ZHAO HONG CORA v. REGISTRATION OF PERSONS TRIBUNAL

HCAL 1322/2025

[2025] HKCFI 5276

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1322 OF 2025

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REASONS FOR DECISION

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A.  Introduction

1.  This is the kind of case that perhaps Elvis Presley had in mind when he made a margin note in his Bible that, “Truth is like the sun; you can shut it out for a time, but it ain’t going away”.

2.  The case involves a woman who first landed in Hong Kong, using a ‘one-way permit’ issued on the basis of enabling her reunion with her Hong Kong permanent resident husband, and who necessarily represented to the Immigration Department (“ImmD”) that she continued to be married to the husband. However, it was subsequently discovered that at the time of her first landing in Hong Kong the marriage was no longer subsisting, because she and the husband had divorced some years prior to that.

3.  By this application, the Applicant seeks to challenge the Determination (“Determination”) made by the Registration of Persons Tribunal (“Tribunal”), by which the Tribunal dismissed the Applicant’s appeals against the refusals of the Commissioner of her applications for (1) verification of eligibility for permanent identity card (“VEPIC”), and (2) a Hong Kong permanent identity card (“HKPIC”).

4.  By her Form 86 dated 10 June 2025, the Applicant seeks to quash the Determination and to have the matter remitted to the Tribunal.

5.  I gave directions on 12 June 2025 for the filing of evidence and a rolled-up hearing, fixed for 5 November 2025. Pursuant to the directions, the affirmations of (1) Chan Yim Hung (“Chan Affirmation”) and (2) Lam Chun To (“Lam Affirmation”) were filed on behalf of the Commissioner. The Applicant had, of course, also filed evidence.

6.  At the rolled-up hearing: Mr Ernest Ng and Mr Christopher Gin of Counsel represented the Applicant; and Mr Albert N B Wong of Counsel and Ms Karen Ngai, Senior Government Counsel, represented the Commissioner. I had previously granted the Tribunal’s request to be excused from attending the hearing.

7.  At the end of the hearing, I dismissed the application for leave to apply for judicial review and reserved my reasons for the decision to be handed down a few days later. These are my Reasons for Decision.

B.  Background Facts

B.1  Applicant’s Entry into Hong Kong

8.  The Applicant is a divorcee who was born on 12 March 1977, in the Mainland. Since 21 February 2006, the Applicant has been living and working in Hong Kong with her son (“Son”).

9.  In or about 1998, the Applicant met Mr Ho Chi Shuen (“Mr Ho”), a Hong Kong permanent resident (“HKPR”) with a right of abode (“ROA”) in Hong Kong and the holder of a HKPIC.

10.  On 9 January 2001, the Applicant and Mr Ho registered their marriage in Shandong.

11.  On 19 March 2001, the Applicant applied with the assistance of Mr Ho for a Permit for Proceeding to Hong Kong and Macao – commonly known as a ‘one-way permit’ (“OWP”). An OWP is issued under a scheme agreed between the Hong Kong and Mainland authorities to allow for the orderly but limited entry of Mainland residents into Hong Kong for the purpose of family unification.

12.  On 20 June 2001, the Applicant gave birth to their Son.

13.  However, shortly after that, in or around July 2001, the Applicant and Mr Ho separated. This was quickly followed by the commencement of divorce proceedings in Shenzhen, which resulted in a divorce judgment dated 16 July 2002, handed down by the Shenzhen Luohu People’s Court. The Applicant was granted custody of the Son.

14.  On 19 January 2006, OWP no. Q00128991 was issued to the Applicant by the Bureau of Exit-Entry Administration of the Public Security Bureau of the People’s Republic of China (“Mainland Authority”). The Applicant had concealed from the Mainland Authority the fact of her divorce, which fact would have precluded her eligibility for the OWP.

15.  On 21 February 2006, the Applicant entered Hong Kong using the OWP. At that time, the Applicant had no right of abode, and was not able to land in Hong Kong without the permission of an immigration officer or immigration assistant. On the basis of the OWP, the Immigration Officer granted her permission under section 11 of the Immigration Ordinance Cap 115 (“IO”) to land in and remain in Hong Kong lawfully for 7 years.

16.  On 23 February 2006, the Applicant applied for a Hong Kong Identity Card (“HKIC”) and Document of Identity for Visa Purposes (“D/I”). In her HKIC application, the Applicant stated and declared that she was married (being a “Mrs”) and that her “spouse” was Mr Ho. She was issued with a HKIC on the same day. The Applicant must, however, have known that her statement and declaration were untrue, because she had already been divorced from Mr Ho for 3½ years.

17.  On 28 February 2006, she was further issued with a D/I, valid until 28 February 2013.

18.  On 12 March 2012, the Applicant applied for a D/I and an extension of stay. She was issued with a new D/I, and was granted a temporary extension of stay on 29 April 2013 until 15 April 2020. ImmD expressly stated in writing on 29 April 2013 that the extension of stay could not be understood as the Applicant’s fulfilment of the policy criteria regarding the approval of extension of stay and that the ImmD reserved the rights to refuse any further extension of stay or to nullify any permission given.

B.2  Investigations into Applicant’s OWP

19.  On 20 October 2010, the Applicant applied for a Certificate of Absence of Marriage Record, for the purpose of marriage in Mainland China. In her application, she claimed to be divorced and to have never registered a marriage in Hong Kong.

20.  Subsequently, upon investigation, ImmD noticed that the Applicant had settled in Hong Kong on the strength of the OWP after her marriage with Mr Ho had been dissolved in Mainland China on 16 July 2002.

21.  In view of the above, the ImmD suspected that the Applicant had used and was in possession of a false or unlawfully obtained OWP and invited the Shandong Provincial Public Security Department (“SPPSD”) to comment on the Applicant’s application for OWP.

22.  The SPPSD replied to the ImmD by two letters dated 28 September 2012 and 29 February 2016.

(1)  In the letter dated 28 September 2012 (“1^st SPPSD Letter”), the SPPSD stated that:

⋯經查，趙紅⋯2001年1月19日與香港居民何志旋在山東省淄博市登記結婚，2001年3月19日以夫妻團聚為由向公安機關申請赴港定居。經審核，趙紅符合赴港定居條件（趙紅在申請《前往港澳通行証》時提交了與何志旋的結婚文件），我局於2001年6月1日批准其赴港定居。2006年1 月，趙紅達到赴港定居放行分數線，我局於當年1月19日為其簽發了Q00128991 號前往港澳通行証.經調查，趙紅在等候放行期間，未提交與何志旋的離婚文件，隱瞞了2002年7 月與何志旋離婚的事實。因當時審批與放行分兩階段辦理，且內地居民赴港澳定居審批工作尚未建立與港澳相關部門的核查及審批前面見港澳方配偶的機制，我局2006年1月放行時未發現趙紅已與何志旋離婚的情況。

(Offered English translation: … Upon investigation, Zhao Hong … registered marriage with Hong Kong resident Ho Chi Sheun in Zibo City, Shandong Province on 19 January 2001. On 19 March 2001, she applied to the Public Security authorities for settlement in Hong Kong on the ground of spousal reunion. After review, Zhao Hong met the conditions for settlement in Hong Kong (Zhao Hong submitted marriage documents with Ho Chi Sheun when applying for the OWP), and our Bureau approved her settlement in Hong Kong on 1 June 2001. In January 2006, Zhao Hong reached the qualifying score for Hong Kong settlement and our Bureau issued her OWP number Q00128991 on 19 January of that year. Investigation revealed that while waiting for clearance, Zhao Hong did not submit divorce documents regarding Ho, concealing the fact that they had divorced in July 2002. Because at that time the approval and clearance were processed in two separate stages, and the approval mechanism for mainland residents settling in Hong Kong and Macao had not yet established a mechanism to meet with Hong Kong/Macao spouses before approval, our bureau did not discover that Zhao Hong had already divorced Ho when issuing the clearance in January 2006.)

(2)  In the letter dated 29 February 2016 (“2^nd SPPSD Letter”), the SPPSD further stated that:

... 趙紅在等候赴港定居（夫妻團聚）期間，深圳市羅湖區人民法院判決其與港方配偶離婚，趙紅隱瞞離婚情況、喪失赴港定居條件的事實清楚、證據確鑿，建議貴處按照香港法律依法處理。

(Offered English translation: … During the period when Zhao Hong was waiting for permanent settlement in Hong Kong (for spousal reunion), the Court of Luohu (Shenzhen) granted a judgment for her divorce. The fact that Zhao Hong concealed her divorce and lost her eligibility for permanent settlement in Hong Kong is clear, and the evidence is conclusive. We recommend your office handles this in accordance with Hong Kong law.)

23.  The evidence filed in these proceedings, in particular §§9-28 of the Lam Affirmation, shows that further correspondence ensued (which had not been placed before the Tribunal and/or were not previously disclosed to the Applicant):

(1)  On 5 May 2016, ImmD wrote to SPPSD seeking confirmation on the legality of the OWP of the Applicant and the Son.

(2)  On 10 May 2016, SPPSD informed ImmD that in order to comment meaningfully on the lawfulness of the Applicant’s OWP, they would have to be able to contact the Applicant.

(3)  There followed further correspondence and communications between ImmD and the SPPSD, including another request dated 2 August 2017 for SPPSD to (a) comment on the lawfulness of the OWP issued to the Applicant and the Son and (b) consider cancelling the OWP of the Applicant and Son, if SPPSD considered the OWP to be “unlawful” (original text: “不合法”).

(4)  On 9 August 2017, SPPSD stated that owing to the complicated nature of the case, including the position of the Son, SSPSD was conducting in-depth legal research and would reply to ImmD as soon as possible (original text: “對趙紅問題，我局一直很重視：前期已進行相關調查論證工作。鑒於趙紅特別是涉及何佳宦問題的複雜性，最近我局正在與法院等部門就相關法律法規和政策問題作深入研究，擬根據研究情況再作出處理決定並函告貴處。”)

(5)  This resulted in ImmD repeating its request for clarification on the legality of the Applicant’s OWP on 19 March 2018.

(6)  On 3 April 2018, SSPSD informed ImmD that under PRC law, the Applicant had to be formally notified by Mainland Authorities before the cancellation of her OWP and sought the assistance of ImmD in serving a formal notice on the Applicant (original text: “經與有關部門研究，我局報取消趙紅的赴港定居資格，但按照內地有關法規及政策規定，在作出取消其定居資格決定前須履行告知義務。為此，我局曾多次聯繫趙紅，但一直未果。經查出入境記錄，趙紅自2016年3月6日進入香港後未再返回内地。故，請貴處協助我局將《告知書》一式兩份送達趙紅並請其在《告知書》上簽字，之後將其中一份退我局。”)

(7)  There was then further correspondence between ImmD and SPPSD by which ImmD replied that it was unable to effect service on behalf of SPPSD. ImmD provided the Applicant's address to SPPSD. However, SPPSD never served the notice on the Applicant. On 31 May 2019, SPPSD informed ImmD that as ImmD was unable to assist SPPSD in serving the formal notice on the Applicant, ImmD should deal with the issue under Hong Kong law.

B.3  Decisions of the Commissioner

24.  By two letters dated 10 September 2014, the ImmD informed the Applicant that the Applicant was issued with the OWP in January 2006 when she and Mr Ho had already divorced in 2002, so the Applicant was not qualified to come to Hong Kong for settlement. The ImmD informed the Applicant that it considered that the OWP was obtained unlawfully and by deception, and it intended to declare the vitiation of all the permissions to land as well as the permissions to stay in Hong Kong obtained by the Applicant on the strength of the OWP. The Applicant was invited to make written representations.

25.  The Applicant, through her solicitors, Messrs Yu, Tsang & Loong (“YTL”), made written representations through various letters including ones dated 21 January 2015 and 25 January 2019, as follows:

(1)  She had married a HKPR legally and gave birth to a son in Mainland China on 20 June 2001. After her divorce from Mr Ho on 16 July 2002, she was granted custody of the Son.

(2)  There was no allegation that the OWP was forged, false or unlawfully altered. There was no evidence suggesting that she had obtained the OWP by fraud, or that the Applicant had deliberately withheld her divorce status from the Mainland authority when the OWP was granted to her in 2006.

(3)  Even if she had committed any fraud (which was denied), the alleged fraud would be within the jurisdiction of the Mainland authority.

(4)  The Son entered Hong Kong on the strength of an OWP on 10 May 2012 and lived with the Applicant in Hong Kong. If the Appellant were to be repatriated to Mainland China, no one would take care of the son in Hong Kong.

(5)  She was an upright resident with no criminal record. As an entrepreneur, the Son’s livelihood would not constitute a burden to society.

26.  On 4 January 2013 and 2 December 2015, the Applicant made two applications for VEPIC, in which she claimed to be a HKPR by virtue of paragraph 2(b) of Schedule 1 to the IO. ImmD confirmed receipt of the applications by letters dated 7 January 2013 and 3 December 2015 respectively.

27.  On 17 February 2017, the Applicant, through her solicitors, further applied for an HKPIC, on the basis that she was a HKPR by her having ordinarily resided in Hong Kong for a continuous period of not less than 7 years.

28.  By letter on 21 August 2019, ImmD declared the vitiation of all the permissions to land and remain obtained by the Applicant on the strength of the OWP. The Commissioner also declared withdrawal of the Applicant’s HKIC.

29.  On 3 September 2019, as a result, ImmD informed the Applicant that her two applications for VEPIC were refused. On 16 September 2019, ImmD informed the Applicant that her application for a HKPIC was refused. It was in respect of these three decisions that the Applicant appealed to the Tribunal under section 3D of the Registration of Persons Ordinance Cap 177 (“RPO”). The Applicant lodged her Notice of Appeal on 7 December 2019.

C.  The Determination

30.  The hearing before the Tribunal was held on 18 December 2024.

31.  At the appeal hearing, the Applicant advanced the following grounds:

(1)  Since the Applicant’s OWP was prima facie a valid document for the purpose of entering into Hong Kong, she should be granted HKPR status.

(2)  The validity of the OWP was a matter of PRC law, and unless the Commissioner produced evidence to demonstrate that the OWP was unlawfully obtained or a forgery, it remained valid and should have been accepted by the Commissioner.

(3)  In refusing the Applicant’s application for VEPIC, the Commissioner had erred in taking into account that the Applicant had committed “fraud” over the circumstances arising out of her divorce and failure to inform relevant Mainland authorities.

(4)  The Commissioner had not produced evidence to support the only ground put forward to refuse the Applicant’s application for VEPIC and/or HKIC, namely that the Applicant had committed fraud, alternatively the Commissioner had failed to show that the Applicant had landed in Hong Kong unlawfully under sections 2(2) and 2(4)(a)(i) of the IO.

32.  Counsel then acting for the Applicant narrowed down the case to two key contentions: (1) that the validity of the OWP was a matter of Mainland Chinese law and, the Commissioner having failed to produce evidence to demonstrate that the OWP was unlawfully obtained or was a forgery, the OWP remained valid and should have been accepted by the Commissioner; and (2) that in refusing the Applicant’s VEPIC application, the Commissioner had erred in alleging that a fraud had been committed in the absence of any evidence to show that the Applicant had committed fraud.

33.  In response, the Commissioner’s case was that:

(1)  The Applicant’s permission of stay having been obtained by false representation and/or deception as to the existence of a valid and lawful marriage, was duly vitiated by the Director, and as such, she could not be considered as an ordinary resident. Accordingly, the Applicant had failed to fulfil the criteria of needing to be an ordinary resident in Hong Kong for 7 years to be eligible for a HKPIC.

(2)  In particular, it was alleged that the two letters from the SPPSD had expressly confirmed that the Applicant had concealed the fact that she had already divorced Mr Ho in July 2002, and that she would not have been issued with the OWP but for the concealment of her divorce. Accordingly, the Applicant had therefore lost her eligibility for coming to Hong Kong for settlement.

(3)  It did not matter that the OWP was “genuine” in the sense that it had not been forged, on the strength of authority: “if [a valid travel document] was unlawfully obtained, and if permission to land in Hong Kong would have been refused if the facts relating to the circumstances in which it had been obtained had been known, permission to land in Hong Kong would have been obtained by deception, even if the document used to perpetrate that deception, though unlawfully obtained, was valid.”

34.  By the Determination dated 10 March 2025, the Tribunal dismissed the Applicant’s appeal and upheld the decisions of the Commissioner. In particular, the analysis provided by the Tribunal consisted of the following:

(1)  Despite not explicitly stating “fraud” or “invalidation”, the SPPSD letters clearly stated the Applicant concealed her 2002 divorce, and that the Applicant was thus unqualified for settlement in Hong Kong.

(2)  It is abundantly clear that the Applicant would not have been issued the OWP if her divorce had been disclosed.

(3)  The Director of Immigration is entitled to revoke permission obtained by deception, referring to Ng Shun Shun alias Wu Chun Chun v Director of Immigration HCAL 93/2007 (unreported, 12 November 2008) at §§24-25.

(4)  Therefore, the Applicant does not fulfil the seven-year ordinary residence requirement and is not entitled to HKPR status.

D.  Relevant Legal Framework

35.  The entitlement to a HKPIC is provided in Article 24 of the Basic Law, which materially provides:

The permanent residents of the Hong Kong Special Administrative Region shall be:

…

(2) Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the Hong Kong Special Administrative Region;

…

The above-mentioned residents shall have the right of abode in the Hong Kong Special Administrative Region and shall be qualified to obtain, in accordance with the laws of the Region, permanent identity cards which state their right of abode.

36.  Regulation 3(2) of the Registration of Persons Regulations Cap 177A (“Regulations”) provides that if a registration officer is satisfied that a person who has applied for a HKPIC enjoys the right of abode in Hong Kong, the officer shall issue a HKPIC to such person.

37.  Persons enjoying the right of abode in Hong Kong are the permanent residents of Hong Kong: see section 2A of the IO. The categories of persons who are permanent residents of Hong Kong are set out in §2 of Schedule 1 to the IO. Relevant for present purposes is the category provided in §2(b): “a Chinese citizen who has ordinarily resided in Hong Kong for a continuous period of not less than 7 years before or after the establishment of the Hong Kong Special Administrative Region”.

38.  The meaning of ordinary residence is defined in section 2(4) of the IO. Relevantly, section 2(4)(a)(i) provides that a person shall not be treated as ordinarily resident in Hong Kong during any period in which he remains in Hong Kong with or without the authority of the Director, after landing unlawfully.

39.  The meaning of “unlawfully entering or landing” in Hong Kong is provided in section 42 of the IO, which materially provides:

42. False statements, forgery of documents and use and possession of forged documents

(1) Any person who makes or causes to be made—

(a) to an immigration officer, immigration assistant or any other person lawfully acting under or in the execution of Part IB, II, III, IV or VIIC of this Ordinance;

(b) in any document furnished to an immigration officer or immigration assistant pursuant to this Ordinance or a requirement made thereunder; or

(c) for the purpose of obtaining, whether for himself or any other person, any travel document, certificate of entitlement, entry permit, re-entry permit, certificate of identity, document of identity, APEC business travel card, travel pass or Vietnamese refugee card, any statement or representation which he knows to be false or does not believe to be true shall be guilty of an offence.

(2) Any person who—

(a)     (i) alters without lawful authority or forges; or

(ii) transfers to another without reasonable excuse, any travel document, certificate of entitlement, entry permit, re-entry permit, certificate of identity, document of identity, APEC business travel card, travel pass or Vietnamese refugee card or any document whatsoever issued, kept or made under or for the purposes of Part IB, II, III or IV of this Ordinance;

(b) uses for the purposes of Part IB, II, III, IV or VIIC of this Ordinance any forged, false or unlawfully obtained or altered travel document, certificate of entitlement, entry permit, re-entry permit, certificate of identity, document of identity, APEC business travel card, travel pass, Vietnamese refugee card or other document;

(c) has in his possession—

(i) any forged, false or unlawfully obtained or altered travel document, certificate of entitlement, entry permit, re-entry permit, certificate of identity, document of identity, APEC business travel card, travel pass or Vietnamese refugee card; or

(ii) any forged, false or unlawfully altered document whatsoever intended for use for the purposes of Part IB, II, III, IV or VIIC of this Ordinance, shall be guilty of an offence. (Amended 23 of 2012 s. 9)

(3) A travel document, certificate of entitlement, entry permit, re-entry permit, certificate of identity, document of identity, APEC business travel card, travel pass or Vietnamese refugee card shall be deemed to be unlawfully obtained for the purposes of this section if any person made a false statement or representation for the purposes of or in connection with an application for the issue or renewal of the same.

40.  The right to a HKPIC is given practical effect by the Commissioner, by way of various sections of the RPO, which provides:

3A. Application for permanent identity cards for the purpose of international travel

A person who enjoys the right of abode in Hong Kong may, notwithstanding that he is already registered under this Ordinance or is not required to be so registered, apply in accordance with regulations made under section 7 for a permanent identity card to be issued to him if such permanent identity card is required by the applicant for a Hong Kong Special Administrative Region Passport or a certificate of identity.

41.  The Applicant’s PIC was originally granted under §2(b) of Schedule 1 of the IO, on the basis that she was a Chinese citizen who had ordinarily resided in Hong Kong for 7 years after she had lawfully entered Hong Kong on the strength of her OWP.

42.  However, in 2019, having received the information from the Mainland authority, the registration officer decided that the permission to land granted was vitiated and, thus, the landing was unlawful and the subsequent period of remaining in Hong Kong would not constitute ordinary residence. The registration officer declared that the Applicant had never had the right of abode and invalidated her PIC. The power exercised by the officer is authorized by regulation 3D(1) of the Regulations, which provides that where a registration officer is satisfied that a person to whom a PIC has been issued no longer has, or never had, the right of abode in Hong Kong, he may declare the PIC to be invalid.

43.  Section 3D of the Registration of Persons Ordinance Cap 177 (“RPO”) allows a person aggrieved by the decision of the registration officer to invalidate a PIC to appeal to the Tribunal, with sections 3E and 7 also materially relevant as follows:

3D. Jurisdiction of Tribunal and determination of appeals

(1) The Tribunal shall have jurisdiction to hear and decide any appeal by a person who is aggrieved by a decision of a registration officer not to issue a permanent identity card to that person, or to declare a permanent identity card issued to him to be invalid.

(2) Where a registration officer refuses to issue to a person a permanent identity card or declares a permanent identity card issued to such person to be invalid on the ground that, in the opinion of the registration officer, the person does not have the right of abode in Hong Kong the registration officer shall notify that person of his decision in writing and inform him of his right of appeal under subsection (1).

(3) A person who wishes to appeal under subsection (1) shall serve written notice of appeal, stating his ground of appeal and the facts upon which he relies, upon the Tribunal, within 90 days of his being notified of the decision of the registration officer to refuse to issue him with a permanent identity card or to declare a permanent identity card issued to him to be invalid.

(4) An appeal under subsection (1) may only be brought by a person on the ground that on the facts of his case he enjoys the right of abode in Hong Kong and shall succeed if, and only if, the Tribunal determines that he has that right.

(5) Where the Tribunal, upon an examination of—

(a) the written notice of appeal served under subsection (3) on which a person (“the appellant”) appealing under subsection (1) seeks to rely; and

(b) the summary or record of the proceedings of the Immigration Tribunal in respect of an unsuccessful appeal by the appellant under section 53A(1)(aa) of the Immigration Ordinance (Cap. 115), is satisfied that the facts or matters on which the appellant is seeking to rely are the same or substantially the same facts or matters on which the appellant sought to rely on the appeal to the Immigration Tribunal, it may dismiss the appeal under subsection (1) without a hearing and shall cause written notice of such dismissal to be given or sent by post to the appellant.

(6) The decision of the Tribunal under this section shall be final.

(7) For the avoidance of doubt, it is declared that the service of a written notice of appeal under subsection (3) does not give the person by whom or on whose behalf it is served any right to remain in Hong Kong pending the decision of the Tribunal.

3E. Practice and procedure of Tribunal

The practice and procedure of, and on appeals under section 3D to, the Tribunal shall be such as may be prescribed in regulations made under section 7.

7. Power to make regulations

(1) The Chief Executive in Council may make such regulations as may be necessary for the purposes of this Ordinance.

(2) Without prejudice to the generality of the powers conferred by subsection (1) such regulations may provide for—

(a) the manner in which and places at which application for registration under section 3 or for the issue or renewal of identity cards under this Ordinance shall be made, and the making of an order by the Commissioner specifying or amending the places at which such application, issue or renewal shall be made;

(aa) separate arrangements for the issue or renewal of identity cards for any category or group of persons;

(b) the information and documents to be furnished for the purposes of registration under section 3 or for the purposes of the issue or renewal of identity cards under this Ordinance;

(c) the taking and recording of photographs and fingerprints of persons requiring registration under section 3 or the issue or renewal of identity cards under this Ordinance and the destruction of such photographs and the records of all such fingerprints on the expiration of this Ordinance;

(d) the method and manner by which information and documents furnished by a person requiring registration under section 3 or the issue or renewal of identity cards under this Ordinance are to be recorded and maintained;

(e) the photographing, scanning or image capturing of fingerprints, information and documents furnished or made for the purposes of registration under section 3 or the issue or renewal of identity cards and the destruction of their originals;

…

(ga) the practice and procedure of, and on appeals to, the Tribunal;

…

(h) the issue of identity cards (including the issue of permanent identity cards to persons with the right of abode in Hong Kong wherever resident) and their form;

…

44.  Further provisions have been made under the Regulations, relevantly:

26A. Practice and procedure on appeals to the Tribunal

(1) Subject to sub-regulation (2), the practice and procedure on an appeal to the Tribunal under section 3D of the Ordinance shall be such as the chief adjudicator may determine.

(2) Schedule 4 shall have effect for the purpose of regulating appeals to the Tribunal.

45.  As to the procedure of the Tribunal, Schedule 4 of the Regulations provides that:

Appeals to Registration of Persons Tribunal

…

3. Appeals to be heard by 2 adjudicators

(1) Subject to subparagraph (2), an appeal to the Tribunal shall be heard and determined by 2 adjudicators sitting together.

(2) The Tribunal shall allow an appeal if either or both of the adjudicators hearing the appeal consider that the appeal should be allowed under section 3D(4) of the Ordinance.

…

9. Witnesses and evidence

(1) The Tribunal may, on the application of an appellant or of the respondent, or on its own motion, by summons require any person to attend as a witness at the hearing of an appeal at such time and place as may be specified in the summons, and at the hearing to answer any questions, to give evidence or produce any documents in that person’s possession, custody or power which may relate to any issue in the appeal.

(2)    (a) Notwithstanding subparagraph (1), no person shall be compelled to give any evidence or produce any document which he could not be compelled to give or produce in proceedings in a court of law.

(b) Nothing in this subparagraph shall entitle any person to refuse to give any evidence or to produce any document on the ground only that such evidence or document would not be admissible in a court of law and that accordingly he could not be compelled to give or produce it.

(3) The Tribunal may require any witness to give evidence on oath or affirmation.

(4) For the purpose of this paragraph, the Tribunal and any adjudicator shall have the same powers in relation to witnesses as a magistrate has under sections 21 and 22 of the Magistrates Ordinance (Cap. 227) in proceedings under Part II of that Ordinance, and a summons to a witness shall be in such form as the chief adjudicator may determine.

…”

46.  Thus, as established in Li Mengzhi v Commissioner of Registration [2023] HKCFI 2933 at §17, the Tribunal does not “review” the decision of the registration officer in the exercise of his power to invalidate the HKPIC. Rather, the Tribunal has to make an independent assessment of the facts and decide for itself whether the appellant did or did not have the right of abode: see also Li Su Shan v Director of Immigration [2002] 4 HKC 284, where Hartmann J had to construe a comparably worded section 53D(1) of the IO in the context of an appeal to the Tribunal against a removal order.

47.  Regulation 21(2) of the Regulations also puts the burden on the appellant, when he appeals against the decision of a registration officer to the Tribunal, to prove that he has the right of abode in Hong Kong or is entitled to a HKPIC.

48.  Therefore, to succeed in an application for leave to apply for judicial review of the Decision made by the Tribunal, the Applicant must persuade this Court that it is reasonably arguable that the Tribunal was wrong to conclude that the Applicant did not have the right of abode.

E.  Proposed Grounds of Review

49.  By her Form 86, the Applicant’s proposed grounds of review are as follows:

(1)  Ground 1: The Tribunal asked the wrong questions, and thereby failed to take reasonable steps to acquaint itself with the relevant information.

(2)  Ground 2: The Tribunal misdirected (or failed properly to direct itself) as to the governing law as to whether the OWP was unlawfully obtained by deception.

(3)  Ground 3: The Tribunal failed to give adequate reasons in the Determination.

(4)  Ground 4: Further and/or alternatively, the Determination was overall unreasonable in the public law sense.

50.  I can address them in turn, but Grounds 1 and 2 can usefully be addressed together, as they were in submissions. Indeed, Grounds 1 and 2 formed the core of the intended challenge, and if they cannot succeed, neither can Grounds 3 or 4.

51.  I can also usefully address at this point one of Mr Ng’s overarching or preliminary points made in oral submission, namely that the Court exercising its judicial review jurisdiction should not decide on the merits of the underlying issues facing the Tribunal, but should focus only on the integrity of the decision-making process. Mr Ng suggested that the Commissioner’s argument is an invitation to the Court to decide the underlying merits. Nevertheless, whilst the proposition advanced as to the Court’s correct role in judicial review is obviously correct, I do not think the Commissioner is inviting the Court to decide the underlying merits. Rather, I accept that the Commissioner is asking the Court to consider on traditional public law grounds whether the Tribunal’s decision can be impugned.

F.  Grounds 1 and 2: Wrong Questions and Misdirection

52.  Mr Ng submitted that the principal issue to be dealt with by the Tribunal was whether the Applicant remained in Hong Kong “after landing unlawfully”. He suggested that could only have occurred if the Applicant had misled an immigration officer (see section 42(1) of the IO), or if she had used or had in her possession an unlawfully obtained travel document (see section 42(2)(c) of the IO).

53.  Notwithstanding regulation 21(2) of the Regulations, the Tribunal and both parties accepted that the burden of proof lies with the Commissioner to establish its allegation that there was a deception that vitiated permission to land or stay in Hong Kong, and that the standard of proof is one of civil standard of balance of probabilities: see the Determination at §§30-31.

54.  As formulated in Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at p. 1065 the question for the Court is: did the decision-maker ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?

55.  Mr Ng submitted that the Tribunal mistakenly asked:

(1)  If the SPPSD had been informed of her divorce in July 2002, would the Applicant be issued with the OWP in January 2006? (“Counterfactual Question”) and

(2)  Did the Applicant obtain the OWP by deception (particularly erring in applying Hong Kong law rather than PRC law in assessing whether a deception had happened) in the Mainland? (“Deception Question”).

56.  He submitted that the correct questions should have been:

(1)  What effect would the Applicant’s failure to disclose her divorce have on the validity of the OWP under PRC law? (“Effect Question”) and

(2)  Would the conclusion of the Effect Question render the Applicant’s landing “unlawful” for the purpose of IO? (“Unlawfulness Question”).

57.  Mr Ng submitted that the “Counterfactual Question” and “Deception Question” must be wrong for the following reasons.

58.  First, the governing law as to the effect of any non-disclosure of matters on the validity of an OWP must be PRC law and thus must be established by proper evidence. Mr Ng referred to Lui Hau Man v Director of Immigration [2003] HKCFI 937 at §35 (cf. section 42(3) of the IO). Mr Ng was presumably referring to the first part of that paragraph, but §35 as a whole reads:

35. Mr Li, for the 1st respondent, initially took objection to the first argument on the basis that Mainland law, being foreign law, had to be proved by expert evidence, and the applicant had not adduced any expert evidence in this regard. There can be no doubt that Mr Li is correct on this point. However, fortunately in this case, there are other admissible materials to which the court can resort to in relation to the legal status of adopted children in the Mainland. There is firstly BEEA's 2^nd Letter in which it expressly states that under Article 7(3) of the Temporary Measures, the term "children who have no support in the Mainland" refers to children whose parents are both resident in Hong Kong and includes natural and adopted children (內地無依靠兒童指父母均在港定居，包括親生子女和收養子女). In addition, it can be seen from the decision of Li Fu Shan (at paragraph 30) that under the Adoption Law of the PRC, adopted children enjoy the same status as natural children. Having regard to BEEA's 2^nd Letter and the passage in Li Fu Shan, Mr Li, quite properly, does not seek to take issue with the proposition that Article 7(3) of the Temporary Measures applies to adopted children as well.

59.  Hence, that paragraph identifies that reference can be made to other admissible material in relation to a particular legal status, which may be found in correspondence from a relevant authority.

60.  In the present case, Mr Ng submitted that the Tribunal made improper conclusions without evidence. Mr Ng submitted that the Tribunal has erroneously sidestepped, if not patently ignored, this jurisdictional limitation by wrongly framing the question as a straightforward question of fact rather than recognising it as a question of foreign law that requires evidentiary support. As he put it:

(1)  The Tribunal rightly accepted at §34 that “It is true that the SPPSD did not expressly say the Appellant’s OWP was obtained by fraud or that the OWP had been invalidated ab initio.”

(2)  However, in the same paragraph, it then went on to find that it was “clear from the two letters that the SPPSD meant that the Applicant was qualified to be issued with the OWP only because of her marriage with Mr Ho, and had it been informed of her divorce from Mr Ho in July 2002, the Applicant would not have been issued with the OWP in January 2006. In particular, the SPPSD stated in unequivocal terms that the Applicant lost her right to come to Hong Kong”.

(3)  At the Determination at §35, the Tribunal sought to explain the conclusions that it draws from its analysis, namely that “It is also abundantly clear that the Respondent has produced cogent evidence to substantiate the claim that the Applicant obtained the OWP by deception.”

(4)  The Tribunal has never ruled that PRC law is not applicable or is otherwise irrelevant in this respect.

61.  The relevant parts of the original text of the Second SPPSD Letter have been set out above. Mr Ng submitted that, notably:

(1)  The SPPSD has not suggested that the Applicant deceived or committed fraud on the authorities in the Mainland.

(2)  The SPPSD has been careful not to declare that the OWP was or is now invalid or invalidated, or that the OWP has otherwise been unlawfully obtained.

(3)  The Commissioner has also not produced independent evidence in the form of foreign law evidence to suggest otherwise: cf. Li Mengzhi (above) at §59.

62.  Further, the Second SPPSD Letter only went so far as to answer the Counterfactual Question. Thus, for the Tribunal to have validly concluded that the OWP was indeed unlawfully obtained and/or in fact invalidated (and if so, the timing of such invalidation) and/or that it was obtained by deception (with a meaning properly grounded in PRC Law), PRC Law evidence must have been adduced first by the Commissioner (with proper opportunity for the Applicant to respond).

63.  Mr Ng submitted that there was no other basis relied upon to find that the Applicant’s OWP was unlawfully obtained or otherwise invalid:

(1)  SPPSD’s final stance on the subject was that under PRC law, before the Applicant’s OWP can be cancelled, the Applicant had to be formally notified, and that requests from the SPPSD to ask ImmD for assistance in serving the formal notice documents had been ineffective. It follows that from SPPSD’s perspective that the Applicant’s OWP remains valid, it also implicitly follows from SPPSD’s view that the procedural safeguards apply, that SPPSD formed the view that the Applicant’s OWP was lawfully obtained. These views should be conclusive: see Lui Hau Man (above) at §35.

(2)  Under PRC law, where an administrative decision is voidable but not void, should the government fail to set aside the decision after a prolonged period of time, the government may be time-barred from doing so.

64.  In the present case, Mr Ng submitted, the Tribunal has fallen into error by treating a foreign law question as if it were a forensic evidential question. I take it this seeks to emphasise the point from case law that the Tribunal has no jurisdiction independently to invalidate a PRC-issued document.

65.  Mr Ng relied upon the explanation of applicable PRC law offered by Dr Li Weidong (“Dr Li”), who provided an expert opinion report. I can address this first on a de bene esse basis, as I also need to determine the summons by which the Applicant sought leave to file and rely on Dr Li’s report (to which I shall return below).

66.  Dr Li opined that:

(1)  In determining whether the authorities are misled by fraud or whether an application for an administrative license is tainted by subsequent non-conformity, the analysis focuses on the timing/nature of the statement that is made.

(2)  Subsequent non-conformity is fundamentally different from fraud or deception, and PRC law makes critical distinctions that were ignored by the Tribunal.

(3)  As to whether the OWP was unlawfully obtained, and whether a false statement was made for the purposes of or in connection with the Applicant’s application for an OWP, when the facts and PRC law are analysed, there was no false statement made for that purpose under PRC law.

(4)  This is because a distinction is drawn between “obtaining [administrative approval] by fraud” (「欺詐取得」) and a “failure to fulfil the criteria after the fact” (「事後條件不符」）.

(5)  The former concerns the submission of details that are false at the time they are submitted, whereas the latter concerns a situation where information that was true and accurate when it was submitted is subsequently rendered false due to a change in circumstances before the relevant administrative decision is made.

(6)  When the Applicant divorced her husband after she had submitted her application but before her OWP had been issued, there was a “failure to fulfil the criteria after the fact” [Report §54(ii)(b)]. However, as the Applicant was still lawfully married at the time she made the application, she did not make any false statements for the purpose of or in connection with her application for OWP, and she did not “obtain [administrative approval] by fraud”.

(7)  Further, PRC law treats these two scenarios differently, whereby “obtaining [administrative approval] by fraud” renders an administrative decision void ab initio (original text: “應當予以撤銷”), and a “failure to fulfil the criteria after the fact” is only liable to be set aside by the relevant authority (original text: “可撤銷”).

(8)  The setting aside of an administrative decision on the basis of a “failure to fulfil the criteria after the fact” is subject to procedural safeguards including but not limited to the right to make representation and submit evidence on the part of the subject of the administrative decision about to be set aside, which the SPPSD recognised are applicable.

(9)  This in turn, relates back to the question of whether the OWP was lawfully obtained, because the relevant provision of Chinese law that recognizes the applicability of procedural safeguards explicitly limits its application to lawfully obtained administrative decisions (original text:“依法取得的行政許可”).

67.  Mr Ng submitted that there is no question of hindsight as to what would have happened had the full picture been brought to the authorities. To speak of the Counterfactual Question without regard to the timing of the divorce and the timing at which such information was communicated to the authorities in the Mainland, having regard to the fact that when the Applicant applied for the OWP in 2001 before the divorce, there was no misstatement whatsoever, is overly simplistic and wrong. The Tribunal erred, he said, by applying this Hong Kong law approach instead of properly analysing the case under the relevant PRC legal framework.

68.  Mr Ng submitted that Tribunal wholly failed to realise that the Applicant’s failure to disclose her divorce is a separate issue from whether the Applicant has “obtained [administrative approval] by fraud”, in that the latter requires active deceit on the part of the Applicant, whereas the former, being a passive omission could only find a claim of “failure to fulfil the criteria after the fact”.

69.  Secondly, asking whether the Applicant obtained the OWP by deception has betrayed a misunderstanding of the proper use of the concept of “deception” in the analysis. Mr Ng referred to Kau Sai Mei v Director of Immigration [1999] 1 HKC 174 at p. 184, which was cited before the Tribunal by the Commissioner, where it was said that (with Mr Ng’s emphasis):

I cannot accept this argument. The fact that the obligation is to produce a valid travel document does not mean that the production of such a document automatically entitles the person who produces it to permission to land in Hong Kong. If it was unlawfully obtained, and if permission to land in Hong Kong would have been refused if the facts relating to the circumstances in which it had been obtained had been known, permission to land in Hong Kong would have been obtained by deception, even if the document used to perpetrate that deception, though unlawfully obtained, was valid. I do not comment on Mr Dykes’ argument that it is wrong to assume that an unlawfully obtained passport is an invalid one. Where I disagree with him is his premise that if the passports were valid, permission to land in Hong Kong could not have been denied even if they were unlawfully obtained.

70.  Thus, Mr Ng submitted that the focal inquiry, viz deception, is not on how the OWP was approved in the first place but rather the consequences of how the OWP was obtained, viz., whether it was unlawfully obtained. However, I am not sure how this passage is said to help the Applicant. Indeed, it seems to me to identify from the emphasised words that, at least from the point of view of the Hong Kong immigration officer considering whether to grant permission to land in Hong Kong, that permission could be refused if the facts show the document presented (though “valid”) was obtained in circumstances in which had they been known permission would have been refused, as that can amount to a deception.

71.  On the other hand, Mr Ng submitted that the “Effect Question” and “Unlawfulness Question” ought to be the correct questions because:

(1)  Based on the factual circumstances presented to the Tribunal, there is a question as to what happened to the validity of the OWP if a married couple was divorced in between tiers of the multi-tiered OWP Process in the Mainland, which consists of (a) an initial checking of documents at the application stage, (b) the actual consideration of the application which as a matter of PRC law is a process that would subsist until the production of the OWP or rejection of the application, and (c) the actual determination of the application.

(2)  The answer to the Effect Question would then have critical knock-on effects on whether it can safely be concluded that the OWP was obtained “unlawfully” under the Kong Sau Mei enquiry, and eventually the Unlawfulness Question.

72.  Mr Ng submitted that, as a result of asking the wrong questions, the Tribunal failed to consider the relevant issue of timing under PRC law. This thereby limited its analysis to the falsity of the factual matrix underlying the OWP, and the materiality of that falsehood to an OWP application. He said the Tribunal (1) should not have gone into an inquiry to begin with, because the effect of the falsehood (if any) on the OWP application would have been a question of PRC law, and (2) failed to properly consider whether a statement that was false at the time it was made, or whether a false statement was ever made by the Applicant in connection with her OWP application, and the effect of “silence” in the context of PRC law-governed OWP Process.

73.  Referring to Deng Suet Yan v Hong Kong Housing Authority [2017] 4 HKLRD 73 at §19, Mr Ng accepted that what steps are to be taken in its enquiries is a matter for the authority/decision-maker. Nonetheless, he argued that no reasonable tribunal possessed of the material the Tribunal had could suppose that the inquiries it had made were sufficient: relying on R (Plantagenet Alliance) v Secretary of State for Justice [2015] 3 All ER 261 [A#9] at §100(3)-(4). Mr Ng submitted that:

(1)  Once the correct questions to be addressed are properly identified, it is patently clear that the Tribunal should have enquired into the relevant PRC law as to the effect of the Applicant’s failure to disclose her divorce, which would have consisted of either expert evidence or a proper declaration or statement from the PRC authorities that the Applicant’s OWP was invalid, revoked or had been obtained by deception/false statements. The Applicant’s then Counsel reminded the Tribunal of this, as shown in the Skeleton Submissions for the Applicant before the Tribunal, but apparently not heeded.

(2)  The unreasonableness is exacerbated by the fact that it has been customary for the Tribunal to obtain a firm statement from the PRC authorities that a travel document in a particular case was invalid, obtained by false representations or deception, or otherwise revoked: see the cases cited and summarized in Mr Ng’s Skeleton Argument at Annex I. As pointed out by the then Counsel, the OWP was never declared to be invalid. As accepted by the Tribunal, the SPPSD also never declared that the OWP had been obtained by fraud: see the Determination at §34.

(3)  Alternatively, as pointed out by the then Counsel, PRC law evidence should have been received, but it was not.

74.  Mr Ng submitted that, on that basis, it fell wholly to the Commissioner to show deception: see Ng Man Yin v Registration of Persons Tribunal [2014] 1 HKLRD 1188 at §69. Where this is a case of non-disclosure, Mr Ng further submitted that the Tribunal failed to engage with the appropriate questions and conduct reasonable enquiries, for example:

(1)  by seeking further views from the SPPSD as to the answer to the Effect Question, with proper opportunity for the Applicant to reply; or

(2)  by further inquiring on the correspondence between the SPPSD or any relevant authorities with the Applicant during the whole process to acquire evidence for or against the allegation of active deception laid on the Mainland authorities (as alleged by the Commissioner, and accepted by the Tribunal to be the issue); or

(3)  by directing the Commissioner to adduce sufficient and proper foreign law evidence (a) to substantiate the case that the OWP was “unlawfully” obtained, and (b) to answer the Effect Question under PRC law, such that the Applicant would have a proper opportunity to answer it.

75.  Mr Ng said the evidence before the Court now shows that those steps would not have been hypothetical or technical, but would have yielded critical evidence which may have driven the Determination in another direction.

76.  First, such an exercise would have confirmed the Applicant’s submissions that in fact the OWP had not been declared invalid and/or rescinded, as confirmed by the later correspondence. In gist, the SPPSD’s ultimate conclusion was that it could not cancel the Applicant’s OWP without certain procedural requirements being complied with. This stands in stark contrast with the Tribunal’s practice to receive statements from the PRC authorities explicitly rescinding or invalidating a given OWP as shown in the prior cases.

77.  Second, Mr Ng said that it would also have yielded proper PRC law evidence, of which the Court now has a cursory view via Dr Li’s report (which is consistent with the practice of SPPSD), that:

(1)  The critical question of whether an OWP/administrative license has been obtained by “fraud” is to consider the subjective intent and nature of the actions. “Fraud” requires a positive and active deceptive act, and is to be distinguished from a passive omission, such as a failure to update the relevant authorities of a change in marital status.

(2)  There is a distinction between an OWP/administrative license that is obtained by fraud, versus one that is tainted by “subsequent non-conformity”. The latter refers to a situation where the materials and representations provided by the applicant at the time of submission were entirely truthful, but due to a change in objective circumstances, the applicant no longer meets the necessary statutory requirement for approval before the administrative authority makes its decision. A license that is obtained by fraud should be (“mandatorily”) revoked, whereas a license that is tainted by subsequent non-conformity may be revoked as a matter of discretion.

(3)  A licensee who has obtained an administrative license that is tainted by subsequent non-conformity enjoys certain procedural safeguards and rights, such as the ability to seek lawful compensation for losses and damages arising out of her reliance on the administrative license, the right to make representations, and the need for formal notice to be served before the administrative license can be revoked, etc. These rights attach to an administrative license that has been granted in accordance with the law and continue to attach until the administrative license is lawfully revoked or declared void.

(4)  Under PRC law, there is a limitation period for the invalidation of administrative licenses, being about 20 years from the date that the licensing authority knew or ought to have known of the deficiencies with the administrative license.

(5)  This is not a case whereby the OWP was obtained by fraud (the closest analogy to “false representation or statement” under PRC law in the relevant context), but a case where the OWP was tainted by subsequent non-conformity.

78.  Mr Ng submitted that, in the premises, the Determination should be quashed.

79.  For the Commissioner, Mr Wong’s submissions in response were admirably succinct. He submitted that the Applicant plainly does not qualify for the ROA, and the Tribunal’s decision to that effect is unimpeachable. Therefore, the Applicant’s focus on the legal effect of the validity of the OWP is neither here nor there. As he put it, the simple fact is – and the Tribunal cannot be faulted for finding – that the Applicant cannot be considered to have lawfully remained in Hong Kong for seven years, and thus does not have the ROA.

80.  Mr Wong noted that the thrust of the Applicant’s challenge is focused on whether there was “deception” and whether the OWP remained valid. But the focus should be on the reasons why the Applicant is not considered to have entered and remained lawfully. In that context, it is clear, Mr Wong said, that the Applicant has misconstrued what was meant by “deception”, and has distracted herself with the issue of validity of the OWP, and whether it has or has not been revoked or the process by which that might occur.

81.  Mr Wong pointed to the first letter on 10 September 2014 notifying the Applicant of ImmD’s intention to cancel her HKIC, which formally communicated to her that: (1) the “deception” was the manner in which she obtained her permission to enter and stay, namely by use of an OWP when she did not in fact meet the conditions for settling in Hong Kong; (2) the permission to enter and stay was as a result “invalid”; and (3) the “deception” also referred to the obtaining of the HKIC on the basis that she met the conditions for settling in Hong Kong, when she did not.

82.  Mr Wong acknowledged that in another letter of the same date, ImmD did refer to the OWP as having been “obtained by fraudulent means”, but the context made clear that it meant she obtained the OWP without in fact meeting the conditions for settling in Hong Kong, because she was already long divorced. In other words, both letters identified the reason for cancelling her HKIC and vitiating her permission to land was because she simply did not meet the conditions for settling in Hong Kong.

83.  This was also echoed and, in so far as necessary, clarified in the formal declaration of the invalidity of her permission to land and remain in Hong Kong. That letter made clear that the Applicant obtained the OWP without meeting the conditions for settling in Hong Kong, and therefore had no legal basis to reside in Hong Kong (which was, of course, the basis upon which she landed and sought permission to remain). I accept that it is also echoed in the SPPSD letters which, as well as stating that the Applicant had concealed the fact that she had divorced (which is undoubtedly true), pointed out that she had lost the conditions for settling in Hong Kong – hence the recommendation that the matter be dealt with in accordance with Hong Kong law.

84.  Mr Wong submitted that the Applicant’s Grounds 1 and 2 are not capable of undermining the Determination. Referring to what was held by me in Lee Wing Foon v Registration of Persons Tribunal [2023] HKCFI 838 at §§50-51, Mr Wong submitted that the Tribunal could rely on the Mainland authority’s conclusion that the Applicant was no longer eligible. There, I stated:

50. Regardless of whether the application for one-way permit was made in 1996, 1998 or 2001, the Tribunal could rely on the GPPSD’s conclusion that he was no longer eligible by 2003 when the permit was issued. Thus, the immigration officer was deceived in granting the Applicant the permission to land on the strength of the one-way permit in 2003.

51. None of the arguments raised by the Applicant were or are capable of rebutting that he was no longer eligible to apply for the one-way permit when he landed in Hong Kong in 2003.

85.  Notwithstanding that that was a case in which there had been a formal revocation of the relevant OWP by the Mainland authority, the same approach seems to me to be applicable in this case. Indeed, I see no need for there to be any PRC legal consideration as to whether as a matter of fact (1) the Applicant met the necessary requirements for settling in Hong Kong and/or (2) the Applicant misrepresented that she was still married at the time she first landed in Hong Kong. The answer to both questions is obvious, where (1) because she had long before divorced Mr Ho, the Applicant did not meet the necessary requirements for settling in Hong Kong, and (2) when the Applicant declared that she was married and the spouse of Mr Ho, that was a lie. Indeed, it seems obvious to me that the Applicant must have told that lie because she knew that to have told the truth would have revealed that she was no longer, if she ever had been, eligible to settle in Hong Kong on the basis that she was joining her husband.

86.  Perhaps put another way, when the Applicant presented her OWP to the immigration officer, the relevant representation was not that she had an OWP which had not been set aside as a result of any fraud, but that she was at the time of entry eligible for the OWP and to settle in Hong Kong on that basis, when that was clearly not true.

87.  As in the Lee Wing Foon case, the Tribunal could rely on the SPPSD’s conclusion that the Applicant was no longer eligible by 2006 when the OWP was issued, and so the immigration officer was deceived in granting the Applicant the permission to land on the strength of the OWP. Similarly, none of the arguments now advanced for the Applicant were or are capable of rebutting the simple fact that she was no longer eligible to obtain the OWP when she landed in Hong Kong.

88.  Indeed, Mr Wong correctly submitted that the right questions to be asked by the Tribunal to determine whether the Applicant landed “unlawfully” had actually been stated in the Applicant’s skeleton submissions, and were indeed asked by the Tribunal – namely, whether the Applicant had misled an immigration officer as per section 42(1) of the IO, and/or whether she had used or had in her possession an unlawfully obtained travel document as per section 42(2)(c). Despite posing those questions, the Applicant’s submissions did not answer them. But the Tribunal did answer them, and I see no reasonably arguable public law basis for interfering with the answer.

89.  I would also reject Mr Ng’s submission that the Commissioner’s case which the Applicant faced before the Tribunal related to the suggested irregularity in the process of obtaining the OWP – and not the question of deceiving the immigration officer as is now being advanced. Plainly, the Tribunal addressed the question as to whether the Applicant had landed lawfully or unlawfully, and answered that question by reference to the eligibility or otherwise to enter on the basis used – and at least implicitly represented to the immigration officer at the point of landing, as well as expressly represented in the application for the HKIC.

90.  The Applicant’s argument – essentially based upon the idea that it does not matter that she was actually ineligible to have entered Hong Kong on the basis that she did, because she had in her hand a OWP that has not (yet) been revoked – is deeply unattractive. But, in any event, there was sufficient evidence available to the Tribunal for it to have formed the view that ineligibility had been established, even on the viewpoint of the Mainland authority, which would vitiate the permissions to land and to remain.

91.  On this basis, Grounds 1 and 2 are not reasonably arguable with any realistic prospect of success. Even where the ground is to be considered reasonably arguable, they would be bound to fail on substantive review.

G.  Ground 3: Adequacy of Reasons

92.  Mr Ng goes further to say that if the Court agrees with the Applicant on Grounds 1 and 2, it follows that the Tribunal had failed to give adequate reasons in the Determination.

93.  As already decided above, I do not agree with the Applicant on Grounds 1 and 2, or that those grounds are reasonably arguable with any realistic prospect of success. Nevertheless, I shall go on to deal with the question relating to adequacy of reasons.

94.  The relevant law relied on by Mr Ng was:

(1)  There is no express provision of duty to give reasons. Where reasons are given, they should be “clear as well as sufficient to circumstances”. He referred to Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155 at §97; and Smart Gain Investment Ltd v Town Planning Board (unreported, HCAL 12/2006, 6 November 2007) at §28.

(2)  The reasons given must (a) enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved and (b) enable aggrieved persons to assess their prospects of obtaining some alternative reliefs or resolutions: South Bucks District Council v Porter (No.2) [2004] 1 WLR 1953 at §36; Oriental Daily Publisher v Commissioner for Television and Entertainment Licensing Authority (1997-98) 1 HKCFAR 279 at p. 291); South Bucks District Council (above) at §36; R (Ashworth Hospital Authority) v Mental Health Review Tribunal for West Midlands and North West Region [2001] EWHC Admin 901 at §77. See summary in Wei Linghui v Hong Kong Federation of Insurers Insurance Agent Registration Board & Another [2019] 4 HKLRD 387.

95.  Mr Ng submitted that by asking the wrong question and at the same time failing to reasonably acquaint itself with all the relevant information, the Tribunal also failed to give “clear and sufficient” reasons as to how it came to the Determination. The Determination would have also failed to engage with the principal issues and explain to the Applicant how she was found to have used an unlawfully obtained OWP to commit a “deception” in obtaining her permission to land in Hong Kong in the present context and thus, to have landed unlawfully in Hong Kong.

96.  Mr Ng thus contended that the Determination must also be quashed on this basis.

97.  In response, Mr Wong submitted that the Tribunal’s reasons were sufficient, as this was a simple case. Even now, there is no positive case that at the time she sought to enter Hong Kong, she was in fact eligible for the OWP scheme based on family reunion. It would therefore have been unreasonable for the Tribunal to allow her application on a mere technicality that the OWP was not formally invalidated due to failure of service, knowing full well she was not eligible for it when she landed.

98.  The Tribunal’s reasons were admirably succinct and did not let the Applicant’s submissions distract it from the fundamental question of whether she had the ROA. In particular, reference can be made to §§24 and 33-36:

24. ... In considering whether she qualifies as an HKPR by virtue of paragraph 2(b) of the Schedule, the only issue to be resolved is whether she landed in Hong Kong unlawfully, which would in turn hinge on whether the Director of Immigration was entitled to vitiate her permission of stay on the ground that the permission was obtained by false representation and/or deception as to the existence of a valid and lawful marriage.

33. Despite the ingenuity of [the Applicant’s] argument, this Tribunal considers that by its two letters, the SDPSD clearly stated the following: -

(1) Before the issuance of the OWP on 19 January 2006, the Appellant had not produced the documents in relation to her divorce to the SDPSD [SPPSD] and had concealed the fact that she was divorced from Mr Ho in July 2002.

(2) The SDPSD [SPPSD] considered the Appellant to be unqualified for coming to Hong Kong for settlement.

34. It is true that the SDPSD [SPPSD] did not expressly say the Appellant’s OWP was obtained by fraud or that the OWP had been invalidated ab initio. However, it is clear from the two letters that the SDPSD meant that the Appellant was qualified to be issued with the OWP only because of her marriage with Mr Ho, and had it been informed of her divorce from Mr Ho in July 2002 the Appellant would not have been issued with the OWP in January 2006. ...

35. It is abundantly clear that the Appellant would not have been issued with the OWP had she not concealed from the Mainland authority the fact that she was divorced from Mr Ho. It is also abundantly clear that the Respondent has produced cogent evidence to substantiate the claim that the Appellant obtained the OWP by deception.

36. As a result of her obtaining the OWP by deception, the Director of Immigration is entitled to revoke the permission of stay obtained by deception and has duly vitiated the Appellant's permission of stay. It follows that she should be regarded as having landed and remained in Hong Kong unlawfully since 21 February 2006.

99.  It seems to me that reasoning was clear and sufficient to the circumstances. The reasons also enabled the Applicant to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues. Further, the Applicant was well able to assess her prospects of obtaining some alternative relief resolution (as she has, in effect, sought to do through these proceedings).

100.  For the reasons above, Ground 3 is not reasonably arguable with any realistic prospect of success.

H.  Ground 4: Unreasonableness/ Irrationality

101.  Upon the suggestion that the Determination was also irrational or unreasonable in the public law sense, the Applicant relies on the facts and arguments pleaded on the other Grounds.

102.  There being no merit in those other Grounds, Ground 4 is also not reasonably arguable with any realistic prospect of success.

I.  Expert Evidence Summons

103.  The desire to deploy the expert opinion evidence of Dr Li was in the main for making the point that: (1) there is a distinction between an administrative license that is obtained by fraud, and one which is tainted by subsequent non-conformity; (2) the latter will not mandate to really be revoked, though it may be as a matter of discretion; (3) prior to the exercise of that discretion the licensee who has obtained the licence tainted by subsequent non-conformity enjoys procedural safeguards and rights, including the right to make representations; so that (4) the licence may not ultimately be revoked, and in any event remains valid unless and until it is declared void; and (5) there may also be a limitation period for the invalidation of administrative licences of about 20 years from the date the licensing authority knew or ought to have known of the deficiencies with the licence.

104.  In my view, this evidence is irrelevant to the current question.

105.  First, it focuses on the wrong period of time. The relevant question to be determined by the Tribunal, and as is subject to potential review by the Court, is whether the Applicant was eligible for the OWP at the time she presented it as the basis of seeking permission to land and remain in Hong Kong. Hence the relevant period of time is up to the date that she landed. As the SPPSD made clear in its correspondence, if the Applicant had revealed (and not concealed) the fact of the divorce before the issue of the OWP, it would not have been issued because she would not have been eligible for it.

106.  However, the expert opinion evidence focuses on what might happen later, if there were some process engaged in to consider whether the OWP might be revoked.

107.  Secondly, the eligibility to the OWP was essentially a matter of fact, namely whether the Applicant was and remained married to a Hong Kong permanent resident with whom she intended to reside after settling in Hong Kong. No expert opinion evidence of any kind is required to identify and establish that fact.

108.  Thirdly, even if the Mainland administrative process might not lead to the revocation of the OWP (which seems at least highly unlikely), I do not see how that would affect the key underlying fact of ineligibility to land in Hong Kong, which led to the deception of the immigration officer, making the landing unlawful as a matter of Hong Kong law.

J.  Result

109.  In the circumstances, I dismiss both the expert opinion summons and the Applicant’s application for leave to apply for judicial review.

110.  As accepted during the hearing, costs should follow the event. Therefore, the Applicant shall pay the Commissioner’s costs of the proceedings (including the expert opinion summons), to be taxed if not agreed.