In re CHEUNG SIU YU and another

1991, No.MP3801

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. Pursuant to leave granted, the applicants by their father and next friend moved the Court for judicial review. In his commendably pertinent submissions Mr Wu, counsel for the applicants, immediately brought into sharp focus the crucial issue.

2. The applicants' complaint is that the Immigration Tribunal failed to pay any or any proper regard to 3 of the 14 photographs submitted and the factual situation these 3 photographs so vividly bore witness to. These 3 photographs were marked in these proceedings for identification 1, 2, and 3. Photograph 2 depicted a light blue truck, Registration No. BL6731, standing next to a yellow van, Registration No. BZ5896. Neither of these two vehicle carried any Mainland licence. The inference to be drawn, so contended Mr Wu, was that they were standing on Hong Kong soil. The grandmother of the applicants was standing in front of these vehicles. In photograph 1 taken at another time, what would appear to be the same blue truck was shown in the background of a family group, comprising the grandparents, the applicants' mother and their two young uncles. The Court was invited to draw two separate inferences from photograph 2. First, the blue truck, most probably still carrying only a Hong Kong licence, was therefore in Hong Kong; so were the family members. Secondly, judging from the apparent ages of the two young uncles the applicants, photograph 2 must have been taken in or about 1985. Photograph 3 showed the same family group taken allegedly in front of the grandparents' hut, said to have been demolished in 1985. The family group were identically attired as in photograph 1. Photograph 3 could take the matter no further in the applicants' complaint.

3. Mr Wu argued that these inferences constituted strong evidence of the applicants' mother being in Hong Kong then, in 1985. The applicants had not been born. They were born on 16th August 1987 and 15th January 1989 respectively. A further significant inference to be drawn was, so ran counsel's argument, that there was hardly any incentive on the part of the mother of the applicants to leave Hong Kong after 1985 for, inter alia, giving birth to the applicants' elder sister on 12th March 1986 and thereafter to the two applicants in 1987 and 1989. Counsel reasoned that if the border area had truly provided an easy access to the Mainland to the applicants' mother, it would be a double-edged proposition, equally favourable to the applicants as their mother could have freely gained re-entry for the birth of her 3 daughters in Hong Kong. Mr Wu maintained that these inferences provided robust evidence that the applicants' mother was in Hong Kong in 1985 and that she had continuously stayed in Hong Kong since then. Counsel pressed upon me that such evidence should have been taken into account for balancing at least the poor impression the Immigration Tribunal had gained and the adverse views it had taken of the other evidence in its ultimate determination as to whether the applicants were born in Hong Kong.

4. The parents of the applicants testified that the family resided in some Mongkok premises. When the Director of Immigration was set to call two witnesses residing on the same floor in the adjoining premises to give evidence that they had never seen the applicants' mother between 1985 and 1987, the mother explained that she had not left the Mongkok premises and was therefore unaware of the identity of her neighbours. Almost on the heels of this incident, counsel for the applicants readily conceded that the family had not in fact resided at the Mongkok premises. Both parents of the applicants made a clean breast of it to the Immigration Tribunal that they had given false evidence of their Mongkok residence in which the two elder daughters were then alleged to have been born. The final version supplied to the Immigration Tribunal was that the family lived in Mai Po Lung Village where the two elder daughters were born.

5. The father of the applicants had spent almost the whole of his time in the Mainland for the years 1988 and 1989, including the Lunar New Year, the Dragon Boat Festival and the Winter Solstice periods. In 1988, he was in China for 301 days out of 366 days and in 1989, 348 days out of the 365 days. The alleged need to attend to his factory business in the Mainland was rejected by the Immigration Tribunal as implausible and unconvincing.

6. Dr Lai's letters and clinical records for these applicants were candidly condemned by the Immigration Tribunal. The Immigration Tribunal was not impressed by the incredible discrepancies in these documents emanating from Dr Lai.

7. Much influenced by the irreconcilable entries in the documents from Dr Lai and the admitted perjuries of the applicants' parents on a matter so close to a central issue, i.e. the birth place of the two elder daughters, the Immigration Tribunal proceeded to dismiss the applicants' appeals.

8. The Immigration Tribunal identified the question in each case as one of whether or not these applicants were born in Hong Kong. In paragraph 7 of the written determination of the Immigration Tribunal, the claim of the applicants' mother that she was in Hong Kong in the Mai Po Lung Village in 1985 was highlighted. The Immigration Tribunal specified these 14 photographs, including the 3 under consideration, as part of the evidence of this claim. These photographs were generally described. In the Tribunal's approach to these photographs, other suspicious circumstances were not overlooked. Significance was attached to the perjured versions of the applicants' parents as to the place of family residence in the period spanning over 1985. Counsel for these applicants analysed for the benefit of the Immigration Tribunal an inference drawn from the Hong Kong licenced vehicle in the photographs that the applicants' mother was then in Hong Kong in or about 1985. The Immigration Tribunal found the parents of the applicants witnesses of zero credibility, being "prepared to say whatever they thought would serve their interest whether it was the truth or not". The documents from Dr Lai were monumentally unhelpful. The Immigration Tribunal drew the "compelling inference" from the substantial time the applicants' father had spent in the Mainland during 1988 and 1989, that his wife and family were then probably all in China and that there the children must have been born. The Immigration Tribunal found such compelling inference unrebutted in paragraph 14. The Immigration Tribunal had earlier in paragraph 7 of its written determination noted the 14 photographs and the implicit purpose for which they were produced, namely as some evidence of the mother's residence in the Mai Po Lung Village in 1985. More importantly, the Immigration Tribunal had the assistance of Mr Wu of counsel with respect to the inferences to be drawn from the photographs. The same were rehearsed with intensity before me together with the mother's apparent lack of incentive to leave Hong Kong if she had successfully become an illegal immigrant in and before 1985.

9. The "compelling inference" drawn by the Immigration Tribunal was said to have been "unrebutted" by the explained absence of the father. An attempt so to rebut such a compelling inference by the explanations offered for the father's time in China was dismissed by the Tribunal in paragraph 14 of its written determination. It is true to say that the Immigration Tribunal also made some mention of the absence of any photograph or record of the claimed presence here of the applicants and their mother and that it relied as well on the changed pattern of the father's travelling habits after the family had probably all found their way into Hong Kong. But at that juncture, the Immigration Tribunal was predominantly addressing itself to the explanations offered on behalf of these applicants for the father's protracted periods of absence from Hong Kong during 1988 and 1989. It was part of a fact finding exercise converging on one aspect then being ventilated.

10. In paragraph 15, the Immigration Tribunal expressed its concluding view that such an inference was unrebutted, evidently unrebutted by all the evidence including the photographic evidence and whatever relevant inferences it carried. It is inconceivable that in so reaching its final conclusion, the Immigration Tribunal had ignored or failed to evaluate so obvious a piece of photographic evidence and its inferences to which the Tribunal's attention had been specifically directed. Consequently, in my judgment the complaint of these applicants has no substance. Their motion is denied, and the determination of the Immigration Tribunal therefore stands. I would make an order nisi for costs against the applicants in favour of the respondent.