WONG FONG TENG AND OTHERS v. THE DIRECTOR OF IMMIGRATION

1999 HCAL Nos. 36 & 37

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

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J U D G M E N T

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The application to Yeung J.

1. On Tuesday, the Court of First Instance handed down judgment in Lau Kong Yung v. The Director of Immigration (HCAL 20/99 and HCAL 21/99) Both cases related to 17 people who had been born on the mainland. They claimed to have the right of abode in Hong Kong because at least one of their parents is a Hong Kong permanent resident. They had come to Hong Kong after 10th July 1997, which is the date on which the amendments to the Immigration Ordinance (Cap. 115) to give effect to Art. 24 of the Basic Law had been enacted. Most, if not all, of them had come to Hong Kong on two-way exit permits, but had not returned to the mainland when their permits expired. One or two of them may have come to Hong Kong surreptitiously, i.e. otherwise than through an immigration control point.

2. Orders for their removal from Hong Kong were made by the Director of Immigration on the basis that, whether or not at least one of their parents is a Hong Kong permanent resident, they had not established their right of abode in Hong Kong in the manner laid down by the amendments to the Immigration Ordinance. They applied for judicial review of those orders for their removal. In addition, they had been released from detention, but as they had been released on recognizance only, they were not entirely free from restrictions. They therefore applied for their unconditional release from detention by applications for writs of habeas corpus. All their applications were dismissed by Yeung J.

3. However, that is not the end of the road for the 17 Applicants. They announced that they intended to appeal against Yeung J.'s judgment to the Court of Appeal. In the light of that announcement, the Director of Immigration gave an undertaking to Yeung J. that the 17 Applicants would not be re-detained or repatriated to the mainland, provided that their solicitors filed a Notice of Appeal by 17th April. Indeed, the Legal Aid Department has now issued legal aid certificates to the 17 Applicants for their appeal.

The current proceedings

4. The current proceedings before me relate to another group of people altogether. There are a large number of people who claim that their personal circumstances are indistinguishable in any material respect from the circumstances of the 17 Lau Kong Yung Applicants. There are said to have been 811 of them in all as at 10th March. Following the handing down of the judgment in Lau Kong Yung, some of them were detained. They are about to be repatriated to the mainland pursuant to orders for their removal which the Director of Immigration either has made in their cases or which he is likely to make soon. 100 of them now apply for orders which have the effect of releasing them from detention and preventing their repatriation to the mainland for the time being - at any rate until the appeal of the 17 Lau Kong Yung Applicants has been heard and determined.

The merits of the removal orders

5. Two very different arguments have been developed by Ms. Margaret Ng for the Applicants. First, she attacks the removal orders made or to be made in respect of the 100 Applicants on their merits. She acknowledges that Yeung J. upheld the validity of the removal orders in the case of the 17 Lau Kong Yung Applicants. However, she contends that in the light of the arguments which were relied upon before him, and in the light of other arguments which she wishes to develop, it is at the very least arguable that Yeung J. was wrong to dismiss the applications of the 17 Applicants. It is said, therefore, to be arguable that (a) the removal orders made in relation to some of the Applicants in the current proceedings, and (b) the orders for the detention of the remaining Applicants pending the making of removal orders in relation to them, should be quashed.

6. I am neither prepared to grant leave to apply for judicial review of the removal orders nor to refuse it. Since the issues which the argument raises are to be considered by the Court of Appeal in the next couple of months in the appeal from Yeung J.'s judgment, the right course to take is simply to defer for the time being considering whether to grant leave to apply for judicial review of the removal orders. If at the end of the appellate process Yeung J.'s decision is upheld, the application for leave to apply for judicial review of the removal orders will not succeed. On the other hand, if at the end of the appellate process Yeung J.'s decision is overruled, the question whether leave to apply for judicial review of the removal orders should be granted will depend on what the reasons are. There is, in my opinion, no compelling practical reason for the court to consider the grant of leave to apply for judicial review of the removal orders at this stage. I therefore order that the application for leave to apply for judicial review of the four sets of decisions set out under the heading "Orders and Decisions in Respect of which Relief is Sought" in the Notice of Application be adjourned sine die with liberty to restore, but not to be heard until the Court of Appeal has given judgment in the proposed appeal from Yeung J.'s judgment.

The enforcement of the removal orders

7. However, that is by no means the end of the matter. Even if it is not appropriate to grant leave to apply for judicial review of the removal orders at this stage, different considerations apply to the question whether the Director of Immigration should be entitled now to put the removal orders into effect, i.e. by repatriating the Applicants to the mainland before the appeal from Yeung J.'s judgment is heard. That is where the second argument developed by Ms. Ng comes into play. The argument goes like this.

8. The cases of the 17 Applicants in the Lau Kong Yung case were treated by the Director of Immigration as test cases. He recognised that there was no material difference between them and the many other people claiming to be Hong Kong permanent residents. That was why, for the time being, he was not going to treat any of them differently from the small number of people who happened to be Applicants in the Lau Kong Yung case. However, now that his view of the law has been vindicated by Yeung J., the Director of Immigration has decided no longer to treat the two different groups in the same way. The 17 people who happened to be Applicants in the Lau Kong Yung case are being permitted to remain in Hong Kong pending their appeal, but the others are not, even though no material differences exist between the two groups. This stance is said to undermine the distinct advantage of treating some cases as test cases, i.e. of deciding an issue of principle which is common to a large number of people by selecting a small number of them to have their cases decided first. To quote from the Notice of Application, the Director of Immigration's stance

"will result in potential public law litigants having to file individual applications in court to protect their positions. Only by filing [applications] 'just in case' the Director [of Immigration] decides at some point to no longer treat an original case as a test case will prospective litigants be able to ensure that they are able to move quickly enough to prevent the Director [of Immigration] from taking advantage of a favourable judgment of the Court of First Instance or Court of Appeal against which an appeal is to be lodged."

9. This argument is one which, in my view, deserves respect. It is therefore arguable that the Director of Immigration would be acting unreasonably in the public law sense if he repatriated any of the Applicants in the current proceedings to the mainland before the appeal from Yeung J.'s judgment is heard. The technical difficulty is that although the Notice of Application asks for leave to apply for judicial review of the removal orders, it does not ask for leave to apply for judicial review of the Director of Immigration's proposal to put those orders into effect, i.e. to repatriate the Applicants to the mainland when he deems it appropriate to do so, even before the appeal from Yeung J.'s judgment is heard. However, that technical difficulty can be overcome by making a suitable amendment to the Notice of Application. On the assumption that the Applicants agree, I propose to give them leave to amend the Notice of Application so as to add a new para. 5 under the heading "Orders and Decisions in Respect of which Relief is Sought", which will read as follows:

"The decisions of the Director of Immigration to put the removal orders made or to be made against each of the Applicants into effect, by repatriating them to the mainland when he deems it appropriate to do so, even before the proposed appeal from the judgment dated 30th March 1999 of Yeung J. in HCAL 20/99 and HCAL 21/99."

For the reasons I have given, I give the Applicants leave to apply for judicial review of these decisions.

Interim relief

10. The immediate question, though, is what should happen until that application for judicial review is heard. In my view, the Applicants should be granted interim relief which has the effect of preventing their repatriation to the mainland for the time being. If they could be repatriated before the application for judicial review could be heard, granting them leave to apply for judicial review would have been an empty gesture. And if they could be repatriated before the appeal from Yeung J.'s judgment had been heard, they will be denied the opportunity of benefiting from the rights to which success in that appeal would have entitled them. Since the appeal is all about the rights of people in the same position as the Applicants to remain in Hong Kong, permitting the Director of Immigration to repatriate them in the meantime would render the outcome of that appeal meaningless for them.

11. Mr. Anthony Wu for the Director of Immigration has rightly reminded me of the need to take the public interest into account. In that connection, he urged me not to overlook what Yeung J. said at the end of his judgment about what would happen if those who had not obtained certificates of entitlement from the Director of Immigration were allowed to remain in Hong Kong. I do not wish to comment on what Yeung J. said, but he was addressing what he thought would happen if such persons were allowed to remain in Hong Kong permanently and were treated as enjoying the right of abode here. I am dealing with the very different situation of persons only being allowed to remain in Hong Kong temporarily while the issue whether in law they enjoy the right of abode in Hong Kong is reconsidered by the Court of Appeal. I do not discern public interest considerations of such weight as to justify depriving them of the rights to which a successful appeal would entitle them.

12. Nor have I overlooked the point which Mr. Wu made about the message which the grant of interim relief would send to persons from the mainland who claim to have acquired the right of abode in Hong Kong by parentage. The situation is a fluid one, said Mr. Wu. More people are likely to have overstayed in Hong Kong or to have arrived in Hong Kong surreptitiously in the three weeks or so which have elapsed since 10th March, when the number of people in the same position as the 17 Lau Kong Yung Applicants was said to be 811. It is said that the grant of interim relief could well encourage even more people coming to Hong Kong on two-way exit permits to remain in Hong Kong after their permits have expired, and even more people currently on the mainland to come to Hong Kong surreptitiously in order to claim parity with the current Applicants.

13. I see the force of that argument, but it is important not to overstate the position. The fact remains that if the appeal from Yeung J.'s judgment succeeds, such people will be regarded as having the right of abode in Hong Kong, despite the way in which they now come to be in Hong Kong. If the appeal fails, there can be no objection to their repatriation to the mainland then. In any event, this argument does not affect the 100 Applicants to whom this case relates. They are a finite group of people and are the only people with whom I am currently dealing. The fact is that, by permitting the 100 current Applicants to stay in Hong Kong until the appeal is heard, I would be doing no more than maintaining until the hearing of the appeal the status quo as it existed prior to Yeung J.'s judgment. If it was right then to permit them to stay in Hong Kong pending Yeung J.'s judgment, why it is not also right to permit them to stay in Hong Kong pending the appeal?

14. I turn, then, to the form of interim relief which I should grant. In my view, the most appropriate form of relief is a stay of the proceedings to which the application relates. That is the language of Ord. 53 r. 3(10), which has been held to be wide enough to enable the court to impose a stay on "the process by which the decision challenged has been reached, including the decision itself". Accordingly, pursuant to Ord. 53 r. 3(10), I direct the Director of Immigration not to put into effect any removal orders made or to be made in respect of the Applicants, i.e. not to repatriate any of them to the mainland, until after the hearing of the appeal from Yeung J.'s judgment.

The detention of the Applicants

15. The only remaining question is whether the Applicants should remain in detention pending the hearing of the appeal from Yeung J.'s judgment or whether they should be released, either or their own recognizance or on such other terms as may be appropriate. In view of the conclusion which I have reached on whether the Applicants should be permitted to remain in Hong Kong for the time being, it may be that the Director of Immigration is content for them to be released from detention. Mr. Wu told me yesterday that the Director of Immigration wished to reserve his position on that issue, and in a moment I shall be asking Mr. Wu what his instructions on the topic now are.

Other persons

16. Finally, I should emphasise that I can only deal with the Applicants whose applications are currently before me. I can make no order in relation to other persons whose position is said to be the same as the current 100 Applicants. Time and resources are said to have prevented other people being named as Applicants in these proceedings. I understand that entirely. I also recognise that there may be an arbitrary element as to which of the 811 persons identified on 10th March as being in the same position as the 17 Lau Kong Yung Applicants happen to be among the 100 Applicants in these proceedings. But there is nothing that I can do about that. I simply have no power to deal with those persons whose applications are not currently before me.

(After further submissions)

17. Although the Director of Immigration cannot repatriate the 100 Applicants to the mainland until the appeal from Yeung J.'s judgment has been heard, Mr. Wu has told me that the Director of Immigration is not willing to release the 100 Applicants from detention in the meantime. It is therefore necessary for me to address the question whether they should be released from detention now.

18. The starting point are the powers which the Director of Immigration has purported to exercise in detaining them. Those of the Applicants in respect of whom removal orders have been made are, I assume, being detained under section 32(3A) of the Immigration Ordinance pending their removal from Hong Kong. Those of the Applicants in respect of whom removal orders have not yet been made are, I assume, being detained under either section 26 of the Immigration Ordinance (which permits short periods of detention while inquiries are being made), or under section 32(2A) of the Immigration Ordinance (which permits the detention of persons for short periods of time pending the making of a decision whether a removal order should be made). The decisions to detain the Applicants under one or other of these powers are decisions which are challenged in these proceedings: see paras.1, 2, and 3 under the heading "Orders and Decisions in Respect of which Relief is Sought" in the Notice of Application.

19. This is again where Ms. Ng's second argument comes into play. In deciding to detain the Applicants, the Director of Immigration is said to be treating them differently from the 17 Applicants in the Lau Kong Yung case. Although he undertook not to re-detain those Applicants, he nevertheless detained the 100 Applicants in these proceedings, even though their cases are said to be indistinguishable in any material respect from the 17 Applicants. For the reasons I have already given, it is arguable, in my view, that the decision to detain the 100 Applicants, while not re-detaining the 17 Lau Kong Yung Applicants, is unreasonable in the public law sense. Accordingly, despite what I said earlier, I give the Applicants leave to apply for judicial review of the decisions set out in paras. 1, 2 and 3 under the heading "Orders and Decisions in Respect of which Relief is Sought" in the Notice of Application - though I emphasise that it is on this ground alone that I give them leave to apply for judicial review of those decisions. As I said earlier, the question whether they should be given leave to apply for judicial review of those decisions on the ground that such removal orders as have been or will be made are or would be invalid is one which should not be considered until after the appeal from Yeung J.'s judgment has been heard.

20. The remaining question, therefore, is whether interim relief should be granted to enable the Applicants to be released in the meantime. It is not said on behalf of the Director of Immigration that he wishes to have time to consider whether any of the 100 Applicants would not report to the Department of Immigration when called upon to do so. Indeed, the Director of Immigration's attitude to the Applicants prior to the handing down of Yeung J.'s judgment, and his attitude to the 17 Lau Kong Yung Applicants at all times, shows that this is not a concern of his. The only concern on the part of the Director of Immigration which Mr. Wu has pointed to is the message it sends to two-way exit permit holders and to persons in the mainland who might be tempted to come to Hong Kong clandestinely.

21. In the balancing exercise which I have to conduct, I have concluded that these considerations weigh less heavily than the need for the Director of Immigration to treat like cases alike. I appreciate that the grant of interim relief in effect decides the outcome of the applications for judicial review of the decisions to detain the Applicants, but despite that my view is that the Applicants should be released from detention until the appeal from Yeung J.'s judgment has been heard. Accordingly, pursuant to Ord. 53 r. 3(10), I direct the Director of Immigration to release the Applicants from detention, but subject to the same terms relating to recognizances or otherwise as the 17 Lau Kong Yung Applicants are subject to. In these circumstances, it is, I think, unnecessary to make any orders on the applications for writs of habeas corpus, and I decline to do so.