FACV No. 1 of 2001
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 1 OF 2001 (CRIMINAL)
(ON APPEAL FROM CACV NO. 415 OF 2000)
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Between :
NG SIU TUNG & OTHERS Applicants/
AND
THE DIRECTOR OF IMMIGRATION Respondent
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Court: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ
Date of Hearing: 13 December 2003
Date of Judgment : 9 January 2004
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J U D G M E N T
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Chief Justice Li, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ :
Introduction
1. This Court, by its judgment of 30 July 2002 ("the July judgment "), remitted certain factual issues to the Court of First Instance for determination and directed that, after the Court of First Instance made its findings , it should submit a report to this Court.
2. Hartmann J, sitting as the Court of First Instance for a total of 40 days, handed down his Report on 3 October 2003. His Report deals with the cases of 22 applicants who claimed a right of abode in Hong Kong, out of a total of 216 applicants whose cases were the subject of the remitter . In submitting his Report on the cases of 22 applicants, Hartmann J considered that the conclusions to be reached by this Court on these cases, particularly on the issue of what is or is not capable of constituting a record under the concession policy, would facilitate the disposition of the remaining cases which were remitted by this Court.
The earlier judgments of this Court, the remitter and the directions
3. Before we proceed to consider the submissions made to us on the Report by Ms Gladys Li SC for the applicants and Mr Joseph Fok SC for the respondent Director ("the Director"), it is necessary to refer briefly to the Court's two previous judgments so far as they bear upon the issues which now arise.
4. On 10 January 2002, this Court handed down judgment ("the January judgment ") in the appeals of more than 5,000 persons who, in judicial review proceedings , sought to quash decisions of the Director denying them right of abode in Hong Kong. All these applicants were Chinese nationals born in the Mainland, having at least one parent born in Hong Kong.
5. The applicants who are the subject of the Report claimed that they were entitled to right of abode because they fell within a policy decision made by the Chief Executive in Council and announced to the public on 26 June 1999 ("the concession policy"). The Director contested their claims.
6. In its January judgment , this Court upheld the following requirements of the concession policy :
(i) an applicant must have been present in Hong Kong at some time during the period identified by the concession policy, that is, from 1 July 1997 to 29 January 1999;
(ii) while present in Hong Kong during that period, the applicant must have made a claim for right of abode to an officer or officers of the Immigration Department; and
(iii) that Department must have a record of the claim so made.
7. In the January judgment , this Court directed the parties to consult in order to agree draft orders that would dispose of the appeals in accordance with its judgment . The great majority of appeals were disposed of in this manner. However, more than 200 applicants, who had come before the Court on the basis that they claimed to be entitled to right of abode by reason of the concession policy, sought further directions. They did so on the basis that factually they qualified as beneficiaries of the January judgment .
8. It was to resolve these disputes that this Court in the July judgment directed the Court of First Instance to hear relevant evidence and to make a determination in respect of each applicant.
9. In the July judgment , this Court divided applicants who claimed to fall within the concession policy into seven groups of which four only, Groups One, Two, Four and Five, are relevant to the Report.
10. Group One consisted of 'overstayers '; that is, persons who had been permitted entry to Hong Kong from the Mainland for a specific period of time on the strength of a two-way permit but on the expiration of that period of time had remained in Hong Kong. Persons in this group claimed that they had made claims for right of abode but that, under threat of removal , their claims were not recorded when they had made them, if at all. This Court said the cause for this -
"... is alleged to have resulted from a practice adopted by officers of the Immigration Department whereby standard answers were attributed to such applicants and inserted in relevant Immigration Department documents, instead of recording the actual claims made."
The majority of the 22 cases dealt with in the Report fall within this group.
11. Group Two consisted of persons who had also come to Hong Kong from the Mainland for a specific period of time on the strength of a two-way permit but, before the expiration of that permit, had sought an extension of stay. Persons in this group claimed that they had put forward a claim for right of abode as their reason for seeking an extension but that their claims had not been recorded as they had made them, if at all. This Court recorded that the allegations were to the effect that -
"They were told by officers of the Immigration Department that a claim for the right of abode was not a ground for granting an extension."
12. In respect of Groups One and Two, this Court remitted the following two issues for determination , namely -
"
(a) whether, in each case, the applicant made a claim for right of abode ; and
(b) if so, whether the Director has a record of that claim as required by the Concession ."
13. Group Four consisted of persons who had been prosecuted by the Director for overstaying ; that is, remaining in Hong Kong beyond the permitted limit of their stay. Persons in this group claimed that, when brought before a magistrate , they had made statements in mitigation and in these statements had spoken words which amounted to a claim for right of abode . This Court stated in the July judgment that a record resting solely in the magistrate's papers did not satisfy the requirements of the concession policy.
14. In respect of Group Four, this Court remitted the following three issues for determination , namely -
"
(a) whether, in each case, the applicant made a claim for right of abode ;
(b) if so, whether on the evidence as to the circumstances in which the claim was alleged to have been made, such claim was made to the Immigration Department; and,
(c) if so, whether the Director has a record of that claim as required by the Concession ."
15. Group Five consisted of persons who claimed that, when arrested by the police for overstaying , they had made a claim for right of abode . Such claims, they said, would have been entered into a police notebook and in the ordinary course of events would have found its way into the records of the Immigration Department.
16. In the July judgment , this Court said that the destruction of police notebooks was not an answer to the absence of a record of a claim in the possession of the Director. The Court recognized, however, that, in respect of some applicants, police records may still be in existence and that those records, if resting with the Director in some shape or form, were capable of constituting a record under the concession policy.
17. In respect of Group Five, therefore, this Court remitted the following two issues for determination , namely -
"
(a) whether, in each case, the applicant made a claim for right of abode ; and
(b) if so, whether the Director has a record of that claim as required by the Concession ."
No issue arises presently for decision by this Court in relation to Group Five applicants.
The Report
18. Of the 22 cases which he considered (involving the applicants named in the Schedule to this judgment ), Hartmann J found that three (applicants nos 307, 1380 and 4000) came within the requirements of the concession policy and 19 did not. The Director now accepts that the three applicants fall within the policy. The parties are agreed upon the form of a consent order allowing those three applicants' appeals .
19. Of the remaining 19 cases, Hartmann J found that in one or more respects, they did not satisfy the requirements of the policy. Of these 19 cases, there are five (applicants nos 1981, 2646, 3055, 3089 and 3910) in which the parties have agreed on the form of a consent order that those five applicants' appeals be dismissed .
20. Of the remaining 14 cases, there are six applicants (nos 204, 593, 733, 1084, 1623 and 3174) who do not consent to the dismissal of their appeals but in respect of whom legal aid has been discharged and who are presently unrepresented . The Court has given directions for the filing of written submissions by those six applicants and the respondent and fixed 13 February 2004 as the date of hearing in the event that an oral hearing is necessary or desirable.
21. This leaves eight cases (applicants nos 80, 713, 915, 916, 1663, 1970, 2113 and 3122) now to be resolved by this Court. Of these cases all but one, no. 2113, are Group One applicants. Applicant no. 80 is additionally a Group Four applicant, Hartmann J found that each of the eight applicants made a claim for right of abode but that the Director had no record of the claims.
The applicants' submissions
22. The applicants submit
(i) that the Judge "erred in his determination as to what was or was not capable of constituting a record of a claim" by misconstruing that part of the July judgment dealing with documents incapable of constituting the required record of a claim;
(ii) that the Judge, in finding that Form ID 457 did not constitute a record of a claim , failed to have regard to the way in which the form had been completed, in particular the fact that applicants had given particulars of one or both parents who were permanent residents of Hong Kong on Form ID 457, including the identity card number or numbers of the parent or parents (applicants nos 80, 915, 916, 1663 and 1970) or had gone to the Immigration Department with one or both parents (applicants nos 80, 713, 915, 916, 1663 and 1970);
(iii) that the Judge, in disregarding the way in which applicants nos 915, 916 and 3122 were processed by the Immigration Department on 4 and 24 July 1997, which, it is argued, pointed to the fact that they had claimed right of abode , erred in holding that there was no record of a claim ;
(iv) that the Judge was in error in finding that the extension form and the interview notes relating to applicant no. 2113 (a Group Two applicant) did not constitute a record of claim for right of abode .
(v) that the Judge was in error in finding that there was no record of a claim to right of abode in cases where, owing to "deficient practices " on the part of immigration officers, as distinct from actual pressure on their part, applicants gave standard answers not involving a claim to right of abode ; and
(vi) that the Judge erred in finding that the statement by applicant no. 80 (a Group Four applicant) in the Magistrates Court on his prosecution for overstaying was not a claim for right of abode .
23. The Director submits that Hartmann J correctly applied the January and July judgments and that his findings should not be disturbed.
24. It is convenient to consider the applicants' submissions in the order in which they are recorded in para. 22 above. As appears from para. 22, some applications raise more than one issue .
Misconstruction of the July judgment
25. In determining whether there was a record of a claim , Hartmann J considered that, in the July judgment (paras 32 and 33), this Court stated in unambiguous terms that a record must speak for itself and "that a document is not capable of constituting a record unless - on its face - it provides evidence of a claim". The Judge acknowledged, correctly, that a record may consist of more than one document and that it may comprise notations and endorsements on a document. He said
"It is for the court, viewing matters in context and abandoning a narrow or technical approach , to judge, on the balance of probabilities , whether in substance the documentary material - on its face - constitutes evidence that a claim for right of abode has been made." (para. 37)
26. He went on to say:
"... the essential focus must be the documentary material itself and what appears on the face of that material. It must follow therefore that documentary material which does not speak for itself or, to put it another way, material which on its face is entirely neutral, is incapable of constituting a record." (para. 39)
That statement accorded with what this Court said in the July judgment . And the Judge was correct in acknowledging that the record of a claim may consist of not only a written claim for right of abode but also a record of such a claim having been made.
27. But the Judge went on to say:
"a record need not be direct and may be inferred provided, of course, that the inference is drawn from what appears on the face of the documentary material and is one that can reasonably be drawn by the Director and his officers in respect of a particular applicant in their lawful administration of the policy." (para. 41)
In so far as this statement suggests that the process of inference or characterization of the documentary material is confined to what appears on the face of the documentary material, it is, with respect , too narrow. The critical question is whether the relevant documentary material constitutes , on its face, either a claim for right of abode or evidence that a claim for right of abode has been made. But that does not mean that it is impermissible to have regard to other circumstances in determining whether the documentary material constitutes , on its face, evidence that such a claim is, or has been, made. It is permissible, for example, to characterize the documentary material as constituting such evidence in the light of the circumstances in which it was brought into existence, for example, by reference to the fact that the applicant has made a claim for right of abode , so long as one is doing no more than characterizing what appears on the face of the documentary material.
28. The purpose of the requirement that there be a written record of a claim in the possession of the Director was to provide a form of verification to enable the Director to implement the concession policy (see January judgment , para. 210). The existence of this purpose does not mean that the Director should disregard the fact that an applicant has claimed right of abode when considering whether documentary materials constitute evidence of the making of such a claim. On the contrary, as far as the Director is concerned, he knew that each applicant asserted that a claim for right of abode was made and he is now aware of the Judge's findings . If, viewing the relevant documentary material in that light, it may, on its face, fairly be said to constitute evidence corroborating the fact that a claim for right of abode had been made, the concession policy requirement for a record is satisfied.
The ID 457 form
29. Hartmann J described the ID 457 form as a standard form given out at the reception counter of the General Investigation Section ("GIS") to "all immigration offenders" who surrender or are referred to GIS. All immigration offenders who presented themselves to the reception counter of GIS would be handed a copy of the form and asked to fill it in before being interviewed.
30. The form used by GIS officers during the concession period bore the following heading:
"IMMIGRATION DEPARTMENTInvestigation Division
Beneath the heading, space was provided for entering personal details of the applicant; for example, his or her name, alias, date and place of birth, sex, education, occupation, country of origin and place of permanent residence . Other details sought included date of entry into Hong Kong, Hong Kong address and details of the travel document used, assuming he or she entered legally. The bottom half of the page sought information in respect of the applicant's family. Indeed, the heading of this section was titled: 'family composition'. Beneath the heading, details were sought of various family members: age, date of birth, place of birth, marital status, Hong Kong identity card, address in Hong Kong or elsewhere. The family members in respect of whom information was sought included husband or wife, natural children, parents and natural brothers and sisters.
31. The ID 457 form, while it was concerned with the personal details of an applicant, did not seek to identify the nature of any particular application that was being made by that applicant. Nor was space provided so that the nature of an application may be stated. A signature was not required.
32. Mr Chun Yiu, a Principal Immigration Officer in charge of the Investigation Division of the Immigration Department, said that immigration officers were instructed that all immigration offenders should be informed, before interviews took place, that they were under investigation for offences relevant to their conduct. However, Hartmann J found that when the applicants gave evidence, few, if any, recalled being told anything in respect of the ID 457 form other than that they should fill in the necessary details.
33. During the concession period, GIS officers interviewed between 15 to 20 persons a day. During each interview, an applicant would be given a second form to complete. This form was the only record of the interview. It was called a "grounds for non-removal form ". GIS officers who conducted interviews did not make private notes for their files. Hartmann J stated that this form
"provided the ideal vehicle for an applicant to both claim right of abode and in the same action record that claim."
In the middle of the form was the invitation
"Please state your Grounds for non-removal."
Yet Hartmann J found that none of the applicants dealt with in the Report who wrote on the form did so in a way which, on a fair reading of the words, could be said to be a substantive claim for right of abode or a record that such a claim had been made.
34. At the end of the interview each applicant was asked to complete a short form known as a "no loss , no complaint" form. Hartmann J found that all the applicants dealt with in the Report endorsed the form to the effect that they had no loss or complaint and signed the document.
35. Hartmann J found that the ID 457 form was "an essentially neutral paper, nothing more than a receptacle for personal particulars" for the use of the Department. Having found that was the way the Department viewed the form - absent any specific endorsement or notation to the effect that a claim for right of abode is or has been made - the Judge concluded that the mere completion of the particulars did not constitute a record in terms of the concession policy.
36. However, once it is accepted that the form should be viewed in the light of the fact that a claim for right of abode has been made by the relevant applicant, the insertion of the particulars of a parent who has permanent residence in Hong Kong, including the parent's identity card number, takes on new significance. When the applicant inserts particulars of a parent's identity card number and the applicant has claimed or is claiming right of abode , the form does not have a merely neutral character. The particulars point in the direction of a claim for right of abode , no matter that the form is regarded by the Department as having an essentially neutral character.
37. Hartmann J found that applicant no. 80 gave particulars of the identity card number of his mother on form ID 457. We accept that this is a sufficient record of his claim.
38. In the case of applicant no. 1663, Hartmann J found that "the ID 457 form contains no endorsement or notation that, on its face, could be read as recording a claim to right of abode ". The form does, however, contain particulars of the applicant's parents' identity cards. The Judge's conclusion was therefore based on his view that these particulars were of no significance. We do not agree. There is a sufficient record of this applicant's claim.
39. Applicants nos 915 and 916 were brother and sister and were accompanied to the Immigration Department by their father. They inserted or caused to be inserted in their ID 457 forms in the space provided the number of their father's identity card. Hartmann J found that the form did not constitute a sufficient record. Again, that was because he thought the particulars were of no significance. As with applicant no. 80, we accept that, in both cases, there is a sufficient record of a claim having been made.
40. Applicant no. 1970 completed an ID 457 form but gave a false name instead of her true name. The form did, however, contain the correct names and identity card number of one of her parents. Hartmann J found in addition that the applicant lodged a copy of her father's identity card. Hartmann J also stated that
"she may also have lodged a copy of her mother's identity card but, if so, that document appears no longer to be part of the Director's records."
The possession by the Director of the father's identity card, along with the particulars in the form ID 457, is a sufficient record of the applicant's claim for right of abode . Hartmann J's finding to the contrary was based on his view that particulars of a parent's identity card was of no significance.
Applicants accompanied by a parent
41. Six applicants (nos 80, 713, 915, 916, 1663 and 1970) were accompanied to the Immigration Department by a parent. Ms Gladys Li submits that this fact is enough of itself to enable the Court to conclude that form ID 457 is a sufficient record to satisfy the terms of the concession policy. We do not agree. The document on its face has, in such circumstances, no more than a neutral character. It follows that there is no record of applicant no. 713's claim for right of abode .
Special arrangements for the processing of applicants
42. The next question concerns the significance of the arrangements put in place during the period leading up to and following 1 July 1997 by the Immigration Department for the processing of applicants for right of abode . Mr Pang Kin Mo, a Chief Immigration Officer in the GIS gave evidence of special arrangements made to cope with the large numbers of people involved. A queuing system was set up on the ground floor to sort people into groups. One consisted of persons who stated to immigration officers that they wished to claim right of abode . The other consisted of overstayers or illegal immigrants with no claim to right of abode . The "right of abode seekers " were provided with ID 457 forms to complete on the ground floor. They were not interviewed on that day but their documents were collected and they were given a receipt. Those not making a right of abode claim were almost all interviewed on that day.
43. Three applicants (nos 915, 916 and 3122) allege that they fall into the "right of abode seeker " category. As already noted, Hartmann J found that applicants nos 915 and 916 in fact claimed right of abode but that there is no sufficient record to satisfy the terms of the concession policy. We have already discussed their ID 457 forms and concluded that they constitute a sufficient record of a claim. (see para. 39 above).
44. In the case of applicant no. 3122 the ID 457 contains no reference to a parent's identity card. Hartmann J correctly held that that form was not a sufficient record of a claim.
45. Ms Gladys Li SC submits that the Director's own system was such that he could distinguish between those who had made a claim from those who had not by the manner in which they were handled by the Department. It is said that the receipts for documents and other departmental records showing the dates on which the applicants attended the Immigration Department are themselves evidence that a claim for right of abode was made. The submission applies to the three applicants.
46. The Director submits that there are two difficulties with this argument. One is that it seems that some non-claimants were asked to return on a subsequent date for processing. Nonetheless the circumstances may well give rise to the probable inference that an applicant returned to the Department for further processing. In the case of applicant no. 3122, the Departmental file contains two copies of receipts dated 4 and 24 July 1997 for documents. The question is whether the copy receipts in the Director's possession give rise to an inference , based on the Department's procedures for processing claims, that the applicant made a claim for right of abode . If so, the receipts would constitute evidence of a claim for right of abode having been made. Whether an inference should be drawn may depend on evidence which is not dealt with in the Report. For this reason, the application should be remitted to Hartmann J to be dealt with in accordance with this judgment .
The significance of the extension form and interview notes
47. Applicant no. 2113, a Group Two applicant, came to Hong Kong on 6 January 1998 on a two-way permit. With his mother he went to the Chinese Visitors Office on 31 January 1998. Hartmann J found that he then made a claim for right of abode . He was told by the interviewing officer that there was no mechanism for processing his claim and that he would have to return to the Mainland for that purpose. The applicant agreed to make an application for extension of stay to care for his mother in Hong Kong and was given a form ID 91 to complete. The form is an application for extension of stay. Hartmann J found
"What is written is, in the context of the form, nothing more than a request to remain in Hong Kong a few more days." (para. 283)
48. After completion of the form ID 91, the applicant was interviewed by another officer. He said that he again stated that he wished to remain in Hong Kong on a permanent basis to care for his mother. As Hartmann J pointed out (para. 284), the record of interview only bears the note "to take care of mother". Hartmann J was right in holding that the record of interview, read alone or in conjunction with the form ID 91 cannot be taken as evidence of claim for right of abode .
Pressure to write down standard answers
49. Another issue which divides the parties concerns what was described as pressure exerted by officers of the Immigration Department on applicants to write down certain "standard answers," not involving a claim for right of abode , on forms retained by the Department.
50. Hartmann J found that standard answers had in fact been dictated or suggested to applicants in many cases (including most of those under discussion) but that this did not constitute a basis for estopping the Director from denying that the Department had a record of a right of abode claim in cases where this had occurred. Ms Li submitted that Hartmann J had adopted the wrong approach and that he ought to have found in favour of an estoppel.
51. In the January judgment (at para. 225), the Court noted that allegations had been made concerning use of standard answers but did not deal with the issue , noting that it raised questions of evidence in individual cases.
52. The point was dealt with more substantively in the July judgment where the Court stated (at paras 30-31):
"
30. It is submitted on behalf of the applicants that in all these cases, the absence of a record in the hands of the Immigration Department is due to deficient practices adopted by officers of that department. The Court is therefore invited to treat these applicants as having met all the requirements of the Concession notwithstanding the absence of a record.
31. We cannot accept that this is how the January Judgment is to be applied. In cases where nothing capable of amounting to the required record of a claim for right of abode exists, the applicant necessarily falls outside the Concession . The argument that a record ought to have come into existence if the applicants' claims had duly been noted is not an answer to the requirement that there must be a record of the claim in the possession of the Immigration Department."
53. In his Report, Hartmann J explained his understanding of the Court's approach to "standard answers" as follows:
"On a reading of the January and July judgments , in my view, 'deficient practices' and the wrongful exercise of 'pressure' are therefore to be distinguished. In the first instance, the Director is not estopped. In the second instance, however, if wrongful pressure is established, then the Director is estopped." (para. 50)
At para. 49, he treated the latter concept as embracing cases where "an applicant was by means of some form of pressure by threats, intimidation or oppressive conduct actively prevented from recording his or her claim".
54. In the light of his Lordship's findings , the correctness or otherwise of his approach does not call for decision . However, while it was recognized in the January and July judgments that the nature of the evidence founding the "standard answer" allegations had to be investigated to see if any legal doctrine bearing on the application of the concession might be engaged, the Court should not be taken to be endorsing the suggestion that an estoppel can be set up on the basis indicated by the Judge.
55. Hartmann J's findings (at paras 52-55 and 86-100) may be summarized as follows, namely, that:
(a) in some cases (including the eight under discussion), the applicant made an oral claim for right of abode but no record of that claim came into existence;
(b) consistently with the law as it existed at the time, and unobjectionably, such applicants were generally advised that a claim for right of abode had to be made after first returning to the Mainland;
(c) such counseling was proffered to try to persuade the interviewee to return voluntarily to the Mainland, such an outcome being viewed by the officers, as well as by many applicants, as a sensible outcome, avoiding possible prosecution and detention;
(d) with this in view, officers had frequently suggested or prompted applicants, when indicating why they had overstayed their two-way permits, to write down on relevant forms, standard answers which did not involve a right of abode claim;
(e) the use of such answers, based on experience of the range of similar answers usually given, was a practice that was not in itself wrong in principle;
(f) it was, however, a matter of very real concern that almost all the interviewing officers had denied using standard answers despite the evidence clearly showing that such answers had been resorted to;
(g) nonetheless, the central question "was not whether answers were suggested by interviewing officers but whether applicants were free either to record them or not, whether they were free to add to or supplement those answers"; and,
(h) "... looking to the facts of each individual case and taking all relevant evidence into account, ... while a good many applicants did have answers suggested to them, they were not wrongfully pressured into recording only those suggested answers. ... in each case if an applicant had wished to add to or supplement a suggested answer or write something else entirely, they would have been free to do so."
56. Accordingly, Hartmann J found as a matter of fact that the use of standard answers had not exceeded what was permissible and did not involve "wrongful pressure" preventing entry of a right of abode claim in the relevant forms. The applicants were therefore left in the position where no record of a claim existed for the purposes of the concession .
57. Ms Li does not seek to challenge these findings of fact. Nor, in our view, is there any basis for doing so. Her submission is that Hartmann J adopted too high a threshold for triggering the doctrine of estoppel and that he should have held that the findings actually made were sufficient. We do not agree. Leaving aside the question whether "wrongful pressure" in the sense indicated by the Judge may be legally relevant in the present context, we can see no foundation for any estoppel on the basis of the findings actually made. Nor do such findings provide any other basis for disturbing Hartmann J's rejection of the standard answer argument. It remains the case, as stated in the July judgment , that the argument that a record ought to have come into existence if the applicants' claims had duly been noted is not an answer to the requirement that there must be a record of the claim in the possession of the Immigration Department.
The magistrates' proceedings involving Chan Ching Hoi (Applicant no. 80)
58. In addition to his Group One claim, Chan Ching Hoi contends that a record for the purposes of the concession can be found in certain documents relating to his prosecution in the Magistracy. He pleaded guilty to the offence of contravening a condition of his stay in Hong Kong by overstaying and the notes relied on concern what was said in mitigation.
59. Basing himself on the official transcript , Hartmann J's findings are at para. 320:
"The applicant was prosecuted for contravening a condition of his stay in Hong Kong; namely, overstaying , and appeared in the Magistracy on 25 September 1997. He pleaded guilty to the charge. After his conviction , the transcript reveals the following exchange between the applicant and the court:
' It's reasonable to be united with my parents. In that way I break the law. I don't' think it's acceptable.
COURT: You can be reunited with your parents and not break the laws.
The prosecutor, a member of the Immigration Department made the following cryptic note on his file: 'Parents for union break the laws'."
60. His Lordship held (at para. 323) that these notes, fairly read, did not evidence a claim for right of abode :
"The applicant said no more than that his natural desire to be with his parents resulted in him breaking the law. Nothing appears in that brief statement to the effect that the applicant's parents themselves had right of abode in Hong Kong and that he had come to Hong Kong in order - through them - to secure his claim to right of abode ."
61. Ms Li submitted that such notes ought to have been read as constituting the relevant record. We do not agree. We consider the Judge's reading of the words, noted in the context of what Mr Chan had said in mitigation, to be fair and reasonable.
62. We record that our consideration of these applications was greatly assisted by Hartmann J's Report. It was comprehensive yet lucid and identified the relevant issues accurately.
63. We make the following orders:
1. by consent the appeals of applicants nos 1981, 2646, 3055, 3089 and 3910 be dismissed ;
2. by consent
(1)
the appeals of applicants nos 307, 4000 and 1380 be allowed;
(2)
the removal orders made against applicants nos 307 and 1380 be quashed ;
(3)
a declaration be made that applicants nos 307, 4000 and 1380 fall within and are entitled to the benefit of the concession policy, so that their claims to right of abode should be verified in accordance with this Court's judgments dated 29 January 1999 in the cases of Ng Ka Ling and Chan Kam Nga ;
3. the appeals of applicants nos 713 and 2113 be dismissed ;
4. the appeals of applicants nos 80, 915, 916, 1663 and 1970 be allowed;
5. the removal order made against applicant no. 916 be quashed ;
6. a declaration be made that applicants nos 80, 915, 916, 1663 and 1970 fall within and are entitled to the benefit of the concession policy, so that their claims to right of abode should be verified in accordance with this Court's judgments dated 29 January 1999 in the cases of Ng Ka Ling and Chan Kam Nga ;
7. the application of applicant no. 3122 be remitted to Hartmann J to be determined in accordance with this judgment ;
8. there be no order as to costs save that the costs of each of the applicants be taxed in accordance with the Legal Aid Regulations;
9. liberty to apply to a single Judge of this Court.
Mr Justice Bokhary PJ :
64. My position is as I explained on 30 July 2002 when I said:
"On 10 January this year I said in a minority judgment that I would allow all these appeals to the fullest extent in favour of all the appellants by (i) quashing all the removal orders and (ii) declaring that all the appellants are Hong Kong permanent residents with the right of abode here. And I adhere to that. I do not consider it appropriate for me to participate in resolving the issues which have arisen between the parties as to the effect of the majority's judgment . It would be otherwise if and to the extent that the members of the Court who formed that majority were now evenly divided amongst themselves on the resolution of those issues or any one or more of those issues. But that is not the present situation. So I do not propose to say anything more than that I adhere to everything that I said in my judgment on 10 January this year."
It goes without saying that to the extent that the other members of the Court decide in favour of the appellants, such decision has my respectful support.
(Andrew Li) (Kemal Bokhary) (Patrick Chan)
Chief Justice Permanent Judge Permanent Judge
(R.A.V. Ribeiro) (Sir Anthony Mason)
Permanent Judge Non-Permanent Judge
Representation:
Ms Gladys Li SC and Mr Kwok Sui Hay (instructed by Messrs Barnes & Daly and assigned by the Legal Aid Department) and Mr Sean Fang (instructed by Messrs Barnes & Daly on pro bono basis) for the appellants
Mr Joseph Fok SC and Mr Daniel Wan (instructed by the Department of Justice) for the respondent
SCHEDULE
Serial No. Applicant No. Name in English Name in Chinese Sex
Order made by this Court
1 307 CHAN PIK SHAN 陳碧珊 F By consent, appeal allowed.
2 1380 HUI YUK HEUNG 許玉香 F By consent, appeal allowed
3 4000 WU KIT NGA 胡潔雅 F By consent, appeal allowed.
4 1981 LAU WAI KAU 劉惠球 M By consent, appeal dismissed.
5 2646 NG LI TUNG 吳利東 M By consent, appeal dismissed.
6 3055 SZE CHIU CHI 施招治 F By consent, appeal dismissed
7 3089 SZE LI CHUN 施利真 F By consent, appeal dismissed
8 3910 WONG YUEN SHEUNG 王婉雙 F By consent, appeal dismissed.
9 204 CHAN KIN PIU 陳建標 M Written submissions to be filed.
10 593 CHENG SIU YIN 鄭小燕 F Written submissions to be filed.
11 733 CHEUNG SUET KAM 張雪琴 F Written submissions to be filed.
12 1084 FU KWONG 付光 M Written submissions to be filed.
13 1623 KWOK SIU PING 郭少萍 F Written submissions to be filed.
14 3174 TAI LIN FAT 戴連發 M Written submissions to be filed.
15 80 CHAN CHING HOI 陳清凱 M Appeal allowed.
16 713 CHEUNG SAU KAM 張秀琴 F Appeal dismissed.
17 915 CHONG MING LIK 莊銘力 M Appeal allowed.
18 916 CHONG MING NGAI 莊銘藝 F Appeal allowed.
19 1663 LAI SIU FUNG 黎小鳳 F Appeal allowed.
20 1970 LAU SUET FA 劉雪花 F Appeal allowed.
21 2113 LEUNG KANG KWONG 梁鏡光 M Appeal dismissed.
22 3122 SZE SAU KAN 施秀謹 F Remitted to Hartmann J.