following :

“The officer asked me where I had heard that I would have the right of abode in Hong Kong after 1 July 1997.  I replied that when I was in the Mainland I went to the Public Security Bureau to apply for my two-way permit and there I had met a friend, and she told me about the right of abode.  Furthermore, I said that my parents had also urged me to stay to wait for the Handover.  The officer asked me why I had surrendered now, and I replied that I came to the Immigration Department because I wanted to return to the Mainland and I wanted to register my name as a right of abode claimant.”

407. According to the applicant, the conversation then turned to her parents.  In this regard, she said the following in her affirmation :

“She asked me whether I had come alone.  I said that originally my father wanted to come with me but he was not familiar with the roads, and so my brother had come with me.  She asked me whether he [my brother] had left or was waiting for me.  I said he was waiting outside.  She asked me to bring him into the interview room.  I did so.  He was asked to produce his ID card to the officer and did so.  She looked at the card and told him to wait outside.  At this point I said that if Ms Lau wanted to have my parents’ ID cards, I could ask my brother to go home to obtain them.  She then asked where they lived, and whether it was nearby.  I said they were living in Tsuen Wan.  She said that this was too far away and was not necessary, as it was too late.”

408. Ms Lau, the interviewing officer, said that she had no memory of any interviewee seeking to settle in Hong Kong or seeking somehow to register the fact that he or she was a right of abode claimant.  In her affirmation of 10 April 2006, Ms Lau said that —

“… if there were indeed such a case, I would have asked the overstayer about the basis of his claim and requested him to produce copies of the supporting documents, if any.  I would then stop the interview and refer the matter to my supervisor for further instructions on the handling of the case.”

409. At this juncture, I pause to observe that, in my judgment, Ms Lau came across as a credible witness.  I had no difficulty in concluding that, having regard to her level of experience at the time and that apparently she was on temporary deployment, if indeed she had come across a complex case such as the one described by the applicant, she would have followed standard procedure and referred it to a senior officer.  The evidence shows that she did not do so.

410. By contrast, the applicant, in my judgment, was not a credible witness.  Indeed, the deeper she went into her evidence and the more it was analysed in cross-examination, the more convinced I became that she had invented material portions of her case.

411. One of the more daring inventions, in my judgment, was the applicant’s evidence that during the course of the interview she was given a special form to complete, a form on which she was required to give yet more details of herself and her family.  It was on this form, said the applicant, a form completed under the gaze of Ms Lau, that she recorded the fact that both of her parents were Hong Kong permanent residents.

412. This particular form, said the applicant, was the first form given to her by Ms Lau.  It was a printed form and in her affirmation the applicant was still able to recall in exacting detail the information demanded.  It was as follows :

“Name: ….

Place of birth: ….

Educational level, address of school: ….

Siblings in Hong Kong: ….

Siblings in Mainland China: ….

Father’s name: ….

Father’s arrival date in Hong Kong: ….

Father a permanent resident: Yes/No

Mother’s name: ….

Mother’s arrival date in Hong Kong: ….

Mother a permanent resident: Yes/No

Mainland address/telephone number: ….

Hong Kong address/telephone number: ….

Reason for overstaying: ….”

[my emphasis]

413. As to what information she had recorded on this form, the applicant was again detailed in her memory.  In her affirmation, she said :

“I gave the names of my siblings.  Although I had not done so on the form ID457, this time there was an immigration officer looking over me when I was completing the document.  I gave information about my siblings including their location i.e. one in Hong Kong, one in the US and two in Australia.  I stated the names of my parents, the number of years they had each been living in Hong Kong and the fact that they were each Hong Kong permanent residents.  I gave my mainland and Hong Kong addresses.”  [my emphasis]

414. The applicant said that on the form she also wrote about her mother’s ill health, how it had been caused and why it was that she therefore needed to look after her.

415. Ms Lau, she said, then handed her several pieces of paper on which were printed statements.  Ms Lau asked her to choose one and to copy it onto the foot of the form.  The applicant said that she wanted to copy the character for ‘amnesty’ but it was too difficult and so she wrote instead that she wished to settle in Hong Kong to take care of her parents.

416. The applicant said that she turned the form over and saw that there was printing in English and Chinese characters on the reverse side.  However, when Ms Lau saw she was looking at the reverse side, she told her that she was not to write on it and took the form from her.  

417. As to the existence of this form, Ms Lau testified that she had no knowledge of any such form being used by the GIS at that time.  Indeed, it was the Director’s assertion that there was no such form.  Certainly, no such form has been found in the applicant’s GIS records.  I would add that, having considered a large number of applications related to claims made at the offices of GIS, this is the first time such a hybrid form has been described to me.  Mr Kwok, the applicant’s counsel, was himself constrained to admit that this was an ‘unusual feature’ of the case.

418. Could the applicant simply have been confused?  I think not.  She specifically acknowledged completing the ID 457 and a ‘grounds for non-removal’ form.  The hybrid form was, on the basis of her evidence, an additional form, one which she purported to remember with great clarity.

419. In my judgment, as I have indicated earlier, I am satisfied that there never was such a form.  It was an invention of the applicant.  Through that invention she sought to make the assertion that somewhere in the archives of the Immigration Department there had to be a record of her claim for right of abode.

420. Returning to the applicant’s chronology of events, she said that after she had completed the first form Ms Lau gave her a ‘grounds for non-removal’ form to complete.  On that form, the applicant accepted that she had written characters to the following effect :

“I have overstayed because of keeping company with my family and now want to go back to China.”

421. The applicant said that she only wrote what she did because Ms Lau gave her another printed slip of paper and told her to copy from it.  The applicant said she queried whether she could choose to write something else and was told no, that she must copy what was written.  The applicant said she felt she had no option other than to comply.

422. This reasonably detailed recollection of how she came to complete the ‘grounds for non-removal’ form is to be contrasted with the summary of the applicant’s case prepared by her solicitors, Pam Baker & Co. :

“[The applicant] does not remember clearly the circumstances in which she completed this form this way (which she accepts to be in her own hand-writing).  She thinks she remembers the Immigration Officer might have at least dictated the last phrase.”

423. In this regard, during the course of cross-examination, when asked why her case summary had contained little, if any, of the detail contained in her much later affirmation, the applicant said words to the following effect : “At that time my memory was very bad.  I could not recall clearly … in 2003 and 2004 my memory gradually became better and better.”  While, of course, with contemplation, memory can improve, in regard to this applicant I had little hesitation in rejecting the contention.

424. As to the contents of the ‘grounds for non-removal’ form, Ms Lau accepted that the characters written by the applicant followed a common theme but she said most people said something along these lines; namely, that a family member had been sick and required care or that they had overstayed in order to be with their families.  Ms Lau accepted that, if asked, she (and other officers) would suggest suitable – simple – wording, often general in nature.

425. When the ‘grounds for non-removal’ form was completed, said the applicant, she was taken for fingerprinting.  When that was done, she returned to the interview room with Ms Lau.  It was the applicant’s case that she then witnessed Ms Lau putting all the papers into order.  As for the hybrid form, the applicant said that she was informed by Ms Lau that it had been placed in the file ‘at page 3’ and that she should remember this fact.

426. According to the applicant, Ms Lau offered to give her copies of the documents.  Surprisingly, however, the applicant – if she is believed – declined this offer.  She said there was no need for her to be given a copy because Ms Lau had already told her that, when the right of abode litigation was finalised, the Director would contact her.  This, in my view, was further invention on the part of the applicant.  ‘Registering’ the fact that she was a right of abode claimant was important to her.  Why then would she decline documentary evidence of the fact that she had now been ‘registered’ when it was offered to her?

427. According to the applicant, that however was not the end of matters that day.

428. Having been given a form telling her to report to the Prosecution Section of the Department on 22 October 1997 and to bring $8,000 with her, the applicant said that she then left the offices of GIS with her brother and returned home.  However, when she reached home, she said, her mother was speaking on the telephone to Ms Lau.  She took the call from her mother and was told by Ms Lau that there were some ‘trivial matters’ that had to be dealt with and that she should return to the offices of GIS and should do so that same day, not the following morning.

429. It was the applicant’s case that she therefore returned to the offices of GIS, this time with her father.  When they reached the offices of GIS, said the applicant, her father gave Ms Lau both his identity card and that of the applicant’s mother.  These, she believed, were photostated and handed back.

430. The applicant’s father testified that he had accompanied his daughter and although he said his memory was not good, he recalled handing over his Hong Kong identity card to an officer.  He could not, however, recall handing over his wife’s card.

431. It was put to the father that there had been no visit on the late afternoon or evening of 17 October 1997 and that he had confused this with a visit made almost two years later; that is, on 2 June 1999, when he had gone with his daughter to GIS and on that occasion had handed over his identity card for copying.  The father did not accept this.  In my judgment, however, considering the evidence as a whole, I believe the father, whose evidence (understandably) was at best vague had confused the dates.

432. According to the applicant, after copies of her parents’ cards had been copied, Ms Lau then gave her a ‘no loss, no complaint’ form to complete.  That, it appears, if the applicant is believed, was the sole reason why she was called back to the offices of GIS that same day.

433. For her part, Ms Lau denied that the applicant would have been called back that same day.  She pointed to the fact that the time recorded on the ‘grounds for non-removal’ form was 1635 hours while the time recorded on the ‘no loss, no complaint’ form was just five minutes later : 1640.  More than that, the daily attendance register recorded that she had signed off duty just 45 minutes later at 1715.  Certainly, therefore, the timings appearing in the relevant documents tell against the applicant’s assertion that there was a return visit.

434. Some two and a half years after she had surrendered herself at the offices of GIS, the applicant was interviewed by Ms Ho Kit Man, an officer of the Removal Special Project Sub-Division, a unit set up to record and consider claims made under the concession policy.  The interview took place on 26 April 2000.

435. Prior to the interview, the applicant accepted that she received printed interview forms from her solicitors (Pam Baker & Co.) and had the purpose of the forms explained to her.  In particular, the applicant acknowledged being told that the particulars of each individual claim for right of abode under Part C were to be recorded on a separate sheet of paper.  If there was more than one claim then the Part C sheet of paper was to be copied : one copy for each extra claim.  A study of the original bundle shows that some eight copies of the Part C page were photostated by the applicant.

436. For reasons which will shortly become obvious, I stress at this point that a study of the original bundle makes it plain that photostat copies were all made on the same machine.  I say that because, while the original printed page is uniform, crisp and unblemished, all of the photostated pages have the same faded areas (where the copying ink has not been as thickly applied) and the same small blemish (similar to a hair mark on a camera lense).

437. It was on these photostated pages, said the applicant, that she herself recorded the details of her claims, including details of the events that she said took place on 17 October 1997 at the offices of GIS.  She did so at home, she said, before attending the interview.

438. According to the applicant, however, when the interview took place and Ms Ho read what had been written in respect of 17 October 1997, she protested that there had been no written record made of any claim for right of abode on that date.  Ms Ho told the applicant that she could write that an oral claim had been made but could not write that a record had been made of the claim.  The applicant said she protested.  Ms Ho, however, would hear none of it and tore up the paper on which the applicant had detailed her claim.  If this happened, of course, it would have been a grossly improper act on the part of the interviewing officer.

439. According to the applicant, with the page torn up, Ms Ho then brought her a fresh Part C page and instructed her to write characters to the effect that, although the applicant had made an oral claim on 17 October 1997, no record of that claim had been made.  That, said the applicant, was why the claim recorded on the interview sheet was not accurate.  The claim as recorded, in translation, is as follows :

“In October 1997, in the company of my father, I went to Room 1307 on 13/F of the Immigration Department to surrender myself.  I also declared that my parents had arrived in Hong Kong ten odd years ago and that they were Hong Kong permanent residents.  As they were old and sickly, I hoped to settle in Hong Kong to keep my parents company and take care of them.  The officer said no in reply.  The officer went through some formalities for me and then gave me a “walking permit” and a letter telling me to report to the Immigration Department a few days later.  However, when I reported again (to the Immigration Department) I was sent to court.  I was fined 1,000 Hong Kong dollars by the court before returning to the Mainland ..

I remember that I had only made a verbal declaration at that time, so now I have no documents of proof.”

440. On the basis of the applicant’s evidence, of course, the sheet of paper on which this amended claim was written would be different from the pages on which the other claims were recorded.  This is because each sheet, according to the applicant, was written on by her at home on copied paper and those copies, as I have said earlier, were clearly, on objective analysis, made on the same photostat machine.

441. It is apparent, however, from studying the original bundle of interview forms, that the amended claim is written on the same photostated paper as the other claims.  It bears the same faded areas and the same hair mark.  That, of course, would not be possible if the original claim had been torn up and a new sheet given by Ms Ho to the applicant.  That new sheet would have been an original printed sheet or a copy made on an Immigration Department photostat machine.

442. In short, forensically it was demonstrated that the applicant’s allegations against Ms Ho were false.  There was no tearing up of the original form.  It was an additional demonstration, in my view, that little, if any, reliance could be placed on the applicant’s credibility.

443. In any event, the applicant’s own actions gave the lie to her testimony before me.  I say that because in a letter written by her to the Immigration Department less than a month after the interview, she mentioned nothing of her claim being destroyed.  To the contrary, she wrote that, owing to a headache and nerves, she had made some mistakes in her statements and wished to replace them with three fresh statements.  In that letter (detailed 24 May 2000) the applicant wrote :

“I attended an interview at your Department on 26-4-2000.  Owing to a headache and nervousness, I made some mistakes during the interview on that day.  Since I fell seriously ill after the interview, I did not write to your Department until now in the hope of making some alterations and additions to the parts of the information that I had erroneously given during the interview.  I recall that when I surrendered in 1997, I did write in the form that I wished to settle in Hong Kong so as to keep long term company of and look after my elderly and sickly parents.  I would be grateful for your careful examination.”

444. In all the circumstances, the architecture of the applicant’s case being so undermined by falsehoods, I have had little difficulty in coming to the following determinations :

(i) The applicant did not make a claim for right of abode;

(ii) the Director has no record of any claim.

Mr Chung Wai Kin (4537, a ‘group one’ applicant)

445. The applicant is a farmer and a native of Guangdong Province.  He was born in November 1951, the second of four brothers.  The applicant’s father, Mr Chung Shik Yin, came to live and work in Hong Kong in 1962 and has lived here since that time.  The applicant’s mother remained in the home village, only joining her husband in late 2002. 

446. In 1990, the applicant’s youngest brother obtained a one-way permit and settled in Hong Kong.  I am told that he subsequently married and has at all material times lived with his wife and children separately from his father.  

447. In 1995, the applicant applied for a one-way permit to come to Hong Kong.  He sought the permit, he said, so that he could care for his father who was then 72 years old and suffering from the frailties of old age.  The application was refused.

448. The applicant testified that shortly before the change of sovereignty he then applied for a two-way permit to come to Hong Kong.  When he did so, he said, he was aware of rumours to the effect that, upon the change of sovereignty, an amnesty would be granted to people like himself; that is, Mainland children of Hong Kong permanent residents, allowing them to settle in Hong Kong.  He was not therefore ignorant of the right of abode issue.

449. As it was, said the applicant, he did not receive his two-way permit until after the change of sovereignty.  It was issued to him on 19 September 1997 and he arrived in Hong Kong on 27 September.  Upon arrival, he said, he lived with his father, cooking and caring for him.

450. When he came to Hong Kong in September 1997, the applicant was a married man with three children.  His wife, he said, who was a farmer like himself, remained with the children in the home village.

451. The applicant said that his intention, once he was in Hong Kong, was to care for his father, to obtain a Hong Kong identity card and to find work so that he could support both himself and his father.  The applicant said that in 1997 when he came to Hong Kong his father was receiving social security.

452. The applicant’s two-way permit expired on 26 October 1997 but the applicant did not return to the Mainland.  As he put it, he was still taking care of his father.

453. However, on 28 January 1998, at the time of the Lunar New Year, the applicant attempted to return to the Mainland.  He was in the company of his father at the time, both of them apparently intending to return to the home village to celebrate the new year.

454. At this juncture, I record that the applicant impressed me as a plain, straightforward individual, unsophisticated and lacking in guile.  He answered questions without hesitation, rarely giving himself time to consider the best tactical response.  Unlike so many applicants, there appeared to be no attempt on his part to exaggerate his evidence.  Put shortly, I found him to be an entirely credible witness.

455. As to events on 28 January 1998, the applicant said that, while, as an overstayer, he expected to be fined, he did not expect to be prevented from leaving Hong Kong.  He readily accepted that, if he had not been stopped at Lo Wu, he would have returned to his home village with his father.  In order to come back to Hong Kong, he accepted, he would then have had to seek a further two-way permit.

456. No suggestion was made by the applicant that, at any time before 28 January 1998 he had attempted to claim right of abode or that, in travelling to Lo Wu, it had, even in part, been his intention to make a formal claim for right of abode.

457. When stopped at Lo Wu and interviewed, the applicant said that he informed the interviewing officer, Mr Law Kin Cheung, that he had overstayed in order to care for his sick father.  The record of interview is to that exact effect.  In short, the professed reason for overstaying was a compassionate one; that is, to care for an ailing parent.  Nothing was said about overstaying in order to benefit from an amnesty or in some way to claim right of abode by reason of his father’s residential status.

458. Having been prevented from leaving, both the applicant and his father returned to the father’s apartment.  A few days later, on 3 February 1998, the two of them went to the Immigration Tower, to the offices of GIS.  According to the applicant, he asked his father to accompany him as he was afraid that he would run into trouble with the immigration authorities. 

459. It was the applicant’s evidence that, when he entered the offices of GIS, he submitted his papers to the officer at the counter.  He was then given a form to complete, an ID 457.  He said that he wrote down the information known to him on the form; for example, details of his family and of his home village, and then passed the form to his father who inserted the remaining information.

460. The father was also called to give evidence.  Like his son, he was a plain-speaking, straightforward individual.  However, after a lapse of some eight years, the father admitted that he had almost no memory of what had happened on 3 February 1998.  He even had difficulty recognising what was or was not his handwriting on the ID 457.  It appears, however, that the father did write down details of his own name, his Hong Kong address and also his Hong Kong identity card number.

461. The applicant said that, when the form was completed, he handed it back to the officer at the counter.  At the time of doing so, he said that he asked the officer if he could remain in Hong Kong in order to look after his father.  The officer, he said, looked at his papers and asked to look at his father’s identity card.  Having done so, the officer said that the applicant was not eligible to remain in Hong Kong.

462. Understandably, the immigrations officers who were called to testify had no independent recollection of their dealings with the applicant on 3 February 1998.  They were therefore obliged to restrict their answers to what their normal practice would have been.

463. The counter officer on duty at the time when the applicant came to the 13^th Floor of the Immigration Tower, Mr Yeung Wai Kwong, an Immigration Assistant, said that, if an overstayer asked to remain in Hong Kong in order to take care of his parents, he would, as a matter of practice, seek all necessary supporting documents from him (birth certificates, copies of identity card and the like) together with a completed form ID 457 and would then submit the documents to a more senior officer for consideration.

464. Mr Yeung said that he only worked from time to time at the reception counter.  When he did so, while he was responsible for responding to enquiries made by visitors to the 13^th Floor, it was not his responsibility, he said, to advise whether such persons were or were not be permitting to remain in Hong Kong.  It would not have been his practice, he said, to give advice of the kind suggested by the applicant.

465. That being said, however, even fairly junior officers such as Mr Yeung who was at the reception counter and Mr Hui Wing Chung, the interviewing officer, could not have been entirely ignorant of relevant matters of practice and procedure.  It is therefore feasible, I think, that from time to time – and in entirely good faith – junior officers such as Mr Yeung, in what appeared at the time to be simple cases, may have provided answers to enquiries which amounted in substance to advice of the kind which the applicant sought.  

466. Common sense dictates that general practice is subject to day-to-day circumstances.  No doubt, with many questions asked and statements made, from time to time, junior officers would have thought it easiest simply to give a reply rather than elevate what they believed to be a simple issue into a more serious one by referring the matter to a senior officer.  It is natural enough for junior officers, in appropriate circumstances, to use their own initiative.

467. I do not say that this is, in fact, what happened on this occasion.  I go no further than saying that, in this case, it may well have happened.

468. The applicant said that he was then called into a room for an interview.  His father waited outside.  The interview, on the applicant’s evidence, was short.  The applicant said he was asked if wished to return to the Mainland and replied that, yes, he did.  He was then told that if he wished to return he would have to give reasons.  The officer, he said, wrote something on a piece of paper and asked him to copy it onto a form.  The applicant said that he copied the characters onto the form.  The form was a ‘grounds for non-removal’ form, the characters, in translation, being to the following effect :

“I overstayed in order to keep company with my family.  I now want to return to China.”

469. In respect of the ‘grounds for non-removal’ form, the evidence shows that in another interview conducted by Mr Hui exactly the same characters were written, those characters being marked by exactly the same punctuation.  But assistance of that kind, although invariably denied by individual officers, is not, in my opinion, improper if it is given with the consent of an interviewee and accords with the wishes of that interviewee.  In the present case, during cross-examination, the applicant accepted that the characters he copied into his ‘grounds for non-removal’ form accorded in fact with his wishes at the time.  The applicant went on to say that he signed the ‘no loss, no complaint’ form because at the time he had no complaint; in short, he was not being forced to act against his true wishes.

470. At or about the time he signed the ‘no loss, no complaint’ form, the applicant said that he asked the officer the following question : ‘Can I stay here to look after my father?’  The officer, he said, told him that he was not eligible to remain.

471. In summary, it was the case for the applicant that he claimed right of abode on two occasions that day at the offices of GIS.  He did so on the first occasion when he asked the officer at the reception counter if he could remain in Hong Kong in order to look after his father.  He did so on the second occasion when he put the same question to the interviewing officer. 

472. It was the Director’s case that the applicant had never asked these questions.  In my judgment, however, on the probabilities, I am satisfied that the applicant may well have asked one or both.

473. The difficulty the applicant has faced, however, is that neither of his questions, in my view, are capable of amounting to a claim for right of abode.  In my judgment, both questions, considered objectively, can be read as constituting no more than an enquiry to discover if, on compassionate grounds, it may be possible for the applicant to remain in Hong Kong.

474. During the course of submissions, I was reminded by the applicant’s counsel that I had earlier found that a question may amount to a statement.  In this regard, in my second report, in respect of applicant 4860, I had said (at para. 673) :

“While I agree that the applicant couched much of his evidence in the form of asking questions, it would, I think, if his evidence is believed, be unrealistic to hold that, when read in a common sense fashion, all that the applicant did was to make inquiries.  Questions may, depending on their context, constitute quite clearly in the ear of a listener a statement or a demand.”

475. In the present case, however, it is apparent, when all the evidence is considered, that the applicant did not make a claim, he did not utter a statement of right, he did no more (on both occasions) other than make an enquiry.

476. Equally important, it was an enquiry founded on grounds of compassion; namely, a desire to care for an ailing, aged parent.  No matter how the evidence is read I fail to see how the applicant’s words can be linked, directly or by inference, to the fact that his father was a Hong Kong permanent resident which, by that fact, gave the applicant certain rights.

477. I accept that, after a lapse of eight years, it would be harsh to hold a witness to a particular form of words.  But in the present case, at no time during the course of giving his evidence did the applicant suggest that he did anything more than ask if it would be possible to remain in Hong Kong on the compassionate basis that he needed to care for his father.  His evidence in this regard accorded with the case summary prepared for him by his first solicitors (Pam Baker & Co.), the summary reading :

“Mr Chung volunteered that he had overstayed and asked whether he could stay to take care of his father.  On considering the documents they presented, the officer said, ‘you do not qualify, so you can’t.’”  [my emphasis]

478. In his second affirmation made on 3 February 2006, the applicant said the following in respect of the incident at the reception counter :

“I produced the Lo Wu letter, my two-way permit.  I was asked by the reception counter to produce my father’s ID card, which I did.  I asked the officer whether I could stay to take care of my father.  The officer looked at the documents, and responded that I could not.”  [my emphasis]

479. In that affirmation, in respect of the interview, the applicant said the following :

“The officer then said that if I wanted to return to the Mainland, I needed to complete a form.  He then wrote down some words on a piece of paper and instructed me to copy this statement on to the Grounds for Non-removal form.  After signing this and at least one other document, I asked him whether I could stay in Hong Kong to take care of my father.  He responded in the same way as the officer at the reception counter, namely that I was ‘not qualified’…”  [my emphasis]

480. It will be seen, therefore, that the applicant was entirely consistent in how it was, he said, he asked if he could remain in Hong Kong to care for his father.  In the circumstances, regrettably, I have had to come to the factual finding that, first, no assertion of right of abode was made, on both occasions an enquiry only being made, and, second, that the enquiries were not in any event related to any assertion of a right under law to live in Hong Kong but were, on any objective analysis, founded on compassionate grounds only.

481. My determinations are therefore as follows :

(i) The applicant did not make a claim for right of abode;

(ii) the Director does not have a record of any claim.

Mr Yang Ren Zhong (4055, a ‘group one’ applicant)

482. The applicant was born in Fujian Province in August 1970.  He was one of four children in the family.

483. The applicant’s father came to live and work in Hong Kong in 1978.  The applicant’s mother was granted a one-way permit in 1987 and came to settle in Hong Kong with the youngest child of the family, a girl.  The applicant’s elder brother was granted a one-way permit several years later, in 1995.

484. At the change of sovereignty, therefore, only the applicant and one sibling, a brother, continued to live in the Mainland.

485. In 1994, the applicant obtained a two-way permit in order to visit his parents.  At that time, he was married and had two children.  Although only permitted to remain in Hong Kong for about a month, he remained here for more than a year, eventually surrendering himself to the immigration authorities.

486. According to the applicant, his principal reason for overstaying was in order to care for his mother who was in poor health.  He was the only one who could assist her, he said, as his father had to work and his sister had to go to school.

487. A few months after his return to the Mainland, the applicant said that he applied for another two-way permit to visit Hong Kong.  This was refused.  The applicant therefore came across the border as an illegal immigrant.  He did so, he said, because his mother’s health was deteriorating and he wanted to be with her.  After a month or two he was arrested and repatriated.

488. It was the applicant’s case that in early 1997 his father told him that, if he could be in Hong Kong when the change of sovereignty took place, he would be entitled to settle here.

489. The applicant said that he wanted very much to be here in order to care for his parents, especially his mother who in 1996, while apparently at work, had suffered a bad fall.

490. According to the applicant, he was advised by a travel agent in the Mainland that he may have difficulty in getting a two-way permit and that it would be easier to obtain a passport.  A passport was obtained together with a visa authorising the applicant to visit Malaysia.  Hong Kong, it seems, was intended to be a transit point.

491. The applicant readily accepted that the Malaysian visa was a device, a means by which he could enter Hong Kong.  He did not therefore continue on to Malaysia but remained here.

492. The applicant said that he returned to Hong Kong in order to care for his parents, particularly his mother, and also, hopefully, to secure the right to live here permanently. 

493. As to a claim for right of abode being made, the applicant’s case was based on one incident only.  This incident, he said, took place at the Victoria Immigration Centre on 21 July 1997.  The Centre at the time formed part of the old Victoria Prison complex.  The applicant on that date was held there in custody pending his removal to the Mainland.

494. However, before moving to the events of 21 July 1997, something needs to be said of what took place prior to that date.

495. It was the applicant’s case that, on 3 July 1997 he and his father went to the Immigration Tower.  They went apparently to the 2^nd floor where they made enquiries of a man who appeared to be an immigration officer.  The man told them that there was no process for obtaining permanent residence.  It was the applicant’s case that, fearing arrest, he and his father took the matter no further and left the building.

496. About two weeks later, on 19 July 1997, the applicant was arrested by police in the Yau Ma Tei area.  He spent that night in police custody.  As to what transpired while he was in police custody, the case summary prepared by the applicant’s first solicitors, Pam Baker & Co., says the following :

“At the time, he thought he had lost his passport.  He told police who arrested him that his parents are Hong Kong permanent residents and that he needed to stay with them in Hong Kong, in particular to care for his mother.  The police affidavit shows that the notebook statement was destroyed …”  [my emphasis]

497. It was, of course, fundamental to the applicant’s case that, although married in the Mainland with two children there, he wished to be in Hong Kong to fulfil his filial duty of caring for his parents.  If the applicant is to be believed in this, it would not have been surprising for him to detail the compassionate basis for his unlawful presence in Hong Kong.  Indeed, in a June 2000 interview with the Removal Special Project Sub-Division, a unit set up to record and consider claims made under the concession policy, the applicant, in a prepared statement, is recorded as saying :

“When I went out on 19 July 1997, the police checked my documents.  As my limitation of stay had expired, I was taken to Yau Ma Tei Police Station.  At that time, I also requested to stay in Hong Kong to take care of my parents but the police took no notice of it.  After that, I was sent to the Victoria Prison … and I was forcefully repatriated to the Mainland on 22 July 1997.”  [my emphasis]

498. But, while the notebook entry made when the applicant was arrested, may later have been destroyed (as part of standard procedure), it transpired that, when in police custody, the applicant had made a cautioned statement.  That statement was not destroyed and was produced in evidence.  It was recorded at about nine o’clock on the night of his arrest, only a matter of hours after any notebook entry would have been made. 

499. Surprisingly, nothing at all is said in this cautioned statement about the applicant’s desire to remain in Hong Kong to care for his parents.  Indeed, his parents are not even mentioned.  In the cautioned statement, the applicant said that he had come to Hong Kong for the purpose of ‘travelling’.  He had however lost his passport and did not know how to apply for a replacement.  During his stay in Hong Kong, he said, he and his ‘friends’ had gone sight-seeing.  When asked where he had stayed, the applicant replied that he had stayed in a ‘friend’s place’, not knowing the address.  All of this was patently false.  He had not, for example, lost his passport.

500. When cross-examined, the applicant had difficulty in explaining how it was that his cautioned statement contradicted what he had otherwise asserted, and what especially he had asserted in the case summary prepared for him by Pam Baker & Co.

501. Initially, the applicant said he told his solicitors what he then remembered but the whole process was rushed and he could not be clear as to how his instructions were recorded.  However, he then went on to say – in a somewhat puzzling, ambiguous way – that, at the time of giving his instructions, there were many other applicants also giving instructions and, not being sure what to write, he saw ‘how other people wrote it’ and followed their example because it appeared to be similar to his own story.  It was a strange admission, one that suggested that the details of his original claim were somehow, to some degree, influenced by what others had written in respect of their own claims rather than what, rightly or wrongly, he remembered in respect of his own claim.

502. I have observed on a number of occasions that the majority of applicant’s, in my view, exaggerated their claims.  Bearing in mind the importance to them of the outcome of their hearings and the fact that the events under examination happened so long ago, the temptation to ‘gild the lilly’ is obvious.  I have always reminded myself that exaggerated evidence may nevertheless have a foundation of truth and that, even if part of an applicant’s testimony is rejected, the balance may well, on the probabilities, be accepted as an attempt made honestly to recall what did happen.

503. The applicant for the most part gave his evidence in a slow, seemingly careful manner.  There was no bluster.  However, by the end of the hearing, I was regrettably drawn to the conclusion that he had had little regard for the truth and that he had been prepared to make almost any assertion that he felt would advance his case.  In short, he had not been guilty merely of ‘gilding the lilly’.

504. As for the balance of the applicant’s case summary prepared by Pam Baker & Co., it said the following in respect of what happened after he was transferred from Yau Ma Tei Police Station to the Victoria Immigration Centre :

“Mr Yang [the applicant] was transferred to the Victoria Immigration Centre custody on 20 July 1997 and interviewed by one of the respondent’s officers there on 21 July 1997.  Mr Yang explained to the officer that his parents were Hong Kong permanent residents, that his mother’s back had been seriously injured in 1996.  He said he wanted to stay to assist in caring for her.  Mr Yang’s father was able to locate Mr Yang’s passport and attended the Victoria Immigration Centre to provide it to the officers concerned.  The Immigration Department’s records show that they took a copy of the father’s permanent resident identity card.  Mr Yang was told to complete a ‘family background’ form giving details of his family members including his Hong Kong permanent resident parents.”

505. In his affirmation of 24 August 2005, the applicant confirmed the accuracy of this portion of his case summary by saying :

“At Victoria Immigration Centre, I was interviewed by an immigration officer.  I told the officer that my parents were permanent residents of Hong Kong.  I told him about my mother’s 1996 injury.  I said I had to stay to take care of her.  I cannot recall clearly whether the officer replied …”

506. While at the Victoria Immigration Centre, the applicant had completed a ‘grounds for non-removal’ form.  In translation, what he wrote on that form is to the following effect :

“I, Yang Ren Zhong, have overstayed in Hong Kong.

I have neither worked here nor extended the stay.

I wish to return to China as soon as possible.”

507. Again, nothing appears in writing to support the applicant’s assertion that he spoke of being in Hong Kong for the purpose of caring for his parents.

508. It was the applicant’s evidence that, when presented with the ‘grounds for non-removal’ form, he did not know what to write and sought the assistance of the interviewing officer, Mr Wu Wai Kee.  I am sure that is the case.  What is written has a standard, bureaucratic ring.  Mr Wu readily accepted that, if an interviewee was not sure how to express himself, he would show him a number of samples.  In many cases, said Mr Wu, the interviewee would copy the exact wording from a sample or else simply use the samples as a reference.  Mr Wu emphasised, however, that, if an interviewee wished to write anything not contained in the samples, he would of course be free to do so.  One of the most common explanations given for overstaying was the desire to be with and to care for parents.  If the applicant had wished to write something like that there is no reason to think that Mr Wu would have withheld his assistance.  But, as I have said, nothing concerning the parents appears on the face of the document.

509. In respect of the ‘grounds for non-removal’ form, it is to be noted that the applicant did not at any time suggest that the characters he copied, or used for guidance, did not accord with his general wishes at the time.  To the contrary, he accepted that they did accord with his general wishes.

510. In any event, the applicant’s case was not founded on anything said or written when he was interviewed at the Victoria Immigration Centre or when he was being administratively processed for repatriation.  The applicant’s case was founded instead on an asserted verbal claim for right of abode made by his father (in his presence) on 21 July 1997 when the father came to the Centre to deliver the applicant’s passport.  The record of that claim, it was said, was the photostat copy of the father’s Hong Kong identity card made at that time and placed into the applicant’s file.

511. The principal evidence as to the making of the claim was given by the father himself, Mr Yang Shih Ching.

512. The father said that on 20 July 1997 he was telephoned by his son.  His son told him that he was being held in custody as an overstayer and asked him to look for his passport.  According to the father, the applicant told him that it may be found among certain books in the family apartment and this was where it was found.

513. The next day; that is, on 21 July 1997, the father said that he took the passport to the Victoria Immigration Centre.

514. It was the father’s evidence that, upon his arrival, he dealt with immigration officers not officers of the Correctional Services Department.  There was no suggestion, for example, that, in order to see his son, who was a detainee, he went to the main gate and made a request to the Correctional Services officers to see him.  Indeed, on the father’s evidence, it appears that his primary purpose that day was to deliver his son’s passport and see if bail could be arranged for him.  It was not to visit his son. 

515. As to what took place at the Victoria Immigration Centre, the father said the following in his affirmation of 24 August 2005 :

“Upon my arrival at Immigration, I produced my son’s passport and my ID card to an officer.  The officer then led me to a room and gave these two documents to another officer.  The second officer told me to wait in the room and he then took the passport and my ID card away.  After a short while he came back with my son.  At this point I told him that I had come to bail out my son, that my wife and I were permanent residents of Hong Kong and that my son had the right to live in Hong Kong.  The reply from the officer was ‘there is no such thing’ which I took to mean that there was no policy allowing him to stay.”

516. In his testimony, the father said that it was at this time that he saw his son being removed from the office.  He said that there was no conversation between himself and his son.  The father said that, after his son had been removed, the immigration officer handed him back his identity card, explaining to him that his son would not be given bail as he would be repatriated within the next day or so.

517. When he testified, the applicant said that on the morning of 21 July 1997 he was collected from his cell and escorted to an office where he saw his father.  He was not escorted into the office but remained in the vicinity of the door.  The applicant said that his escorting officer asked him if that was his father and he replied that it was.  He said that an officer then produced his passport and asked him to identify it.

518. The applicant said that he then heard his father say to an immigration officer that, as he and his wife had Hong Kong identity cards, his son; that is, the applicant, should be entitled to stay in Hong Kong.  The applicant said that he could not hear clearly but he remembered his father saying words to that effect.  He had no recollection of anything else his father said, only this.

519. The applicant said that he was then taken back to his cell.  On the applicant’s evidence, therefore, the reason why he was taken out of his cell that morning would have been only to identify his father and identify the passport which his father had brought.

520. If the applicant and his father are believed, a claim for right of abode was quite clearly made by the father on behalf of the applicant, made indeed in the hearing of the applicant.  That being said, whether the applicant was or was not present at the time is not, in terms of the concession policy, a relevant factor.

521. On behalf of the Director, however, it was asserted that no such meeting between father and son had taken place and that the evidence of a claim for right of abode made during that a meeting was an invention.

522. In support of the Director’s case, evidence was led that persons detained at Victoria Prison – persons kept overnight in cells, as the applicant said he was – were not under the management of the Immigration Department but were instead under the management of the Correctional Services Department.  Although the Victoria Immigration Centre was part of the prison complex, it was not part of the prison itself.  That being the case, immigration officers had no independent authority to bring detainees out of the prison into the Centre or to take relatives into the prison from the Centre.  If a detainee was brought out of the prison (for example, to be interviewed), a formal request had to be submitted to the Correctional Services Department.  In short, immigration officers had no power independently to go in and out of the prison area taking detainees backwards and forwards as they wished.

523. Evidence was further led that, if a family member wished to see a detainee, he or she would be referred to the main gate of the prison so that the matter could be dealt with by officers of the Correctional Services Department.

524. As to the standard procedure that was adopted when a family member brought a detainee’s travel document or other relevant paper, Mr Wu Wai Kee, who in July 1997 had been an Assistant Immigration Officer at the Centre and had been the applicant’s case officer, testified that the following was the practice :

a. The family member would be directed to the reception of the Centre which was outside the prison.

b. The immigration officer at reception would notify the Processing Unit (which was well within the prison precincts) and the case officer would then go to the reception to interview the family member.  The public had no access to the offices of the Processing Unit itself.

c. During the interview, conducted in an office in the reception area, the case officer would collect the travel document or other paper.  In addition, he would make a photostat copy of the family member’s identity card to be kept on file and would also obtain details not only of the family relationship but of contact telephone numbers and the like in case further communication was necessary.

d. The detainee himself would not be brought to the interview, that being a process which would involve formal transfer of custody from the Correctional Services Department to the Immigration Department.

e. Only at a later stage would the detainee be asked to identify the travel document or other paper.

525. Mr Wu explained that at the time it was not the policy to prosecute holders of PRC passports.  That was why the applicant escaped prosecution. 

526. By referring to the applicant’s file, Mr Wu was able to identify a number of minutes in his handwriting.  One minute (M4) was as follows :

“Subject’s PRC passport was retrieved from his father, Mr [Chinese characters].  Subject had been called in the afternoon and he verified that it was his claimed lost travel document.”  [my emphasis]

527. A photostat copy of the passport itself was found in the file signed by the applicant.

528. In addition, Mr Wu was able to identify a photostat copy of the father’s Hong Kong identity card that was found in the file.  Two telephone numbers were written on it, one being the father’s own number, the other being the number of the applicant’s sister who lived in Hong Kong.

529. Mr Wu said that, on all the evidence, including the file minutes, it was plain that standard procedure had been followed.  He would have gone to the reception office to collect the passport and to make a photostat copy of the father’s identity card.  He would have obtained contact telephone numbers from the father.  Then at a later time – in this case in the afternoon – he would have asked the applicant to verify the passport and that would have been done by the applicant signing a file copy of the document.

530. In such circumstances, said Mr Wu, there would simply have been no reason for the applicant to be brought to the father.  If there had been such a reason, a record of it would have appeared in the file.  There was, however, no such record.

531. It was put to Mr Wu by the applicant’s counsel that the applicant may have been brought by Correctional Services officers to a gate which led from the prison into an open compound outside the Centre’s reception.  Mr Wu said he could never remember such a thing happening.  In addition, of course, neither the applicant nor his father had spoken of the incident taking place in such an area.  Both spoke of it taking place in an office.

532. In my judgment, the probabilities indicate strongly that there was no incident in an office of the kind described by the applicant and his father.  As Mr Wu testified, both the minutes in the file and the documents found there indicate that routine procedures were adopted and the applicant was not brought from his cell in the manner alleged.

533. I am supported in this finding by the fact that I found the applicant not to be a truthful witness.  As for the father, his evidence was in the main unconvincing.

534. I have also taken into account, although it has not been determinative, that the alleged incident of 21 July 1997 was not referred to in the applicant’s case summary (prepared for him by Pam Baker & Co.) nor in the interview forms prepared by the applicant for his meeting in the year 2000 with an officer of the Removal Special Project Sub-Division, a unit, as I have earlier said, set up to record and consider claims alleged to have been made under the concession policy.

535. My determinations are therefore as follows :

(i) The applicant did not make a claim for right of abode;

(ii) the Director does not have a record of any claim.

Mr Lau Man Lung (1940, a ‘group one’ applicant)

536. The applicant was born in Guangdong Province in 1970, much of his childhood being spent in Shenzhen.

537. The applicant’s father came to Hong Kong in 1951, obtaining the status of a permanent resident before the applicant was born.

538. The applicant’s mother came to live in Hong Kong in 1984, the applicant’s younger brother being the only child of the family allowed to accompany her.

539. In March 1997, three months or so before the change of sovereignty, the applicant came on a visit to Hong Kong.  During this visit he made enquiries with the immigration authorities about joining his family here.  He was told that he would have to make his application in the Mainland.  According to the applicant, when he returned home he made an application for a one-way permit.  The application, however, was refused.

540. On 23 November 1998, the applicant came to Hong Kong on another visit, his two-way permit authorising him to remain for just a week, that is, until the last day of the month.

541. The applicant said that on 29 November 1998, the day before the expiry of his permit, he went to the Chinese Visitors Office (‘the CVO’) to see if it would be possible to extend his stay in order to look after his parents.  If his evidence in this regard is believed, he must have made a mistake as to the day.  That is because the day he identified – 29 November 1998 – was a Sunday when the CVO was closed. 

542. Whatever day it was, when he sought an extension of stay at the CVO, said the applicant, he was told that he would have to come up with a better reason than simply a desire to care for his parents.  In the circumstances, he said, he did not persist but decided to overstay in order to be with his father and mother.

543. On 14 December 1998, having overstayed for about two weeks, the applicant was arrested by police.  He was referred to the Immigration Department.  After he had been interviewed, a decision was made not to prosecute him and, after his travel papers had been put in order, he was returned to the Mainland that same day.

544. It was the applicant’s case that, while being interviewed by an immigration officer, he made a verbal assertion that he was entitled to right of abode on the basis that both of his parents were permanent residents.

545. It was submitted on the applicant’s behalf that the record of the claim lay in the evidence in the Director’s files that – in accordance with the prevailing policy – the applicant was not prosecuted but was immediately repatriated.  It was submitted that the prevailing policy dictated that, if either of an overstayer’s parents were permanent residents at the date of the overstayer’s birth, the overstayer would not be prosecuted.  The applicant was dealt with in accordance with the policy because he had made it known that his parents were permanent residents and his father, of course, had been so at the date of the applicant’s birth.

546. On behalf of the Director, it was submitted that this was a straightforward case.  The applicant had been arrested on a building site.  He admitted that he was there to look for work but denied that he was actually working.  The prevailing policy at the time was that, if an overstayer had overstayed for less than a month and was willing to be repatriated, there would be no prosecution and he would be returned to the Mainland without delay.  The applicant was a beneficiary of that policy.

547. There was no question of checking the residential status of the applicant’s parents, it was said, because the applicant at no time recorded the fact that his parents were even living in Hong Kong.  Indeed, the evidence showed that he was at pains for some reason to avoid saying that his parents were Hong Kong residents and he had been staying with them.

548. In my judgment, the applicant’s case was never demonstrated.  I did not find him to be a credible witness.  To the contrary, by the time the hearing was completed, I was satisfied that the applicant had been prepared to say almost anything which he believed at the time would advance his case.

549. I am satisfied on the probabilities that this was, as it was submitted on behalf of the Director, an essentially straightforward case, one in which the applicant’s actions pointed to a single purpose; namely, to be repatriated with the minimum of adverse consequences.

550. As to the circumstances of the applicant’s arrest, the evidence revealed that he was found on one of the upper floors of a construction site in the Fanling area.  When the applicant testified, he denied that he had been on the site looking for work.  He had gone to the site, he said, hoping to borrow money off a friend.  That friend was named Chan.  The applicant could not remember his other names.  As it turned out, he said, he was still looking for his friend when he was arrested.

551. Several hours after his arrest, the applicant was transferred by the police to the Central Government Pier where he was interviewed by an officer of the Task Force Section of the Immigration Department.  That officer was Senior Immigration Assistant Tam Yiu Tak.

552. During the course of the interview, the applicant completed a number of forms.  These included a personal information form, an ID 457, and a ‘grounds for non-removal’ form.

553. It was, as I understand it, the applicant’s testimony that he filled out the ID 457, the personal particulars form, and, in conversation with the interviewing officer, then made the verbal assertion that he had right of abode.  As the applicant put it, he spoke to Mr Tam, the interviewing officer, telling him that both his father and mother were permanent residents.  He asked if he therefore had right of abode in Hong Kong.

554. It was the applicant’s case that, after he had claimed right of abode, he was then instructed to complete a ‘grounds for non-removal’ form.  In that form, he accepted that he wrote characters to the following effect —

“I, Lau Man Lung, know that I have begun to overstay in Hong Kong since 1 December 1998 for the reason that I wanted to stay in Hong Kong to find a job.  Today I appeared at the construction site of Dawning Views because I wanted to find a job.  But I failed to find any. …”

555. As I have said, it was the applicant’s testimony that, despite being found on one of the upper floors of the construction site, he had not been looking for work at all.  He had only been there looking for a friend in order to borrow money.  Why then write down what was not true?

556. The applicant said that he was simply given a sheet of paper and told to copy from it.  He accepted that he had not been threatened or pressured in any way.  He copied, he said, simply because he dared not do otherwise.  He did not even raise a query or suggest that something more accurate might be written.

557. The evidence further revealed that later that day at Lo Wu, shortly before he was repatriated, the applicant completed another form.  This was an ID 91 form, an application for an extension of stay.  It was completed to regularise his travel papers.  In that form, the applicant wrote the following as why he had overstayed :

“Overstayed because of finding job in Hong Kong.”

558. It was the applicant’s testimony that again he wrote these characters because he was instructed to do so.  Seemingly, again, no query was raised by him even though it did not, according to the applicant, reflect the true situation.

559. I accept, of course, that the applicant may have written whatever was placed in front of him if he believed it would avoid his prosecution.  But what he was instructed to write was that he was at the construction site in order to look for work, an admission that, according to him, was not only wrong but, objectively, was clearly against his interests.

560. At no time did the applicant say that he wrote this admission because he had been promised he would not be prosecuted.  Objectively, the evidence indicates that the decision whether or not to prosecute him was not made until later.

561. It was, of course, the applicant’s case that he had overstayed in Hong Kong in order to care for his aged parents and was staying with them in their apartment in Upper Ngau Tau Kok Estate in the eastern Kowloon area, a considerable distance from the construction site in Fanling.

562. When he was arrested, said the applicant, the police examined his expired two-way permit and asked him where he was living.  He told them he was living with his parents.       On that basis, the police documentation would perhaps be expected to make mention of the Ngau Tau Kok address.  But it does not.  Instead, it gives as the applicant’s address an address in Guangdong Province.

563. Later that day, when interviewed by Mr Tam, the applicant completed an ID 457 form.  That form sought details of the applicant’s parents.  In completing that section of the form, the applicant gave their names and their dates and places of birth.  The column reserved for his parents’ identity card details was left blank.  The applicant said he did not have those details on him.  That was understandable.  His arrest and transfer to the immigration authorities had not been expected.  

564. What I found more difficult to understand, however, was the fact that in the column headed ‘HK/Overseas Address’ the applicant did not give his parents Hong Kong address but instead gave what was apparently their home address in the Mainland.  When asked why he had not given their Hong Kong address – the place after all where his parents lived on a day-to-day basis and where he himself had been living with them – the applicant said he thought at the time that he should only give Mainland addresses.  That was, in my view, an entirely unconvincing answer.

565. Later that day at Lo Wu, when the applicant completed his ID 91 form, he was asked to enter particulars in a column marked ‘address in Hong Kong’.  The information required left no room for ambiguity.  Yet the applicant did not write down the Ngau Tau Kok address, instead he wrote : “Fanling”.  He did not therefore give the address of his parents with whom he had been staying but instead gave as his Hong Kong address the area of the construction site where he had been arrested earlier that day.

566. On 14 December 1998, therefore, on three official forms – a police referral form, an ID 457 and an ID 91 – not once was the address in Upper Ngau Tau Kok Estate recorded.

567. I accept, of course, that, on the basis of the applicant’s testimony, the ID 457 form was completed before he made his claim for right of abode.  But if that claim alerted Mr Tam, the interviewing officer, to the residential status of the applicant’s parents, and if that was investigated in order to determine whether the applicant should or should not be prosecuted, it was puzzling, in my view, why the ID 457 was not amended or a new one written out or some addendum or other form included in the applicant’s file.

568. When Mr Tam gave his evidence, he said that there was no reason for him to investigate the residential status of the applicant’s parents because nothing was put before him to show that the parents even lived in Hong Kong.  That, on the face of the documents put into evidence, is correct.

569. The ‘grounds for non-removal’ form was completed after the applicant said he claimed right of abode.  Yet the last two sentences of what was written by the applicant on that form were to the following effect :

“I also know that I have no right of abode in Hong Kong.  Please send me back to the Mainland as soon as possible.”

570. It was the applicant’s own case, therefore, that, having claimed right of abode, he wrote the characters I have just cited, albeit, according to him, because he was told to do so, but equally, according to him, without any question or complaint.

571. On behalf of the applicant, it was argued that the written acknowledgement that the applicant had no right of abode was evidence that the issue must at least have been raised, and raised of course by the applicant.  What was written therefore was itself a record of a claim having been made.

572. But that does not necessarily follow.  In his affirmation of 24 March 2006, Mr Tam, the interviewing officer, said that it was the general practice of the Task Force Section at that time to make a preliminary assessment of an interviewee’s immigration status.  This was to ensure that persons who had the right to remain permanently in Hong Kong were not wrongly repatriated.  When it was confirmed that an interviewee did not have right of abode, said Mr Tam, he would be informed of that conclusion and told that he would be repatriated immediately or after prosecution.  Mr Tam continued : “If the interviewee did not have a prima facie claim to right of abode according to my preliminary assessment … it was my own practice to ask the person … if he agreed with my assessment.”  Mr Tam concluded : “If the interviewee was in agreement, I would invite him to write down ‘I know I don’t have right of abode’ on the ‘grounds for non-removal’ form and to state whether he was willing to be voluntarily repatriated to the Mainland.”

573. That this procedure was a standard procedure is given some support in my first report, in particular in my determination of the application of Mr Chan Kin Piu, applicant 204 : see pars.145-161 of the report.

574. Mr Chan was arrested on a building site in November 1998, some six weeks before the applicant, and was also referred to the Task Force Section and interviewed.  The interviewing officer on that occasion was not Mr Tam but the ‘grounds for non-removal’ form contains almost a mirror of the last two sentences of the applicant’s own form, Mr Chan writing :

“I know I am without right of abode in Hong Kong.  Please will your Department arrange for my return to the Mainland as soon as possible.”

575. In the circumstances, accepting, as I do, that the sentence “I also know that I have no right of abode in Hong Kong” was written at the request of the interviewing officer as part of a standard procedure, I am satisfied that the sentence is not evidence that the applicant must have earlier claimed right of abode.

576. On behalf of the applicant, it was argued, however, that the statement in the ‘grounds for non-removal’ form was clearly copied and could not therefore be taken, as reflecting the applicant’s own thoughts and expressions of desire.  In support of this argument, it was pointed out that most of the characters were in traditional form, not the simplified form used on the Mainland.

577. It is evident, of course, that the applicant was guided in respect of a good deal of what he wrote in the ‘grounds for non-removal’ form.  Mr Tam, the interviewing officer, effectively accepted as much.  But I do not accept that the applicant was ,without any consultation, simply presented with a  form to copy believing that he had no ability to question any of it.  I am satisfied, for example, that the applicant wrote that he was only looking for work at the construction site because that is what he wished to have recorded.

578. As for the use of traditional characters, that itself was not a clear cut issue, there being some evidence that in other documents the applicant used a mix of traditional and simplified characters.

579. In summary, I am satisfied that the applicant did not make a claim for right of abode when being interviewed by Mr Tam.  I am further satisfied that no record of any claim is to be found in the files of the Immigration Department.

580. On 17 December 1998, five days after the applicant had been repatriated, a covering report was written.  The author of that report was Mr Lo Wei On.  In his report, Mr Lo effectively stated what had already been done and decided.  Under the heading ‘Conclusion and recommendation’, Mr Lo wrote :

“despite of the fact that subject was only allowed to stay in HK as a visitor up to 30-11-1998 and he failed to leave the territories since 01-12-1998, he falls into non-prosecution category in accordance with the prevailing policy.  Thus [no further action] on subject is recommended.”

581. Mr Lo testified that, having checked into the matter when he wrote his report, he understood the ‘non-prosecution category’ to be the one based on how long an overstayer had overstayed and not as whether he had a parent who was a permanent resident at the date of his birth.

582. In my view, looking to the probabilities, if the policy referred to had been the one advocated by the applicant’s counsel, it is strange that no mention was made of any sort of parental nexus, indeed of any parents.

583. My determinations are therefore as follows :

(i) The applicant did not make a claim for right of abode;

(ii) the Director does not have a record of a claim.

Part Five

Mr Chow Wing Wai (4387 : a ‘group two’ applicant)

584. The applicant was born in Shanghai in 1951, the eldest of five children.  His father came to live in Hong Kong in 1958.  His mother joined his father in 1979.

585. As for the children of the family, only the youngest child, the applicant’s sister, was permitted to settle in Hong Kong with her parents.  One of the applicant’s brothers, however, emigrated and is now living in Australia. 

586. At all material times, the applicant was a married man, having one child.  It is apparent, however, that he has over a considerable period of time sought to find a way to settle in Hong Kong. 

587. In particular, in 1996 the applicant applied to the Mainland authorities for a one-way permit.  His application was refused.  As the applicant understood it, this was because his younger sister was already settled in Hong Kong and was in a position therefore to care for his parents.

588. The applicant testified that shortly after the change of sovereignty, believing that he may now at last be eligible to settle in Hong Kong, he made a further application for a one-way permit.  On this occasion, he said, he supported his application with a letter from his mother.  In part, that letter read :

“It is stipulated by the Hong Kong Government that if a couple has no son by their side to take care of them, one of their sons on the Mainland can apply for coming to Hong Kong.”

589. The applicant said that this second application was unsuccessful too.  However, in conversation with officers of the Public Security Bureau, he was told that, if he could obtain confirmation from the Hong Kong authorities that he was eligible to settle in Hong Kong, he would no doubt be able to obtain a one-way permit.  In the result, said the applicant, he applied for a two-way permit so that he could come to Hong Kong to obtain the necessary verification of his right to settle here.

590. His two-way permit was granted and he arrived in Hong Kong on 6 November 1997, being permitted to remain for a period of nearly three months; that is, until 29 January 1998.

591. It was the applicant’s case that it was during this visit that he made his claim for right of abode.  The claim was made at the Chinese Visitors Office (“the CVO”) on 21 January 1998.

592. At that time, the CVO dealt essentially with applications by the holders of two-way permits for extensions of stay in Hong Kong.  Absent special circumstances, the standard extension that was granted was one of two days only.  That being said, the evidence indicates that from time to time officers at the CVO did have to deal with claims for right of abode or, at least, with enquiries made by Mainland visitors as to how to make such claims.  It was accepted, for example, that posters were displayed in the office advising would-be right of abode claimants that they must return to the Mainland in order to process their claims. 

593. In the present case, I believe the probabilities support the applicant’s contention that he did not visit the CVO on 21 January 1998 simply to obtain an extension of his stay, even though that may have been the end result of his visit.  He did so instead for the purpose of processing an application to settle permanently in Hong Kong.

594. It is significant, in my view, that fairly shortly after he arrived in Hong Kong the applicant applied to the Prince of Wales Hospital for a formal medical report in respect of his mother’s condition of health.  The report – dated 8 January 1998 – was obtained at a cost of $400.  It spoke of the mother’s history of gallstones and rheumatism and also of her chronic dyspepsia.  The applicant testified that his mother had suffered from ill health for a number of years.  He believed, he said, that proof of her medical condition would support his application for the right to settle in Hong Kong.

595. Leaving aside the fact that the applicant impressed me as an essentially credible witness, a matter to which I shall return, I do not see why he would have gone to the trouble of obtaining a formal medical report as to his mother’s condition well before his two-way permit was due to expire if all he was seeking was a limited extension of his stay.

596. As to why the applicant went to the CVO, he said that, with the medical report secured, he and his mother went originally to the Shatin District Office to find out where an application for the right to settle in Hong Kong should be made.  According to the applicant (and his mother) they were referred by that office to the CVO.

597. Before visiting the CVO, said the applicant, he wrote a letter in support of his application to settle in Hong Kong.  No copy of the letter was kept.  The applicant, therefore, had to rely on his memory of its contents, a memory which, after some nine years, could not be expected to be word perfect.  He recalled, however, saying that his mother was now 65 years old and, as the medical certificate evidenced, was not in good health.  He recalled writing that he wished to settle in Hong Kong; that is, to live here permanently, in order to take care of his mother.  He also recalled writing words to the effect that, if he could not be granted the right to live permanently in Hong Kong, then he asked for an extension of stay of three to six months. 

598. As to the visit itself, the applicant testified that, upon his arrival, leaving his mother to one side, he spoke to an officer at the enquiry counter.  The objective evidence indicates that the officer would have been Mr Lok Hing Tung, an Immigration Assistant.  The applicant said that he handed the officer a number of documents.  These were : his mother’s identity card, evidencing her right of permanent residence; his own two-way permit, which still had a week or more to run; the medical certificate obtained from the Prince of Wales Hospital and what he described as his letter of application.

599. According to the applicant, he informed the officer; that is, Mr Lok, that he wished to apply to live in Hong Kong and asked if he could apply for a certificate verifying his eligibility.  However, he was informed, he said, that there was no such procedure and that he would have to return to the Mainland to process an application there.

600. The applicant said that he was then given a number tag and told to wait until his name was called.  To the best of his memory, he was not at that time given any form to complete.

601. When his name was called, the applicant said that he was seen by a second officer.  On the objective evidence, this officer would have then Mr Lai Ka Sum, also an Immigration Assistant.

602. According to the applicant, this officer; that is, Mr Lai, looked at the medical report obtained from the Prince of Wales and suggested to the applicant that, as his mother appeared to be chronically ill, it would be better perhaps if the applicant simply took her bag to the Mainland.  During their conversation, said the applicant, the officer told him that he could not apply in Hong Kong for the right to settle here and that he would have to return to the Mainland to process his claim.  According to the applicant, therefore, he received the same advice from both officers; that is from Mr Lok and Mr Lai.

603. The applicant testified that he was told that the best that could be done for him was to grant him a two-day extension to his permit.  The applicant said that he was then given an ID 91 form to complete.  This form, he said, had already been partly filled out : specifically, details as to his name had been written on the form and what he took to be the numeral ‘2’ had been entered in the box in which he was to indicate the length of extension of stay that he wished to seek.  In addition, the boxes in the ID 91 form which he was obliged to complete, said the applicant, were drawn to his attention by hand-written arrows.  It was not disputed that these arrows were written by Mr Lai, the interviewing officer.

604. The applicant said that he completed the form, asking only for what he was told he could have; namely, a two-day extension.  He said that he then returned the form to the officer; that is, to Mr Lai.  At that time, he said, the officer returned all his papers to him, these being the papers which he had handed earlier to Mr Lok, the officer at the enquiry counter.  The applicant said that he accepted the return of all the papers with the exception only of his letter of application.  At that time, he said, he did not believe that the letter would be of any further use to him and he asked the officer to keep it.  The officer therefore retained possession of the letter.  The applicant was unable to say what happened to the letter thereafter. 

605. Having obtained his two-day extension and paid the relevant fee, the applicant said that he left the CVO with his mother and, when his permitted stay came to an end, he returned to Shanghai.  Within a few days of doing so, he said, essentially on the basis of what he had been told at the CVO, he returned to the local Public Security Bureau to pursue yet another application for a one-way permit.  This final application was also refused.

606. As to a claim for right of abode being made by the applicant, it was submitted on his behalf that he made an oral claim to the officer at the enquiry counter, Mr Lok.  On the basis of the evidence, however, it would seem that the assertion of a claim is to be considered not only in the light of what was said to Mr Lok but also, albeit to a lesser degree, what was said a little later to Mr Lai.  

607. As to whether an oral claim was made, I am satisfied that the probabilities support the applicant’s contention. 

608. As I have said earlier, I am satisfied that the applicant went to the CVO on 21 January 1998 in order to try and process an application to live permanently in Hong Kong.  I am satisfied that the basis of that application was the fact that he was the child of Hong Kong permanent residents and that, in respect particularly of his mother, there was a compassionate need for him to remain in Hong Kong to care for her.  Having regard to the preparations made for the visit and to the applicant’s clear purpose, I think it more likely than not that, upon arrival at the CVO, he would have done his best to articulate that purpose.

609. Importantly, I am satisfied that the applicant, in giving his testimony, attempted to tell the truth as he remembered it.  As I have indicated earlier, the applicant impressed me as an essentially credible witness.  He gave his evidence in a calm, straightforward manner.  On a number of occasions, after considering a question, he was prepared to concede that his memory of events may have been at fault.  There appeared to be little, if any, attempt to exaggerate or ‘dress’ his evidence so that it fitted neatly with what he must have come to learn were the essentials that had to be proved in order to satisfy the requirements of the concession policy.

610. I accept that, on the evidence, the applicant placed a good deal of emphasis on the need to remain in Hong Kong to care for his mother.  The applicant did not speak of making any direct assertion that, as the son of Hong Kong permanent residents, he was constitutionally entitled to right of abode.  Having regard to just how uncertain, at least in the minds of many lay persons from the Mainland, the true position was at that time, it is understandable that special emphasis may have been placed on compassionate grounds for wishing to settle in Hong Kong.  But, considering the applicant’s evidence in the round, taking into account, for example, that he gave the officer at the enquiry counter his mother’s Hong Kong identity card and spoke of some sort of certificate of eligibility, I am satisfied that his claim at the time must have been understood not merely as a claim based on compassionate grounds (which would not have brought him within the terms of the concession policy) but a claim that had its essential foundation in the fact that he was the son of permanent residents or at least one permanent resident; namely, his mother.

611. On behalf of the Director, it was emphasised that, on the applicant’s testimony, he was dealt with in a wholly unorthodox way by the officers at the CVO and, in light of that, caution had to be exercised in determining what weight, if any, to give to his evidence.

612. There was no strict manual of procedure that had to be followed at the CVO.  I accept, however, that on all the evidence, certainly in or about late 1997 and early 1998, a general form of procedure had emerged.  In his submissions, Mr Fok, on behalf of the Director, succinctly set out that procedure as follows :

(i) An applicant collected a number tag.

(ii) He waited to be called to the enquiry counter where the prevailing two-way permit policy would be explained to him.

(iii) If the applicant was willing to accept a standard two-day extension, he would be given an ID 91 form to complete.  If he wanted longer, he would also be asked to complete a family background form as well as a standard pro-forma.

(iv) The applicant would complete the required forms, submitting them for consideration.

(v) The applicant would then be called for an interview with the interviewing officer.

(vi) He would be given the result of his application, he would pay the necessary fee and then be given back his amended two-way permit.

613. The applicant’s testimony, said Mr Fok, was to the effect that he handed over his documents before he was even given a number tag and that he was not given an ID 91 form at the enquiry counter but appears only to have been given that form during the course of an interview with an interviewing officer.

614. I accept that the applicant may well have been confused as to the exact order of events at the CVO.  He was attempting to remember administrative procedures that he experienced on only one occasion and which had taken place some nine years earlier.  But, even on the evidence of the immigration officers, the process does not appear to have been entirely routine.  The interviewing officer, Mr Lai, accepted that when he received the ID 91 form, it was blank save for a date which had been filled in by Mr Lok at the enquiry counter in that part of the form reserved for official use.  It was for that reason that Mr Lai had to indicate with arrows the various parts of the document that had to be completed by the document.  But, if routine procedure had been followed, the applicant would have completed the form and handed it back before seeing the interviewing officer.  It may well be, of course, that applicants who were illiterate or confused would fail to fill in the form.  But there was no evidence to suggest that this applicant was illiterate nor anything to suggest that he would have had difficulty completing the form.

615. It is fruitless to speculate what may or may not have happened.  It is sufficient, I think, to come to the conclusion that the evidence, even allowing for the fact that the applicant may to some degree have been confused as to the sequence of events, is equivocal as to the degree to which standard procedure was in fact followed on this occasion. 

616. In the course of his testimony, the applicant pointed to what he remembered was a numeral ‘2’ written on the form to indicate that he would only be able to obtain a two-day extension.  It was put to him (upon a study of the original document) that this was just a smudge.  The applicant accepted that this may be the case.  For myself, however, absent any forensic evidence, I found it difficult to come to a firm conclusion one-way or the other.  It could well have been a smudge only but it may also have been a very small endorsement, the biro barely touching the page.  Whichever way, however, I do not believe that much hangs on it. 

617. On the balance of probabilities, therefore, as I have already said, I am satisfied that the applicant did make an oral claim for right of abode at the CVO.  The more difficult issue, however, concerns the second limb of the concession policy; namely, the demonstration that there exists a record of that claim.

618. As I understood it, it was conceded on behalf of the applicant that neither the ID 91 form nor the standard immigration documents found in the applicant’s file were capable of constituting a record.  It was submitted that I should find nevertheless that there was a record in the possession of the Director.  That record was the letter which the applicant wrote before going to the CVO, the letter which he described as his letter of application.  That was the letter which the applicant said he gave to the officer at the enquiry counter.  It was the letter which the interviewing officer later offered to return to him together with other documents but which, according to the applicant, he declined to accept on the basis that it was no longer of any use to him.

619. No such letter was found in the applicant’s CVO file.  On behalf of the Director, it was submitted that there had never been such a letter, that this was an invention of the applicant created after he had learnt that the concession policy demanded not only that there should have been a claim but that there should be a record of that claim.

620. On behalf of the Director, it was pointed out that in an interview with the Immigration Department on 17 June 2000, when the applicant explained in detail how he came to make a claim, no mention was made of a letter of application.  In translation, what was written by the applicant on that occasion was as follows :

“On 21 January 1998, I went to the [CVO] to apply for a resident permit for settling in Hong Kong to take care of my old parents.  In addition to filling in a settlement application form … I submitted hospital proof and a certificate which stated my mother’s illnesses.  An officer … accepted my form after looking at it and told me that I needed to return to the Mainland to apply for the one-way exit permit.”

621. This record of interview, it was said by Mr Fok, was to be contrasted with the later case summary prepared for the applicant by his then solicitors, Pam Baker & Co., after the CFA had confirmed the record requirement of the concession policy.  This case summary not only mentioned the letter, said Mr Fok, but placed considerable emphasis on it :

“I went … with my mother and said that my mother is sick here so I want to ‘settle’ in HK (I used that word).  I was given a form to complete.  I did this, and attached a letter to the form.  I wrote the letter before I arrived there.  In the letter I said that my parents are sick and old and I want to settle in HK and get the ‘certificate of staying’.  That was the content of the letter.”

622. This inconsistency has caused me concern.  However, at the end of the day, taking all matters into account, I do not think it is decisive.

623. As I have said, I found the applicant be an essentially credible witness.  I found nothing unusual in the fact that, having made preparations for his visit to the CVO, the applicant should write a supporting letter.  Evidence was led during the hearing that he had written a brief supporting letter for one of his applications made in Shanghai for the issue of a one-way permit. 

624. The earlier interview record, on an ordinary reading, speaks not simply of an application for an extension of stay but of an application to settle in Hong Kong. 

625. What must also be taken into account, I believe, is that, until applicants understood the exact requirements of the concession policy, they were unable, as lay persons, to know exactly what should or should not be written down in the recording of their claims.  What may have been considered unimportant in the original instance may, when the requirements to the concession policy were better understood, have become of central importance.  In each instance, therefore, the question is to be asked : is the new information an invention to accord with the requirements of the concession policy or does it simply reflect the fact that an applicant may not earlier have appreciated the importance of a particular document or event or utterance?  In the present case, I believe that the applicant, in completing his interview record, may simply not have understood the importance of mentioning his application letter, the importance of that letter only being appreciated at a later stage.

626. On behalf of the applicant, it was said that, in respect of the letter, his evidence was not incompatible with that of the interviewing officer, Mr Lai.  During the hearing, Mr Lai said that, if a standard extension of two days was granted, there was no need for any supporting documents.  Accordingly, any supporting documents would be returned.  This, of course, fits entirely with the applicant’s own evidence, evidence given before that of Mr Lai.

627. Why then, if all the documents were returned to him, would the applicant have chosen to accept them back with the exception only of the letter of application?  The answer to that, in my view, may well lie in a consideration of the documents which were accepted back.  Clearly, the mother’s original Hong Kong identity card had to be given back to the mother.  Equally, the applicant’s two-way permit had to be retained by him.  According to the applicant, the only other document which he accepted back was the medical report obtained from the Prince of Wales Hospital.  That report, it must be remembered, was a formal, typed document which had cost the applicant $400.  It was a document which could well be of future use; for example, in support of an application made back in the Mainland for the issue of a one-way permit.  The letter of application, however, was directed to the Hong Kong Immigration Department only and had no apparent value otherwise.

628. In all the circumstances, therefore, I am satisfied on the probabilities that the applicant did write a supporting letter, leaving that letter in the possession of the interviewing officer, Mr Lai.

629. Mr Lai testified that, if he had retained a document made in support of an application for an extension of stay, he would have stapled it to the interview record sheet along with other relevant papers so that it could be found in the file.  However, Mr Lai also accepted that documents that were of no possible relevance would not be kept by him.  For example, no purpose would be served in keeping a spoiled application form which had been replaced by a second form correctly filled out.  Such a form, he said, would be discarded by him. 

630. The letter, having been left in the possession of Mr Lai by the applicant, it is unlikely, I think, that Mr Lai would simply have mislaid it, the document perhaps being placed into some other file.

631. In the present case, however, a two-day extension having been granted to the applicant, his letter of application would have had no value.  If, as I have found, it is probable that the letter was left with Mr Lai, there would be no reason for Mr Lai to retain it.  

632. In my view, therefore, the probabilities support the fact that, acting entirely in good faith, and no criticism whatsoever being levelled at him, Mr Lai would have done the sensible thing at the time and simply discarded that letter of application.  That, I am satisfied, is why the letter is not to be found in the applicant’s CVO file.

633. If, as I have found, Mr Lai discarded the letter of application, the probabilities suggest that he would have done so almost immediately.  By this I mean that he would have done so before his responsibilities in respect of the file were completed.  No suggestion was made that he would have returned to the file at some later stage, disposing of it is part of some weeding out exercise.

634. The final issue, of course, is whether, on the facts as I have found them, the applicant has been able to satisfy the second requirement of the concession policy; that is, whether the Director has a record of his claim as required by the concession policy?

635. On behalf of the applicant, Ms Li submitted that, once it was found on the probabilities that the letter of application was submitted by the applicant to the Immigration Department and that the Department took possession of it, then the record requirement was satisfied.  As she expressed it, it is beyond the applicant’s ability to demonstrate what might or might not have happened to the letter.  In this regard, Ms Li relied on the principle enunciated by the CFA in its judgment dated 5 January 2006 and cited earlier in this report in respect of applicant 2448, Law Yuet King; namely —

“It is not disputed that if the original letter making the claim was in the files of the Department, it would constitute a sufficient record.  Nor is it disputed that, if there was a notation in the files that such a letter had been received, though the letter was subsequently lost or mislaid, there would be a sufficient record.  The Director argues, however, that, if a letter claiming right of abode has been lost or mislaid and no notation of its receipt has been made in the Department’s records, there is no compliance with the record requirement of the concession policy.

20.  We do not accept this argument.  The context is the determination of the existence or otherwise of a constitutional right, namely the right of abode, and it cannot be supposed that the existence of what was, at one time, a sufficient record to authenticate the right could be lost or destroyed simply because the relevant document went astray after its receipt by the Department.”

636. On this basis, it must follow I think that, if I am satisfied on the probabilities that the applicant’s letter, constituting a sufficient record, was given into the possession of the Immigration Department, then the second requirement of the concession policy is met.  It matters not that, after being received into the possession of the Department, the letter was mislaid or destroyed nor whether the loss or destruction of the letter took place shortly after it was received or at some later stage.  It must also follow, I think, that it is irrelevant that the letter was discarded because it was at the time considered to be of no relevance or value.

637. My determinations are therefore as follows :

(i) The applicant did make a claim for right of abode;

(ii) the Director has, or did have, a record of that claim.

Ms Kong Yuet Ha (1558, a ‘group two’ applicant)

638. The applicant was born in Guangdong Province in May 1979.  She is one of three children, the only girl.  When the change of sovereignty took place, she was eighteen years of age and still a student.

639. The applicant’s father came to Hong Kong in 1980, her mother being granted permission to join him in 1988.  By July 1997 both were permanent residents.  Prior to the change of sovereignty, one of the children of the family, the eldest, a boy, was granted a one-way permit and was able to settle in Hong Kong.  In the circumstances, it is understandable that the applicant’s parents would have been anxious to try and find a way for the applicant, their only daughter, to be able to come to Hong Kong to settle here too.

640. As it was, the applicant’s father, Mr Kong Kam Wah, said that, prior to the change of sovereignty, he read various articles on the right of abode issue.  At that time, however, it appeared to him to be very uncertain, he said, and so he did not discuss the matter with his daughter until after the change of sovereignty had taken place.

641. The applicant herself testified that, although she was at a boarding school in a rural area of Guangdong, in the summer months of 1996, 1997 and 1998 she was able to come to Hong Kong to spend most of her school holidays with her parents.

642. The applicant said that in the 1997 summer holidays, after the change of sovereignty, hoping to be able to secure the right to live in Hong Kong, she and her father went to the Immigration Tower in Wanchai.  The applicant had only the sketchiest memory of what took place, her father had even less memory.  The applicant remembered being told that she was not eligible.

643. It was the father’s evidence that this unsuccessful visit to the Immigration Department did not result in him losing interest in the right of abode issue.  In his affirmation of 21 October 2004, he said he remembered the Court of First Instance handing down a judgment in January 1998 declaring that it did not matter when the child of a Hong Kong permanent resident was born, whether before or after his parent, that child would still be entitled to right of abode.  He went on to qualify this by saying that, while he was aware that the Court of Appeal had delivered a judgment in May 1998 overturning the January 1998 judgment, he had also heard that the lawyers for the right of abode claimants would be taking the matter to the Court of Final Appeal.

644. In the summer of 1998, the applicant returned to Hong Kong to spend most of her holidays here.  She arrived on 12 July, being permitted to remain until 7 August.  She testified that, although she had come to be with her parents, it was also her intention to attempt a second time to claim the right to live here permanently.

645. To this end, said the applicant, on 30 July 1998, approximately a week before the expiration of her two-way permit, she went to the CVO together with her father and her elder brother.

646. The father testified that he did not go back to the Immigration Tower, which he and his daughter had visited the year before in order to enquire about right of abode, but chose instead the CVO.  This was because it was the closest Immigration Department office to his home.  In addition, he had been there previously to renew his identity card.  He was mistaken as to this second matter.  His identity card had been renewed in 1994 in Yuen Long and not Yau Ma Tei where the CVO was situated.

647. After arrival at the CVO, when they were called to the counter, the father said that he spoke to the officer on duty.  He told the officer that his daughter, the applicant, wished to apply for right of abode.  The officer, having looked at the applicant’s two-way permit, said that she was not eligible and in any event the CVO only handled applications for extensions of stay.

648. On behalf of the applicant, it was submitted that this brief conversation constituted an oral claim made by the father on the applicant’s behalf.  If the father and the applicant are believed, whether the conversation was brief or not, clearly, in my view, it did amount to such a claim.

649. Having been told that his daughter was not eligible to claim right of abode, the father said that he then asked the officer if his daughter would be eligible for an extension of stay.  He was told that, yes, she was eligible provided a reason was given.  The father said that he was then given forms to complete and was told to write a letter explaining why an extension was required.

650. The forms given to the father consisted of an application for an extension of stay; that is, an ID 91 form, and a ‘family background’ form.  The counter register for 30 July, 1998 shows that the applicant’s name was endorsed with a star, a symbol to reflect the fact that an extension of more than two days was sought : hence, the requirement that a ‘family background’ form be completed.

651. The father said that, as he did not know English, he asked his son to complete the ID 91 form.  His instruction to his son, he said, was to leave blank the box that was endorsed : “I now apply to extend my stay until …”  He gave this instruction, he said, because he was hoping to obtain an indefinite extension of stay for his daughter.

652. The father said that he personally completed the family background form and also wrote a supporting letter.  I will refer to that letter as ‘the first letter’.

653. When the forms had been completed, both the applicant and her father said that they returned to the counter.  The following documents, they said, were given to the officer : the applicant’s two-way permit, a photostat copy of the father’s Hong Kong identity card, the ID 91 form, the first letter and the family background form.  The evidence as to when this last document was handed over was a little confused.  But little turned on it.

654. The applicant herself was vague as to what happened at the counter.  The general thrust of her testimony and that of her father, however, appeared to be to the following effect.  The officer said that a date had to be inserted in the box on the ID 91 endorsed : “I now apply to extend my stay until …”  He also said that the letter in support, the first letter, was inadequate.  It did not state in specific terms the length of extension required and, in addition, the reasons given would not support an application for an extension.

655. The father testified that the documents were returned to him and he and his two children went away from the counter again.  He said that he then wrote another letter in support – I will call it ‘the second letter’ – and directed his son to put a date on the ID 91 form, that date being 29 August.  An extension of approximately three weeks was therefore sought.

656. As for the first letter, the father said that he must have given it to his daughter.  As it was of no further value, he said, he assumed she must have thrown it away.

657. It was the applicant’s evidence that her father did give her the first letter.  She said, however, that she did not throw it away.  Instead, she folded up the letter and put it into a knapsack she was carrying.  By this action, she said, although the first letter was mislaid for several years, it was eventually recovered.  That was why, she said, she was able to produce it into evidence.

658. It was the Director’s case that this first letter was not written on 30 July 1998 at the CVO but was concocted at a much later time.

659. In many ways, whether the letter was or was not genuine became the central issue in the hearing.

660. At this juncture, however, it is sufficient to record that the first letter (in translation) was to the following effect :

“My father Kong Kam Wah and my mother Lai Sui Ying are both Hong Kong permanent residents.  My brother Kong Chi Kwan also lives with my parents at Flat 1036, Block 11, Shek Lei Estate II, Kwai Chung, New Territories, Telephone:239196.  I came to Hong Kong to visit my family members on the strength of a Chinese Travel Permit.  As I have no relative in my hometown and am still young and hence need to be taken care by my parents, I request you, the Director, to grant me an approval for extension of my stay to facilitate my parents to take care of me.”

661. Although, as I have said, the genuineness of the first letter was disputed, there was no dispute that a letter was submitted that day in support of the application for an extension of stay.  That letter – the second letter – was found in the applicant’s CVO file.  It was dated 30 July 1998 and (in translation) was to the following effect :

“I, Kong Yuet Ha, holder of a Chinese Travel Permit, Hong Kong address at Flat 1036, Block 11, Shek Lei Estate II, Kwai Chung, New Territories and Telephone No.23919650, hereby apply for extension of stay till 29 August 1998 for the following reasons:

As all my family members live in Hong Kong, leaving me alone in my hometown, I have to live away from home with my seventh grandaunt.  Since (1986 corrected) 1996, I have been studying at Zhaoqing Secondary Technical School and living at the school dormitory.  During the vacation every year, I applied to come to Hong Kong to reunite with my parents.  This year, however, I have to go back on 7 August due to expiration of my travel permit, and as school has not begun and my seventh grandaunt died last year at the age of 80, I have nowhere to live if I return to my hometown in such circumstances.  On one hand it is not yet time for the new term to start at school, on the other hand I do not have a single relative in the hometown.  As a young girl with nobody to rely upon, I hereby apply to you, the Director, and ask for your sympathy to grant me an extension to 29 August so that I may go directly back to school to live in the dormitory.  I hope that you will understand and allow me to stay till 29 August 98.”

662. It was the Director’s case that this letter – the second letter – was the only letter presented by the applicant and/or her father that day and, as the letter itself makes clear, was no more than a request for an extension of stay, albeit a lengthy extension.

663. The father testified that the amended ID 91 form and the second letter were submitted to the officer at the counter.  After a time, they were informed that a two-day extension only could be granted.  This was not accepted.  The father and his two children then left the CVO.

664. In the course of submissions, counsel for the applicant emphasised that, while much attention may have been focused on the genuineness of the first letter, it was important to appreciate that this was not a ‘letter claim’ case.  It was noted that, when he came to write the first letter, the father was aware of the advice just given to him that his daughter was not eligible to claim right of abode and accordingly the letter was essentially an application for an extension of stay.  But counsel for the applicant did not discount the importance of the first letter.  It was sought instead to put the letter into context.  As counsel said : ‘the first letter is not the sole basis of the claim’.

665. In my judgment, quite clearly, the genuineness of the first letter was an issue of central importance.

666. I accept that the first letter is equivocal in many ways.  But it commences with an assertion that both of the applicant’s parents are permanent residents and, in addition, on the basis that the applicant needs to be looked after by her parents, seeks an indefinite extension of stay.  That could be read, especially in light of the fact that the father’s Hong Kong identity card was handed over with the letter, as being in effect a form of claim for right of abode.  It would not have been the first suggested claim couched in language that seeks sympathy for separated parents and children.

667. On behalf of the applicant, it was said that the first letter did not add anything to the applicant’s claim.  That may be so but potentially, if its provenance was not disputed, it was capable of adding a good deal.

668. It should also be said that, if the first letter is rejected as fabrication, it not only undermines the credibility of the applicant and her father but takes away a supporting document of some strength.

669. A copy of the father’s identity card was given to the officers at the CVO and retained but, as counsel for Director explained, the copy of the father’s identity card and the family background form were obtained as a matter of course because of the unusual length of the requested extension.  In the circumstances, it was submitted, there was no basis for finding that these documents were either given or obtained in any way to evidence an oral claim for right of abode.

670. At this time I should make it clear that, on a consideration of all the evidence, while the issues were far from straightforward, I was at the end of the day drawn to the following firm conclusions.  First, that no oral claim for right of abode was made by the father; that the purpose of the visit to the CVO was, as the second letter revealed, simply to obtain an extension of stay, albeit a lengthy one.  Second, that the first letter was not a genuine document written on 30 July 1998 in the circumstances attested to by the applicant and her father.

671. In explaining my reasons, I should start by saying that I did not find either the applicant or her father to be witnesses worthy of belief.

672. The applicant herself, although cheerful, was vague and inconsistent.  Vagueness, of course, may be an entirely understandable result of the fading of memory.  To that extent, it may even support the credibility of a witness.  But vagueness may also be a method to avoid having to explain an invented story in too much detail.  The applicant’s vagueness, in my judgment, fell into the latter category.

673. In her affirmation of 21 October 2004, the applicant said that, in preparation for the visit to the CVO, photostat copies of both her parents’ identity cards were made.  If a claim for right of abode was going to be made, that would be sensible and expected.  However, in her evidence-in-chief the applicant said that only her father’s identity card was copied.  In cross-examination, however, she vacillated between the two versions until finally she said she could not be sure.

674. If, in fact, as the applicant said in her affirmation, her mother’s identity card had been copied too she would then have had to explain why it was not given to the officers at the CVO as a copy of her father’s identity card had been.

675. In my judgment, however, it was the applicant’s testimony in respect of the first letter – how it was mislaid and later recovered – that demonstrated that much of what she said could simply not be accepted as a genuine attempt to tell the truth.

676. In respect of that letter and its history, it was the father’s evidence that, thinking it was no longer of any relevance, he believed he must simply have discarded it.  The truth however was that he had handed it to his daughter.

677. The applicant herself said that she did not throw the letter away.  She folded it up and put it into her knapsack.  A week or so later, she said, she was forced to return to the Mainland.  When, sometime later, she returned to her school, she said that she stored a number of items in a suitcase which she kept there.  Included among those items was the first letter.

678. At a later stage, said the applicant, she was able to return to Hong Kong, living here for a period of some three years while she awaited the final determination of the right of abode litigation.  At the end of that time, she said, she returned to the Mainland.  This would have been in 2002.  By then, however, she had finished her schooling.  It was necessary, of course, to return to the school to collect her belongings stored in her suitcase.  When she did so, she said, and examined the contents, she discovered the letter.

679. The applicant said that, when the discovery was made, she was by then fairly well informed as to matters concerning right of abode.  She was, she said, a client of Pam Baker & Co. and had received a detailed document of legal advice.  For that reason, she said, she was aware of the importance of her discovery.

680. The story of how the letter was recovered, while out of the ordinary, could not be rejected out of hand as ‘too convenient’ or ‘two implausible’.  From time to time evidence does come to light in such unusual ways.  It was rather the applicant’s testimony concerning the matter which, in my view, was unworthy of being given any credit, giving the lie to her account.

681. It is understandable that the applicant was not able to remember how it was exactly that her father came to give her the letter, how it came to be placed, neatly folded, in her knapsack and how from there it found its way into her school suitcase.  The discovery of the letter, however, would have been a different matter especially as the applicant accepted that she was aware of the importance of her discovery.  As to the discovery, however, the applicant found herself in all sorts of difficulties.

682. When originally questioned, the applicant could not remember whether the knapsack itself had been found in the suitcase, the letter still inside it, or whether it was simply the letter which had been found in the suitcase.  After more questions, she came to the view that she had used the knapsack from time to time and accordingly it must just have been the letter which was discovered in the suitcase.  The next day, however, she said again that she could not remember the exact circumstances of the discovery.  When the questioning on the issue of the discovery became a little too pointed, the applicant, a bright young woman, often laughing, looked flushed.  It was patently clear that she was doing her best to avoid giving a straight answer to a straight question. 

683. As I have said, it was the applicant’s evidence that, when the letter was discovered, she appreciated its significance.  Later, however, when asked if she had immediately informed her father of her discovery, she said that she had not done so.  When asked why she had not done so, she said that she had not appreciated the significance of the letter at the time of its discovery.  This was, of course, a contradiction of her earlier testimony.  In the end result, as I understood the applicant’s evidence, she said she did not tell her father of the discovery of the letter until the end of 2002.  That, in my view, was unconvincing.

684. It was the father’s testimony that he himself did not appreciate the importance of the letter when he was first told of its discovery by his daughter.  This I also found difficult to accept.  I say so because it is apparent that in 2002, several months at least before he learnt of the discovery of the letter, the father gave a summary of his daughter’s case to Pam Baker & Co.  That summary was recorded in the first person, as if it came from the mouth of the applicant, but in fact it came from the father.  In part, it read :

“In 1998 I came to HK to visit my parents with a 2-way permit in July 1998.  Father and I went to the Yau Ma Tei China Visitors Section and applied for RoA and recognizance on 30 July 1998.  At that time I spoke to an officer and the officer said to me, I am not qualified to apply for right of abode.  He said we will not deal with this, only extensions.

In these circumstances I submitted the application for extension.  At that time the statement that I made was like this.  My father [his name] and mother [her name] are HK PRs.  I have no relatives in the village.  I am very young.  I request that the DoI can grant me extension [so that my parents can take care of me].

When I submitted the application to the officer, the officer returned it to me and said the content is not appropriate for an application to extend.  You need to submit another application.  The officer also told me how to write it, as follows: (1) Give a reason for application to extend.  (2) How long you are applying for an extension.  This first letter I wrote was returned to me.  (And I threw it away)”  [my emphasis]

685. In terms of that summary, the second letter – rightly or wrongly – was of central importance.  Its contents were explained, including (importantly) the assertion that the applicant’s parents were Hong Kong permanent residents.  In addition, the assertion was made that the letter had been thrown away.  The second letter (and its fate) was not therefore of mere peripheral value in the case summary.  It was, as I have said, of central importance.  It defies common sense to think that the father, who had dictated the case summary, would not therefore have understood, at least in a general sense, the importance of the letter when it was discovered. 

686. As for the case summary, in her affirmation of 21 October 2004, the applicant said the following :

“There is one very important change to the Summary, which was not read to me before it was submitted by Pam Baker & Co to the Respondent or the Court in 2002.  The third paragraph on page 2 states that I threw away the first letter I wrote for my extension at the CVO.

My current solicitors have advised me that the detailed instructions upon which the Summary was prepared were provided by my father in mid 2002.  I was at the time in the Mainland.  My father assumed that the first letter  had been thrown away, however unbeknown to him I had kept it, with the other documents relating to my case.”  [my emphasis]

687. During the course of his testimony, the father accepted that, while at the CVO, he had personally written three documents : the first and second letters and the family background form.  The family background form and the second letter appeared quite plainly to have been written with the same biro pen.  However, the first letter – the letter that the Director said was a later invention – was written with a different pen.  On a direct comparison, the contrast was plain, the colour of the ink in the one instance being far darker than in the other.  The father himself, when asked to examine the documents, accepted that clearly a different pen had been used.

688. The father attempted to explain this difference by saying that his daughter had been carrying several pens that day and must have given him different pens with which to write.  I found it difficult to accept that – over a span of some eight years – the father was able to remember this as being the reason for the different inks.  It was clearly, in my view, the first explanation that came to his mind.  I have to say that by the time the father had completed his testimony, he looked quite defeated.

689. In respect of the father’s testimony, by way of a footnote, I record that I found it puzzling that he made no mention of making a second claim for right of abode when his daughter was interviewed.  In his affirmation of 21 October 2004, the father said the following in this regard :

“After the submission of these documents we were interviewed.  My daughter has exhibited the interview record and the Family Background sheet which we were requested by the interviewing officer to complete.  During the interview I reiterated that my daughter should be able to claim right of abode.  The officer explained to us that the policy of the Department was that Two-way Permit holders had to return at the expiration of their limit of stay …”  [my emphasis]

690. I accept, of course, that in the stress of giving testimony important matters can be forgotten.  But it did not advance the father’s credibility.

691. As to the genuineness of the first letter, counsel for the applicant pointed to a number of reasons why, on the probabilities, it should be accepted as a true document.  The contents, it was said, did not suggest fabrication, it was far too equivocal.  The history of how it came to be lost and then discovered, it was said, while unusual was nevertheless coherent.  It was also said that it was ‘inconceivable’ that the applicant and her father would have been sufficiently sophisticated to invent this first letter but naive enough not to have prepared a plausible explanation for the different inks.

692. These were all matters which I took into account.  But not all attempts to manufacture evidence are clever.  Something as obvious as the failure to match inks or explain the failure to match inks may happen and may in later cross-examination be the means by which the truth is laid bare.

693. In the result, while I can sympathise with the desperation shown by people like the applicant and her father, my determinations are as follows :

(i) Neither the applicant, nor her father on her behalf, made a claim for right of abode;

(ii) the Director has no record of any claim.

Mr Chan Kin Kong (208, a ‘group two’ applicant)

694. The applicant was born in Guangdong Province in February 1978.  He is one of two sons.  The applicant’s father came to Hong Kong in 1978, making it his permanent home.  The applicant’s mother was granted a one-way permit in 1993 and came to Hong Kong that year.  She was not permitted, however, to bring either of her two sons with her.

695. The applicant and his brother subsequently lodged their own applications for one-way permits but apparently were never notified of the result of their applications.

696. It is apparent, however, that in the months leading up to the change of sovereignty the applicant learnt of rumours that, when the change took place, he may be able to claim – through his parents – the right to live in Hong Kong.  To this end, in March 1997, the applicant obtained a notarial certificate confirming his relationship with his parents.

697. It was the applicant’s evidence that he could not come to Hong Kong immediately after the transfer of sovereignty.  He had to earn a living as a driver.  In the result, he came to Hong Kong on 16 May 1998, his two-way permit allowing him to remain until 12 June 1998.  By then, of course, as far as the right of abode issue was concerned, there had been a number of publicised developments.

698. The applicant testified that one of his principal reasons for coming to Hong Kong in May 1998 was to seek permission to remain here permanently.  The applicant struck me as being an unsophisticated man.  He made it plain that he had little, if any, real knowledge of the right of abode complexities.  On the evidence, however, it is plain that he must have appreciated that his entitlement to make a claim would have come through one or both of his parents.  Why else, for example, would he originally have obtained the notarial certificate?

699. As to the residential status of the applicant’s parents in 1998, it is important to note that, while his father at that time was a permanent resident, his mother was not.  Having come to Hong Kong in 1993, the mother only obtained right of permanent residence in 2000.  Any claim for right of abode therefore – whether the applicant was aware of that fact or not – was going to have to be based solely on his father’s status.

700. It was the applicant’s case that his claim for right of abode was made at the CVO in Yau Ma Tei on 9 June 1998.

701. On that day, said the applicant – just four days before the expiration of his two-way permit – he and his mother went first to the Immigration Tower in Wanchai and from there were referred to the offices of the CVO.  The applicant said that his father was unable to accompany them as he had to go to work.

702. Before considering the substance of the applicant’s case, it must be mentioned that in late 2004 the applicant was diagnosed to be suffering from paranoid psychosis.  He was prescribed a regime of medication but apparently did not always follow that regime.  He said that, despite his condition, he was able to recall the events of 1998 and he did testify.  In considering his testimony, however, I could not ignore the fact of his condition which, to a greater or lesser degree, would have compounded the entirely understandable difficulties the applicant must have encountered in attempting to recall events that were some eight years old.

703. The applicant’s testimony was supported by that of his mother.  It was, as I have said, the applicant’s case that his mother had been with him on 9 June 1998.  While I found the applicant to be slow, vague and sometimes confused, the mother allowed herself very little room for equivocation.  She was a determined witness, often aggressive and argumentative.  In my judgment, however, her testimony was designed more to ensure her son’s success than to accurately recall events.

704. The mother testified that her sole purpose on 9 June 1998 was to ensure that her son was able to claim the right to live permanently in Hong Kong.  With that purpose in mind, she said, on the night of 8 June she had written a letter addressed to the Immigration Department.  She wrote the letter on red paper, she said, drafting it to suggest that her son was the author.  Although she did not keep a copy of the letter, the mother testified that the letter was to the following effect : “My mother has had a stomach ailment for many years and I wish to stay permanently in Hong Kong to look after her and my father.”

705. When the mother was questioned, she was drawn to accept that she knew at the time that her son’s right to live permanently in Hong Kong was based not on any right of residence that she possessed but on the fact that her husband was a permanent resident.  On 9 June itself, she said, her purpose was to secure her son’s right to live in Hong Kong through her husband.  But as it was, her husband had to be at work and could not accompany them.

706. That her husband had to be at work was understandable.  What was not so understandable was why, appreciating the importance of her husband’s residential status, the mother did not make any mention of it in the letter she said she wrote.  It is also puzzling that she did not think of taking a copy of her husband’s identity card with her the next day.  Indeed, on the evidence it is apparent that not even the details of her husband’s identity card number were available to her or her son that day.

707. The mother may not have been an educated woman but she was no dullard.  The manner in which she anticipated questions during cross-examination, often deflecting their thrust to her own advantage, revealed that she remained mentally agile.  If, as she said, her firm intent on 9 June 1998 was to secure her son’s right to remain in Hong Kong, I find it difficult to accept that she would not in any way have turned her mind to the need to offer some evidence of her husband’s residential status.

708. As to the events of 9 June 1998, the applicant and his mother testified that they went first to the Immigration Tower in Wanchai, specifically to the second floor where the enquiry counter was situated.  It was their joint testimony that they spoke to an officer, saying that they wished to make an application for the applicant to live permanently in Hong Kong.  They were informed that it was not possible to make such an application in Hong Kong and that the applicant would have to return to the Mainland to process his claim there.

709. According to the applicant and his mother, they were told, however, that they could seek an extension of stay if they went to the CVO.  In the result, they did not press the matter further at the Immigration Tower and made their way instead to the CVO.

710. On behalf of the applicant, it was submitted that I must assess what the applicant and his mother would have understood by the advice they received in respect of the CVO.  It was submitted that in all likelihood the applicant and his mother would simply have thought that the CVO was another office in which (perhaps with more success) they could press their claim for the applicant to remain permanently in Hong Kong.  Counsel said that to an average listener, and to the applicant and his mother particularly, the term ‘extension’ would not have connoted the idea of a short-term, temporary result.  Counsel emphasised the fact that applications for extension of stay are used for applications by temporary residents, workers, students and the like.

711. In the present case, however, as I understood his evidence, the applicant admitted in cross-examination that at the time he understood that an extension of stay would be for a limited term only.

712. The mother, to my understanding, was equally clear in her mind.  It was her testimony that, when she was given this information at the enquiry counter, she answered the officer with a defiant sense of purpose by saying that she would not go to the CVO simply to obtain an extension but would go there in order to make a claim.

713. The probabilities, therefore, indicate that both the applicant and his mother made their way to the CVO in the knowledge that they had been referred there for purposes of obtaining a limited, as opposed to a permanent, extension of the applicant’s two-way permit.

714. That, of course, does not mean that they could not have intended to make a claim for right of abode at the CVO.  In the course of his testimony, when dealing with this issue, the applicant said that he was “not satisfied in my heart” about what he had been told at the Immigration Tower and “wanted to ask again”.

715. The applicant’s evidence as to the sequence of events at the CVO itself was, understandably after such a long lapse of time, somewhat confused.  As I understood his evidence, it was essentially to the following effect.  Upon arrival at the CVO, the applicant, with his mother at his shoulder, went to the enquiry counter.  At the enquiry counter, he told the officer that he wished to apply to stay in Hong Kong in order to take care of his parents and that he wanted a Hong Kong identity card.

716. As to events at the CVO, in the applicant’s case summary prepared by his first solicitors, Pam Baker & Co., the following is said :

“I went to the Hong Kong Immigration Department, Wanchai to claim right of abode.  I was told to go to the Yau Ma Tei Immigration Department, which I did and made a claim stating my father is a permanent resident who came to Hong Kong in 1978.  I took with me copies of my parents Hong Kong identity cards and my two-way permit.  I showed these to the immigration officer at Yau Ma Tei.  I cannot recall whether the immigration officer handed them back to me after looking at them.  He said here is not the place to make a claim, we only deal with extensions.  He gave me two days.”

717. In that summary the applicant is recorded as telling the officer at the counter that his father was a permanent resident who had come to Hong Kong in 1978.  In his testimony, however, the applicant asserted nothing of this kind.  In his testimony he spoke only of saying that he wished to stay in Hong Kong, obtaining an ID card, in order to care for his parents.

718. In his affirmation of 26 September 2005, the applicant spoke of his visit in the following terms :

“Upon arrival at the CVO, we obtained a docket, waited for our number to be called, and when it was, approached the counter and spoke to the officer there.  I told the officer that my mother had stomach ache and that I wanted to stay in Hong Kong to take care of my parents.  I told the officer that my parents were very old.  I said that I should be granted a Hong Kong ID card.  The officer replied that I could not have right of abode and the most I could get was a 2-day extension of stay.  He handed to me an application form.”

719. No mention is made in this affirmation of any assertion that the father had come to Hong Kong in 1978 and was a permanent resident.

720. On the applicant’s evidence, therefore, while he remembered telling the officer at the counter that he wanted an ID card, he did not say why he believed he should be given an ID card.  His claim, on its face, was one founded on compassionate grounds not on any asserted right flowing to him through his father.

721. When the mother testified, she recalled saying to the officer at the counter words to the following effect : “Brother, I have stomach ache for many years.  Can my son stay to care for me?”  This also is essentially a plea based on compassionate grounds rather than any asserted right vested in her son.

722. In my judgment, therefore, even if I accept that there was a conversation at the counter broadly in line with what the applicant and his mother testified was said, it is debatable whether it amounted to a claim for right of abode.

723. On the applicant’s evidence, of course, the officer at the counter clearly understood that a claim was being made.  He told the applicant that it was not possible to make a claim and that he could only get an extension of two days.  The issue, of course, is what sort of claim did the officer understand was being made : was one based on an asserted right or one based on compassionate grounds?  On the evidence, in my view, there was no basis for the officer to understand that a claim based on any asserted right was being made.

724. It was the applicant’s evidence that, having been told that he could only apply for a two day extension, he was given an ID 91 form which he completed.  In the box marked “Give full reason for your request”, the applicant wrote the following :

“Look after my father.  Stay for two days.”

725. As for the particulars of his parents, a study of the ID 91 form shows that, in the part of the form intended for particulars of spouses and children, the applicant first wrote down the name of his father, giving a birth date and then the characters for ‘father, mother, son’.  However, he then crossed out this entry.  He did so, he said, because his father was not there with him.  Beneath the deleted entry, in the same part of the form, the applicant then gave his mother’s name, her Hong Kong identity card number and her date of birth.  He then put down the characters for ‘mother, son’. 

726. In the result, neither the name of the father nor his identity card number appear on the form.  In short, nothing appears on the face of the document to show that at that time the applicant had a parent who was a Hong Kong permanent resident.  The mother herself, as I have emphasised, was not then a permanent resident.

727. I confess to having had the greatest difficulty in determining on the probabilities whether a conversation of the kind testified to by the applicant and his mother took place at the counter of the CVO.  While I am satisfied that the testimony of both the applicant and his mother was in many ways exaggerated, and on occasions entirely untruthful, I have nevertheless been drawn to the conclusion that a conversation essentially of the kind they described may have taken place.

728. But what was the nature of that conversation?  I have taken into account that a narrow or rigid approach should not be adopted, no set litany of words is required.  But that being said, some indication, direct or implied, that a claim was based on a parent’s residential status must surely be present.  Otherwise all expressions of desire to remain in Hong Kong on a permanent basis; for example, those based solely on a natural desire to remain with loved ones, would fall into the category of claims made under the concession policy.  That, to my understanding, has never been the interpretation of the concession policy by the CFA.

729. In the circumstances, I am not satisfied that the conversation can be classified as a claim for right of abode.

730. As for the completed ID 91 form, I fail to see how, on its face, that can be described as the record of a claim.  Nothing appears on the form to suggest that the father, the only parent through whom the applicant could make a claim, had a right of permanent residence.  Indeed, even his name is deleted from the form.

731. On behalf of the applicant, it was submitted that the ID 91 form sufficed as a record even in the absence of anything in it indicating that the father was a permanent resident.  The reasoning why this was so was extended and somewhat complex.  It is sufficient for me to say that I do not accept the reasoning.  I am satisfied its logic is flawed.

732. That, however, does not end the matter.  I say that because it was the applicant’s evidence that, when he submitted the completed ID 91 form, he also submitted the letter his mother had written on red paper the previous night.  That letter, it was argued, constituted a sufficient record.

733. Suffice to say that a search of the applicant’s CVO file has failed to locate the letter in that file.

734. The first issue to be determined is whether the letter itself constituted a record of a claim.  As I have said earlier, according to the mother, the purported author of the letter, she wrote characters to the following effect : “My mother has had a stomach ailment for many years and I wish to stay in Hong Kong to look after her and my father.”  In my judgment, if the letter is considered standing on its own, it does not constitute a claim for right of abode.  It cannot be read as anything more than a plea to be allowed to live in Hong Kong in order to care for immediate family members.  As such, it is a claim based on compassionate grounds only and not a claim under the concession policy.  Equally, in my judgment, taken as a document supporting the conversation at the counter of the CVO, the letter does not transform that conversation into what – in substance – must be recognised to be a claim for right of abode.

735. In summary, even if I accept that the letter was submitted at the CVO, I do not see that it advances the applicant’s case.

736. That being said, however, I must record that I have the gravest doubts that a letter was submitted.

737. When the applicant was interviewed in March 2000 by the Removal Special Project Sub-Division, a unit, as I have said earlier in this report, set up to record and consider claims made under the concession policy, no mention was made of any supporting letter.  Yet surely, if there had been a letter, it would have been a matter of some importance.  The mother testified that she, in fact, wrote the interview claim for her son.  She said she just forgot to mention the letter.  I did not find that to be a convincing explanation.  The mother was able to write out the interview form in her own time at home.  As it was, in translation, she wrote only the following :

“On that very day, I went to Yau Ma Tei Immigration Office to make a verbal claim to my right of abode in Hong Kong, but was again refused by a staff member, who said that theirs was not a place to handle claims but to handle extension.  Later, he only allowed me to get two days of extension.  When the extension expired, I returned to the Mainland.”  [my emphasis]

738. Later – after the CFA had upheld the record requirement of the concession policy – the case summary prepared for the applicant by Pam Baker & Co. does make mention of a letter.  The summary, however, speaks of the letter being written by the applicant and not his mother :

“Mr Chan instructs he also wrote a letter and submitted it with the form, in which he said he needed to stay in HK to take care of his parents.  Apparently not on the Immigration Department’s file.”

739. In his affirmation of 26 September 2005, the applicant still asserted that the letter had been written by him :

“The Summary exhibited hereto refers to a letter I wrote.  To the best of my recollection this letter stated that my mother suffered from stomach pains and that I wanted to stay in Hong Kong permanently to take care of her …”

740. As I understand it, it was only when he came to testify that, for the first time, the applicant said that his mother had written the letter and not him.

741. I have, of course, taken into account the applicant’s condition which may have contributed to his confusion.  But even so, in respect of such an important document, it is a troubling inconsistency.

742. Of course, the question may be put : ‘Well, why would they bother to invent such an equivocal document?’  But that suggests that, from the first mention of the contents of the letter, the applicant and his mother understood not only the need for a record but also what information a claim and a record must contain.

743. In all the circumstances, my determinations are as follows :

(i)          Neither the applicant, nor his mother on his behalf, made a claim for right of abode;

(ii)         the director has no record of any claim.

Madam Chan Shui Chun (4432, a ‘group two’ applicant)

744. The applicant was born in Fujian province in 1957, the eldest of ten children.  Her father came to Hong Kong in 1984, her mother following in 1993.  Accordingly, when the change of sovereignty took place, only the father enjoyed right of abode.

745. The applicant was raised in the Mainland.  She married there, three children being born of her marriage. 

746. Some considerable time before the change of sovereignty, it appears that the applicant had applied for a one-way permit to settle in Hong Kong.  Her application, however, had been refused.

747. The applicant’s father, Mr Chan Nang Ming, testified that, at or about the time of the change of sovereignty, he heard reports to the effect that, with the change, the children of Hong Kong permanent residents were now entitled to settle in Hong Kong.  Armed with that information, he said that he contacted three of his daughters in the Mainland, urging them to come to Hong Kong.  One of those three was the applicant.

748. As to why he had approached three of his daughters, the father said that at the time he was well into his sixties and neither he nor his wife were in good health.  Although several of their sons were living in Hong Kong, they hoped that a daughter would be able to acquire the right to live here in order to look after them in their old age.

749. The father testified that over the period of the 1998 Lunar New Year, he and his wife travelled to the Mainland to assist the applicant in obtaining a permit to come to Hong Kong.  Records of the Immigration Department, however, reveal that neither the father nor the mother travelled to the Mainland at that time.

750. For reasons to which I shall refer, the extent to which the evidence of the father could be relied upon as truthful evidence was one of the fundamental issues in this application.  That being the case, the error in his testimony as to his return to the Mainland over the 1998 Lunar New Year holiday was a matter of relevance.  Taken on its own, however, it was not a matter, in my view, to which much weight could be given.  Importantly, it was accepted that the applicant’s parents had travelled to the Mainland on a number of other occasions.  Equally importantly, it must be appreciated that the father – when he recorded his evidence in an affirmation dated 25 September 2004 – was looking back over a period of six years or more.  It was understandable, therefore, that there would be errors of memory as to the exact timing and sequence of events.

751. As it was, the applicant herself came to Hong Kong in the second half of 1998.  She apparently encountered some bureaucratic difficulties in obtaining a two-way permit but eventually arrived on 25 August, being permitted to remain until 22 September of that year.  As to the essential purpose of that visit, both the applicant and her father, when they testified, left no room for doubt.  The purpose was to claim right of abode; that is, to bring about a permanent family reunion.

752. But if that was the essential purpose of the visit, in my view it is – in the circumstances of this case – puzzling that no approach was made to the immigration authorities until 22 September 1998, the very last day on which the applicant was permitted to remain in Hong Kong.

753. The applicant’s father explained this eleventh-hour action by saying that until that time there had been no restriction on his daughter’s movements in Hong Kong and therefore (presumably) no urgency in processing her application.  Considered in context, I did not consider that to be a convincing explanation.  While the applicant herself was an unsophisticated person, illiterate and a stranger to the ways of Hong Kong, her father at the time had been living and working here for well over 10 years and must have appreciated that leaving a matter of such profound importance to the very last day of his daughter’s visit could well bring about difficulties.

754. It is apparent that on 22 September 1998, the day the applicant was due to return to the Mainland, she had fallen so ill that she was simply not in a good enough physical state to make the journey.  Not only had the applicant sprained her ankle but she was suffering from a gastric condition that was so severe that the very next day she was admitted into hospital and put on a drip.  On behalf of the Director, it was submitted that the applicant’s medical condition on 22 September 1998 made it imperative that her father seek an extension of stay on her behalf and that on all the evidence it was apparent that the father’s single purpose for visiting the CVO on that day was to obtain an extension.  Equally, it was submitted that, when the father returned to the CVO two days later, on 24 September 1998, when his daughter was still ill, his single purpose then was to obtain a further extension.  All the contemporary documentary evidence, it was submitted, indicated that the two visits had been made only because of the applicant’s illness and for the sole purpose of allowing her to remain in Hong Kong until she was fit to travel.

755. On behalf of the applicant, however, it was submitted that during both attendances at the CVO the father made statements to the staff which, when fairly interpreted, amounted to claims made on behalf of the applicant within the terms of the concession policy.  The record of those claims, it was said, was to be found in the copies of the father’s identity card filed with the CVO and the recording of his identity card details on the face of documents filed at the same time.

756. In her affirmation of 25 September 2004, the applicant summarised her entitlement to benefit under the concession policy by saying that her claim was founded on —

“… statements made during my attendance at the Chinese Visitors Office of Immigration Department on 22^nd and 24^th September 1998.  My father, who came with me, is making a separate affirmation as to the events on those two days.”

757. In his affirmation made on the same day, the applicant’s father confirmed that his daughter had gone with him to the Chinese Visitors Office on both 22 and 24 September 1998.

758. During the hearing, however, it was accepted that on 24 September 1998 the applicant had not accompanied her father to the CVO.  On that day she remained in hospital.  To that extent, both she and her father had been mistaken in their affirmations.

759. More than that, it was a matter of contention during the hearing whether the applicant had even accompanied her father to the CVO on his first visit; that is, on 22 September 1998.

760. For example, the ID 91 form completed by the father on 22 September 1998 and signed by him bears the annotation ‘W/A’, a piece of Immigration Department shorthand, meaning ‘without attendance’, an indication that the applicant herself was not present but was being represented.

761. In addition, counsel for the Director pointed to a concession made by the applicant’s counsel before the CFA on 29 January 2004 that the applicant had been too sick to attend the CVO on 22 September 1998 and her father had gone in her place.

762. While the father was adamant that his daughter had been with him on the first occasion, the daughter herself – who confessed to having only the vaguest memory of events – was far less certain. 

763. However, even if the applicant did go to the CVO with her father on 22 September 1998, it was effectively conceded that she would not have gone up to the counter or participated in what was said and done.  In an early case summary, the applicant had admitted to being very sick that day, vomiting to the point that she could hardly walk.  To that must be added the fact that she was illiterate and spoke no Cantonese.

764. I would add that the applicant did not impress me as the most vital of persons.  Much of her evidence was confused and dull.  In short, her testimony provided little, if any, assistance in determining whether her father had made claims on her behalf.

765. As for the father, he accepted that his own memory was fragile.  As he put it : “I am an elderly person so my brain does not quite function.”

766. Weakness of memory, however, is one thing, the invention of memory is another.  Regrettably, in my view, the father was guilty of the latter.  During the course of the father’s testimony, I gained the impression that much of what he said was not based on any genuine attempt to remember what had taken place but was founded rather on what he now wished had taken place.  On occasions, when it was shown that he had not acted in accordance with his professed purpose, he castigated himself, blaming his age and lack of education for somehow failing his daughter.  I confess to a degree of sympathy for the father.  He was clearly desperate somehow to secure his daughter’s right to remain in Hong Kong.  But, in my judgment, his protestations of past incompetence did not hide the fact that his evidence was, certainly in its crucial aspects, an invention.

767. As to what occurred on the first visit to the CVO on 22 September 1998, as I best understood the father’s somewhat confused testimony, it appeared to be to the following effect.

768. He went with his daughter to the CVO, he said, for two reasons; first, to obtain an extension of stay for her and, second, to explore a way in which to secure right of abode for her.

769. With his daughter staying to one side, he said that he went up to the counter.  It appeared to be his evidence that at this early stage he showed the officer his identity card as well as his daughter’s two-way permit, and that a photostat copy of his identity card was made.  He said that he told the officer his daughter was sick and that she needed an extension of stay.  He said he was then given an ID 91 form to complete.  After he had completed the form, he was told that an extension of two days would be granted.  He accepted this, he said, because at least it was a start.  He said he paid the fee for the extension.  Thereafter, he said, he returned to the officer at the counter and told him that he had ‘an urgent request’.  He informed the officer that his daughter had right of abode in Hong Kong and asked that permission be granted for family reunion so that his daughter could remain permanently in Hong Kong.  According to the father, the officer replied to the effect that there was ‘no way’ that the CVO could assist him to process any such claim.

770. On that basis, it appeared that the father only raised the issue of his daughter’s right to live in Hong Kong after he had completed the necessary administrative steps in securing an extension.  However, as his evidence developed, at least as I understood it, he appeared to suggest that he sought the right of his daughter to enjoy ‘family reunion’ when he first went up to the counter.

771. As I understood it, it was the father’s evidence that, when he completed the ID 91 form, he had two matters in mind; first, to seek an extension and, second, to seek his daughter’s right to settle in Hong Kong.

772. The ID 91 form contains the father’s identity card number, only the letter ‘K’ missing.  The father said he did not know how to write this letter.  It was the father’s testimony that he put down the details of his identity card in order to ‘insist’ that his daughter be given her right to live in Hong Kong.

773. When he completed the ID 91 form, the father wrote as the reason for seeking an extension : “Because of sickness [in the waist?] and inability to walk”.  The short interview record generated on such occasions said simply : “Sick”.  Nothing appears on the face of the form related to any claim to settle in Hong Kong.

774. But if the father was expressing an insistence that his daughter had the right to live in Hong Kong, why was nothing written on the face of the ID 91 form or on a separate piece of paper?  The father appeared to suggest – at least as I understood it – that he was somewhat confused and that there was nobody there to help him.  He said that he really did not understand the process and thought only of putting down the big things.  But the big things, of course, would have included his daughter’s right to settle in Hong Kong.

775. It is this first ID 91 form which bears the annotation ‘W/A’ to record the fact that, at least as the immigration officers understood it, the applicant was not present and was represented by her father.

776. But what of the fact that the father did give details of his identity card number on the ID 91 form and, in addition, that the counter staff saw fit to make and retain a photostat copy of that card?

777. It was the Director’s case that, if an applicant did not appear in person, then a record of the identity of his or her representative would be obtained.  The annotation of ‘W/A’ on the ID 91 form makes it plain that the applicant herself was not believed to be present at the time and hence the need for proof of the father’s identity.

778. It was further the Director’s case that, as the father had said that his daughter was sick, he was given a blank ID 91 form and a family background form to fill in should he wish to return to the CVO to make a further application for an extension of stay, perhaps more than the standard two days.

779. The evidence showed that this procedure was adopted in respect of the father.  He completed the family background sheet on 23 September 1998, the day before returning, and it appears completed at least part of the second ID 91 form at about the same time.  Correcting fluid was used, that fluid being kept at his home.

780. As to the second visit to the CVO on 24 September 1998, the father said that he handed in a medical letter plus the completed ID 91 form and family background forms.  He was informed, he said, that his daughter would only be given a further six day extension.

781. The father said that he was aggrieved at this and told the officer that, as a child of a Hong Kong permanent resident, his daughter was entitled to enjoy ‘family reunion’ and to be issued with a Hong Kong identity card.

782. As I then understood it, it was the father’s testimony that he was informed that, if he wished to make an application for a longer extension and/or his daughter’s right to live in Hong Kong, he could do so in writing.  He said that it was made clear to him, however, that the staff would not be able to assist him and that he would have to draft any written claim himself.

783. The father testified that, in respect of his daughter’s claim for right of abode, he was told that, although the CVO was not able to ‘implement’ any application, there was no objection to him making that application.  He therefore wrote out an application on a separate sheet of paper, signing it and dating it.  That he wrote out a statement was not disputed.  The document was produced into evidence.  In English, it read :

“Dear Director of Immigration,

My daughter, Chan Shui Chun has come to Hong Kong to visit her relatives.  Her parents are in Hong Kong at the address of No.8, Chun Heung Yuen, On Yuk Road, Nine Miles, Castle Peak Road, Tsuen Wan and telephone no. 24115517.  We request and apply for extension to 10 October 1998 because her foot has been seriously wounded.”

784. As can be seen, that statement, however, does no more than seek a longer extension of stay based on the applicant’s ill health.  Nothing is said, directly or indirectly, of any right of reunion or right to settle in Hong Kong.

785. When questioned on this omission, the father castigated himself for having lost the opportunity to record his daughter’s claim.  If he had done so, he said, there would have been no need for this hearing.  He attempted to explain his failure by saying that, while he had wished to record the claim, there must have been ‘a ghost’ which ‘covered’ his eyes and prevented him from doing so.  He also blamed the fact – so he said – that he was only semi-literate.  Although he had wished to record his daughter’s claim, he said, he did not know how to write the necessary Chinese characters.

786. I did not accept that the father’s inadequate literacy skills – if they were so – would have prevented him from recording a claim.  Apart from the fact that part of the form at least was completed before coming to the CVO, I do not accept that he would not have been able to seek and obtain some help from other people in the CVO to write at least one or two pertinent phrases.

787. The ID 91 form completed by the father on that second visit contains no reference to any desire to enjoy family reunion in Hong Kong.  In the box in which the reason for an extension is recorded, the Chinese characters say only ‘not feeling well’.  Those characters, it appears, may have been written on behalf of the father rather by himself.

788. I would add that the father’s testimony was not helped by the fact that, when the summary of the applicant’s case was first given to Pam Baker & Co., far from being left to his own devices, it was recorded that the father was told what to write.  In this regard, the summary was as follows :

“Father returned to ID Yau Ma Tei on 24/9/98 and again requested to the officer that his daughter be allowed to remain in HK to get identity card.  He explained the family did not want her to leave.  The officer refused to allow her to remain however they were given a one week extension until 30/9/98.  The officer told Mr Chan what to write in his letter in support of his application.”  [my emphasis]

789. In summary, I was satisfied on the probabilities that, for the reasons given, I could place no reliance on the testimony of either the applicant or her father.

790. In my view, the probabilities clearly indicated that on 22 and 24 September 1998 the father had done no more than seek extensions of stay because of his daughter’s ill health.  The evidence that, on both occasions, attempts were also made to claim right of abode were, in my judgment, subsequent inventions.

791. As for the particulars of the father’s residential status found in the CVO file, I agree with counsel for the Director that these were for the purpose only of identifying the father as a representative of the applicant and were not at the time related to any claim for right of abode.

792. Accordingly, my determinations are as follows :

(i)          Neither the applicant, nor her father on her behalf, made a claim for right of abode;

(ii)         the Director has no record of any claim.

Mr Chuang Shu Lau and Madam Ng Kwan Hung (923 and 2641, both ‘group two’ applicants)

793. The applicants are husband and wife.  They married in the Mainland in 1993.  They came to Hong Kong together in late October 1997, being permitted to remain for approximately one month.  It was their assertion that during this period, at all times acting together, they claimed right of abode.  Their applications were therefore heard together.

794. Mr Chuang (‘the husband’) was born in Fujian Province in June 1966, one of six children.  His father came to Hong Kong in 1978.  His mother, however, died in 1983 while still resident in the Mainland. 

795. It appears that in or about 1979, before her death, the mother had sought permission from the Mainland authorities for the applicant to accompany her in settling in Hong Kong.  However, as two of the applicants’ siblings had already being given permission to settle here, that application was refused.

796. Madam Ng (‘the wife’) was also born in Fujian Province, being some four years younger than her husband.  Her father too came to Hong Kong in 1978, her mother joining him in 1990.  When the mother came to Hong Kong, she was permitted to bring two of the children of the family with her.  The wife, however, was not one of the chosen two.

797. When the change of sovereignty took place, therefore, both the husband and the wife, who by then had been married to each other for some four years, had close family connections in Hong Kong. 

798. It was the husband’s testimony that in the months leading up to the change of sovereignty he heard rumours that, if the children of Hong Kong permanent residents came to Hong Kong after the change, they would be entitled to right of abode.  On the strength of these rumours, said the husband, in or about May 1997, he and his wife applied for two-way permits to visit Hong Kong.  They were unable to obtain these permits before the change of sovereignty.  The permits were only granted to them after the change.  Accordingly, they arrived in Hong Kong on 28 October 1997 with their three-year-old son.  The family was permitted to remain until 24 November of that year.

799. According to both the husband and the wife, the principle reason for the visit to Hong Kong was to enable them to claim right of abode.

800. In their testimony, the husband and wife said that a couple of days after their arrival, they went with their son to the Immigration Tower in order to seek the right to live here permanently.  They said that the three of them went to the information office on the 2^nd floor of the building.  

801. The husband said that he spoke to an officer at the information office, asking him where and how, as the children of permanent residents, they could apply to settle permanently in Hong Kong.  Although the evidence on this issue became somewhat confused, according to the husband the officer informed him that it was not possible to make any such application here but if they wished to stay longer in Hong Kong they should go to the Chinese Visitors Office – the CVO – two days before their permits expired and make application there.

802. It was his understanding of these words, said the husband, that, although he and his family could not make an application to settle in Hong Kong at the Immigration Tower, they could do so if they went to the CVO.  The wife testified that her understanding was to the same effect.

803. As to why – if that was their true understanding – they did not go immediately to the CVO to process their applications for permanent residence, the husband explained that he had been told that they should only go to the CVO two days before the expiry of their two-way permits.  Their attendance at the CVO was therefore in accordance with this instruction.

804. On behalf of the applicants it was submitted that, if there was a misunderstanding, it was, in all the circumstances, one that was perfectly possible.  The husband and wife were new to Hong Kong.  Cantonese was not their home tongue.

805. I accept, of course, that such misunderstandings can and do arise.  But in the present case I have real doubts that there was any such genuine misunderstanding, certainly by the time the husband and wife arrived at the CVO on the morning of 22 November 1997 when, they say, they claimed right of abode.

806. In coming to this conclusion, I have taken into account that before going to the CVO on 22 November 1997, the husband and wife said that they returned to the information office in the Immigration Tower.  At the office they made essentially the same enquiry and left under essentially the same misunderstanding; namely, that, if they went to the CVO, they could make an application for right of abode.

807. In my judgment, although neither the husband nor the wife were sophisticated or urbane, both were intelligent, thinking people.  During cross-examination, they quickly caught the drift of questions, fashioning answers in anticipation of what they knew the concluding point would be.  There was nothing dull about them.

808. One misunderstanding I could accept but, in the context of this case, I find it difficult to accept two.  Both the husband and wife knew the importance of their applications.  That would have led naturally enough to a desire – as intelligent people – to ensure they understood what they were told.  More than that, the husband and wife went back to the information office because they were told by their relatives that the CVO was not the right office to which to make application.  On their own evidence, therefore, the very basis for their return visit was to clarify matters.  Albeit the classification sought was not related to the ability to claim right of abode but rather where it should be claimed.  However, the latter would in this case include the former.

809. Any suggestion that the officers at the information counter would simply have given them the wrong advice on two separate occasions must be discounted.  At that time the standard advice to be given had been reduced to writing.  That advice has been cited in earlier reports but it bears repeating :

“Mainland residents coming to Hong Kong on strength of Two Way Permit for visiting relatives or sightseeing must leave Hong Kong before the expiry of their limit of stay.  According to the Certificate of Entitlement Scheme, Mainland residents entitled to the right of abode in Hong Kong under Article 24(2)(3) of the Basic Law should first apply for a One Way Permit from the Public Security Bureau in the Mainland.  On completion of the preliminary assessment, the Public Security Bureau will pass the relevant information to the Hong Kong Immigration Department for verification and issue of ‘Certificate of Entitlement’ in those qualified cases.  The Public Security Bureau will affix the ‘Certificate of Entitlement’ onto the One Way Permit on issuing the permit to the applicants to facilitate their entry into Hong Kong for settlement.”

810. In my view, the husband’s evidence that he accepted without query that they must wait until two days before the expiration of their two-way permits before going to the CVO to apply for right of abode was unconvincing.  Why wait until two days before they must all return to the Mainland?  Surely, an anxious, intelligent man would have made some sort of enquiry on that issue.

811. Looking at the evidence as a whole, I think it is highly unlikely that the husband and wife misunderstood the advice they received at the information office. 

812. As to the visit made to the CVO on the morning of 22 November 1997, the husband said that he had been advised by clansmen that the presence of family members may be of considerable assistance in processing a claim for right of abode.  For that reason, he said, his family was accompanied by his father, his wife’s parents and one of his sisters-in-law.

813. The standard procedure adopted at the CVO was that all applicants had first to collect a number tag and then wait for their number to be called.  The log book kept at the counter revealed that the husband and wife went up to the counter at around 10.03 that morning.

814. According to the husband, he and his wife told the officer that they wished to apply to live permanently in Hong Kong, both having a parent who was a permanent resident.  It was the husband’s testimony that the officer made no comment, at least no comment that could now be remembered.  The officer, he said, simply handed over three ID 91 forms (applications for extension of stay) and three family background forms.

815. If the husband and wife had, in fact, made it plain to the officer that they were seeking right of abode, I find it unlikely that the officer would simply have handed over the ID 91 and family background forms without some form of questioning or advice.  Officers at the counter knew that claims for right of abode could not be made at the CVO.  There were signs on the wall proclaiming that Mainland residents who wished to settle in Hong Kong had to apply to the Mainland authorities for one-way permits.  In addition, the evidence revealed that it was the standard duty of the officer at the counter to explain the two-way permit policy as far as seeking extensions of stay were concerned.

816. It was nevertheless the husband’s evidence that, when he left the counter in order to fill out the forms, he still believed that he was at the correct office to claim right of abode.  Nobody in authority, to his understanding, had told him otherwise.

817. The husband said that he did not understand the true nature of the forms that he had been given to him but assumed they had to be completed in order to formally seek right of abode.  He and his wife therefore completed the forms to this effect, there being one set for the husband, one for the wife and one for the son.

818. The husband said that, in completing his own ID 91 form, he wrote that his father was a permanent Hong Kong resident and he; that is, the husband himself, wished to stay permanently in Hong Kong.  He wrote to the same effect on his wife’s ID 91 form.

819. In addition, said the applicant, he thought it would assist if he wrote one letter on his own behalf and one on behalf of his wife seeking right of abode.  The two letters, he said, were addressed to the Director of Immigration.  Both were signed and dated.  When asked what each letter contained, the husband said that they repeated, almost to the word, what had been written on the face of the two ID 91 forms.  They contained no extra information.

820. In respect of his young son’s ID 91 form, said the husband, he remembered writing to the following effect : “To follow my parents to stay permanently in Hong Kong.”

821. When the forms were completed, said the husband, they were submitted to the counter officer.  The forms, he said, were accompanied by necessary supporting documents such as copies of his and his wife’s birth certificates and the identity cards of his father and his wife’s parents.  The copies had been made prior to the visit to the CVO, said the wife.

822. In summary, therefore, it was the evidence of the husband and the wife that the completed forms and copy documents constituted a full and unambiguous claim for right of abode, a right based on the residential status of the husband’s father and the wife’s parents. 

823. The husband said that after all the papers had been submitted, and after a period of waiting, he and his wife were called back to the counter.  Only then were they told by an officer that they could not apply for right of abode at the CVO.  They were told that the only application they could make was one for an extension of stay.  They were further told that, if they wished to apply for an extension of stay, they would have to state why they sought an extension.  The officer made it plain, said the husband, that the reasons already given by them; namely, that they wanted to apply to live permanently in Hong Kong, would not be sufficient.

824. There was a conversation with the officer, said the husband, in which he asked what could be given as a reason for seeking an extension of stay.  The officer agreed that illness would constitute a reason.

825. In the circumstances, said the husband, he was given three fresh sets of forms to complete.  Although he had no proof of anybody’s illness, he said, he wrote on his form that his father was not well.  On his wife’s form it was suggested that she was not well.  On the son’s form it was said that his grandfather was not well.

826. The husband said that he applied for an extension of about a month.  This was because the officer had told him it was possible to do so but only subject to a more senior officer’s approval.

827. As for the original three sets of forms and their accompanying documents, the husband said that he did not know what became of them.  They were left in the possession of the counter officer.  They were not handed back.  The only documents that were handed back were the original two-way permits.

828. Having submitted the second set of forms, said the husband, they had to wait again.  When they were called back to the counter, he said, he and his wife were told that they had been given a two-day extension only.  They were told, however, that if they wanted longer they should come back in another two days.

829. It was asserted that a return visit to the CVO was, in fact, made on 24 November, two days later.  The husband said he made a further claim for right of abode on that occasion too but did not fill out any forms or submit any documents.  It was common cause therefore that there was no record of this visit or what was said during it.

830. Returning to the first visit, that of 22 November, the husband said that he paid the necessary fees for the two-day extensions and then he, his family and their relatives departed.  The whole process on that morning, said the husband, had taken “two odd hours”.  Indeed, in the case summary prepared for the husband and wife in or about mid-2002 by Pam Baker & Co. mention was made of the process taking at least that long.

831. At it was, however, the objective evidence indicated that the husband received his receipt for his extension fee from the CVO shroff at just 10.26 a.m., less than half an hour after his name had been entered in the CVO log book at 10.03 a.m.  The wife and the son’s receipts, on the evidence, were (for some reason) issued later at 10.40 a.m.  Records of these times were available because the cashier machine in the shroff’s office was governed by a computerised system that made a record of the time each receipt was issued.

832. The husband spoke of making two applications that morning, the first application including two letters, albeit both of them fairly brief.  He spoke of waiting on two occasions for the results of those applications.  Yet, on the evidence (which I accept as being essentially accurate) the processing of both of those applications would have been completed in less than half an hour, something like quarter of the time that he had estimated the process had taken.

833. But what of the critically important first set of documents?  Those documents, as described, manifestly constituted a claim for right of abode by the husband and the wife.  According to the husband, those documents were left in the possession of the officer at the counter.  On his evidence, it could reasonably be assumed therefore that they could be found in the CVO file.  But they were not found there.  The only documents found in the file were the second set of forms, the forms applying for extensions of stay.

834. During the course of the hearing, Mr Lai Ka Sum, one of the immigration officers who dealt with the husband and wife on 22 November 1997, said that if an application form was badly spoilt or in some material way was incorrect so that it was necessary to fill out a fresh form, there would be no purpose in retaining the original spoilt or incorrect form and it might simply be shredded.  Mr Lai doubted, however, that copies of birth certificates and the like would be shredded.  These, he said, would be handed back.

835. The effect of Mr Lai’s evidence was that, if it was accepted that the husband and wife had initially submitted applications for right of abode by way of the first set of documents and these had been rejected, fresh forms being given out, then the first set itself, although not necessarily all the supporting documents, may well have been shredded.

836. That raised the issue of whether, having been briefly in the possession of the immigration officers, although as redundant papers, the first set of documents nevertheless was capable of constituting a record in terms of the concession policy.

837. I did not, however, find it necessary to resolve this issue.  I did not find it necessary because I was satisfied on all the evidence that the first set of documents never existed.  They were an invention on the part of the husband and the wife.

838. In my judgment, that first set of documents constituted, on the evidence of the husband and the wife, such a full, purposive and unambiguous claim for right of abode, indeed the only such application in 1997, that it could not later have been simply overlooked.

839. Yet in a letter to the Director of Immigration dated 21 December 1999, written just over two years later, nothing was mentioned of this first set of documents.  In so far as relevant, the application’s letter was instead to the following effect :

“Two days before the expiry of the limit of stay granted, I went to the third floor of Immigration Department in Wan Chai to make a claim that I had the right of abode in Hong Kong and requested for making the application for the right of abode and for an extension of stay.  However, my request was denied.  Staff of the Immigration Department told me to make enquiries at the Immigration Office in Yau Ma Tei.  Therefore, I hurried to the office of the Immigration Department in Yau Ma Tei and stated to staff there that my father was old, and also stated the related information and circumstances.  I requested them to let me stay in Hong Kong to take care of my father.  However, my request was refused.  Staff there stated clearly that two days would be allowed only in the case of sickness or under special circumstances.  Therefore, I just gave a ground for claim casually and paid the fee of 135 dollars and an extension of two days was granted.”

840. The husband’s letter makes it plain that, at the time he wrote it, he understood the need to demonstrate that he had made a claim for right of abode.  To illustrate, towards the end of the letter he wrote :

“According to Article 24(3) of the Basic Law and the judgment made by the Court of Final Appeal on 29 January 1999, I have the right of abode.  I came to Hong Kong before 29 January 1999 and have made a claim.  I am one of the 3 700 people who have the right of abode in Hong Kong.”  [my emphasis]

841. Why then was no mention made of a separate and distinct claim made by the husband and his wife, the record of which, as far as the husband knew, was no doubt still in the records of the CVO?  The probabilities, as I have said, suggest only one answer.

842. The following year, in April 2000, the husband was interviewed by the Removal Special Project Sub-Division to enable him specifically to detail the claims for right of abode that he had made.  In Part C of the papers completed by him, the husband was asked to describe how he had declared he had right of abode.  In respect of 22 November 1997, he wrote :

“Two days before the expiry of the limit of stay granted, I went to the Immigration Department in Wan Chai and requested to settle in Hong Kong permanently, but my request was refused.  Staff of the Immigration Department told me to visit their Yau Ma Tei immigration office.  So I hurried to the office of the Immigration Department in Yau Ma Tei and told the staff there the circumstances related to my old and sick father, and also requested long-term settlement in Hong Kong in order to take care of my father.  The staff there said that only under special circumstances would the request be acceded to.  Finally I gave a reason for making my claim in writing, and my stay was then extended for two days only.”  [my emphasis]

843. Both the husband’s letter of 21 December 1999 and his interview statement state that he sought to remain in Hong Kong to care for his “old and sick” father.  In giving evidence, however, in respect of his preparation of the first set of documents, the husband made no mention of basing his claim, even in part, on the physical health of his father.  The first set of documents, he said, made a simple claim based on his rights as the Mainland-born child of a Hong Kong permanent resident.

844. More than that, when he gave his evidence, the husband said that it was effectively the counter officer who suggested that illness could be used as a ground for seeking an extension.  The inference was that it was not a ground upon which he had intended to rely at all.  Indeed, he said he had no proof with him of any illness.

845. The wife was also interviewed in the year 2000 by the Removal Special Project Sub-Division.  In respect of events on 22 November 1997, she wrote the following :

“Two days before my limit of stay expired, I went to the Immigration Department in Wan Chai to request to stay in Hong Kong permanently for settlement.  However, the officer working there rejected my request and told me to go to the Immigration Department office in Yau Ma Tei.  So, I hurried to the Immigration Department in Yau Ma Tei and requested to stay in Hong Kong permanently for settlement from the officer working there so as to reunite with and take care of my parents.  The officer working there stated that my case would be considered only under special circumstances.  At last, I was granted a two-day extension only after I put down a reason.”

846. It is pertinent also to note that in this early letter and the statements neither the husband nor the wife mentioned that, in order to add weight to their claims for right of abode, they had gone to the CVO accompanied by a number of their relatives.

847. What must be remembered is that both the husband and wife were given time to consider and then write down the details of their claims before going to the interviews with the Removal Special Project Sub-Division.  For both of them, therefore, these were considered descriptions. 

848. When the wife was asked why she had not mentioned the submission of the first set of documents in her interview with the Removal Special Project Sub-Division, she said she did not mention it because she presumed that the Immigration Department already had all the documents on file and would therefore have been aware of them.  It was an answer which showed a quick mind but it was not an answer that I accepted as a truthful one.

849. The first time that the first set of documents was referred to, together with the assertion that a large family group went to the CVO, was in the case summary prepared by Pam Baker & Co. in or about mid-2002.  The summary read :

“Two days before the expiration of my stay, my wife and I went to the Immigration Department at Wanchai to apply for long-term stay in Hong Kong but was rejected.  The immigration officer asked us to go to Yau Ma Tei Immigration Department.

In fact, I and my family went in a large group to Yau Ma Tei Immigration Department to apply for extension for my wife and I.  My wife went, our children, my wife’s parents and her brother.  On my side of the family there was my father and elder brother’s wife.

We were each given a form to complete requesting an extension.  We wrote as the reason: ‘want long term stay’.  Both our parents are HK residents.  My husband also wrote a letter attached to the form setting out our reasons.  We also provided copies of our parents’ identity cards, our two-way permits, copies of birth certificates, marriage certificate of my parents (but not my husband’s because his mother has died and they do not have one available).  We submitted our forms and documents together and the immigration officer took them away and gave them to another officer.  After about 2 hours the immigration officer came out and said that we cannot write our application as we had or we will not get an extension.  He told my husband to write that his father is not in good health and that I should write that I am feeling unwell.  Then we will be able to get a 2 day extension and that’s all.  The original forms we submitted with supporting documents were not returned to us.  We wrote on the new forms the reasons given by the immigration officer.”

850. However, as counsel for the Director pointed out, the summary was prepared several months after the record requirement of the concession policy had been upheld by a judgment of the CFA.

851. The evidence of the husband and wife as to what took place at the CVO on 22 November 1997 was supported by the testimony of Madam Hui San San, the husband’s sister-in-law.  She said that she was one of the relatives who accompanied them to the CVO that day.

852. Madam Hui’s affirmation was made in March of this year, some eight and a half years after the events of which she spoke.  Madam Hui asserted that, prior to becoming a witness, she had not spoken to the husband and the wife about her recollection of events.  As she put it, the husband must have just tried his luck.  Despite the long lapse of time, Madam Hui was nevertheless able, she said, to remember a good deal about the preparation and submission of the first set of documents including the two letters that were filed in support.  Despite Madam Hui’s denials, her testimony, in my view, had quite patently been very much the product of discussions with the husband and/or the wife.  I could give it no credit at all.

853. Regrettably, by the conclusion of the hearing it was obvious to me that the case put forward by the husband and wife (and their witness) was, in its most material elements, a manufactured one.

854. In all the circumstances, therefore, my determinations are as follows :

(i) Neither the husband nor the wife made a claim for right of abode;

(ii) the Director has no record of any claim.

Conclusion

855. My determinations may therefore be stated again (in summary) as follows :

Part One

1. Madam Li Lu Ye, also known as Li Luk Yip (2233) :

“(i) The applicant did not make any claim for right of abode, either in 1997 or 1998;

(ii) the Director has no record of any claim.”

2. Madam Ngan Pui Yuk (2785) :

“(i) The applicant did not make any claim for right of abode;

(ii) the Director has no record of any claim.”

Part Two

3. Madam Law Yuet King (2448) :

“(i)  The applicant, while she was in Hong Kong, and through her father, did make a claim for right of abode;

(ii)   the Director does have a record of that claim.”

4. Madam O Ngan Mui (2789) :

“(i) The applicant did not make a claim for right of abode;

(ii) the Director does not have a record of a claim.”

Part Three

5. Ms Tsui Siu Fung (3525) :

“(i) The applicant did not make any claim for right of abode;

(ii) no claim was made to the Immigration Department, and

(iii) the Director has no record of any claim.”

Part Four

6. Madam Lui King Fong (2471) :

“(i) The applicant did make a claim for right of abode;

(ii) the Director does have a record of that claim.”

7. Mr Chong Wing Suen (1003) :

“(i) The applicant did make a claim for right of abode;

(ii) the Director does have a record of that claim.”

8. Madam Lee Yuan Ling (4703) :

“(i)   The applicant did make a claim for right of abode, the claim being made on her behalf by her father;

(ii)   the Director does have a record of the claim.”

9.       Mr Lau Chun Chung (1884) :

“(i)   The applicant did make a claim for right of abode;

(ii)   the Director does have a record of the claim.”

10. Madam Kwok Chung Lam (1590) :

(ii)   the Director has no record of any claim.”

11. Mr Chung Wai Kin (4537) :

“(i)   The applicant did not make a claim for right of abode;

(ii)   the Director does not have a record of any claim.”

12. Mr Yang Ren Zhong (4055) :

“(i) The applicant did not make a claim for right of abode;

(ii) the Director does not have a record of any claim.”

13. Mr Lau Man Lung (1940) :

“(i) The applicant did not make a claim for right of abode;

(ii)   the Director does not have a record of a claim.”

Part Five

14. Mr Chow Wing Wai (4387) :

“(i) The applicant did make a claim for right of abode;

(ii) the Director has, or did have, a record of that claim.”

15. Ms Kong Yuet Ha (1558) :

“(i) Neither the applicant, nor her father on her behalf, made a claim for right of abode;

(ii) the Director has no record of any claim.”

16. Mr Chan Kin Kong (208) :

“(i) Neither the applicant, nor his mother on his behalf, made a claim for right of abode;

(ii) the director has no record of any claim.”

17. Madam Chan Shui Chun (4432) :

“(i) Neither the applicant, nor her father on her behalf, made a claim for right of abode;

(ii) the Director has no record of any claim.”

18. Mr Chuang Shu Lau and Madam Ng Kwan Hung (923 and 2641) :

“(i) Neither the husband nor the wife made a claim for right of abode;

(ii) the Director has no record of any claim.”