LAU FONG v. THE DIRECTOR OF IMMIGRATION

CACV 287/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 287 OF 2000

(ON APPEAL FROM HCAL NO. 128 OF 1999)

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J U D G M E N T

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Hon Rogers VP:

1. This is an appeal from a judgment of Hartmann J given on 29 June 2000 whereby he dismissed the applicant's application for judicial review in respect of three decisions made by the Director of Immigration in October 1999. This appeal has taken some time to come on for hearing primarily due to the fact that the case of Gurung Kesh Bahadur v Director of Immigration [2002] 2 HKLRD 775 was due to be heard in the Court of Final Appeal and the parties considered that it was appropriate to await the decision in that case.

Background

2. The applicant was born in 1966 in the Mainland and remained there, seemingly, until the early 1990s. As recorded in the judgment below, the applicant, apparently, met a Mr Ng Kam Chuen, who was a Hong Kong permanent resident, in Shenzhen in or about late 1991. In about August 1992 the applicant discovered that she was expecting Mr Ng's child. This naturally caused some complication as Mr Ng was married with children. In what would seem might have been an effort by Mr Ng to have the applicant come to Hong Kong, he arranged for the applicant to fly to Bangladesh in January 1993 where she was introduced to a Mr Leung Wai Ming. It appears that she may have gone through a form of marriage ceremony in Bangladesh with Mr Leung. At any rate she returned to Hong Kong very shortly afterwards, on 16 January 1993, using the name Chakma Uasha and a Bangladesh passport. After various investigations were carried out charges were brought against the applicant for a number of offences. The statement of facts makes clear that, amongst other things, the passport was forged.

3. The applicant was sentenced to nine months imprisonment and was repatriated to the Mainland at the end of January 1995. However, she returned to Hong Kong on 23 December 1995 in possession of a one-way Chinese exit permit, which had been issued by the Bureau of Exit Entry Administration, Ministry of Public Security of the Mainland on 21 November 1995. Initially, she was permitted to remain in Hong Kong for 12 months. In January 1996, she applied for a Hong Kong Identity Card on the basis of the one-way permit. At about the same time she applied for a Document of Identity. Ever since she arrived in Hong Kong in December 1995 the applicant has always been under limits of stay; the last limit of stay gave her permission to remain until 8 June 2005.

4. The applicant was interviewed by an Immigration Officer in the course of which she claimed to have married Leung Wai Ming in Dalian in April 1990. That, of course, could not be reconciled with the history of her marriage, sham or otherwise, to Mr Leung in Bangladesh. However, investigations were made in respect of Mr Leung and it was discovered that he could not have been in Dalian at the time of the supposed marriage in April 1990 because he had not left Hong Kong over the relevant period.

5. Consequent upon these discoveries the matter was taken up with the authorities in the Mainland in September 1996. It is not clear what happened in the meantime but the reply appears to have been by a letter of 28 June 1999 in which it was stated that the one-way permit had been obtained in November 1995 by fraud. What is a little more curious is that there was an enclosure to that letter from the Dalian Public Security Bureau which confirmed that the applicant and Leung Wai Ming had made an application for registration of their marriage at the Chinese-Foreign Marriage Registration Office of the Department of Civil Affairs. That application, however, had been made on 11 April 1992 and not 1990. It had been approved and a marriage certificate duly issued. It is thus fair to say that on the face of the events which had happened, the documents which had been produced and the records of interviews with the applicant, there were a number of inconsistencies which called for explanation.

6. In the intervening time it appears that the applicant had returned to the Mainland on a number of occasions. This court was informed that the applicant is at present in the Mainland. There were apparently well-justified reasons why that should be so, nevertheless, that fact and the reasons therefor are not relevant for the purposes of this case. What is relevant to the present proceedings is that the applicant left Hong Kong on 5 September 1999 and returned via Lo Wu on 4 October 1999. On that latter occasion she was apprehended by officers of the Immigration Department and was refused permission to land. She was served with a Refusal Notice stating that the refusal of permission to land had been made under section 11 of the Immigration Ordinance ("the Ordinance") and that she had been detained under section 32(1) of the Ordinance. On 6 October she was served with a document headed "Authorisation for Detention under Section 32(1)(a)" stating that whereas she was a person who was to be removed from Hong Kong under the provisions of section 18, using the powers under section 32(1)(a) her further detention was authorised for a period of not more than two months. These were the first two decisions which were the subject of the judicial review application, the third decision which was sought to be challenged was the decision of the Director on 6 October 1999 to remove the applicant from Hong Kong under the provisions of section 24 of the Immigration Ordinance.

The proceedings in the court below

7. In the court below the case on behalf of the Director of Immigration was founded, in the first place, upon the proposition that by leaving Hong Kong on 5 September 1999 any permission which the applicant had to remain in Hong Kong had expired on her departure, in accordance with section 11(10) of the Ordinance. It was also argued that because the permission to remain in Hong Kong until 2005 had been obtained by fraud and, in particular, by the use of the fraudulently obtained one-way permit that permission to remain in Hong Kong was null and void and vitiated.

8. The judgment in the court below was based almost entirely upon what might conveniently be called the section 11(10) argument. The passage in the judgment below which related to the alternative argument was at page 25 where it was stated:

"On the more general basis, the permission granted to the Applicant in November 1995 to land in Hong Kong was vitiated by the deceptions employed to secure her entry and she had to be treated as one who had landed unlawfully; in short, as an illegal immigrant. The Director's power to remove an illegal immigrant under sections 18 and 19 of the Ordinance are administrative powers rather than judicial."

9. Since the decision in the court below and, as already stated, this appeal was brought, judgment has been given by the Court of Final Appeal in the Gurung Kesh Bahadur case. That makes clear that, since the coming into force of the Basic Law, the section 11(10) argument is no longer applicable in respect of residents, whether permanent or non-permanent, who are exercising the right to travel.

10. Following the Court of Final Appeal's decision in the Gurung Kesh Bahadur case the applicant's solicitors wrote to the Department of Justice, acting on behalf of the Director, inviting a "settlement" of the matter. That suggestion was rejected and the alternative argument which was alluded to by Hartmann J in the paragraph quoted above was put forward. The letter went on to say that in those circumstances the applicant's position differed from that in the Gurung Kesh Bahadur case. It was also stated, however, "This letter should not be taken as conceding expressly or impliedly that the Court of Final Appeal has correctly decided the scope and effect of Article 31." Such an approach to a decision of the Court of Final Appeal, coming as it does from the Department of Justice, scarcely exhibits the respect which should be accorded to a determination of that court consistent with a proper understanding of the rule of law. Nevertheless, in this court no argument has been put forward that that decision was in any way in error.

11. The argument on behalf of the Director was based upon the premise that the use of an invalid document to gain permission to land makes any permission granted null and void. Mr Marshall SC, on behalf of the Director, relied on a number of decisions, in particular, the unreported decision of Patrick Chan J (as he then was) in Tsui Siu Wai v Director of Immigration of 6 December 1994. However, that decision was premised upon the section 11(10) argument and turned upon whether the subsequent refusal of permission to enter was reasonable. Another decision sought to be relied upon was the decision of Keith J in Kong Sau Mei v Director of Immigration [1999] 1 HKC 174. That, however, was a case where removal orders had been issued under section 19 of the Ordinance and there had been appeals against the removal orders to the Immigration Tribunal. Hence, Keith J's analysis of the situation at page 185 B-D of the judgment was made in a context where a removal order had been made under section 19 of the Ordinance and the persons against whom it had been made had been given an opportunity to challenge it.

12. As was stated by Lord Bridge in the case of Reg. v Home Secretary, Ex p. Khawaja [1984] 1 AC 74 at 117-8 in relation to the United Kingdom, it could not be suggested that a person who is not otherwise entitled to be in Hong Kong should be allowed to remain here if the original permission to remain were obtained by fraud. It is, however, to the provisions of the Ordinance that regard should be had in the first instance, since there are considerable difficulties in transporting concepts such as "void" and "voidable" from the field of contract into public law. As explained by Lord Bridge at page 122 of the report and by Lord Templeman at page 128, a person should not been deprived of a status to which he has been accorded, still less should he be imprisoned without trial, as in effect the second order challenged on this application accomplishes, unless the circumstances justifying that are clearly established. It is the method of establishing the existence of those circumstances which is important in the present case.

13. The permission to remain in Hong Kong until June 2005 was one granted under section 11(1) of the Ordinance. Section 11(6) gives the Chief Executive power to curtail a limit of stay which is in force. Sections 19(1)(b)(ii) and (iia) give the Director adequate power to make removal orders in circumstances such as are said to apply in this case. If orders were made under the powers under section 11(6) or section 19 there would be appropriate procedures for the applicant to challenge them. It is clearly the Director of Immigration's case that any such challenge would fail. Nevertheless, in my view, the applicant was entitled to be treated as a person who had been permitted, albeit for a limited time, to remain in Hong Kong and therefore was a non-permanent resident. Whether she had been stopped at Lo Wu on returning to Hong Kong in exercising the right of travel or had been apprehended whilst in Hong Kong, in my view, matters not. She was entitled to the protection of the law and, specifically, to the rights of a non-permanent resident unless and until she no longer had that status. The simple procedure provided in the Ordinance was not followed. After the decision in Gurung Kesh Bahadur the law is clear that a non-permanent resident is entitled to travel and section 11(10) does not operate to take away an existing permission to stay. Hence the procedure of section 11(6) or section 19 should have been followed and reliance could no longer be made on the fact that the applicant had departed Hong Kong and was attempting to return.

14. The Refusal Notice, which is the first decision challenged, was not made consequent upon a section 19 order. The applicant was entitled to have been treated as a non-permanent resident unless and until it was shown otherwise. In those circumstances a simple Refusal Notice based on a refusal of permission to land under section 11 was insufficient. The other two decisions challenged were based, and because of the wording of sections 24 and 32 could only have been based, upon the exercise of the power under section 18 of the Ordinance to remove a person who had been refused permission to land. They, too, therefore, cannot be permitted to stand.

15. In my view the applicant is entitled to the orders sought. It is, of course, appreciated that nothing would prevent the Director of Immigration from exercising the powers whether under section 19 of the Ordinance or otherwise if it is so thought fit, leaving it to the applicant to take whatever steps is open to her. I would make an order nisi that the costs of this appeal and below be to the applicant.

Hon Woo JA:

16. I have had the advantage of reading the judgment of the Vice-President in draft, and I agree entirely with it.

17. I merely wish to make one comment. I take great exception to the statement contained in the letter of the Department of Justice, referred to in para 10 of the Vice-President's judgment, that "This letter should not be taken as conceding expressly or impliedly that the Court of Final Appeal has correctly decided the scope and effect of Article 31". Mr Marshall SC defended the statement by intimating that the decision could be challenged by a reference to the Standing Committee of the National People's Congress (under article 158 of the Basic Law), but he was not saying that such a reference had been or would be made. While it is our law that such a challenge could be made, insofar as no such challenge has been or is in the course of being launched, it lies ill in the mouth of anyone in the legal field in Hong Kong to state openly that he does not accept the decision as a final decision on the subject.

18. I would allow the appeal and make the order nisi as to costs as suggested by the Vice-President.

Hon Sakhrani J:

19. I agree.