LAU SIU CHING v. COMMISSIONER OF POLICE

HCAL 98/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 98 OF 2009

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J U D G M E N T

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1.  This is an application for judicial review to challenge the police’s apparent refusal to issue in favour of the applicant a “certificate of no criminal conviction” in relation to the applicant’s application for emigration to Canada.

2.  The applicant has indeed no record of criminal conviction in Hong Kong.  However, she is wanted by the police in connection with criminal investigations.  Such investigations are still pending.  The investigations relate to the applicant’s suspected connection with the offences of “attempting to cause prostitution of another person” and of “attempting to traffick in persons to or from Hong Kong”.  The foreign place connected with the suspected offences is Canada.

3.  The applicant’s application for the issue of a certificate of no criminal conviction, made in order to fulfil an immigration requirement of the Canadian immigration authority, has met with the response by the police that it would not further process her application until after her contacting the officer in charge of the criminal investigations so as to assist in the investigations.

4.  For reasons of her own, the applicant has chosen not to contact the officer in charge or to return to Hong Kong from Canada, where she has been staying for quite some time, in connection with the criminal investigations.  Nonetheless, she wants the police to issue to her a certificate of no criminal conviction.  That has resulted in the commencement of the present proceedings.

5.  In her application she asks the Court to quash the decision by the police not to issue to her a certificate of no criminal conviction.  She also applies for an order of mandamus to require the police to consider issuing to her such a certificate of no criminal conviction.  She argues that her rights guaranteed under article 31 of the Basic Law and article 8 of the Hong Kong Bill of Rights, which has been constitutionally entrenched by article 39(1) of the Basic Law, have been infringed.

6.  Those articles guarantee the right to travel and the right to leave the Hong Kong Special Administrative Region.  In addition, article 31 of the Basic Law rather uniquely guarantees the right to freedom of emigration to other countries and regions.

7.  The applicant argues that by refusing to issue in her favour the certificate of no criminal conviction, the police has interfered unconstitutionally with her right to travel, and in particular, her right to emigrate to Canada, there being no dispute that the requirement of such a certificate of no criminal conviction is a fairly common and normal requirement of many countries in terms of processing applications for immigration.  The applicant also relies on other public law grounds to challenge the decisions in question.

8.  There is no dispute that the applicant has been late in making her application for judicial review.  The Court has a full discretion to refuse relief in those circumstances.  However, the Court would consider the merits of the application first.  In this regard, it is helpful to point out immediately that indeed there has been no final decision made by the police thus far to refuse to issue the certificate of no criminal conviction.  All that the police has decided, in accordance with its standing policy, is to ask the applicant to contact the officer in charge of the criminal investigations to assist in those investigations before further processing the applicant’s application for a certificate.  As the applicant has thus far refused or failed to do so, the application for the issue of a certificate is still pending.

9.  For that short reason, there is no ground for issuing the quashing order prayed for by the applicant to quash the supposed decision of the police refusing to issue a certificate in her favour.  Such decision is simply non-existent.

10.  As regards the further item of relief prayed for, namely the order of mandamus requiring the police to consider issuing to the applicant a certificate of no criminal conviction, the matter can be disposed of in the following way.  Mr Wilson Lau, appearing on behalf of the applicant, accepts that the police practice of not issuing a certificate of no criminal conviction in a case where the applicant is subject to criminal investigations that are pending until the investigations are completed is a longstanding practice, which is well known to foreign immigration authorities, including the Canadian immigration authority.

11.  In those circumstances, if the police were to issue to the applicant a certificate of no criminal conviction under the present circumstances, it would have a misleading effect on the Canadian authority.  First, the Canadian authority, which is aware of the police’s longstanding practice, would be misled into thinking that not only the applicant is a person with no criminal conviction record in Hong Kong, but she is also a person who is not under any police investigations that are pending and current.  Secondly, and more specifically, the police would not be informing the Canadian authority the whole truth of the matter.  That is to say even though the applicant is not a person with a criminal record, she is currently wanted by the police in connection with suspected offences which, on the facts suspected by the police, involve Canada as well.  If the police were to issue to the applicant a certificate of no criminal conviction of the standard type without any qualifications or explanations, that would be the effect.

12.  In those circumstances, the remaining relief sought by the applicant is problematic, even if one were to assume everything in the applicant’s favour in terms of the law and the grounds of her challenge.  Mr Lau fairly accepts, in those circumstances, that the police would be quite entitled to inform the Canadian authority of the criminal investigations and of the applicant’s involvement in those investigations in order to eliminate any possibility of misleading the Canadian authority, and Mr Lau accepts for his client that if the police were to issue to the Canadian authority a certificate of no criminal conviction, which is  accompanied by an explanation or elaboration to that effect, he would have no complaint.

13.  In my view, that must be a correct concession.  Without deciding on the legal grounds of challenge raised by the applicant, it seems to me that whatever rights the applicant may have under the constitutional documents, she has no right to require the police to make misleading statements or representations to foreign immigration authorities.

14.  Moreover, it must be correct, and Mr Lau again has fairly accepted, that whatever rights the applicant may have under the constitutional documents, those rights do not require the police to issue a certificate of no criminal conviction in any particular form or format.  In other words, the certificate or the information to be provided by the police to the Canadian immigration authority may take any form so long as the substance of the information conveyed by the police to the Canadian authority is true and correct.

15.  Mr Lau accepts that in the present proceedings, the police has filed materials setting out in full the circumstances under which the police has thus far been unable to process further the applicant’s application for the issue of a certificate of no criminal conviction.  The materials explain clearly why the applicant has not been issued with a certificate of no criminal conviction thus far.  They explain the suspected offences.  They explain that the applicant is wanted by the police in relation to the criminal investigations in question.  They detail the efforts made by the police to invite the applicant to co-operate with the investigations.  Apart from those case specific matters, the materials also set out the general practice and policy of the police in terms of the issue of certificates of no criminal conviction.  Anybody reading the materials would have no difficulty in understanding in full the relevant circumstances of the applicant.

16.  Mr Lau accepts that given that there is no formal requirement relating to the assistance or information that the police, he contends, is obliged to assist a resident’s application for emigration to a foreign country, the materials filed by the police in these proceedings would be more than sufficient to satisfy the duty imposed under the relevant constitutional documents on the police to render such assistance contended for by the applicant’s side.

17.  Without deciding whether the legal contention for such a duty is correct or not, it therefore seems to me that that must be the end of the applicant’s case so far as relief is concerned.  In other words, the applicant has already got what she, according to her own case, is entitled to, namely materials and information from the police relating to her relevant background in Hong Kong, which she is quite entitled to show to the Canadian authority in relation to her immigration application, there being no objection from the Respondent to the applicant’s using the materials for such purposes.

18.  Insofar as relief is concerned, therefore, there is no question of granting the applicant any relief, nor, for the reasons already given, is there any question of making an order of mandamus requiring the police to consider issuing in favour of the applicant a certificate of no criminal conviction in the standard form without any accompanying explanation.

19.  In those circumstances, the proceedings have become wholly academic, and bearing in mind that the applicant has delayed in making the application for leave to apply for judicial review in the first place, the Court is fully entitled to refuse relief.

20.  For the reasons given, and without deciding on the substantive grounds raised by the applicant, that is what I am going to do.  I do not consider that the substantive grounds raised by the applicant should be decided in these proceedings.  To some extent, they are case specific.  To the extent that they raise some general questions of wider application, they can be dealt with when the appropriate opportunity should arise.

21.  In my view, in most cases the issue or the non-issue of a certificate of no criminal conviction will not be controversial.  It is guided by well-established and published guidelines.  Most people in Hong Kong have no difficulties with those guidelines and practice.  For those reasons, I do not think that the Court should deal with the substantive grounds in these proceedings.

22.  For all these reasons, at the invitation of Mr Lau, who fairly accepts that he cannot take his client’s case any further, the Court orders that the application for judicial review be dismissed with costs including all costs previously reserved.