RE OR KO (also known as OR SIU KO) AND OTHERS

HCAL 31/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 31 OF 2012

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REASONS FOR DECISION

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1. On 23 April 2012, I refused to grant leave to apply for judicial review in this matter. At the request of the Applicants, I reduce my brief reasons for refusing leave into writing.

2. The facts are fully set out in the Written Decision of the Immigration Tribunal produced as exhibit ‘OR-1’ in the Affidavit of the 1^st Applicant.  The Applicants are the wife and daughters of Cheung Woon-tung.  They emigrated to Hong Kong from the mainland by way of One-Way Permits issued on the basis that Cheung Woon-tung was a Hong Kong permanent resident.  However, investigation revealed that Cheung Woon-tung had come to Hong Kong illegally between 1996 and 1997 by using the identity card and Home Visit Permit of his deceased brother, Cheung Woon-sing.

3. The fundamental point is this: it is indisputable that a false representation had been made by Cheung Woon-tung to the mainland authority to procure the one-way permits: that he was a lawful Hong Kong permanent resident.

4. The contents of the letters from the GPPSB would be sufficient to prove that in the absence of any evidence from the Applicants.  Mr Allan accepted that the Applicants were not able to give evidence to dispute the death of Cheung Woon-sing and how the one-way permits were procured.  In view of that, the letters from GPPSB must be sufficient evidence.  See Choi Ka Tak v Director of Immigration, HCAL 97/2007, 23 July 2008.

5. Insofar as the Immigration Tribunal referred to the other evidence, strictly speaking such evidence would not be necessary. Nevertheless, since evidence was before the tribunal, the tribunal could take into account of such evidence.  Being an administrative tribunal, the strict rules of evidence are not applicable in respect of proceedings before it.  See Mahon v Air New Zealand [1984] 1 AC 808 at p 820.

6. The Applicants had adequate opportunity to deal with the weight of the evidence of Madam Zhang and the fingerprint report.  I appreciate that without Madam Zhang being called as a witness, the Applicants could not cross-examine her.  But the essence of her evidence has been confirmed not only by what she said, but also the documentary evidence about the death of Cheung Woon‑sing.  Nobody can dispute the demise of Cheung Woon-sing in 1996. The Applicants did not produce any evidence to dispute that.

7. The crucial factual matrix is as follows (which the Applicants cannot offer evidence to dispute):

(1)  Cheung Woon-sing came to Hong Kong in the 1980’s and eventually obtained a valid Hong Kong Identity Card;

(2)  Cheung Woon-sing went back to the mainland in 1996 and died there on 8 June 1996;

(3)  a person entered Hong Kong in 1997 using Cheung Woon-sing’s identification documents and that person changed his name to Cheung Woon-tung in 2001;

(4)  that person, using the name of Cheung Woon-tung, purportedly as Hong Kong Permanent residents applied for One-Way Permits for the Applicants in 2001 and 2002.

The irresistible conclusion is that Cheung Woon-tung had entered Hong Kong illegally in 1997 by using the identification documents of the deceased Cheung Woon-sing.  His illegal immigration status tainted his subsequent applications for One-Way Permits for the Applicants. Considered against this light, the grounds advanced by Mr Allan regarding the evidence of Madam Zhang and the fingerprint report, irrespective of their merits, would not have any impact on the final outcome.

8. I am not saying that the Applicants had any role to play in that illegal entry in 1997.  That would exonerate them from any criminal prosecution.  However, as far as their immigration status in Hong Kong is concerned, their innocence does not help them.  Therefore their proposed challenge to the Tribunal’s decision cannot possibly succeed.

9. On that basis, I have to refuse leave.