CHOI KA TAK v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL97/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 97 OF 2007

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J U D G M E N T

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Hon Chu J giving the Judgment of the Court:

1.  In this judicial review application, the applicant applies to quash two decisions as follows:

(1)   The decision of the Director of Immigration (“the Director”) on 1 June 2006 to issue a removal order against the applicant; and

(2)   The decision of the Immigration Tribunal (“the Tribunal”) dated 31 May 2007 dismissing the applicant’s appeal against the issue of the removal order.

The facts

2.  The applicant was born in Shanwei City (汕尾市) of Guangdong Province, China. His natural father and mother are Mo Kin Sing (巫建盛) and Mo Sau Kam (巫秀琴). Both the applicant’s natural parents are resident in the Mainland.

3.  On 20 April 1999, the applicant came to Hong Kong from Mainland China on the strength of a One Way Permit no. 0651379, which was dated 15 April 1999. The name of the holder as stated on the One Way Permit is 蔡家德 (Choi Ka Tak) and the date of birth is stated to be 10 August 1984.

4.  When the applicant came to Hong Kong in April 1999, he was accompanied by Madam Tam Yin (譚燕), who also travelled on the strength of a One Way Permit no. 0651378.  Madam Tam married Mr Choi Mei Lun (蔡美倫) in the Mainland in 1979. They have three children. Mr Choi is a permanent resident of Hong Kong. He and the applicant’s natural father are cousins.

5.  The applicant was permitted by the Director to stay in Hong Kong until 20 April 2006. On 23 April 1999, Mr Choi applied for a juvenile Hong Kong Identity Card for the applicant. On 20 August 2002, the applicant applied for and was subsequently granted an adult Hong Kong Identity Card.

6.   By a letter dated 7 April 2003, the Guangdong Provincial Public and Security Bureau (“the GPPSB”) informed the Immigration Department that:

(1)   The applicant is not the natural son of Mr Choi and Madam Tam;

(2)   The applicant is the natural son of Mr Mo;

(3)   The One Way permit no. 0651379 that was issued to the applicant was obtained unlawfully by deception, namely, by falsely representing that the applicant was the natural son of Mr Choi and Madam Tam;

(4)   Under the PRC law, the applicant was not qualified to settle in Hong Kong; and

(5)   Accordingly, the GPPSB had revoked the One Way Permit no. 0651379.

7.  In September 2003, the applicant, Mr Choi and MadamTam were arrested by Immigration officers. They were interviewed and each made statements under caution.  In their statements, Mr Choi and Madam Tam admitted that the applicant was not their natural son. They stated that the applicant’s natural father had asked Madam Tam to take the applicant to Hong Kong, posing as her and Mr Choi’s natural son. They explained that this was a condition for Mr Mo assisting them to applying for Madam Tam and their own children to settle in Hong Kong.  The applicant, however, maintained in his statement that Mr Choi and Madam Tam were his natural parents.

8.  The applicant was subsequently charged in the Magistracy with four charges. They are:

(1)   On 20 April 1999 (the day when the applicant came to Hong Kong), making a false representation to an Immigration Assistant, stating that he was Choi Ka Tak, contrary to section 42(1)(a) of the Immigration Ordinance, cap.115.

(2)   On 25 May 1999, for the purpose of obtaining a Document of Identity for visa purposes, making a false statement that he was Choi Ka Tak, contrary to section 42(1)(c) of the Immigration Ordinance.

(3)   On 20 August 2002 (the day when the applicant applied for an adult Hong Kong Identity Card), furnishing false particulars to a Registration Officer, stating that he was Choi Ka Tak, contrary to regulation 19(2)(c) of the Registration of Persons Regulations, cap.177A.

(4)   On 10 March 2003, making a false representation to an Immigration Assistant, stating that he was Choi Ka Tak, contrary to section 42(1)(a) of the Immigration Ordinance.

9.  The applicant pleaded not guilty to the charges. Both Madam Tam and Mr Choi testified for the prosecution at the trial. The applicant did not give evidence. Mr Choi’s oral evidence was that there was no prior arrangement and he did not know that Madam Tam was bringing the applicant with her to Hong Kong until he met up with her in Shenzhen. The applicant’s case was that he was the adopted son of Mr Choi and Madam Tam. It was put to Mr Choi in cross-examination that, as a condition for Mr Mo helping with his children’s application to settle in Hong Kong, Mr Choi had agreed to be the adopted father of the applicant. This was denied by Mr Choi.

10.  On 18 August 2004, the applicant was convicted of Charges (3) and (4), but acquitted of the first two Charges. He was sentenced to 12 months imprisonment. In acquitting the applicant of the first two charges, the Magistrate was of the view that, in light of the applicant’s age at the material time, there was reasonable doubt whether the applicant had taken any part in making the false representation or statement. 

11.  The applicant appealed against the convictions on Charges (3) and (4). On 22 April 2005, Nguyen J allowed the appeal, quashed the convictions and ordered that the Hong Kong Identity Card confiscated from the applicant be returned to him.  Nguyen J held that when the applicant applied for the adult identity card (the subject matter of Charge (3)), he was entitled to use the name of “Choi Ka Tak” because that was the name appearing on his juvenile identity card. On this basis, the convictions of Charges (3) and (4) were quashed.

12.  On 25 May 2005, the Immigration Department, in compliance with the Order, returned to the applicant his Hong Kong Identity Card. The applicant was however told that the Immigration Department was considering to initiate action to invalidate or withdraw his identity card.

13.  By letter dated 29 June 2005, the Commissioner for Registration of Persons informed the applicant that he was considering to declare his identity card invalid and invited the applicant to make representations on it.

14.  On 13 March 2006, the applicant through his solicitors herein made representations to the Commissioner. After considering them, the Commissioner decided to exercise his power under regulation 19(3) of the Registration of Persons Regulations to declare the applicant’s identity card as invalid. The decision was communicated to the applicant by letter dated 18 April 2006 to his solicitors and the applicant was asked to surrender his identity card. The letter further gave notice that consideration was being given to the issue of a removal order against the applicant.  

The Removal Order

15.  On 1 June 2006, the Director issued a Removal Order against the applicant, notice of which was given to the applicant on 8 June 2006.

16.  The Director’s reasons for the applicant’s removal are that:

(1) The applicant’s One Way Permit was acquired by unlawful means such that the permission previously granted to the applicant to land and remain in Hong Kong was rendered null and void and the applicant is deemed to have landed in Hong Kong unlawfully; and (2) The applicant does not otherwise have any legal claim to remain in Hong Kong.

The appeal to the Tribunal

17.  The applicant appealed to the Tribunal on the same day. The appeal was heard on 7 May 2007 and the applicant was represented by Mr Fong, who also appears for him in this application. By a Decision dated 31 May 2005, the Tribunal dismissed the appeal.

18.  In coming to its decision, the Tribunal was of the view that Nguyen J only held that the applicant was entitled to use the name of “Choi Ka Tal” when he applied for his adult identity card so that it did not constitute making a false representation or statement when he made the application for the adult identity card. Nguyen J did not decide on whether the applicant’s One Way Permit was or was not lawfully obtained. The Tribunal therefore rejected the applicant’s argument that the doctrine of res judicata applied such that the Director was precluded from issuing the removal order on the basis that the One Way Permit was unlawfully obtained.

19.  The Tribunal also took the view that the Director was entitled to accept the findings of the GPPSB as stated in its letter, relying on the Court of Appeal’s decision in Wong Ka Hin v. Director of Immigration (unreported) CACV1937/2001. The Tribunal further referred to Mr Choi’s statement given to the Immigration Department and noted that there was no mention of any adoption or that the applicant was one of his family members. The Tribunal considered that Mr Choi’s admissions in the statement, including that he agreed to take the applicant as his natural son as a condition to Mr Mo helping his wife and children to apply to settle in Hong Kong, show that the facts and matters stated in the GPPSB’s letter were not unfounded.

20.  The applicant had produced several documents obtained from the Mainland to show that he was adopted by Mr Choi and Madam Tam when he was a baby. They are: (1) A notarized declaration dated 8 May 2004 made by the applicant’s natural parents, stating that Mr Choi and Madam Tam adopted the applicant on 20 September 1984 and the applicant was named Choi Ka Tak; (2) A certificate issued in 2004 by the rural committee of Xinwu Village (新湖村) in which the applicant’s natural parents reside confirming that the applicant was adopted by Mr Choi and Madam Tam; (3) A student card and a certificate issued by Xinwu Primary School (新湖小學), indicating that Choi Ka Tak was a student of the school; and (4) The household registration card (常住人口登記卡) of Madam Tam issued in 1997 recording that Choi Ka Tak was the son of Madam Tam.   

21.  In respect of these documents, the Tribunal doubted their genuineness, noting that the various certificates were made out in 2004, after the GPPSB revoked the One Way Permit and after the Immigration Department’s arrest and investigation into the applicant and that the date of admission to the school as stated in the student card was different from that stated in the school’s certificate.

22.  The Tribunal also rejected the argument based on legitimate expectation. It held that this was irrelevant in light of the Tribunal’s jurisdiction on appeals against removal orders under section 53D of the Immigration Ordinance.

The application for judicial review

23.  On 23 August 2007, the applicant issued the Form 86A herein. On 24 August 2007, Hartmann J gave leave to apply for judicial review.  It was further directed that the application be heard by two bilingual judges of the Court of First Instance, having regard to the fact that the Chief Adjudicator of the Tribunal was a retired Chief Judge of the High Court. The Notice of Motion was filed on 5 September 2007.

The grounds for judicial review

24.  A number of grounds were raised in the Form 86A. They can be grouped and summarized as follows:

(1)   Res judicator and issue estoppel

The applicant argues that by reason of the acquittals in the Magistracy trial and the decision of Nguyen J, the Director and the Tribunal are precluded and estopped from concluding that the applicant’s One Way Permit was unlawfully obtained.

(2)   Mistake of fact and irrationality

The applicant says that the Tribunal made a mistake of fact in relying on the statement given by Mr Choi to the Immigration Department because Mr Choi had in his oral testimony in the Magistracy, denied any prior arrangement or agreement with the applicant’s natural father to pose the applicant as his natural son as a condition to Mr Mo helping his wife and children to apply to settle in Hong Kong. It is further argued that the Director’s and the Tribunal’s reliance on the GPPSB’s letter is irrational, having regard to the various documents adduced by the applicant.

(3)   Legitimate expectation

The applicant says that by reason of the acquittals in the Magistracy and the decision of Nguyen J, he has a legitimate expectation that he would not be removed from Hong Kong.

(4)   Compassionate ground

The applicant complains that the Director failed to take into account his personal circumstances and the hardship to him if he were to be removed from Hong Kong.

25.  At the hearing of this application, Mr Fong did not pursue the legitimate expectation ground. It is in any case clear as a matter of fact and law that this ground is unarguable.  Mr Fong further rightly accepted that the last ground, which is based on compassionate consideration, is also unarguable, having regard to the Court of Final Appeal’s decision in Lau Kong Yung & Others v. Director Immigration [1999] 3 HKLRD 778 that the Director is not obliged to take into account compassionate or humanitarian considerations when deciding whether to issue a removal order.

Was the applicant’s One Way Permit unlawfully obtained?

26.  Before dealing with the remaining two grounds relied upon by the applicant for the present application, it is important to note that the underlying reason for the Director’s decision to issue the removal order is that because the applicant’s One Way Permit was unlawfully obtained, the previous permission given to the applicant to land and remain in Hong Kong was vitiated and rendered null and void. Hence, as identified by the Tribunal, the central issue in the appeal before the Tribunal and indeed in this application, is whether the applicant’s One Way Permit was unlawfully obtained. It is to this that we will first turn.

27.  According to the GPPSB’s letter, the unlawful means involved in the obtaining of the applicant’s One Way Permit was the false representation that the applicant was the natural son of Mr Choi and Madam Tam. There is no dispute that the applicant is not the natural son of Mr Choi and Madam Tam. What the applicant contends is that he is their adopted son.  However, it is not the applicant’s case that the One Way Permit was applied and obtained on the basis that he is the adopted son of Mr Choi and Madam Tam. There is also no evidence before the Tribunal and in this application to indicate that the One Way Permit was applied for and obtained on this basis.  Mr Fong made the point that in light of the various documents from the mainland, the GPPSB was incorrect to state in its letter that the applicant unlawfully changed his name and date of birth to Choi Ka Tak and 10 August 1984. Even if it were accepted that the applicant was named Choi Ka Tak upon being adopted by Mr Choi and Madam Tam and that his date of birth was indeed 10 August 1984, it does not affect the GPPSB’s statement that the One Way Permit was obtained by falsely representing that the applicant was the natural son of Mr Choi and Madam Tam and the conclusion that the One Way Permit was unlawfully obtained. 

28.  As held by the Court of Appeal in Wong Ka Hin v. Director of Immigration, supra, at para.16, the Director is entitled to accept and act on the facts stated in the GPPSB’s letter and its conclusion as to the lawfulness of the applicant’s One Way Permit: see also Li Fu Shan v. Director of Immigration (unreported) HCMP 813/2001 at paras.78-81. Moreover, whether the applicant had taken part in making the false representation or had knowledge that the One Way Permit was obtained unlawfully is immaterial: see Wong Ka Hin v. Director of Immigration, supra, at para.17.   

29.  Mr Fong tried to distinguish Wong Ka Hin by suggesting that the approach towards the statement contained in the GPPSB’s letter should be different when there is conflicting evidence placed by an applicant before the Tribunal. We think ultimately it is a question of weight. As Hartmann J pointed out at para.79 of Li Fu Shan, it is a matter for the Tribunal to consider whether it would accept the evidence embodied in a letter from the GPPSB in the light of all the evidence put before the Tribunal.

30.  Prima facie, in a typical case, the GPPSB letter serves as evidence of the matters identified in para.78 of Li Fu Shan. As held by Patrick Chan J (as he then was) in Tsui Siu Wai v Director of Immigration, HCMP 1665 of 1994, the process through which the Chinese authority came to its decision on the validity or invalidity of a permit were not matters that the Director (and we would add, the Tribunal) should be concerned with. By reason of the presumption of regularity, the Tribunal is entitled to act on the assumption that the GPPSB had conducted proper investigation before it came to a finding which called for the cancellation of the One Way Permit unless the evidence produced by an applicant cast doubts on the same.

31.  In the present case, the Tribunal had considered the GPPSB letter in the light of the evidence adduced by the applicant and gave cogent reasons for rejecting such evidence. Given what we said below on mistake of fact and irrationality, we do not see any basis for this court to quash the finding of the Tribunal in the context of a judicial review.

32.  Mr Fong referred to Ooi Yen Khim v. Immigration Tribunal & Anor (unreported) HCAL133/2006 and submitted that the Tribunal erred in allowing its fact-finding decision to be usurped by the empty assertion of the GPPSB that the One Way Permit was unlawfully obtained. We do not agree.

33.  Ooi Yen Khim is a very different case. In that case, the Immigration Tribunal was only provided with a summary of facts to the effect that the Director had reasons to believe that the Malaysian passport used by the applicant to enter Hong Kong was unlawfully obtained. This was disputed by the applicant. The Tribunal was not provided with any of the primary documents or underlying evidence relied upon by the Director. The applicant’s appeal was dismissed by the Tribunal without a hearing. Upon the applicant’s application for judicial review, Reyes J quashed the decision, holding that the Tribunal should not have determined the matter in favour of the Director on the summary alone because there was no independent assessment by the Tribunal of the underlying evidence.

34.  In the present case, the Tribunal was provided with a hearing bundle containing, inter alia, the GPPSB’s letter and the statements given by the applicant, Madam Tam and Mr Choi. There were also the documents adduced by the applicant. It is further evident from the Tribunal’s Decision that it had considered and evaluated the evidence placed before it. It cannot be said that because the Tribunal accepted and relied on the GPPSB’s letter, it had abdicated from its fact-finding function.

Res judicata and issue estoppel

35.  We now turn to the applicant’s grounds for judicial review. His first ground is based on his acquittals of the first two charges in the Magistracy and the upholding of his appeal against the convictions of the other two charges. It is said that these decisions give rise to the application of the application of the doctrines of res judicata and estoppel.

36.  However, the false representations and statements involved in the four charges were made to the immigration or registration officers in Hong Kong and after the applicant had come to Hong Kong. The applicant’s acquittal of the charges has no bearing on whether the applicant’s One Way Permit was obtained by means of false representation, hence unlawfully obtained. There was also no concession by the prosecution in the criminal proceedings that the applicant’s One Way Permit was lawfully obtained. What the prosecution did not dispute is the authenticity or genuineness of the One Way Permit. Accordingly, the decisions of the Magistrate and Nguyen J could not have given rise to any res judicata or issue estoppel. Neither is the Director nor the Tribunal precluded from coming to the conclusion that the applicant’s One Way Permit was obtained unlawfully.

37.  There is also no question of the applicant being vexed twice with the same issue. The references to articles in the Basic Law and the Hong Kong Bill of Rights Ordinance are entirely misplaced. Likewise, the suggestion that the Director had disobeyed the judgments in the criminal proceedings is unfounded.

38.  The first ground therefore fails.

Mistake of fact and irrationality

39.  On the second ground, the submission is that the Tribunal made an error of fact in relying on the statement given by Mr Choi to the immigration officer, which is said to have no probative value because it is at variance with Mr Choi’s oral evidence at the trial in the Magistracy.

40.  We are of the view that there is no merit in this submission. First, the Tribunal’s understanding of what Mr Choi said in his statement is correct. Mr Choi did say in his statement that it was a condition for Mr Mo helping his wife and children to apply to settle in Hong Kong that Madam Tam would take the applicant to Hong Kong, posing as her natural son. The Tribunal did not commit any mistake of fact.

41.  Second, the transcript of Mr Choi’s evidence in the Magistracy was not placed before the Tribunal. The transcript, which the applicant seeks to rely in this application to quash the Tribunal’s decision, is therefore fresh evidence. As a matter of law, it is not permissible for this court to intervene with the Tribunal’s decision on the basis of this new evidence when the decision is one which is within the jurisdiction of the Tribunal: Wade & Forsyth, Administrative Law (9^th edition, 2004) p.279.

42.  Third, since the transcript of evidence was not before the Tribunal, it could not have known that Mr Choi denied any prior arrangement to bring the applicant to Hong Kong or the suggestion put to him in cross-examination that the adoption of the applicant was a condition for Mr Mo to help his wife and children to come to Hong Kong. Additionally, Mr Fong accepted that no submission was made to the Tribunal that because Mr Choi had given inconsistent accounts in his statement and in his oral evidence that his statement or evidence should not be believed or acted upon. In these circumstances, the Tribunal cannot be criticized or said to have erred on the facts for taking into account Mr Choi’s statement.

43.  It is also argued by Mr Fong that the decision of the Director and the Tribunal is irrational. It was said that they should not have relied on the GPPSB’s letter in light of the documents from the Mainland adduced by the applicant. It is further said that the Tribunal acted irrationally in rejecting the documents from the Mainland and in failing to consider or deal with the Household Registration card of Madam Tam.

44.  For reasons explained in the earlier part of our Judgment, we are of the view that it is legitimate for the Director and the Tribunal to have accepted and acted on the GPPSB’s letter. Moreover, on the materials available to the Tribunal, there is ample room for the Tribunal to accept the GPPSB’s conclusion that the applicant’s One Way Permit was unlawfully obtained. Insofar as the complaint is that the Tribunal should not have preferred the GPPSB’s letter to the documents adduced by the applicant, we are of the view that it is a matter within the jurisdiction of the Tribunal and the Tribunal had given reasons for doubting the genuineness of the documents adduced by the applicant. As noted above, even if one were to accept, on the basis of the applicant’s documents, that the applicant was adopted by Mr Choi and Madam Tam, it does not contradict the GPPSB’s statement that the One Way Permit was unlawfully obtained by falsely representing that the applicant is the natural son of Mr Choi and Madam Tam.

45.  As to the Household Registration card of Madam Tam, it is not correct to say that the Tribunal had not taken it into account. It is apparent from the Decision that the Tribunal had considered it. The mere fact that the Tribunal had not specifically said it rejected the document does not provide a ground for this court to intervene with the decision. What the Tribunal is required to give is only an outlined reason: see Li Fu Shan v. Director of Immigration, supra, at paras.48-53.  At the most, the Household Registration card only goes to support the applicant’s claim that he was the adopted son of Mr Choi and Madam Tam. The claim of adoption, however, does not serve to advance the applicant’s challenge of the Removal Order.  

46.  For these reasons, the second ground also fails.

Compassionate considerations

47.  As noted above, Mr Fong accepted that in light of the decision in Lau Kong Yung case, compassionate considerations do not afford a ground for challenging the decision to issue a Removal Order against the applicant.  Essentially, the matters that were initially urged on behalf of the applicant are that he came to Hong Kong as a teenager and has since settled in Hong Kong, that he is gainfully employed and is now married with a son who was born in April this year. It was also said that as a result of the criminal prosecution, he had been imprisoned for five months before his appeal was allowed. 

48.  We understand from the Director through Mr Man that since the applicant’s wife is a Hong Kong permanent resident, after his repatriation to the Mainland, he should be eligible to apply for the issue of a One Way Permit on the ground of family reunion.  Mr Man, however, rightly pointed out it is not known whether the prospect of such an application will be undermined by the previous episode of obtaining a One Way Permit unlawfully. This is a matter for the Mainland authority.

49.  While we acknowledge the force of Mr Man’s submission that the Director is concerned that a person should not be able to benefit from his own wrong, it may be that given the personal circumstances of the applicant and his family is in Hong Kong and the facts of the case, including that the applicant was only a young boy when the application for his One Way Permit was made and there is no evidence that he was aware or privy to the making of false representation, the applicant’s case can be viewed sympathetically by the Director. Nevertheless, it is entirely a matter for the Director’s discretion.

Conclusion

50.  For the above reasons, we dismiss the application for judicial review. Since counsel do not seek to argue against the normal rule of costs follow event, we make an order that the applicant pays the 1^st respondent the costs of the application, to be taxed if not agreed. There is also an order that the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.