MO JIANMEI v. DIRECTOR OF IMMIGRATION

HCAL87/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 87 OF 2004

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J U D G M E N T

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1.  In these proceedings, the applicant applies to judicial review a Removal Order issued against her by the Director of Immigration (“the Director”) on 17 December 1999.  In issuing the Removal Order, the Director was of the view that the applicant did not fall within the Concession Policy announced by the Chief Executive on 26 June 1999 and was not entitled to be treated as one of the parties to the judgments of the Court of Final Appeal in the cases of Ng Ka Ling v. Director of Immigration and Chan Kam Nga v. Director of Immigration dated 29 January 1999.

Background

2.  The applicant was born on 7 February 1972 in Xin Xui, Mainland China. 

3.  Her father, Mr Mok Chak Yuen, was born in the Mainland on 3 April 1946.  Mr Mok married the applicant’s mother, Madam Hui Lai Kuen in 1969 in the Mainland.  They have three children.  The eldest two, being the applicant and her brother, Mr Mok Kin Wah, were born in the Mainland.  The youngest daughter, Miss Mok Kin Ying, was born in Hong Kong in 1985.

4.  The applicant’s father came to Hong Kong in May 1977.  In the same year, he was granted unconditional stay by the Immigration Department and was issued with a Hong Kong Identity Card.

5.  On 12 January 1984, Madam Hui came to Hong Kong together with the applicant’s brother, as her accompanying child, on the strength of One Way Permits issued by the Mainland Authority.  They have since settled in Hong Kong. 

6.  The applicant’s application to the Mainland Authority for One Way Permit had not been unsuccessful.  She subsequently went to Singapore to further her study.  In 1996, she completed her study and visited Hong Kong before returning to the Mainland.  Prior to that, she had been to Hong Kong to visit her family members.

7.  The applicant came to Hong Kong again on 23 December 1997 on a Two Way Permit to remain until 18 January 1998.  On 23 January 1998, she and her father attended the China Hong Kong Ferry Terminal at Tsimshatsui.  The applicant was granted an extension of stay up to 23 January 1998.  She departed from Hong Kong for the Mainland on the same day. 

8.  The applicant entered Hong Kong again on 15 February 1999 and was permitted to stay until 22 February 1999.  She continued to remain in Hong Kong after the permission for stay expired. 

9.  On 26 June 1999, the Chief Executive announced the Concession Policy.  The applicant made a claim to the Director that she was entitled to the benefit of the Concession Policy, but it was rejected.  A removal order was made against her on 17 December 1999.  Her appeal to the Immigration Tribunal was dismissed without a hearing.  The applicant was removed to the Mainland on 23 December 1999.

10.  On 10 January 2000, Madam Hui instituted HCAL 10 of 2000 to judicial review the decision of the Director.  Leave was refused.  Madam Hui appealed to the Court of Appeal against the refusal.  The appeal was allowed on 28 February 2003.   Pursuant to the leave granted by the Court of Appeal, Madam Hui issued a Notice of Motion for judicial review.

11.  By then, the applicant had already attained majority.  Eventually, Madam Hui did not continue the application in HCAL 10 of 2000 and it was dismissed with no order as to costs. 

12.  In the meantime, the applicant applied for and was granted legal aid.  She commenced the present proceedings on 7 July 2004.  Leave to judicial review was granted on 8 July 2004.  The applicant issued the Notice of Motion on 9 July 2004.  The Director takes no issue on the delay in making the application.

The Concession Policy

13.  Articles 24(2) and 24(3) of the Basic Law provide:

“	Article 24(2)
	The permanent citizens of the Hong Kong Special Administrative Region shall be:
	(1)	Chinese citizen born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region;
	(2)	…
	(3)	Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2);
	Article 24(3)
	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.”

14.  By judgments handed down on 29 January 1999 in the cases of Ng Ka Ling v. Director of Immigration and Chan Kam Nga v. Director of Immigration (1999) 2HKCFAR 4 & 82, the Court of Final Appeal held that: (i) a person falling within Article 24(2)(3) and who lived in the Mainland did not require One Way Permit to exercise his right of abode in Hong Kong, and (ii) Article 24(2)(3) applied to Chinese nationals born outside Hong Kong of Hong Kong permanent residents, irrespective of whether they were born before or after at least one of their parents had acquired the status of permanent resident. 

15.  On 26 June 1999, the Standing Committee of the National People’s Congress made an Interpretation of Article 22(4) and Article 24(2)(3), stating that persons falling within Article 24(2)(3) must apply to the Mainland Authority for approval to come to Hong Kong and that for a Chinese national to come within Article 24(2)(3), at least one of his parents must have already become a permanent resident of Hong Kong before he was born.  The Interpretation further states that it “does not affect the right of abode in the HKSAR which has been acquired under the judgment of the Court of Final Appeal on the relevant cases dated 29 January 1999 by the parties concerned in the relevant legal proceedings”.

16.  Also on 26 June 1999, the Chief Executive announced the Concession Policy whereby people who had arrived in Hong Kong between 1 July 1997 and 29 January 1999 and who had claimed the right of abode, can have their status as permanent residents verified in accordance with the judgments in Ng Ka Ling v. Director of Immigration and Chan Kam Nga v. Director of Immigration.

17.  In Ng Siu Tung v. Director of Immigration (2002) 5HKCFAR 1, the Court of Final Appeal held that to come within the Concession Policy, a person must satisfy the following requirements, namely,

(1)	He must have been present in Hong Kong at some period between 1 July 1997 and 29 January 1999, and
(2)	He must have made a claim for right of abode to the Immigration Department, and
(3)	The Immigration Department has a record of the claim so made.

The issue

18.  In the present case, there is no dispute that the applicant was present in Hong Kong for some time between 1 July 1997 and 29 January 1999.  The main issues between the parties are:

(1)	Whether the applicant had made a claim for right of abode to the Immigration Department between the window period while she was in Hong Kong; and
(2)	Whether the Director had a record of her claim for right of abode.

It is common ground that the applicant bears the burden of proving these matters.

The applicant’s case

19.  It is the applicant’s case that her father had in 1979 made two applications to the Immigration Department for his family members in the Mainland to enter Hong Kong to reunite with him.  One of them was for Madam Hui and the other one was for the applicant and her brother.  The applicant contends that her application bears the file reference no. of CSCH-11292-79. 

20.  It is also the applicant’s case that between 1989 and 1999, she had made several visits to Hong Kong, during which she and her parents had approached the Immigration Department on several occasions to enquire about the 1979 application her father lodged for her.  In particular, she relies on three visits to the Immigration Department offices on 30 December 1997, 17 and 23 January 1998.  The applicant says that she had made claims for right of abode on each of these occasions.  The applicant further relies on (i) the 1979 application lodged by her father, (ii) the computer record of the Immigration Department in respect of the applicant and (iii) the Application for an Extension of Stay form the applicant signed on 23 January 1998 as constituting records of her claim for right of abode.  

The Director’s case

21.  The Director’s case is that in 1979, the applicant’s father had only lodged one application for entry to Hong Kong.  This application was in respect of Madam Hui with the applicant and her brother being included in it as accompanying children.  The reference no. CSCH-11292-79 is a reference to the application file of Madam Hui.  

22.  The Director takes issue with the applicant’s case that she had made claims for right of abode during the three visits mentioned above.  The Department has no record of the first two visits said to have taken place on 30 December 1997 and 17 January 1998.  As for the third visit on 23 January 1998, the Director accepts that the applicant had applied for and was granted an extension of stay on that day, the Department, however has no record of and the Director does not accept that the applicant had made a claim for right of abode on that occasion or at all.

The applicant’s evidence

23.  The applicant and the Director had filed a number of affidavits dealing with the facts and circumstances relating to the issues.  In view of the contest on the facts, which cannot be resolved solely on affidavits, some of the deponents were required to attend at the hearing of the application to give oral evidence and be cross-examined.  Apart from the applicant, the applicant’s parents, who went with the applicant to the Immigration Department offices when she made a claim for right of abode, had also testified.  For the Director, two of the immigration officers who had given affidavits, Mr Li Pei Tak and Miss Ho Oi Ling Betty, were called.  Mr Li is a Chief Immigration Officer and his evidence deals mainly with the applicant’s assertion that her father had in 1979 lodged a separate application for her to enter Hong Kong, and which has remained outstanding.  Miss Ho is a senior immigration officer involved in processing the applicant’s application for extension of stay on 23 January 1998.  Her evidence relates to the events at the immigration control points at China Hong Kong Ferry Terminal on that day.   

24.  The evidence of the applicant and her parent on the several visits to the Immigration Department can be summarized as follows.

25.  Sometime during her visit to Hong Kong in 1996, the applicant went with her parents to the Immigration Department Headquarters in Wanchai and had a discussion with an officer about settling in Hong Kong. 

26.  Then on 3 July 1997, the first working day after the reunification of Hong Kong, the applicant’s parents went to the Immigration Department to make enquiries and were told that the applicant had to make application in the Mainland.  The applicant was informed about this by her father.

27.  On 30 December 1997, the applicant and her parents went to the Immigration Department Headquarters in Wanchai.  The applicant said the purpose of the visit was to enquire about her right of abode and the results of the application her father made for her in 1979, and she had brought with her the Hong Kong Identity Card of her father, the Notarial Certificate certifying their father/daughter relationship, her parents’ marriage certificate, and also her own Mainland birth certificate and Two Way permit.

28.  In the Form 86A and her affidavit, the applicant did not specify where in the Immigration Department Headquarters that they went and had the conversations with the immigration officer.  However, in answer to the evidence the Director filed to contradict this part of her case, the applicant said in her second affidavit that they first went to the Information Office on the 2/F.  After they mentioned the 1979 application, they were directed to an upper floor.  There, an officer asked for the applicant’s Two Way Permit and told her to wait.  After a while, she was called into a room where she showed the interviewing officer her documents.  The applicant’s father told the officer that he and the applicant’s mother were Hong Kong permanent residents and wanted to apply for the applicant to come to Hong Kong to join them.  The officer said there was no instruction from his superior.  After the applicant’s father informed him of the 1979 application, the officer left the room for about 10 minutes.  On his return, he said he had checked the computer and files and there was a record of the applicant’s application.  He further said that since the Department already had all the information, there was no need for the applicant to do anything more and the Department would follow up on the matter. 

29.  On 17 January 1998, the applicant accompanied by her mother went to the Chinese Visitors Office (“CVO”) of the Immigration Department in Yaumatei.  It was stated in the Form 86A that the purpose of the visit was to pursue her application for right of abode.  It however becomes clear from her oral testimony that the applicant went there to seek an extension of stay to await the outcome of her 1979 application.  After the applicant stated that she wanted to remain in Hong Kong to wait for the outcome of her 1979 application, the officer told her an extension could not be given on the strength of the reason she had mentioned.  The officer further said she would not have to fill in any form if there was already a record of her earlier application.  The officer also warned her that she would be arrested if she were to overstay.

30.  On 23 January 1998, the applicant accompanied by her father, went to the Immigration Department office at the China Hong Kong Ferry Terminal in Tsimshatsui.  By then, the applicant’s permission to stay in Hong Kong had expired for 4 days.  The applicant said she was worried she might be arrested and also of possible adverse effect on her father.  So she and her father decided to go the Ferry Terminal to have another try at an extension.  The applicant and her father bought ferry tickets for the Mainland and proceeded separately to immigration control counters.  The applicant produced her Two Way Permit and the counter officer noticed that she had overstayed.  The applicant said a female officer came and told her and her father, who had cleared immigration, to go to one side at the area behind the immigration counters. 

31.  According to the applicant, the female officer said she had overstayed and would be subject to arrest. When she asked for an extension of stay, she was told there was no law allowing her to do so.  According to the applicant’s father, he heard the officer scolding the applicant, saying she could be arrested for having overstayed and might not be allowed to come to Hong Kong again.  He said he was angry and he went over and scolded the officer, pointing out that under the Basic Law, children whose parents were Hong Kong permanent residents had the right to live in Hong Kong, not to say an extension of stay.  He asked the officer the reason for not allowing the applicant to reside in Hong Kong and for refusing her an extension of stay.  He also mentioned he had put in an application for the applicant in 1979, but there was no result thus far. 

32.  It is said that the officer then went into a room and came out later together with a male officer and a completed form.  The applicant said she was told to sign on the form.  The applicant said she signed without reading the contents.  She was not aware the word “overlook” was written on the form as the reason for requesting an extension.  She said if she were given the opportunity to do the writing, she would have written in the form she had the right of abode and she was applying for an extension to await the outcome of her 1979 application.  Eventually, the applicant and her father departed Hong Kong for the Mainland via the Ferry Terminal on the same day. 

The evidence for the Director

33.  The evidence led by the Director shows that the Department does have in its computer record an entry showing the reference “CSCH-0011292-79”.  CSCH is short form for “CRS/CH” which was a prefix previously allocated to applications for entry to Hong Kong. 

34.  After 1949, Mainland residents who wished to enter Hong Kong had to obtain exit permits from the Mainland Authority.  Before 1979, non-Guangdong residents were additionally required to make applications to the Hong Kong Government for entry to Hong Kong while residents of Guangdong were exempted from the requirement of a Hong Kong entry permit but subject to a daily quota. In January 1979, the exemption was removed such that all residents in the Mainland had to apply for Hong Kong entry permit.  The consequential surge in the number of such applications led the Immigration Department to decide in March 1979 to stop accepting new applications and to stop processing applications received after 15 January 1979.  Since then, the Immigration Department would only issue entry permits to people who had ordinarily resided in Hong Kong for a continuous period of not less than seven years or who were British Dependent Territory Citizens.  Consequently, residents in the Mainland had to hold valid exit permits issued by the Mainland Authority before they would be allowed to enter Hong Kong for residence.    

35.  The CRS/CH files (i.e. applications for entry to Hong Kong by people from the Mainland or Macau) created up to March 1979, about 22,000 in number, were destroyed in August 1999 in the course of the Department’s regular review of records.  The physical file of CRS/CH/11292/79 was also destroyed on 5 August 1999.

36.  Although the actual form(s) filled in by the applicant’s father could not be retrieved by reason of the destruction of the relevant file, Mr Li had retrieved from the Department archives and produced two sample forms that were in use in early 1979 for making applications for entry to Hong Kong from Macau or China.   Before January 1979, the fist sample form was used only by non-Guangdong (or non-Cantonese) residents as Guangdong residents were not required to apply to Hong Kong government for permission to enter Hong Kong.  In January 1979, because of delay in the printing of the new forms, Guangdong residents, who were then also required to make applications for entry into Hong Kong, also used the first sample form to apply for permission to enter Hong Kong.  The second sample form was the new form that was available in February 1979 and used by all Mainland residents.  The second sample form remained in use until March 1979 when the Department decided to stop accepting new applications and to stop processing pending applications that were made after 15 January 1979.

37.  The two sample forms, apart from the headings, are in substance the same in contents and form.  Part A of the forms was for filling in the details of the applicant in Macau or China and Part B was for the details of the sponsor in Hong Kong.  Item 9 of Part A was for filling in the name(s), date(s) of birth and place(s) of birth of “accompanying children under 16 years of age” and there was space on the form for up to five children.  

38.  Mr Li also produces on-line computer printouts from the Department’s PA System in respect of the applicant, her mother and her brother.  They show that in the Department’s computer record, the “CSCH-0011292-79” reference appears not only in respect of the applicant, but also as well as her mother and her brother. 

39.  Additionally, Mr Li also produces a file minute contained in the Department’s file in respect of the applicant’s brother, created after the applicant’s brother had entered Hong Kong on a One Way Permit.  The minute was dated 14 April 1998 and in connection with his application for unconditional stay in Hong Kong.  It was noted in the minute that:

“File CRS/CH/11292/79 showed that [sic] the applicant was an included minor on an [sic] application for entry to join husband dd. 3/1979.” 

40.  This internal minute suggests that the applicant’s brother was included as an accompanying child in the 1979 application for entry to Hong Kong of the applicant’s mother.  Based on this and also the fact that the same CSCH reference appears in the computer records of the applicant, her mother and her brother, Mr Li is firmly of the view that only one application for entry to Hong Kong was lodged in 1979.   Mr Li’s evidence is that if the applicant’s father had lodged two separate applications for (i) the applicant and her brother and (ii) the applicant’s mother, there would have been two different reference or file numbers in the Department’s computer records.

41.  Mr Li further testifies that the computer printouts that he produces are in the same form as the results that would show up if one were to conduct a computer check in the period between 1 July 1997 and 29 January 1999.  Accordingly, if an immigration officer were to conduct a computer check against the applicant, he could only see the CSCH reference no., but not any other information, including the details and status of the application.  The officer would need to go to the physical file for information on the application.  In the case of the applicant, it would take several days to retrieve her file from the filing section of the Department as the computer printout shows that her file had not been microfilmed.

42.  In respect of the visit to the Immigration Department Headquarters in Wanchai on 30 December 1997, the Director’s evidence in summary is that it is not possible for an officer at the Information Office on the 2/F. to have conducted a computer search of the Department records and told the applicant that the Department had a record of her application that contained all the information.  This is because officers working at the Information Office were not authorized to and could not have access to the Department PA System and computer records.  

43.  The Director’s evidence is that the applicant’s evidence on the visit on 30 December 1997 is inconsistent with the practice adopted at the Information Office of the Headquarter at the time.   This is because if an enquiry was accompanied by sufficient particulars, it would be referred to the processing section for a reply on a later date.  As for enquiries relating to right of abode in respect of residents in the Mainland, the officers working at the Information Office had since July 1997 deployed standard responses, including that Mainland residents had to apply for Certificates of Entitlement from the Mainland.  In this connection, it is to be noted that by then, the Court of Final Appeal had not handed down the judgments in in Ng Ka Ling v. Director of Immigration and Chan Kam Nga v. Director of Immigration whereas the Certificate of Entitlement Scheme was upheld by Keith J in his judgment of 9 October 1997.

44.  As mentioned above, in reply to this part of the Director’s evidence, the applicant had made a second affirmation to the effect that the conversations with the immigration officer, including the computer check, took place not at the Information Office on the 2/F, but on an upper floor.  In answer to this, the Director had filed evidence to the effect that at the material time, it was only when a Mainland visitor’s limit of stay had expired when he approached the information office that the officers there would make a referral to the General Investigation Section on the 13/F.  Other than this, officers of the Information Office would not refer any Mainland visitors to other floors of the Immigration Tower in Wanchai.

45.  As for the applicant’s visit to the CVO on 17 January 1998, the Director’s evidence is that the office is for handling applications for extension of stay by Mainland visitors made within their period of stay.   Since 10 December 1996, the CVO had adopted a system whereby the names of people visiting the office to enquire about or to make applications for extension of stay would be noted down for statistical and record purposes.  However, as a result of the relocation of the CVO in 1999, some of the records had gone missing.  At the same time, people who approached the CVO to apply for extension of stay had to fill in a set of forms.  The forms would be indexed and inputted into the computer record of the Department under the Permit & Visa (P&V) System while the original paper would be kept in the physical files.  Accordingly, the CVO still maintains a complete record of previous extension of stay applications. 

46.  A search of the records of CVO had been done and no record of any application for extension of stay or enquiries made by the applicant on 17 January 1998 could be located.  The Director says that this shows that the applicant either had not approached the CVO at all on the day or had only made some general enquiries without submitting any application for extension of stay.              

47.  On the incident on 23 January 1998, the evidence from the Director shows that the main function of the Immigration Department office at the China Hong Kong Ferry Terminal is to conduct immigration clearance for passengers arriving and departing from Hong Kong via the ferry terminal.  Departing passengers had to passed through the check-in gate before reaching the immigration control points and the office, which were located within the Restricted Area. 

48.  Miss Ho, who handled the applicant’s application for extension of stay, gave evidence that the applicant’s case was referred to her by the counter officer as she had overstayed.  Due to the lapse of time, Miss Ho did not have recollection of what exactly took place between the applicant and her father and herself on the day, but she said she would not have interviewed the applicant or anyone at the counter area.   Miss Ho explained that apart from the Duty Officer’s room, there was another room used for conducting interviews.  Miss Ho’s evidence is that, as in the normal case, she would have enquired about the reasons for the overstay and if it was not a case that would call for a prosecution, she would get a verbal consent to an extension from the senior officer.  After the consent was given, she would either ask the applicant to fill out the application form or ask the assistant to the Duty Officer to fill out the form for her.   Looking at the application form in question, Miss Ho believes that the applicant must have told her that she overstayed because she overlooked the expiry date of her stay. 

49.  Miss Ho also testified that if it were a simple straightforward interview, it would not be necessary to record the interview.  Otherwise, a written report of the interview would have to be made on what is called a “Secondary Examination Sheet” (“SES”).   Part D of SES contains the notes of the interview and Part E is for recording additional information.  Miss Ho said that all information about the overstay given by a visitor or other matters volunteered by the person would be recorded in these parts. 

50.  In respect of the applicant’s overstay and extension application, no SES was prepared.  Miss Ho does not accept that the applicant or her father had made a claim for right of abode to her or told her there was a 1979 application pending or that the applicant sought an extension to await the outcome of the 1979 application.  Miss Ho said if these things had been said, she would have made a record and prepared a SES.  She would also have made a check to see if there was such an application and the progress of it.  It is her evidence that she had not conducted any checking on the Department PA System in respect of the applicant because if she had, there would be a SES showing the results of the checking.  Miss Ho further refuted the applicant’s case that she had an argument or quarrel with the applicant’s father.  She pointed out that if this had happened, there would be all the more reason to prepare a written report on a SES as this was required by the Departmental guidelines. 

Findings on the 1^st issues

51.  Having regard to the totality of the evidence received in this application, I am not satisfied on a balance of probabilities that the applicant had as a matter of fact made claim(s) for right of abode during her stays in Hong Kong in the period between 1July 1997 and 29 January 1999.  The applicant’s case is fraught with a number of difficulties when assessed against the systems in place in the Immigration Department, the evidence on which has not been challenged, and also other objective circumstances.

52.  It is important to note at the outset that there is evidence that the record and computer systems of the Immigration Department are unreliable.  Yet, despite the application for extension of stay form filled out on 23 January 1998, the Department does not have any attendance record of the approaches or visits claimed by the applicant.   

53.  In respect of the first occasion relied upon by the applicant, namely, the visit to Wanchai Immigration Tower on 30 December 1997, the uncontroverted evidence is that it is not possible for the events claimed by the applicant to have taken place at the Information Office at the 2/F of the Wanchai Immigration Tower.  The evidence filed by the Director also shows that it is contrary to the practice in place at the Information Office for an officer to have referred the applicant and her father to some other office in an upper floor.

54.   Further, as Mr Wan submits, given the state of the judicial decisions at the time, which had upheld the need to apply for Certificate of Entitlement from the Mainland, it is inherently improbable that the officer at the Information Office would have departed from the practice and would have referred the applicant to an upper floor when the stated purpose of her visit was to pursue right of abode and a 1979 application for entry to Hong Kong.  Equally, it is inherently improbable for an immigration officer working at an upper floor to have assured the applicant that because there was a record of her 1979 application, she needed not do anything and the Department would follow up on the matter.       

55.  More importantly, the applicant’s statement in her second affirmation that she was directed to an upper floor where the exchanges with the immigration officer took place is in stark contrast to what her previous case was.  Both in a letter dated 8 January 2000 from the applicant’s mother to the Court in support of her application in HCAL 10/2000 and another letter dated 23 January 2003 from the applicant to the Chief Judge, High Court in connection with the appeal arising out of HCAL10/2000, it was stated that the applicant went on 30 December 1997 to the Information Office of the Wanchai Immigration Tower and applied for right of abode, but was refused. 

56.  The letter dated 8 January 2000 is particularly telling.  It is evident from the testimony of the applicant’s mother in court that the letter was jointly drafted by the applicant and her parents.  In this letter, it was stated that the applicant, accompanied by both her parents, went to Wanchai Immigration Tower on 30 December 1997 and asked the officer at the Information Office for form(s) for application for right of abode.  The letter further stated that the officer said there was no such form and he did not know from which department could the form(s) be obtained.  Plainly, this account is rather different from the applicant’s case and evidence in the present proceedings, not only in terms of the location, but also in respect of who was present and what was said by the immigration officer.   There is no satisfactory explanation for the differences in the two accounts given, bearing also in mind that the mother’s letter was written much earlier in time when the applicant and her parents’ memory should have been clearer, and also the fact that the reference to being referred to an upper floor was only raised in the applicant’s second affirmation filed much more recently.   

57.  Even accepting that the applicant did have an interview at the upper floor and had informed the officer of her 1979 application, it is inherently improbable that the officer could have made a computer or even file search within 10 minutes or so and been in a position to accept the applicant’s case that she had a pending 1979 application for entry to Hong Kong.  The evidence of Mr Li Pei Tak shows that it is not possible for an on-line search on the PA System to reveal any information about the CSCH reference or file, let alone the status whereas the access to the physical file would take a few days. 

58.  As to the second occasion on 17 January 1998 at the CVO, the applicant confirmed in her evidence in court that the purpose of the visit was to seek an extension of stay so as to await the result of her 1979 application.  Notwithstanding that and despite that the limit of her stay would expire on the following day, she did not fill in a ID91 form for an extension of stay nor make any extension of stay application in the end.  The Immigration Department does not have any record of her having made an extension of stay application at the CVO.  It is difficult to understand why it was that no application form was filled out and no application was made for extension of stay, when that was the very purpose of the visit.  It is to be noted that in cross-examination, the applicant said the officer told her if there was really a record of her application, then there would be no need for her to file another application.  She could not remember whether the immigration officer at the CVO had conducted any computer check..  In the circumstances, it is strange that she did not make any application for extension of stay. 

59.  In fact, this visit was not mentioned at all in the applicant’s mother’s letter dated 8 January 2000.  The omission is not insignificant when one considers that HCAL10/2000, for which the letter was written, was also to challenge the Director’s decision that the applicant did not fall within the Concession Policy and therefore liable to be removed from Hong Kong. 

60.  Turning to the third occasion on 23 January 1998 at the China Hong Kong Ferry Terminal, although the applicant’s case is that the purpose of the visit was also to seek an extension of stay to await the outcome of her 1979 application, the objective circumstances suggest this is not the case.  The evidence on the functions and the layout of the immigration office at the Ferry Terminal shows that it is in substance an immigration control point. The fact that it is located in the Restricted Area after passing through the check-in gate for departure suggests to a reasonable person that it was obviously not an appropriate place for applying for an extension of stay.   Indeed, not only had the applicant bought ferry ticket for the ferry to the Mainland, she had also packed and brought her personal belongings with her, which is indicative of her being prepared and intending to return to the Mainland. 

61.  The descriptions in the applicant’s letter to the Chief Executive dated 21 January 2001 and her mother’s letter to the court dated 6 March 2002 of how the applicant came to leave Hong Kong and return to the Mainland on 23 January 1998 are also rather different from her evidence in these proceedings.   Both letters show that the applicant was intending to and did willingly leave Hong Kong on that day, albeit because of fear of being arrested for overstay and the possible adverse effect on her family in Hong Kong.  In particular, it was stated in the letter dated 6 March 2002 that after the limit of her stay expired, immigration officer had telephoned and warned of the consequences of overstaying on the applicant and those who aided her by providing her with a shelter.

62.  Thus viewed, the applicant’s assertions on the events relating to her visit to the China Hong Kong Ferry Terminal and of having made a claim for right of abode must be open to considerable doubts.  On the other hand, the evidence of Miss Ho, who had recommended an extension of stay to cover the four days of overstay, is in my view cogent and convincing.  Although she now has no direct recollection of what took place between her and the applicant and her father, her evidence that the events could not have occurred in the way suggested by the applicant and her father and the reasons she gave for it is logical and persuasive.  As Miss Ho said, it is improbable that there would be no SES or other record prepared for the incident had there been a heated argument and/or claim for right of abode as the applicant said.

63.  As for the Application for Extension of Stay form that was made out that day for the applicant, the applicant had said she signed without reading it first as she was afraid.  However, the applicant accepted in cross-examination that she was not prevented from writing on or adding to it.  It is therefore open to her to state in the form that she had the right of abode or that she had a pending application for entry to Hong Kong and that she overstayed in order to await the outcome of it.  In view of the circumstances leading to this occasion at the Ferry Terminal, especially the fact that the applicant was intending to return to the Mainland, I agree with Miss Ho that only the word “overlook” was put down as the reason for requesting an extension is indicative of this being the only reason offered by the applicant, and that she had not claimed to have a right to be in Hong Kong or that she was waiting for the outcome of her 1979 application.         

64.  I turn finally to the dispute on the 1979 application.  The applicant had no independent knowledge of it and her information all came from her father.  It is the applicant’s father’s recollection that he had made a separate application covering the applicant and her brother.   He had also previously said that there was no space in the form for filling in accompanying children as the term did not feature in the application form.  In his evidence in court, he however explained that he made separate application for the children because he did not want to jeopardize the children’s opportunity in case the wife’s application should fail.   These are unsatisfactory and unconvincing in view of the evidence adduced by the Director on the issue.  In her letter dated 23 January 2003 to the Chief Judge, High Court, the applicant’s case on this point is that her application was an independent one.  The suggestion in paragraph (5) is that her application was independent and separate from her brother’s as well.  In my view, the accounts and evidence given by the applicant’s father on this point is neither credible nor reliable.

65.  In short, the state of evidence is such that the applicant has failed to prove and make good her case that she had made a claim for right of abode to the Immigration Department on 30 December 1997, 17 and 23 January 1998.  The applicant therefore fails on the 1^st issue.   

Record of claim

66.  Having found against the applicant on the 1^st issue, it would not have been necessary to deal with the 2^nd issue of whether the Department has a record of the applicant’s claim.  However, for the sake of completeness, I would briefly deal with the applicant’s argument that the 1979 application, the computer record of the Immigration Department in respect of the applicant and the Application for Extension of Stay dated 23 January 1998 together amount to a record of the claim of right of abode by the applicant.   

67.  In Ng Siu Tung v. Director of Immigration (No.3) (2004) 7 HKCFAR 29, at 32-33, the Court of Final Appeal confirmed that the record of a claim may consist of more than one documents and may comprise notations and endorsements on documents and that a record may consist not only of a written claim for right of abode, but also a record of such a claim having been made.  It further held that the critical question in determining whether there was a record of a claim was whether the relevant documentary material constituted, on its face, either a claim for right of abode or evidence that such a claim had been made.  In determining whether the documentary evidence constitutes, on its face, evidence that such a claim was or had been made, it is permissible to have regard to other circumstances.  By way of example, the Court of Final Appeal stated that it is permissible to characterize the documentary material as constituting such evidence in the light of the circumstances in which it was brought into existence by reference to the fact that an applicant had made a claim for right of abode, so long as one is doing no more than characterizing what appears on the face of the documentary material.

68.  The three documentary materials relied upon by the applicant, when measured against these yardsticks, cannot, on its face, amount to a record of claim of right of abode or evidence that such a claim had been made.  The 1979 application, as is apparent from the sample forms produced in evidence, was for the specific purpose of applying for entry to Hong Kong.  It could not have anything to do with any right of abode enjoyed by the applicant.  The concept of right of abode did not exist under the immigration law in Hong Kong in 1979. The evidence also shows that such applications had ceased to be processed since March 1979.

69.  Similarly, the online computer printouts of the PA System in respect of the applicant disclose nothing other than the CSCH reference no.   Mr Kwok submits that the computer system of the Department would have registered records of access to the applicant’s computer records made on the occasions she visited the Immigration Department offices to make claims for right of abode.  Mr Kwok says this is capable of corroborating the applicant’s case of her having made a claim for right of abode.  I am unable to accept this.  The submission has no basis in view of my findings on the 1^st issue.  Additionally, there is no evidence that the Department’s computer records contains information of access to the applicant’s records as submitted by counsel.  The applicant had not sought discovery against the Director on this.  It is therefore speculative to say that the computer records of the Department would contain information of access made by the immigration officers to the applicant’s computer records on the occasions she allegedly made a claim for right of abode.

70.  As for the ID91 form dated 23 January 1998, only the word “overlook” appears on it.  It does not, on the face of it, constitute a record of the applicant having made a claim of right of abode.  This will be so even if the circumstances in which it came into existence are taken into account.       

Conclusion

71.  For the above reasons, the application is dismissed with an order nisi that the applicant pays the respondent the costs of the application.  The applicant’s own costs be taxed in accordance with the Legal Aid Regulations.