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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SECOND REPORT TO THE
COURT OF FINAL APPEAL

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Introduction

1. In a judgment dated 30 July 2002, the Court of Final Appeal (‘the CFA’) remitted certain issues – entirely factual in nature – to this court for determination.

2. On 3 October 2003, I submitted a report (‘the first report’) in respect of the cases of 22 applicants.  In that report, I observed that it had taken a considerable period of time to determine those 22 cases, far longer than I would have wished.  As to why progress had been slow, I said that the reason lay in —

“… the polarised approach of the parties as to whether, factually, oral claims had or had not been made and, of greater difficulty, what, in terms of the January and July judgments, was capable of constituting a record of any claim made for right of abode.”

3. I continued by saying that, in my opinion, an early resolution —

“… of that latter issue will enable the remainder of the cases to be determined with far greater speed and financial economy than has hitherto been the norm. I have therefore deemed it prudent to submit a report at this relatively early stage of the disposal of the outstanding cases so that, in respect of the cases already finalised, I am able to state what, in my judgment … is or is not capable of constituting a record under the concession policy.”

4. Having considered the first report, the CFA gave further directions as to what was or was not capable of constituting a record for the purposes of the concession policy.  This has enabled matters to proceed at a brisker pace.

5. That being said, however, any attempt to dispose of each applicant’s case in a day or less has proved to be impossible.  There is, I now accept, legitimate reason for that.  Each applicant has his or her own story to tell, some of them complex.  There is sometimes the need for double translations.  Each applicant is entitled to have his or her case substantively advocated and this, of course, involves cross-examination of relevant witnesses for the Director of Immigration (‘the Director’).  In addition, from time to time new issues arise, those issues invariably demanding evidence of a general nature concerning the Director’s administrative practices and procedures.  In light of this, some cases can take three days or more to be determined.

6. In the result, this second report concerns only 26 cases.  This leaves – at this time – 121 more cases still to be determined.

7. On the basis that it has not been possible to engineer a brisk, summary-like procedure to deal with the remaining cases, it has been agreed that at least a broad timetable should be drawn up so that within the next 18 to 24 months those remaining cases may hopefully be resolved.  The provisional timetable contemplates three more periods of sitting :

(i)	From about 20 February to the end of May 2006;
(ii)	From about 15 November to the end of December 2006; and
(iii)	One final period in the first half of 2007.

8. After each of these periods, subject to any direction from the CFA, a report will be prepared.  Three more reports are therefore anticipated which will make for a total of five reports in all.

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

Part One :	Two applications remitted by the CFA for reconsideration.
Part Two :	One application to determine whether, at the date of the applicant’s birth, her father was a permanent resident.
Part Three :	Twelve applications, by ‘group one’, ‘group two’ and ‘group four’ applicants.
Part Four :	Two applications based on legitimate expectation.
Part Five :	Four applications by applicants from whom legal aid was withdrawn.
Part Six :	Five ‘group six’ applications.

Group six applications

10. Before moving to consider individual applications, something must be said by way of general observation in respect of ‘group six’ applications.  Of particular importance, I anticipate, is the fact that, when evidence was being given in respect of these applications, it was discovered that in or about early 1999 a large number of letters addressed to the Immigration Department by members of the public were destroyed.  Counsel for the applicants have indicated that submissions will be made to the CFA in respect of this matter, the submissions being to the effect that the destruction of letters undermines the validity of the requirement in the concession policy – as a fair requirement – that the Director should always have a record of a claim made for right of abode.

11. However, as I confirmed in the first paragraph of this report, my function has been (and remains) limited to the determination of factual matters only.  It is not for me, directly or indirectly, by way of my findings to limit or extend the terms of the concession policy, and the principles that underline it.

12. ‘Group six’ applicants are those who allege that they made claims for right of abode by sending letters to the Immigration Department.  In respect of these applicants, in its judgment of 30 July 2002, the CFA said the following (pars.45 and 46) :

“	… In some cases, it is said that the Director accepts the letter as a claim in this context but remains to be satisfied as to whether the relevant applicants were present in Hong Kong when such claims were made.  In other cases, the Director is said to deny possession of claim letters allegedly sent.  The applicants contend that they are able to establish through secondary sources that they made such claims and that records thereof were held by the Immigration Department.  Finally, in two cases, the Director is said to dispute the contention that the letters in question constitute claims for right of abode.
	The Director has not had the opportunity of making his position known to the Court on any of these cases.  We accordingly remit for determination by the Court of First Instance the following issues raised in this sixth group :-
	(a)	whether, in each case, the applicant made a claim for right of abode;
	(b)	if so, whether the Director has a record of that claim as required by the Concession; and,
	(c)	insofar as necessary, whether the applicant concerned was present in Hong Kong at the time of making his alleged claim for right of abode.”

13. In determining ‘group six’ applications, the court must therefore be satisfied that an applicant actually wrote a letter or had one written on his behalf and that the contents of the letter constituted more than a complaint or an enquiry and, read in context, constituted a claim for right of abode.

14. The court must further be satisfied that the letter was actually sent to the Immigration Department, either posted or delivered by hand, and was received by the Department.  Counsel for the applicants never disputed that, unless the court could be satisfied that the letter was received, an applicant could not succeed in showing that a claim had been made to the Director.

15. In respect of the majority of ‘group six’ applicants, it was the Director’s case that the letters were either never written or not written within the concession period, the letters being a later invention by those applicants.  This was based substantially, although not entirely, on the contention that none of the letters had been received by the Director, this contention itself being based on the assertion that, if the letters had been received, the system operated by the Director would in some manner have registered their receipt or noted it, even if the letters themselves had been misplaced or destroyed.

16. In reply, it was said on behalf of the applicants that letters could, to use my own phrase, ‘slip through the cracks’ without being registered or noted in any way.  Accordingly, any record check conducted by the Director could not exclude the possibility that letters may have been received but mislaid or misfiled, those letters still lying somewhere in the Director’s archives, undiscovered as yet but nevertheless constituting a record of an applicant’s claim.

17. All of this led to a good deal of evidence as to the systems employed by the Director to ensure the efficient receipt, distribution and storage of letters.

18. In my judgment, on the evidence, I am satisfied that at all material times the Director managed an effective system for the receipt of letters and their distribution, that system incorporating the acknowledgement of receipt of those letters and their storage.  Of course it was possible that from time to time letters would not in any way be noted as having been received or would be mislaid.  That must be possible with any large organisation.  However, such a failure would be the exception.  It must be remembered that the work of the Immigration Department is focused almost entirely on the receipt, creation and management of documents, be they in hard copy or soft.  That being so, if a letter was addressed to the Director in some rational manner, the probabilities would support not only its receipt but some record of that receipt, a record which would be recoverable upon logical search.

19. I am further of the view, on the evidence, that the record checks conducted by the Director to attempt to locate some record of the receipt of ‘missing’ letters, while not necessarily exhaustive, were nevertheless conducted in good faith and were reasonably thorough. 

20. During the course of evidence being led as to the Director’s systems for the receipt and distribution of mail, as I have earlier indicated, it was revealed that in or about early 1999 one unit in the Immigration Department, the Eligible Children Verification Unit (‘the ECVU’), had destroyed a considerable number of files containing correspondence from the public.  This had been done, in accordance with internal guidelines, as part of a weeding policy.  The correspondence that was destroyed was apparently received in the latter part of 1997.  In this respect, counsel for the applicants observed —

“	… during this time the volume of such correspondence was greater than normal. It is very likely that the letters were enquiries about the right of abode from potential applicants or family members. Mr. Tam Siu Cheong, who gave evidence about the destruction, confirmed that letters from Mainland residents referring to a permanent resident parent and asking about entitlement to the right of abode would be dealt with by the ECVU and not, for example, returned to the R&D [Receipt and Despatch] Unit
	…
	During the weeding exercise it is likely that at the very least several hundred letters (Mr. Fung estimated as many as 2,000) from persons in similar situations to the Applicants would have been destroyed. Amazingly, not only were the letters destroyed, but also the register recording the receipt of the letters.”

21. Counsel for the applicants argued that this was a profoundly disturbing revelation, coming so late in the day, as it undermined the Director’s long-standing assertion that the requirement of a record was an essential component of the concession policy because it was the fairest way of treating those persons who had not been parties to the right of abode litigation but who deserved to have the benefit of the judgments in that litigation.

22. Counsel for the applicants concluded their observations by saying :

“In the light of this new information, the Applicants will be submitting to the CFA that the Court’s conclusion that the record requirement is reasonable and rational interpretation of the policy cannot stand at least insofar as it relates to those Applicants who allege that they sent letters to the Director of Immigration in 1997. The group includes several current and former Applicants in these proceedings. To the extent that the cases of those former Applicants cases were dismissed on the basis that there was no record of the letters they sent, it may well be that a grave injustice has occurred, because of the Director’s non-disclosure of the destruction of the files.”

PART 1

23. In its judgments of 9 January and 26 March 2004, the CFA remitted two applications to me for reconsideration, those of Madam Sze Sau Kan (3122) and Mr Fu Kwong (1084).  In respect of these applications no new evidence was led.  It was agreed that submissions would be sufficient.  My determinations are set out below.

Madam Sze Sau Kan (3122 : a ‘group one’ applicant)

24. In my first report, I found that, while I was satisfied on the probabilities that this applicant had made a claim for right of abode, I was unable to identify any record of a claim.  Her matter has been remitted to me to consider whether there might not in fact be a form of record.

25. The evidence revealed that on either 4 or 14 July 1997 – the exact date was uncertain –the applicant presented herself at the Immigration Tower.  On that occasion, she was accompanied by her husband, her two children and her father-in-law.  It was the applicant’s case that both she and her husband presented themselves in order to claim right of abode and did make such a claim.

26. For the avoidance of doubt, having reviewed the evidence and my earlier notes, I am satisfied that the applicant made oral claims for right of abode on two occasions : on her first visit to the Immigration Tower and on her second.

27. On the first occasion, the applicant said that she and her family members went to the 13^th floor to the offices of the General Investigation Section (‘the GIS’) where she and her husband asserted their claim to right of abode.  They were both then given ID 457 forms on which to enter their personal particulars.  The applicant did not have details of her parents’ identity cards with her and was unable therefore to have them recorded on the form.  However, her father-in-law’s identity card number was recorded, he being with them.

28. Although given ID 457 forms to complete, the applicant said that, due to the great number of persons who had to be dealt with by the immigration authorities at that time, they were asked to return at a later date; that is, on 24 July 1997.

29. It was never disputed that the applicant and her husband did return on 24 July 1997 when they were interviewed and the process put in hand for repatriation.

30. While, as I have said, I found that the applicant did make claims for right of abode, I was unable to identify any single document which, on its face, I considered to be capable of constituting a record of either or both of those claims.  For example, the ID 457 form to which I have referred, as it contained no reference to the identity cards of her own parents, was not therefore, in my opinion, a sufficient record.

31. During the course of the new hearings (which make up the bulk of this report) it was submitted on behalf of certain of the applicants that an ID 457 form was capable of constituting a record of a claim even though it did not give the actual identity card details of an applicant’s mother or father or other specific details showing that a parent had right of abode.  It was said that what mattered essentially was that, an oral claim having been demonstrated, the ID 457 contained sufficient information to enable an investigation to take place which was capable of confirming the basis of the claim.  I reject that contention.  My reasons are given in my report on Madam Kwok Siu Wan, applicant 1624, that report commencing on page 25.

32. I have concluded therefore that in respect of this applicant, her ID 457 form was not capable – on its own – of constituting a sufficient record.  However, 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.”

33. 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.”

34. In seeking in the present case to determine whether a probable inference can be drawn, it is essential, as a first step, to attempt to determine on what date the applicant and her family first presented themselves at the Immigration Tower, whether on 4 or 14 July 1997.  I say that because, on my understanding of the Director’s evidence, different systems were in place on those days.

35. Counsel for the Director conceded that it was not possible to verify with certainty whether the applicant and her family first went to the Immigration Tower on 4 or 14 July 1997.  Although certain documents bore the date of 4 July, counsel said there was some doubt as to their accuracy.  This difficulty, said counsel, was compounded by the fact that in a number of respects the applicant’s description of events tended to suggest that she had first gone to the Immigration Tower on the later date and not the earlier.

36. In my judgment, however, greater reliance can be placed on the documentary material than on the fallible memory of the applicant.  After so many years it is understandable that the applicant may have forgotten or confused certain sequences of events on what must have been a busy, probably hectic occasion or may have forgotten the exact nature of various documents that were given to her.

37. What is evident, however, is that on her first visit the applicant surrendered her expired two-way permit for which she was given a formal receipt : an ID 328 form.  That formal receipt bears the clear rubber-stamped date : 4 July 1997.  In addition to this, in respect of the applicant’s husband, there was a notation in a file minute dated 11 January 2000 that he had arrived in Hong Kong on a two-way permit in March 1997, had overstayed and had then surrendered himself on 4 July 2005.  That information must have been obtained from some earlier endorsement in the husband’s file.  Both the applicant and her husband therefore are recorded in the Director’s own files as first presenting themselves on 4 July 1997.  While the accuracy of that date gave rise to some questions, nothing was put before me to show that the date was patently and unarguably wrong.

38. Doing the best I can, I am satisfied therefore that the probabilities show that the applicant first presented herself on 4 July 1997.

39. But what was the system in place at that time?  In his affirmation of 15 March 2003, Mr Pang Kin Mo, a Senior Immigration Officer, said that from the afternoon of 3 July through until 10 July 1997 right of abode claimants in the category of the applicant and her husband; that is, overstayers who had been born before their parents had acquired permanent residence (‘Group B’ claimants), would be dealt with in accordance with the following broad procedures :

(a)	they would be taken to the 13th floor;
(b)	on that floor their two-way permits would be taken from them and they would be given a formal receipt, an ID 328 form;
(c)	a form ID 359 would also be given – although importantly a copy of that form would not be kept in the Immigration Department file – and that form would have on it a space for setting an appointment date;
(d)	no formal recognisance would be required.

40. In respect of the applicant, it is not contested that she did go to the 13^th floor.  There is also evidence that her two-way permit was taken from her and that she was given a receipt in the form of an ID 328.  There is further evidence that she returned on a specific date; namely, 24 July 1997, and, on the evidence, it seems probable that in this regard she was given an ID 359 appointment card.  Finally, there is no evidence that the applicant entered into any form of recognisance.  Accordingly, in my judgment, the manner in which the applicant was processed on 4 July 1997 fits with the manner in which Group B claimants generally were processed.

41. The difficulty, however, is that, as Mr Pang 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.

42. 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.

43. Having regard to that practice, I believe that the only reasonable inference to be drawn is that the applicant was not given priority.  After all, she and her husband were only asked to return some 20 days later.  That being the case, having regard to the documents in the Director’s possession, those documents being considered in the light of the Director’s own practice, it must be inferred that the applicant was treated on 4 July 1997 as a Group B claimant and not simply as an overstayer surrendering herself for repatriation.

44. In summary, having reviewed my earlier determination, I am satisfied that :

(i)	the applicant did make a claim for right of abode;
(ii)	the Director does have a record of the claim.

Mr Fu Kwong (1084 : a ‘group one’, ‘group two’ and ‘group four’ applicant)

45. In my first report, I concluded that the applicant had not made a claim for right of abode on any of the three occasions alleged by him.  Having reviewed my decision in light of the matters raised by the CFA, I remain satisfied that my first determination was correct.

46. One of the matters that concerned the CFA was that the applicant had taken the trouble to obtain a notarial certificate proving his relationship with his parents before coming to Hong Kong and had gone to the considerable extra trouble of obtaining an English translation of the document.  As the CFA put it :

“If he had not been serious about his claim, why would he have taken so much trouble? And if he anticipated making a claim, is it not likely that he would have made a claim for right of abode on the many occasions he visited the Immigration Department?”

47. In my first report (para.433) I recognised that obtaining of a notarial certificate, together with its translation, was evidence of the applicant’s intention to claim right of abode.  I said :

“The plaintiff testified that he went to considerable trouble to obtain an English translation of the notarial certificate. He did so, he said, because he mistakenly believed that the Hong Kong authorities would demand a document in the English language. Although the applicant was subject to cross-examination on the question of why he thought it necessary to obtain an English translation, I accept the submissions made by the applicant’s counsel that the important point is that the evidence demonstrates that he did go to the trouble to obtain a notarial certificate. There can only be one reason for so doing : a belief that it was a necessary document to advance his claim for right of abode.” [my emphasis]

48. It follows, of course that, being armed with a notarial certificate, the applicant would be expected to attempt to use it to claim right of abode.  What must be remembered, however, is that the first visit to the Immigration Department that the applicant spoke of in any detail was a visit (in the company of his mother) to the Immigration Tower.  On that occasion, he said, they were referred to the Information Office and it was here that he first displayed his notarial certificate and other supporting papers.

49. In my judgment, on that first occasion, in presenting himself at the Information Office, the applicant did not make a claim for right of abode.  More correctly described, he was, as he would have realised, making only an enquiry as to how and where he could make a claim.  An enquiry, it has been held, is not capable of constituting a claim.  In my first report, as to events at the Information Office, I said the following (para.435) :

“He said that he went to the Immigration Tower and was referred to the Information Office.  Having shown his various documents, including his notarial certificate, he said that the staff at the office advised him that he must process his claim on the Mainland and could not do so in Hong Kong.”

50. The applicant’s next visit to the Immigration Department was when he had already breached his conditions of stay, having overstayed by more than two months.  On this occasion, he said, he went in the company of both his parents for the single and specific purpose of claiming right of abode.  But that visit, I said, had to be considered in context.  In this regard, I said (para.437) :

“On his own evidence, of course, the applicant had just a month or two earlier been advised by the immigration authorities that he could not make a claim for right of abode in Hong Kong and would have to return to the Mainland to do so.  Indeed, evidence demonstrated that at the relevant time staff of the Information Office were instructed to give a standard response to enquiries of the kind made by the applicant, the response to be in the standard form cited earlier in this report : see paragraph 373.”

51. The evidence, I think, is incontrovertible that at or about the time of the change of sovereignty a great many people wishing to claim right of abode found one way or anther of coming to Hong Kong for that purpose.  From time to time rumours sparked an increased influx.  But it is also indisputable, I believe, that, once in Hong Kong, many (indeed, most) would be claimants discovered that the authorities would not accept a claim for right of abode and claimants who overstayed were being detained and often prosecuted before being repatriated.  In light of that, and invariably knowing that the longer a person overstayed the greater the possible criminal punishment, there is no doubt that many would be claimants bowed to the inevitable as they saw it at the time and surrendered themselves so that they could be ‘processed’ and repatriated.  Nobody at that time would have known that the simple act of making a claim would at a later time be given the standing it now has.

52. But many would be claimants, of course, even though they appreciated that they stood little, if any, chance of successfully remaining in Hong Kong and being given a local identity card, nevertheless, at the time they surrendered themselves, sought to emphasise their right to remain in Hong Kong.  They may have done so perhaps hoping against hope, or as an assertion, doomed as it probably was, of what they saw to be a constitutional right due to them.

53. One of the profound difficulties that I have encountered in determining the cases of the many applicants who have testified is to distinguish (on the probabilities) which of those at the time simply bowed to the inevitable as they saw it, and have testified before me as to what they wished they had done, from those who either at the time still believed they had the right to make a claim and did so or those who, whatever the odds against them, still insisted, when they surrendered themselves, on asserting their right.

54. In the present case, however, I had little difficulty in concluding that the applicant was one of the many who, having learnt that the Hong Kong authorities would not process a claim for right of abode, however disappointed he was, went through the process of surrender without attempting to make a claim.  I am therefore satisfied that his evidence was an invention; evidence, in short, of what he wished he had done at the time rather than what in fact was done.

55. One of a number of matters that I took into account in making my determination was referred to in my first report when I observed (para.434) :

“While, due to the lapse of time, many applicants had difficulty recalling events, this applicant appeared to have a detailed recollection, speaking with force of matters even of the most peripheral significance.  During the course of his testimony the applicant was easily raised to anger.  He spoke with an air of righteous indignation, stating that he had on a number of occasions attempted to assert his belief that he was entitled to right of abode.  Clearly, the applicant felt that he had been dealt with unfairly by the Hong Kong authorities.  In my judgment, however, having portrayed himself as a man of such forceful character, it is puzzling that no record was made by him of his alleged claims.”

56. In giving his evidence, it struck me that the applicant attempted to portray himself as a man of forceful character, a man not easily dissuaded, one who had been determined to make his claim and to deliver documentary evidence of it.  Others admitted to uncertainty.  But the applicant admitted to no sense of being intimidated by authority.  That was why I found it unlikely that, if he was as he professed to be, there was nevertheless no record of any of his asserted claims.

57. It is true that the ID 457 form contains details of his parents’ identity cards.  But the applicant that day was in the company, he said, of both his parents.  It would not therefore have been a difficult matter for him to obtain their identity card details when he completed the form.  They would have been standing next to him.  Many overstayers who surrendered themselves were accompanied by family members, often as not for purposes of moral support or so that final farewells could be made.  In the present case, I did not find that the information contained in the ID 457 form materially advanced the applicant’s case.

58. I emphasise, of course, that each case has to be determined on its own facts as I have found them to be and not on any form of generalisation.

59. In referring this application back to me, the CFA raised the following concern :

“… the judge said in paragraph 438 of the Report that he was unable to accept that Mr Fu surrendered himself on 27 March 1998 solely to process a claim for right of abode.  This might be interpreted to mean that the judge did not rule out the possibility that one of the purposes of that visit could have been to make a claim for right of abode.”

60. The relevant paragraph of my first report was as follows :

“While I accept that the applicant may have had his difficulties with the Mainland authorities in trying to process a claim for a one-way permit and while he may have been uncertain as to the exact state of the law, I am unable to accept that he surrendered himself on 27 March 1998 in such sure knowledge, as he wished to portray, that he was there solely to process a claim for right of abode.” [my emphasis]

61. In coming to my determination of the applicant’s case, I was satisfied on the probabilities that, when he surrendered himself at the offices of the GIS on the 13^th floor of the Immigration Tower, he did not make a claim for right of abode.  My use of the word ‘solely’ – an unfortunately ambiguous use of the word – is to be read in light of the applicant’s own evidence that on that day he had had only one purpose – a sole purpose – for going to the Immigration Tower and that was to claim right of abode.  That assertion of his single or sole purpose was rejected by me.  I was satisfied that his purpose was not to claim right of abode but, as an overstayer who knew at the time that he had no option but to return to the Mainland, was simply to surrender himself.

62. In the circumstances, I am satisfied that the correct determination must remain as follows :

(i)	the applicant did not claim right of abode;
(ii)	there is no record of any claim.*

PART TWO

Madam Wong Fai Fong (3873)

63. This case was heard in December 2004, several months ahead of the others.  This was because of the advanced age of a crucial witness, Mr Wong Mai Mui (‘Mr Wong’), who, at the time of giving his testimony, was 85 years of age.  Accordingly, this application was heard on 21 December 2004.  On 12 January 2005, for the information of the parties, I gave them a copy of my determination, saying that it would be included in this second report.  That determination is reproduced below, altered only so that it may be read as one portion of a larger report.

64. The application was remitted for the determination of two issues.  First, whether the applicant’s alleged father, Mr Wong, is her natural father.  Second, if he is the natural father, whether having been born outside of Hong Kong, he was at the date of the applicant’s birth nevertheless a permanent resident by virtue of paragraph 2(b) of Schedule 1 of the Immigration Ordinance, Cap.115.  Paragraph 2(b) reads :

“	A person who is within one of the following categories is a permanent resident of the Hong Kong Special Administrative Region—
	(a)	…
	(b)	A Chinese citizen who has ordinarily resided in Hong Kong for a continuous period of not less than 7 years before or after the establishment of the Hong Kong Special Administrative Region.”

65. The first issue, that of biological parenthood, was determined by means of a genetic test carried out in January 2004.  That test supported the overwhelming probability that Mr Wong is the applicant’s natural father.

66. The second issue is of narrow compass and may be expressed in the following question.  Had Mr Wong ordinarily resided in Hong Kong for a continuous period of not less than seven years by 10 July 1952, that being the date of the applicant’s birth?  The second issue fell to be determined by considering the evidence of Mr Wong himself.

67. Mr Wong was born in rural Guangdong on 17 July 1919.  Although his memory was failing him and he was at times confused, I am satisfied that Mr Wong was an honest witness; a simple man, largely uneducated, doing his best to remember events that had occurred more than half a century ago.

68. Mr Wong testified that shortly before he turned 16 years of age, which would have been in or about mid 1935, he came to Hong Kong.  He gave two principal reasons for coming here.  First, he wished to avoid being conscripted into the Kuomintang armed forces, conscription applying to all males of 16 or older.  Second, he belonged to one of the lesser families in his home place and, within the rigid hierarchy of those days, this made life difficult for him.

69. Once in Hong Kong, Mr Wong took up a number of jobs.  He worked as a dish washer in a restaurant, he sold firewood and then, to use his own expression, took up work as a coolie at the docks.  By mid 1941, Mr Wong had been in Hong Kong for a period of six years.  Unsurprisingly, having regard to the humble nature of his jobs, Mr Wong had not been able to gather any material possessions of substance.  But I am satisfied that by mid 1941, on any objective assessment, he had been habitually and normally resident here for that period of six years.  Hong Kong was the place where he lived and worked and where, if fate allowed, he intended to remain for the foreseeable future.

70. Towards the end of 1941, however, Mr Wong said that rumours began spreading that Hong Kong would be invaded by Japanese forces.  His ‘colleagues’, he said, warned him that he should leave Hong Kong and, fearing for his safety, he took that advice.

71. When asked to state why he fled the Colony, Mr Wong explained that there was a real fear of what the Japanese forces would do to persons like himself - Chinese men – found in Hong Kong.  I am sure that would have been a very real fear.  The history of those times speaks not only of bombing of urban areas by the imperial airforce but also of recurring massacres of civilians by invading ground forces.  A village in the countryside of southern China, while not immune from the savageries of war, may well have seemed a far safer place.

72. On the balance of the evidence, doing the best I can, I would say that the probabilities support the time of Mr Wong’s departure from Hong Kong as being shortly before the actual attack on Hong Kong by Japanese forces in December 1941, perhaps a month or two before that event.

73. When he fled Hong Kong, Mr Wong had been ordinarily resident here for some six years and four months, a few months short of the required seven years.

74. In his testimony, Mr Wong said that he would never have left Hong Kong if it had not been for the Japanese threat.  As it was, he said, within a month or two of hearing that the Japanese had surrendered, he had left his village and had returned to Hong Kong to live and work here again.  The Japanese forces in Hong Kong surrendered in August 1945.  On that factual basis it may legitimately be inferred, I think, that Mr Wong returned to Hong Kong in the autumn of 1945, about October or November of that year.

75. Once he was back in Hong Kong in late 1945, Mr Wong worked for a time as a coolie and then, having learnt the skill of making tofu, was employed in a series of businesses that made and sold the product.  While working in one of those tofu businesses, Mr Wong was able to bring his wife to Hong Kong.  The two of them then lived here together, Hong Kong being their settled place of residence.

76. Mr Wong’s daughter, the applicant, was, however, born in the Mainland not in Hong Kong.  This came about because in or about late 1951 or early 1952 both Mr Wong and his wife returned to his native place. Mr Wong recalled that his wife was pregnant when they made the return journey although he did not say, or was unable to recall, how advanced her pregnancy was.  The couple returned to the Mainland because they had heard that the Central People’s Government had instituted land reforms and that those reforms were now being implemented in Guangdong.  The reforms included the allocation of land to peasants, said Mr Wong, and they wished to be allocated their portion.

77. It was either while waiting for that allocation, or initially working the land allocated to them, that Mr Wong’s daughter, the applicant, was born.  The date of her birth, to give it again, was 10 July 1952.

78. On the basis that Mr Wong had returned to live and work in Hong Kong after the Japanese surrender in or about October 1945, he had therefore been ordinarily resident in the Colony for a period of some six years and three or four months before returning to take advantage of the land reform programme in his native place.  Even if that period is extended to the date of the applicant’s birth it still falls short of the required seven years.

79. In summary, therefore, the position is as follows.  Prior to the Japanese occupation, Mr Wong had lived and worked in Hong Kong and had been ordinarily resident here for more than six years but less than seven.  After the end of the occupation, he had again lived and worked in Hong Kong and had been ordinarily resident here for more than six years but less than seven.  Neither of those periods therefore, taken on their own, constitute the required seven years.

80. Accordingly, as was agreed, the single issue that fell for determination, was whether, in law, Mr Wong’s absence from Hong Kong during the Japanese occupation had or had not broken the continuance of his ordinary residence here.

81. The phrase ‘ordinarily resident’ (appearing in paragraph 2(b) of Schedule 1 of the Immigration Ordinance) was considered by Lord Scarman, albeit within a different statutory context, in Akbarali v. Brent London Borough Council ex parte Shah [1983] 2 AC 309.  His explanation of the phrase was adopted by Ribeiro PJ in Prem Singh v. Director of Immigration (2003) 6 HKCFAR 26, 51C-52C.

82. Lord Scarman said that the phrase was not a term of art and was to be construed according to its natural and ordinary meaning.  He agreed with the definition given by Lord Denning M.R. when the appeal had been before the court below, the Master of the Rolls saying, [1982] QB 688, 720 :

“Traditionally we ought simply to apply the natural and ordinary meaning of the two words ‘ordinarily resident’ in the context of [the Education Act 1962] … If we were to do that here, I feel I would apply the test submitted by Mr Lester. The words ‘ordinarily resident’ mean that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration.” [my emphasis]

83. Lord Scarman emphasised that the significance of the adverb ‘habitually’ is that it encompasses two necessary features; namely, that residence must be adopted voluntarily and must be for a settled purpose.  In this regard, he said (344C) :

“	The residence must be voluntarily adopted. Enforced presence by reason of kidnapping or imprisonment, or a Robinson Crusoe existence on a desert island with no opportunity of escape, may be so overwhelming a factor as to negative the will to be where one is.
	And there must be a degree of settled purpose. The purpose may be one; or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose.  This is not to say that the ‘propositus’ intends to stay where he is indefinitely; indeed his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family, or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.”

84. Lord Scarman confirmed that, ordinary residence being distinguished from domicile, a person could be ordinarily resident in two countries at the same time.

85. The advantage of adopting the natural and ordinary meaning of the phrase ‘ordinarily resident’, said Lord Scarman (at 344E), was that :

“… it results in the proof of ordinary residence, which is ultimately a question of fact, depending more upon the evidence of matters susceptible of objective proof than upon evidence as to state of mind.”

86. As I have said earlier, I am satisfied that up until the time when Mr Wong fled in late 1941 to avoid the dangers that a Japanese invasion of the Colony presented, he had been habitually and normally resident in Hong Kong for a period of over six years.  He had come voluntarily to Hong Kong and had remained here voluntarily.  He had come to Hong Kong for a settled purpose, that is, to live and work here.  If it was not for the impending invasion, Mr Wong would not have left Hong Kong.

87. Ordinary residence is not automatically broken by a departure.  Depending on the facts of each case, ‘temporary or occasional absences of long or short duration’ are not inconsistent with ordinary residence.

88. Mr Wong’s purpose in leaving Hong Kong, a purpose proved by his later actions, was to stay away for only so long as Hong Kong was subject to Japanese invasion and occupation.  In reality, therefore, he left as a refugee, fleeing the dangers of war.  As soon as those dangers had passed, he returned to Hong Kong and took up his settled way of life here again.  After his return he even brought his wife to Hong Kong.

89. It is, of course, true that Mr Wong remained in his native place for about four years.  But, of course, there was no way he could know how long the war would last.  All he could do was see out the hostilities, waiting for peace and the opportunity to return to Hong Kong.  If hostilities had only lasted a few months, I am satisfied that Mr Wong would have returned to Hong Kong within a few months.

90. It is, of course, also true that Mr Wong returned to his native place – his ancestral home, if you like – and, while the war lasted, lived a settled life there.  But ordinary residence is not to be equated with domicile and, depending on the facts, a person may be ordinarily resident in two countries at the same time.  Accordingly, even if for the period of the war Mr Wong was ordinarily resident in his native place, that does not of itself prevent him from also being ordinarily resident in Hong Kong.

91. Indeed, having regard to all the facts, I am satisfied that Mr Wong did remain ordinarily resident in Hong Kong between late 1941 and the autumn of 1945 when he returned to the Colony and resumed his ordinary and settled life here again.

92. In the circumstances I am satisfied that by 10 July 1952, the date of his daughter’s birth, Mr Wong had ordinarily resided in Hong Kong for a continuous period of not less than seven years and was therefore a permanent resident.

PART THREE

Madam Kwok Siu Wan (1624 : a ‘group one’ applicant)

93. The applicant was born in Fujian Province in 1959.  Her native dialect is the fuqing dialect.  I am told that at all times material to her application she was a married woman with a husband and children living in the Mainland.

94. The applicant’s parents came to Hong Kong in the early 1980s.  Attempts were made to obtain a one-way permit so that the applicant could join them but they were unsuccessful.

95. In March 1997, the applicant came to Hong Kong as a visitor.  She overstayed.  It is clear that the applicant – like so many others – overstayed in the hope that, with the change of sovereignty, she would be able to claim right of abode through her parents.

96. A few days after the change of sovereignty, on 8 July 1997, the applicant went to the Immigration Tower to enquire whether it would be possible to ‘register’ herself as a permanent resident.  She went in the company of her brother who was a Hong Kong resident.  The brother’s understanding of Cantonese was superior to that of the applicant who appears at the time to have had only a rudimentary grasp of that dialect.

97. The applicant testified that the two of them went to the information office on the 2^nd floor.  Realising that, as an overstayer, she was liable to apprehension, the applicant said that she remained silent, letting her brother do the talking.  Her brother was informed – in her presence – that it was not possible to ‘register’ in the manner desired.  In the circumstances, leaving aside whatever relevant information the applicant may have discovered from family, friends and the media, she would have left the Immigration Tower that day with her expectations disappointed.

98. At about that time, the applicant’s sister, Kwok Siu Ping, was also in Hong Kong.  She too had overstayed in the hope of obtaining right of abode.  In the early part of her testimony, the applicant said that she and her sister discussed their shared desire to remain permanently in Hong Kong.

99. The evidence revealed that the sister surrendered herself to the immigration authorities at the Immigration Tower on 2 January 1998.  Some five days later, on 7 January 1998, she was prosecuted for overstaying and received a suspended prison sentence together with her fine of $3,000.  On 12 January 1998, she was repatriated.

100. The applicant herself went to the Immigration Tower on 12 January 1998, the same day that her sister was repatriated.  She accepted that she went that day because she had been told that the longer she overstayed the more severe her likely punishment.  In her testimony, she insisted however that she made the visit that day in the expectation that she could successfully claim right of abode.

101. On any objective consideration, it is difficult to accept that the applicant could still have held that expectation.  Her initial enquiry in July 1997 had led to disappointment.  Almost contemporaneously with her surrender, her sister was being prosecuted for overstaying and was being repatriated.  Nor was there any evidence of the applicant being informed of anything between her first visit to the Immigration Tower and the date of her surrender that might encourage her to expect that she could successfully make a claim.

102. The applicant quite clearly understood that the sister’s almost contemporaneous prosecution and repatriation did not help her case.  In the result, she was at pains to avoid admitting any discussion with her sister between 2 January 1998, when her sister had gone to the Immigration Tower, and 12 January 1998, when her sister had been repatriated, or even to knowing at the time that her sister had been prosecuted.  Nor would she admit to any family discussion about the matter.  Her testimony in this respect was manifestly tactical.

103. I accept that the applicant was not an astute witness.  She was often confused and nervous.  It was not disputed that she was also almost illiterate.  In her case, however, I am satisfied that her illiteracy was a result of a lack of education not a lack of wit.

104. As to the applicant’s surrender on 12 January 1998, it should be noted that, while the applicant had gone with her brother to make enquiries on 8 July 1997, despite her apparently profound difficulties with Cantonese, she went this time alone.  Nor did she take any documents with her, for example, copies of her parents’ Hong Kong identity cards.

105. In my judgment, the probabilities indicate that the applicant’s purpose on 12 January 1998 was to surrender herself so that she would be returned to the Mainland without any criminal consequences or with the minimum of such consequences, a purpose which she herself admitted was a – if not the – primary motivation.

106. I have found in other cases that applicants have asserted their right to claim permanent resident status in Hong Kong even though they knew such a claim would be rejected.  They have done so for many reasons; out of defiance, for example, or out of a deeply-held resolve that they had a constitutional right.  In respect of this applicant, however, I am satisfied that she surrendered herself that day for the single purpose of being repatriated with minimum adverse consequence.

107. On her arrival at the Immigration Tower, the applicant went to the offices of the GIS on the 13^th floor.  At the counter, she was given an ID 457 form to complete.  However – alone, illiterate and with only a rudimentary understanding of Cantonese – she said that she could not fill out the form herself.  She therefore waited until she found somebody speaking her dialect and asked that person to complete the form for her.

108. The ID 457 that was completed states the names and gives details of birth of the applicant’s parents.  However, it does not state their Hong Kong address nor, importantly, does it give any details of their Hong Kong identity cards.  In the column reserved for identity card details, the characters for the English phrase ‘not clear’ are written.

109. The ID 457 form, however, does give the name of the applicant’s sister-in-law (her husband’s sister) who was a Hong Kong permanent resident.  That person’s Hong Kong address is given but not the identity card details.

110. Concerning the sister-in-law’s details, it was urged upon me by the applicant’s counsel that I should accept this as documentary evidence of the fact that the applicant, handicapped by her illiteracy, nevertheless attempted to record details of a family member who was a Hong Kong permanent resident : her sister-in-law.  That attempt, it was said, should be read in context as part of the applicant’s attempt that day to make a claim for right of abode.

111. I do not agree.  I do not think it takes the matter further.  The applicant must have known that any claim she made for right of abode had to come through her parents and not other family members who happened to live in Hong Kong.  In any event, the applicant did not give the details of the sister-in-law’s Hong Kong identity card and, on the evidence, did not attempt to obtain such details either in respect of the sister-in-law or, more importantly, her own parents.

112. After the ID 457 had been completed, the applicant returned it to the counter and waited her turn for an interview.  She was interviewed by Ms Leung Wing Yee, an Immigration Assistant.

113. The applicant testified that it was difficult to recall with any certainty what happened during the interview as the officer spoke Cantonese, of which her knowledge was minimal, and there was no interpreter provided.  She was also very nervous.

114. The applicant understood, however, that she was asked why she had overstayed.  She replied in the fuqing dialect that she had not overstayed on previous visits to Hong Kong but on this occasion, with the change of sovereignty, she had come waiting for an amnesty to allow her to claim right of abode.  She said she told the interviewing officer that she wanted right of abode and wanted a Hong Kong identification card.

115. The applicant did not testify to attempting in her rudimentary Cantonese to state a claim for right of abode, strange perhaps if she wanted to make sure she got her meaning across.  Nor did she testify to asking for an interpreter.  On the evidence, therefore, if she made a claim in fuqing, without any use of Cantonese, it would not have been understood by the interviewing officer.  Ms Leung, the interviewing officer, said that she had no knowledge of the fuqing dialect.  Anything said to her in that dialect would therefore have been incomprehensible.

116. However, as I have said, whether in a language the interviewing officer understood or not, I am satisfied that the applicant did not make a claim in the manner alleged or in similar terms.  In my judgment, the applicant’s testimony in this regard is an invention.

117. Ms Leung accepted that there had been no interpreter present during the interview.  If an interpreter had been called that fact would have been recorded.  If, however, she had been unable to understand the applicant, she said, she would have called for an interpreter.  Although she had no independent recollection of the interview, the implication of Ms Leung’s testimony was clear; namely, that somehow the applicant must have made herself at least sufficiently understood in her limited Cantonese.

118. On behalf of the applicant, it was submitted that the failure to call an interpreter worked a material unfairness on the applicant.  Interviewing officers, it was said, had an obligation to take reasonable steps to ensure that persons being interviewed could make themselves understood.  Interviewing officers also had an obligation to ensure that persons being interviewed understood the purpose of it all.  If this obligation was not reasonably discharged then what was recorded during the interview could not be accepted as a reflection of any informed action.

119. I do not contest these submissions.  Even if the applicant’s interview with Ms Leung was fairly peremptory – as I am sure most interviews were – Ms Leung was still obliged to ensure she could understand the applicant and the applicant could understand her.

120. But in the present case – ignoring entirely what was written on the ‘grounds for non-removal’ form – I am unable to come to a conclusion on the probabilities that the applicant may have attempted to claim right of abode, albeit in fuqing.

121. As to the progress of the interview, the applicant recalled that she was handed a ‘grounds for non-removal’ form.  She told the officer that she was illiterate.  She was then handed a paper on which were written Chinese characters.  She said that she was told to copy these characters.  She obeyed, having little, if any, understanding of what she was writing.  In translation, the characters on the document read :

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

122. In respect of this familiar litany, Ms Leung denied that it had ever been her practice to produce pre-written characters, instructing interviewees to copy them.  If an interviewee was illiterate, she said, she would write the characters for them.  The writing, in the present case, however, was not her writing.

123. It being uncontested that the applicant was effectively illiterate, it must follow, in my view, that, being unable to write the characters of her own volition, she must have copied.  In this regard, therefore, I accept the applicant’s evidence and reject that of Ms Leung.

124. This finding, of course, is material.  It must colour how I consider events.  I have asked myself whether, the applicant being found to be truthful in this one regard, it may not follow that, on balance, she should be found to be truthful in other regards too.  In other matters, however, as I have made clear, I have been unable to place any trust in her evidence.  I have found it to be overtly tactical and contrived.

125. But even if I am wrong to reject the applicant’s contention that she made a claim for right of abode, I am satisfied that there is no record of any such claim.

126. The only document capable of constituting a record is the ID 457 completed that day for the applicant by a third party.  That document, however, does not give the Hong Kong identity card details of the applicant’s parents nor even their Hong Kong address.

127. On behalf of the applicant, it was submitted that the failure to give those details was not fatal.  The applicant ensured that the names of her parents, their dates and places of birth and their marital status were recorded on the form.  That, it was said, was sufficient to constitute a record for the purpose of the concession policy.  In support of this submission, reference was made to the CFA’s judgment of 9 January 2004 (given in respect of this court’s first report), particularly paras.28 and 36 :

“	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.  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.
	…
	However, once it is accepted that the form should be viewed in the light of the fact that a claim for right of abode has been made by the relevant applicant, the insertion of the particulars of a parent who has permanent residence in Hong Kong, including the parent’s identity card number, takes on new significance.  When the applicant inserts particulars of a parent’s identity card number and the applicant has claimed or is claiming right of abode, the form does not have a merely neutral character.  The particulars point in the direction of a claim for right of abode, no matter that the form is regarded by the Department as having an essentially neutral character.” [my emphasis]

128. As I understand the submissions made on behalf of the applicant, they were to this effect.  While the giving of the parents’ identity card details is the most obvious way of constituting a record, it is not the only way.  In light of the fact that the Director knows that an oral claim has been made, if enough details are recorded to enable a successful train of inquiry to be instituted then that of itself is sufficient.

129. But in terms of the policy, as I read it, the documentary material must – on its face – constitute evidence that corroborates the making of a claim.  The phrase ‘on its face’, when given its plain English meaning, implies that the material must essentially, considered in context, speak for itself.  That must therefore exclude material which does not speak for itself in any direct way but simply offers up information which, if investigated, may lead to corroborating proof.

130. That also begs the question of just how thorough the investigating process must be.  Although I have heard no evidence on the matter, it may rationally be assumed, I think, that a bare name may be sufficient to enable the Director (if enough man hours are given to the task) to institute a successful train of investigation.  Does it follow therefore that a bare name put on a form is sufficient?  How can a bare name – on its face – constitute corroborating evidence of an oral claim?

131. On behalf of the Director, it was also pointed out that, in its judgment of 9 January 2004, the CFA held that two ID 457 forms which contained the name of a parent (or parents) but gave no details of the relevant identity cards were not capable of constituting a record : see paras.41 and 44 of the judgment, concerning applicants 713 and 3122.

132. My determinations are therefore as follows :

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

Madam Tang Wai Ying (3234 : a ‘group one’ and ‘group four’ applicant)

133. The applicant was born in Guangdong Province in late 1972.  Her father came to Hong Kong in 1979, her mother following in 1993.  It was the applicant’s evidence that she had attempted to obtain a one-way permit to settle in Hong Kong with her parents but had been unsuccessful.  She said that in or about late 1996, however, rumours circulated that, upon the change of sovereignty, children of Hong Kong permanent residents would themselves be permitted to take up permanent residence.  Her parents learnt of this rumour too, she said, and urged her to come to Hong Kong.

134. In the result, the applicant obtained a two-way permit, arriving in Hong Kong in December 1996.  She overstayed, she said, hoping to obtain right of abode after the change of sovereignty.  In respect of this evidence, I am satisfied that the applicant, along with a great many other children of Hong Kong permanent residents, did come to Hong Kong before the change of sovereignty for the specific purpose of claiming right of abode when the change took place.

135. As a general observation, I would say that, although there were a number of inconsistencies in the applicant’s evidence and although on occasions, in an attempt to bolster her case, I believe she was guilty of making assertions based more on what she wished had been the case rather than what her memory truly dictated had been the case, I nevertheless found her to be an essentially credible witness.  In most things, she impressed me as a quiet, thoughtful witness.  When she strayed into areas of evidence tainted by wishful thinking, she had a tendency to become tentative, her testimony being confused.

136. It was the applicant’s evidence that a few days after the handover – there was some inconsistency as to the exact date – she went with her mother to the Immigration Tower to enquire how she could be ‘registered’ for right of abode.  They were informed, however, that no such process was available in Hong Kong.  The applicant remembered her mother telling her that, as there was nobody there to help them, they would try again at a later time.

137. The applicant and her mother only returned to the Immigration Tower on 5 November 1997.  It was the applicant’s testimony that in the intervening period she had paid close attention to news reports but by November 1997, with nothing having been fully resolved – in her mind at least – as to the right of abode question, her mother suggested that they make the visit in order to ‘ask for a clear answer’. 

138. The applicant testified that she and her mother went first to the information counter on the 2^nd floor.  Having shown her expired two-way permit, she and her mother were then referred to the 13^th floor to the offices of the GIS. 

139. When they arrived at the reception counter of the GIS, the applicant said that she spoke to an officer, asserting in substance that she, as a child of Hong Kong permanent residents, should be able to come to live in Hong Kong.  She asked if this was possible.  She was told, however, that it was not possible and that she would have to return to the Mainland to process any such application.  According to the applicant, she protested that she would not be able to do so as she was already too old to qualify in terms of the Mainland scheme.  She said that she also told the officer that her father had been injured at work and that she needed to remain in Hong Kong to look after him.

140. In or about 2002, when she gave a summary of her case to her then solicitors, Pam Baker & Co., it is recorded that it was her mother who spoke to the officer at the counter.  Her mother, it was said, showed the officer the applicant’s two-way permit and her own Hong Kong Identity Card, saying that her daughter should be able to settle in Hong Kong now that the handover had taken place.

141. During submissions, the applicant was criticised for the apparent inconsistency of attributing statements to her mother on one occasion and attributing them to herself on another.  While this was clearly a matter to be given consideration, it did not in this case undermine my belief that the applicant was, as I have said, an essentially credible witness.  First, the case summaries prepared by Pam Baker & Co. had never pretended to be exhaustive in detail.  It must be remembered that a great many summaries were being prepared at the time and were intended to give the general thrust of an applicant’s case rather than set out in intricate detail each and every aspect of it.  Second, it is understandable, I believe, that with the mother and daughter going to the Immigration Tower together, both no doubt being anxious, both may well have repeated what the other had said and in various ways supported each other’s claims.  The applicant herself was a reasonably educated woman – not loud but not mute either – and during cross-examination said that both she and her mother had spoken.

142. During the course of the hearings, general evidence was led that, if a person made an application for right of abode at the GIS reception counter, that person’s relevant documents would be copied and he or she would then be referred to a more senior officer to be interviewed.  While that may have been the recommended practice, everything, of course, must be seen in context.  On the 2^nd floor of the Immigration Tower, at the information office, persons making enquiries about claims for right of abode were not recommended for an interview, they were told that they would have to return to the Mainland to process any such claims there.  At other offices of the Immigration Department, there were notices to similar effect.  It is apparent that at the time advice of this nature was generally being given to persons who spoke of a right to permanent residence.  I accept, therefore, that if a determined application for right of abode was made at the GIS reception counter, one that would brook no advice to the contrary, then no doubt the matter would have been dealt with according to the recommended practice.  However, the evidence, I believe, has shown that many less determined applications were deflected by what was entirely proper advice at the time; namely, that there was no mechanism for processing a right of abode application in Hong Kong and that any such application must be made on the Mainland.  In the present case, it was, as I understand it, the applicant’s testimony that she and her mother were given this advice and that their claim was similarly deflected.

143. The applicant testified that at the conclusion of the conversation at the reception counter she was given an ID457 form to complete.  On that form, she wrote down the name of her parents, gave their Hong Kong address and in addition gave details of their Hong Kong identity cards.  The applicant said that she obtained details of her mother’s identity card directly from her but had to telephone her father in order to obtain details of his card.

144. As to why she went to the trouble of obtaining details of her father’s card, the applicant said that, as she wished to obtain a Hong Kong identity card herself, she believed that a clear statement of the details of her parents’ cards may help her.

145. In the course of submissions, the applicant’s counsel noted that, while details of her brother were given on the form, the applicant had clearly not deemed it necessary to contact her brother to obtain details of his identity card.  This ‘selective provision of information’, it was said, was consistent with the applicant putting down the information not simply because it was required on the face of the form but because she believed it may support her application.  I believe there was substance in this submission.

146. In summary, although it has not been the easiest matter to decide, on the probabilities I am satisfied that, when the applicant and her mother were at the reception counter of the GIS, they did together make a claim for right of abode.  I am further satisfied that a record of that claim is to be found in the completed ID457.

147. That essentially determines this matter.  There were, however, other asserted instances of a claim being made for right of abode by the applicant and something briefly should be said of them.

148. After completing the ID457, the applicant said that she was taken to a room where she was interviewed alone.  The interviewing officer was Ms Wong Lai Fong, an Immigration Assistant.  In the course of the interview, said the applicant, she said that she wished to remain in Hong Kong and recalled telling Ms Wong that her father had been injured and that she wished to stay to look after him.  However the words which she wrote on the ‘grounds for non-removal’ form are to different effect.  In translation, they read :

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

149. As to why she wrote those characters, the applicant’s evidence was, in my view, very tentative, an indication that she was straying into areas of wishful thinking.  The applicant recalled being asked why she had overstayed and speaking of her father’s indisposition.  She was told by Ms Wong, she said, that she would have to be returned to the Mainland, that there were formalities that had to be complied with and that she should therefore copy the characters from a piece of paper which was placed in front of her.  The applicant said that she complied without question and did not contemplate complaining even though she appreciated at the time that it was wrong to be made to copy the characters.

150. The applicant’s testimony in this regard must, however, be contrasted with the summary of her case prepared by Pam Baker & Co.  In that summary, she is recorded as having no memory at all of the circumstances in which she came to complete the ‘grounds for non-removal’ form.  She later qualified this in an affidavit by saying that she did in fact have a memory of what occurred.  Nevertheless, in light of her unconvincing testimony and the unequivocal statement appearing in her case summary, I am unable to give any real credence to her evidence as to what was said and done during the interview.  I think it far more probable that by that time, alone with the interviewing officer, the applicant had accepted that she had no choice other than to co-operate with the authorities in the process of her repatriation.

151. In coming to this finding, I have recognised the fact that the characters written by the applicant on her ‘grounds for non-removal’ form were exactly the same, including the punctuation, as those appearing on another ‘grounds for non-removal’ from completed by another surrendered person in the presence of Ms Wong; more than that, the characters were the same as those appearing on ‘grounds for non-removal’ forms completed in the presence of other immigration officers.  Quite patently, the wording used was a well-worn formula.  It was submitted by counsel for the applicant that this could only lead to one conclusion; namely, that some form of standard form containing this formula of wording must have been used by immigration officers including Ms Wong.

152. In respect of this matter, Ms Wong, as I understood her evidence, denied the use of any such standard form.  She accepted, however, that if an interviewee was not sure how to complete the ‘grounds for non-removal’ form, having heard what the interviewee wished to say, she would suggest a summarised version that could be written down in a few characters.  Many interviewees, she said, would tell her that they had overstayed in order to spend time with their families.  In reducing that to a short sentence or too, she said, it was not unexpected that over a period of time she may have suggested the use of exactly same characters to different interviewees.  This practice, she made clear, was not the same as dictating an answer to an unwilling subject.

153. In my view, the probabilities suggest that standard forms may have been used by some officers.  I believe it is equally probable, however, that, with simple, one or two sentence statements, just as Ms Wong testified, some officers may have become so accustomed to suggesting the same formula of words to surrendered persons that they were able to do so by rote without the need for any pre-written guide.

154. In the present case, I am not convinced that Ms Wong, contrary to her evidence, made use of any standard form.  I believe, just as she said, that she may simply have suggested the wording to the applicant.  But the issue is not critical.  As I have made clear, I am not satisfied on the evidence that during the course of the interview the applicant made any claim for right of abode.

155. The applicant was prosecuted for overstaying.  She pleaded guilty.  Having been convicted, the following exchange is recorded between herself and the magistrate :

“	Court :	You are convicted. Do you want to say anything?
	Defendant :	My father was injured at work. I have to look after him.
	Court :	You are sentenced to 1 month imprisonment, suspended for 2 years. Do you understand?
	Defendant :	Understand.”

156. Nothing appears in that exchange to the effect that the applicant believed herself to be entitled to right of abode in Hong Kong.  Her words constitute no more than a fairly common plea in mitigation that the applicant’s breach of the law had been occasioned by an illness in the family.

157. My determinations are therefore as follows :

(i)	the applicant and/or her mother on her behalf did make a claim for right of abode at the offices of the GIS;
(ii)	the Director does have a record of the claim for right of abode made by the applicant and/or her mother on her behalf at the offices of the GIS.

Madam Cheung Choi Ngo (641 : a ‘group one’ applicant)

158. The applicant was born in Fujian Province in 1969.  Both her parents settled in Hong Kong, her father in 1973, her mother in 1978.  Although the applicant’s siblings were able to settle in Hong Kong, she was unable to obtain a one-way permit.  She was therefore raised on the Mainland and was married there.  Three children have been born of the marriage.

159. The applicant came to Hong Kong on 19 April 1996, her two-way permit allowing her to remain for approximately one month.  The applicant overstayed.  This was not the first time she had breached her conditions of stay.  She had overstayed on two previous occasions.  On one of these earlier occasions, to avoid detection, she had altered the date on her two-way permit.  By honest means or otherwise, the applicant had clearly been determined to spend as long as possible in Hong Kong.

160. On this occasion in 1996, it was the applicant’s evidence that she overstayed for two principal reasons.  First, she wished to help care for her father who had had major surgery.  Second, once she had learnt of a possible amnesty for the children of Hong Kong permanent residents, she wished to remain until the change of sovereignty to see whether it would be granted and whether she could benefit from it.

161. It was the applicant’s case that a few days after the change of sovereignty she and her mother went to the Immigration Tower to see if an application for right of abode could be made.  The applicant said that she remained outside the building while her mother went up to the 13^th floor to enquire about the process.  Her mother reported to her that she had been told that adults had to process their claims on the Mainland and could not do so in Hong Kong.  Her mother told her, she said, that she should not go up to the 13^th floor as she would be arrested and repatriated.  From that time on, of course, the applicant would have had no doubts as to the policy of the Hong Kong immigration authorities.

162. As it turned out, the applicant was arrested less than two weeks later.  During the hearing before me, the circumstances of her arrest were disputed.  It is clear, however, that she was arrested when it was discovered that she was an overstayer.

163. As to the arrest, the police records indicate that the applicant was arrested on the 12^th floor of a commercial building outside or close to the premises of a company called the Wah Chun Polybag Company, the arrest being the result of an ‘overstay raid’.  It was the applicant’s evidence, however, that she and her father were stopped outside the building.  Her father did not have his identity card on him and the party had to make their way up to the 12^th floor to retrieve the card from the applicant’s mother who worked as a cleaner in the Wah Chun Polybag Company.

164. It was submitted on behalf of the respondent that the applicant’s version of events was simply not believable.  Why, for example, would the mother be holding the father’s card?  It was submitted that the applicant should be disbelieved in respect of the incident and that this should colour my opinion generally of the applicant’s reliability as a witness of the truth.

165. But while I accept that certain of the probabilities may have told against the applicant, I could not say that her version of events was plainly untrue.  So often in matters of this kind, if the matter had been subject to full investigation, I believe a credible middle version may have been found.  For example, the applicant and her father may have been escorted up to the 12^th floor and, after enquiries, the arrest made there.  It is to be noted that no suggestion was ever made that the applicant was working in the Wah Chun Polybag Company.  Nor, as I understood it, was it contested that her father, an unwell man, was, as she said, present at the time of her arrest.

166. While I accept that the applicant’s past willingness to act dishonestly in order to stay in Hong Kong was a matter which weighed against her, I was nevertheless impressed by the manner in which she gave her evidence and the generally balanced content of it.  In short, I found her to be essentially credible.  She gave her evidence of events in a clear, straight-forward manner.  Too many applicants were patently selective in their testimony.  I do not believe this is a criticism that could justly be levelled at the applicant.

167. In respect of the incident of her arrest, for example, despite the fact that certain documentary evidence seemed to tell against her, she did not become aggressive or evasive.  She simply explained as best she could what she remembered.  I cannot say that the police documents were inaccurate but nor can I say that the applicant gave a false story in respect of her arrest.  Indeed, as I have indicated, I felt confident that, if it had been possible to fully explore the matter, the applicant’s version of events may well have been confirmed.

168. At the time of her arrest, the applicant said that both of her parents spoke to the police saying that all the family, with the exception only of the applicant, were Hong Kong residents and that she wished to stay and live here too, surely having the right to do so.  The applicant said that she backed her parents in this.  I do not discount the fact that in desperation, knowing that their daughter was likely to be prosecuted and repatriated, the applicant’s parents may have pleaded with the police in the manner described, the applicant joining them.  But there is no record of what was said and done at the time, the police notebooks having been destroyed.

169. The day after her arrest, the applicant was transferred to the Victoria Immigration Centre.  Upon her arrival, she was interviewed by Ms Rosina Ho Suet Han, a Senior Immigration Assistant who was responsible for assessing whether immigration offenders referred by the police should be given their liberty on the strength of a recognisance.  It was Ms Ho’s evidence that at that time she was conducting up to 20 interviews a day.  Not surprisingly, she had no independent recollection of the applicant’s interview.

170. It was the applicant’s evidence that in the course of the interview she told Ms Ho that her father was not well, that she would like to be able to stay to look after him and that, as the child of Hong Kong permanent residents, she would like to be granted a ‘walking permit’ which would allow her to remain in Hong Kong.  Ms Ho, she said, said little in reply, just taking out various forms for completion.

171. One of the forms was a consolidated document, the top half being for personal data, the bottom half being a declaration made in respect of an application for recognisance.  As the applicant was effectively illiterate, she said that Ms Ho completed the document while she supplied the relevant information.

172. The information recorded on the form includes the name, date of birth and identity card number of the applicant’s father, he being the person to provide the recognisance.  It was the applicant’s testimony that she supplied these details including the number of her father’s identity card.  On her evidence this excluded the possibility that they were supplied at a later date by the father himself.  When asked if she could still remember the identity card number, the applicant was unable to recite it in full.  However, she was able to recall the beginning letter and certain of the numbers – evidence, in my view, that, at one time at least, she may well have known the full number.

173. The bottom half of the form, the declaration, contains the printed words : “I understand that I must return to China when the trial is over”.  The applicant said that initially she was unwilling to sign the form.  She said that she was told, however, that if she did not do so, she would not be permitted to leave in order to care for her father and nothing could be done about any ‘walking permit’.  She therefore signed.

174. Ms Ho, who, as I have said, had no independent recollection of the interview, said that the applicant was made the subject of a streamlined procedure, this being for persons willing to be returned to the Mainland.  If the applicant had demanded the right to claim permanent residence or had been unwilling to be repatriated, she would not have been dealt with in the manner she was.

175. But, of course, as another witness, Mr Hui Pit Lim, an Immigration Officer at the Centre, accepted, whether overstayers wished to remain or not, absent compelling reasons otherwise, they were all destined to be repatriated.  It is plain, I think, that inevitable choice at the time for immigration offenders was whether to go back voluntarily, often with the benefit of a few days on bail, or involuntarily, perhaps without that benefit.

176. I have no doubt that from time to time it was necessary for immigration officers – acting in good faith in the ordinary course of their duties – to explain to immigration offenders that if they wished to obtain bail and be allowed back to their families, they would have to supply certain information and sign certain forms.

177. I have no doubt also that from time to time immigration offenders would have expressed a wish not to be taken from their families, or to be allowed to remain, before being advised, or coming to understand, that a temporary period of bail was the best that could be expected.  Again, this is not to suggest bad faith on the part of the immigration officers.  But at the time it was a plain fact.

178. Of course, requests for right of abode did not have to be asserted in a forceful manner.  They could be quietly (or even timidly) made, and no doubt quickly forgotten by interviewing officers in the general bustle of the day.

179. Claims, I believe, may also have been made in the face of knowledge that they would no doubt be rejected.  Desperation, and perhaps despair, have their own imperatives.

180. In the present case, while it has not been the easiest decision to reach and while I suspect that the applicant may have been guilty – in this part of her evidence – of some overstatement, I am satisfied, nevertheless, making allowances for any ‘gilding of the lilly’, that it is more likely than not that the applicant did speak to Ms Ho in a manner that constituted a request, as the child of a Hong Kong permanent resident, to be allowed to stay with her family here, caring for her father.  I am satisfied that the request constituted a claim in terms of the concession policy.

181. The remaining issue is whether, considered in context, there is any record of that claim.  On behalf of the applicant, it was submitted that the form containing personal data and a declaration in respect of bail constitutes that record, the form giving clear evidence that the applicant’s father was a Hong Kong permanent residence.

182. For the respondent, it was submitted that the form was manifestly intended for one specific purpose; namely, to enable consideration to be given to an application for bail.  The inclusion of the father’s details therefore was clearly intended, not as a record of any claim, but so that he could act as a surety.

183. That may be so but the applicant was given no other form, such as a ‘grounds for non-removal’ form, upon which to record her wishes and, as I understood her evidence, she said that she supplied the information concerning her father for two reasons : to demonstrate that he was a Hong Kong permanent resident – an essential prerequisite for obtaining what she described to be a ‘walking permit’ – and, in order to obtain bail.  I do not believe that evidence can be rejected.

184. In my judgment, if an ID 457 form may constitute a record of a claim, it would be wrong in principle to hold that the form signed by this applicant could not.

185. Bay way of a postscript it should be noted that the applicant had asserted that, when prosecuted in the magistracy, she had claimed right of abode.  This was never advanced by her counsel : sensibly so, I believe.  I have read the transcript.  Nothing appears to suggest any form of such claim.

186. My determinations are therefore as follows :

(i)	The applicant did make a claim for right of abode; and
(ii)	The Director has a record of the claim.

Mr So Yik Lung (3028 : a ‘group one’ applicant)

187. This was a curious application, one founded on an unusual set of circumstances.

188. The applicant was born in December 1969 in Fujian Province.  His father came to settle in Hong Kong in 1975, his mother following in 1984.  The applicant had applied for a one-way permit to join his parents but had been unsuccessful.

189. In 1998, believing that, if he was able to enter Hong Kong, he would be able to claim right of abode, the applicant set about obtaining documentation to support his claim.  From the Mainland authorities he obtained a notarial certificate verifying his relationship with his parents and a census record giving his name, date and place of birth, address and occupation.  In addition, his father obtained a certificate of registered particulars from the Immigration Department in Hong Kong and sent it to him. 

190. On 31 December 1998, having obtained a two-way permit and with these documents in his possession, the applicant attempted to enter Hong Kong.  At Lo Wu, however, the applicant was interviewed by an Immigration Officer, Mr Lui Siu Cheung, and refused entry.

191. To understand why he was refused the entry, it is necessary to look first to an ‘internal message’ dated 17 December 1998 sent to officers at the Lo Wu Control Point.  In part, the message read :

“	Recently, a large number of Fujian residents, after landing Hong Kong on their Two-way Permits, have approached the Chinese Visitors Office for extension of stay in order to go through procedures for the right of abode in Hong Kong. Some of them have also sought assistance from the Legal Aid Department for this purpose. …
	In order to prevent these people from abusing the Two-way Permit channel, with immediate effect, the immigration control officers, when examining Two-way Permit holders from Fujian, should enquire of them about their purpose of visiting Hong Kong and whether either of their parents is a Hong Kong resident.  The relatives they claim to visit and their intended period of stay in Hong Kong should also be recorded on the copy of their Two-way Permit.  If anyone is suspected to have come to Hong Kong in the capacity of a visitor to apply for the right of abode, the case should be referred to supervisory staff for further enquiry. Entry of such people should be refused …” [my emphasis]

192. When the applicant – himself a Fujian resident – was interviewed by Mr Lui on 31 December 1998, his luggage was searched and the documents which he had intended to use in support of his application for right of abode were discovered.

193. The applicant testified that he did not admit that his true purpose for coming to Hong Kong was to claim right of abode.  He was aware, it seems, that if he made any such admission he may be denied entry.  Instead, according to the applicant he said that he had come to Hong Kong “to care for his parents”.  Mr Lui’s interview notes were more specific, recording that the applicant had come to visit his parents and to look after his father who would be having an operation.  On balance, it seems to me that the interview record in this respect is more reliable than the applicant’s memory, more especially as the applicant did himself speak of his father having an operation.

194. Mr Lui did not accept the applicant’s explanation.  He concluded (correctly) that the applicant did not wish to come to Hong Kong simply to spend time with his family.  To use Mr Lui’s words, he suspected that the applicant was attempting to take up residence in Hong Kong “without the prior approval of the Director of Immigration”, the chosen method being a claim for right of abode.

195. The interview notes prepared on 31 December 1998 are detailed.  They give the identity card number of the applicant’s father, making it plain that both the applicant’s mother and father were Hong Kong permanent residents.  The notes also make it plain that the applicant was suspected of wishing to enter Hong Kong to seek the right to reside here permanently.  The interview notes, it was submitted, constitute the required record of a claim.  The central question, however, the first question to be determined, was whether the applicant in fact made a claim.

196. On all the evidence, it was quite clear that the applicant came to Hong Kong with the intention of claiming right of abode.  The necessary supporting documents were found in his possession.  But, in my judgment, a mere intention to make a claim is not capable of constituting the actual making of it.

197. It was never suggested by the applicant that, when interviewed, he used clear and outright language to make a claim.  To the contrary, he testified that he did his best to deny any intention of wishing to enter Hong Kong in order to seek right of abode.  In the circumstances, no matter what suspicions Mr Lui may have had as to the applicant’s true intentions, I do not see how it can be held that the applicant asserted a claim for right of abode by denying that he had any intention to make any such claim.  In this regard, in its judgment of 10 January 2002, the CFA made it plain that if a person wished to seek the right to remain permanently in Hong Kong, it was for him to assert that right.  The judgment reads (paragraph 224) :

“Where a person did not indicate in his application for extension of stay or in his interview with Immigration staff that he was claiming a right of abode or that he wanted to await the judgments, but instead relied on other grounds, the Director of Immigration was entitled to regard the application or statement in the interview report as not amounting to a claim for the purpose of the policy decision.  There is no question of unfair or differential treatment.  If a person wanted to continue to stay in Hong Kong, it was for him to indicate his real reason for doing so and that he was asserting a right of abode.”

198. As I have said earlier, it was the applicant’s evidence that in the course of his interview he said that he wished to come to Hong Kong to “care for his parents”.  Even if I accept that the applicant said those words, I am unable to accept that they were capable, even on a generous interpretation, of constituting a claim within the meaning of the concession.  If it was a claim, it was one based solely on a desire for his case to be considered on compassionate grounds.

199. During the course of submissions, it was argued on behalf of the applicant that his claim for right of abode was made by way of conduct, that conduct being the attempt to bring his documents into Hong Kong.  While I do not reject the contention that a claim may perhaps be made by way of conduct, in the present case I am satisfied that the applicant’s gathering of documents constituted nothing more than an act preparatory to the making of a claim.  It must be remembered that in his interview, when asked about the documents, the applicant testified that he gave a fictitious reason for having them.

200. My determinations are therefore as follows :

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

Madam Tsang Kwai Ngan (3299 : a ‘group one’ applicant)

201. The applicant was born in 1955 in Guangdong Province.  Both her parents settled in Hong Kong, her father arriving in 1962, her mother some 19 years later in 1981.  The applicant was raised on the Mainland and married there, two children being born of that union.  The marriage, however, ended in separation and divorce.

202. In his opening submissions, Mr Kwok, counsel for the applicant, said that the applicant would testify that she had made three claims for right of abode.  The first claim, she would say, had been made in November 1997 when she had attempted to leave Hong Kong but had been stopped and interviewed for overstaying.  The second had been made the following day at the offices of the GIS in the Immigration Tower.  The third had been made a year later when, having returned to Hong Kong, she was arrested for having overstayed again.

203. As it was, however, when the applicant came to testify, she asserted that she had claimed right of abode not only on those three occasions but on other occasions too, particularly in the presence of the magistrates who convicted her of the offences of breaching her conditions of stay.  The assertions that she had claimed right of abode in court were disproved by the verbation transcripts.  The applicant nevertheless persisted in those assertions.

204. As a witness, the applicant was slow and dull.  She claimed to be virtually illiterate.  But that does not mean she was totally lacking wit.  During the course of her testimony I gained the strong impression that in her mind she believed that, if she could just make as many assertions as the evidence would allow, then somehow she would be successful.  During the course of his closing submissions, Mr Fok, for the respondent, described the applicant’s recitation of continued assertions as a ‘mantra’.  It was, I think, apt.  

205. In the result, viewing her evidence in the round and in respect of the circumstances of each individual claim, I could place no reliance on the applicant’s testimony as to her claims.  I concluded with little hesitation that, being desperate to remain in Hong Kong with her aged and sickly father, the applicant had testified on the basis of what she had wished she had said rather than what she honestly remembered had been said.  Put shortly, despite the sympathy I felt for her predicament, the applicant did not satisfy me that, on the probabilities, she had made any claim that would entitle her to the benefits of the concession policy.

206. The applicant came to Hong Kong on 31 July 1997, her two-way permit permitting her to remain until the end of August of that year.  It was the applicant’s case that she had two reasons for coming here.  First, she had to look after her father who at that time was suffering from high blood pressure and heart disease, her mother having died a year or so earlier.  Second, she wished to seek right of abode here.

207. In this latter respect, the applicant said that shortly after her arrival she went to the Immigration Tower and made enquiries at the information counter on the 2^nd floor.  She was told, however, that it was not possible to claim right of abode in Hong Kong and that she must return to the Mainland in order to process her application there.  From that early time, therefore, she would have known the official view of the immigration authorities.

208. On 17 November 1997, the applicant attempted to leave Hong Kong via Lo Wu.  It was her testimony that she needed to return to the Mainland to visit her mother’s grave.  Despite being in breach of her conditions of stay, it was her evidence that, having paid her respects to the memory of her late mother, she hoped to be able to return to Hong Kong within a short span of time.

209. Between her initial enquiry at the Immigration Tower and her attempt to leave Hong Kong in November, the applicant had had no further contact, direct or indirect, with the immigration authorities.  When asked if she had thought of making a claim during this time, she answered in general terms that “all along I have been fighting for it”.  Later in cross-examination, when asked why, if she believed she had right of abode and wished to fight for it, she had not sought to claim it during this period, she could only answer : “I did not know how it would work”.

210. When she was interviewed at Lo Wu, the applicant testified that she explained that she was leaving to visit her mother’s grave and explained that she had overstayed in order to look after her father.  She then told the officer, she said, that, as a daughter of permanent residents, she should be allowed to stay in Hong Kong and should be given right of abode.  She was told, however, that it was not possible and that if her father needed her care he could always move to her home on the Mainland.  She was again told that if she wished to seek right of abode she must process her application on the Mainland.  She replied, she said, that she could not do that as she was too old to be included in the Mainland scheme.

211. The applicant’s testimony as to what she said during the interview was, however, at variance with what appears on the face of the interview record even in respect of what at the time would not have been contentious issues :

(i)	No mention is made of the applicant’s apparent intention to return to the Mainland to visit her mother’s grave. To the contrary, the interview sheet records that both of the applicant’s parents were at that time living in Hong Kong. More than that, the interview sheet records that the applicant had overstayed in order to care for her sick mother not her father.
(ii)	The interview sheet also records that the applicant’s husband was dead. This was not true, a fact admitted by the applicant during the course of her testimony. She said, however, that as he had had affairs with other woman, she considered him, in her eyes, to be dead.

212. No mention, direct or indirect, is made on the face of the record of the applicant’s desire to reside in Hong Kong, either by way of a constitutional right or in order to care for a family member.

213. As I have indicated earlier, I am satisfied that the applicant did not make a claim for right of abode while at Lo Wu.  As for the errors in the interview record, while these could no doubt have come about because of a lack of understanding on the part of the applicant or a difficulty in making herself fully understood, it should be noted that a data form completed by the applicant the next day was also shot through with errors, some so fundamental that, in my opinion, they were more likely to have been intentional than accidental.

214. The following day, 18 November 1979, the applicant reported to the offices of the GIS in the Immigration Tower so that she could be interviewed and a decision made whether she should be prosecuted for breaching her conditions of stay.  She attended with a male companion, Mr Fan Tak Chung.

215. The applicant said that when she presented herself at the counter, she was handed an ID 457 form to complete.  It was her testimony that she said to the officer that she had right of abode and that she wanted to obtain a Hong Kong identity card.  The officer told her that she would have to go back to the Mainland to process her claim.

216. It was the applicant’s case that she was uncertain as to the true nature of the ID 457 form but nevertheless – despite what she had just been told by the officer at the counter – she filled it in believing that it may well be a form for claiming right of abode.  She said she spoke to her companion, Mr Fan, asking if this was a claim form and he replied : “Try your luck.”  According to the applicant, both she and Mr Fan therefore believed the ID 457 form to be a document of considerable importance.  But if that was so, the applicant was less than scrupulous in completing the form.  A number of fundamental errors appeared.  In particular :

(i)	Mr Fan is wrongly cited as the applicant’s husband – the applicant’s husband at that time living on the Mainland – and Mr Fan’s Hong Kong address and identity card details are given.
(ii)	The names given for the applicant’s two children are in fact the names of Mr Fan’s children.
(iii)	According to the form, the applicant had no siblings. She admitted, however, that she did in fact have a sister and also a ‘sworn brother’, albeit that both of them were estranged.
(iv)	The name of the applicant’s father and mother are given. But curiously it appears that the mother’s place of birth is given as Hong Kong and her residence as Hong Kong. Nothing is said of the mother being deceased.

217. The applicant did give the details of her mother’s identity card but, in my view, that is not to be taken as supporting her evidence that she filled out the ID 457 form believing that she may be filling out a claim for right of abode.  She was able to give her late mother’s identity card details, she said, because she had kept the card as a keep-sake.  She did not attempt to contact her father to obtain his details.

218. In respect of the ID 457 form, the applicant claimed that Mr Fan wrote out most of the characters and she copied them onto the form.  The two of them, she said, were both almost illiterate.  But that, in my judgment, would not explain how Mr Fan came to be described as her husband and his children as her children.  As I have said earlier, the inclusion of those details smacked very much of a tactical decision, one, I believe, that may have been made in the hope of reducing her culpability for overstaying.

219. When the applicant was interviewed that day, she completed a ‘grounds for non-removal’ form.  On this she wrote :

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

220. It was the applicant’s case that she had no desire to return to China.  But, because she was virtually illiterate, she was given a form by the interviewing officer and told simply to copy the characters from that form.  She was content to do so, she said, because, being illiterate, she did not understand what she was writing and believed she may even have been claiming right of abode.

221. The characters written by the applicant were (in substance) in accordance with a standard formula.  Having regard to the applicant’s level of literacy, the probabilities suggest that she was assisted by the interviewing officer.  But that is not to say that she was deceived as to what she was writing or wrote the characters against her will : on the evidence, I do not think either was the case.

222. On 26 November 1997, the applicant appeared in the Western Magistracy, pleading guilty to breaching her conditions of stay.  According to the applicant, when speaking to the magistrate she asserted her right to live in Hong Kong and asked him if, having been fined, she would then be able to obtain a Hong Kong identity card.  When challenged on this, she shifted her ground, saying that, to the best of her memory, she spoke these words to the court staff and not directly to the magistrate.  However, later she appeared to return to her earlier version.  The transcript of the court proceedings proved that she made no representations to the magistrate of any kind :

“	Court :	Convicted.  Do you want to say anything?
	Defendant :	No.
	Court :	You’re fined $2,000.”

223. In April 1998 the applicant returned to Hong Kong, again on the strength of a two-way permit.  Again she breached her conditions of stay, remaining longer than her permit allowed. 

224. The evidence reveals that in February 1998, before the applicant returned to Hong Kong, her father made an application to the Immigration Department for a ‘Certificate of Registered Particulars’ in respect of himself.  This, it was said, was significant in supporting the applicant’s contention that she wished to come to Hong Kong to claim right of abode here.  The difficulty faced by the applicant, however, is that in the original case summary prepared by her first solicitors, it was said that the father had obtained the certificate on the advice of an immigration officer in order to apply for a one-way permit in the Mainland.  Indeed, the summary contains the following statement :

“After receiving the Certificate, her father went to the Mainland and tried but failed to apply for a one-way permit for Ms Tsang on the basis of their relationship and him being a PR [permanent resident].”

225. On 6 December 1998 the applicant was arrested by police.  Initially, hoping to avoid prosecution, she pretended to be her late mother.  It took a day or so to discover the applicant’s true identity.  During that time she was in custody and, so she said, becoming worried about her father at home in his Tseung Kwan O flat.  The applicant was shown her father’s movement records which demonstrated that he was not even in Hong Kong at the time.

226. While in police custody, the applicant said that she was interviewed and told the police that one of her primary reasons for coming to Hong Kong was to claim right of abode.  However, the police referral proforma (completed as part of the process of transferring the applicant into the custody of the Immigration Department) states only that she had come to Hong Kong to receive an operation.  In cross-examination, the applicant admitted that she had said this as well, even though it was not true, in order to elicit sympathy.

227. Having been transferred to the Victoria Immigration Centre, the applicant was subjected to the standard administrative procedures in respect of bail and investigative procedures to ascertain whether she was prepared to be repatriated and/or should be the subject of criminal prosecution for overstaying.

228. In her affirmation of 3 December 2002, the applicant said that it had been her father who had obtained bail for her.  That was wrong.  Contemporaneous documents show that it was Mr Fan.

229. The applicant was firm, however, in her assertion that, while at the centre, she had made it clear that she was unwilling to return to the Mainland and that despite all the earlier rebuffs, she had sought to claim right of abode.  This claim, she said, had been made during her interview with Ms Candy Wong Ying Fong, a Senior Immigration Assistant, who at the time had been responsible for assessing whether immigration offenders who had been referred by the police to the Victoria Immigration Centre should be given their liberty on the strength of a recognisance.

230. Ms Wong had no independent recollection of dealing with the applicant but testified that if the applicant had not been willing to be repatriated she would not have invited her to sign the proforma ‘grounds for non-removal’ form which, leaving space for the name, was printed :

“I …… voluntarily want to go back to the Mainland of China as soon as possible.”

231. As to any claim for right of abode, Ms Wong said that if the applicant had made such a claim she would have been free to record that claim in writing.  This was not done.

232. As to why she had put her signature on the ‘grounds for non-removal’ form, the applicant said that, when she was told to sign the form, being illiterate, she asked what she was signing and whether – yet again – it was a form enabling her to claim right of abode.  In reply, she said, she was told that she must simply sign or go to jail.  She signed, she said, in the hope of avoiding prosecution.

233. On a consideration of the evidence, I reject any suggestion that the applicant was threatened in the manner suggested by her.  I accept that the applicant may well have signed the ‘grounds for non-removal’ form in the hope of avoiding prosecution but, if she did so, it was a self-induced hope.

234. Upon her arrival at the Victoria Immigration Centre, the applicant had been given a form headed ‘My Personal Data’ and had done her best to complete it.  In that form she again gave the name of her husband as Mr Fan.  But she also gave details of her father and mother, saying both were Hong Kong residents.  At the foot of the form there is a printed request for copies of the identity cards of the parents of the person completing the form.  Against this, the applicant wrote that she could not provide a copy of her mother’s identity card.  She testified that by then she had in fact lost the card.  On another form, however, the applicant undertook to bring a copy of her father’s identity card to the Immigration Department on 10 December 1998.

235. The applicant testified that she had no idea of the purpose of completing the personal data form.  On behalf of the Immigration Department, it was said that information on resident parents and the like was required in connection with the possible granting of recognisances and, if necessary, to facilitate further investigations.

236. There is no doubt, in my mind, that the forms completed on 8 December 1998 are capable of constituting a record of a claim if one was made.  But, as I have said, I do not accept that any claim was made.  Nor, in my view, can the documents themselves be said to constitute a claim.  They are – on their face – standard documents for use by the Victoria Immigration Centre in all kinds of cases.

237. On 23 December 1998, before her repatriation, the applicant was convicted on her own plea of breaching her conditions of stay.  The applicant testified that she was asked if she had anything to say and remembered telling the magistrate that she had right of abode.  The transcript, however, records that all she told the court was that she had overstayed in order to seek treatment for a kidney problem.  Nothing appears on the face of the record to suggest that she made any assertion to the effect that she was entitled to right of abode.

238. As I said earlier, by the conclusion of the applicant’s testimony it was apparent that without any real regard for the accuracy of her memory, if an opportunity presented itself in the chronology of her evidence, she would say that she had claimed right of abode.  To employ Mr Fok’s description, it became a mantra, one sadly without any substance.

239. My determinations are therefore as follows :

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

Madam Sze Shuk Fan (3126 : a ‘group one’ applicant)

240. The applicant was born in Fujian Province in 1972.  Her father settled in Hong Kong in 1978 and in 1990 was joined by the applicant’s mother and her two younger siblings.  The applicant, however, the oldest child, was not granted a one-way permit.

241. The applicant remained on the Mainland, qualifying as a primary school teacher.  I am informed that in 2002 she married a Hong Kong permanent resident and that there is now a child of the union.

242. In 1994, the applicant came to Hong Kong as a visitor but overstayed and was prosecuted before being repatriated.

243. In March 1996 the applicant returned to Hong Kong as a visitor and overstayed a second time.  On this occasion she overstayed, she said, because, having no family on the Mainland, she hoped that she would be able to benefit from a rumoured amnesty that would come into effect on the change of sovereignty and would enable people like her to live permanently in Hong Kong.

244. It was the applicant’s testimony that she therefore remained in hiding until after the change of sovereignty.  However, when the handover took place, she was dismayed to discover that the rumoured amnesty did not materialize.  To the contrary, she learnt that people in her position were being repatriated.

245. The applicant said that, in the hope that more positive developments would take place, she resolved to remain in hiding with her family.  While in hiding, she said, she learnt that a number of abode seekers had instituted legal action in order to enforce what they believed to be their right to remain in Hong Kong.  Still too timid to come out of hiding, the applicant said that she hoped to be able to benefit from any successful result of this litigation.

246. It was the applicant’s evidence that she later learnt from her mother (who had herself learnt it from “fellow villagers”) that apparently the Hong Kong immigration authorities had devised some scheme in terms of which people like her could apply to live permanently in Hong Kong.  She was buoyed up by this news, believing that perhaps it was linked with the right of abode litigation.

247. In the result, she said, on 28 February 1998 she and her mother, together with her younger sister, went to the Immigration Tower hoping to benefit from this new scheme.  The purpose of the visit was therefore to seek the right of the applicant to remain permanently in Hong Kong.

248. The applicant said that her younger sister acted as an interpreter, her own Cantonese still being rudimentary.  The applicant said that she was very nervous and essentially followed the lead given by her mother and her sister.  She recalled some sort of conversation on the 2^nd floor at the information counter and then all three of them going up to the 13^th floor to the offices of the GIS.

249. As to what took place at the offices of the GIS, the applicant accepted that her memory was not good.  She was, as I have already said, very nervous and that made her muddle-headed.  She recalled, however, that her mother went to the reception counter where she spoke to two officers.  Her mother, she said, asked the officers for the forms which would enable the applicant to remain permanently in Hong Kong.  At this time, said the applicant, she was called up to the counter to be identified.  The applicant accepted that she did not have too clear a recollection of what then ensued but she remembered her mother showing her Hong Kong identity card to the officers and also displaying the applicant’s long-expired two-way permit.

250. Although the applicant did not testify directly to the issue, it must be that, on her version of events, she and her mother were then informed that it was not possible for the applicant to apply for right of abode.  I say this because, in a frank admission, the applicant said that, when she came to complete the ID 457 form given to her at the counter, she knew she was not filling out an application for right of abode.  She knew this, she said, because she had been told that, because she had overstayed, she could not remain permanently.

251. But as to the issue of whether on the evidence given, it could be said that the applicant’s mother made a claim for right of abode on behalf of the applicant, I am satisfied that, if the evidence is accepted, it would constitute a claim.  No special litany is prescribed.  The essence of what the mother is asserted to have said and done at the counter could only have been understood as an attempt to make an application for the applicant to be given the right to remain permanently in Hong Kong.

252. But do I accept the applicant’s evidence as to what took place at the counter?  Only the applicant was able to speak to the matter.  Her sister, who also testified during the hearing, appears not to have been close enough to have been privy to what took place at the counter.  I am satisfied, however, that I am able to rely on the applicant’s testimony as being both truthful and, in its broad way, accurate too.

253. The applicant impressed me as an essentially credible witness.  Her demeanour was impressive.  Despite searching cross-examination, she remained calm, almost gentle, and did not, in my view, at any time fall into the trap of attempting to enhance her case by exaggeration.

254. I am satisfied that the applicant had compelling reason to wish to live permanently in Hong Kong.  I am satisfied that she remained here in hiding for so long, hoping somehow to be able to secure that benefit.  I am also satisfied that she and her mother and her younger sister went to the Immigration Tower on 28 February 1998 not simply for the purposes of her repatriation but in the hope that she could apply for right of abode.  I am satisfied that, in the applicant’s presence, her mother made a claim for right of abode to the officers at the reception counter on the 13^th floor.  The mother showed her Hong Kong Identity Card to those officers and the details of that card were recorded on the ID457 form.

255. As to the ID 457 form itself, the applicant said that she was to nervous to complete it all herself and her sister therefore completed it for her.  As I have said, the mother’s Hong Kong identity card details were recorded on the form, showing that she had right of abode.  The applicant said that she was unable to obtain details of her father’s identity card as, to use her words, mobile phones were not so common in those days and she was unable to contact her father.

256. On behalf of the Director, two matters were emphasised.  First, that the applicant herself accepted that, to her knowledge at the time, she was not filling out the ID 457 form in order to apply for right of abode.  Second, that clearly the mother’s details were only recorded on the form because the mother happened to be there at the time and would have had her identity card with her.  Accordingly, the ID 457 form was not capable, in this case, of constituting the record of a claim.

257. I do not agree.  While the admission by the applicant that she knew she was not filling out an actual application form for right of abode is certainly relevant, I do not see that it is determinative.  In the present case, as I have said, I am satisfied on the probabilities that the mother did make a claim on behalf of the applicant and in the applicant’s presence took out and displayed her own Hong Kong identity card as evidence that, through her, the applicant was entitled to reside permanently in Hong Kong.  The details of that same card were then recorded on the ID 457 form.

258. In its judgment of 9 January 2004, the CFA said :

“	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.
		…
	36.	However, once it is accepted that the form should be viewed in the light of the fact that a claim for right of abode has been made by the relevant applicant, the insertion of the particulars of a parent who has permanent residence in Hong Kong, including the parent’s identity card number, takes on new significance. When the applicant inserts particulars of a parent's identity card number and the applicant has claimed or is claiming right of abode, the form does not have a merely neutral character. The particulars point in the direction of a claim for right of abode, no matter that the form is regarded by the Department as having an essentially neutral character.”

259. On the basis of these directions, I am satisfied that in the present case the ID 457 form is capable of – and does – constitute a record of the claim made by the mother on behalf of her daughter.

260. That, in my view, is sufficient to enable me to determine the two issues that I am required to determine.  There was, however, other evidence given, some of it contentious, and some brief mention should be made of it.

261. After the ID 457 form had been completed, it was the applicant’s testimony, supported by her sister, that she and her sister were taken to some sort of interview room.  The mother, however, was told to wait outside.  To the best of her memory, said the applicant, the officer who was to interview her appeared to be busy.  She and her sister were therefore told to wait to one side by the escorting officer while that officer gave her what she believes was a blank piece of paper and told her to write on it why she had overstayed.  To the best of her memory, she said, she wrote characters to the effect that she had wanted to stay to be with her family; that is, to have a family reunion.  It was the applicant’s evidence that this piece of paper was then taken by the escorting officer and was never seen by her again.

262. The applicant said that when the interview itself commenced, she was given a new form, a ‘grounds for non-removal’ form, and asked to complete it, again being asked to state why she had overstayed.  On this occasion, however, she said she recalled being shown a piece of paper on which were written a number of options and was told to copy one of these options.  She said that she asked she could use her own words.  She could not now remember the officer’s exact reply, she said, but she understood that she had no choice in the matter and therefore chose what she considered to be an unsatisfactory but nevertheless most appropriate option.  In the result, the applicant wrote the familiar format of characters :

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

263. The applicant’s sister gave evidence which supported the applicant.  Specifically, the sister recalled the applicant being handed a piece of paper by an officer before the commencement of the interview, and writing on that piece of paper words to the effect that the applicant had wished to stay in Hong Kong to be with her family.  That paper, said the sister, was handed back to the officer who had given it to the applicant.

264. As for the interview itself, the sister said, that in acting as an informal interpreter, she recalled the applicant being asked to copy characters from a sheet placed in front of her by the interviewing officer.

265. The evidence given by the applicant and her sister to the effect that the applicant was given a piece of paper before the interview commenced and asked to state on it why she had overstayed was puzzling.  There had been no earlier evidence given of such a procedure either by applicants or by immigration officers.  On behalf of the applicant, it was suggested that officers in the GIS, being very busy, may sometimes have asked for such statements ahead of the interviews as a method of speeding up matters.  But it was the evidence of Ms Chow Wing Man, the interviewing officer, that it would not speed up anything.  The ‘grounds for non-removal’ form would still have had to be completed during the course of the interview.

266. In my judgment, it was equally possible that, after such a long lapse of time, the applicant and her sister were mistaken or that, in fact, whether it helped good administration or not, that the applicant may in fact have been asked to complete such a document.  Variations of a system are sometimes attempted but never incorporated into the system itself.  On the probabilities, therefore, I have not been able to come to a finding either way.  As for the interview itself, while the evidence of the applicant and her sister was not on all fours, I think it probable that the applicant was assisted in what to write on the ‘grounds for non-removal’ form.  From all of this, however, in my view, the only important finding is that nothing said by the applicant (or her sister) led me to doubt their general credibility such as would undermine my findings that the applicant visited the offices of the GIS that day to seek right of abode and a claim for that right was made at the reception counter.

267. My determinations are therefore as follows :

(i)	The applicant did make a claim for right of abode, that claim being made by her mother on her behalf and in her presence;
(ii)	The Director has a record of the claim.

Mr Yim Shing Cheung (4232 : a ‘group one’ applicant)

268. The applicant’s father entered Hong Kong illegally in 1979 but, by reason of an amnesty, was granted right of residence.  The applicant’s mother joined him in 1988.  By 1997 all three of the applicants’ siblings had obtained right of abode.  The applicant was the only member of the family denied the right to live here.

269. The applicant, who was born in 1972, said that a few months before the change of sovereignty his father visited him on the Mainland.  They discussed the possibility of an amnesty being granted when the change of sovereignty took place.  In the expectation of being able to benefit from this amnesty, the applicant testified that he obtained a two-way permit which allowed him to come to Hong Kong in March 1997, remaining until early June .  The applicant, however, overstayed.  He did so, he said, because his father was ‘betting’ on the granting of the amnesty.

270. However, at or about the time of the change of sovereignty, the applicant testified that he heard news that people in his position were being arrested.  He realised, therefore, that the amnesty described by his father was unlikely to be granted.  The applicant said that shortly after the handover his mother first telephoned and then made two visits to the Immigration Department to see if there was a means by which he could obtain right of abode.  His mother reported that there was no mechanism available to him in Hong Kong and that, on the basis of what she had been told, he would have to return to the Mainland to make a claim there.  The applicant said that, knowing there would be no amnesty, he decided to return to the Mainland.  He had a girlfriend there and wished to be united with her.

271. In the result, he said, on 14 August 1997 he attempted to return to the Mainland via Lo Wu.  However, having overstayed, he was stopped and interviewed.  The applicant’s memory of events of what took place at Lo Wu, he admitted, was now hazy.  He did recall, however, being asked by an interviewing officer why he had overstayed and giving an answer to the effect that his parents were Hong Kong residents and he wished to have a family reunion with them, overstaying in the hope of obtaining a Hong Kong identity card.

272. Whether such a statement would amount to a claim for right of abode as opposed to a statement simply of past purpose is not clear.  In the event, however, the issue does not require determination.  I say that because I am satisfied, on the probabilities, that the applicant did not make a statement of the kind to which he testified.

273. While the applicant was not a plainly incredible witness, being prepared to admit that his memory was fallible and never pushing matters to the point of absurdity, there were a number of reasons why I could place little, if any, reliance on this part of his testimony :

(a)	The applicant was returning to the Mainland that day in the belief that there was no way he could claim right of abode in Hong Kong; he was returning, therefore, to commence his life again with his girlfriend. More than that, as he admitted, his memory of what was said and done that day was hazy.
(b)	The record of interview recorded only that the applicant’s reason for overstaying was ‘to stay longer with parents’. In this regard, the interviewing officer stated on the record that, in his opinion, the applicant had been cooperative during the interview. On the basis that the interview process was a cooperative one, there is little reason to doubt that at least the gist of what the applicant had said would have been recorded.
(c)	Of particular importance, in my view, is that in the summary of his claim prepared by his first solicitors, Pam Baker & Co., nothing was said to the effect that the applicant claimed right of abode at Lo Wu – to the contrary, what was recorded fits in with the substance of the Lo Wu interview record. The summary by Pam Baker & Co. said :
	“	He tried to leave via Lo Wu, but when officers saw from his two-way permit that had overstayed since 7 June 1997, they prevented him leaving.  Mr Yim was interviewed where he explained that his parents are permanent residents and that he had overstayed because he wanted to be with them. He was told to report to Wanchai ID on 19 August 1997.”
(d)	Also of importance, in my view, is the fact that, when interviewed by the Immigration Department in June 2000 so that he could state the basis of his claims for right of abode, even though he had had the opportunity to prepare his statement, the applicant again said nothing of making a claim at Lo Wu. At that time, he relied solely on apparent claims to right of abode made earlier by his mother on his behalf. The translation of what he wrote on 15 June 2000 is as follows :
	“	I came to Hong Kong on a Permit for Travelling to and from Hong Kong and Macau [(No.)2368895] on 26 March 1997 and returned to my hometown on 25 August 1997.  During the period in between, my mother went to the 13/F and the Information Counter of the Immigration Department on 28 July and 12 August 1997 to lay claim to the right of abode in Hong Kong on my behalf.  However, she was told ‘Our Department does not have such a mechanism for the time being. Your son must make the application back on the Mainland.’ I therefore surrendered myself to the Immigration Department on 20 August. After a ruling was made by the Western Magistracy on 25 August, I returned to the Mainland.”

274. During the course of the hearing, it transpired that there may have been more than one officer involved in the interview of the applicant at Lo Wu.  That second officer was not called to testify.  That is a matter which I took into account but, in my judgment, the record of interview materials essentially speak for themselves.  In any event, they are only one of the factors which I have considered in reaching my determination.

275. During the hearing, the applicant was asked why, in June 2000, when he had been given an opportunity to detail all his claims, he had made no mention of a claim for right of abode made at Lo Wu.  The applicant said that, before his interview, he had not been given specific legal advice concerning his own case and had had to rely on a circular letter from his solicitors.  At that time, he said, being guided only by the circular letter, he believed that the emphasis should be placed on the claims made on his behalf by his mother.  This was where, he said, he believed he had the strongest proof.  But if the applicant, as he asserted, had made personal claims – matters also referred to in the letter of guidance – it seems strange to me that some mention at least would not have been made of them, especially as, on his own evidence, the applicant had been anxious to obtain right of residence in Hong Kong.

276. On 19 August 1997, the applicant went with his father to the offices of the GIS on the 13^th floor of the Immigration Tower.  The applicant testified that at the reception counter he was asked by an officer why he had overstayed and recalled replying that he had overstayed for the purposes of family reunion and in order to obtain a Hong Kong identity card.  It was put to the applicant during cross-examination that he would only have been asked this question during the course of the later interview and not at the counter.  The applicant, however, insisted that his recollection of events in this regard was accurate.  But if so, his testimony was at variance with the summary of his case prepared by Pam Baker & Co. which read :

“He went up to the 13th floor and showed the officer his two-way permit and the letter from Lo Wu.  He was given a form to complete in which he had to set out his ‘natural’ family members in HK. He specifically asked the officer if there was any way he could stay in HK, which received a dusty, negative response.” [my emphasis]

277. Ms Chan Ka Man, an Immigration Assistant on duty that day, testified that, if she understood that a claim for right of abode was being made by a person coming to the counter, she would ask that person to provide supporting documents and would arrange for copies of those documents to be supplied to a superior officer together with a completed ID 457 form.  On the applicant’s own evidence, this had not happened.

278. It is possible, of course, that Ms Chan may not have dealt with this applicant.  On behalf of the applicant, it was also suggested that there was no firm evidence that Ms Chan had even been on duty that day, there being no direct evidence as to the duty roster records.  But even discounting Ms Chan’s evidence, I have been unable to place any reliance on the applicant’s version of events.  In the case summary prepared by his first solicitors, the one to which I have just referred, he is recorded as saying that it was he who asked if there was any way he could stay in Hong Kong.  During the course of the hearing before me, however, he said that he was first asked why he had overstayed and only in answer made what (in substance) was a claim for right of abode.  The two versions are substantially different.

279. The applicant testified that the officer at the counter gave him an ID 457 form to complete.  The form gives details of his father’s Hong Kong identity card.  These details were put onto the form, said the applicant, by his father.

280. As to his interview that day, the applicant accepted that he did not have much recollection of it.  He recalled however that the interviewing officer told him that, as he had overstayed, he would be prosecuted.  The applicant recalled being given a ‘grounds for non-removal’ form to complete and being asked to complete it in accordance with a sample answer.  The applicant said that he duly copied the words.  He did so, he said, because he felt he had no choice in the matter.  Quite why he felt he had no choice was never clearly explained.  The applicant, who would have been 23 years old at the time, said that he did feel a little afraid even though he accepted that he had not in any way been threatened by the officer or treated badly.  In the event, he wrote the following :

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

281. In his testimony, the applicant did not appear to suggest that during the interview process he made any claim for right of abode.  He recalled some conversation but could no longer remember its contents.

282. The interviewing officer, Ms Chow Wing Man, did not accept that she gave sample forms to any interviewee.  I do not accept that.  The applicant’s written words are very much in a standard format, one patently either dictated or copied from a sample.  Ms Chow had testified in respect of other applications and, as counsel for the applicant pointed out, her other interview records also contained standard format statements.  But whether or not a dictated or written answer was provided to the applicant does not, in my opinion, take the matter much further.  The applicant accepted that he had not been subject to any undue pressure.  On his own evidence, therefore, if he had been determined to put down that he sought right of abode he would have been able to do so.

283. In summary, therefore, as to the making of a claim for right of abode, it was the applicant’s case that he had made oral claims on two occasions; first, at Lo Wu and, second, at the reception counter of the GIS.  But, for the reasons given, I do not accept that he made a claim on either occasion.

284. 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 Leung Tak Kwan (2137 : a ‘group two’ applicant)

285. The applicant was born in Guangdong Province in October 1970, one of four siblings.  His father came to live and work in Hong Kong in 1981, his mother joining him in 1986.  Only one of the applicant’s siblings, the youngest child of the family, was permitted to come to Hong Kong to settle permanently with the parents.

286. In 1986, the applicant applied for a one-way permit to join his parents in Hong Kong.  That application was refused.  The written refusal makes it plain that the applicant was not eligible under the one-way permit scheme and should not apply again.

287. The applicant, a quietly confident young man, testified that he still hoped to find some way of coming to settle permanently in Hong Kong.  In August 1997, he said that his father came to the Mainland and the two of them visited the local Public Security Bureau in order to obtain application forms for inclusion in the ‘Certificate of Entitlement’ scheme.  According to the applicant, however, the staff at the Bureau knew nothing of the scheme.

288. The applicant came to Hong Kong as a visitor in January 1998, his two-way permit permitting him to remain until April of that year.  It was the applicant’s testimony that he hoped somehow to be able to further his claim for right of abode during this visit.

289. The applicant said that about 10 days after his arrival, he went to the information counter on the 2^nd floor of the Immigration Tower to ask whether he could apply for right of abode, benefiting perhaps from a successful conclusion to the ongoing right of abode litigation being conducted by ‘the children’ of Hong Kong permanent residents.  It was the applicant’s recollection that he was told that this litigation would only apply to minor children and that, as an adult, there was no way that he could benefit from the litigation even if it was successful.

290. The applicant testified that on 4 April 1998, the last day that he was permitted to remain in Hong Kong, he went back to the information counter on the 2^nd floor of the Immigration Tower.  This time he went with his father.  His father was with him, he said, in order to prove the fact that the applicant was entitled to right of abode through him.

291. The applicant said that he informed the counter staff that both his parents were permanent Hong Kong residents and that he would like to apply to remain permanently in Hong Kong.  He said that he was again informed that there was no such mechanism available to him and that, if he wished to live permanently in Hong Kong, he must apply on the Mainland for a one-way permit.  According to the applicant he then enquired if he could be allowed to stay in Hong Kong in order to help care for his mother who was not in good health.  He was informed that this would not allow him to remain permanently in Hong Kong but the staff at the Chinese Visitors Office may agree to an extension of stay.

292. The applicant went forthwith, with his father, to the Chinese Visitors Office.  He showed an officer at the counter a medical slip relating to his mother’s illness and said that he was then given a form to complete.  This form clearly bears the heading : ‘Application for an extension of stay’.

293. It was the applicant’s case that, having put down certain details on the form, he went back to the counter and spoke briefly to an officer.  He asked the officer if he could put down on the form that he had right of abode.  He was told that he could not do so as the form was only concerned with the applications for extensions of stay.  In the result, said the applicant, in that section of the form which requires a statement of his reasons for wishing to remain longer in Hong Kong, he wrote the words : ‘Because my mother does not feel well’.

294. However, beneath that endorsement, in a box bearing the direction : ‘Particulars of spouse and/or children if included in your travel document’, the applicant gave his mother’s name.  In addition, he gave the full details of her Hong Kong identity card number and both her place and date of birth.

295. As to why he should give these details when they did not appear to be required, the applicant said that he wished to apply for right of abode but there were simply no forms available.  There was here, however, some space for him to put down the details of his mother.  His mother was the person whom he wished to help care for in Hong Kong.  He wished to make it plain, he said, that she was a permanent resident and that he had the right, through her, to remain permanently in Hong Kong.

296. The applicant said that when he took the completed form to the counter, the officer who examined the form put a line through the details of his mother’s identity card and place of birth, indicating that it was not relevant.  The applicant was granted a two-day extension and, it appears, left Hong Kong at the end of that extension.

297. The father was called to give evidence concerning the events of 4 April 1998.  I have given little, if any, weight to his evidence.  While I expected the father to be partisan, his evidence was tailored entirely to support what the son said.  Frankly, I doubt whether the father had any real recollection of events that day so many years earlier.

298. However, my assessment of the applicant’s credibility was altogether different.  I found him to be a credible witness.  There were many occasions, especially during cross-examination, when he could have exaggerated his evidence or coloured it to try and enhance his case.  He did not do so.

299. In light of the fact that the applicant had apparently gone to the information office on the 2^nd floor of the Immigration Tower some 10 days after his arrival in Hong Kong and had been informed at that time that he could not seek right of abode in Hong Kong, he was asked why, on 4 April 1998, both at the Immigration Tower and that the Chinese Visitors Office he purported to make the same claim.  As I understood it, it was the essential thrust of the applicant’s answer that, while he expected to get the same answers, he knew policies were changing and was of the view that, if he did not at least press the issue, he would never know if there had perhaps been a change of either policy or procedure that worked to his advantage.

300. Listening to the applicant’s evidence, I was satisfied that in 1998 he was looking for some way to secure residence here and was frustrated at the inability to do so.  It is plain that the applicant (and his father) had been attempting for some time to secure the right to live in Hong Kong.  The applicant himself, as I have said earlier, struck me as a confident young man, one quite capable of pressing a claim if he felt strongly enough about it even if he knew that it was inevitably going to be rejected.

301. The applicant, of course, knew, when he went to the Chinese Visitors Office, that it was an office which dealt only with extensions of stay.  But that of itself, in my view, is not determinative.  Evidence was led that there were large notices placed on the walls of the office telling people that, if they wished to settle in Hong Kong, they must make their applications on the Mainland.  The notices were there to discourage people making claims, the reasonable inference being that this was because there had at least been some history of claims being made at that office.

302. In my judgment, the applicant’s brief conversation with a counter officer during which he asked if he could write on his form that he had right of abode was, when viewed in the round, capable of constituting an oral claim for such right.  Certainly, in my view, it would have been well understood by the officer involved in that conversation that the applicant was asserting a right of abode and was merely asking whether he could endorse the form with that assertion.

303. The crucial issue, of course, is whether on the probabilities I can be satisfied that such a conversation took place.  It has not been the easiest of issues to decide.  At the end of the day, however, I am satisfied that the probabilities do support the applicant.  I am satisfied therefore that he did make an oral claim for right of abode that day at the Chinese Visitors Office.

304. I am further satisfied that a record evidencing that claim is in the possession of the Director, that record being the form completed by the applicant which bears his mother’s name, identity card details, place and date of birth.

305. I accept, of course, that in all probability the applicant did not bring his mother’s identity card with him nor did he telephone his mother for the details.  The number appears on a medical slip which the applicant had in his possession that day to prove that his mother was infirm.  I have also taken into account that it would have been very easy for the applicant to give details of his father’s identity card as well, his father being with him at that time.

306. On behalf of the Director, it was submitted that the probabilities plainly show that the details appearing on the application form were not related in any way to a claim for right of abode but were there only to support an application for a brief extension of stay based on the illness of the mother.  In my judgment, however, the applicant had two reasons for putting down the details of his mother, the one integral to the other.  The applicant was seeking an extension of stay based on his mother’s ill health but at the same time he was putting down on the form evidence of the fact that, as he saw it, he did have the right to remain in Hong Kong, that right coming through his mother, the very person whose ill health was his concern.  The details of his mother were not required in order to obtain his extension.  The form did not seek such particulars.  Nevertheless, they were given.

307. The completed form has to be viewed in light of the fact that, on my finding, a claim for right of abode had been made.  The insertion of the particulars of the mother accompanied by evidence that she had permanent right of residence in Hong Kong therefore took on a new significance notwithstanding the fact that the form itself was never intended as a vehicle for claiming right of abode.

308. My determinations are therefore as follows :

(i)	The applicant did make a claim for right of abode;
(ii)	The Director has a record of the claim.

Mr Tsoi Ching Chung (3387 : a ‘group one’ applicant)

309. The applicant was born in Fujian Province in February 1986.  He is the eldest of three brothers.  I am told that one brother lives in Hong Kong, the other in the Philippines.  The applicant’s father came to live and work in Hong Kong in 1978, his mother following in 1986.  By the change of sovereignty, both were permanent residents.

310. The applicant came to Hong Kong on 1 April 1997 as a member of a tourist group.  He was scheduled to return two weeks later.  However, he remained in Hong Kong with his parents.  The probabilities indicate that the applicant came to Hong Kong with the intention of seeking right of abode.  He gave evidence that, prior to his arrival, rumours had circulated among his clansmen that after the change of sovereignty an amnesty would be granted to the children of Hong Kong residents.  He also gave evidence that he had read pamphlets to the same effect.  It appears that a deliberate decision was made by the applicant and his family that he should seek to come to Hong Kong as a member of a tour group rather than on a two-way permit, the fear being that, in the months before the change of sovereignty, the Mainland authorities may put a clamp on the issue of two-way permits.

311. Apparently, within a week or so of his arrival, the applicant and his mother – the mother taking an active role in representing her son’s interests – went to the Chinese Visitors Office to enquire whether an extension of stay could be granted so that the applicant could apply for right of abode.  They were told, however, that the applicant would have to return to the Mainland to process any claim there.

312. As to what happened after the change of sovereignty, it was the mother’s evidence that she was well-aware that many people would be seeking right of abode in the days following the handover and that if she and her son delayed there was a real risk that the Hong Kong authorities would move to prevent too large an influx of immigrants from the Mainland.  In the result, she said, as soon as the change of sovereignty took place she made a number of enquiries with the Immigration Department.  She was informed, however, that there would be no amnesty.  She admitted that she had also read media reports at the time to the effect that claimants for right of abode were being arrested.  As I understood the mother’s evidence, however, although it was asserted in a defensive, guarded way, it was to the effect that in July 1997 issues concerning right of abode remained uncertain.  She said that she heard different versions.  There was, for example, she said, some talk about people obtaining right of abode if they claimed it between 1 and 10 July 1997.  As the mother expressed it, the Government appeared to have one version of events, others had other versions; by this, I presume she meant that the Government was believed by some to be wrong in law.

313. I have referred to the mother’s evidence because, in my view, her evidence was the defining evidence.  I mean no disrespect when I say that the applicant himself struck me forcefully as being a man, not simply uneducated, but of limited intelligence.  It appears he never progressed further than junior primary school and, before coming to Hong Kong, had been unemployed.  After so many years, it was debatable, I think, whether he really had any memory of events in the days following the change of sovereignty.  In assessing the applicant’s evidence, I had little hesitation in concluding that he had been coached, certainly as to the broad outline of his case.  The mother, Madam Cheng, was therefore the critical witness.  She was of a very different character to her son; very protective of him, strong-willed and forceful to the point often of being argumentative.

314. It was the evidence of both the applicant and his mother that a claim for right of abode was made at the Immigration Tower on 23 July 1997.

315. During cross-examination, it was put to the mother that by that date both she and her son knew full well that there was simply no hope of any form of amnesty and that the longer the applicant remained in Hong Kong the more stringent the likely punishment when he was eventually forced to surrender.  The mother, however, denied that the purpose of the visit that day had been simply to surrender for purposes of her son’s repatriation.  She was firm in her evidence that on 23 July 1997 she and her son still wished to ‘clarify’ whether there was any way he could claim right of abode.

316. The mother testified that she and her son went first to the information counter at the 2^nd floor.  She asked if people in the position of her son had the right to claim right of abode.  She admitted that she was told that her son must return to the Mainland.  Yet again, therefore, she received negative advice, the position being ‘clarified’ that her son could not obtain right of abode in Hong Kong.

317. The mother could not remember clearly whether she and her son were referred to the offices of the GIS on the 13^th floor or to other offices on the floor above.  Her evidence in this regard was confused.  It is clear, however, that, as a member of a tour group party who had overstayed, the applicant was referred to the offices of the Outside Investigation Section (‘the OIS’) on the 14^th floor.

318. It was the mother’s testimony that, on arrival at the upper floor, she and her son spoke to the officer at the reception counter.  She spoke on behalf of her son, saying that he was seeking right of abode in order to stay permanently in Hong Kong with his parents.  According to the mother, the officer replied to the effect that there was no such thing as an application process of that kind.  The mother testified that her son’s travel papers were then examined and at the reception counter itself they were given an ID 457 form to complete.

319. It was, however, the evidence of the Director that in the OIS it was the practice for the ID 457 to be completed during the course of the interview and not before it commenced.  Whichever way – and I do not think a great deal turns on it – the form, it appears, was completed by the mother, the son placing his signature upon it.  The form gives the names of the applicant’s parents, their correspondence address in Hong Kong and the mother’s identity card number.  The form also contains particulars of the applicant’s brother, a Hong Kong resident.

320. During the course of submissions, it was emphasised on behalf of the applicant that the form contains no details of the applicant’s brother in the Philippines nor any details of the applicant’s wife and child on the Mainland.  This ‘selective provision of particulars’, it was submitted, indicated that the mother was emphasising only the applicant’s Hong Kong connection, that itself being evidence that she was at that time seeking to claim right of abode on his behalf.  Against that, however, the mother herself accepted during the course of cross­-examination that, when she completed the ID 457, she really had no idea of its nature or purpose.

321. The officer on duty at the reception counter that day was Ms Lam Mei Kuen.  It was her evidence that all ‘package tour overstayers’ were subject to investigation and would be referred to Team One of the OIS.  Ms Lam had no independent recollection of dealing with the applicant and his mother but said that, if a claim for right of abode had been made, she was at that time under standard instructions to refer such a claim to her superior.  The register book for that day shows however that the applicant and his mother were referred to Team One only, there being no record of any referral to a senior officer.  Ms Lam, who impressed me as a credible witness, accepted that, whether a claim for right of abode was or was not made, an overstayer would still have to be the subject of investigation.  However, she was firm in her evidence that, if what she understood to be a claim for right of abode had been made, she would in the first instance at least have referred the matter to a senior officer.

322. While I accept that Ms Lam was only able to rely on what she believed she would have done as a matter of standard practice and while I accept that perhaps enquiries as to right of abode – as opposed to unambiguous claims – may have been deflected with a simple answer that they could not be made in Hong Kong, on the probabilities I am satisfied that neither the mother nor her son made a claim for right of abode at the reception counter that day.

323. It must be remembered that the applicant’s mother had already made enquiries concerning right of abode at the information counter on the 2^nd floor and had been informed that it was not possible to make such a claim in Hong Kong.  She had therefore obtained her ‘clarification’.  That advice accorded with earlier advice obtained as a result of a number of enquiries.  When she went to the 14^th floor she could therefore have been in no doubt as to the existing policy.  On behalf of the Director, it was submitted that the mother’s evidence that she made a claim for right of abode on the upper floor of the Immigration Tower was, when viewed objectively, clearly the product of wishful thinking.  I have regrettably being drawn to the same conclusion.

324. It was, however, the mother’s testimony that she made a further claim for right of abode that day, this time when she and her son were interviewed by a member of Team One.

325. The mother said that she accompanied her son into the interview.  Her son was asked to write on a form why he had overstayed.  The mother said that she then spoke to the officer, indicating that her son wished to write down that he had come to Hong Kong believing that there was a possibility of uniting with his parents after the change of sovereignty, remaining here with the security of an issued identity card.  According to the mother, she was informed by the interviewing officer that it was not possible to write this onto the form and that instead the applicant should write something to the effect that he wished to return to the Mainland as soon as possible.  The mother recalls the interviewing officer speaking of the possibility of her son being fined or jailed.  When she heard this, she said, she became frightened and told her son that, as they now had no alternative, they should write whatever was required in order to avoid further trouble.  It was for that reason, said the mother, that she wrote onto the form the characters suggested to her by the interviewing officer.  The English translation of what she wrote is to the following effect :

“I, Tsoi Ching Chung came to Hong Kong as a tourist on 1 April 1997 and was originally scheduled to return along with the tourist group to Fujian on 14 April 1997.  However, as I wanted to stay longer in Hong Kong to keep company with my parents, I overstayed in Hong Kong.  I know that it was wrong and now request the authority to make arrangement for my return to Fujian as soon as possible.”

326. The interviewing officer, Mr Lee Chung Yeung, said that, while he had no independent recollection of the interview, he had no recollection of ever interviewing a person who had sought to claim right of abode.  But if such a claim had been made, he said, he would have followed standard practice, letting the party record the claim, collecting all necessary documents and then referring the entire file to a superior officer.

327. Mr Lee denied that he would have prevented the applicant’s mother from writing down that her son had come to Hong Kong believing he had right of abode or would in any way have raised the threat of imprisonment.  The applicant’s mother, he said, had been free to write what she wished.  But that being said, the characters written by the mother bear a striking resemblance to a ‘grounds for non-removal’ form completed by another applicant interviewed by OIS.  The probabilities, therefore, clearly indicate that the mother was guided, almost character by character, as to what to write.

328. However, that being said, on careful reflection I do not accept that the mother was guided in this matter because she had earlier attempted to assert a claim for right of abode and was being deterred from that path.  In my judgment, viewing the evidence as a whole, I am satisfied that, by the time the mother and her son presented themselves at the reception counter on the 14^th floor, the mother had come to accept that there was no way her son could seek to claim right of abode in Hong Kong and wished, insofar as it was possible, to manage the process of his return to the Mainland with the minimum of prejudice to him.  That meant cooperating with the authorities and, insofar as it would be to her son’s advantage, writing down matters of mitigatory value.

329. The mother’s allegation that the interviewing officer, Mr Lee, used intimidating tactics simply did not ring true.  It was coloured by desperation, the mother, in my view, being prepared to say almost anything that would secure for her son the right to reside permanently in Hong Kong.

330. A number of applicants, having completed their testimony, would make pleas, asking the court to exercise its discretion on compassionate grounds.  The mother did the same.  She said that a number of her son’s friends had obtained right of residence; they had been here for many years and had earned a lot of money.  In my view, that statement was telling.  As it was submitted on behalf of the Director, it revealed that the mother resented that her son had not himself been successful.  It also suggested, I believe, that the mother was prepared to say whatever was necessary to ensure he was successful.

331. My determinations are therefore as follows :

(i)	The applicant did not make a claim for right of abode, either directly or through his mother;
(ii)	The Director does not have a record of any claim.

Madam Wong Sau Chu (3794 : a ‘group one’ applicant)

332. Both of the applicant’s parents came to Hong Kong in the early 1980s.  Over the years they had been joined by a number of the applicant’s siblings.  The applicant herself had twice applied for a one-way permit to join her family in Hong Kong.  Neither application had been granted.  By 1997 the applicant was married and had two children, one very young.

333. It was the applicant’s case that in early 1997 she was told by her father that, in terms of the Basic Law, when the change of sovereignty took place, if she was in Hong Kong she would be entitled to claim right of abode.  The applicant applied for a two-way permit, hoping that she would be entitled to stay for three months, that period straddling the change of sovereignty.  Unfortunately, she said, she was only granted a two-month permit which meant that, in order to seek right of abode, she was forced to breach the restrictions of her stay.

334. The applicant testified that a few weeks before the change of sovereignty her mother was diagnosed with heart disease, giving her an additional reason – a compelling emotional one – to wish to remain in Hong Kong.

335. On all the evidence, it is clear, I think, that the applicant did come to Hong Kong for the purpose of claiming right of abode.  The more difficult issue is whether, in light of events that took place in the days following the change of sovereignty, when she presented herself to the immigration authorities, the applicant still believed she could seek right of abode or whether, as the Director submitted, she had by then come to understand that it was not possible to claim right of abode in Hong Kong and that, having overstayed, she had no option other than to surrender herself so that she could return to the Mainland in order to be with her husband and children.

336. The applicant went to the Immigration Tower with her father on 19 July 1997, two weeks or so after the change of sovereignty.  She went that day, she said, to claim right of abode.  She said that she had planned to go earlier in the company of her father but, as her father was unwell, she had been forced to delay the visit.

337. The applicant admitted that in the days following the change of sovereignty, she had learned that a number of people who had gone to the Immigration Tower claiming to be the children of Hong Kong permanent residents had been arrested.  However, as I understood it, she said that she did not know exactly why they had been arrested.  The media stories were confusing.  The applicant was not a sophisticated person.  Indeed, in one of the forms that she completed in July 1997, she described herself as a ‘peasant’.  But while she might not have comprehended the details, in the guarded manner in which she gave her evidence, it was revealed, I believe, that she nevertheless had a good idea at the time that claims were being turned away and people in her position – overstayers – were being repatriated.

338. The applicant testified that, when she and her father arrived at the Immigration Tower on 19 July 1997, they were uncertain what to do.  The applicant said that she did not, however, go to the information counter or seek directions.  Instead, she said, she and her father saw a person with a two-way permit going into a lift.  They followed.  They went with that person to the 13^th floor, seemingly without any conversation, and continued to follow him or her into the offices of the GIS.

339. The applicant’s testimony in this regard was unconvincing, the more so as she said she was there only to seek right of abode and presumably therefore looking for the office where that would be arranged.  Yet, on her evidence, she made no enquiry downstairs.  She simply followed a person with a two-way permit and, as an overstayer, found herself in the very office that processed overstayers.

340. Upon arrival on the 13^th floor, the applicant said that she went to the reception counter of the GIS and – copying the person whom she had followed – handed her two-way permit to the officer at the counter.  She could not recall if she spoke to that officer.  All she could remember, she said, was that she was handed an ID 457 form to complete.  The applicant admitted that she did not know the purpose of that form.  All she knew, she said, was that she should fill out whatever details were requested of her.  During the course of questioning, the applicant went on to say that she believed the ID 457 was some sort of preliminary personal data form which she had to complete before she was given a form to claim right of abode.  How she had come to this conclusion at the time she did not say.  As to this piece of testimony, I gained the impression that it was invented on the spur of the moment to try and bolster the applicant’s case.

341. As to the completion of the ID 457, the applicant wrote down the names of both her parents, their places and dates of birth and their shared Hong Kong address.  The applicant said that, as her father was with her, she was able to obtain his Hong Kong identity card number and entered it on the form.  However, as to her mother’s identity card details, although she said that she had specifically brought along a copy of her mother’s identity card, she said that, although she intended to use it as a reference, she in fact forgot to do so.  Again, I found this unconvincing.  The ID 457, it must be remembered, was the first form she was asked to fill out, on her evidence therefore the first step in what she thought was an application process for right of abode.

342. It was put to the applicant that she did not, in fact, have a copy of her mother’s identity card with her that day nor did she have a hospital receipt related to her mother – a second document which the applicant said she had with her.  She did not need to have a copy of her mother’s identity card with her because she had not come that day to claim right of abode, she had come instead to surrender herself so that she could be returned to the Mainland to join her family.  Indeed, that was why she had gone to the offices of the GIS, the very office responsible for repatriating overstayers.  All of these suggestions were denied by the applicant.

343. The applicant said that after waiting for a while, she was called into a room for an interview.  Her father, she said, remained outside.  The applicant said that, to the best of her memory, she and the officer spoke in Putonghua.

344. The applicant said that the interviewing officer handed her a ‘grounds for non-removal’ form.  The officer, she said, asked her why she had overstayed in Hong Kong and told her to write down her reasons on the form.  The applicant said she told the officer that she had been waiting in Hong Kong in order to claim right of abode, both her parents being permanent residents.  She told him that, being the child of Hong Kong permanent residents, she was entitled to remain with them in Hong Kong, especially to look after her mother who was not well.  The applicant said that she had the copy of her mother’s identity card and the hospital receipt in her hand so that she could show them to the officer.  She said that she then asked the officer for help to apply for right of abode.

345. According to the applicant, however, she was told by the officer that she could not claim right of abode in Hong Kong and must return to the Mainland in order to process any such application.

346. The applicant said that she was thinking how best she could express her thoughts on the ‘grounds for non-removal’ form; namely, how best she could express the fact that she had overstayed in order to claim right of abode; when, she said, the officer drew her attention to certain characters written on a piece of paper and suggested that she copy these characters onto the form.  The applicant said that she did so.  She did so without any protest or query.  The characters that appear on the form are, in translation, a very standard form of wording :

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

347. During the course of cross-examination, the applicant was asked if she had asked the interviewing officer if she could write something else.  The applicant replied that she could not now remember.  As to why she should so immediately and obediently write what was suggested by the interviewing officer, the applicant said that as an overstayer she was afraid she might go to jail.

348. The applicant had in fact overstayed on a previous visit to Hong Kong in 1995.  On that occasion, although she not been prosecuted, the applicant said she had been put in a detention cell.

349. The interviewing officer was Ms Chow Po Chun.  It was her evidence that, as an Immigration Assistant, she only processed routine cases.  If she encountered unusual cases, she would obtain whatever relevant documents were available and refer the case to a more senior officer.  Ms Chow said that a claim for right of abode would have constituted an unusual case.  She said that if a person wished to record such a claim on a ‘grounds for non-removal’ form, she would not try to prevent it happening.  That form would be among the papers referred to the senior officer.

350. Ms Chow said that if the applicant had made a claim for right of abode and, in support of it, had taken out a copy of her mother’s identity card, she would have kept the copy and recorded it on the file index – together with the hospital receipt – before referring the matter to a senior officer.  No such record appears on the file index.

351. Ms Chow impressed me as a credible witness, open, calm and not argumentative.  I am satisfied on the evidence that Ms Chow would not have persuaded the applicant to write particular characters onto the ‘grounds for non-removal’ form if she knew that this was against the wishes of the applicant.

352. But, of course, in this case the applicant said that she did not raise any objection.  Any reservations she had were kept to herself.

353. Would Ms Chow have followed the routine she testified she would have followed if the applicant had made a claim for right of abode or would she, as other officers had no doubt done, have told the applicant that no claim could be made in Hong Kong and then suggest a routine set of characters to facilitate repatriation?

354. It has not been an easy issue to determine, especially in light of the fact that the applicant did come to Hong Kong for the purpose of obtaining right of abode.

355. In my judgment, however, it was not possible to place any reliance on the essential truth of the applicant’s assertions.  It was apparent to me that much of the applicant’s professed vagueness was a tactic to avoid difficult issues.

356. In my view, the probabilities indicate that the applicant fell into that category of persons who had come to Hong Kong with the intent of claiming right of abode but who, after the change of sovereignty, having discovered – through the media or by making enquiries with the Immigration Department – that it was not possible to do so, had accepted the position and cooperated in the matter of their own repatriation, seeking only to reduce the severity of any criminal penalty they may be visited on them.

357. 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.

Madam Yeung Lai Fong (4149 : a ‘group one’ applicant)

358. The applicant was born in Fujian Province in 1971.  Her father came to Hong Kong in 1978, her mother following in 1986.  The applicant is one of six children.  In 1986, four of her siblings were able to settle in Hong Kong, a fifth being able to do so in 1990.  Only the applicant was unable to obtain the right to live in Hong Kong.

359. In 1991, in an attempt to secure permanent residence, the applicant and her father resorted to criminal means.  In March of that year, the applicant came to Hong Kong in possession of a one-way permit.  The document bore the applicant’s photograph but not her name.  The permit, in fact, had been obtained by one of the applicant’s younger sisters but, as the sister had secured residence in Hong Kong by other means, it became superfluous to her needs.  That was when the applicant and the father altered the document.  Their criminal conduct was discovered in April 1991 when the applicant attempted to obtain a Hong Kong identity card.  Both were prosecuted.

360. Despite the applicant’s conviction, representations were made to the Director not to repatriate her.  When he declined to exercise his discretion in her favour on compassionate grounds, his decision was appealed.  That appeal was unsuccessful.

361. In January 1997, the applicant returned to Hong Kong as a visitor.  By then she was married and had a daughter who was five months old.  The applicant overstayed.  It is clear that she did so in the hope of being able to claim right of abode after the change of sovereignty.  The applicant testified that, before coming to Hong Kong, she had spoken to her husband about her plans and he had been in agreement.

362. During the course of submissions, it was argued on behalf of the applicant that I should take into account this strong desire on her part, and on the part of her father, to secure right of abode.  On behalf of the Director, however, I was asked to bear in mind that both had been prepared to resort to criminal means to obtain right of abode and that I should view their evidence with considerable caution.  In my judgment, both submissions were valid and, in coming to my determination, I adopted them.

363. The applicant accepted that in the days following the change of sovereignty she learned that a number of people who had claimed right of abode had been sent back to the Mainland.  However, it was her belief, she said, that these people could not have had the strong family connections in Hong Kong that she enjoyed.  Her father, she said, had also heard rumours that some people had been able to register their names with the Immigration authorities and had been given extensions of stay.  Accordingly, when she herself went to the Immigration Tower, she said, she was still hopeful of benefiting from an amnesty.  In July 1997, when matters were in a state of flux and rumours were rife, I am unable to reject the applicant’s evidence in this regard.

364. It was on 8 July 1997 that the applicant made her visit to the Immigration Tower.  She did so in the company of her father and a sister.  She also had her baby daughter with her.  The applicant testified that she went to the Immigration Tower that day in order to claim her right of residence under the amnesty which she believed should have been in place.  She knew there was a risk that she would be arrested and repatriated.  However, she said, she was prepared to take that risk.

365. Although she was (understandably) vague as to the question of time, the applicant remembered going to the Immigration Tower in the morning.  She said that her father made enquiries with an immigration officer, speaking of amnesty, and they were directed to the offices of the GIS on the 13^th floor.

366. In early July 1997, the immigration authorities were expecting a large number of claimants for right of abode and had special procedures in place at the Immigration Tower.  On 8 July 1997 – the day when the applicant went to the building – all those claiming right of abode were being programmed to return to the GIS at a later date for further processing.  The processing of claimants who fell into the category of the applicant was, I am told, conducted on the ground floor.  That being the case, it was submitted on behalf of the Director that, if the applicant had been referred direct to the 13^th floor, it had to be inferred that she had not indicated a desire to claim right of abode but simply, as an overstayer, a desire to be processed for the purposes of repatriation.  I was reminded that the applicant at this time had a husband waiting for her in the Mainland and there was good reason therefore for her to desire repatriation.

367. However, just how fool-proof the system for programming claimants was on 8 July 1997 is uncertain.  Ms Olivia Ko, the officer on duty at the reception counter of the GIS on that day testified that immediately after the handover she had been briefed to expect people to approach her reception counter claiming right of abode.

368. It was the applicant’s testimony that, when they got to the offices of the GIS on the 13^th floor, there was a queue.  They joined the queue.  When they got to the counter, said the applicant, she was asked for her two-way permit.  Her father, she said, raised the issue of amnesty with the officer who was examining the permit.  The officer said that there was no amnesty and that the applicant would have to return to the Mainland.  According to the applicant, she then told the officer that both her parents were permanent residents of Hong Kong and that she understood that, with the change of sovereignty, she could claim the right to live in Hong Kong.  The applicant said that her father was asked to produce his Hong Kong identity card.  This he did, speaking again of an amnesty.  The applicant said that the officer became irritated, saying that the applicant would have to return to the Mainland to make an application for a one-way permit.

369. That the officer at the reception counter may have wished to see the father’s identity card is not, in my opinion, inherently unlikely.  The evidence shows that in early July, as a result of the Immigration (Amendment) (No.2) Ordinance, a distinction was being drawn between claimants who were born after their parents acquired Hong Kong permanent residence and those who were born before.  There was also evidence that, to check whether a claimant had been born before or after his or her parents had acquired permanent resident status, the parents’ identity cards would be examined.

370. It was the applicant’s testimony that, after this exchange at the counter, she was handed an ID 457 form to complete.  The form, she said, was completed by her sister.  She said that she was so pre-occupied with her child that she did not recall seeing the written contents of the form.  Unsurprisingly, the form gives the details of the father and the sister.  The details include the number of the father’s identity card.

371. When the father testified, it appeared to be the gist of his evidence that he assumed somehow that the completion of the ID 457 was a ‘registration’ process.  He expected, he said, to learn in due course that his daughter had been duly ‘registered’.  He said that he did not himself read the form as he did not have his glasses with him.  On its face, this appeared to be outlandish evidence.  But the father explained it by reference to his personal experience.  He said he had three children who had come into Hong Kong illegally in the past and, as a result of amnesties, had been able to make some kind of ‘registration’ with the Government which resulted in them being granted rights of residence.  As he put it : ‘at that time my mentality was that I relied on the Government’. 

372. As witnesses, the applicant and her father were a study in contrasts.  The applicant, who gave her evidence in a calm, quiet fashion, impressed me as essentially credible, at least most of the time.  Her father, however, was aggressive and patently prepared to exaggerate whenever he thought it would assist his daughter’s cause.  I viewed his evidence with extreme caution, rejecting a great deal of it.  But that being said, there were core areas of his testimony which could not be dismissed. 

373. The applicant that day surrendered her two-way permit.  She was given a receipt (an ID 328) with a copy of the two-way permit attached.  This was standard procedure.  However, on the face of the photostat copy of the permit, somebody in the Immigration Department wrote the words ‘by letter’.  A line was then put through those words.  It was not possible to identify the officer who had written those words or, if different, the officer who had deleted them.

374. What is known, however, is that at about that time right of abode claimants were being told to go home and wait for letters informing them of their new appointment dates.  Non-claimants, however, were in the main being interviewed on the same day or told to come back within a short period of time, usually the following day.  The writing of the words ‘by letter’ may suggest, therefore, that, at some stage that day, the applicant was treated as a claimant who would be sent home and who would be informed by letter when to return.  Nothing was put before me which would easily explain the endorsement of those words in some other context.

375. The applicant, it appears, was interviewed at about 4:30 that afternoon.  She said that her father, a man who understood Hong Kong, was not allowed to be with her at the time of the interview.  But, as counsel for the Director put it, she was an adult and capable of speaking for herself.

376. The applicant said that the interviewing officer gave her a ‘grounds for non-removal’ form.  She was asked why she had overstayed.  She said she had overstayed waiting for the amnesty.  The applicant said that she was told that she should not write this on the form. 

377. The applicant said that it was her habit, if she had to write anything formally, to draft it out first.  She asked if she could have some papers to do this.  She was told, however, that she should simply write what she was told to write and do so directly onto the form.  She said that she therefore wrote at the dictation of the officer.  When asked what was going through her mind at the time, she said that she was not thinking of anything, simply listening to what the officer dictated.  The English translation of what she wrote is to the following effect :

“My name is Yeung Lai Fong. I came to Hong Kong through Lo Wu on 29 January 1997 together with my daughter Cheuk Yee That. I know that my daughter and I can stay up to 25 February 1997, but have overstayed because of keeping company with my family. Now, I want to return to China as soon as possible together with my daughter.” [my emphasis]

378. In my judgment, the applicant exaggerated, indeed invented, much of her evidence in respect of the interview.  The purpose of the exaggeration was to try and justify why she had not recorded her claim for right of abode on the ‘grounds for non-removal’ form.  But I do not think her evidence can be rejected entirely.  The phrase ‘have overstayed because of keeping company with my family’ is a standard phrase that appeared regularly on these forms.  I am satisfied it was a form of phrase regularly suggested to interviewees who would often not be sure what to write.  As I have said in respect of other matters, on all the evidence, I am satisfied that these interviews were (in the main) peremptory affairs; essentially just another step in the processing mechanism.

379. The interviewing officer was Mr So Tsz Chung, an Immigration Assistant.  He said that if a claim for right of abode was made during the course of an interview, he would seek all supporting documents, have copies made and refer them for consideration to a senior officer.  He had no independent recollection of the interview with the applicant and could, of course, only speak to what his normal practice would have been.

380. Mr So said that, if a parent and child were to be dealt with, normally the same officer dealt with them at the same time.  In the present case, however, the file reference numbers for the applicant and her child were not sequential.  Indeed they were numerically some distance apart.  Mr So could not explain why this had happened.

381. On behalf of the applicant, it was suggested that, while matters were obviously confused, it was entirely feasible that :

(i)	A decision had initially been made to send the applicant home and notify her by letter when she should return to be interviewed; this being a procedure adopted for claimants.
(ii)	The applicant, however, had eventually been interviewed that same day because she had been required to remain so that her baby daughter could be processed too.
(iii)	That, with the number of people coming to the GIS decreasing on 8 July 1997, upon completion of her child’s formalities, it then became possible – that same day – for her own interview to take place late in the afternoon.

382. Is this a feasible scenario?  Bearing in mind the pressures on the immigration authorities at that time and that in early July 1997 they must still have been in the process of perfecting their systems, I am unable to say it is not feasible.  In short, I think it may have happened.

383. This has not been the easiest of matters to resolve.  However, although I am satisfied that both the applicant and her father were prepared to exaggerate their evidence when they thought it would benefit them, I am unable to reject as untruthful their evidence that at the reception counter a conversation did take place which, when viewed objectively, constituted an assertion by (and on behalf of) the applicant that she was entitled to right of abode.

384. There is also certain evidence – slim, I agree – that suggests that at some time that day the staff at the GIS may indeed have acted on the basis that the applicant was claiming right of abode. 

385. Underlying this, despite the caution with which I have approached the father’s evidence, I have had to accept – on the probabilities at least – that it was unlikely that the applicant and her father would meekly have submitted to her repatriation at a time when many others were actively seeking to claim right of abode, indeed were queuing up to do so, without at least in making some attempt to do so themselves.

386. On the probabilities, therefore, I have been drawn to the conclusion that the applicant, together with her father, did make a claim for right of abode on 8 July 1997.

387. As to the existence of a record, that is to be found in the ID 457 form.  The fact that the applicant herself did not fill out the form nor take any real interest in it at the time is not, in my judgment, a factor which destroys its corroborative value for the Director in the management of the concession policy.

388. During the hearing, evidence was led of the applicant attending the Chinese Visitors Office in October 1998.  The applicant did not rely on this visit as proving her right to benefit under the concession policy.  While she said that she sought to claim right of abode that day, it was accepted that there was no record of her claim.  As to that matter, I am satisfied that no reliance can be placed on the applicant’s contention that she made an oral claim for right of abode that day.  In considering the applicant’s credibility generally, I have, of course, taken into account her evidence of what allegedly happened at the Chinese Visitors Office.  But it has not convinced me to reject the essential substance of the applicant’s testimony concerning her visit to the Immigration Tower in July 1997.  In their desperation to prove their cases, virtually all applicants have, to some degree or another, gilded their testimony.

389. 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 the claim.

Madam Lau Man Chu (1936 : a ‘group one’ applicant)

390. The applicant was born in Fujian Province in 1956.  Her father died in 1970.  Eight years later, her mother came to Hong Kong to settle.  The mother was able to bring the applicant’s two brothers but the applicant herself was denied a one-way permit.

391. In December 1993, the applicant came as a visitor to Hong Kong.  She overstayed.  She did so, she said, because she wanted to take care of her mother who suffered from hypertension.  When the change of sovereignty got closer, however, she said she heard rumours of a possible amnesty and hoped that she would be able to benefit from that amnesty.

392. When the change of sovereignty took place, she said, she read the newspapers and watched television, anxious to discover what had happened in respect of the amnesty.

393. It was the applicant’s testimony that on 23 July 1997 she went with her brother to the Immigration Tower.  She went there, she said, in order to apply for right of abode.

394. It was the applicant’s evidence that she approached an officer on the ground floor, telling him that she had come to claim right of abode.  She was referred to the offices of the GIS on the 13^th floor and went there immediately.

395. At the reception counter, the applicant said that she had a conversation with an officer, telling him that she was seeking right of abode.  It was, however, very close to the lunch hour, she said, and she was told to return after lunch.  When she returned, she said that she spoke to the officer on duty, saying that her mother was a permanent resident, that she was her natural daughter and that she should be allowed to apply for right of abode.  According to the applicant, she was told that no such application could be processed in Hong Kong and that she would have to return to the Mainland to apply for a one-way permit.

396. The applicant testified that the officer studied her long-expired two-way permit, showing surprise at how long she had overstayed.  The officer then gave her two forms, an ID 457 and a ‘grounds for non-removal’ form.

397. As to the ‘grounds for non-removal’ form, although both the applicant and her brother testified to completing the form that day, I am satisfied that is a mistake of memory, natural enough after such a long lapse of time.  The applicant was not interviewed that day but was instead instructed to go the following day to the offices of a unit called the Task Force.  On that following day she was interviewed and, in the course of that interview, completed a ‘grounds for non-removal’ form.

398. It was not disputed that the applicant was, however, given an ID 457 form that day; that is, on 23 July 1997.  The applicant said that her brother completed the form and that between the two of them it was agreed that a telephone call should be made to the mother to obtain accurate personal details, specifically in respect of the mother’s identity card.  The mother’s name, date of birth and identity card number were entered on the ID 457 together with the personal details of the brother himself, including details of his identity card.

399. The following day, said the applicant, she was interviewed by an officer of the Task Force.  She was given a second ‘grounds for non-removal’ form – as I have said, I am satisfied it was, in fact, the first – and completed it, ‘as instructed’, in the same manner as the one of the previous day.  In translation, she wrote :

“I, Lau Man Chu, came from Xiamen to Hong Kong to visit relatives by boat by a two-way permit on 7 December 1993.  I knew that commencing on 28 Feb. 1994, I overstayed.  However, as my mother suffered from hypertension, I was required to stay to take care of her.  I now want to return to China.”

400. On 30 July 1997, the applicant was sentenced to imprisonment for ten weeks and upon completion of that sentence was repatriated.

401. It was the applicant’s evidence that on 23 July 1997, at the offices of the GIS, she had twice claimed right of abode in the clearest of terms, the record of that claim resting in the ID 457 form.

402. In my judgment, however, the probabilities very strongly suggest that no claim was made on 23 July 1997 and that the applicant that day had only one intention; namely, to secure her repatriation so that she could join her husband and children in the Mainland.  Indeed, in a number of documents, the applicant admitted that on 23 July 1997 her sole intention had been to secure her repatriation.

403. In September 1999, on a return to Hong Kong, the applicant made a cautioned statement in respect of possible criminal offences.  The offences related to intentionally entering a wrong date of birth on certain Hong Kong immigration documents.  In her testimony, the applicant did not suggest that the statement had been made involuntarily.  Yet in the statement she said the following :

“But I overstayed because I wanted to look after my mother and I thought hat there would be an amnesty after the return (of Hong Kong to China) in 1997 to enable me to have the right of abode. However, seeing that there was no amnesty when Hong Kong was returned (to China), I turned myself in and returned to the Mainland.”

404. Some eight months after she had made this cautioned statement – in May 2000 – the applicant was given the opportunity to present her case for right of abode to the immigration authorities.  She was given time to prepare what she wished to say.  At the interview – in answer to the written question : ‘How did you claim that you had the right of abode in Hong Kong?’ – the applicant began by saying :

“The form did not have such words as ‘claim’ and the like.  I claimed verbally to have it but was refused.”

405. When asked in the course of her testimony what she had meant by this sentence, the applicant answered to the following effect : ‘I meant that there were no characters equivalent to ‘claim’.  To me, surrender was the same as a claim’.

406. Later in the interview of May 2000, the applicant wrote :

“During 1-10 July 1997, when Hong Kong returned to the Mainland, I was in Hong Kong celebrating the return.  I was waiting for amnesty upon Hong Kong going back to China so that I could have the right of abode.  Seeing that there was no amnesty after the return, I went to 13/F, Immigration Tower on 22 July with my Two-way Exit Permit and surrendered myself. … An arrangement was made for me to attend Court on the 28th. The Judge sentenced me to imprisonment for 10 weeks. There was no claim made at that time, I surrendered myself.”

407. When confronted with these and other documents during the course of cross-examination, the applicant appeared to concede that she had not, in any direct sense, made a claim for right of abode on 23 July 1997 but that the act of surrendering was to be taken as making a claim.

408. In re-examination, she confirmed that what she had said had not been misunderstood, her answer to counsel’s question being to the following effect : “At that time I surrendered and to me surrender was the same as making a claim”.

409. In submissions, the applicant’s counsel argued that the applicant’s evidence, when considered as a whole, should be taken to mean that she knew there was no amnesty and that she had no choice other than to surrender herself.  However, even in the knowledge that it was hopeless, she was one of the ‘courageous’ ones who nevertheless made her claim.

410. I reject that submission.  By the time the applicant concluded her testimony, I think even she silently acknowledged that any earlier assertion on her part to unambiguous oral claims had no value and she was left only with the assertion that the act of surrender itself, when a person had been in Hong Kong hoping for an amnesty, should be taken as a claim.

411. But the act of surrender itself, bare of any assertion to the right to live in Hong Kong, is simply not sufficient.

412. I conclude by observing that, in so far as general evidence as to processing may have been relevant, some weight, I think, had to be given to the Director’s evidence that (at about that time) overstayers who at the offices of the GIS claimed right of abode would always be asked to return to the GIS for further processing.  Such persons would not be referred to the Task Force.  The applicant, of course, was referred to the Task Force.

413. My determinations therefore are 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.

PART FOUR

Mr Wong Sai Chak (5006 : a ‘group two’ applicant and, in addition, an applicant who relies on a legitimate expectation arising from a visit to the Legal Aid Department)

414. The applicant was born in Fujian Province in 1961.  His father settled in Hong Kong in 1979, his mother following in 1991.  Both the applicant and his sister were held to be too old to accompany the mother and both were denied a one-way permit.

415. The applicant testified that he learnt of the right of abode issue in early 1997.  He discussed the matter with his father who made enquiries and obtained a certificate of registered particulars from the Hong Kong immigration authorities.  This document certified that the father was a Hong Kong permanent resident.  The certificate was posted to the applicant who said that he used it to try and obtain a one-way permit from the Mainland authorities.  He was told for a second time, however, that he was too old to benefit under the one-way permit scheme.

416. The applicant said that he then applied for and obtained a two-way permit, arriving in Hong Kong as a visitor in May 1998.  The applicant said that the primary purpose of his visit was, to use his expression, ‘to fight for amnesty’.  He said that it was common knowledge in Fujian Province at the time that many people from the area were in Hong Kong fighting for right of abode.

417. On the evidence, it was, I think, plain that the applicant came to Hong Kong hoping to secure permanent residence here.

418. It was the applicant’s testimony that he decided to make his claim for right of abode at the Chinese Visitors Office (‘the CVO’) in Yau Ma Tei.  He chose this office, he said, because he had heard that extensions of stay were dealt with there and understood that the office may also issue Hong Kong identity cards.  ‘Anyway’ he said, ‘I went to give it a try’.

419. On the first occasion, the applicant said, he went to the CVO simply to see how matters were dealt with there.  Put simply, it was a scouting expedition.

420. The applicant’s choice of the CVO appears to have been a choice adopted by a number of right of abode seekers.  The evidence revealed that there were notices on the walls of the CVO at about this time intended specifically for such people.  The notices were to the following effect :

“2-way Permit holders coming to Hong Kong are remaining in Hong Kong as visitors, they need to return within the validity of stay in Hong Kong. Secondly, Mainland residents who wish to settle in Hong Kong need to apply for One-way Permits.”

421. On behalf of the Director, it was said that, if the applicant had gone to the CVO to see how matters were dealt with there, he would surely have seen one of the posters and learnt that he could not apply for right of abode.  I do not think that necessarily follows.  Some people are more perceptive than others.  But, as I have said, what it does show is that, if there was a need for the posters, it was because claims for right of abode had been made, and were being made, in those offices.

422. The applicant said that he returned to the CVO on 3 June 1998 in order to make a claim for right of abode.

423. The applicant said that he went to a counter where he was given a number tag and a blank ‘application for extension of stay’ form.  Just after he received his number tag, said the applicant, he spoke to the officer at the counter, informing him that he wished to apply for a local identity card so that he could remain in Hong Kong.  He told the officer that he wished to remain in Hong Kong in order to give long-term care to his father who had had an operation on his leg.

424. According to the applicant, the officer told him that it was not possible to process claims for Hong Kong identity cards.  The applicant said that he tried to reason with the officer but it was made clear to him that he could not obtain an identity card.

425. To the best of his memory, said the applicant, he was then handed the blank ‘application for an extension of stay’ form.  In all the circumstances, said the applicant, his request having been refused, he decided to apply for a ten-day extension of stay in Hong Kong, giving him time to think how best to proceed further.

426. The applicant testified that, when he made his visit to the CVO on 3 June 1998, he took his parents’ identity cards with him.  To my recollection, however, he did not say that he actually showed these cards to the officer at the counter in order to support his claim for the issue of a Hong Kong identity card.

427. On behalf of the Director, evidence was led to show that in June 1998 the applicant’s mother was not entitled to a card that identified her as a permanent resident.  It was suggested that the applicant would not have taken his mother’s identity card to the CVO unless it confirmed that she was permanent resident.  But, of course, the father’s card identified him as a permanent resident while the mother’s card showed that she was also legally resident in Hong Kong.  I can understand the applicant deciding to take both cards with him.

428. On behalf of the Director, evidence was also led that, if a person asked about right of abode, the counter officers were briefed to refer that person to the information office on the 2^nd floor of the Immigration Tower.  The applicant did not testify to being referred to the information office.  But the applicant, after such a long period of time, did not say that he had a perfect memory of everything that was said at the counter.

429. The applicant was criticised for being argumentative and petulant.  This was, in respect of some parts of the applicant’s evidence, a valid criticism, especially when the applicant was cross-examined as to a later visit made by him to the offices of Legal Aid.  But in respect of this conversation at the counter, I am unable to say, on the probabilities, that it did not take place.  I think that it may well have taken place and that, in substance, it constituted a claim for right of abode.

430. But, while on the balance of probabilities, I am satisfied that the applicant did make an oral claim for right of abode, I am not satisfied that the Director has a record of any such claim.

431. The only form completed by the applicant that day was the ‘application for an extension of stay’.  In stating why he sought an extension, the applicant wrote Chinese characters to the following effect :

“My father had an operation on his leg and is now unable to take care of his daily life. My mother is old and has asked me to say for a few days more to help him. I now apply for extension of 10 days.”

432. It was the applicant’s own testimony, as I understood it, that, after his claim for a Hong Kong identity card had been refused, he then decided to apply for an extension of stay in order to give him time to decide what to do next.  On his own evidence, therefore, he did not fill out the form intending to make it known that he was seeking right of abode.  He filled it out for the limited purpose of applying for an extension.  That, in my view, is how the form reads.

433. While the applicant gave his Hong Kong address; by implication, the address in Hong Kong of his mother and father, he did not give the names of either of his parents nor any details of their identity cards.

434. The form on its own therefore cannot, in my judgment, constitute a record for the purposes of the concession policy.

435. On behalf of the applicant, however, it was submitted that all the records made that day, if read together and in context, were sufficient to constitute a record.  It was put this way :

(i)	At the counter the applicant asked to stay in Hong Kong on a long-term basis, being given a Hong Kong identity card.  At that time that would not have been recognised as a claim for right of abode.  Hence the notation ‘ENQ’ in the counter register, meaning ‘enquiry’.
(ii)	The applicant thereafter sought an extension of 10 days.  Hence the deletion of the notation ‘ENQ’.
(iii)	An extension of 10 days, however, was more than was invariably permitted, the invariable extension being only two days.
(iv)	The terse record of interview shows that 10 days was being sought, the reason being the sickness of the father.
(v)	These records, when read together, show that the applicant’s case was not a ‘routine’ one.  It commenced with an ‘enquiry’ – which the Director now knows was in substance a claim for right of abode – and then became an application to remain in Hong Kong for a longer period than was permissible.
(vi)	In all the circumstances, the records, together, are capable of amounting to evidence that a claim for right of abode was made.

436. These submissions were superficially persuasive.  But regrettably I do not see that records which only go to show that a particular case was not ‘routine’ are capable, on their face, of constituting a record.

437. In my first report (para.37), I said that it is for the court, viewing matters in context and abandoning a narrow or technical approach, to judge, on the balance of probabilities, whether in substance the documentary material – on its face – constitutes evidence that a claim for right of abode has been made.  I do not believe that that basic approach has been disapproved.

438. The records in the present case, however, even when read together, show nothing of the basis upon which the applicant has sought to claim right of abode.  There is no evidence of the identity of either parent nor, critically, of the fact that either of them has right of permanent residence in Hong Kong.  In fact, the applicant’s mother, who was described by the applicant in his application form as being ‘old’, was shown not to have right of permanent residence at that time.  A bald statement of the age or frailty of a parent, with nothing more, is not capable of constituting evidence of that parent’s right of permanent residence in Hong Kong.

439. In the circumstances, therefore, not without difficulty, I have been drawn to the conclusion that the Director has no record of the applicant’s claim made at the CVO.

440. It was the applicant’s evidence that after his visit to the CVO, and after his extension had expired, he did not return to the Mainland.  He overstayed.  He was aware of the on-going litigation, he said, and he wanted to remain in Hong Kong to see if that litigation would, as he put it, ‘give him a chance’.

441. It was the applicant’s testimony that he read the newspapers and spoke to friends and in or about September 1998 he decided to become a litigant himself.

442. The applicant said he visited the Legal Aid Department in or around September 1998.  He could not remember the exact date.  He said that, having been given a number tag, he was interviewed.  He told the legal aid officer that he wished to apply to stay in Hong Kong and to obtain a Hong Kong identity card.  He was told by the officer, he said, that, as litigation was underway, it was not necessary for him to be formally joined to the litigation.  If the litigation was successful, he could return with his number tag and he would benefit in the same manner as the litigants themselves.

443. The applicant, however, was not able to produce the number tag which had been given to him at the offices of the Legal Aid Department.  He said that the tag had been lost.  In my judgment, his evidence in this regard was, however, entirely unsatisfactory.

444. The applicant at one time seemed to say that he placed no value in keeping the number tag because he felt he could not trust the Legal Aid officer.  The officer, he said, had not asked to see copies of his parents’ identity cards and had not recorded any pertinent details.  That, he said, was the cause for his distrust.  At another time, however, the applicant appeared to accept that he knew at the time that the number tag was very important.

445. In the result, there was no independent evidence to support the applicant’s contention that he had gone to the Legal Aid Department in or about September 1998.  The applicant could not produce the number tag.  He could not remember the number itself.  There was no record of his particulars in any form of register at the Legal Aid Department.

446. When cross-examined as to his visit, the applicant became very argumentative, his testimony rambling. 

447. In the case summary prepared for him by his first solicitors, Pam Baker & Co., the applicant made no mention of his visit to the Legal Aid Department.  He ended the summary by saying that he decided to overstay in Hong Kong ‘to await the next development’ in the right of abode litigation.  When questioned on this, he replied with very little conviction that, as the number tag had been lost, he simply saw no reason at the time to even mention the visit.

448. On behalf of the Director, it was submitted that the alleged visit to the Legal Aid Department in or about September 1998 had never happened.  I think that is correct.  It is, in my view, highly unlikely that, if the applicant had been given a number and interviewed in the manner he described that the Legal Aid Department would have had no record of any kind of his attendance.

449. On behalf of the applicant it was said that, if I was prepared to accept his evidence as to what had happened at the CVO, I should also accept his evidence in respect of his visit to the Legal Aid Department.  That does not follow.  Many of the applicants who have testified – perhaps fearing that what actually happened would not be convincing –

have embellished the truth or invented additional pieces of evidence.

450. The Legal Aid Department did have a record of the applicant but that record shows that he first registered with the Department in February 1999.  That, I am satisfied, was his first registration.  I am convinced that the alleged visit in or about September 1998 did not take place.

451. My determinations are therefore as follows :

(i)	The applicant did make a claim;
(ii)	The Director, however, has no record of any claim;
(iii)	The applicant is not entitled to benefit from any legitimate expectation.

Madam Chong Chui Ching (1015 : a ‘group one’ applicant and, in addition, an applicant who relies on a legitimate expectation arising from a visit to the Legal Aid Department)

452. The applicant was born and raised in Fujian Province.  Her father settled in Hong Kong in 1978.  Four years later he was joined by the applicant’s mother and her two siblings.  However, the applicant herself – as the oldest child – was not granted permission to settle in Hong Kong.

453. The applicant came to Hong Kong in April 1995 as a visitor.  She overstayed.  She said that she did so in anticipation of being able to claim right of abode after the change of sovereignty.  When the change came, she paid close attention to the news and saw that many people in her position were being repatriated.  She therefore remained in hiding.  She was arrested on 23 December 2997, prosecuted for overstaying and, after serving a short term of imprisonment, was repatriated.

454. The applicant returned to Hong Kong on 4 October 1998, her two-way permit permitting her to remain until 25 December of that year.  The applicant testified that, when she returned to Hong Kong in late 1998, she did so with the specific intention of attempting to claim right of abode.  There is evidence to support her in this regard :

(i)	Before her arrival in Hong Kong, she applied for a notarial certificate from the Mainland authorities in order to prove her blood relationship to her parents. This document was collected by her husband and posted to her after she had arrived in Hong Kong. There could only be one reason for obtaining for this document : as support for a claim for right of abode.
(ii)	After she had arrived in Hong Kong, her parents obtained a declaration from a Hong Kong firm of solicitors. This declaration again stated the relationship between the applicant and her parents, giving the Hong Kong identity card details of both parents. This declaration, however, appears to have been addressed to the Mainland authorities, not to the Hong Kong immigration authorities. In this regard, for example, having set out a brief family history, the parents declared the following :
	“	Therefore, we [the applicant’s parents] hereby apply to the relevant authority in China for our daughter, Chong Chui Ching, to come to settle down in Hong Kong so that, in addition to reuniting our family, our daughter may take care of and keep company with her parents so that the elderly may have someone to rely on.”

455. The applicant, in her testimony, appeared to suggest that the declaration prepared by the Hong Kong solicitors was intended, in part at least, to support any claim she made in Hong Kong.  On the evidence, it has not been possible to come to any finding of fact as to exactly why the declaration was obtained, whether it was intended purely to support an application for a one-way permit if and when the applicant returned to the Mainland or whether, in the eyes of the applicant and her family at least, it was intended also to support a claim made in Hong Kong.  But it does prove one thing; that is, a determination by the applicant (and her parents) to secure her right of residence in Hong Kong.

456. The applicant testified that on 17 December 1998 she went with her mother and father to the Immigration Tower.  The purpose of the visit was to seek right of residence in Hong Kong.  The applicant said that on that day she had three documents in her possession; her two-way permit, her notarial certificate and the declaration prepared by the Hong Kong solicitors.

457. The applicant said that her knowledge of Cantonese at that time was limited.  While she could understand a fair amount, she had more difficulty speaking it.  Accordingly, she said, at the entrance to the Tower, to avoid any difficulties arising out of her limited knowledge of Cantonese, she wrote out on a piece of paper the nature of her intended request.  That piece of paper, she said, was still in her possession.  In translation, the note read as follows :

“	Dear person in charge of the Immigration Department, Hong Kong:
	My father Chong Man Tak (sic) and my mother Lok Lai Chu are both Hong Kong permanent residents. I have right of abode in Hong Kong. Please allow me to undergo formalities for applying for residence. Thanks!”

458. If the note was, in fact, written that day and was, in fact, presented to an immigration officer, it would clearly have constituted a claim.  However, for reasons to which I refer later, I have grave doubts as to the authenticity of this document.

459. After the note was written, the applicant testified that she and her parents went to the 2^nd floor of the building, to the information office.  The applicant said that, when her turn came to be served, she produced all her papers and showed the officer her written request.  The officer studied the papers, shook his head and, with a smile, told her that she would have to return to the Mainland in order to make an application for right of abode.

460. The applicant said that her mother then stepped forward to ask if the applicant could at least be given an extension of stay.  The officer said that any application would have to be made at the CVO.  According to the applicant, the officer then took out a printed sheet of paper which bore a list of addresses.  He circled the address of the CVO.  The applicant said that she had retained this document too.

461. It was a standard immigration form, bearing the serial number ID 91 (3/99).  The document, however, could not have been given to the applicant that day.  I say that because it was not in print at that time.  Evidence showed that the final draft of that document did not go to the Government Printer until February 1999, more than two months later.

462. It was a damning piece of evidence against the applicant and, in my judgment, proved that, in order to better support her case, she had been prepared to create false evidence.

463. On her behalf, it was submitted that she may have collected the form from the CVO in July 1999 when she made an application for an extension of stay and may simply have confused the order of things.  That may have been how the applicant came into possession of the document.  I do not accept, however, that she may have confused the order of things.  It was not a question of confusion, it was a matter of a deliberate concoction.

464. On behalf of the Director, it was said that, in light of this false testimony, it would be an affront to common sense for the applicant to be believed in any material respect in her evidence.  However, while this piece of false testimony has made me approach the applicant’s evidence with extreme caution, it would be wrong, I think, to hold that a single falsehood must thereby destroy all of the applicant’s evidence.  A witness may lie in one part of his or her evidence but tell the truth in respect of another.  Nor is a lie to be used against a witness as some form of punishment.

465. On behalf of the Director, it was submitted that the applicant’s evidence that she made a visit to the Immigration Tower on 17 December 1998 was in all respects a fabrication.  I do not go that far.  In my view, the probabilities support the fact that a visit was made that day.  I have grave doubts, however, that the applicant wrote the note which she exhibited, the one she said she had written before going into the building.  On the probabilities that I think was also a piece of false evidence.  

466. I do accept, however, that in all probability an enquiry was made at the information office.  An enquiry, of course, does not amount to a claim for right of abode.

467. But, even if I am wrong in that regard and what was said at the information office did constitute a claim, I do not see that there is any evidential record of that claim in the possession of the Director as required by the concession policy.

468. However, the matter does not end there.  The applicant testified that, when she and her parents left the Immigration Tower, they met a clansman from Fujian Province.  They spoke with this man who suggested that the applicant go to the Legal Aid Department to register herself as a litigant in the on-going right of abode litigation.

469. The applicant said that she and her parents took his advice and went immediately to the Legal Aid Department.  She testified that when they got to the Legal Aid Department it was crowded.  When her turn came to be served, said the applicant, she produced all of her documents for the legal aid officer to read.  To the best of her memory, however, the officer was only really interested in her two-way permit.  The officer told her that, as her permit had not yet expired, there was no urgency in her case and she should return at a later date for a formal appointment.

470. According to the applicant, the legal aid officer did confirm, however, that right of abode litigation was underway and also confirmed that the eventual judgment would apply to the applicant as well as to the litigants themselves.

471. As evidence of the fact that she was at the Legal Aid Department that day, the applicant exhibited a paper tag and also a standard form of notice, both documents bearing the seal of the Legal Aid Department :

(i)	The paper tag, which had on it the number ‘22’, also bore the handwritten endorsement : ‘21 December, 11 a.m.’. This, said the applicant, was the date and time given to her to return to the Legal Aid Department for a formal appointment.
(ii)	The notice was in Chinese characters.  In translation, it read :
	“	Attention, please:
		For the application, please bring along with the following documents for verification and provide with copies for retention by this Department :
		(1)	Birth certificate or Notary certificate of birth,
		(2)	Applicant’s travel permit, census record or census book,
		(3)	Applicant’s travel document, and
		(4)	Identity cards of applicant’s parents (Father or mother is required to attend in person).”

472. As it was, said the applicant, she was not able to return to the Legal Aid Department on 21 December 1998.  A day or so after her visit, she received news that her father-in-law had died in the Mainland.  It was therefore necessry for her to return to her home in Fujian Province urgently in order to be with her husband and his family.  The evidence revealed that the applicant did leave Hong Kong on 21 December 1998, five days before the expiration of her two-way permit.

473. It was the applicant’s evidence, as I understood it, that, even though she was unable to keep her appointment with the Legal Aid Department, she did not at the time consider it to be a critical omission.  She expressed herself as follows : “I did not feel that I had to do anything else to protect my position.  I thought about the words of the officer.  I had been told the judgment of the court would be applicable to me.”

474. On the evidence, I am satisfied that the applicant did go to the Legal Aid Department on 17 December 1998.  I am satisfied that she was given the number tag and also the formal notice, being told to return on 21 December 1998.  The applicant had only one reason for going to the Legal Aid Department; namely, her desire to be counted as one of the litigants in the on-going right of abode litigation.  Although she was not ‘processed’ by way of a full interview that afternoon, having heard her evidence, I am satisfied that she did make some form of enquiry with the legal aid officer with whom she dealt and was informed by the officer – albeit, no doubt, in general terms only – that the eventual judgment would apply as equally to her as to the litigants themselves.

475. It must be remembered that the applicant’s parents were with her that day.  It must also be remembered that the applicant had her notarial certificate issued by the Mainland authorities and a detailed declaration prepared by the Hong Kong solicitors setting out her relationship with her parents.  These documents were given to the Legal Aid officer.  In such circumstances, even upon a cursory look at these documents, I do not think it would have been unusual for the officer to give some form of assurance.

476. The officer, of course, would have been expecting matters to be formalised at the forthcoming interview.  But, nevertheless, I am satisfied that the oral assurance given was sufficiently clear, unambiguous, and firm in its terms, to create a legitimate expectation on the part of the applicant that she would now be treated as a litigant.

477. When the applicant first gave her instructions to Pam Baker & Co., the summary of her case, written in English was somewhat ambiguous.  But, in my view, it is nevertheless supportive of the applicant’s testimony before me.  The summary read (in part) :

“… in the afternoon Mdm Chong [the applicant] attended the Legal Aid Department and sought to apply for legal aid to assert her claim. LAD was busy at the time with RoA claimants. Mdm Chong does not recall precisely what was said. She remembers she was told quite a lot of things by the officer and in particular, she recalls the officer explained there were representative cases being heard in court and that as her two-way permit had not expired, hers was not an urgent case. ... She was, in any event, told by the LAD officer that which gave her the same legitimate expectation as those to whom the LAD letter was issued.”

478. In her affirmation of 17 August 2004, which the applicant adopted as part of her evidence, her assertion was more clearly defined :

“The officer we saw was a female. She told us that there was a test case proceeding in the courts and that my situation was the same as the applicants in the case. She told me that if those applicants got right of abode then I would too. This reassured me that I did not need to do anything more to protect or pursue my right of abode in the meantime…”

479. As the Legal Aid Department had no record of any particular officer dealing with the applicant on 17 December 1998, it was unable to put forward a witness.  However, a letter dated 29 June 2002 was written to the Director of Immigration.  The letter, insofar as it is relevant, read as follows :

“	We are unable to verify that Ms. CHONG Chui-ching had attended our office on 17 December 1998 as we do not have any record to that effect. Having said that, we are not in a position to rule out that Ms. CHONG might have attended our office as she was able to produce to you a copy of a queue number appointment card stamped with our Department chop. Our practice at the time was that once the daily registration quota was used up, individuals who turned up would be given an appointment card to come back on the next available date to undergo the screening and registration process. In this respect, we did not take down the individual’s details before issuing him / her with a queue number appointment card.
	We are unable to verify whether the alleged conversation had taken place as we are unable to locate and did not maintain any record to that effect.”

480. In my judgment, there is nothing in the Legal Aid letter to undermine the applicant’s testimony.  No suggestion is made in the letter, for example, that the officers were under strict instructions as to what should or should not be said to applicants.

481. In all the circumstances, I am satisfied on the probabilities that the applicant’s evidence as to events at the Legal Aid Department can be accepted.

482. My determinations are therefore as follows :

(i)	The applicant did not make a claim;
(ii)	The Director has no record of any claim;
(iii)	The applicant is, however, entitled to benefit from a legitimate expectation that she would be treated as a litigant in the right of abode litigation and thereby to any benefits accruing to those litigants under the concession policy.

PART FIVE

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

484. Arrangements were therefore made to bring those applicants to court so that their altered state could be explained to them and so that they could state whether they wished to proceed with their applications or not.

485. A number of these applicants appealed the discharge of their legal aid but were not successful.

486. The applicants who wished to proceed with their applications were then given the opportunity to prepare their cases.  In this regard, material prepared for them when they were legally aided was given to them and, in so far as it was necessary, interpretation services were rendered by the court interpreter.  The applicants were also advised that, if they wished, they could be accompanied to court and advised by a person in whom they had trust : a ‘McKenzie friend’ (see McKenzie v. McKenzie [1970] 3 All ER 1034).

Madam Cheung Shuk Ching (720)

487. In early 2004, this applicant was granted a one-way permit by the Mainland authorities.  On the strength of that permit, she arrived in Hong Kong to reside with her family on 25 March 2004 and, at the time of writing this report, continues to reside here.

488. On 15 March 2005, shortly after her legal aid had been discharged, the applicant was contacted by the Department of Justice.  I am told that she informed the government counsel who spoke to her that, as she now had the right to live in Hong Kong in terms of her one-way permit, she no longer wished to pursue her application.  In this regard, it is to be noted, for example, that the applicant did not appeal her discharge of legal aid.

489. On the basis, however, that a one-way permit did not give the applicant immediate right of abode but only an expectation of obtaining that right after a period of residence, attempts were made to contact her to obtain an unequivocal statement of her intentions.  On 21 April 2005, my clerk contacted the applicant by telephone.  I am informed she told my clerk that she was at work and would return his call.  However, she failed to do so.  Accordingly, on 14 May 2005, a registered letter was sent to the applicant seeking a statement of her intentions.  By 1 June 2005, however, when her matter came before me, she had still declined to contact the court.

490. In the circumstances, I saw no purpose in commencing an exercise in her absence to determine her application.  I considered it plain, both from what she had told the Department of Justice and from her failure to press her action, that her true intention was to take her application no further.

491. My determination is therefore that the applicant, by her actions, has withdrawn her application.

Madam Lau Kiu Fan (1922 : a ‘group one’ and ‘group four’ applicant)

492. The applicant was born in Fujian Province in December 1959.  Her father came to live and work Hong Kong in 1978, her mother joining him in 1987.  Having failed to obtain a one-way permit to join her parents, the applicant came to Hong Kong on 19 April 1996 as a visitor.  Her two-way permit allowed her to remain until June of that year.  She overstayed, living with her parents.  She did so, she said, in the hope that upon the change of sovereignty she would be able to secure right of abode.

493. The applicant testified that in the days immediately following the change of sovereignty she heard rumours that an amnesty was being offered to people like her to enable them to obtain right of abode.  Buoyed by this expectation, on either 7 or 8 July 1997, the applicant went with her father to the Immigration Tower.  At the information counter on the second floor, she said that she spoke to an officer, telling him she had heard there was an amnesty being offered to those in her position and that she wished to remain in Hong Kong to care for her parents.  She was informed that there was no such amnesty and that, having overstayed for so long, she must now surrender herself for repatriation.

494. Although disappointed, the applicant said that she remained defiant, telling the officer that she would stay and would somehow get a Hong Kong identity card.  Under cross-examination, she protested that she was not at that time frightened of being prosecuted; she said she did not care about such matters.  This, however, was directly at odds with what she had said in her affirmation of 12 December 2002; namely : “I was disappointed but did not pursue the matter because I had already overstayed for more than a year and I was afraid of being prosecuted”.  This was the first (and perhaps least serious) of a number of inconsistencies between the applicant’s oral evidence and that contained in her affirmations and the original case summary prepared in or about 1999 by her then solicitors, Pam Baker & Co.

495. The applicant’s visit to the Immigration Tower in July 1997 did not constitute a basis for any claim.  It was recognised that she made enquiries only that day.  In any event, it was accepted that there was no record of the visit.

496. It was the applicant’s testimony that in the weeks following her visit to the Immigration Tower, she learnt from television that people – seemingly in her same situation – had been arrested and had received heavy fines.  Despite this, she said that on 30 August 1997 she returned to the Immigration Tower, this time alone, hoping “to get a walking permit in order to get an I.D. card”.  At the offices of the GIS on the 13^th floor, the applicant said that she approached an officer at the reception counter and told him that she had overstayed in order to benefit from an amnesty.  The officer replied that there was no amnesty and that she must return to the Mainland.  The officer then gave her an ID 457 form to complete.

497. It was plain from her testimony that the applicant had not at the time put her mind to the nature of the form.  She said that she simply watched others filling it out and copied what they were doing.  While the applicant inserted the names of her parents and gave their Hong Kong address, she did not give their dates or places of birth and, importantly, did not complete the column in which their Hong Kong identity card numbers were required to be given.  The applicant explained this failure by saying that she approached the officer at the counter to ask if she could use a telephone to contact her parents to obtain their identity card details but was informed that it was not necessary to do so.

498. The applicant was then interviewed and in the course of that interview completed a ‘grounds for non-removal’ form.  On that form she wrote in Chinese characters :

“My mother’s eyes cannot see and were operated on. I overstayed because I was with my elderly family, now I want to return to China”.

499. A summary of her case prepared for the applicant in 1999 by her then solicitors was specific in recording that this statement was not “dictated as such” to the applicant.  It was accurate as far as it went.  However, it did not reflect all that the applicant had said during the course of the interview.  As I understood the summary, expressing it as positively as I can, it was to the effect that the applicant said that she wished to be able to settle in Hong Kong to care for her parents but at that time needed to return temporarily to the Mainland to be with her mother when she underwent treatment for her eyes.  In this regard, the summary says :

“Mother wanted to return to the Mainland to see if a doctor there could help with her eyesight. Ms Lau needed to accompany mother to go to the Mainland.”

500. In her affirmation of 12 December 2002, the applicant confirmed this when she said :

“The reason why I wrote I wanted to return to China as soon as possible was that my mother wanted me to accompany her to get treatment in the Mainland. My intention to ‘return’ to China was for this reason and this reason alone, and not to go back to live permanently. My ultimate intention was to come to Hong Kong to live permanently as a child of Hong Kong Permanent Resident parents. That is the reason why I came again on 19 June 1998 on another Two Way Permit.”

501. However, when she testified as to what happened during the interview on 30 August 1997, the applicant gave a version of events of a very different colour.  She said that she did not want to go back to the Mainland, she wished to remain in Hong Kong.  She said that she was, however, intimidated by the interviewing officer, Mr Ng Wai Lun, who told her that she was facing a sentence of imprisonment or a fine of $8,000 if she said she wished to remain in Hong Kong but, if she wrote down that she was willing to return to the Mainland, the court would no doubt treat her more leniently.  It was for that reason, said the applicant that she agreed to write down what the interviewing officer “taught” her to write.

502. When asked to explain the differences in what she had earlier put in her affirmation and what she was now saying in testimony, the applicant could do no more than obfuscate matters, protesting that either there were no contradictions on attempting to reconcile them in an illogical and sadly confused manner.

503. The applicant’s recollection of detail was – understandably after such a long time – often confused.  For example, she said several times that she had been threatened by the interviewing officer with a fine of $8,000, that number being clear in her mind.  But on the written evidence produced, it was clear that the sum of $8,000 was a sum requested to be brought by the applicant on her return to the Immigration Department as possible security for bail : a different matter entirely.

504. When the applicant commenced her testimony, she was plainly anxious, speaking far too much, answering questions before they had been fully asked.  At first, I put this down to an understandable nervousness.  But as her testimony continued and she relaxed, her anxiety translated itself into an argumentative approach.  In the content of what she said and the manner in which she said it, it became increasingly obvious that the applicant, in her desperation, was prepared to say anything that she believed would advance her case.  I confess to feeling sympathy for her; she was emotional and near her wit’s end.  But I could place little or no faith in anything of material relevance asserted by her.

505. The seismic shift in her evidence from not being “dictated to as such” to being intimidated and “taught” what to say in her ‘grounds for non-removal’ form was, I am satisfied, purely tactical because, for whatever reason, she no longer had trust in her original version of events. 

506. No doubt the applicant wished she had said many of the things that she testified she had said.  She gave glimpses of this when, on several occasions, she spoke in an aggrieved tone of “losing out” because she had been law-abiding and had obeyed the immigration authorities while others who had defied them had been successful in obtaining right of residence under the concession policy.

507. In summary, I am satisfied that the applicant did not make any claim for right of abode on 20 August 1997.

508. But even if I am wrong in this regard, I do not see how it can be said that any record of a claim exists.  The ID 457 form does not contain particulars of her parents sufficient on its face to show that they had right of abode in Hong Kong.  For whatever reason, the applicant failed to state particulars of their birth dates, their Hong Kong identity card details or any other information which would show that she was claiming right of abode through them.  As for the ‘grounds for non-removal’ form and the other documents in the applicant’s file, there is nothing in any of them, read alone or in conjunction, which would indicate a record of any claim.

509. It was finally the applicant’s case that, in substance, she claimed right of abode when she appeared at the Magistrates Court on a charge of breaching her conditions of stay.  The transcript of what was said is brief.  It reads :

“	Court:	Anything to say?
	Applicant:	My mother has cataracts and she cannot see at all.  My elderly relatives are very old and want me to stay behind.
	Court:	If your mother has cataracts she should go for an operation, there’s a very easy operation that will cure her cataracts. You’re fined $1,500.”

510. All that can be said on the basis of this exchange is that the applicant’s “elderly relatives” wanted the applicant to remain in Hong Kong.  As to why they wanted her to stay, it can only be inferred from what was said in the exchange between the applicant and the magistrate that it was on compassionate grounds and not because she had asserted any form of a legal right to remain.

511. My determinations are therefore as follows :

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

Mr Tsoi Chak Kong (applicant 3382)

512. The withdrawal of this applicant’s legal aid, while obviously a blow to him in that it withdrew from him the benefit of legal representation, was unfortunately taken by him as meaning something more profound; namely, that in some manner hidden from him, the merits of his claim had been determined against him by the courts.  In short, he understood the withdrawal of legal aid to constitute a dismissal of his claim.

513. The applicant appeared before me at two directions hearings.  On both occasions I did my best to explain the true position to him, impressing upon him that his claim had not yet been determined, that I had made no findings and that I would not do so until I had heard all relevant evidence including his own testimony, if he chose to give it.  The applicant, however, was not persuaded.  He remained deeply disaffected.  On the first occasion (17 March 2005), he said that he had already received his “death sentence” and could do no more about it.  On the second occasion (21 April 2005), when asked if he wished to appear to support his application, he made it plain that he had no intention to appear and hoped to return to the Mainland that same day even though, during my exchanges with him, it was made plain to the applicant that the court would be assisted by hearing his testimony and that his failure to appear would deprive the court of that assistance.  His view, however, was that he had already been deprived of justice.  In the result, the applicant’s matter was heard in his absence on 13 May 2005.

514. At the time of the change of sovereignty, both of the applicant’s parents and his brother had right of abode in Hong Kong.  He was the only member of the family denied a one-way permit.

515. The applicant came to Hong Kong on 26 November 1996 as a visitor, his two-way permit allowing him to remain until early in the new year.  He remained here, however, until his arrest by the police in September 1997, this arrest resulting in his repatriation.

516. It was the applicant’s case that after the change of sovereignty, before he was arrested, he had approached the immigration authorities on two occasions to enquire whether he could process his claim for right of abode in Hong Kong rather than the Mainland.  On neither occasion, however, had any papers been completed.  There was therefore no record of any claim that may have been made during those visits.

517. The applicant’s claim, as I understood it on the papers, was based solely on events that took place after his arrest by the police on 12 September 1997; more particularly, on the day following his arrest when he was removed to and then interviewed at the Victoria Immigration Centre.

518. In his affirmation of 29 January 2003, the applicant said that he was interviewed by two officers, one who spoke Mandarin (who acted as an interpreter) and one officer who spoke only Cantonese.  As to what took place, the applicant said the following :

“I explained that I had remained in Hong Kong to await the amnesty which I believed would be announced after the Handover. The officer told me that I could not post bail and I would be sent back to the Mainland immediately. … I recall being told in Mandarin that I must complete a form explaining the reasons why I had overstayed. I said to the officer that I would not write. The officer said if I did not write, I would be sent into prison. He told me to write what he had shown to me … I was very afraid of the consequences of not doing what I was told (i.e. imprisonment) that I felt I had no choice and copied the words from a piece of paper shown to me by the officer, even though it was the opposite of what I wished to do.”

The applicant was here speaking of the ‘grounds for non-removal’ form upon which he wrote :

“I, Tsoi Chak Kong, overstayed in Hong Kong.  I did not have work nor an extension.  I want to return to China as soon as possible.”

519. As to information concerning himself and his family, the applicant said the following in his affirmation :

“ I was also required to complete a form giving details of my family members … I did not complete the form. The officer asked me questions and he put down the information on the form.”

520. In summary, therefore, it was the applicant’s case :

(i)	That he was interviewed by two officers, not one.
(ii)	That he told the officers that he had overstayed in Hong Kong in order to benefit from an expected amnesty that would enable him to live permanently in Hong Kong, this in substance amounting to a claim for right of abode.
(iii)	That initially he would not complete the ‘grounds for non-removal’ form in the manner demanded by the officers.
(iv)	That he was told that if he did not do so he would be imprisoned.
(v)	That accordingly, fearing incarceration, he did not write down that he had overstayed to claim right of abode but merely wrote what he was told to write.
(vi)	That he did not complete the personal data form himself; this was completed for him by one of the officers, that officer failing to put down details which would demonstrate that his parents were permanent residents of Hong Kong.

521. It was further the applicant’s case that, although he had family in Hong Kong, he was given no chance to obtain bail and remained in detention until his repatriation nearly a week later.

522. Two immigration officers testified to having interviewed the applicant on 13 September 1997.  They spoke, however, of two separate interviews not a single interview conducted by the two of them or with one of them acting as interpreter for the other.

523. The first officer was Mr Yu Yiu Wing who on 13 September 1997 had been on duty at the Victoria Immigration Centre as the officer responsible for receiving arrested persons.  At about that time, he said, the Centre would expect to receive between 20 and 50 such persons each day.  It was the standard practice of all receiving officers, he said, to ask each arrested person whether he had a fixed abode in Hong Kong or some local connection.  The purpose, he said, was to determine whether the person should be referred to the recognizance office to process possible bail or to the processing unit for detention.

524. In conducting his brief interview with the applicant, said Mr Yu, he completed a standard minute form.  On that form he wrote the following in English : “He claimed to have neither a fixed abode nor L/C [local connection] in Hong Kong”.  On that basis, said Mr Yu, the applicant would have been referred to the processing unit for detention.

525. It is puzzling that Mr Yu should have written what he did when the evidence shows that, while still in the custody of the police, the applicant had given them the address of his parents’ residence in Hong Kong and in his second interview at the Centre conducted that same day had given details of the same address.  Perhaps it was a misunderstanding caused by language difficulties, the applicant apparently speaking little, if any, Cantonese.  But whatever the true reason, the applicant never claimed to have asserted right of abode at any brief, preliminary interview of the kind described by Mr Yu.

526. The second interview that day was the one at which the applicant’s personal details were recorded and at which, a ‘grounds for non-removal’ form was completed.  This interview was conducted by Mr Sin Fu Ming, a member of the Centre’s processing unit.  Mr Sin denied that there would have been two officers present during the interview, the one acting as an interpreter.  He would not have needed an interpreter, he said, as he was able to speak Mandarin.

527. Mr Sin denied threatening the applicant in the manner alleged; that is, by saying that if he did not complete the form in the manner demanded, the applicant would be imprisoned.  He accepted, however, that it was entirely possible that he had presented the applicant with some sample answers in order to assist him in completing the ‘grounds for non-removal’ form and that the applicant may have used one of those samples as a basis upon which to write.  Mr Sin explained that he had come across many interviewees who were content to be repatriated but had difficulty in knowing exactly what to write on the ‘grounds for non-removal’ form.  For those people, he said, having heard what they wished to say, he would provide one or two sample answers.  Mr Sin denied, however, that he compelled anybody to write only what was contained in his samples.  Interviewees could write what they wished, he said, the samples were an aid, no more.

528. In respect of the applicant’s evidence that he had been forced to copy each character, Mr Sin pointed out that his samples had not been written in simplified characters and yet some seven or eight characters written by the applicant had been in simplified characters, the writing being a mix of both forms.

529. As for the applicant’s assertion that the personal data form was written by the interviewing officer; that is, by Mr Sin himself, Mr Sin denied that the writing on the form was his writing.  Although he had no independent recollection of the interview, Mr Sin said that the writing on the form could only have been that of the applicant.

530. While in the absence of expert evidence I must be cautious in comparing the admitted writing of the applicant on the ‘grounds for non-removal’ form with the writing on the personal data form, I am entitled to observe, I believe, that the two styles of writing do not appear to be so markedly different that it must be presumed that the writings on the two forms had to be by different people.  If anything, to the layman, it may perhaps be said that the opposite appears to be the case.

531. In many cases – and this was one of them – so much depends on a careful assessment of the credibility of applicants, that assessment being made in the light of all the evidence and the answers given to explain matters which may stand both for them and against them.  In the present case, the applicant’s determination not to testify has denied me the ability to assess his credibility.  Nor can I in any way take into account how he may have impressed me during the course of our exchanges during the two directions hearings.  In any event, those exchanges were coloured by the applicant’s anger at his loss of legal aid.

532. What then, in so far as I can take it, was my impression of Mr Sin, the officer who conducted the second and more substantive interview with the applicant?  In my judgment, although he was not subjected to cross-examination by counsel and had only to deal with a number of questions from myself, Mr Sin came across as a credible witness.  The gist of his evidence was that he simply had no reason to prevent the applicant from recording, if he wished, that he had overstayed in the hope of obtaining right of residence so that he could remain here to care for his parents.  The writing of such words would not at that time, to his recollection, have caused any bureaucratic difficulties.  The applicant would still have been subject to removal and he would correctly have carried out his duties.

533. Mr Sin was one of the few officers to have admitted preparing sample answers for interviewees who were prepared to be repatriated but weren’t sure what to write on their ‘grounds for non-removal’ form. 

534. In my judgment, on the evidence placed before me, I am unable to come to a finding on the probabilities that the applicant was subjected to the duress of which he has complained that he made any sort of statement to the effect that he had been in Hong Kong in order to claim right of abode.

535. But even if I am wrong in this regard, I am satisfied that there is no record of any claim.  The personal data form, the only possible record, while it records the names and ages of the applicant’s parents and that they are unemployed, does not give details of their Hong Kong identity cards or any other details which, on the face of the document, would suggest that either of them has right of abode.   Nor do I see that the only reasonable inference to be drawn from the information given is that the parents, or either one of them, must enjoy right of abode.

536. My determinations are therefore as follows :

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

Madam Wong Siu Ching (3822 : a ‘group one’ applicant)

537. The applicant came to Hong Kong illegally on 25 May 1998, arriving by boat.  When she arrived, she was seven months pregnant.  Many of those in the boat with her were also pregnant.  The applicant had compelling reasons for wishing to be in Hong Kong.  Her mother, who was infirm, was permanently resident here as was her younger brother, her only sibling.  In addition, the applicant’s husband was a permanent resident.  It was the applicant’s uncontested evidence that she had been attempting to obtain a one-way permit for many years but without success.  It is also pertinent to record that before the change of sovereignty the applicant had worked in Hong Kong for an extended period of time as an ‘imported worker’.

538. On 21 July 1998, when she was close to full term, the applicant surrendered herself to the immigration authorities.  On that day, she and her husband went to the offices of the GIS on the 13^th floor of the Immigration Tower and over the next few hours the applicant completed a number of forms.  These forms are of particular relevance :

(i)	On a form entitled ‘Personal Particulars of pregnant illegal immigrant’, the applicant gave a brief explanation of how it was that she had come to Hong Kong. She gave both her Hong Kong address and her address on the Mainland and, by circling certain printed options, indicated that she had come to Hong Kong to give birth. Of particular importance, in my view, is that one of the printed options is ‘family reunion’ while another allows for general assertions by saying : ‘other reasons’. Neither of these were circled or endorsed in any way.
(ii)	On a second form entitled ‘My personal particulars’, the applicant was asked to give particulars of family members. The particulars sought were as follows : relationship, name, age, place of birth, occupation, address, whether sick or handicapped. It will be seen that no identity card details or other particulars of residential status were sought and none were given by the applicant.
(iii)	On the standard ‘grounds for non-removal’ form, the applicant wrote :
	“	I am Wong Siu Tsing, I cam to Hong Kong illegally on 25 May 1998. I am now 9 months pregnant. I hope that I can stay in HK to give birth to this child. Afterwards, I willingly return to the Mainland.”

539. It was, however, the applicant’s evidence that, despite the indications she had made on the form described in sub-paragraph (i) and the words written on the form in sub-paragraph (iii), she had not surrendered herself that day for the sole purpose of giving birth in Hong Kong, thereby ensuring permanent residence for her child.  It was her evidence that she had originally planned to have her child on the Mainland.  However, when she learnt that her mother was not well, that, and her desire to be with her family, drove her to enter Hong Kong illegally.  She had come to Hong Kong, she said, because she decided to try and remain here permanently – she wanted the right to reside in Hong Kong with her family.

540. It was therefore the applicant’s evidence that a principal reason for surrendering herself on 21 July 1998 was to seek some way of remaining permanently in Hong Kong.  She testified that she would have gone earlier to the Immigration Tower but her journey in a small boat had made her ill.  At her advanced stage of pregnancy that is not surprising.

541. In respect of her desire to seek permanent residence, it was the applicant’s evidence that she had heard news of the on-going right of abode litigation which, to her understanding, offered hope of success.  When her husband testified, however, he recalled that at the time he had been none too hopeful.  It was the gist of his evidence that he personally had expected the worst but, as he said, it had still been “worth the chance”.

542. The applicant testified that, when she and her husband went to the offices of the GIS, they had with them their marriage certificate and the original identity cards of her mother and father.  While being interviewed by Mr Yip Ka Wang, an immigration assistant, both the applicant and her husband testified that they had made what in substance amounted to a claim for right of abode.  It was their evidence that the husband spoke first.  He told the interviewing officer that both of his wife’s parents were Hong Kong residents and he was a resident too.  That, he suggested to the officer, should entitle the applicant to obtain an identity card in Hong Kong.  It was their evidence that the applicant then repeated what her husband had said in order to confirm it and added that she wanted to obtain an identity card.  In reply, however, the officer told them that there was no mechanism in Hong Kong which enabled her to apply for an identity card and that she must return to the Mainland to process any such application.

543. As to their reactions to this advice, the applicant said that they were very disappointed and unhappy.  The husband, in a way that rang true, said more prosaically : “After he said that, we felt we could not apply and arrangements were then made to fill out forms”.

544. The applicant, as I have said, had compelling reasons for wishing to remain permanently in Hong Kong and every reason therefore, in the company of her husband, to a least attempt to make a claim even if she knew the chances of any claim being successful were small.  But more than that, in respect of this core issue, I found both the applicant and her husband to be inherently credible.  I am satisfied, therefore, that the probabilities do support their contention that an assertion to a right to reside permanently in Hong Kong was made on 21 July 1998.

545. But, having had their claim rejected by the interviewing officer, the evidence, in my view, pointed strongly to the fact that both the applicant and her husband then became resigned to what I will describe as the second best option; namely, the formal agreement to her remaining in Hong Kong for the limited purpose of giving birth here.

546. The evidence indicates, I believe, that the ‘grounds for non-removal’ form was completed in this resigned fashion.  In respect of this form, the applicant testified that, when shown the form, she told the interviewing officer that she did not know “how to write it”.  She was then given the characters to write.  The applicant said that she was not happy to write them as they did not express her true wishes.  She only did so, she said, because she was afraid that if she refused she might be immediately repatriated.  I do not accept that.  This evidence was, in my view, at best an exaggeration.  The applicant was with her husband, a Hong Kong resident, a driver by profession and a man who did not in any way strike me as timid.  I do not believe that the applicant would have written anything against her will that day, not at least without considerable protest.  I am satisfied also that at her advanced stage of pregnancy the applicant would have had a reasonable expectation of not being hurried back across the border.  Many women in her position were at that time coming to Hong Kong from the Mainland to give birth and if they went to the Immigration Department at a sufficiently advanced stage were not repatriated until after birth.  Indeed, the practice was so common that the Immigration Department had special forms printed.

547. Be that as it may, as I have said, I am satisfied that a claim for right of abode was made that day.  The difficulty that has faced the applicant, however, has been the identification of a record which is evidence of that claim.

548. The obvious document to which to look is the ‘My personal particulars’ form, a form which appears to have served the same essential purpose as the ID 457 form.  It is an administrative quirk that, unlike the ID 457 form, the ‘My personal particulars’ form does not ask for details of the Hong Kong identity cards of a person’s parents.  That is because, as an illegal immigrant, she was dealt with differently from an overstayer.  As it is, as I have said earlier, the applicant did not record on the face of that form (or any other form that day) any details of her parent’s residential status.  It was, I am satisfied, open to her to do so if she so wished.

549. The applicant, who was assisted in presenting her case by her younger brother, submitted that the ‘My personal particulars’ form nevertheless contained sufficient information to show that her mother, who was still alive, had right of permanent residence in Hong Kong.  The form, it was said, gave information, for example, of the mother’s age and her Hong Kong address.  The age of the mother was given as 54, a sufficiently advanced age, it was suggested, to alert the immigration authorities to the fact that the mother must have been residing in Hong Kong for a long term.  In addition, so it was said, a simple check would have shown that the mother’s apartment was her own property, further evidence of her status.

550. Earlier in this report, in respect of applicant 1624 (Madam Kwok Siu Wan), I was confronted with the same submission.  All that was necessary, it was argued in that case, was sufficient information to enable a successful train of inquiry to be instituted.  I, however, was of the view that —

“… in terms of the policy, as I read it, the documentary material must – on its face – constitute evidence that corroborates the making of a claim.  The phrase ‘on its face’, when given its plain English meaning, implies that the material must essentially, considered in context, speak for itself. That must therefore exclude material which does not speak for itself in any direct way but simply offers up information which, if investigated, may lead on corroborating proof.”

551. In this regard, in its July judgment (paragraphs 32 and 33) the CFA said :

“	However, it is submitted by the applicants that in some cases … the relevant documents held by the Immigration Department including statements and other documents containing annotations, handwritten or otherwise, fairly read, should be regarded as amounting to the required record of a claim for the right of abode.
	We are of the view that if, in the case of any applicant, such annotations or other writing appear on the face of documents held by the Immigration Department which, interpreted fairly, amount, on the balance of probabilities, to a record of a claim for right of abode, the Concession requirement in respect of such record is satisfied. In accordance with the rationale indicated in paragraph 210 of the January Judgment, documentary materials are incapable of constituting the required record of a claim unless on their face they amount to evidence that a claim for right of abode is or has been made.” [my emphasis]

552. The question, I believe, may be put as follows : accepting that an oral claim was made, is there anything on the face of the documents completed that day which may be said to constitute evidence of that claim?  In my view, there is nothing on the face of the papers from which it may be inferred that the applicant’s parents had right of permanent residence.  Age itself is not firm indicator nor, as I understand it, is evidence that a parent resides in a Hong Kong apartment.

553. In any event, the ages of the parents were not accurately stated.  The ages given were different from the ages on their identity cards, copies of which were before me.

554. It was the applicant’s case that on 21 July 1998 she had with her not only her marriage certificate to prove her relationship to her Hong Kong husband but also the identity cards of both her parents, the purpose of these documents being to prove her right to permanent residence.  The applicant said that, during the interview with Mr Yip Ka Wang, she gave the marriage certificate and the identity cards to him for copying.  However, for some unknown reason, Mr Yip only copied the marriage certificate.  Accordingly, no record of the parents’ identity cards was left with the Director.  The suggestion appeared to be made that Mr Yip should somehow be held accountable for deliberately not copying the identity cards and that the Director should therefore be estopped from denying the existence of a record.

555. Mr Yip, who had no personal recollection of the events, said that normally persons surrendering themselves would be asked to obtain their own copies and only rarely would he make the copies himself; for example, if a surrendered person was infirm.  If, however, he did make copies, he said, he would make copies of all the documents given to him and those would include such items as identity cards.  In this regard, Mr Yip impressed me as a witness of the truth.  I do not accept that he would have purposefully failed to copy the identity cards of the applicant’s parents.  At that time he would have had little, if any, reason to do so.

556. In the circumstances, therefore, I have had to conclude that, although an oral application for right of abode was made on 21 July 1998, the Director has no record of that claim.

557. On 21 July 1998, a recognisance was completed permitting the applicant to remain in Hong Kong until late September of that year.  In September, however, the applicant was obliged to report to the Victoria Immigration Centre.  The recognisance form bears the identity card number of the husband, Mr Ng Tang Wai, but nothing is said of the applicant’s parents.

558. On 17 August 1998, the applicant gave birth.

559. On 15 September 1998 she was interviewed at the Joint Recognisance Office to confirm that she still intended to return to the Mainland and was sufficiently healthy to do so.  On this occasion, the applicant was told that she would be repatriated on 22 September 1998.  The applicant testified that she complained that she did not wish to be repatriated.  She said that her mother was ill and that her child was very young; she wished to stay to care for them both.  She was told, however, that, as she had come into Hong Kong illegally, she must expect to be repatriated.  She was then given forms to sign and because of her distress, simply signed them.

560. The officer who dealt with the applicant that day, Mr Wong Kwok-fai, accepted that people did from time to time say that they did not wish to be repatriated.  If they did so, he said, he would, as a matter of practice, ask them to write down their grounds of objection and would then refer the matter to a superior officer.

561. On the evidence, I think it probable that on 15 September 1998 the applicant did express some lack of willingness to return to the Mainland.  But her words, in my view, did not amount to a claim for right of abode.  They constituted a plea, based on the difficulties of her circumstances, to be allowed only to remain for a longer period.

562. But in any event, even if I am wrong in that regard, I am satisfied that there is no record evidencing any claim made that day.  To the contrary, one of the forms which the applicant said that in her distressed state she simply signed is a standard form to the following effect :

“I am WONG Siu-ching. I know I don’t have the right of abode in Hong Kong. I hope to return to Mainland China on 22 September 1998.”

563. On 22 September 1998, the day the applicant was due to report to the Victoria Immigration Centre, she was apparently telephoned in the morning and asked why she had not done so.  According to the applicant, she said that she did not wish to return, especially having regard to the tender age of her child.  She asked if it would be possible to stay.  She was told, however, that this was not possible and if she did not report she was in danger of being arrested.  Being frightened, the applicant said that she asked for an extension of two days and was told to report, bringing a letter of request.

564. In the result, the applicant reported that morning.  As she had the child in her arms, her husband made the request for an extension and in this regard a letter was left with the immigration authorities which read :

“My husband is a permanent Hong Kong resident. I came to Hong Kong unlawfully to give birth because I was pregnant.  I am grateful that the Hong Kong Government has allowed me to stay temporarily until 22nd this month.  However, my daughter’s Home Visit Permit could only be ready on 24 September and my husband has to work and cannot look after her, I beg that my stay can be extended for two days.  Please give me the permission. After that, I am willing to return to the Mainland.”

565. A two-day extension was granted and on 24 September 1998, without incident, the applicant was repatriated.

566. In respect of the events on 22 September 1998, it was never seriously contended by the applicant that she had made a claim for right of abode on that day and certainly, in my view, it was clear on the evidence that both she and her husband were seeking nothing more than a few extra days in Hong Kong.  Certainly, there is no record to evidence any form of claim made at this time.

567. In conclusion, therefore, I have determined :

(i)	That the applicant did make a claim for right of abode, but
(ii)	The Director has no record of any claim.

PART SIX

Madam Chan Chuen Chu (400 : a ‘group one’ and ‘group six’ applicant)

568. The applicant was born in Fujian Province in 1971.  Her father came to live and work in Hong Kong in 1983.  Her mother and younger brother were allowed to join him in 1994.  The applicant and her sister, however, were refused one-way permits.  

569. In February 1996, the applicant, who at the time was unmarried, came to Hong Kong.  Her two-way permit allowed her to remain in Hong Kong until April of that year.  The applicant, however, overstayed.  She did so, she said, for two reasons.  First, to help care for her paternal grandmother and, second, in the hope that she would be able to obtain right of abode when the change of sovereignty took place.

570. Immediately after the change of sovereignty, the applicant said that she paid close attention to media reports on the right of abode issue.  To her disappointment, she learnt that right of abode seekers had been arrested and repatriated.  Indeed, a relative had suffered the same fate, being prosecuted too.

571. The applicant’s father testified that in or about August 1997 he and his wife went to the Immigration Department to enquire whether their daughter could claim right of abode in Hong Kong.  He was informed that there was no such process in Hong Kong and any application would have to be made on the Mainland.

572. In light of all of this – well knowing the realities of the situation – the applicant was advised by her parents not to go out on the streets.  In cross-examination, she admitted that she remained in hiding until early May 1998.  It was her evidence, however, at least I understood it to be such, that she remained in hiding hoping that some good news would emerge from the on-going right of abode saga.

573. In early May 1998, said the applicant, she learnt that her sister, who lived on the Mainland, had fallen ill and required care.  The decision was made that she and her mother would return temporarily to the Mainland.

574. The evidence revealed that on the morning of 6 May 1998 the applicant’s mother passed through Lo Wu without incident.  The applicant herself, however, was prevented from leaving.  By then, of course, she had been unlawfully resident in Hong Kong for some two years.  Having been stopped she was interviewed.

575. It is accepted that in the course of her interview, the applicant produced a number of documents; first, a letter written by her father dated 30 April 1998; second, copies of the Hong Kong identity cards of her father and her paternal grandmother, not her mother; third, medical certificates proving the poor health of her grandmother and, fourth, a letter from the housing manager of the estate in which the grandmother lived giving permission for the grandmother’s family to reside with her in order to care for her.

576. The father’s letter was of central importance to the applicant’s claim.  In translation, the relevant portions of that letter read :

“	I am … the father of [the applicant]. Since my daughter cannot speak Cantonese, I have no alternative but to give a brief account of what happened in writing…
	My mother … is old and ailing. In 1994, she suffered from gallstones and needed family members to take care of her. However, Hong Kong is a society where people live from hand to mouth. To be honest, I have no special skills. I only do menial work in Hong Kong and earn a wage barely enough to support a living …
	My wife and I have worked hard for years, so hard that there is not even a breathing space for us.  When our daughter [the applicant] came to Hong Kong for travel, we wanted her to stay here to take care of her grandmother, so that we could go to work without worrying about my elderly mother. I know this is in breach of the laws of Hong Kong. Yet, my daughter is still single. I am filled with mixed feelings and greatly upset. I don’t want to do so but circumstances force me to. No matter what, I must let my daughter go home.  As for her future direction, I cannot plan that much for her. I felt so inferior during all these years.  I earnestly hope that your department will appreciate my plight.  I have more to say than this letter can express. I should be grateful if your department would treat my case with leniency and give me the maximum support.” [my emphasis]

577. It was the father’s evidence that he wrote the letter with the intention of submitting it personally to the Immigration Department.  He said that he was at a loss to know what to do best and wrote the letter hoping that the immigration authorities would let his daughter remain in Hong Kong.  He said that he was too busy at work, however, to deliver the letter immediately and, when he learnt that his daughter would have to return to the Mainland, he gave the letter to her.

578. It appears to have been the applicant’s case that she intended to make a claim for right of abode at the border.  That presumably – in accordance with her case – was why she took her father’s letter with her.  But her evidence in this regard made little sense.  On the one hand she said that she and her mother intended to return temporarily to the Mainland, in short, to leave Hong Kong, on the other hand she said that it was, to her knowledge, inevitable that she would be stopped as an overstayer and prevented from leaving.  Viewing the evidence as a whole, it must be the case, I believe, that the applicant hoped to be able to pass through the border without being stopped.  However, there was a real risk that she would be stopped.  In that event, what was important was to put mitigatory material before the immigration authorities, material that would hopefully avoid a prosecution (and possible imprisonment).

579. On behalf of the Director, it was said that, seen in context, the documents produced by the applicant at Lo Wu were clearly intended to explain and excuse the applicant’s lengthy period of unlawful residence.  They were not intended to form the basis for any claim for right of abode.  That, I believe, must be the case.

580. First, both the applicant and her parents were under no illusion at the time that overstayers, even if they did claim right of abode, were being apprehended, often prosecuted and then repatriated.

581. Second, the father’s letter – dated 30 April 1998, just six days prior to the applicant’s attempted departure – read as a whole, cannot, even with the most generous reading, be said to constitute a claim on behalf of the daughter to remain in Hong Kong by reason of some right in law.  To the contrary, it appears to be a letter which begs the authorities to let the daughter return to the Mainland unimpeded.  The letter begins with the father stating that he must give an account of what has happened in respect of his daughter’s time in Hong Kong and ends with a request that the authorities act leniently.

582. There is a single sentence in the letter – the sentence that I have emphasised – which reads : “No matter what, I must let my daughter go home”.  The father testified that what he meant to convey here was that his daughter must be allowed ‘to come home to Hong Kong’.  This, it was suggested, amounted to an indirect claim for right of abode.  I am unable to agree.  On its face, and read in context, that sentence quite clearly relates to the daughter being allowed to return home to the Mainland.  After all, earlier in the letter the father had spoken of the daughter coming to Hong Kong ‘for travel’ only. 

583. As for the other documents produced at the interview; that is, the two identity cards, the medical reports and the letter from the housing estate, it was submitted on behalf of the Director that these clearly showed that the intention was to demonstrate that the applicant had had to remain in Hong Kong to care for her grandmother.  The probabilities support this.  The identity cards proved a relationship with the grandmother.  Her frail medical condition was proved by the medical letters and also by the recognition by the housing estate authorities that the grandmother’s family could reside with her in order to care for her.

584. It must also be observed that during the course of cross-examination, the applicant’s father conceded that a breach of conditions of stay could result in a criminal prosecution and that the longer the period of overstaying the heavier the likely penalty.  Both the applicant and her father, therefore, had every motive for putting matters before the immigration authorities which would reduce her culpability.

585. I have come to these findings in recognition of the fact that a claim for right of abode may be couched in terms that are read at first blush as a purely humanitarian claim.

586. At Lo Wu, the applicant was interviewed by Ms Ma May Chun, an Immigration Officer.  Ms Ma said that the interview was conducted in Putonghua.  This, of course, was not the applicant’s first language, the Minan dialect being her native tongue, and may perhaps have given rise to some misunderstanding.  Ms Ma, who, on the face of the interview record, described the applicant as being ‘evasive’, wrote down as the applicant’s reason for overstaying that she had to take care of her grandmother who had been suffering from gall stone problems.  Under the heading ‘Remarks’, Ms Ma wrote the following :

“Subject’s parents are Hong Kong resident. As stated by her father in his letter, subject needed to take care of her grandmother as both parents were working. Now she intended to return to China as her mother had no more work to do and she took care of her grandmother.”

587. The applicant, in her testimony, said that, when she gave Ms Ma her father’s letter, she remembered saying that her father was a permanent resident of Hong Kong and that she herself therefore was entitled to a Hong Kong identity card.

588. If accepted, this statement would have constituted a direct claim for right of abode.  However, I had little hesitation in rejecting the applicant’s evidence in this regard as an invention.  No such claim had been recorded previously in her case papers.  The summary of her case prepared by her original solicitors said no more than that she explained to the interviewing officer that her father was a permanent resident and that she had stayed in Hong Kong to be with her family and to care for sick grandmother.  In her later affidavit of 4 November 2002 nothing appears to suggest that she made a claim in the manner she asserted.

589. On behalf of the applicant, it was suggested to Ms Ma that during the course of the Lo Wu interview the applicant had told her that she was entitled to a Hong Kong identity card.  This was denied by Ms Ma.  Although she had no independent recollection of the interview, she said that, if such a claim had been made, there would have been some reference to it.

590. Ms Ma impressed me as a credible witness.  I have no reason to doubt that she recorded at the time what she honestly understood to be the essence of what the applicant said to her.

591. I confess, however, that I did not find the applicant to be a credible witness.  Indeed by the time she had completed her evidence, I had reached the conclusion that I could place no faith in any of the contentious aspects of her evidence.  The applicant, in my judgment, plainly distorted her evidence with exaggeration and, when she thought it suited her, resorted, as I have already indicated, to outright invention.

592. I am satisfied that at Lo Wu on 6 May 2005 no claim for right of abode was made.

593. Two days later, on 8 May 2005, the applicant went with her father to the 13^th floor of the Immigration Tower.  The purpose – as the applicant must have known – was to undergo administrative processing for possible criminal prosecution and repatriation.  However, during the course of her testimony the applicant said that she thought the reason for her visit was related to the formality of registering for a Hong Kong identity card.  On behalf of the Director that evidence was criticised as being incredible.  I agree with that description.

594. At the 13^th floor, the applicant’s father completed the ID 457 form, giving both his own and his wife’s Hong Kong identity card details.  The father accepted that when he completed the form he was not sure of its nature and therefore its purpose.

595. It was the applicant’s evidence that, when she was called in for her interview, she wanted her father to accompany her.  However, the interviewing officer would not allow it.  The applicant said that she was asked ‘loudly and angrily’ for her reasons for overstaying.  She replied that she had overstayed to look after her sick grandmother and in addition that she had overstayed in order to wait for the change of sovereignty so that she could obtain a Hong Kong identity card.  The applicant said that she was told, however, that there were ‘no such thing’.  She said that the officer took out a ‘grounds for non-removal’ form and again ‘loudly and angrily’ instructed her what to write on the form.  The applicant said that she was so frightened by the aggressive conduct of the interviewing officer that she simply wrote the words dictated to her :

“Overstay because of staying with family.  Now want to return to China.”

596. I do not accept that the applicant made a claim for right of abode during the course of the interview, either in the manner she said or in any other way.  I could place no reliance on her testimony.

597. Although the applicant did not persist with it, it was originally her case that she also claimed right of abode when she appeared before the magistrate on 13 May 1998.  However, the transcript makes it plain that nothing that could be construed to be a claim for right of abode was made on that occasion.  In the course of her testimony before me, however, clearly in an attempt to explain why the transcript contained no evidence of any claim, the applicant said that when she appeared at the magistrate’s court, she was told by the staff that she could say anything she liked except that she wished to remain in Hong Kong.  When it was put to her that this was a recent invention, she insisted that she had instructed both her original and her current solicitors in this regard and could not understand why neither of them had recorded the fact.  Here again, in my view, was evidence that by the end of her testimony the applicant was prepared to say almost anything that she believed might somehow advance her case.

598. My determinations are therefore as follows :

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

Madam Lam Nga Yung (1769 : a ‘group six’ applicant)

599. The applicant was born in Fujian Province in 1975.  In 1982, her father came to Hong Kong.  In 1993, the mother and the applicant’s two siblings were able to join the father.  The applicant, however, as the eldest child, was not permitted to accompany them.  After her family had settled in Hong Kong, the applicant tried to obtain a one-way permit but was informed by the Mainland authorities that she was too old to qualify.

600. Like many others from Fujian Province, in the months leading up to the change of sovereignty the applicant heard rumours that, when the Basic Law came into effect in Hong Kong, there would be an amnesty permitting people in her position to claim permanent residence.  The applicant said that she discussed the matter with her mother.  She then applied for a two-way permit.  The permit was apparently issued but because of postal difficulties she was not informed of its issue.  In the result, she had to make a second application which delayed her arrival in Hong Kong.  The applicant said that she eventually came to Hong Kong as a visitor in late December 1997, being permitted to remain until 21 January 1998.

601. It was the applicant’s testimony that the day before her permit expired, she went to the Immigration Tower with her father and sister to enquire whether it would be possible to obtain an extension of her two-way permit which would permit her to remain permanently in Hong Kong.  She was informed that this was not possible.

602. As I understand it, it was not asserted that a claim for right of abode was made on this occasion.  In any event, there is no suggestion that a record of any such claim is in the Director’s possession.

603. The evidence of the visit was led in order to demonstrate that at all material times both the applicant and her family were intent on securing right of permanent residence for her.  The applicant spoke of her deep reluctance to return to the Mainland where, as an unmarried woman, she lived alone and in fear of unlawful elements in her area.  The applicant’s father, whose testimony was central to the applicant’s case, spoke of his sorrow at the fact that the family had been separated from the applicant.

604. The applicant’s case, as I have said, is not based on any alleged oral claim made to an immigration officer.  It is based instead on a single document, a letter which bears the date of 24 January 1998 and is addressed to the Director.  That letter, it was said, constitutes a claim for right of abode.  It was written by the applicant’s father at a time when the applicant was in Hong Kong and the letter should be held to be (or to have been) in the possession of the Director.  Accordingly, so it was said, all the necessary requirements have been met for the applicant to be a beneficiary under the concession policy.

605. In considering this matter, I have borne in mind that the letter, if it was written at the time alleged, was written in early 1998 and could not therefore have been among those letters destroyed by the ECVU as part of its weeding exercise in or about early 1999 : see para.20 of this report.

606. It was not disputed that, although the applicant was required to return to the Mainland when her two-way permit expired, she did not do so.  She overstayed, remaining with her family.

607. Her father, Mr Lam For Lung, worked as a security guard.  At that time, he said, he was working the night shift at the Central Pier Government Offices with three or four other guards.

608. The father said that, a few nights after his daughter had begun to overstay, he sat down at his place of work and wrote a letter to the Director.  The letter, he said, took him about an hour to write.  He used government paper, cutting off the logo.  He said he wrote it after he had finished patrolling, the time being somewhere between 10 and 11 p.m.  As the father expressed it, he wrote the letter ‘casually’, hoping that his daughter might be able to obtain what he described as an ‘extension’.

609. The father testified that he kept a copy of the letter and it was that copy that was exhibited.  The copy bears the date of 24 January 1998.  It does not give the address of the father nor any other means by which he could be contacted; for example, a telephone number.  The copy, in translation, is to the following effect :

“	Dear Sir,
	I, Lam For Lung, holder of ID Card No. H466511(4) became a Hong Kong permanent resident in 1989 while my wife Wong Yuen Yu holds ID Card No. P323242(9). Our daughter Lam Nga Yung came to Hong Kong by a two-way permit on 31 December 1997. Lam Nga Yung’s permit number is 2394572. The permit has already expired now. We, the couple of us, are very much worried that she had nobody to rely upon if she goes back to the Mainland and that she, a girl, has to live alone in a house without anybody to take care of her. Therefore, I implore that the Immigration Department would check to verify that my daughter Lam Nga Yung ought to enjoy permanent right of abode in Hong Kong so that my family may live together.”

610. On its face, the letter clearly constituted a claim for right of abode.

611. However, it was the Director’s case that the letter was never received.  More than that, it was his case that the letter must in fact have been a later invention, created in all probability at least two years after the date on which it was purported to have been written.

612. In my judgment, the probabilities strongly support the Director’s contention.  On all the evidence, I have had little hesitation in concluding that the letter was a later invention.  I have concluded that it was not received by the Director in January or February 1998 simply because it was not in existence at that time.

613. I am constrained to say that I found the father to be an entirely unimpressive witness, defensive and vacillating.  I am satisfied that, when testifying as to how he came to write the letter, he did not tell the truth.

614. Although supposedly written reasonably late at night, the letter gives the number of the applicant’s two-way permit, not a number that the father would be likely to remember or have with him.  When asked how he had got the number, the father said that he had telephoned his daughter to ask for the number but then, almost in the same breadth, said that his daughter had written in down and given it to him.

615. If the father had spoken to his daughter on the telephone that night to get the number, it seems likely that there would at least have been some passing discussion as to why it was wanted.  After all, the discussion would have been around 10 o’clock at night and the request for the number itself would surely – at that time of night – have aroused some curiosity on the part of the applicant.  But the father insisted that he never mentioned the letter to his family members until a much later time.  Apparently, this was not because he wanted it kept a secret, simply because, according to him, he did not think at the time that it was significant.  If, however, the father had asked for the number and the daughter had written it down – which must have been before he went to work or the next day before returning to work – surely that too would have resulted in some discussion as to why the number was needed.  If he had asked for the number before going to work, that would suggest he was planning to write the letter and it was not simply done ‘casually’ as he suggested; his evidence in that regard, as I understood it, being that the letter was an idea that just came to him and was not discussed in advance or especially prepared for.

616. Even in respect of keeping the copy of the letter, the father’s evidence was confused.  He spoke at one time of keeping it in a drawer at work but also, as I understood him, spoke of a drawer at home.

617. For an unexplained reason, the father saw fit to write both his and his wife’s name on the letter, presumably signing for both, but said he never confided in his wife that he had sent the letter.  By the time he got home after night shift, he said, his wife had already left for work and they rarely saw each other.  He therefore never mentioned it to her.

618. The father said that he obtained the envelope for the letter, and a stamp, at home.  He said that he wrote the address on the envelope at home but emphasised that it was when he was alone.  He remembered that the envelope was addressed to the Director of Immigration, Immigration Tower, Wanchai.  He remembered posting the letter at North Point.  Yet, although the Director was later to receive two letters from the applicant, this single, critical letter was not received.

619. Where, however, the father had the most difficulty was in trying to explain how it was that the writing and posting of the letter had slipped his mind for so long.

620. It was the father’s evidence that, because he did not at the time think the letter was significant, he did not mention it to any member of his family, not even to the applicant.  Bearing in mind the great concern the family had for the family’s plight, this is perhaps unusual but I do not think can be taken so far as to say it is not credible.

621. However, the history of events shows that over the next year or so there were a number of occasions when, if the letter had been written, the father’s memory would surely have been jogged.  But, according to the father – who tried to give the impression that, because of his working hours, he lived almost in isolation from his family – his memory was not awakened.

622. On 7 July 1999, the CFA having handed down its judgment on 29 January of that year, the applicant wrote to the Director to claim right of abode.  She said that she dictated the letter to her brother at home and admitted that she had probably discussed it with her father.  That, in my view, was likely.  After all, it was a family problem.  That letter was received by the Director the following day and was acknowledged.  The letter, however, said nothing of the father’s letter.

623. Shortly thereafter the applicant admitted receiving a letter from the solicitors, Pam Baker & Co., which set out in considerable detail the circumstances in which persons like the applicant might benefit from the concession policy.  In part, the letter read :

“A person can claim to be a permanent resident himself or the claim can be made by his parents who are of permanent resident status. If you have been to the Immigration Department or Legal Aid Department yourself, or you have raised the matter in writing to government officials, perhaps you fit the definition of having claimed to be a permanent resident. It does not matter even if your claim was not accepted by the Government at that time.”

The letter went on to set out certain examples, one being as follows :

“Another example: If you have written a letter to the Immigration Department but no reply has been received so far …”

624. This letter from the applicant’s solicitors would surely have been discussed in the family.  But when I asked the applicant questions concerning the issue, she became very evasive.  It was obvious she appreciated that, if she admitted that she had spoken to her father about the matter, that would have jogged his memory of the letter he had earlier written.

625. Early the following year, on 7 January 2000, the applicant wrote again to the Director.  This letter, she said, was dictated to her sister and this letter she accepted had been discussed with the whole family.  Yet nothing appears in the letter concerning the father’s letter.  This letter too was received by the Director.

626. On 29 May 2000, the applicant attended an interview with the Immigration Department in order to state why she believed she was entitled to right of abode.  She had been given an opportunity to prepare her grounds.  The applicant confirmed she had completed the form at home.  She confirmed that she had discussed the matter with her family.  Her father even filed out portion of the form.  Yet – again – nothing was said of the father’s letter.

627. Indeed, according to the applicant, she first got to know of her father’s letter in 2000.  This came about, she said, because friends told her that they had earlier written to the Director and were informed that they could now obtain right of abode.  When she mentioned this to her father, she said, he immediately remembered that he too had written a letter.

628. The applicant said that she asked her father why he had not mentioned it earlier.  He had replied that his working hours made him constantly tired and it had slipped his mind.

629. The father claimed that he was able to find the copy of the letter in his drawer at work.  However, according to him, he had not seen it in the drawer at any earlier time so as to be reminded of it.  He said this was because the drawer had always been so full of papers; to use his expression, like a ‘rubbish tip’.  This piece of evidence, like so much of the father’s evidence, was just too convenient, too contrived.  By the end, it was obvious, I believe, that the father was prepared to say anything that came to mind.

630. My determinations are therefore as follows :

(i)	No claim was made;
(ii)	The Director has no record of any claim.

Mr Chu Shek Kai (5297 : a ‘group six’ applicant)

631. The applicant was born in the Mainland in 1952, seemingly one of eight children.  Long before the applicant’s birth, the evidence revealed that his father had come to Hong Kong to live and work.  The father had arrived in or about 1931 and had remained until about May 1942 when he had been shipped back to the Mainland by the Japanese forces then occupying Hong Kong.  The father had remained in the Mainland for a number of years – his children (or most of them) being born during this time – before returning to live in Hong Kong.

632. By 1993, according to the applicant, all of the family had settled in Hong Kong except for himself and two of his brothers.

633. It was the applicant’s evidence that in February 1993 his father had written a long letter to him and his two brothers in the Mainland.  In that letter, the father had informed them that, according to the draft of the Basic Law, when the change of sovereignty took place, they would be able to claim right of abode through him.  A copy of this letter had been kept by the applicant, or a family member, and was placed into evidence.  The letter concluded, in translation, as follows :

“The above information reflects that since the time when I was a teenager, I have stayed and worked in Hong Kong.  It is provided for the three brothers of you in the Mainland to use when you may have to provide my status and background in submitting application for coming to Hong Kong to reunite with me.  You can give your answer in accordance with the above facts.”

634. The applicant’s mother died in 1990, the father in 1994.

635. In early March 1998, the applicant came to Hong Kong, his two-way permit allowing him to remain until the end of May of that year.  While in Hong Kong, he said, he stayed with a brother who lived in Lockhart Road, Wanchai.  On the evidence, it appears that the apartment was within reasonable walking distance of the Immigration Tower.

636. It was during this visit, said the applicant, that he wrote to the Director claiming right of abode.  It is this letter which formed the basis of the applicant’s claim.

637. In his written instructions to his first solicitors, Pam Baker & Co., the applicant spoke of this letter in the following terms :

“From 6 March 1998 to 30 May 1998, I stayed in Hong Kong by virtue of a two-way permit to visit relatives.  The first time, I wrote to the Immigration Department to tell them that according to the provisions of Article 24 of the Basic Law, after 1997 all Chinese children given birth to by Hong Kong residents on the Mainland will automatically become Hong Kong permanent residents.  I told the Immigration Department the right I ought to enjoy.  At that time, I enclosed in the letter copies of the ID Card and home visit permit (my father’s), but I have received no reply.  At that time, I lived in the residence of my younger blood brother who had settled down in Hong Kong.  Its address was Flat B, 12/F, 209 Lockhart Road, Wan Chai, Hong Kong.  The time was March 1998.”

638. Although the applicant had to make copies of his father’s Hong Kong identity card and ‘home visit permit’ in order to enclose them in the envelope with the letter, he said that he did not think to make a copy of the letter itself.

639. The Director has no record of receiving a letter from the applicant at that time.

640. Accordingly, the applicant’s evidence concerning the letter was based entirely on what he said he could remember of it, his memory – during the course of his testimony – having to be cast back over a period of some seven years.

641. As to what was written in the letter, the applicant’s memory of detail was shown to be fallible.  For example, when testifying, the applicant recalled that in the letter he only mentioned his father, his claim for abode coming through him.  However, in his affirmation of 18 September 2004, made in support of his application, his recollection was materially different.  He said :

“The letter consisted of 1 or 2 pages of handwriting, addressed to the Director of Immigration and was signed by me. I gave both of my parents’ names in the letter.” [my emphasis]

642. As to the delivery of the letter, the applicant testified that he did not hand it in personally at the Immigration Tower.  This was despite the fact that he was legally in Hong Kong (and therefore had no reason to be in hiding) and was within easy walking distance.  The applicant said that he posted the letter at the Hennessey Road Post Office in Wanchai.

643. Although the letter was clearly of some importance to the applicant, and although he said he discussed the matter, to the best of his memory, with Hong Kong family members, if he is to be believed, he did not take steps to ascertain the Director’s full postal address.  The applicant recalled writing only the following on the envelope : ‘The Director of Immigration, Hong Kong’.

644. The applicant recalled, however, that he put his brother’s address on the envelope so that a response could be received.  There was, however, no evidence that the letter was returned as ‘undelivered’ to that address.

645. As to whether the letter was sent by ordinary post or registered mail, it was evident that the applicant was not certain in his memory.  He concluded, however, that, if it had been sent by registered post, he would have kept the slip, the inference from that being that he must have sent it by ordinary post.

646. It was the applicant’s testimony that, in the absence of a reply from the immigration authorities, he did not think at the time to send a further letter.  He commented that perhaps the Director had considered it a matter ‘too trivial’ to warrant a response.

647. The applicant said that shortly before the end of his visit he did make a visit to the Immigration Tower.  In his affirmation of 18 September 2004, he said that he could not remember which floor the office was on but he took his father’s identity card and ‘home visit permit’ and asked for verification of his right of abode.  He was informed, however, that he must return to the Mainland.  On his admission, he knew of no record of that visit.

648. However, in his testimony, pressed on the matter of the letter, the applicant asserted that during his visit to the Immigration Tower he did in fact ask about the letter.  He said that he was told that, if the letter had been received by the Immigration Department, he would have received an acknowledgement.  If his evidence in this regard is believed, he would therefore have been alerted at that early stage that, no acknowledgement being sent to him, his letter must have gone astray.  But even this did not apparently prompt him to send a follow-up letter, one perhaps with a more detailed address.

649. Later, after the CFA had handed down its judgment on 29 January 1999, the applicant did enter into fairly extensive correspondence with different departments of the Government concerning his claim.  In none of those letters, however, did he mention writing an earlier letter in 1998.

650. On behalf of the Director, it was submitted that the applicant had written no letter during his visit to Hong Kong in 1998; that it was an invention made by him.  In my judgment, the probabilities support that submission.

651. Although the absence of any independent record was a material factor, one which, in my judgment, demanded some caution, that by itself did not, in my opinion, preclude me from finding on the evidence of the applicant alone that a letter claiming right of abode had in fact been written.  However, I found the evidence of the applicant to be weak and unconvincing.  When cross-examined, the applicant became highly defensive and evasive, at one stage, for example, protesting that he was being accused of being a ‘counter revolutionary’.  I could place little, if any, faith in what he said concerning the creation and despatch of the letter.

652. But even if I am wrong in finding as a fact that the applicant did not write the letter, I fail to see how the applicant is able to demonstrate on the balance of probabilities – and the burden is on him – that the Director received the letter and thereby has a record of it.  At the beginning of this report I said that, in my judgment, having heard evidence on the matter, I am satisfied that at all material times the Director managed an efficient system for the receipt, distribution and storage of mail.  During the course of the applicant’s hearing, evidence was led that attempts had been made on two occasions to trace some record of the applicant’s letter.  Those attempts, I am satisfied, were conducted in good faith and were reasonably thorough.  No record, however, could be traced.  That, in my view, while it cannot exclude some possibility, a speculative one, that the letter was somehow misplaced without having its receipt registered or noted, is evidence that, on the probabilities, no record of the letter could be traced because the letter was simply never received.

653. My determinations are therefore as follows :

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

Mr Siu Chi Keung (4860 : a ‘group six’ applicant)

654. The applicant was born in Guangzhou in 1956, one of five children.  His mother came to Hong Kong in 1962, his father joining her in 1975.  By the change of sovereignty, it appears that the applicant was the only member of the family still living in the Mainland, his attempts to obtain a one-way permit having been unsuccessful.

655. The applicant came to Hong Kong as a visitor on 15 July 1998, being permitted to remain until the end of that month.

656. It was the applicant’s evidence that he came to Hong Kong determined to find some way to claim right of abode.  Prior to his arrival, he said that he had made active enquiries with the Mainland authorities and, immediately upon his arrival, set about approaching the authorities here.

657. His mother, he said, had been advised by a District Councillor that Legal Aid may be able to assist him.  A visit was therefore made to the Legal Aid Department.  However, according the applicant, he was informed by the officer with whom he spoke that Legal Aid could offer him no assistance and that he would have to deal directly with the immigration authorities.

658. According to the applicant, he went that same day to the Immigration Tower.  He said that he asked for forms to enable him to apply for right of abode or, failing that, forms that would help him to speed up an application for the issue of a one-way permit in the Mainland.  He was told, however, that any application for right of abode would have to be processed by the Mainland authorities.  He said that he was given no guidance on how best to proceed.

659. Disappointed, the applicant said that he returned a few days later to the Immigration Tower to make the same enquiries but was given the same answers.  He returned, he said, on a third occasion, this time not to make enquiries but rather to see how other people were attempting to process their claims.  On this third occasion, he said, he remained in the area of the information office on the 2^nd floor of the Immigration Tower until he was asked to leave.

660. While in Hong Kong, the applicant said that he also made a visit to the CVO in Yau Ma Tei, this visit too ending in frustration.

661. It was the applicant’s evidence that he had come to Hong Kong determined to remain here with his family.  All his enquiries, however, had proved fruitless.  He was left in a state of distress.  It was then, he said, that he wrote a letter to the Director, the letter being motivated by his frustration.

662. The applicant testified that he did not keep a copy of the letter.

663. On behalf of the Director, evidence was led that, despite several searches being made, the letter could not be found in the archives of the Immigration Department nor was there any record, direct or indirect, of a letter being received from the applicant in or about July 1998.

664. Neither the letter itself, therefore, nor any kind of copy of it was available for admission into evidence.

665. On behalf of the Director, it was submitted that, on all the evidence, it was highly unlikely that the applicant had ever written a letter to the Director while in Hong Kong in July 1998 and that the probabilities indicated that it was a later invention of the applicant.

666. In a case summary prepared by Pam Baker & Co., the applicant appears to have asserted that his letter was written on 18 July 1998, a week or more before his return to the Mainland on 27 July of that year.  There is a bald heading at the top of the summary ‘Date’ and next to it : ‘18/7/98’.  However, nothing appears in the body of the summary to support that terse piece of information.  In the course of his testimony, the applicant accepted that the letter was probably written much nearer to the date of his departure.  While giving evidence, he said words to the following effect : “I always said that I wrote the letter shortly before I left.  As to how 18 July [in the case summary] came to be written there, I cannot now recall.”

667. As to contents of his letter, in the case summary prepared for him by Pam Baker & Co., while the history of his approach to the immigration authorities was set out in some detail, all that was said in respect of the letter was the following :

“So before I left, I wrote a letter to the Immigration Department but did not receive a reply.”

668. In his affirmation of 21 August 2004 made in support of his application, the applicant said the following in respect of the contents of the letter :

“In the letter to Immigration, I explained my situation. I did not mention my parents by name, but I referred to them as permanent residents of Hong Kong, with whom I wanted to reunite.  I asked the questions ‘How can I apply for family reunion?’ and ‘Can I apply in Hong Kong?’ I wrote that my parents had come in 1962 and 1975, and the reasons – my mother had come for medical reasons and my father for family reunion.”

669. In his testimony, the applicant spoke of the contents of his letter in the following manner.  He explained, he said, that his parents have settled in Hong Kong a long time ago and that, of the family, he was the only one not living in Hong Kong.  After the death of his grandmother, he had been left alone in the Mainland.  He had applied for a one-way permit ‘on several tens of occasions’ but without success.  During his visit to Hong Kong, he had approached the Immigration Department to discover how he could come to live in Hong Kong but had met no success.  He therefore asked the Director for instructions on how he could come to live in Hong Kong with his family.

670. On behalf of the Director, it was submitted that, if the applicant was believed, even on the basis of his own evidence, his letter had constituted an enquiry and not an unequivocal claim for right of abode.  Of particular significance, it was submitted, was the applicant’s admission that in his letter he had given neither the names nor the personal details of his parents nor his immediate family members.  There was nothing in the letter therefore capable – on its face – of constituting a record of claim for right of abode based on the assertion that one or both of his parents were permanent residents.  If the letter had been received the Director would have had no idea who the applicant’s parents were so as to be able to verify their status. 

671. Considered in context, it was said, it was clear that the applicant had made a number of approaches to the immigration authorities to enquire how he could claim right of abode and, if the applicant was believed, his letter was no more than another form of enquiry.

672. In support of the Director’s submission, reference was made to a much later letter, one dated 4 July 1999 from the applicant to the Director.  That letter, it was agreed, had been received.  In that letter, in translation, the applicant wrote the following :

“Furthermore, the Immigration officer even refused to provide information or guidelines. Actually, I am at the end of the rope.  Last time when I was due to leave, I had no choice but to go back to the Mainland and apply to the local Public Security Bureau as instructed by your staff.  Afterwards, I had sent a letter to the Immigration Department by ordinary mail and requested the provision of a guideline, but no reply has been received yet.” [my emphasis]

In that letter, it was said, the applicant spoke of earlier seeking ‘the provision of a guideline’; in short, a request for information as to how to seek right of abode.  He had not spoken of actually making a claim that he was entitled to right of abode.

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 enquiries.  Questions may, depending on their context, constitute quite clearly in the ear of a listener a statement or a demand.

674. In respect of the letter cited in para.672 above, the applicant spoke of sending his letter ‘afterwards’.  It was submitted on behalf of the Director, although not with great vigour, that this was some evidence that the applicant had not been in Hong Kong when he sent the letter.  Read in context, however, the statement is ambiguous.  No suggestion of a strict chronology is made in the letter.  The word ‘afterwards’, I was told, may also have been translated as ‘later’.  Elsewhere in his various papers the applicant spoken in clearer terms of sending the letter before his departure.  In my view, it would be wrong to put too much weight on the single phrase in the applicant’s letter of 4 July 1999.  I am satisfied, if the applicant is believed, that the probabilities support his contention made in his testimony that he did write the letter before his departure.

675. The lack of any independent evidence of the creation of the letter was a matter which, in my view, meant that I had to approach the applicant’s testimony with caution.  The temptation, absent any other substantive grounds for claiming right of abode, to simply invent a letter and then profess bewilderment as to why it was not received must be considerable for persons in the position of the applicant.  But nevertheless I found the applicant be an essentially credible witness.  While he was guilty of rambling, there was no noticeable attempt by him to improve his evidence; for example, by answering questions with the sole object of saying whatever he believed in that instance would best suit his case.  By way of illustration, he never changed his evidence that he did not name his parents in his letter or give details of their Hong Kong identity cards.  His testimony struck me as being put forward ‘warts and all’.

676. On the evidence, I believe it was plain that the applicant did come to Hong Kong determined to find some way of claiming right of abode and I believe it is probable that, being frustrated in his attempt, he did send the letter to the Director.  I am further satisfied that the letter would have been, as the applicant himself described it, a fairly lengthy document which, when read in full, would have constituted a claim for right of abode and not simply an enquiry as to whether such a claim could be made.  It is one thing to ask : ‘How do I make a claim?’  It is another to say : ‘Provide me with the guidelines concerning my claim.’ 

677. The fact that the applicant did not give the names of his parents in the letter, nor their identity card details, does not, in my view, mean that no claim was made.  The evidence indicated that the applicant gave his own name and it was after all his claim.  The letter clearly was evidence that he was making a claim and setting it in a detailed context of family history.

678. The applicant testified that he addressed the envelope containing his letter to the ‘Director of Hong Kong Immigration Department’ or characters to that effect.  He admitted that he did not give any more details than that.  He said that, to the best of his memory, the letter was posted one or two days before he left Hong Kong on 27 July 1998.  

679. The applicant said that he wrote his home address on the envelope.  I took that to mean the address of his brother in Hong Kong where he was staying.  To his knowledge, said the applicant, the letter had not been returned ‘undelivered’.

680. On the evidence, however, while I have found that the probabilities support the applicant’s contention that he did write and post the letter, it is apparent that the Director, despite attempts to locate the letter, was not able to locate any record, direct or indirect, of the letter having been received.

681. On behalf of the applicant, it was submitted that, where I am otherwise satisfied that the applicant sent a letter containing a claim, I cannot find that there is no record of that letter being received for the plain reason that the letter may well be lying in some file, misplaced, or that there may be some notation proving the receipt of the file which has not yet been discovered. 

682. I accept, of course, that letters, having been received, may then be lost.  However, as I have said earlier in this report – paras.18 and 19 – I am satisfied that the Director at the time was managing an efficient system for the receipt and distribution of letters and that, if a letter went astray without being noted in some way, that would be very much the exception rather than the rule.  If the letter was poorly addressed, as this one was, it is equally probable, I think, that it was lost in the post as it was lost after receipt by the Director with not even a notation in a file or register to record that receipt.  That being the case – and the burden being on the applicant to demonstrate on the balance of probabilities that the Director did receive the letter – I must regrettably conclude that the Director has no record of the applicant’s claim.

683. My determinations are therefore as follows :

(i)	The applicant did make a claim;
(ii)	The applicant was in Hong Kong when he made his claim;
(iii)	The Director, however, has no record of any claim.

Mr Wu Chun Choi (3983 : a ‘group six’ applicant)

684. The applicant was born in Guangdong Province in March 1966, one of six children.  His father came to Hong Kong in 1979, his mother in 1995.

685. It was the applicant’s case that in 1996 he heard rumours that after the change of sovereignty the children of Hong Kong permanent residents would themselves be entitled to live in Hong Kong.  The applicant was married with twin boys.  Despite this, he said, he came to Hong Kong in anticipation of the promise contained in those rumours.  .  However, shortly after his arrival the rumours were dispelled by the then Governor and he returned to the Mainland.

686. It was the applicant’s evidence that he remained interested in the possibility of claiming right of abode and purchased a copy of the Basic Law in the Mainland.  In 1998, having learnt that right of abode claimants were pursuing their claims through the Hong Kong courts, he agreed with his wife that he would come to Hong Kong in order to make his own claim.

687. The applicant came to Hong Kong as a visitor on 31 May 1998, his two-way permit allowing him to remain until 22 June of that year.

688. On arrival, the applicant said that he made enquiries about the on-going litigation with relatives and friends.  

689. It was the applicant’s testimony that on 12 June 1998, while doing domestic chores in his parent’s apartment, he discovered a local copy of the Basic Law.  He said that he compared the text with the text of the Basic Law that he had obtained in the Mainland and brought with him to Hong Kong.  He was ‘surprised’, he said, to see that the texts were the same.  That being the case, he was confirmed in his original belief – formed in the Mainland – that he was entitled to claim right of abode under the Basic Law.

690. With this confirmation, said the applicant, he decided to write to the Director and did so that same day.  He said that he dated the letter 13 June 1998 rather than 12 June because he knew that the letter would be posted the following day.

691. It was the applicant’s evidence that his younger brother posted the letter the following morning.  The Director, however, despite attempts to locate the letter, has no record of any kind of receiving the letter, this being a letter bearing a full address and having with it various enclosures.

692. The applicant said that he obtained the address of the Director of Immigration from the telephone book in the apartment.  The address, therefore, was a full address.  Indeed, despite the lapse of some seven years, both the applicant and his younger brother, who apparently posted the letter, were still able to remember the exact address.

693. At this juncture, I should record that, in my view, the applicant’s case was highly contrived.  In the light of all the evidence, I am satisfied that its artifice was an invention, a fairly thorough invention but an invention nevertheless.  The fact that both the applicant and his younger brother were able without prompting to remember the exact address written on the envelope was one small piece of evidence that led me to the determination that the applicant’s case had essentially been ‘put together’ by the two of them.  To expand upon this, in a declaration (prepared either for the purposes of the applicant’s application or in support of a claim made to the Director of Immigration), the younger brother gave the details of the address as follows :

“I, Wu Chun-fuk, sent a letter of my elder brother Wu Chun-choi to Mr Ambrose Lee, Director of Immigration at No. 7 Gloucester Road, Wan Chai, Hong Kong on 13 June 1998.”

There is, however, one problem with the details given in that declaration.  Mr Ambrose Lee was not the Director of Immigration in June 1998.  He was made director at a later date.  The applicant’s younger brother had difficulty in explaining this discrepancy when he was cross-examined.

694. Having written his letter on 12 June 1998, the applicant said that he left the apartment to obtain a photostat copy of it together with copies of documents to be enclosed in the letter.  The copy letter was placed into evidence.  In opening, it reads :

“	Respected Director of Immigration,
	Greetings!
	I, Wu Tsun Choi, came to Hong Kong with a two-way permit on the 31st last month for the purpose of visiting my relatives. I now reside at Flat 2006B, King Yung House, King Lam Estate, Tseung Kwan O, Kowloon, Hong Kong.  On the day before yesterday I happened to come across Article 24 of Chapter III ‘Fundamental Rights and Duties of the Residents’ of the ‘Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China’ and the requirements stated thereunder. In my opinion I have fulfilled those requirements and I am eligible to come to reside in Hong Kong.  For these reasons, I now apply to Mr. Director. I ask Mr. Director to grant my application.”

695. The letter then gives some family history and concludes with the following paragraph :

“I have made every effort in the Mainland to apply to come to Hong Kong to reunite with my family for almost a decade. However, my application was like a pebble dropped into ocean and I have never received any feedback.  Mr. Director, being the guardian official of people, please be sympathetic to my difficulties, approve this application, process the right of abode documents and relevant formalities and issue me with a Hong Kong resident Identity Card. Mr. Director, please excuse me for making this bold and sincere request and please grant approval to my application. Hereby I represent my whole family to express our gratitude to Mr. Director for your great kindness and virtues. Enclosed please find a copy each of my father’s Identity Card, my mother’s Identity Card and my mother’s medical record. Please, Mr. Director, confirm the receipt of them. I look forward to receiving a satisfactory reply from Mr. Director as soon as possible.  My contact address: Flat 2006B, King Yung House, King Lam Estate, Tseung Kwan O, Kowloon, Hong Kong.” [my emphasis]

696. The applicant’s younger brother, Mr Wu Chun Fuk, testified that he was given the sealed envelope and posted the letter the following day at the Tseung Kwan O Post Office on his way to work.

697. But the younger brother’s evidence did not end there.  He testified that on 12 June 1998 – when he was 16 years old – he saw the applicant seated at the table in the family apartment.  He said that he went across to the table and saw that his brother had only written one paragraph.  Although he had not refreshed his memory by reading the copy letter, he said that he could still remember – after some seven years – the gist of that first paragraph and was able to demonstrate the accuracy of his memory.

698. The younger brother said that, as he had nothing to do, he sat at the table and watched the applicant write the rest of the letter.  He even said that he could remember the specific date put at the bottom of the letter : 13 June 1998.

699. The younger brother’s evidence as to witnessing the writing of all but the first paragraph of a long letter was, in my view, patently contrived.  Assuming that he was prepared to sit watching his brother write, what would prompt him, after some seven years, to remember the exact date at the foot of the letter?  The utter confidence of the brother’s testimony added to my concern as to its credibility.

700. With the letter posted, the applicant testified that he waited for a reply.  Indeed, it was his evidence that one of the primary reasons why he did not return to the Mainland – to his wife and children – when his two-way permit expired on 22 June 1998 was because he was still waiting for a reply.

701. On his own evidence therefore, the applicant must have been anxious for a reply.  In his letter he had said “Please, Mr. Director, confirm the receipt of them [i.e. the copy documents enclosed in the letter]” and had continued “I look forward to receiving a satisfactory reply from Mr. Director as soon as possible”.

702. Despite this, however, with no reply being sent, he took no action whatsoever to check why the Director had not responded.

703. According to the applicant, on 18 June 1998, he went to the 2^nd floor of the Immigration Tower, to the information office, to make enquiries concerning an application for right of abode.  He said he was told there was no mechanism available to him in Hong Kong and he should return to the Mainland to apply there.  This first visit would have been five days after the posting of his letter to the Director but there was no evidence of making any enquiry at the information office as to whether the letter had been received and, if so, which department was dealing with it.

704. Concerning this visit of 18 June 1998, the applicant procured a declaration from a friend, Mr Lam, to support his contention that he made the visit at or about 11 a.m. on 18 June 1998.  However, a record check revealed that Mr Lam was not in Hong Kong that morning and only returned to the Territory near 10 o’clock that night.  The applicant attempted to explain this by saying that both he and his friend were relying roughly on their memories.  But the declaration, of course, does not simply give the date but gives the time too and it is a solemn declaration.  While I did not give this matter great weight, it was in my view, another piece of evidence which went to undermine the credibility of the applicant’s case.

705. The applicant said that, once he was in breach of his two-way permit, he was afraid that any further form of enquiry may lead to his apprehension and repatriation.  But, as counsel for the Director pointed out, the applicant had already given his contact address in Hong Kong and, as an overstayer – a fact which would have been in the records of the Immigration Department – had therefore already supplied an address at which he could be apprehended.

706. More telling, however, was the fact that, on his own admission, the applicant had visited the Immigration Department to apply for right of abode on 6 January 1999; that is, at a time when he was still an overstayer and liable for repatriation (this being before the CFA judgment of 29 January 1999 and the announcement of the concession policy).  This admission was made in a letter dated 28 June 1999 which the applicant wrote to a Mr Ho Hei Wah, seeking his help.  The letter, in translation, begins :

“I, Wu Chun Choi, came to Hong Kong by an exit and entry permit on 31 May 1998 and have all long been fighting for right of abode in Hong Kong.  On 13 June 1998, I wrote to the Director of Immigration to apply for right of abode but have not received any reply.  On 18 June 1998 and 6 January 1999, I personally went to the Immigration Department to apply for right of abode but was politely refused both times by the Immigration Department and told that there was no mechanism for application.”  [my emphasis]

707. It is, in my view, pertinent that it was only shortly after the concession policy came into being, indeed a matter of days after, that the applicant entered into a good deal of correspondence with various people seeking their help to claim right of abode and it was only in this correspondence that the letter of 13 June 1998 became an important issue.  The concession policy was announced on 26 June 1999 but there were no documents of any kind put into evidence by the applicant which predate 26 June 1999 containing mention of the letter of 13 June 1998.

708. As I have said earlier, the Director has no record of the letter of 13 June 1998, no notation of any kind despite the fact that the letter was apparently fully addressed and contained relevant enclosures.  It would therefore have been a letter of some bulk.  I am satisfied that the Director has no record because the letter was not in existence in or about June 1998.  

709. On the evidence, I am further satisfied that the applicant could not pretend to have sent a follow-up letter to the Director when his first letter was not acknowledged because it would be pushing matters too far to suggest that two fully addressed letters, or perhaps more, must all have been mislaid.

710.  My determinations are therefore as follows :

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

Conclusion

711. My determinations may therefore be stated again (in summary) as follows :

Part One

1.	Madam Sze Sau Kan (3122) :
	“	(i)	The applicant did make a claim for right of abode;
		(ii)	the Director does have a record of the claim.”
2.	Mr Fu Kwong (1084) :
	“	(i)	The applicant did not claim right of abode;
		(ii)	there is no record of any claim.”

Part Two

3.	Madam Wong Fai Fong (3873) :
	“	By 10 July 1952, the date of the applicant’s birth, her father had ordinarily resided in Hong Kong for a continuous period of not less than seven years and was therefore a permanent resident.”

Part Three

4.	Madam Kwok Siu Wan (1624) :
	“	(i)	The applicant did not make a claim for right of abode;
		(ii)	the Director has no record of any claim.”
5.	Madam Tang Wai Ying (3234) :
	“	(i)	The applicant and/or her mother on her behalf did make a claim for right of abode at the offices of the GIS;
		(ii)	the Director does have a record of the claim for right of abode made by the applicant and/or her mother on her behalf at the offices of the GIS.”
6.	Madam Cheung Choi Ngo (641) :
	“	(i)	The applicant did make a claim for right of abode;
		(ii)	the Director has a record of the claim.”
7.	Mr So Yik Lung (3028) :
	“	(i)	The applicant did not make a claim for right of abode;
		(ii)	the Director has no record of any claim.”
8.	Madam Tsang Kwai Ngan (3299) :
	“	(i)	The applicant did not make a claim for right of abode;
		(ii)	the Director has no record of any claim.”
9.	Madam Sze Shuk Fan (3126) :
	“	(i)	The applicant did make a claim for right of abode, that claim being made by her mother on her behalf and in her presence;
		(ii)	the Director has a record of the claim.”
10.	Mr Yim Shing Cheung (4232) :
	“	(i)	The applicant did not make a claim for right of abode;
		(ii)	the Director does not have a record of any claim.”
11.	Mr Leung Tak Kwan (2137) :
	“	(i)	The applicant did make a claim for right of abode;
		(ii)	the Director has a record of the claim.”
12.	Mr Tsoi Ching Chung (3387) :
	“	(i)	The applicant did not make a claim for right of abode, either directly or through his mother;
		(ii)	the Director does not have a record of any claim.”
13.	Madam Wong Sau Chu (3794) :
	“	(i)	The applicant did not make a claim for right of abode;
		(ii)	the Director does not have a record of any claim.”
14.	Madam Yeung Lai Fong (4149) :
	“	(i)	The applicant did make a claim for right of abode;
		(ii)	the Director does have a record of the claim.”
15.	Madam Lau Man Chu (1936) :
	“	(i)	The applicant did not make a claim for right of abode;
		(ii)	the Director does not have a record of any claim.”

Part Four

16.	Mr Wong Sai Chak (5006) :
	“	(i)	The applicant did make a claim;
		(ii)	the Director, however, has no record of any claim;
		(iii)	the applicant is not entitled to benefit from any legitimate expectation.”
17.	Madam Chong Chui Ching (1015) :
	“	(i)	The applicant did not make a claim;
		(ii)	the Director has no record of any claim;
		(iii)	the applicant is, however, entitled to benefit from a legitimate expectation that she would be treated as a litigant in the right of abode litigation and thereby to any benefits accruing to those litigants under the concession policy.”

Part Five

18.	Madam Cheung Shuk Ching (720) :
	“	My determination is therefore that the applicant, by her actions, has withdrawn her application.”
19.	Madam Lau Kiu Fan (1922) :
	“	(i)	The applicant did not make a claim for right of abode;
		(ii)	the Director has no record of any claim.”
20.	Mr Tsoi Chak Kong (3382) :
	“	(i)	The applicant did not make a claim for right of abode;
		(ii)	the Director has no record of any claim.”
21.	Madam Wong Siu Ching (3822) :
	“	(i)	That the applicant did make a claim for right of abode, but
		(ii)	the Director has no record of any claim.”

Part Six

22.	Madam Chan Chuen Chu (400) :
	“	(i)	The applicant did not make a claim for right of abode;
		(ii)	the Director has no record of any claim.”
23.	Madam Lam Nga Yung (1769) :
	“	(i)	The applicant did not make a claim for right of abode;
		(ii)	the Director has no record of any claim.”
24.	Mr Chu Shek Kai (5297) :
	“	(i)	The applicant did not make a claim for right of abode;
		(ii)	the Director has no record of any claim.”
25.	Mr Siu Chi Keung (4860) :
	“	(i)	The applicant did make a claim for right of abode;
		(ii)	the applicant was in Hong Kong when he made his claim;
		(iii)	the Director, however, has no record of any claim.”
26.	Mr Wu Chun Choi (3983) :
	“	(i)	The applicant did not make a claim for right of abode;
		(ii)	the Director has no record of any claim.”

* Postscript

A few days before handing down this report, I was informed of the death of this applicant, Mr Fu.  I am not aware, however, of Mr Fu’s family circumstances and as to whether perhaps, through him, children may be seeking right of abode.  In the circumstances, erring on the side of caution, I considered it best not to remove this determination from the report.