FUNG SUET FONG v. DIRECTOR OF IMMIGRATION & ANOTHER

HCAL 108/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW

PROCEEDINGS NO. 108 OF 2002

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J U D G M E N T

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Introduction

1. This is an application for judicial review of the following administrative decisions:-

(a)	the 1st respondent's ("the Director's") removal order dated 4 June 2001, made under s. 19(1)(b), Immigration Ordinance (Cap. 115), requiring the applicant to leave Hong Kong;
(b)	the 2nd respondent's ("the Tribunal's") decision of 26 March 2002, made pursuant to s. 53D, Cap. 115, dismissing the applicant's appeal against the said removal order on the ground that she has not had any permission of the Director to remain in Hong Kong

(see the Form 86A herein).

Leave to do so was given on 12 April 2002.

2. The grounds on which relief is sought in this application (set out in the Form 86A) are:-

(1)	the applicant has a legitimate expectation that she would not be removed from Hong Kong;
(2)	the Director acted irrationally in making the said removal order;
(3)	the Tribunal fell into an error of law:-
	(a) by descending into the arena at the hearing of the applicant's appeal against the said removal order;
	(b) in allowing its fact-finding function to be usurped by the empty assertion of the mainland authorities to the effect that the applicant's one-way permit was obtained unlawfully;
	(c) by misunderstanding and/or misapplying the decision in Tsui Siu Wai v. Director of Immigration, M.P. No. 1665 of 1994;
	(d) by misunderstanding the applicant's case regarding her lack of knowledge of the illegality relating to the one-way permit (which illegality is not admitted by her) at the time when the said permit was issued by the mainland authorities;
(4)	by failing to consider that the Director has not adduced any evidence regarding the information contained in the application forms (whether false or not) submitted by the applicant to the mainland authorities;
(5)	the Tribunal acted irrationally in misunderstanding the applicant's case (sub-para. (2)(d) above) and in rejecting the testimony of an independent witness and treating that witness' testimony as the applicant's;
(6)	the Tribunal acted in breach of the rules of natural justice in failing to allow the applicant to test the validity of the documentary evidence adduced against her;
(7)	the Tribunal acted in contravention of the Basic Law of the HKSAR ("the Basic Law") in undermining the independence of the Hong Kong Judiciary by blindly accepting the assertions of the mainland authorities, and/or failing to consider the applicant's case fairly.

These grounds will be dealt with under separate headings below.

3. As will be set out in more detail below, the respondents contend that the applicant has at the judicial review hearing put forth points which do not fall within those set out in the Form 86A. The applicant disagrees with that contention and, when queried by the court, indicated that she would not seek leave to amend the Form 86A even if the respondents' contention should turn out to be correct.

4. The Tribunal has adopted the conventional approach and did not appear at the judicial review hearing. However, the Director has advanced arguments in support of the Tribunal's decision which is under challenge. The words "the respondents", whenever they appear herein, should be understood in that context.

Background Facts

5. On 2 July 1994, the applicant arrived Hong Kong for settlement. She presented a one-way permit to the Director and gained entry on the strength of that document. The applicant was later issued a Hong Kong document of identity on 2 January 1998 (which would expire on 2 January 2005).

6. From 20 December 1994 (that is, about 6 months after her arrival) to 2 August 1998 (a period of about 4 years 1 months), the applicant travelled between Hong Kong and the mainland for about 188 times. Apart from the first two visits, the applicant used her "Home Visit Permit" to do so. The personal particulars in the "Home Visit Permit" are correct but are different from the particulars in the records allegedly kept by the mainland authorities.

7. On 2 September 1999 (about 5 years and 2 months after her arrival), the applicant was arrested for suspected offences of using and possessing an unlawfully obtained travelling document. No prosecution was however instituted against her subsequently.

The Applicant's Allegations

8. The applicant has given correct personal particulars to the mainland authorities as well as to the Director. She was unaware of the incorrect personal particulars which were found in the records allegedly kept by the mainland authorities. She believes that those incorrect personal particulars were inserted by someone who made use of them unlawfully for the benefit of some other people, for example, to enable some other people to travel and/or emigrate.

9. In addition, on 3 November 1999, an immigration officer (the late Mr Leung Kam Kong who was killed in an arson incident widely reported in the local media) informed the applicant that:-

"any allegation of [the applicant's] entering Hong Kong illegally had been 'excluded'": para. 20, the applicant's affirmation.

Further, on 1 February 2000, the same immigration officer informed the applicant the investigation of her case was over and her case would be transferred to the Right of Abode Unit. For obvious reasons, the respondents are unable to adduce direct evidence to refute this part of the applicant's case but the alleged conversations are not admitted by them.

The Respondents' Allegations

10. After the applicant arrived Hong Kong on 2 July 1994 using her one-way permit, she applied for a permanent identity card on two occasions: the first one was on 6 February 1999 (about 4-1/2 years after her arrival) and the second was on 24 February 1999 (incomplete particulars and documentation were provided in the first application).

11. As a result, the Director made enquiries with the mainland authorities. The mainland authorities confirmed the applicant's relationship with her father, Mr Fung Pak Nam ("Fung"). However, the Director considered her claim for right of abode in Hong Kong had not having been established in accordance with para. 2(c), Schedule 1, Cap. 115 and Article 24, the Basic Law (as interpreted by the Standing Committee of the National People's Congress). Her second application was consequently refused on 26 September 2000.

12. In the affirmations filed on the respondents' behalf, the respondents put forth the following matters in support of their case in this application.

13. The respondents have not disputed Fung is the applicant's father when the matter was before the Tribunal, nor do they dispute that in this application.

14. Fung has since about September 1951 resided in Hong Kong while the applicant was born in the mainland on 8 July 1958 (not 22 August 1958 as alleged in the applicant's affirmation).

15. On about 10 February 1999 (about 4 years 8 months after the applicant's arrival in Hong Kong), the Bureau of Exit Entry Administration, Ministry of Public Security of the mainland ("the mainland bureau") informed the Director that the applicant's one-way permit was obtained unlawfully. False information was furnished by her in support of her application for a one-way permit.

16. Particulars of the false information have been given in the following documents from the mainland:-

(a)	in a letter dated 27 August 2001 to the Director, the mainland bureau alleged that the applicant was born in Nanhai and had her residence registration there. She was alleged to have made up her place of birth and supplied an unlawfully obtained resident identity card of Shishi City (石獅市) to obtain the one-way permit (which she later used to obtain permission to enter Hong Kong);
(b)	the said letter attached the primary documents regarding the false information and the unlawfully obtained identity card.

17. In a record of interview taken on 2 September 1999, the applicant was questioned about the following matters:-

(a)	the circumstances under which she obtained the one-way permit;
(b)	her family background;
(c)	the circumstances under which she obtained her mainland birth certificate which indicates she was born on 8 July 1958 in Jiujiang Hospital (九江醫院), Nanhai (南海);
(d)	why her one-way permit was issued by the Fujian Province (褔建省) when she claimed she was born in Jiujiang city, Nanhai;
(e)	why she cancelled her mainland residence registration (户口) with the Shanghai Public Security Bureau when her one-way permit was issued by Fujian;
(f)	how she obtained a notorial certificate from the Nanhai Notorial Office (公証處).

The applicant refused to answer the above questions.

18. The policy underlying when, and the manner in which, mainland residents are allowed to enter and remain in Hong Kong has also been outlined by the respondents. In short, the said policy is aimed at striking at a balance between an individual's wish to enter and remain here and the practical problems arising from the accommodation of a large population on a relatively small piece of land. Among other things, the Director is empowered by Cap. 115 to remove anyone who enters Hong Kong by misrepresentation or otherwise unlawfully. In relation to one-way permits, it is the Director's policy not to permit anyone whose one-way permit has been obtained irregularly to stay.

19. It was deposed on the Director's behalf that the following matters were taken into account before the removal order was made:-

(a)	the one-way permit used by the applicant to enter and remain in Hong Kong was obtained irregularly;
(b)	the permission for her to enter and remain in Hong Kong is null and void;
(c)	the applicant does not fall within any of the categories referred to in the latest judgment of the Court of Final Appeal regarding the right of abode litigations;
(d)	no exceptional circumstances, based on humanitarian or compassionate grounds, exist to justify the applicant's continued stay in Hong Kong.

20. In his "Summary of Facts and Reasons for Removal", the Director states that:-

"... The Mainland authorities subsequently informed that the One-way Chinese Exit Permit was obtained unlawfully by [the applicant]. The permission granted to [the applicant] to remain in Hong Kong is therefore null and void. [The applicant] is deemed to have landed in Hong Kong unlawfully. After investigation, it is satisfied that she has no legal claims on the Hong Kong Special Administrative Region".

21. The Director explains that the applicant was not prosecuted because there was insufficient evidence to establish the requisite mens rea.

22. The removal order was made on the ground that the applicant is deemed to be an illegal immigrant because her one-way permit was unlawfully obtained. It has nothing to do with whether she is related to Fung.

23. It is implicit in the way in which the applicant's case was advanced at the hearing before the Tribunal, as well as in this application, that the applicant does (and did) not dispute the propriety of the said policy promulgated by the Director, or that he has the power to remove from Hong Kong anyone whose one-way permit was irregularly obtained.

The Hearing before the Tribunal

24. The applicant claims she received the removal order on 4 June 2001. She filed a notice of appeal with the Tribunal against the removal order. Her appeal was heard over 4 days, namely, 3 September, 23 October, 9 November, 2001 and 8 March 2002. The applicant was legally represented at the appeal hearing. The Tribunal dismissed the appeal on 26 March 2002.

25. It is the applicant's case at the Tribunal hearing that the primary documents supplied by the mainland bureau which contain an incorrect place of birth of the applicant did not originate from her. The applicant has in fact filled in another form in the mainland. She called a witness Mr Kwan to testify before the Tribunal to confirm her case.

26. In view of the applicant's complaints in this application, the following part of the Tribunal hearing is relevant. She complains that (on 9 November 2001) the Tribunal tried to bind her to an answer regarding how she first applied for a "Home Visit Permit". She also complains that, having obtained an admission from her that there was a mistake in that application, the Tribunal later (on 8 March 2002) used that admission against her.

27. The Tribunal's decision was dated 8 March 2002 and given in Chinese. In short, the Tribunal found that:-

(a)	the main reason for the Director to issue the removal order was that the mainland bureau informed the Director the applicant's one-way permit was obtained unlawfully;
(b)	the applicant's main defence was that the documents supplied by the mainland authorities and produced before the Tribunal were not hers and she had never seen them before;
(c)	the Tribunal found the applicant's testimony suspicious and untruthful. For example, the Tribunal asked her why, when she applied for a "Home Visit Permit", she stated her native place (籍貫) to be Changtai (instead of Nanhai). She claimed the application form was filled in by a Mr Ho (who merely copied the information from her one-way permit). However, the Tribunal noted there was no such information on her one-way permit. The Tribunal accordingly rejected the testimony of both the applicant and her witness Mr Kwan;
(d)	applying the judgment in Tsui Siu Wai (at p. 20), the Tribunal considered the legality of documents issued by the mainland authorities to be an internal matter for the mainland;
(e)	because the applicant obtained her one-way permit, based on which she was permitted to stay in Hong Kong, by illegal means, the Director was entitled to treat the permission granted as invalid;
(f)	the appeal to the Tribunal was therefore dismissed.

Legitimate Expectation

28. The applicant contends the Director has, through conduct and/or verbal representation, given her a legitimate expectation that she would be permitted to remain in Hong Kong. The conduct and/or representation relied upon were:-

(a)	the mere fact that she was permitted to remain in Hong Kong for over 5 years. She has not specified when the period of over 5 years commenced but it appears that the period commenced from the time when she arrived here, that is, 2 July 1994;
(b)	the verbal representation of the late Mr Leung (set out under the heading "The Applicant's Allegations" above) to the effect that the investigation of the applicant's case was over and her case would be transferred to the Right of Abode Unit.

29. At least since the decision of the Court of Final Appeal in Ng Siu Tung v. Director of Immigration [2002] 1 HKLRD 561, 600-601, the existence of the doctrine of legitimate expectation in Hong Kong cannot be doubted. The Court of Final Appeal has approved (with some modification) the 4 propositions of law set out in R v. London Borough Council of Newham, exp Bibi and Al-Nashed [2001] EWCA Civ 607.

30. In short, I agree with the respondents that the matters relied upon by the applicant, whether singly or cumulatively, are insufficient to give rise to the legitimate expectation contended for. The fact that the applicant has been permitted to remain here has to be looked at together with her 2 applications for a permanent identity card (none of which has been successful). In view of those applications, the applicant could not have believed (let alone having been led to believe) that she had already been permitted to remain in Hong Kong.

31. I also agree with the respondents that the alleged verbal representation of the late Mr Leung (even if true) cannot give rise to a legitimate expectation. All that Mr Leung allegedly told the applicant was that there would not be any prosecution against her and that her case had been transferred to the Right of Abode Unit. The statement that her case has been so transferred, reasonably understood, means nothing more than that her case would be examined by that Unit. There was no promise that the applicant has been permitted to remain in Hong Kong permanently or that her status of a Hong Kong permanent resident has been accepted by the Director.

32. The applicant also relies on her ability to use the "Home Visit Permit" to enter and exit the mainland on numerous occasions. However, I do not accept that such fact can somehow be treated as conduct on the part of the Director to permit her to remain in Hong Kong. The act of the mainland authorities in allowing her to travel to and from the mainland cannot be treated as the conduct of the Director.

Irrationality on the Director's Part

33. The applicant argues that the Director acted irrationally in failing to consider the result of the investigation allegedly carried out by the late Mr Leung and his colleagues. She also argues that the Director erroneously casts doubt on her relationship with Fung when that relationship has long been proven.

34. Again, I find in the respondents' favour regarding this point. There is simply no evidence that the Director has committed the errors the applicant is relying on.

35. In relation to the complaint that the Director failed to consider the result of the investigation, the applicant relies on the simple fact that the Director's "Summary of Facts and Reasons for Removal" does not refer to that. There is no substance in this complaint. The Director's document was expressly stated to be made under para. 8(1)(b), Third Schedule, Immigration Regulations. That paragraph is concerned with the preparatory work relating to an appeal to the Tribunal under section 53A, Cap. 115 and paragraph 8(1) provides:-

"The Director of Immigration shall, as soon as practicable after notice of appeal is given, cause -

(a)	a written summary of the facts of the case and of the reasons for the removal order to be prepared and to be referred to the Tribunal; and
(b)	a copy thereof to be given to the appellant and read over to him in a language he understands if he is unable to read it for himself".

The purpose of that paragraph is to enable the Tribunal and an appellant to know the gist of the Director's case against the appellant. Paragraph 8(2) reads:-

"It shall not be necessary for the Director of Immigration to comply with sub-paragraph (1) if he is of the opinion that it is not practicable to do so having regard to the time available before the hearing of the appeal; but in any such case an oral statement of the facts of the case and of the reasons for the removal order shall be given at the hearing of the appeal".

Hence, quite clearly the provisions do not intend the Director's document to be as comprehensive as or in the nature of, say, a formal pleading in a civil action, or a judgment of the court.

36. Secondly, that the Director has concluded that no prosecution should be commenced against the applicant does not necessarily mean that he is bound to be satisfied that the applicant has the right of abode in Hong Kong. As the Director explained in the affirmation filed on his behalf, he decided against prosecuting the applicant because of evidential problems with regard to the applicant's mens rea in the context of a criminal prosecution. But this does not bar him from deciding that a removal order should be made against the applicant. Ultimately, the validity of the last-mentioned decision depends on whether proper grounds exist for making the removal order.

37. In the factual context of this application, the Director has materials which amply entitled him to conclude that a removal order should be made. The Director has enquired with the mainland authorities and has been provided by the mainland bureau with materials on which the Director was quite entitled to conclude that the applicant's one-way permit had been unlawfully obtained.

38. In relation to the alleged doubt by the Director over the relationship between the applicant and Fund, there is simply no evidence that the Director has taken that into account when making the removal order.

Error of Law

39. The applicant alleges that the Tribunal has fallen into errors of law by reason of various improprieties in the Tribunal hearing and/or the decision dated 8 March 2002. These allegations will be dealt with below under separate sub-headings.

(1) Descending Into the Arena

40. This argument arises from the Tribunal's allegedly:-

(1) alerting the Director on what material to obtain for the purpose of the appeal to the Tribunal;

(2) initiating a line of questioning against the applicant in order to discredit her.

41. In relation to the first matter, the applicant complains that the Tribunal should not have requested the Director to obtain (a) the application form allegedly filled in by the applicant when she applied for a "Home Visit Permit" and (b) clarification of the letter dated 27 August 2001 from the mainland bureau.

42. I agree with the respondents that the hearing before the Tribunal is not simply adversarial. Schedule 3, Immigration Regulations contains provisions which show that the Tribunal's role has an inquisitorial element: para. 5 (the Tribunal "... may consider any matter which appears to it to be relevant to any ground of appeal ... ") and para. 10 (the Tribunal "... may, on its own motion, ... by summons require any person to attend as witness ... or produce any documents ... which relate to any issue in the appeal ... "). Besides, there is nothing wrong for the Tribunal to ask for further materials regarding matters which were already placed before it when it was apparent those matters might have importance to the Tribunal's determination.

43. The second matter set out above under this heading is related to the applicant's admission, when asked by the Tribunal, that there was a mistake in her application for a "Home Visit Permit" (see the paragraphs under "The Hearing before the Tribunal"). The Tribunal asked the applicant about that during the hearing on 9 November 2001. The questioning was short in duration and the questions were put in a neutral way. When the hearing resumed on 8 March 2002, counsel for the applicant himself questioned the applicant in detail about this aspect. The applicant was also cross-examined about it. Both parties addressed the Tribunal about this in their final submissions. The applicable law has been set out by the court of appeal in HKSAR v. Mohammad Jahangir [1998] 1 HKC 455. Whether the questioning of a party by a tribunal is permissible depends on the circumstances. In the above circumstances, I do not find there is any merit in this complaint.

(2) Abrogation from the Duty to Find on Facts

44. The applicant contends that the Tribunal should not have accepted the accusations of the mainland bureau which in essence was that false information had been provided by the applicant. I do not consider this contention to have substance.

45. At the hearing before the Tribunal, the applicant's case was in gist that she was not responsible for the false information given to the mainland authorities: see, for example, the final submissions of counsel for the applicant toward the end of that hearing. It was further submitted on her behalf that the false information was provided to the mainland authorities by someone else. In such circumstances, the Tribunal cannot be criticised for concluding that false information had been given to the mainland authorities. In fact, in view of the materials placed before the Tribunal (and the lack of any challenge by the applicant as to falsity (as opposed to whether the falsity was procured by her)), there was ample basis for the Tribunal to so conclude.

(3) Misunderstanding the Law

46. The applicant complains that the Tribunal misunderstood the judgment in Tsui Siu Wai. The relevant part of the judgment (quoted in the Form 86A) is:-

"The decision that a particular document issued by the Chinese authority has been lawfully or unlawfully issued is certainly an internal matter for China. I would also agree that it would be against this rule for Hong Kong authority or even the Hong Kong Court to make a determination in place of that which is to be made by the Chinese authority" (p. 20 thereof).

47. The applicant has not in the Form 86A or her skeleton arguments given any reasons in support of this complaint.

48. On a proper reading of the Tribunal's decision, the Tribunal has in essence undertaken a fact-finding exercise in disbelieving the applicant's case and concluding that the applicant's one-way permit was obtained (by her) unlawfully. As explained under "Abrogation from the Duty to Find on Facts" and "Misunderstanding the Applicant's Case", the Tribunal was quite entitled to do so with regard to the issue of unlawfulness. I doubt if the Tribunal in fact needed to rely on the judgment in Tsui Siu Wai given the facts of this application. Assuming that it needed to do so, I agree with the respondents the Tribunal has not misunderstood the law, which, apart from having been set out in Tsui Siu Wai, can also be found in the following decisions:-

(a)	Li Fu Shan v. The Director of Immigration, HCAL 813/2001 (7 November 2002), para. 78-81 thereof;
(b)	Lui Hau Man v. Director of Immigration, HCAL 134/2002 (21 January 2003), para. 24.

49. By reason of the above matters, I do not find this complaint to be valid.

(4) Misunderstanding the Applicant's Case

50. This complaint also has no substance. The defence raised by the applicant has expressly been set out in the Tribunal's decision. The Tribunal found against her after having assessed the credibility of the applicant and her witness. The factual issue between the applicant and the Director was whether the false information was provided by the applicant. The applicant's case is in brief that it was not. Having rejected this, it was open to the Tribunal to find in the Director regarding this issue.

(5) Error in Assessing the Testimony of the Applicant's Witness

51. The applicant asserted in the Form 86A that the Tribunal has mistakenly treated the testimony of her witness, Mr Kwan, as hers.

52. Mr Kwan has testified in essence along the same line as the applicant.

53. The Tribunal may not have in its decision dated 8 March 2002 given reasons for disbelieving Mr Kwan, but that is different from the applicant's assertion that the Tribunal has mistakenly equated Mr Kwan's testimony as the applicant's.

(6) Depriving the Applicant's Right to Challenge Documents

54. In view of the matters set out, and the conclusion reached, under "Abrogation from the Duty to Find on Facts". "Misunderstanding the Law" and "Misunderstanding the Applicant's Case", I reject this complaint for having no merit.

Irrationality on the Tribunal's Part

55. Insofar as the applicant is asserting that the Tribunal has acted irrationally in erroneously treating the testimony of Mr Kwan as that of the applicant, I repeat what has been said under "Abrogation from the Duty to Find on Facts", "Misunderstanding the Applicant's Case" and "Error in Assessing the Testimony of the Applicant's Witness".

56. This assertion is accordingly rejected.

Natural Justice

57. For the reasons given under "Depriving the Applicant's Right to Challenge Documents", I also reject this complaint.

Basic Law

58. The contention that the Tribunal has undermined the independence of the Hong Kong Judiciary is misconceived. The Tribunal is not part of the Judiciary. The applicant has not complained that the Tribunal has contravened the Basic Law in other manners and so I will not try to guess whether she has other contentions relating to alleged contravention of the Basic Law than that now appearing in the Form 86A.

Other Matters

59. At the beginning of the judicial review hearing, the applicant applied for leave to file and use an affirmation of a Mr Poon Sung ("Poon") dated 30 August 2003. The respondents opposed the application.

60. Poon stated in his affirmation in short he personal knows that Fung arrived and settled in Hong Kong since early 1950.

61. This affirmation was to support the applicant's intended argument, set out only in her skeleton argument but not the Form 86A, that Fung, being a Chinese citizen who entered Hong Kong in 1950 and has since ordinarily resided here, should become a permanent resident by the end of 1957.

62. RHC Ord 53 r 6(1) provides:-

"...no grounds shall be relied upon or any relief sought at the hearing except the grounds and relief set out in the statement".

See also Hong Kong Civil Procedure 2004, para. 53/14/51. Ord 53 r 6(2) confers on the court the power to "allow the applicant to amend his statement, whether by specifying different or additional grounds or relief or otherwise".

63. As stated above, the respondents oppose the applicant's application to file and use the said affirmation. Further, the respondents oppose the intended reliance on the said new ground.

64. At the hearing of this application, the applicant was expressly asked whether she would apply for leave to amend the grounds set out in the Form 86A if the court should find that the matters set out under this heading fall outside the grounds in the Form 86A. The applicant indicated that she would not.

65. The grounds relied upon by the applicant in the Form 86A have been summarised under "Introduction". I agree with the respondents that the matters set out under this heading do not fall within those grounds.

66. For the above reasons, the applicant should not be allowed to rely on the new ground. Because Poon's affirmation is not otherwise relevant to the other issues in this application, I refused the application for leave to file and use the new affirmation.

67. At one stage of the hearing, the applicant also applied to file and use an affirmation of a Mr Ho Hau Hung. After further consideration, she abandoned that application.

Conclusion

68. This application is refused.

Costs

69. There is no apparent reason to depart from the usual rule that costs should follow the event. Pursuant to Ord 42 r 5B(6), there will be a costs order nisi that the costs of this application (including any reserved costs) be paid by the applicant to the respondents to be taxed if not agreed.