CHEUNG CHEONG v. ATTORNEY GENERAL

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. The Attorney General appeals against a judgment of Power, J. granting an application by the 1st respondent Immigrant for the review of a removal order made against him by the 2nd respondent Immigration Tribunal. The case turns upon the answer to the question whether the Immigrant had "at any time been ordinarily resident in Hong Kong for a continuous period of not less than seven years". Only if he could prove that he had been so resident would he be a "Chinese resident" within the meaning of the Immigration Ordinance and be exempt from the making of a removal order by reason of s.19(2), for it was conceded that when he last entered Hong Kong (in July or August 1984) he did so without the permission of an Immigration Officer.

2. So much is certain, but it appears that that was neither the first time he had come to Hong Kong nor the first time he had entered the territory without the permission of an Immigration Officer: he came originally on 3rd October 1965. Shortly thereafter he applied for a Hong Kong identity card, and one was issued to him on 17th March 1966.

3. Some uncertainty as to the early history arises from the fact that no oral evidence was called before the Tribunal. After he was stopped by the police on 19th September 1984 and found to be unable to produce a document of identity, the Immigrant made two statemebts to Immigration Officers and one to an auxiliary police constable. Of these statements the judge said:

(Mr. Strawbridge then appeared for the Attorney General). The judge further said:

(The 'Explanatory Statement' was the statement which had, pursuant to the statute, been annexed to the Notice of Removal Order and Right of Appeal served by the Director of Immigration on the Immigrant.) As it seems to me, the effect of the two passages just cited was that, whilst counsel for the Attorney General did not accept for all purposes that the two statements to the Immigration Officers were true, both sides were prepared to agree that the appeal to the Tribunal should be decided upon the assumption that those statements were true. We are entitled - and, indeed, bound - to proceed upon that basis, unsatisfactory as it is.

4. Again, it is perhaps surprising that, without conceding that the issue of the identity card in 1966 by the Registrar of Persons (who was the Director of Immigration acting in another capacity) constituted permission to remain in Hong Kong for the purposes of the Immigration Ordinance, counsel for the Attorney General has expressly refrained from contending that the Immigrant's residence in Hong Kong following his receipt of an identity card continued to be illegal: all that counsel argued was that such residence was not necessarily "ordinary residence" and that the burden of showing that it was "ordinary residence" lay on the Immigrant.

5. Having been resident in Hong Kong for two years and nine months since obtaining an identity card the Immigrant left in December 1968 aboard a fishing vessel without complying with the appropriate exit procedures. His statements were to the effect that he went on a fishing expedition. The vessel was intercepted by Chinese officials and taken to a Chinese port. The Immigrant did not admit that the vessel had wrongfully entered Chinese waters, but that is what the Chinese officials alleged and he admitted that it might have been true. We must proceed on the assumption that the arrest was lawful and not piracy.

6. The Immigrant was later sentenced to five years' imprisonment by the Chinese authorities and was in fact in detention for that period.

7. Upon his release the Immigrant did not attempt to return to Hong Kong. His explanation was that the Chinese officials had confiscated his Hong Kong identity card and that, "since the situation at the border was tense", he dared not return to Hong Kong immediately. Instead he went back to his native village and lived there with his wife and children for over ten years. In July or August 1984, international relations having improved, he again crossed the border illegally. Once back in Hong Kong he quickly applied for an identity card to replace that which had been confiscated, although he falsely told the Commissioner for Registration that he had lost his old card. It was before a new card had been issued that he was stopped when not carrying any identification papers.

8. In the Notice of Appeal against Removal Order the solicitor for the Immigrant alleged that the Immigrant had a right to land in Hong Kong in 1984 by reason of his being "a Chinese resident" and stated it as a fact that the Immigrant had "been in Hong Kong continuously for a period of not less than seven years prior to his detention by the Immigration Department". That was clearly not a statement which the Tribunal could accept as true in the light of the admitted facts. The Notice went on to allege that the first statement admitting that he had been absent from Hong Kong and had returned illegally in 1984 was made as a result of threats and inducements made by Immigration Officers. However, the "Explanatory Statement" annexed to the Notice of Removal Order and Right of Appeal contained similar assertions concerning the imprisonment in China and they were part of the basis upon which the case for the Immigrant was presented to Power, J. It is not open to the Immigrant to argue his case before this court on a different basis.

9. What was argued on his behalf was that, on the facts thus admitted, the Tribunal's conclusion that the Immigrant had not established that he was a "Chinese resident" for the purposes of the Immigration Ordinance was unjustifiable. The case turned principally upon his showing that he was a "Chinese resident" of Hong Kong during the five years he was imprisoned in China. However, the argument of Mr. Chan as to the five years rested initially upon the legality of the Immigrant's stay in Hong Kong during the preceding two years and nine months, for the argument is to the effect that, if he was ordinarily resident in Hong Kong before leaving on the fishing expedition, it would require evidence that he had then changed his place of ordinary residence, otherwise it should be presumed that his existing status continued: there was no such evidence: his residence in China during the next five years was involuntary and did not alter his status, for "the residence must be voluntarily adopted" (Reg. v Barnet London Borough Council ex parte Shah 1983 2 A C. 309,344).

10. Mr. Mills-Owens submits that the argument never gets off the ground because it is not shown that the Immigrant was "ordinarily resident " in Hong Kong prior to his departure in December 1968. We do not know what the Tribunal's finding was as to the period during which he actually resided in the territory after the issue of his identity card, but in my view, unless during that period his residence continued to be illegal (and that was expressly not contended), it must have been open to the Tribunal to find that it was a period of "ordinary residence". If he was not then ordinarily resident in Hong Kong he could not, even on his own argument, have been ordinarily resident in Hong Kong during the period of imprisonment in China, and, in the absence of any clear indication to the contrary, we ought then to assume in his favour that the Tribunal was satisfied that he was ordinarily resident in Hong Kong at the time of his departure.

11. We must, therefore, assume it to have been in relation to the period of imprisonment that the Tribunal was not satisfied, and it was upon that narrow point that the case was argued below. The issue then becomes one of intention: if the intention of the Immigrant was to return to Hong Kong as soon as the force majeure was removed, he could fairly contend that his ordinary residence in Hong Kong had not been interrupted. It had, however, to be a settled intention to return and not merely a hope of returning. Until the expiration of the first four years and three months of his incarceration he would, of course, have had no right to return to Hong Kong, for he could not, on any view, have been a "Chinese resident". What was his intention thereafter ? It seems to me there was very clear evidence that he did not intend to return, because he did not, within a reasonable time after his release, make any attempt to return: he went back to his native village and stayed there for ten years. At least that was evidence which would support a finding that the Immigrant was not ordinarily resident in Hong Kong during the five years he spent in prison in China, and consequently I respectfully differ from the judge and would hold that there was no error on the face of the record which would justify orders of certiorari and mandamus directed to the Tribunal. I would, therefore, allow the appeal.

12. There is a further point which was argued by junior counsel for the Attorney General and which I ought to mention. As I understand him, he submits that the judge was wrong to order the Tribunal

this was a case where the Tribunal had received all the evidence that the parties had sought to adduce and the question for the court had been whether the Tribunal's decision could be allowed to stand: on the assumption that error was disclosed, the proper order was to remit the case for the Tribunal to enter judgment in accordance with the opinion of the court, and the order in fact made had led to misunderstanding, for the Tribunal had proceeded to hear further evidence. In the present case the order in fact made may possibly have been more advantageous to the Appellant, but I agree that the order was not as clear as it should have been. All that remained to be done - and, I suspect, all that the judge intended - was that the Tribunal rescind the removal order pursuant to s.53D(1)(b), it being the court's opinion

In view of the decision which I have reached I think that no further action by the Tribunal is required or possible.

Silke, J.A.:

13. I am in respectful agreement with the conclusions reached by my Lord, the Vice-President, and the reasoning therefor.

14. I would only wish to add this. The right of appeal conferred by Section 53A of the Immigration Ordinance Cap.115 is a restricted one. The burden of proof is placed squarely upon an appellant. That appellant must lodge his Notice of Appeal setting out the grounds upon which he relies within 24 hours of his being informed of a removal order having been made.

15. In these circumstances it is necessary where, under the provisions of Section 53D, a hearing takes place, that there be evidence placed before the Tribunal and by that I mean, in nearly every case, oral evidence. That was not done here and it is from this that the difficulties, to which my lord Vice-President has referred, stem.

16. Second, the Tribunal is enjoined by Section 53D(1)(a) to find facts, for it determines the appeal

It would seem that the practice has grown up of using a proforma "Reasons for Decision" wherein such facts as are found by the Tribunal are not set out. For myself, I would have thought it to be the duty of the Tribunal to, at least shortly, set out the actual facts which it finds and upon which it bases its determination. These matters affect the liberty of the individual and a man is entitled to know upon what basis the Tribunal finds against him.

17. I, too, would allow the appeal.

Clough, J.A.:

18. I agree with both the judgments which have just been delivered and have nothing to add.

21st October 1986