CHAN MEI YEE v. DIRECTOR OF IMMIGRATION

HCAL77/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.77 OF 1999

---------------------------------

------------------------

J U D G M E N T

------------------------

1. These are two separate applications for judicial review. They were heard at the same time.

APPLICATION OF CHAN MEI YEE

FACTS

The entry and order to remove

2. Chan Mei Yee ("Ms Chan") is a resident of Mainland China. She was born there in 1969. She married her husband, Mr Lee Man Shing, in the Mainland in 1992. Mr Lee is a Hong Kong permanent resident. In December 1992, Ms Chan gave birth to a daughter Lee Ka Po ("the child") during her visit to Hong Kong. The child has Hong Kong permanent resident status.

3. On 26 January 1997, Ms Chan entered Hong Kong with a two-way exit permit issued by the Mainland authority. She was permitted to remain in Hong Kong as a visitor until 19 April 1997. However, she failed to leave and has been overstaying since 20 April 1997. She was arrested in August 1998 and afterwards charged with breaching the condition of stay under section 41 of the Immigration Ordinance. On 19 November 1998, she was convicted in the magistracy and was given an absolute discharge.

4. The Director of Immigration ("the Director") issued a removal order against her on 3 March 1999. She appealed against the removal order to the Immigration Tribunal. The appeal was dismissed on 12 March 1999 without hearing. She now applies for judicial review of the removal order issued by the Director.

Ms Chan's case

5. Until the hearing, Ms Chan had acted in person and the reasons stated in her application is that her daughter has epilepsy and she has to receive medical treatment in hospital regularly. She depends on medicine to control her illness. She has serious convulsion, she has to be admitted to the hospital for treatment at any time. No one in the family is available to take care of the daughter. Ms Chan asked for permission to stay in Hong Kong so that she could fulfill her responsibility as a mother by taking care of her young daughter.

The medical history

6. In the first medical report dated 5 February 1999, the Queen Elizabeth Hospital stated that the child had seizures since May 1997. The seizures were generalized and the frequency was approximately once every two weeks. The duration of the seizures was a few minutes. She was admitted from 29 to 31 August 1998 because of generalized tonic seizure.

7. In the report of 7 June 1999, the hospital stated that the child still had frequent seizure episodes in these three months. Her seizure frequency was still around thrice every month despite the gradual stepping up of anti-convulsant dosage. She was admitted to hospital on 3 May 1999 because of a breakthrough seizure.

8. According to the latest medical report dated 10 April 2000 from Queen Elizabeth Hospital, the child did not have any admission after 3 May 1999. She was followed up in the out-patient clinic. The frequency of seizure was approximately once per month between June 1999 and February 2000. The frequency increased after February 2000 and five seizures were reported between 2 February and 22 March 2000. The control of the child's epilepsy was stable before February 1999, with minor attacks approximately once per month. The frequency of seizure increased after February 1999 but the characteristics of the seizures changed. The report stated that because of the difficult control of the epilepsy and apparent poor response to treatment, the prognosis for full recovery appears poor. Further observation, especially her response to the recently added anti-convulsant, is necessary. The report concluded that her illness does not affect her usual daily activities, but she is advised against some activities such as swimming alone, cycling on roads or engaging in some sports like rock-climbing. She does not need close attention but she needs a responsible adult to supervise her to take medicine and to care for her when seizure occurs.

The Director's view

9. The Director stated that Ms Chan had no legal right to stay in Hong Kong. In considering whether a removal order should be made against an illegal entrant or overstayer, he would consider the result of enquiries conducted by the staff of the Immigration Department, as well as the representations by the illegal entrant. He would also consider any humanitarian or special grounds of the case. He stated that there was insufficient strong humanitarian grounds or other reasons to justify special treatment to exercise his discretionary power to permit Ms Chan to stay in Hong Kong.

THE APPROACH

10. The approach of the court in its supervisory role in immigration matters has been well established by a number of cases. In Ho Ming Sai & Others v. The Director of Immigration [1994] 1 HKLR 21, a case concerning illegal immigrants from the Mainland to Hong Kong who surrendered to the Immigration Department and had removal orders made against them, the Director declined to exercise his discretion under section 13 of the Immigration Ordinance so as to authorise them to remain in Hong Kong. Godfrey J (as he then was) stated that :

" These girls are 'illegal immigrants'; and this Court has no power to decide whether illegal immigrants, however strong the merits of their case, ought to be allowed to remain here or not. Such a power does exist; but s. 13 of the Immigration Ordinance (Cap. 115), confers it, exclusively, on the Director of Immigration."

"... They have no right, and no legitimate expectation (i.e., an expectation, induced or encouraged by the conduct of the Director of Immigration) of being allowed to stay here."

"... Certainly, the court would be prepared to intervene in the event of any misuse by the Director of Immigration of his power under s. 13. If he were to abuse his power illegally (e.g., by refusing to consider an exercise of his powers in favour of an illegal immigrant unless bribed to do so) or irrationally (e.g., by refusing to consider an exercise of his powers in favour of any illegal immigrant of Chinese race or nationality) the court would intervene. But, further than that, I do not believe the court would or should go."

11. In R. v. Director of Immigration, Ex parte Chan Heung-mui & Others [1993] 3 HKPLR 533, the Court of Appeal reaffirmed this principle and further stated that an illegal immigrant did not have, as a general rule, a right to a hearing, conducted fairly and in accordance with the rule of natural justice, before a removal order was made against him.

12. In Lau Kong Yung v. Director of Immigration [1999] 3 HKLRD 805, Li CJ stated that :

"... First, an illegal immigrant, whether he entered illegally or has contravened a condition of stay, does not have, as a general rule, a right to a hearing, conducted fairly and in accordance with the rules of natural justice, before a removal order is made against him. ..."

" Secondly, in relation to such a person the Director has no duty to consider humanitarian grounds in considering the making of a removal order against him. But he can take such grounds into account if he thinks it appropriate in the case in question. This is consistent with the position under s.13. ..."

"Further, if what is suggested is that the Director should consider the exercise of some other statutory discretion (apart from ss.13 and 19) to enable such a claimant to stay in Hong Kong temporarily or permanently, the position would be similar to that under ss.13 and 19 as regards humanitarian grounds."

MS CHAN IS NOT AN ALIEN

13. Arguments were raised on the case of Schmidt & Anr. v. Secretary of State for Home Affairs [1969] 2 Ch. 149 which dealt with the rights of an alien to have his permission to stay in England to be extended. Many of the Hong Kong cases applied Schmidt. Mr Dykes, SC, counsel for Ms Chan, submitted that the concept of alien is not applicable to Ms Chan because the Hong Kong Reunification Ordinance, Section 6, Schedule 8 provides that :

"Any reference to an alien (or to similar terms or expressions) shall be construed as a reference to a person other than a citizen of the People's Republic of China."

14. Ms Chan is a citizen of China, hence the concept of alien is not applicable. However, her legal status in Hong Kong should be considered in the light of the decided Hong Kong cases which dealt with illegal immigrants both in the sense of someone arriving in Hong Kong illegally or someone who had contravened a condition of stay. Ms Chan came as a visitor, variations on the condition of her stay is under section 11 of the Immigration Ordinance. However, the position regarding the exercise of the discretion of the Director remains to be the same as stated in Lau Kong Yung.

INTERNATIONAL COVENANTS

The three covenants

15. The real issue in this case is the effect of the application of three international covenants, namely, International Covenant on Civil and Political Rights ("ICCPR"), International Covenant on Economic, Social and Cultural Rights ("ICESCR'") and Convention on the Rights of the Child ("CRC").

ICCPR

16. Article 23(1) of ICCPR provides that :

" The family is the natural and fundamental group unit of society and is entitled to protection by society and the State." (emphasis added)

ICESCR

17. Article 10(1) of ICESCR provides that :

" The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment and while it is responsible for the care and education of dependent children. Marriage must be entered into with the free consent of the intending spouses." (emphasis added)

CRC

18. CRC further provides that :

"Article 2

1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status."

"Article 3

1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (emphasis added)

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures."

"Article 9

1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence.

2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known."

"Article 10

1. In accordance with the obligation of States Parties under article 9, paragraph 1, applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by State Parties in a positive, humane and expeditious manner. States Parties shall further ensure that the submission of such a request shall entail no adverse consequences for the applicants and for the members of their family."

The importance of family

19. The international covenants emphasize the importance of the concept of family and the rights of children. An illustration of how provisions relating to family are dealt with can be found in Berrehab v. The Netherlands (The European Court of Human Rights, Judgment of 21 June 1988. Publication of ECHR, Series A, Vol. 138), a Moroccan citizen living in Amsterdam, Holland applied for renewal of his residence permit but was refused. He had a daughter born in Amsterdam and had acquired Netherlands nationality. His marriage to the mother of his daughter subsequently ended in divorce. The former wife was also of Netherlands nationality. The applicant challenged the decision of the government on the basis that it violated Article 8 of the European Convention on Human Rights which provides that :

"Everyone has the right to respect for his private and family life, his home and his correspondence."

The European Court of Human Rights held that the Convention does not in principle prohibit the contracting States from regulating the entry and length of stay of aliens. The function of the court is not to pass judgments on the Netherlands immigration and residence policy, it has only to examine the interference to the applicant's right to respect for his family life. On the facts of the case, the court held that there had been very close ties between Mr Berrehab and his daughter for several years, and the refusal of an independent residence permit and the ensuing expulsion threaten to break those ties. The court held that there was a violation of the article.

The reservations

ICCPR

20. In 1976, the government of the United Kingdom ratified the ICCPR with certain reservations and extended the covenant to its dependent territories including Hong Kong. The reservation applicable to Hong Kong includes, among other things, the following :

" The Government of the United Kingdom reserve the right to continue to apply such immigration legislation governing entry into, stay in and departure from the United Kingdom as they may deem necessary from time to time and, accordingly, their acceptance of Article 12.4 and of the other provisions of the Covenant is subject to the provisions of any such legislation as regards persons not at the time having the right under the law of the United Kingdom to enter and remain in the United Kingdom. The United Kingdom also reserves a similar right in regard to each of its dependent territories." (emphasis added)

CRC

21. The government of People's Republic of China ("PRC") ratified the CRC in 1992 with reservations. On 10 June 1997, it informed the United Nations' Secretary General that the reservations and declarations entered by PRC on its ratification of the Convention are also applicable to Hong Kong with effect from 1 July 1997. The reservations include, among other things, the following :

" The Government of the People's Republic of China reserves, for the Hong Kong Special Administrative Region, the right to apply such legislation, in so far as it relates to the entry into, stay in and departure from the Hong Kong Special Administrative Region of those who do not have the right under the laws of the Hong Kong Special Administrative Region, and to the acquisition and possession of residentship as it may deem necessary from time to time." (emphasis added)

THE HONG KONG BILL OF RIGHTS

22. The ICCPR as applied to Hong Kong is by the Hong Kong Bill of Rights Ordinance. Article 19(1) of the Bill of Rights Ordinance provides that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State. Section 11 of the Bill of Rights Ordinance expressly provides that :

" As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation."

IMPACT OF INTERNATIONAL COVENANTS ON DOMESTIC LAW

Traditional approach

23. In Regina v. Secretary of State for the Home Department, Ex parte Brind & Others [1991] 1 AC 696, the House of Lords was concerned with the European Convention to the Protection of Human Rights and Fundamental Freedoms and its impact on a domestic legislation. Lord Bridge of Harwich at page 748 held that :

"Like any other treaty obligations which have not been embodied in the law by statue the Convention is not part of the domestic law and the court has no power to enforce the Convention Rights directly and that, if domestic legislation conflicts with the Convention, the courts must nevertheless enforce it."

He further stated that :

"But where Parliament has conferred on the executive an administrative discretion without indicating the precise limits within which it must be exercised, to presume that it must be exercised within Convention limits would be to go far beyond the resolution of an ambiguity."

24. Earlier in Regina v. Chief Immigration Officer, Heathrow Airport and Another, Ex parte Salamat Bibi [1976] 1 WLR 979, Lord Denning MR stated that :

"... But I would dispute altogether that the Convention is part of our law. Treaties and declarations do not become part of our law until they are made law by Parliament. I desire, however, to amend one of the statements I made in the Bhajan Singh case [1976] Q.B. 198, 207. I said then that the immigration officers ought to bear in mind the principles stated in the Convention. I think that would be asking too much of the immigration officers. They cannot be expected to know or to apply the Convention. They must go simply by the immigration rules laid down by the Secretary of State, and not by the Convention."

The Australia approach

25. In the Australian case of Minister of State for Immigration and Ethnic Affairs v. Rah Hin Teoh [1994-1995] 183 CLR 273, Mr Teoh, a Malaysian citizen, went to Australia and was granted a temporary entry permit. He married an Australian citizen and three children were born of the marriage. He was convicted of criminal offences. His application for resident status was refused and a removal order was made against him. The Federal Court of Australia held that the government had failed to consider a relevant factor, namely the legitimate expectation of Mr Teoh's children that his application for resident status would be treated in accordance with the terms of the CRC. The refusal was set aside and the application was remitted for reconsideration. The government's appeal to the High Court of Australia was dismissed.

26. Mason CJ and Deane J held that :

1. An international convention may play a part in the development by the courts of the common law.

2. The provisions of an international convention to which Australia is a party, especially one which declares universal fundamental rights, may be used by the courts as a legitimate guide in developing the common law.

3. The courts should act in this fashion with due circumspection when the Parliament itself has not seen fit to incorporate the provisions of a convention into the domestic law. Judicial development of the common law must not be seen as a backdoor means of importing an unincorporated convention into Australian law.

4. Ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the Convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the Convention and treat the best interests of the children as "a primary consideration". (emphasis added)

5. It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the Convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it.

6. As to who is entitled to claim that the expectation was legitimate, although it would be preferable for the children to make the claim directly, there is no objection to a parent or guardian making the claim on behalf of a child.

7. The existence of a legitimate expectation that a decision-maker will act in a particular way does not necessarily compel him or her to act in that way. That is the difference between a legitimate expectation and a binding rule of law.

8. But, if a decision-maker proposes to make a decision inconsistent with a legitimate expectation, procedural fairness requires that the persons affected should be given notice and an adequate opportunity of presenting a case against the taking of such a course. So, here, if the delegate proposed to give a decision which did not accord with the principle that the best interests of the children were to be a primary consideration, procedural fairness called for the delegate to take the steps just indicated.

Toohey J and Gaudron J also agreed with this view while McHugh J dissented.

The New Zealand approach

27. In Tavita v. Minister of Immigration [1994] 2 NZLR 257, a case concerning the removal of a visitor to New Zealand who married a New Zealand resident and had a daughter born in New Zealand, the Court of Appeal of New Zealand, consisting of Cooke P, Richardson and Hardie-boys JJ, adjourned the hearing in order to enable the government to consider the ICCPR and the CRC in the light of the rights of the child. The court held that :

"Whatever the merits or demerits of either of her parents, she is not responsible for them, and her future as a New Zealand citizen is inevitably a responsibility of this country. Universal Human Rights and International Obligations are involved."

28. Tavita was considered in Hong Kong in R. v. The Director of Immigration, Ex parte Simon Yin Xiang-jiang & Others [1994] HKPLR 265 which was concerned with a family consisting of a young couple and two small children. Their Lesotho passports were revoked and became stateless in Hong Kong. They entered Hong Kong lawfully but the Director of Immigration refused to accept that they were entitled to remain in Hong Kong. Argument was raised on Article 31 of the Convention on the Status of Stateless Persons. Leave to issue judicial review was granted but was set aside. On appeal, the Court of Appeal restored the leave, Bokhary JA stated at page 273 that :

" Naturally, it is not to be assumed that Hong Kong has no respect at all for its treaty obligations, especially those pertaining to fundamental human rights of an international dimension. It is at least potentially arguable, therefore, that where Hong Kong has a treaty obligation not to expel stateless persons except on grounds of national security or public order, then, even though that obligation has not been incorporated into our domestic law, it is nevertheless a factor which our immigration authorities ought to take into account when exercising a discretion whether or not, in all the circumstances, to insist upon the departure from this territory of any stateless person even though his departure is not required by national security or public order."

The criticism

29. Mr Marshall, SC, counsel for the Director, referred to an article written by Michael Taggart entitled "Legitimate Expectation and Treaties in the High Court of Australia", 1996, Law Quarterly Review, Vol.112, at page 50, which criticized the majority decision of Teoh.

My view

30. In my view, the approach of the High Court of Australia and Court of Appeal in New Zealand should be adopted. This approach clearly recognised that the international covenants and conventions are not part of the domestic law. However, a husband and a child who are Hong Kong permanent residents clearly have the legitimate expectation that when the Government is to remove their wife or mother, it should take into account the international covenants on the importance of family and welfare of the children. Otherwise the adoption of the international covenants would, as described in Tavita, be a case of window-dressing only. Where legitimate expectation is invoked by reference to the international covenants, the court is, of course, dealing this concept in the context of procedural propriety and not as a matter of substance.

THE DIFFICULTIES WITH THE RESERVATION

On immigration matters

31. The difficulty, however, concerning this approach is the reservation of the ICCPR and CRC on immigration matters. The reservation in fact had been considered by Jones J in Wong King-lung & Others v. Director of Immigration [1994] 1 HKLR 312 which concerned the application of the Bill of Rights Ordinance. The issue there is not on the application of the Bill of Rights as a basis of legitimate expectation but on substantial rights available to the party. The preliminary issue in that case is whether section 11 of the Bill of Rights Ordinance precludes only persons who do not have the right to enter and remain in Hong Kong from challenging the Immigration Ordinance under the Bill of Rights, or whether it goes further to preclude their family members in Hong Kong who have the right to enter and remain in Hong Kong from such challenge.

32. Jones J held that :

" In my judgment, s. 11 is clear and unambiguous. It is not restricted to keeping out persons who have no ties to the territory, but is intended to exclude the decisions under the Immigration Ordinance relating to the entry, stay and removal of persons who do not have the right of abode in Hong Kong. I am satisfied that s. 11 is consistent with the aims and objects of the ICCPR as applied to Hong Kong."

33. The matter went on to appeal under the title of Hai Ho-tak (a minor) acting by his father Hai Keung-sing as his next friend v. Attorney General [1994] 2 HKLR 202. Godfrey JA held at page 210 that :

" In my opinion, the effect of s. 11, on its true construction, is this.

1. The (Bill of Rights) Ordinance may not be invoked so as to affect, as regards any person not having the right to enter and remain in Hong Kong, any immigration legislation governing his entry into, stay in or departure from Hong Kong, or the application of any such legislation.

2. This is so no matter who it is that invokes the Ordinance or on what ground he invokes it.

3. In particular (of course) the Ordinance may not be invoked by the person not having the right to enter and remain in Hong Kong. That being so, it would be the height of absurdity if it could be invoked by someone else, e.g., another member of his family. If the person not having the right to enter and remain in Hong Kong could not himself invoke the provisions of the Ordinance relating to his rights as a member of the family, it cannot make sense to allow other members of the family the right to invoke those provisions in relation to their rights as members of the same family. And s. 11 should not be construed so as to attribute a non-sensical intention to the legislature." (emphasis added)

The judge went on to hold that :

" But I would add that, even absent s. 11, I would not have been prepared to hold that the Director of Immigration was precluded by the Ordinance from making and implementing an otherwise lawful decision merely on the ground that the result of the decision might be to separate members of a family. Like all other human rights, the rights of the family under the Ordinance are not absolute. We must be zealous in upholding individual rights under our Bill of Rights. But at the same time we must ensure that disputes as to the effect of the Bill are not allowed to get out of hand. The Bill of Rights will be debased and devalued if it is repeatedly invoked in cases to which its abstract concepts have really no application. The court must hold the balance between the individual and society as a whole, and maintain a sense of proportion in doing so. It should not impose unrealistic standards on the Hong Kong Government's attempts to resolve the difficult and intransigent problems which Hong Kong faces. (For an authoritative statement on these lines, see Attorney General of Hong Kong v. Lee Kwong-kut [1993] AC 951, especially at p.975.)"

The English position

34. The English Court of Appeal was also confronted with this issue. In R. v. Secretary of State for Home Department, Ex parte Gangadeen & Others [1998] 1 FLR 762, the applicants to two judicial reviews were illegal entrants to England and an overstayer in England. Both had children born in England. They were subject to removal and deportation. Reliance was made of the CRC. Hirst LJ held that :

" However, in seeking to bring this provision directly into play in the present case they were confronted with the insuperable difficulty that when in 1991 the UK ratified this Convention, such ratification was subject to the following reservation :

(The reservation)

This distinguishes the position in the UK from that in, for example, Australia and New Zealand where the UN Convention has been directly applied (Minister of Immigration and Ethnic Affairs v Teoh (1995) 128 ALR 353 and Tavita v Minister of Immigration (1995) 2 NZLR 257)."

The Irish approach

35. The issue faced by Godfrey JA was of course quite different from the one discussed in Teoh which was not enforcing the treaty obligations as a substantive right but a legitimate expectation that the government would take the treaty obligations into account in its consideration of Mr Teoh's application. Although Godfrey JA stated that it would be non-sensical if the person not having the right to enter and remain in Hong Kong could not himself invoke the Bill of Rights but other members of the family could do so, the contrary view is in fact adopted by the Supreme Court of Ireland in Fajujonu v. Minister for Justice [1990] 2 IR 151. In this case, three children were born in Ireland to the 1st and 2nd plaintiffs ("the parents") who were unauthorised aliens living in Ireland. Before any deportation order had been made against the parents, they and one of the children sought a declaration that they were entitled to reside in Ireland under the Irish Constitution. Finlay CJ held that :

" I have come to the conclusion that where, as occurs in this case, an alien has in fact resided for an appreciable time in the State and has become a member of a family unit within the State containing children who are citizens, that there can be no question but that those children, as citizens, have got a constitutional right to the company, care and parentage of their parents within a family unit. I am also satisfied that prima facie and subject to the exigencies of the common good that that is a right which these citizens would be entitled to exercise within the State.

I am also satisfied that whereas the parents who are not citizens and who are aliens cannot, by reason of their having as members of their family children born in Ireland who are citizens, claim any constitutional right of a particular kind to remain in Ireland, they are entitled to assert a choice of residence on behalf of their infant children, in the interests of those infant children."

The judge further held that while the government minister could, pursuant to the powers contained in the relevant legislation, force the family to leave Ireland but :

"...only if, after due and proper consideration, he is satisfied that the interests of the common good and the protection of the State and its society justifies an interference with what is clearly a constitutional right."

The constraint

36. In my view, the Irish Court of Appeal was able to arrive at this decision because of the concept of family. A family is not merely the parents' family or the child's family, a family is a unit consisting of the parents and child. In order to give recognition to the family concept, the children may invoke the constitutional protection even though their parents could not and even though as a result of invoking the constitutional protection, their parents would ultimately benefit from the exercise.

37. The legal constraint I am faced with is that the Hong Kong Court of Appeal decision is binding on me. What was said about the reservation of the Bill of Rights Ordinance clearly applies to the international covenants as well. Whether one is invoking the international covenants as a substantive right or by way of legitimate expectation, it is clear that the effect of the Court of Appeal decision is that other members of the family who are Hong Kong permanent residents cannot resort to the provisions of the international covenants or the Bill of Rights Ordinance on behalf of Ms Chan who is not a Hong Kong resident.

Ambit of the reservation

38. It was argued that I should construe the reservation as being limited to cases which do not involve family members. I am unable to accede to this view. The wording of the reservation is a wide one and does not allow for such a construction to be adopted.

Incompatibility of the reservation

39. It was argued that the reservations to the ICCPR and CRC are incompatible with the object and purpose of these covenants and do not have any effect. Reference is made to General Comment No. 24 of the Human Rights Committee of the United Nations (UCDOC CCPR/C/21/Rev. 1/ADD/6 (1994)), 2 November 1994 which provided that :

"8. Reservations that offend peremptory norms would not be compatible with the object and purpose of the Covenant. Although treaties that are mere exchanges of obligations between States allow them to reserve inter se application of rules of general international law, it is otherwise in human rights treaties, which are for the benefit of persons within their jurisdiction. Accordingly, provisions in the Covenant that represent customary international law (and a fortiori when they have the character of peremptory norms) may not be the subject of reservations. Accordingly, a State may not reserve the right to engage in slavery, to torture, to subject persons to cruel, inhuman or degrading treatment or punishment, to arbitrarily deprive persons of their lives, to arbitrarily arrest and detain persons, to deny freedom of thought, conscience and religion, to presume a person guilty unless he proves his innocence, to execute pregnant women or children, to permit the advocacy of national, racial or religious hatred, to deny to persons of marriageable age the right to marry, or to deny to minorities the right to enjoy their own culture, profess their own religion, or use their own language. And while reservations to particular clauses of article 14 may be acceptable, a general reservation to the right to a fair trial would not be."

The consequence of an unacceptable reservation is that the covenants will be operative for the reserving party without the benefit of the reservation (para.18 of the General Comment No.24).

40. The United Kingdom had made response to General Comment No.24 (see Human Rights as General Norms and a State's Right to Opt Out Reservations, Objections to Human Rights Conventions by Chinkin & Others). It stated that it was less convinced by the argument that because human right treaties are for the benefit of individuals, provisions in the covenant that represent customary international law may not be subject of reservations; it was doubtful whether such a proposition represents existing customary international law; it was not a view shared by most commentators. At para.13, it stated that the Human Rights Committee correctly identified the relevant articles of the Vienna Convention on the law of treaties as containing the rules which taken together, regulate the legal effect of reservations to multilateral treaties but :

"The United Kingdom wonders, however, whether the Committee is right to assume their applicability to incompatible reservations. The rules cited clearly do apply to reservations which are fully compatible with the object and purpose but remain open for acceptance or objection (see para. 9 above). It is questionable, however, whether they were intended also to cover reservations which are inadmissible in limine."

One has to proceed on the basis of the reservation

41. In my view, for the purpose of this case, the matter must proceed on the basis of the existing reservation. The reservation on immigration matters does not fall into any of the examples set out in paragraph 8 of General Comment No.24. In any event, I am not prepared to make any ruling on this issue. The implication of such a ruling on international obligations had not been fully canvassed in this case.

Absence of reservation in ICESCR

42. While there are reservations on the ICCPR and the CRC, there is no similar reservation in the ICESCR on immigration matters. Paul Sieghart in his book on "The International Law of Human Rights" compared the ICCPR and the ICESCR. In respect of ICCPR, the author stated that the obligations imposed on the States are absolute and immediate. They are absolute because they are not expressed as being limited either by the resources available to the State, or by reference to the means to be employed in performing them. They are immediate in that each State is bound to take the necessary steps to secure the human rights and fundamental freedoms concerned from the moment the treaty comes into force for that State. In respect of the ICESCR, the obligations are qualified rather than absolute in that they are limited to the maximum of the resources available to the State parties to appropriate means. The obligations are also progressive rather than immediate as they call for steps to be taken with a view to achieving progressively the full realization of the rights concerned.

43. Sieghart accepted that "however qualified and progressive though they may be, all these are still binding obligations in international law" (pages 57-62). No doubt this view can be supported from Article 2 of ICESCR which provides that :

"1. Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures."

44. Henry J. Steiner in a more recent book (1996) titled "International Human Rights in Context" stated that inter-dependence of the civil and political rights and the economic social and cultural rights has always been part of the United Nation doctrine. At page 284, the author stated that :

"9. ... The concept of progressive realization constitutes a recognition of the fact that full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time. In this sense the obligation differs significantly from that contained in article 2 of the Covenant on Civil and Political Rights which embodies an immediate obligation to respect and ensure all of the relevant rights. Nevertheless, the fact that realization over time, or in other words progressively, is foreseen under the Covenant should not be misinterpreted as depriving the obligation of all meaningful content. It is on the one hand a necessary flexibility device, reflecting the realities of the real world and the difficulties involved for any country in ensuring full realization of economic, social and cultural rights. On the other hand, the phrase must be read in the light of the overall objective, indeed the raison d'être of the Covenant which is to establish clear obligations for States parties in respect of the full realization of the rights in question."

45. In "Human Rights in the World", 4th Edition by Robertson & Merrills, the authors stated that the ICESCR is what is known as a promotional convention, that is to say, it does not set out rights which the parties are required to implement immediately, but rather lists standards which they undertake to promote and which they pledge themselves to secure progressively, to the greatest extent possible, having regard to their resources. As already indicated, this difference in the obligation results from the very nature of the rights recognised in this Covenant. The authors pointed out that a comparison of ICCPR and ICESCR reveals a major difference in the way their respective provisions are formulated. The rights contained in the ICCPR are stated in the classic form "everyone has the right to ..." or "no one shall be subject to ...". In ICESCR, the articles adopt a different formulation, usually "the State parties to the present covenant recognize the right ..." or "the State parties to the present covenant undertake to ensure ...". In other words, an undertaking or a recognition by States rather than the affirmation of a right inherent in the individual as such.

My view

46. The way in which the ICCPR and ICESCR are formulated clearly supports the argument that the latter covenant is promotional in nature. However, even though it is promotional in nature, it does not mean that the ICESCR cannot be used as a framework in which government decisions or discretions are to be considered. After all, article 10(1) provides that the State parties recognized that the widest possible protection and assistance should be given to the family which is the natural and fundamental group unit of society. In my view, this is no different from provisions in the ICCPR and CRC. This construction does not do violence to the promotional aspect of the covenant. However, the Court of Appeal in Hai Ho Tak (per Godfrey JA) further held that even in the absence of the reservation, the Director is entitled to implement lawful decisions in matters relating to immigration because of the unique position faced by Hong Kong. In this case, other than the issue of legitimate expectation, there is no challenge that the decision was a lawful one. As the matter now stands, I must abide by the decision of the Court of Appeal. The result is that the ICESCR cannot be invoked as the basis of legitimate expectation even in the absence of the reservation.

CONCLUSION

47. The application of Ms Chan has to be refused. It is with regret that I come to this conclusion. What is at stake on a human level is a mother who would not be able to look after her sick child in Hong Kong. It had been held in Lau Kong Yung that the Director has no duty to consider humanitarian grounds in considering the making of a removal order against a person. But he can take such grounds into account if he thinks appropriate. In the present case, the Director said that he had taken humanitarian consideration into account. If so, I have to say that I am disturbed by the Director's statement that he was of the view that Ms Chan's case "does not have sufficiently strong humanitarian grounds or other reasons to justify special treatment". This case affects a six-year old child with epilepsy who obviously needs a mother to be with her and not merely a nanny as suggested by the Director. While the Director clearly is duty bound to ensure the immigration policy in Hong Kong is conducted in an appropriate manner, this is obviously a case in which the Director could have exercised the discretion differently without causing the slightest harm to the established policy.

48. Mr Dykes, Mr Pun and their solicitors, Messrs Barnes & Daly acted for Ms Chan on a pro bono basis. I wish to record my appreciation to them, without their assistance many of the issues in her case would not have been so fully canvassed.

49. The order nisi is that there shall be no order as to costs of this application.

APPLICATION OF WONG KAM PING

FACTS

The arrival

50. Wong Kam Ping ("Ms Wong") was born in the Guangdong Province on 19 September 1971. In 1993 she came to Hong Kong as a visitor and married a Hong Kong permanent resident on 14 September 1993. She left Hong Kong on 19 November 1993. Between 1994 and 1995, she came to Hong Kong illegally on two occasions and gave birth to two children in Hong Kong in 1994 and 1995. She was repatriated to the Mainland voluntarily on 30 January 1996.

51. On 5 July 1996, Ms Wong entered Hong Kong with a two-way permit ("the permit"). The permit was valid for five years from the date of issue and contained an endorsement for one visit travelling to and from Hong Kong and Macau. This endorsement allowed Ms Wong to travel to and from Hong Kong once from Shenzhen between 2 July and 2 October 1996. At the border checkpoint, Ms Wong's permit was stamped "VISITOR - Permitted to remain until 25 September 2003".

The extension

52. Ms Wong stated that initially she believed she was only given permission to remain in Hong Kong for three months. However, after a few days of her arrival in Hong Kong, she noticed that the stamp on her permit stated that she was given permission to stay in Hong Kong until 25 September 2003. However, she was not sure about the validity of the permission given to her at that moment.

11 September 1996

53. On 11 September 1996, she made an application for an extension of stay to the Immigration Department on the ground that her husband was suffering from heart disease and would have to undergo a medical operation. In her amended Notice of Application for Leave to Apply for Judicial Review, it was stated that she told the Immigration Department that the medical operation would be held on 12 September 1996 and she applied to extend her stay until 25 December 1996. However, no decision was made by the Immigration Department on her application. No notice in writing was given to her pursuant to section 11(5A) of the Immigration Ordinance. Section 11(5A) states that :

" An immigration officer or a chief immigration assistant may at any time by notice in writing to any person other than a person who enjoys the right of abode in Hong Kong, or has the right to land in Hong Kong by virtue of section 2AAA-

(a) cancel any condition of stay in force in respect of such person;

(b) vary any condition of stay (other than a limit of stay) in force in respect of such person if the condition as varied could properly be imposed by an immigration officer or a chief immigration assistant (other than the Director) under subsection (2)(b);

(c) vary any limit of stay in force in respect of such person by enlarging the period during which such person may remain in Hong Kong.

8 October 1996

54. On 30 September 1996, feeling confused about her status in Hong Kong, she went to the Immigration Department again to apply for an extension of stay. An immigration officer asked her to go back again in a few days. On 8 October 1996, she went to the Immigration Department again. She told the immigration officer that she wanted to apply for an extension of stay in Hong Kong until 8 November 1996. Again, she was asked by the immigration officer to leave the Immigration Department without any decision being made for her application for extension of stay. She stated that she was in fact told by one of the immigration officers that she should leave before the date specified on her permit. Believing that the permission given to her was valid, and the Immigration Department would allow her to stay until 25 September 2003, she left the Immigration Department and continued to live openly in Hong Kong.

The arrest by police

55. On 10 July 1998, Ms Wong was stopped by a policeman for an identity card in the street. She showed the policeman her permit. The police suspected that she was using a forged travel document and arrested her. After investigation, the police found that the permission given to her was a genuine one. She was detained by the police until 12 July 1998 and was then transferred to the Removal Sub-division of the Immigration Department in Victoria Prison. She was released by the Immigration Department without any further action taken against her on 12 July 1998. Before she was released, she was advised by one of the immigration officers that although she could stay in Hong Kong until 2003, she was not permitted to take up any employment in Hong Kong. She told the immigration officer that she understood and she left Victoria Prison.

The newspaper report

56. Ms Wong stated that as she did not have a Hong Kong identity card and was afraid that she would be wrongly detained by the police again in the future, she therefore tried to seek assistance from the new immigrants column of the Oriental Daily to apply for an identity card for her.

57. In October 1998, she contacted the Oriental Daily and told a reporter everything relating to her permit. The reporter interviewed her and took photographs of the permit. The reporter also told her that the Oriental Daily might help her to apply for an identity card. To her surprise, on 29 October 1998, she found that her permit was published in the Oriental Daily where her case was reported in an exaggerated manner. The Immigration Department was criticized in the newspaper report.

The Director's response

58. On 30 October 1998, the Director of Immigration ("the Director") stated that her case was caused by the carelessness of his staff and the Chief Executive would exercise his discretion to curtail the limit of her stay in Hong Kong. On 21 November 1998, three weeks after the newspaper report, three immigration officers visited her home and told her that the Chief Executive might curtail her stay in Hong Kong.

The curtailment and removal

59. On 30 March 1999, she was informed by the Secretary for Security ("the Secretary") that the Immigration Department intended to submit an application to the Secretary to curtail her stay. She was invited to make a representation in writing to explain why her period of stay should not be curtailed. The letter dated 30 March 1999 was in fact written by the Immigration Department to Ms Wong in which it was stated that the Director intended to submit an application to the Secretary to curtail her stay in Hong Kong. It stated that the limit of her stay should be 25 September 1996 (i.e. seven days before the time limit granted by the Mainland endorsement for one visit to and from Hong Kong and Macau), but it was wrongly printed as 25 September 2003. The Secretary exercised the delegated authority of the Chief Executive in the curtailment.

60. On 8 April 1999, she wrote a letter in response to the Secretary. In April 1999, the Director made recommendation to the Secretary to curtail her stay. The recommendation and the material relied upon by the Director were not sent to her for comment. On 2 June 1999, the Secretary sent a letter to her informing her that she, i.e. the Secretary, had decided to exercise her power to curtail her period of stay in Hong Kong to 22 June. The letter did not specify the year.

61. By a letter dated 2 June 1999, the Director informed the applicant that she had to leave Hong Kong by 22 June 1999. On 16 August 1999, the Director issued a removal order against her pursuant to section 19(1)(b) of the Immigration Ordinance.

The respondents' case

Mr Yip's first affirmation

62. According to Mr Yip, the immigration officer of the Immigration Department, on 11 August 1996 Ms Wong approached the Immigration Department to apply for an extension of stay in Hong Kong until 2 October 1996 on the grounds that her ailing husband was suffering from heart disease. On examining her permit, he noticed that it bore a limit of stay up to 25 September 2003. She did not ask him about the limit of stay stamped on her permit nor did he mention it to her because he believed that the stamp was obviously wrong. In view of the reasons put forward by Ms Wong in her application, he told her to leave on the day she requested, i.e. 2 October 1996. He had never asked her to leave on the date shown on her permit. As the limit of stay shown on her permit was 25 September 2003, Ms Wong's application for extension of stay submitted on 11 August 1996 was subsequently cancelled.

63. On 8 October 1996, Ms Wong approached the Immigration Department again asking for a further extension to 8 November 1996 in order to take care of her daughter who had broken her arm. Mr Yip told her to leave on the date she requested, i.e. 8 November 1996. Again, he did not mention to her the wrong stamp on her permit and he had never told her to leave on the date stamped on her permit.

Further evidence

11 August 1996

64. Mr Yip further dealt with Ms Wong's application for extension in his second Affirmation. He stated that on 11 August 1996, Ms Wong submitted a handwritten letter to be allowed to stay until 25 December 1996. The letter stated, among other things, "The reason is that my husband is suffering from heart disease, he will have to be admitted into hospital to undergo a medical operation on 12 September and he has no one to take care of him at that time. I would like to extend my stay and return to the Mainland on 25 December". Mr Yip said that at that time, the last line above her signature was not written on this document. The last line was "I should have to go back to the Mainland on 2 October and hence cancel my application for an extension". On the same day, Ms Wong was also given an application form for an extension of stay. Because Ms Wong was not due to leave Hong Kong until 25 September 1996, the officer receiving Ms Wong's application on 11 August 1996 asked her to return two weeks before the expiry of her Mainland's endorsement.

11 September 1996

65. Ms Wong returned on 11 September 1996. Mr Yip had noted the stamp "25 September 2003" and had also noted that she would be in breach of the Mainland's endorsement if she did not return on or before 2 October 1996. Due to doubt on the genuineness of the stamp, a record check was conducted to find out the limit of stay granted to her. The result of the check revealed that Ms Wong was permitted to stay until 25 September 1996. A copy of the computer printout of the record check dated 11 September 1996 stated that :

"Date of arrival : 05-07-96

Limitation of stay : 25/09/96"

Mr Yip pointed out to Ms Wong that she should return to the Mainland within the period of the endorsement, i.e. on or before 2 October 1996. She agreed. At this point, Ms Wong added the last line to her written letter of 11 August 1996. She also, in her own hand, filled in the "I now apply to extend my stay until" box in the application form with the characters representing "2 October 1996". A number of particulars on the application form including her name in English, the date of her last arrival in Hong Kong and the date she was permitted to remain were filled in by an immigration officer according to the information provided by Ms Wong or disclosed in her permit and the record check. Mr Yip took the view that Ms Wong was cancelling her application to extend until 25 December 1996 and substituting an application for a short extension lasting from 25 September 1996 until 2 October 1996. He therefore wrote "r/e pl." On the bottom of Ms Wong's handwritten letter dated 11 August 1996 representing "re-entry endorsement please" and signed and dated it.

66. The handwritten letter together with the form was then passed to the officer completing the partially filled in form on behalf of Ms Wong. That officer wrote the expiry date of the Mainland's endorsement, 2 October 1996, against the words "extension until" on the box at the bottom left hand side and also circled the word "approval".

67. It then occurred to Mr Yip that the extension until 2003 granted by mistake was arguably valid, and that it was preferable to act on the assumption that it was valid. He therefore deleted the words "r/e pl." and wrote "canx" representing "cancelled". The record keeper, an immigration officer called Mrs Wong, then wrote "wd" for "withdrawn" at the top of the form and against the words "fee paid $" on the box at the bottom right hand side of the form.

68. Mr Yip stated that it was incorrect to say that he did not make a decision on Ms Wong's application. On 11 September 1996, he told her that she could stay until the date she had requested, namely 2 October 1996. He did not give her notice of extension of stay pursuant to section 11(5A) for the same reason that he had ordered her form to be cancelled, that was because the stamp of 25 September 2003 was arguably valid and he therefore acted on the assumption that it was valid.

8 October 1996

69. On 8 October 1996, Ms Wong applied to extend her stay until 8 November 1996. He told Ms Wong that she was allowed to stay until 8 November 1996 and that she should leave on that day. He never told her that she should leave on the date specified on her permit, i.e. 25 September 2003.

Events after arrest

70. The Director stated that after Ms Wong was handed over by the police to the Immigration Department, it found out that the limit of stay was stamped on her permit by mistake. She was then given an explanation on this and advised to depart for the Mainland voluntarily. Although Ms Wong understood the endorsed period on her permit was only valid from 2 July to 2 October 1996 and that the limit of stay in Hong Kong on that permit was stamped on by mistake, she insisted on staying in Hong Kong until the date as stamped in order to take care of her family. An officer of the Immigration Department requested her to put down the matter in writing. She wrote a letter to the Immigration Department dated 12 July 1998 stating, among other things, that :

"The endorsement for travelling to and from Hong Kong and Macau (Zi)(96) No.928, I knew that its validity was from 2 July 1996 to 2 October 1996. However I did not return to the Mainland according to the specified date and continue to stay in Hong Kong .... I stayed in Hong Kong because I have two little kids, a sick husband and an aged mother-in-law who is 76 years old. I have also been told by the immigration officer that I should return to the Mainland, but I want to stay here. I have got back my two-way permit for travelling to and from Hong Kong and Macau."

The Director denies that the immigration officers had told Ms Wong that she could stay until 2003.

THE DECISIONS THAT ARE CHALLENGED

71. The decisions that are challenged by judicial review are -

(1) The decision of the Director in April 1999 to submit an application to the Secretary to curtail the leave granted to Ms Wong.

(2) The decision of the Secretary dated 2 June 1999 to curtail the leave granted to Madam Wong

(3) The decision of the Director dated 16 August 1999 to remove Ms Wong from Hong Kong.

THE POLICY

72. The Director stated that the policy of immigration from the Mainland to Hong Kong is this :

"... In order to maintain immigration from the Mainland into Hong Kong at levels that will not impose excessive strain on local public and social services including medical services and education resources, the current policy allows immigrants from the Mainland to take up residence in Hong Kong at a quota of 150 persons a day. The Hong Kong Government and the relevant authorities in the Mainland of China have also reached a consensus that residents from the Mainland seeking residence in Hong Kong must apply to the Mainland authorities for an Exit Permit for Travelling to Hong Kong and Macau ('One-way Permit'). For residents of the Mainland who wish to enter Hong Kong for visit, they should apply for an Exit-entry Permit for Travelling to and from Hong Kong and Macau ('Two-way Permit') from the Mainland authorities."

EXPLANATION FOR THE WRONG STAMP

73. The Director's case on the reason for the wrong stamp is this :

"...To simplify processing procedure, starting from 1 May 1996, the Immigration Department began granting permission for stay for a period of seven years to holders of Permits for Proceeding to Hong Kong and Macau ['One-way Permit'] who came to land and reside in Hong Kong. The Immigration Department officer who granted the Applicant's limit of stay in Hong Kong was originally responsible for processing entry procedure of holders of One-way Permit and the date chop thus used had been set to the year of 2003. However, on the day the Applicant entered Hong Kong, that was, 5 July 1996, the said officer was assigned to handle entry procedure of visitors with Two-way Permits in the course of manpower re-deployment. In the process, the said officer only reset the date on the chop to 25 September but forgot to adjust the year on the chop to 1996 as well. Thus the phrase 'visitor - allowed to stay until 25 September 2003' with the wrong date was stamped on the Applicant's Two-way Permit by mistake."

MISTAKE

The court's approach on mistakes

74. Mistakes made by immigration officers had been adjudicated by the courts. To begin with, a useful summary is found in Macdonald and Blake on Immigration Law and Practice in the United Kingdom, 4th Ed., para.3.46 :

"3.46 At one stage, as the judges were trying to find a suitable juridical basis for deciding that illegal entry included entry by deception, the Court of Appeal came up with the bright idea that immigration officers who stamped someone's passport with 'indefinite leave' by mistake, were exceeding their lawful powers. This method of proceeding overcame at a stroke the difficulties about proving that entry had been obtained by deception. The doctrine, however, did not last long. Immigration officers are fallible and do make mistakes. This is what happened in R v Secretary of State for the Home Department, ex p Ram. A mistake had been made, and the applicant got indefinite leave. The Divisional Court held that the immigration officer had been acting within his powers under section 4 : it could not be said in the absence of any fraud or dishonesty on the part of the applicant that he had no authority to act as he did. And so an immigrant, given a leave by mistake, is allowed to keep it."

75. In R. v. Secretary of State for the Home Department, ex parte Ram, [1979] 1 All ER 687, the applicant arrived in the United Kingdom on an Indian passport on 27 February 1977. At the airport, he was given leave by the immigration officer to enter and remain for an indefinite period and his passport was stamped to that effect. Prior to this occasion, he had been to the United Kingdom a number of times and on 1 November 1974, he was in fact given leave to enter for an indefinite period. May J referring to the previous decisions of the Court of Appeal of R. v. Secretary of State for the Home Department, ex parte Choudhary [1978] 3 All ER 780 and ex parte Nasir Ali (DC171/78) 15 May 1978 held that both these cases were distinguishable because in each of them there was fraud, untruth told by the would-be entrant to the immigration officers leading them to believe that each of the two in fact was a person entitled to return to settle within the United Kingdom. In the present case, the immigration officer stamped the applicant's passport with leave to enter for an indefinite period due to a genuine mistake on the part of the immigration officer which was not induced in any way by fraud or dishonesty of the applicant. May J held that :

" In my opinion the contention that an entrant can only be a lawful entrant if he comes within one of the categories in the immigration rules and if, further, he is only allowed in for the usual period appropriate to that type of entrant, but that if by a mistake the immigration officer gives leave to enter otherwise than within those categories, or for that period, then the immigration officer had no authority to do so, is a contention which, where an entrant is prima facie lawful and his entry is not induced by any fraud or dishonesty, goes too far and is one which, for my part, I am not prepared to accept."

He held that the leave was granted by the immigration officer purporting to exercise the powers given to him under the relevant Immigration Act on the true facts of the case. This being the case, there was no reasonable ground for the Secretary of State to conclude that the applicant was an illegal immigrant and a habeas corpus for his release was granted.

76. Lord Widgery CJ had previously held in R. v. Secretary of State for the Home Department, ex parte Badaike 1977, The Times, 4 May (DC) that :

"But I do not see why a mistake of that kind in the mind of the immigration officer, even if proved, would be fatal to the claim in this case."

He stated in Ram that he would wait for another day to consider the two cases referred to by May J. He agreed that the writ of habeas corpus should be granted.

77. In R. v. Secretary of State for the Home Department, ex parte Ku [1995] QB 364, the applicants, citizens of Hong Kong, were given leave to enter the United Kingdom on the production of their passports and work permits which had been obtained from the Department of Employment by their employer. The work permit was issued by an officer acting contrary to departmental instructions. It was accepted that the employer and the applicants had acted in good faith. Notice of Intention was issued to remove the applicants from the United Kingdom on the ground that they were illegal entrants. Hobhouse LJ held that the work permits were inappropriate rather than invalid. Hence, the applicants were not illegal entrants. The decision of the immigration officers that the applicants were illegal entrants were quashed. Sir Thomas Bingham MR held that :

" I am horrified at the suggestion that an innocent victim of official error (or misbehaviour) should be thereby rendered liable to arrest, detention and forcible removal. Fortunately, for reasons given by Hobhouse L.J., we are not compelled to reach such a distasteful conclusion. In Ex parte Chan [1992] 1 W.L.R. 541 it appears to have been accepted that the entry permit was invalid (and the payment of ￡2,000 by the entrant may have strengthened that impression). But in the present case it cannot be said that the work permits were invalid : they were what they appeared to be; they contained no misstatement; and they were not forgeries."

The respondents' submissions

78. Mr Marshall, SC, counsel for the respondents, submitted that Ram and Ku are inconsistent with previous decisions. In Howell v. Falmouth Boat Construction Company Limited [1951] AC 837, Lord Simonds referred to the opinion of Denning LJ in the Court of Appeal in which he stated that :

"Whenever government officers, in their dealings with a subject, take on themselves to assume authority in a matter with which he is concerned, the subject is entitled to rely on their having the authority which they assume. He does not know and cannot be expected to know the limits of their authority, and he ought not to suffer if they exceed it. That was the principle which I applied in Robertson v. Minister of Pensions, and it is applicable in this case also."

Lord Simonds in response stated that :

"My Lords, I know of no such principle in our law nor was any authority for it cited. The illegality of an act is the same whether or not the actor has been misled by an assumption of authority on the part of a government officer however high or low in the hierarchy. I do not doubt that in criminal proceedings it would be a material factor that the actor had been thus misled if knowledge was a necessary element of the offence, and in any case it would have a bearing on the sentence to be imposed. But that is not the question. The question is whether the character of an act done in face of a statutory prohibition is affected by the fact that it has been induced by a misleading assumption of authority. In my opinion the answer is clearly No. Such an answer may make more difficult the task of the citizen who is anxious to walk in the narrow way, but that does not justify a different answer being given."

The case was concerned with a claim for work done and material supplied. The defence was one of illegality because the necessary licence for carrying out the work had not been obtained from the Government. The licensing officer had refused to grant a licence but he orally authorized the repairer to carry out the work. Later on a licence was granted.

79. In Norford County Council v. Secretary of State for the Environment and Another [1973] 1 WLR 1400, the applicants applied to the local planning authority for permission to extend their factory. The planning committee of the authority resolved to refuse the application. It was the duty of the planning officer to notify applicants of the authority's decision. The officer, by mistake, signed and sent to the applicants a notice containing all the details of a grant of permission. Two days later, the planning authority realized their mistake and sent a notice refusing the application. On the question whether it is permissible to look at the resolution of the planning authority in order to construe or explain the terms of the document was purported to be a planning permission, Lord Widgery CJ held that :

"..... that there is a world of difference between a situation in which a valid planning permission has been granted and one where no such permission had been granted at all. If it is to be accepted that a permission of some kind has been granted, I accept that the effect of the document must be gauged from its face without reference to the resolution which prompted it. But where, as here, no planning permission ever was granted, I do not think that the principle of Slough Estates Ltd. v. Slough Borough Council (No.2), 19 P. & C.R. 326, and others of the same line of authority prevent the planning authority from showing, if they can, that that which purported to be a permission was no permission at all, and in this case it was no permission at all." (emphasis added)

On the question of estoppel, he held that :

".... before the local planning authority was estopped from denying the validity of the notice, the applicants had to show that they were induced by the representation in it to act to their detriment and, since the applicants had, admittedly, not acted to their detriment, the local planning authority was not bound by the notice"

80. In Western Fish Products Limited v. Penwith District Council and another [1981] 2 All ER 204, the English Court of Appeal stated that an estoppel could not be raised to prevent a statutory body exercising its statutory discretion or performing its statutory duty.

81. In Gowa and Others v. Attorney General [1985] 1 WLR 1003, the father applied to register the applicants as United Kingdom citizens. A mistake was made by the Government in informing the father by letter that the applicants were already United Kingdom citizens. As a matter of fact they were entitled to apply as United Kingdom citizens at that time. The applicants who were later issued with passports which describe their status as British subjects but not as citizens of the United Kingdom and Colonies were not to be recognized as citizens under the relevant act. The Government, while accepting the information to be incorrect, refused to recognize the applicants as United Kingdom citizens. The Court of Appeal, by majority, allowed the applicants' appeal, ruling that the Secretary of State was bound by the letter and was estopped from denying the applicants' status as United Kingdom citizens. The House of Lords affirmed the decision but on different grounds. On the question of estoppel, Lord Griffiths (at page 1008) referred to the submission of the Crown that :

".... it is not permissible to extend the doctrine of estoppel to correct the mistake, and to do so would have far reaching and perhaps unforeseen results, in which the mistakes of individuals that must inevitably occur from time to time in the administration of government might have the effect of interfering with powers and duties created by Parliament; or even go so far as to create powers that can only be bestowed by Parliament. In a word, he submitted that estoppel cannot be used to create a status by a method not sanctioned by Parliament."

He held that :

"There can be little doubt that to find the solution to the present appeal by the route of estoppel does involve difficulties and far reaching questions of law."

82. In Christodoulidou v. Secretary of State for the Home Department [1985] Imm AR 179 the appellant had originally been issued with a British passport stating her to be subject to immigration control. When that passport expired, she was issued with one describing her as having the right of abode. It was agreed that the first passport had been correctly issued and that the second had been issued in error; the sole question was the effect of that error. The appellant sought to rely on Ram. The Immigration Appeals Tribunal of England held that :

"It has never been part of the appellant's case that she is entitled to the right of abode ... In our view, since she did not fulfil the conditions required to make her eligible for the right of abode in this country, the Secretary of State could not properly have granted her application."

In R. v. Secretary of State for the Home Department, ex parte Noor Nawal Khan (1997) 9 May (CO/771/96), a BDTC by descent was examined on arrival and after due consideration an immigration officer issued him a letter saying :

"I am pleased to inform you that the matter of your British Nationality has been resolved and, as you are deemed to be a British Citizen, it is open to you to apply for a British passport that defines your nationality as 'British Citizen.'"

Two years later the applicant was refused registration as a British citizen under s 4(2) and informed there had been a mistake; eventually he was treated as an illegal entrant. McCullough J held that :

"I do not, however, accept that the letter amounted to a grant of leave to enter. The assertion that Noor Nawal Khan was a British citizen was a statement that he did not need leave to enter. Leave to enter is granted under the immigration rules. The effect of what was said in the letter was that the rules did not apply to his case."

83. In the Australian case of Minister for Immigration and Ethnic Affairs v. Marjan Petrovski [1994] 154, a person was wrongly issued with an Australian passport and came to Australia on the faith of it and married. The Federal Court of Australia held that estoppel would not be enforced in these circumstances. Burchett J, however, stated this :

"Although an estoppel will not be enforced in these circumstances, there is no doubt about the duty of administrators to take account of the unfairness, and even misery, that serious mistakes in the actions of government may cause. ..."

Correcting a mistake

84. Mr Marshall submitted that where there is a mistaken valid decision, it can be lawfully revisited and a new and correct decision can be made : Rootkin v. Kent County Council [1981] 1 WLR 1186. There is also a statutory power under section 46 of the Interpretation and General Clauses Ordinance, Cap.1. In the present case, the alternative is to use section 11(6) of the Immigration Ordinance to curtail the leave.

Intention to make a correct decision?

85. Mr Marshall further submitted that there is a fundamental distinction in public law cases between :

(1) a decision that was intended to be made, but was mistaken because of a misunderstanding of law or fact or a lack of authority; and

(2) a mistaken notice question.

In (2), the intention, and it is the only intention that the immigration officer has in respect of that matter, is to make the correct decision. The mistake arises in such cases by the communication of something which does not represent the intended decision which has been made. In the present case, the immigration officer intended to grant leave until 25 September 1996, this is shown in the computer record of the entry. There is no evidence that the officer was either corrupt or mad. The departmental policy was to grant three months' leave to holders of two-way permits. It was merely the year on the stamp that was mistakenly imposed. Ms Wong must have been told at the checkpoint that her stay was until 25 September 1996, otherwise, she would not have referred to that date in her application for extensions.

Evidence lacking

86. In my view the difficulties faced by the respondents is that there is no evidence on the intention of the immigration officer who stamped Ms Wong's permit with 25 September 2003. His identity was not known. He did not file any affirmation on what had transpired at the checkpoint. While other immigration officers who had dealt with Ms Wong after her arrest by the police had filed affirmations, there was none from this particular immigration officer. In view of the fact that the investigation by the Director was only carried out a few years after the event, it is unlikely that the immigration officer would have any recollection on the matter. It may well be that he was reluctant to do so. It is not necessary to surmise on this matter. The computer record does not prove conclusively that the intention of the officer was to grant leave to Ms Wong until 25 September 1996 only. The stamp on the permit points equally to the other direction.

87. It was submitted that Ms Wong must have been told about her stay until 25 September 1996 at the checkpoint. There is no evidence to that regard. She was not cross-examined and there was no application to cross-examine her. It was a considered decision taken by the respondents. One may indeed ask from experience how often in border checkpoints are people told of the length of stay that are stamped on their passports? The fact that Ms Wong proceeded on the basis that her stay was until September 1996 when she applied for extension is not an indication that she had been so told. She might be aware that two-way permit holders were given a three-month stay and as she was confused about the year that was imposed on her permit, it is not unnatural for her to assume that the intention was to grant her leave to stay till 25 September 1996. Even Mr Yip, the immigration officer who dealt with her application for extension, was unsure of the situation and thought the date stamped on her permit was a valid one. This being the case, how can one expect a lay person like Ms Wong to know about the niceties of mistaken intentions. Furthermore some details in the application form, particularly on dates, were filled in by the immigration officer based on, among other things, the computer printout.

The fundamental point

88. Although mistake features prominently in this case, I should state a fundamental point at the outset : the facts show that irrespective of the mistake, the Government itself had treated the "mistaken" decision as the correct one and proceeded on this basis to invoke the statutory mechanism under section 11(6) of the Immigration Ordinance to reduce the length of stay of Ms Wong in Hong Kong. The section provides that :

" The Chief Executive may at any time vary any limit of stay in force in respect of any person by curtailing the period during which such person may remain in Hong Kong, and the Director shall in writing notify such person of any such variation."

None of the cases on mistake or estoppel relied upon by the respondents would assist them in the slightest way because none deals with the situation where the decision-maker, after discovering the mistake, proceeded to treat the mistake as a valid one and resort to a statutory device catered exclusively for a valid decision in order to deal with that mistake. Clearly, one is dealing with two different concepts in this case.

Authority to grant seven-year leave of stay

89. While many of the cases are difficult to reconcile, the starting point must be whether the decision-maker (i.e. the immigration officer in this case) had the legal authority to grant Ms Wong the leave of stay of seven years. In the present case, the immigration officer clearly had the legal authority to do so. This is stated in section 11(1) of the Immigration Ordinance :

" (1) An immigration officer or immigration assistant may, on the examination under section 4(1)(a) of a person who by virtue of section 7(1) may not land in Hong Kong without the permission of an immigration officer or immigration assistant, give such person permission to land in Hong Kong but an immigration officer only may refuse him such permission."

While in permitting a person to land in Hong Kong, a limit of stay may be imposed (section 11(2)), there is no restriction imposed by the legislation on the immigration officer as to the length of leave he might grant to a person. It may well be that there are administrative directions or policies restricting the exercise of the power, but it does not change the situation about the legal authority of the immigration officer. Arguments were raised on the endorsement of the permit which is said to be valid from 2 July 1996 to 2 October 1996. In my view, nothing turns on this as far as the leave granted by the immigration officer is concerned. In any event, the endorsement means that the visa is to be used between the dates specified. It does not mean that Ms Wong had to return on or before 2 October 1996. After all, the permit is valid for five years.

90. In the present case, I would follow the Ram and Ku approach on the basis that the immigration officer who dealt with Ms Wong at the checkpoint did have the legal authority to grant her leave to remain in Hong Kong for seven years. She could not be treated as an illegal immigrant in the sense that she has no right whatsoever in Hong Kong.

The Director treating the decision as valid

91. Furthermore, although the Government may have power to revisit an incorrect decision, this is not the approach taken in this case because the Director was clearly not treating Ms Wong on the basis that she was only allowed to stay until 25 September 1996 and thereafter she became an overstayer. Instead, he proceeded on the basis that Ms Wong was entitled to stay until 25 September 2003, and then proceeded to recommend to the Secretary for a curtailment of that stay. Mr Marshall argued that this was a practical decision taken by the Director. Whatever may be the reason advanced for this approach, the fact remains that the curtailment was only permissible or necessary if the leave granted to 25 September 2003 was a valid one. Certainly the Director had treated it as a valid decision. By doing so, he removes from his own feet all arguments on mistaken decisions. He cannot blow hot and cold at the same time. To use the frequently cited words, he cannot approbate and reprobate the same decision. He cannot say in one breath that the immigration officer actually intended to grant leave until 25 September 1996 and at the same time proceeded on the basis that leave was granted until 25 September 2003. By proceeding with curtailment, he could not brush aside the rights that Ms Wong may have acquired by reason of the granting of the leave and treat her as if she was an illegal immigrant. The same reasoning applies to the decision of the Secretary.

EFFECT OF GRANTING SEVEN-YEAR STAY

Non-permanent resident

92. Once it has been established that either the immigration officer had actually granted leave to Ms Wong for seven years or treated as such by the Director himself, then certain consequence would follow. Mr Dykes, SC, counsel for Ms Wong, submitted that because of the granting of the seven-year leave, Ms Wong becomes a non-permanent resident of Hong Kong. Under article 24 of the Basic Law, residents of Hong Kong include permanent residents and non-permanent residents. The categories of permanent residents are set out in article 24 itself. They enjoy the right of abode in Hong Kong and shall be qualified to obtain permanent identity cards which state their right of abode. Under article 24, the non-permanent residents "shall be person who are qualified to obtain Hong Kong identity cards in accordance with the laws of the region but have no right of abode".

Registration of Persons Ordinance

93. The provisions for obtaining identity cards are set out in the Registration of Persons Ordinance, Cap.177. The starting point is that under section 3(1) every person in Hong Kong is required to be registered under that Ordinance unless exempted or excluded from its provision by the Registration of Persons Regulations ("the Regulations"). Regulation 3(1) provides that :

" Every person who is not an exempt person or an excluded person, or is not the holder of a permanent identity card that was issued on an application from outside Hong Kong and who is required by section 3(2) of the Ordinance to apply to be registered, must report to a registration officer, apply to be registered and apply for an identity card-

(a) within 30 days of his entering Hong Kong; or

(b) if he is already in Hong Kong when he becomes required by the Ordinance or these regulations to be registered, within 30 days of the date when he is so required,

whichever is the sooner."

One can see immediately both the Ordinance and the Regulations refer to the obligation and duty of those who are not exempted or excluded to apply for registration of an identity card. The procedure for registration is set out in regulation 4. After this had been complied with, the registration officer must issue the identity card to the applicant unless he is satisfied that the applicant has landed in Hong Kong unlawfully or is in Hong Kong in breach of a limit of stay imposed upon the applicant under the Immigration Ordinance.

The exemption

94. Regulation 25 sets out the categories of persons who are exempted, the relevant ones are 25(d) which provides that :

"any person who-

(i) is a bona fide traveller in transit through Hong Kong;

(ii) satisfies a registration officer, or in respect of whom a registration officer is satisfied, that he does not intend to remain in Hong Kong for more than 180 days or such longer period as a registration officer may approve; or

(iii) has been granted permission to remain in Hong Kong by the Director of Immigration for a period of not more than 180 days,

and is in possession of a valid travel document bearing the appropriate visa issued by a competent authority or of an official document of identity indicating that he normally lives outside Hong Kong;

..."

Having been granted a seven-year leave and has stayed in Hong Kong since the entry, Ms Wong clearly does not fall into any of the categories.

The exclusion

95. Regulation 25A sets out the categories of persons who are excluded from registration :

" (2) This regulation applies to-

(a) all persons previously resident in Vietnam who are permitted to remain in Hong Kong as refugees pending their resettlement elsewhere; and

(b) all person who-

(i) are qualified to apply for a certificate of entitlement under section 2AB of the Immigration Ordinance (Cap. 115);

(ii) have not been issued with a certificate of entitlement within the meaning of the Immigration Ordinance (Cap. 115); and

(iii) are residing for the time being in the Mainland of China.

(3) For the purposes of subregulation (2)(b)(iii)-

(a) a person who-

(i) stays in Hong Kong without the authority of the Director of Immigration after landing in Hong Kong unlawfully; and

(ii) was ordinarily resident in the Mainland of China immediately before such landing,

shall be regarded as residing in the Mainland of China during such stay;

(b) a person who-

(i) has been given permission under section 11 of the Immigration Ordinance (Cap. 115) to land in Hong Kong;

(ii) is subject to the conditions of stay specified in regulation 2(1) or (2) of the Immigration Regulations (Cap. 115 sub.leg.) during his stay in Hong Kong after such landing; and

(iii) was ordinarily resident in the Mainland of China immediately before such landing,

shall be regarded as residing in the Mainland of China during such stay."

It has not been argued that Ms Wong is an excluded person.

Is article 24 merely concerns with qualification to obtain identity cards?

96. Mr Marshall submitted that article 24 is concerned with residents of Hong Kong and not with visitors. Residents have either a right of residence from birth or other process, or they are admitted or permitted to remain as residents. Ms Wong was only admitted as a long-term visitor. She has never been admitted as a resident. He submitted that article 24 is only concerned with "qualification" of residents for registration and identity card.

97. In my view, article 24 is in clear terms. Residents include permanent residents and non-permanent residents. It lists out who are permanent residents. It then states categorically that the non-permanent residents "shall be persons who are qualified to obtain Hong Kong identity cards". Hence in order to determine who are non-permanent residents of Hong Kong, one sees whether they are qualified to obtain Hong Kong identity cards. This is the basis in which someone may come within the category of a non-permanent resident. It clearly does not support Mr Marshall's submission that article 24 is only concerned with the qualification of residents for registration and identity cards.

Policy for visitors

98. Mr Chow Kun Wah, the officer in charge of the Registration of Persons Section, referred to the history of the Registration of Persons Ordinance and the Regulations and stated that the current policy is that there is no need for any visitor to register. Visitors carry travel documents which serve to identify them without the need for a Hong Kong identity card. The present policy dates from 11 June 1997 when it was decided that even such long stay visitors as "elderly Chinese from distant lands visiting relatives" and "people coming for medical treatment and their relatives" would be exempted. He stated that the regime of regulation 25 continues to exist without modification. The policy of exemption for all visitors regardless of length of stay will be considered on an individual case basis, where there is a claim that a visitor is exempted or is not exempted, all relevant matters would be considered. Mr Dykes submitted that the policy would be unlawful if it is used to discourage people who are not exempted from applying for identity card to which they are entitled.

99. Whatever may be the policy of the Government, it is clear that Ms Wong is someone entitled to rely on the clear words of the Registration of Persons Regulations to apply for an identity card. The proviso to regulation 25 enables someone who is exempted to apply and be issued with an identity card if the Commissioner of Registration allows him to do so. The question of the proviso does not come into play because Ms Wong is not one of the exempted persons specified in regulation 25. It was pointed out that when Ms Wong arrived in Hong Kong, the only category of persons that was excluded was those previously resident in Vietnam who are permitted to remain in Hong Kong as refugees pending their resettlement elsewhere. As the matter now stands, I cannot see how it can be argued that Ms Wong is not a non-permanent resident of Hong Kong.

Fundamental rights of a resident

100. Ms Wong being a resident of Hong Kong enjoys the fundamental rights given to residents by chapter III of the Basic Law. These rights include article 31 and article 37 which provide that :

" Article 31 Hong Kong residents shall have freedom of movement within the Hong Kong Special Administrative Region and freedom of emigration to other countries and regions. They shall have freedom to travel and to enter or leave the Region. Unless restrained by law, holders of valid travel documents shall be free to leave the Region without special authorization."

" Article 37 The freedom of marriage of Hong Kong residents and their right to raise a family freely shall be protected by law."

101. In Secretary for Justice v. The Oriental Press Group Limited & Others [1998] 2 HKLRD 123, Chan CJHC and Keith J (as he then was) dealing with article 27 of the Basic Law stated that :

" Thus art. 27 merely identified a particular group of fundamental rights and freedoms which the Basic Law guarantees. It does not purport to prevent the enactment of restrictions on those rights. The effect of art. 39 is to permit restrictions on the rights protected in Chap.III, provided that those restrictions are provided by law (for example, art.16(3) of the Bill of Rights) and are compatible with various international instruments, including the International Covenant on Civil and Political Rights."

102. Mr Dykes fully accepted that the rights of Ms Wong are subject to limitations. Clearly she does not have the right of abode in Hong Kong and hence her entry to Hong Kong is subject to immigration control. However, what is clear is that one just cannot treat Ms Wong to be an illegal immigrant. In construing the Basic Law, obviously some common sense is required. For example, article 41 provides that :

" Persons in the Hong Kong Special Administrative Region other than Hong Kong residents shall, in accordance with law, enjoy the rights and freedoms of Hong Kong residents prescribed in this Chapter."

This does not mean non-residents are entitled to such rights which are unique to permanent residents such as the right of abode in Hong Kong.

103. A number of immigration cases had been cited in argument, for example, Gurung Kesh Bahadur v. Director of Immigration HCAL 11/2000, the issue was on the compatibility of section 11(10) of the Immigration Ordinance with the Basic Law; Santosh Thewe v. Director of Immigration HCAL 134/1999 and Krishna Rai v. Director of Immigration HCAL 145/1999, both dealing with Hong Kong residents sponsoring non-residents as their dependants. It is not necessary for me to go into these cases. I do not need to decide more than is necessary for the purpose of this case. In my view, Mr Dykes is clearly right when he said that the restrictions imposed on the rights provided by the Basic Law are found in the Basic Law itself, not from international covenants. In other words, one does not use the international covenants to read down the rights specifically conferred by the Basic Law.

How should the curtailment be exercised?

104. There is no guidance in the Immigration Ordinance on how the curtailment should be exercised. Some assistance can be gained from the position in England. Rule 323 of the Immigration Rules provides that a person's leave to enter or remain may be curtailed on the following grounds, or if the person ceases to meet the requirements of the rules under which leave to enter or remain was granted :

(1) false representations or a failure to disclose any material fact for the purpose of obtaining leave to enter or a previous variation of leave;

(2) failure to comply with any conditions of leave;

(3) failure by the person concerned to maintain or accommodate himself and any dependants without recourse to public funds; and

(4) the undesirability of permitting the person concerned to remain in the light of his or her character, conduct or associations or because of a threat to national security.

See Macdonald and Blake, para.4.24.

No fraud or misrepresentation by Ms Wong

105. In my view, a curtailment clearly envisages the presence of some additional factors which requires the leave to be removed. This magnifies the conceptual difficulties of relying on curtailment to cure a 'mistake' when there is no evidence on the intention of the immigration officer. Further, Ms Wong had practised no fraud or misrepresentation on the immigration officer at the time of her entry. Some suggestions were made that she was not truthful about her dealings with immigration officer in 1998; on whether she had lost her residency in China, or on matters contained in the newspaper report. This court is not a tribunal of fact. Many of these allegations were based on hearsay evidence and obviously one cannot attribute everything said in a newspaper article to be the words of Ms Wong. More importantly, these allegations are not grounds upon which her leave was curtailed.

Curtailment according to policy?

106. What the Secretary said about the basis of her decision is this :

"5. I may have read the Oriental Daily articles when they were published but I did not make my decision on curtailment in Madam Wong's case to avoid press criticism. I made the decision to curtail the limit of stay because it was the only proper decision in view of applicable policy considerations, and was, in my view, a lawful decision within the legal framework of the Immigration Ordinance. I reject any suggestions that I acted wholly or partly because of what the press might say or because of what had been reported in the Oriental Daily."

107. The policy she refers to is explained in the second affirmation of Mr Yim Kwan Hoi of the Immigration Department. In particular, Mr Yim said that the policy is one of "strict" immigration control in general terms and in respect of overstayers from the Mainland as set out by Mr Siu Chung Kit, Henry, in his affirmation of 23 November 1999. Mr Siu's affirmation dealt with the handling of two-way permit holders who enter Hong Kong for three months at a time. Paragraph 8 of the affirmation said that mistakes like this -

" are likely to encourage other illegal immigrants to come to Hong Kong as well as others who intend to use and abuse the above policy and find ways to overstay after arrival..."

108. I think the respondents have exaggerated their case by saying that an isolate case of mistake as this one would encourage others to enter Hong Kong illegally or overstay. In considering the curtailment, Ms Wong just cannot be treated as an illegal immigrant. What is glaringly overlooked is that Ms Wong, as a non-permanent resident in Hong Kong, is entitled to have the rights given by the Basic Law recognized. She was a Hong Kong resident within the meaning of article 24 of the Basic Law and as such, has the right to raise her family here (article 37). She has a husband and two children in Hong Kong. Any restriction by the decision-maker on these fundamental rights has to be justified and nothing less than an important competing public interest will be sufficient to justify it. This is what Lord Bridge of Harwich said in R. v. Secretary of State for the Home Department, ex parte Brind at 696 :

" But I do not accept that this conclusion means that the courts are powerless to prevent the exercise by the executive of administrative discretions, even when conferred, as in the instant case, in terms which are on their face unlimited, in a way which infringes fundamental human rights. ... But again, this surely does not mean that in deciding whether the Secretary of State, in the exercise of his discretion, could reasonably impose the restriction he has imposed on the broadcasting organisations, we are not perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and that nothing less than an important competing public interest will be sufficient to justify it. The primary judgment as to whether the particular competing public interest justifies the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make that primary judgment."

Wednesbury unreasonable

109. The overall impression from the evidence before me is that both the Director and Secretary had simply proceeded on the basis that Ms Wong is an illegal immigrant asking for exceptional leave to remain under section 13 of the Immigration Ordinance. This approach is clearly wrong in the light of the analysis I have conducted in this case. They had taken irrelevant considerations into account. They also ignored the relevant consideration of Ms Wong's rights as a non-permanent resident. Ms Wong having her right conferred by the Basic Law does not even need to rely on provisions of the international covenants to assert her rights. The decisions under challenge are clearly Wednesbury unreasonable.

Procedural fairness

110. Even if, for the purpose of argument, Ms Wong is not a non-permanent resident in Hong Kong, it still does not mean that she is to be treated as an illegal immigrant in terms of procedural safeguards when the Secretary considered the curtailment. For a start, this is not a case where her entry had been refused or that the leave that was given to her had expired. This is a case where there was, and recognized by the Government as such, a valid leave granted which had not expired when the curtailment occurred. In McInnes v. Onslow-Fane [1978] 1 WLR 1520, Megarry VC considered three categories of decisions on whether the court can intervene :

(1) The forfeiture cases where there is a decision which takes away some existing right or position, as where a member of an organisation is expelled or licences revoked.

(2) The application cases where the decision merely refused to grant the applicant the right or position that he seeks, such as membership of the organisation or a licence to do certain acts.

(3) The expectation cases which differ from the application cases in that the applicant had some legitimate expectation from what has already happened that his application would be granted. This includes cases where an existing licence holder applies for a renewal of his licence or a person already elected or appointed to some position seeks confirmation from some confirming authority.

In forfeiture cases, there is a threat to take something away for some reason and in such cases, the right to an unbiased tribunal, the right to notice of the charges and the right to be heard in answer to the charges are plainly apt. In application cases, nothing is being taken away and in normal circumstances, there are no charges and so no requirement of an opportunity to being heard in answer to the charges. For the third category, some aspects may be regarded as more akin to the forfeiture cases than the application cases. Although in form there is no forfeiture but merely an attempt at acquisition that fails, the legitimate expectation of a renewal of the licence or confirmation of the membership is one which raises the question what it is that has happened to make the applicant unsuitable for the membership or licence for which he was previously thought suitable.

111. The present case must be akin to the forfeiture situation. Curtailment of the seven-year leave is an act taking away the right of Ms Wong. Obviously this is an important decision, otherwise the Immigration Ordinance would not require the matter to be dealt with by the Chief Executive instead of the immigration officers who have the authority to permit or refuse entry of someone who come to Hong Kong. The situation is clearly different from Choy Siu Hung v. Attorney General and Another [1987] 3 HKC 365 where the applicant was an illegal entrant who had no right to land in Hong Kong and accordingly, at the time of entry, he could not said to have any legitimate expectation that his application for permission to remain would be granted.

Absence of the rights of an "alien"

112. Mr Marshall referred to a number of cases dealing with the absence of rights of an alien, for example, in Schmidt and Another v. Secretary of State for Home Affairs [1969] 2 Ch 149, the English Court of Appeal held that an alien had no right even to make representations to the Home Secretary in relation to any extension of permission to stay in the United Kingdom. In R. v. Governor of Brixton Prison, ex parte Soblen [1962] 2 QB 243 in which Lord Denning stated that the Crown had a royal prerogative to expel an alien whenever it considers that his presence here was not conducive to the public good. Similarly in Hong Kong, it has been held, for example, in R. v. Director of Immigration, ex parte Chan Heung Mui and Others [1963] 3 HKPLR 533 by the Hong Kong Court of Appeal that an illegal immigrant did not have, as a general rule, a right to a hearing conducted in accordance with the rules of natural justice before a removal order was made against him. Other decisions of the High Court, for example, Thapa Indra Bahadur v. Secretary for Security (HKAL 18/1999, decision of Stock J), Gam Bahadur Gurung v. Director of Immigration (HCAL 48/1999, decision of Yeung J) were of similar effect.

113. The Schmidt line of cases is clearly not applicable. In any event, Ms Wong is not an alien. The English cases referred to the concept of alien which was adopted by the Hong Kong courts before 1997. Alien was formerly defined in the Interpretation and General Clauses Ordinance as a person who is neither a citizen, nor a British protected person, nor a citizen of the Republic of Ireland. This definition was consistent with the British system of immigration : see Immigration Law and Practice by Jackson, 1st Ed. at paras.1-07 and 1-13. However, this definition is amended by the Hong Kong Reunification Ordinance, section 6, Schedule 8, which provides that :

"Any reference to an alien (or to similar terms or expressions) shall be construed as a reference to a person other than a citizen of the People's Republic of China."

Ms Wong is a citizen of the PRC and is not an alien.

114. In my view, procedural fairness must be observed when the Secretary considered the curtailment. At the very least, Ms Wong ought to be given the information that was provided to the Secretary so that she could make a proper response to them. See Kanda v. Government of Malaysia [1962] AC 332 and Harjit Kaur & Another v. Director of Immigration and Secretary for Security (HCAL47 of 1999). This procedural fairness was not observed in the present case.

Other arguments

115. Mr Dykes further argued that the decision to curtail rests with the Chief Executive, but what had happened in this case shows that the immigration officers had taken upon themselves to persuade Ms Wong to leave Hong Kong. He submitted that the advice, if followed, would have pre-empted the decision of the Secretary and deprive Ms Wong of the chance to make representations about the exercise of the statutory discretion. Mr Marshall countered the argument by relying on the corporate decision approach as stated in Tran Thang Lam and Others v. Director of Immigration [1998] 2 HKLR 212 and Director of Immigration and Another v. Lee Tu Phuong and Another [1994] 2 HKLR 212.

116. Mr Dykes further submitted that the decision to curtail was oppressive in view of the long delay. The action under section 11(6) was only started in late March 1999, nearly 2 1/2 years after Ms Wong first produced her problemed leave application to the immigration authorities. He relied on cases such as Re Preston [1985] AC 835, R. v. Secretary of State for the Home Department, ex parte Sinclair [1992] Imm AR 293, R. v. Secretary of State for the Home Department, ex parte Patel, The Times, 10 February 1994 (see also Wong Shu Hung v. The Immigration Tribunal [1985] HKLR 463 and Chen Chiu Lin v. Director of Immigration Civ. App. No.20 of 1986). This is disputed by the respondents who said that it was only reasonable to persuade Ms Wong to leave without resorting to the statutory provision of curtailment.

117. In the light of my conclusion, it is not necessary for me to deal further on these two issues beyond saying that there obviously is delay in this matter.

118. In his submission, Mr Marshall stated that judges have flirted with and then denied the concept of estoppel or detriment in public law. In my view, to describe the decisions of judges in such a manner is an unfortunate choice of word and is inappropriate.

CONCULSION

119. The three decisions under challenge must be quashed and the certiorari is accordingly granted. If the Secretary is to reconsider the curtailment, she should do so in the light of the observations I have made in this case.

120. The order nisi is that the respondents are to pay the costs of Ms Wong in this application. Ms Wong's own costs are to be taxed in accordance with the Legal Aid Regulations.