NG SIU TUNG AND OTHERS v. DIRECTOR OF IMMIGRATION

HCAL 81/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.81 OF 1999

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BETWEEN

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REPORT TO THE COURT OF FINAL APPEAL

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1. In a judgment dated 30 July 2002, the Court of Final Appeal (‘the CFA’) remitted certain issues, entirely factual in nature, to this Court for determination.  The CFA directed that, after this Court had made its findings, it should submit a report to it.

2. The need for the report arises in the following manner :

(a)      On 10 January 2002, the CFA handed down judgment (‘the January judgment’) in respect of the appeals of more than 5,000 persons who by way of judicial review proceedings had sought to quash decisions of the Director of Immigration (‘the Director’) denying them right of abode in Hong Kong.  All these persons (‘the applicants’) were Chinese nationals born in the Mainland, all having at least one parent who was a permanent resident of Hong Kong.

(b)     The applicants who are the subject of this report claimed that they were entitled to right of abode because they fell within the parameters of a policy decision made by the Chief Executive in Council and announced to the public on 26 June 1999 (‘the concession policy’).  The Director refuted their claims.

(c)     In its January judgment, the CFA upheld the following requirements of the concession policy as being both reasonable and rational; namely, that—

(i)    an applicant must have been present in Hong Kong at some time during the period encompassed by the concession policy; that is, from 1 July 1997 to 29 January 1999;

(ii)    while present in Hong Kong during that period, the applicant must have made a claim for right of abode to an officer or officers of the Immigration Department; and

(iii)   the Immigration Department must have a record of such claim.

(d)     In its January judgment, the CFA directed the parties to consult in order to agree draft orders that would dispose of the appeals in accordance with its judgment.  The great majority of appeals were disposed of in this manner.  However, more than 200 applicants, who had come before the CFA on the basis that they were entitled to right of abode by reason of the concession policy, sought further directions.  They did so on the basis that factually they qualified as beneficiaries of the January judgment, claims that were disputed by the Director.

(e)      In order to resolve these disputes, the CFA in its judgment of 30 July 2002 (‘the July judgment’) directed this Court to hear relevant evidence and to make a determination in respect of each applicant.  The CFA’s directions, to which I shall refer later, were specific as to what matters of fact were to be determined in respect of each of the applicants.

3. In August 2002, when this Court was first seized of the outstanding cases remitted to it, it was estimated that some 216 cases would require resolution.  As I have indicated, all of these cases (with the exception of two which are not the subject of this report) were founded on the assertion that the applicants qualified as beneficiaries of the January judgment by reason of falling within the parameters of the concession policy.

4. With such a large number of cases to prepare, the legal representatives of the applicants were faced with considerable logistical difficulties.  Individual applicants had to be located.  A number of applicants, for example, had already returned to the Mainland.  Thereafter, the cases of the applicants who had been located had to be put into order so that the Director could submit evidence in reply.

5. In a series of directions hearings, it became evident that if the cases of all 216 applicants had to be made ready before any trial took place the delay would be unacceptable.  The direction was therefore given that, as and when a sufficiently manageable number of cases had been made ready for trial, those cases would be brought on for hearing.  In the result, when the first substantive hearing commenced in March 2002, some 40 cases had been made ready.

6. The hearing of these cases, with occasional exceptions, took longer than anticipated.  This Court sat for a total of 40 days in two sessions; that is, in March/April and June/July 2002.  In that period, just 22 cases were finalised.

7. Even accepting that substantial background evidence had to be given by officers of the Immigration Department, in my view the basic reason for the slow progress lay in the polarised approach of the parties as to whether, factually, oral claims had or had not been made and, of greater difficulty, what, in terms of the January and July judgments, was capable of constituting a record of any claim made for right of abode.

8. In my opinion, an early resolution of that that latter issue will enable the remainder of the cases to be determined with far greater speed and financial economy than has hitherto been the norm.  I have therefore deemed it prudent to submit a report at this relatively early stage of the disposal of the outstanding cases so that, in respect of the cases already finalised, I am able to state what, in my judgment, in terms of the January and July judgments, is or is not capable of constituting a record under the concession policy.

9. Accordingly, this report constitutes the first report to the CFA pursuant to the directions given in the July judgment.

The directions given to this Court in the July judgment

10. In its July judgment, in considering the cases of the applicants who claimed that they fell within the parameters of the concession policy, the CFA divided those applicants into seven groups.  For the purposes of this report, reference need only be made to four of these groups; that is, groups one, two, four and five.

11. Group One consisted of ‘overstayers’; that is, persons who had been permitted entry to Hong Kong from the Mainland for a specific period of time on the strength of a two‑way permit but on the expiration of that period of time had remained in Hong Kong.  Persons in this group claimed that they had made claims for right of abode but, under threat of removal, that their claims were not recorded as they had made them, if at all.  The CFA observed that the cause for this—

“      … is alleged to have resulted from a practice adopted by officers of the Immigration Department whereby standard answers were attributed to such applicants and inserted in relevant Immigration Department documents, instead of recording the actual claims made.”

12. I would record that the majority of cases which have been determined in this report have fallen into this first group.

13. Group Two consisted of persons who had also come to Hong Kong from the Mainland for a specific period of time on the strength of a two‑way permit but, before the expiration of that permit, had sought an extension of stay.  Persons in this group claimed that they had put forward a claim for right of abode as their reason for seeking an extension but that their claims had not been recorded as they had made them, if at all.  The CFA recorded that the allegations were to the effect that—

“      They were told by officers of the Immigration Department that a claim for right of abode was not a ground for granting an extension.”

14. In respect of Group One and Group Two, the CFA remitted the following two issues for determination by this Court; namely—

“(a)     whether, in each case, the applicant made a claim for right of abode; and,

(b)     if so, whether the Director has a record of that claim as required by the Concession.”

15. Group Four consisted of persons who had been prosecuted by the Director for overstaying; that is, remaining in Hong Kong beyond the permitted limit of their stay.  Persons in this group claimed that, when brought before a magistrate, they had made statements in mitigation and in those statements had spoken words which amounted to a claim for right of abode.

16. The CFA observed that a record resting solely in a magistrate’s papers was insufficient to satisfy the requirements of the concession policy.  In this regard, in the July judgment (para.38) the following is said :

“      … if such a claim was made to the magistrate alone, it is insufficient for the purposes of the Concession.  In accordance with paragraph 206 of the January Judgment, a claim must be made to the Immigration Department or referred by a government agency to the Immigration Department in the course of its duty.  A magistrate obviously cannot be regarded as the Immigration Department.  Nor can the court transcript of proceedings before the magistrate in itself be regarded as the required recorded of any such claim.”

17. The CFA accepted, however, that it was arguable that, if officers of the Immigration Department had either prosecuted the cases or had been in court at the time and, whatever their role, had made notes of what was said, then such notes were capable of constituting a record for the purposes of the concession policy.

18. In respect of Group Four, the CFA therefore remitted the following three issues for determination by this Court; namely—

“(a)        whether, in each case, the applicant made a claim for right of abode;

(b)       if so, whether on the evidence as to the circumstances in which the claim was alleged to have been made, such claim was made to the Immigration Department; and,

(c)       if so, whether the Director has a record of that claim as required by the Concession.”

19. Group Five consisted of persons who claimed that, when arrested by the police for overstaying, they had made a claim for right of abode.  Such claim, they said, would have been entered into a police notebook and in the ordinary course of events would have found its way into the records of the Immigration Department.

20. In qualifying the right of Group Five applicants to claim that they fell within the parameters of the concession policy, the CFA said the following in the July judgment (paras.41 and 42) :

“      It is however common ground between the parties that, as a matter of routine practice, police notebooks have usually been destroyed after three years so that such notebooks no longer exist to verify such claims or to provide the basis for relevant records in the Immigration Department coming into existence.

       In our judgment, where nothing capable of amounting to the required record of a claim for right of abode exists, the applicant necessarily falls outside the Concession.  The argument that this is or may be the result of the destruction of police notebooks is not an answer.”

21. The CFA recognised, however, that, in respect of certain applicants, police records may still be in existence and that those records, if in some form resting with the Director, were capable of constituting a record under the concession policy.

22. In respect of Group Five, therefore, the CFA remitted the following two issues for determination by this Court; namely—

“(a)        whether, in each case, the applicant made a claim for right of abode; and

(b)       if so, whether the Director has a record of that claim as required by the Concession.”

The administration of the concession policy

23. When the concession policy was made public on 26 June 1999, the press release contained details of the number of persons who it was estimated would be beneficiaries under the policy.  I understand that the list of beneficiaries (‘the concession list’) originally contained about 3,700 names.  Evidence was given that different sections of the Immigration Department were asked to search their files for details of persons who had made claims.  Figures on the list were updated from time to time and by September 1999 the list contained some 3,950 names.  This list included what have been described as ‘possible or doubtful concession cases’ which required further consideration.

24. It was the evidence of the Director’s officers that inclusion at any time on the concession list did not per se imply that the named individual had been formally recognised as a beneficiary.  Inclusion may, for example, have been the result of human error, an error which, when later discovered, resulted in removal from the list.

25. In light of this evidence, which I accepted as being a rational reflection of the necessary difficulties involved in managing the policy, while inclusion on the concession list at any one time was a relevant factor, it was only one factor which assisted me to determine the specific factual issues remitted by the CFA.

The limits of this Court’s jurisdiction

26. Although essentially self‑evident, in my judgment it must nevertheless be emphasised that the jurisdiction of this Court is limited solely to determining the factual issues remitted to it.  It has no jurisdiction, no matter how obliquely, to re‑interpret the nature and scope of the concession policy already determined by the CFA in its January and July judgments.

The requirement that ‘a claim’ for right of abode should be made

27. There is no technical or formalised way nor any set procedure laid down under the concession policy for making a claim for right of abode.  In its January judgment (para.231), the CFA defined the approach to be adopted in the following way :

“      … we take the view that the rational approach should be to judge whether a claim was in substance being made.  So long as the message was clear and could reasonably be understood to constitute a request to be granted the right of abode in Hong Kong, this was enough to constitute a claim.”

The CFA was here speaking of claims contained in letters but, in my judgment, reading both the January and July judgments, that approach is clearly intended to be of general application.  A claim therefore did not have to be couched in any specific terms.  No fixed litany was prescribed.  After all, they were made by lay people not lawyers, they were made by persons who were strangers to Hong Kong’s legal system and the workings of Hong Kong’s bureaucracy.

28. Nor was it necessary for a claim to be in writing.  An oral claim meets the requirements of the concession policy.  As the CFA said in the January judgment (para.212) :

“      The Director of Immigration requires that, to constitute a claim, there must either be something in writing or it was made in such a way that the Immigration Department would have kept a record of it.  In other words, it need not be in writing, but there must be a record of such claim with the Department.  In our view, this requirement is neither a misinterpretation of the policy decision nor misapplication of it.”

29. Purely passive conduct, however, was not capable of constituting a claim.  In this regard, in the January judgment (para.215), the CFA said :

“      The applicants argue that by mere presence or overstaying in Hong Kong (of which the Director of Immigration must have a record), an applicant can be considered as asserting his right of abode here.  This cannot be right.  There can be many reasons, other than assertion of the right of abode, for presence or overstaying in Hong Kong.”

The CFA continued by saying that an applicant cannot—

“      … expect to be recognised as a claimant for the right of abode if he does not come forward and assert his right, if any, to the Immigration Department.”

30. In the January judgment, in respect of Group Two persons who sought an extension of stay, the CFA said (para.224) :

“      Where a person did not indicate in his application for extension of stay or in his interview with Immigration staff that he was claiming a right of abode or that he wanted to await the judgments, but instead relied on other grounds, the Director of Immigration was entitled to regard the application or statement in the interview report as not amounting to a claim for the purpose of the policy decision.  There is no question of unfair or differential treatment.  If a person wanted to continue to stay in Hong Kong, it was for him to indicate his real reason for doing so and that he was asserting a right of abode.  There is no reason why he should not and could not convey this in his application or interview.”  [my emphasis]

Although this was said in respect of persons falling into Group Two, on a reading of the January and July judgments I am satisfied that the observations are of general application.

31. Of central importance, in my view, is the finding of the CFA that an inquiry, however it may have been phrased, does not constitute a claim under the concession policy.  In this regard, the CFA said in its January judgment (paras.226 and 227) :

“      It is alleged that some applicants either personally or by their parents or relatives went to the Immigration Department to make a claim for right of abode.  Some even brought with them documents supporting their claims.  They were however discouraged or dissuaded from doing so.  The standard response by the staff of the Immigration Department was that they should return to the Mainland and apply to the authorities there for one‑way exit permits or certificates of entitlement.  It is submitted that they were wrongly rejected as having only made inquiries and the Director of Immigration had failed to keep any record of such claims.

227.        These complaints must be understood in the light of the prevailing circumstances.  According to the Immigration staff, there were well over one million inquiries a year at the immigration counters or through the telephone.  It is difficult to expect that a record would be kept for all these inquiries.  The Immigration staff’s standard response was indeed stating what the law was or what they understood it to be.  If a person had really wanted to make a claim for right of abode as opposed to making a general inquiry, he should not have been deterred by such response.  The evidence is that where a person attending the Immigration Department wished to make a claim and had brought with him the relevant documents, he would be referred to a senior officer.  He would be interviewed and a record would have been kept of such interview.  The Director of Immigration cannot be criticised for rejecting persons who were merely making inquiries as not qualifying under the policy decision.”

32. While, however, a claim has to be actively asserted, that assertion does not have to be direct.  This is best illustrated, I believe, by the CFA’s classification in the January judgment of certain applicants who had applied for legal aid in order to join thousands of others seeking right of abode by way of a judicial declaration of their rights.  In speaking of this, the CFA (para.220) said :

“      As regards those persons who had applied for legal aid but were referred to the Immigration Department with a letter requesting notification in case a removal order was to be made, it is not clear whether they were cases which the Legal Aid Department did not consider as meritorious cases.  However, the cases within this group, whether meritorious or not, were cases in which the applicants were intending to claim the right of abode in Hong Kong through the courts, hopefully with the assistance of the Legal Aid Department.  If they had not intended to take the government to court, they would not have applied for legal aid.  The steps which they took and the steps taken on their behalf by the Legal Aid Department were steps to lay a claim.  Since their names were notified to the Immigration Department, the Director of Immigration should have a record of their claims.  Persons in this category should rationally be treated as having lodged a claim with the Immigration Department.”

33. In summary, in judging whether a claim for right of abode has been made in accordance with the concession policy, I return to the fundamental principle stated at the beginning of this section : that it is for the court, viewing matters in context and abandoning a narrow or technical approach, to determine, on the balance of probabilities, whether in substance a claim has been made.

The requirement for ‘a record’

34. In finding that the requirement of a record is ‘a reasonable and rational’ application of the concession policy, the CFA made the following observations in its January judgment (para.210) :

“      It would be extremely difficult, if not impossible, to implement the policy decision, indeed any policy, without a record of some kind to verify whether a person falls within the policy or not.  As the Assistant Director of Immigration, Mr Mak, said in his affidavit, ‘if the Concession Decision was not limited to those persons of whose claims for right of abode the Director of Immigration had a record, there would be no clear, objective or uncontroversial basis on which the Director of Immigration would be able to determine whether a claimant was in Hong Kong and had made a claim for right of abode during the period from 1 July 1997 to 29 January 1999.’ ”

35. The CFA recognised, therefore, that the concession policy was an administrative policy to be managed by the Director and his officers.  A record was required so that the Director and his officers could administer that policy fairly.  The policy is not one to be managed by a judicial board or tribunal where the weight of evidence will decide whether a claim has or has not been made and where a documentary record will be no more than part of the evidence, albeit no doubt persuasive.  That being the case, it is plain from a reading of both the January and July judgments that a record must speak for itself for how else is the policy to be administered on an objective, uncontroversial basis?

36. That a record must speak for itself was stated in unambiguous terms in the July judgment (paras.32 and 33) when the CFA stated that a document is not capable of constituting a record unless — on its face — it provides evidence of a claim :

“      However, it is submitted by the applicants that in some cases … the relevant documents held by the Immigration Department including statements and other documents containing annotations, handwritten or otherwise, fairly read, should be regarded as amounting to the required record of a claim for the right of abode.

       We are of the view that if, in the case of any applicant, such annotations or other writing appear on the face of documents held by the Immigration Department which, interpreted fairly, amount, on the balance of probabilities, to a record of a claim for right of abode, the Concession requirement in respect of such record is satisfied.  In accordance with the rationale indicated in paragraph 210 of the January Judgment, documentary materials are incapable of constituting the required record of a claim unless on their face they amount to evidence that a claim for right of abode is or has been made.”  [my emphasis]

37. A record, therefore, may consist of one document or it may consist of several that have to be read together.  It may be constituted by the contents of a formal document or constituted by a scribbled note incidental to the main intent of the document on which that note appears.  By logical extension, the same basic principle that must be applied to determine whether a claim has been made must be applied to determine whether there is a record of that claim.  It is for the court, viewing matters in context and abandoning a narrow or technical approach, to judge, on the balance of probabilities, whether in substance the documentary material —on its face — constitutes evidence that a claim for right of abode has been made.

38. A claim which is made in written form may of course be both claim and record.  But, in my view, the January and July judgments do not require all records to constitute a claim.  What is required instead is some permanent record that, on its face, is evidence that a claim has been made.

39. That being the case, the essential focus must be the documentary material itself and what appears on the face of that material.  It must follow therefore that documentary material which does not speak for itself or, to put it another way, material which on its face is entirely neutral, is incapable of constituting a record.  This must be so even if credible evidence is given to this Court by an applicant that the creation of the material was intended to be or was believed by that applicant at the time to constitute the record of a claim.

40. Accordingly, documentary material that goes no further than recording the fact of a visit to one of the offices of the Immigration Department or of an interview held there cannot constitute a record for the purposes of the concession policy even if the testimony of various witnesses given before this Court demonstrates on the balance of probabilities that an oral claim for right of abode had been made during that visit or in the course of the interview.  As Mr Fok SC, counsel for the Director, expressed it, that must be so because how else would the Director’s officers in their administration of the policy have a “clear, objective and uncontroversial basis on which … [to] be able to determine whether a claimant was in Hong Kong and had made a claim for right of abode during the [window] period” : see the January judgment, para.210.

41. But having said that, just as a claim need not be direct and may be inferred from all relevant circumstances so, in my judgment, a record need not be direct and may be inferred provided, of course, that the inference is drawn from what appears on the face of the documentary material and is one that can reasonably be drawn by the Director and his officers in respect of a particular applicant in their lawful administration of the policy.  It is necessary in this respect, however, to toll a warning bell.  The drawing of an inference in respect of a particular applicant cannot be stretched to the level of speculation based, for example, only on what a substantial number of other persons were known to be doing or seeking to do at the relevant time.  In this regard, I repeat what was said in the January judgment (para.215) :

“      The applicants argue that by mere presence or overstaying in Hong Kong (of which the Director of Immigration must have a record), an applicant can be considered as asserting his right of abode here.  This cannot be right.  There can be many reasons, other than assertion of the right of abode, for presence or overstaying in Hong Kong.”  [my emphasis]

Absence of a record — the issue of estoppel

42. But what if the evidence given in a case demonstrates on the balance of probabilities that the officers in authority at the time (police or immigration) failed to make a record of a claim?  Does that failure estop the Director from refusing to acknowledge the applicant as a beneficiary of the concession policy by reason of the absence of a record?

43. At the outset, in considering this issue, it must be emphasised that during the period of the concession policy there was no specific administrative process in place in Hong Kong available to persons from the Mainland who had come to Hong Kong and who wished to claim right of abode pursuant to what they saw as their rights under art.24(2)(3) of the Basic Law.

44. On 1 July 1997, the Immigration (Amendment) (No.2) Ordinance 1997 was enacted.  It provided, among other things, that only persons born after at least one of their parents had become a Hong Kong permanent resident were eligible for right of abode under art.24(2)(3).  The Ordinance, however, did not put in place any specific machinery for processing claims by those who were eligible.

45. On 10 July 1997, the Immigration (Amendment) (No.3) Ordinance 1997 was enacted.  In a special briefing session given by the Secretary for Security to the Provisional Legislative Council on 8 July 1997, in advancing the bill, the following was said :

“      In the past week, several hundred mainland children approached the Immigration Department claiming Right of Abode in Hong Kong under Basic Law Article 24(2)(3).  As you all know, the entry of Mainland people into Hong Kong for settlement is through the One‑Way Permit system.  These children who came forward to claim ROA in the past few days had not followed this established route.  For one thing, this is unfair to all those waiting patiently for their turn.  More importantly, this strikes at the heart of our policy on the orderly admission of Mainland people to come and live in Hong Kong.”

46. The Immigration (Amendment) (No.3) Ordinance did put in place an administrative scheme but in terms of this scheme applications for the issue of a certificate of entitlement under art.24(2)(3) of the Basic Law had to be made to the Mainland authorities and thereafter, as I understand it, armed with that certificate, applicants had to wait in a queue in the Mainland for the issue of a one‑way permit.  In practical terms this meant that Mainland residents who were in Hong Kong, whether lawfully or unlawfully, and who wished to seek permanent resident status under art.24(2)(3), had to return to the Mainland in order to process their applications.  There was therefore no requirement to set up an administrative scheme in Hong Kong to deal with those persons who nevertheless wished to make an application to the Hong Kong authorities.

47. It is against this background, I believe, that the following determination of the CFA in its July judgment is to be read :

“      … the Director contends that the applicants do not qualify because he has no record of a claim for right of abode as required by the Concession.

       It is submitted on behalf of the applicants that in all these cases, the absence of a record in the hands of the Immigration Department is due to deficient practices adopted by officers of that department.  The Court is therefore invited to treat these applicants as having met all the requirements of the Concession notwithstanding the absence of a record.

       We cannot accept that this is how the January Judgment is to be applied.  In cases where nothing capable of amounting to the required record of a claim for right of abode exists, the applicant necessarily falls outside the Concession.  The argument that a record ought to have come into existence if the applicants’ claims had duly been noted is not an answer to the requirement that there must be a record of the claim in the possession of the Immigration Department.”

48. Accordingly, if, due to ‘deficient practices’, a claim made by an applicant was not recorded, that failure does not estop the Director from relying on the lack of a record.

49. But what if the lack of a record was occasioned by actions which went beyond ‘deficient practices’?  What if an applicant was by means of some form of pressure — by threats, intimidation or oppressive conduct — actively prevented from recording his or her claim?  In its January judgment, the CFA made reference to assertions made by applicants of being pressured into writing standard answers that suited immigration procedures rather than what they wished to write.  In its January judgment (para.225), the CFA said :

“      There is a suggestion by counsel that in some cases applicants who wanted to have an extension of stay or to resist removal were ‘pressurised’ into putting down in their application forms or interview reports standard answers prompted by the Immigration staff which did not contain an assertion or claim of right of abode.  This is a matter of evidence to be dealt with in individual cases.”  [my emphasis]

In addition, in referring to the cases of two representative applicants, the CFA spoke to the same effect.  For example, in respect of a Ms Chau Yin Ping (para.270), the following was said :

“      … she is put forward as an illustration of the treatment some applicants received when they were interviewed.  She alleges that when she was interviewed (outside the Concession period), she was pressurised into inserting in the interview report standard answers given by the Immigration staff.  If relevant, we consider that this is a matter of evidence to be dealt with in individual cases.”  [my emphasis]

50. On a reading of the January and July judgments, in my view, ‘deficient practices’ and the wrongful exercise of ‘pressure’ are therefore to be distinguished.  In the first instance, the Director is not estopped.  In the second instance, however, if wrongful pressure is established, then the Director is estopped.

The imposition of wrongful pressure : the origins of the applicants’ challenges

51. All of the applicants whose cases have been determined in this report testified that, when they presented themselves to the authorities, they made oral claims for right of abode.  Despite this, however, none of the applicants were able to point to any unambiguous statement recorded on any document — including documents upon which they had written their apparent wishes — that clearly evidenced such oral claims.

52. Each applicant, of course, had his or her own reason for explaining the apparent omission but, if a general theme could be detected, it was to the effect that they were not permitted; that is, not given the freedom, to record the fact of their claims despite their desire to do so.  In short, each in their own way, testified that they had been prevented from recording their claims.  Many of the applicants said that they were effectively directed what to write on the available forms even though it did not meet with their wishes and that such instructions, exercised by persons in authority, amounted in the circumstances to wrongful pressure, a pressure that they, as lay people ignorant of Hong Kong ways, felt powerless to resist.

53. However, few (if any) of the applicants said they registered any form of formal complaint.  It was the general import of their evidence that they found themselves in strange circumstances, that at the time they were not sure of the meaning or import of the documents placed in front of them and that, despite their stated intentions, they rapidly fell victim to the oppressive weight of the authority exercised by the police or immigration officers with whom they had to deal.

54. The authorities, of course, denied any oppression although, in general terms, it was accepted by officers of the Immigration Department that they may well, in accordance with the law at the time, have counselled or advised applicants that if they wished to claim right of abode they must first return to the Mainland in order to do so.

55. Accordingly, in so far as a central conflict could be identified, it focused on that uncertain borderline between permissible counselling or advice to bring about what the authorities considered to be a desired result and the wrongful imposition of pressure to achieve that same result.

A consideration of certain Immigration Department forms

56. Illegal immigrants and holders of two‑way permits who had overstayed were not permitted simply to return to the Mainland through one of the border crossing points.  Prima facie, those persons had committed criminal offences.  It was therefore required that those persons submit to an administrative process, and possibly prosecution in the criminal courts, before being removed from Hong Kong.

57. The administrative process, in its first phase at least, was carried out by the General Investigation Section (‘GIS’), a section of the Immigration Department situated on 13^th floor of the Immigration Tower in Wanchai.  Illegal immigrants and two‑way permit overstayers — whatever their intended purposes — were referred to GIS.

58. An applicant going to 13^th floor would be met by an immigration officer at the reception desk.  It was the practice of that officer to give to all applicants, whatever the stated purpose of their visit, a personal particulars form called an ID 457 form.

59. After the completion of that form, the applicant would be interviewed by a GIS officer.  The interview would take place in an office occupied by a number of interviewing officers.  The interviews were not therefore conducted in private rooms with the officer and the interviewee being alone.

60. On the evidence, it is apparent that during much of the concession period GIS officers interviewed between 15 to 20 persons a day.  It speaks for itself that the interviews would, in the main, have been fairly short, brisk affairs.  During the course of each interview, the applicant would be given a second form to complete.  This form constituted the only record of the interview.  It is called a ‘grounds for non‑removal’ form.  The GIS officers who conducted the interviews did not make private notes for their files.

61. At the end of the interview, the applicant would be requested to complete a third form described as a ‘no loss, no complaint’ form.

62. Thereafter, matters relevant to the applicant’s possible prosecution and arrangements for the applicant’s repatriation were determined internally by officers of the Immigration Department.

63. In respect of an applicant’s visit to the GIS, therefore, the only records generated during the course of that visit were the three forms to which I have made reference.  As the great majority of the cases determined in this report related to the GIS, these three forms took on very considerable importance.

(a)   The ID 457 form

64. The ID 457 form may be described generically as a personal particulars form.  On behalf of the applicants, it was submitted that the form, seeking not only particulars of an individual applicant but also of that applicant’s parents and other family members, was capable, in context, of constituting a record sufficient to meet the constraints of the concession policy.  In opposition, it was submitted on behalf of the Director that the form was not designed to record any form of petition, claim, right or remedy.  It was an entirely neutral form and was viewed as such by officers of the Immigration Department.  That being the case, unless it was specifically endorsed to reflect a claim, the form was not capable —on its face — of constituting a record in terms of the concession policy.

65. Mr Chun Yiu, a Principal Immigration Officer in charge of the Investigation Division of the Immigration Department, said that the ID 457 form, first introduced in October 1979, is a standard form given out at the reception counter of the GIS to ‘all immigration offenders’ who surrender to or are referred to GIS.  Mr Chun said that the information sought to be obtained in the ID 457 form is obtained ‘for the purpose of facilitating investigation of immigration offences and/or consideration of prosecution’.  Mr Chun said that all immigration offenders who presented themselves to the reception counter of GIS would be handed a copy of the form and asked to fill it in before he or she was interviewed.

66. It is apparent that the ID 457 form (or variations of it) have been used for many years by various sections and/or divisions of the Immigration Department, its purpose being essentially the same; namely, the collection of personal data.  Examples of the use of the data were described by senior immigration officers as including cross checking the authenticity of parentage or deciding whether an individual should or should not be prosecuted.

67. The ID 457 form used by GIS officers during the concession period bore the following heading :

“                       IMMIGRATION DEPARTMENT

THE GOVERNMENT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION

Investigation Division

Brief History of Applicant”

Beneath the heading, space was provided for entering personal details of the applicant; for example, his or her name, alias, date and place of birth, sex, education, occupation, country of origin and place of permanent residence.  Other details sought included date of entry into Hong Kong, Hong Kong address and details of the travel document used, assuming he or she entered legally.  The bottom half of the page sought information in respect of the applicant’s family.  Indeed the heading of this section was titled : ‘family composition’.  Beneath the heading, details were sought of various family members : age, date of birth, place of birth, marital status, Hong Kong identity card, address in Hong Kong or elsewhere.  The family members in respect of whom information was sought included husband or wife, natural children, parents and natural brothers and sisters.

68. The ID 457 form, while it was concerned with the personal details of an applicant, did not seek to identify the nature of any particular application that was being made by that applicant.  Nor was space provided so that the nature of an application may be stated.  A signature was not required.

69. Mr Chun Yiu said that every member of the Investigation Division, when they took up their post, was instructed that all immigration offenders should be informed — before interviews took place — that they were under investigation for offences relevant to their conduct; for example, for breaching the conditions of their two‑way permit.  However, when the applicants gave evidence, few, if any, recalled being told anything in respect of the ID 457 form other than that they should fill in the necessary details.

70. In my judgment, a plain reading of the ID 457 form makes it clear that it holds itself out as being an essentially neutral paper, nothing more than a receptical for personal particulars which may be used by the immigration authorities for a broad range of purposes.  That was certainly the way in which the immigration authorities viewed the form and they, of course, were responsible for managing the concession policy.

71. That being the case —absent any specific endorsement or notation to the effect that a claim for right of abode is or has been made —I fail to see how the mere completion of particulars can constitute a record in terms of the concession policy.

72. Many of the applicants testified that when they completed the ID 457 form, they believed they were recording their claim for right of abode because the form specifically required details of their parents and, in respect of those applicants, at least one of their parents were Hong Kong permanent residents.  Indeed, a number of applicants testified that, not being in possession of copies of their parents identification documents, they were asked to obtain them and then submit them.  This, they said, reinforced their belief that the form constituted some form of application.

73. In my judgment, however, these applicants were not assisted by evidence of their subjective intent.  Subjective intent is not the test.  The test is whether, on the face of the form, there is evidence that a claim for right of abode has been made.  To repeat the words of the CFA in the July judgment :

“      We are of the view that if, in the case of any applicant, such annotations or other writing appear on the face of documents held by the Immigration Department which, interpreted fairly, amount, on the balance of probabilities, to a record of a claim for right of abode, the Concession requirement in respect of such record is satisfied.”

74. As I understood the submissions made on behalf of the applicants, it was to the effect that an ID 457 form, if it contained particulars of a parent who had permanent residence in Hong Kong, was capable of constituting evidence of the fact that an oral claim for right of abode had been made.  First, of course, it had to be demonstrated that a claim had been made.  But if that was shown then, so it was submitted, a document containing the essential particulars upon which right of abode under art.24(2)(3) was based, had to be capable of constituting evidence of that oral claim.  I do not agree.  What is demanded by the concession policy is a record that evidences the fact that a claim for right of abode was made.  But particulars, even if they do found a right under art.24(2)(3) of the Basic Law, are not of themselves evidence that a claim to exercise that right was made.

75. It cannot be suggested that all two‑way permit holders, who overstayed during the concession period and who qualified under art.24(2)(3), breached their conditions of stay because, without exception, each of them wished to claim right of abode.  Many must have had family, jobs, businesses back in the Mainland, many by reasons of natural ties and pride in their birthplace must have been satisfied to visit Hong Kong without seeking to reside here permanently.  Yet, it appears to me that the logical consequence of accepting the submissions made on behalf of the applicants must be that, in his management of the concession policy, the Director would have had to draw the inference that every ID 457 form which gave particulars of one parent being a permanent resident of Hong Kong was a record of a claim for right of abode.  That proposition needs only to be stated to be refuted.

76. Put succinctly, standing on its own, evidence of an entitlement to a right is not evidence that a claim has been made by reason of that entitlement.

(b)   The ‘grounds for non‑removal’ form

77. As I have said earlier, the ‘grounds for non‑removal’ form constituted the sole record of an applicant’s interview.  The form bore the heading :

                        “IMMIGRATION DEPARTMENT

Interview Report

(Grounds for non‑removal)”

Beneath the heading, space was provided for entering the personal details of the applicant and for stating the case reference number.  Beneath that, there was the following stated invitation :

“Please state your Grounds for non‑removal.”

A space was provided to enable the applicant, in his or her own hand, to write on the form.  Beneath that space provision was made for the signature of the applicant and the interviewing officer.  At the very foot of the form the following notation appeared :

“Note :     This report shall not be construed as constituting an application for permission to remain in Hong Kong.”

78. The ‘grounds for non‑removal’ form provided the ideal vehicle for an applicant to both claim right of abode and in the same action record that claim.  Indeed, the unambiguous invitation appearing in about the middle of the page is one in which the applicant is asked to write down why he or she does not wish to be removed from Hong Kong.  Yet, despite the clearly stated purpose of the form, none of the applicants whose cases have been determined in this report and who wrote on the form did so in a way which, on a fair reading of the words, could be said to constitute a substantive claim for right of abode or a record of the fact that such a claim had earlier been made.  As to the purported reasons for this, I shall refer in more detail shortly.

(c)   The ‘no loss, no complaint’ form

79. At the end of their interview each applicant was asked to complete a short form worded as follows :

“Mr./Miss __________________________________________ .  Do you have any loss, damage or complaint during the period when you are under the supervision/enquiry of the Immigration Officers?

               YES.  (Please specified)

               NO.”

At the foot of the form, space was provided for the applicant’s signature as well as a statement of the time and date.

80. All of the applicants whose cases have been determined in this report endorsed the form to the effect that they had no loss or complaint and placed their signature on the document.

81. Counsel for the Director placed considerable weight on the fact that no record of any form of complaint appears in these forms.  Undoubtedly it does lend weight to the assertions of those who testified for the Director that the interviewing process was for each applicant an orderly, uncontentious affair in respect of which — at the relevant time — the interviewees simply had no cause for complaint.  But it would be wrong, I think, to place too much weight in all instances on the content of these forms.  As I have said, most applicants spoke of complying with what they say they were directed to do because they did not believe they had any choice in the matter.  That being so, it would be too much, in my view, to expect such compliance (if it be so) to be suddenly replaced at the end of each interview with a sudden determination to register a formal complaint in the presence of the interviewing officer.

The role of interviewing officers

82. It was always accepted by senior immigration officers who gave evidence on behalf of the Director that illegal immigrants and overstayers who surrendered to or were referred to the Immigration Department would be counselled to leave Hong Kong voluntarily even if they sought right of abode pursuant to art.24(2)(3) of the Basic Law.

83. In his affirmation of 5 May 2000, Mr Mak Kwai Yun, Assistant Director of Immigration, said that such persons—

“      … would be counselled to leave Hong Kong voluntarily.  If they did not agree to leave Hong Kong voluntarily, their cases would be referred to the Removal Section for the issue of removal orders.”

84. Mr Pang Kin Mo, the Senior Immigration Officer of the GIS between December 1995 and October 1997, in his affirmation of 15 March 2003, referred to a system employed in the days immediately following the change of sovereignty in terms of which officers of the rank of Immigration Officer would counsel overstayers who claimed right of abode.  The counselling, he said, involved advice on the current law; namely, that the person claiming abode had no right to do so in Hong Kong and should return to the Mainland voluntarily or otherwise be removed.  If, after counselling, the overstayer agreed to return voluntarily, Mr Pang said that he or she would be invited to record that fact on a ‘grounds for non‑removal’ form.  Persons who did not agree to return voluntarily would be referred to the relevant unit with the recommendation that immigration offendors be detained pending removal.

85. A great many of the applicants whose cases have been determined in this report testified that when they first asserted their claim for right of abode they were informed that they could not do so in Hong Kong and must return to the Mainland to process their applications.

86. As Mr Fok, for the Director, said in the course of submissions, even if such counselling or advice is characterised as attempting to dissuade persons from seeking to remain in Hong Kong to assert their claim for right of abode here, such counselling or advice was entirely consistent with the law as it stood.  I agree with that submission.  In my judgment, the giving of such advice cannot itself be criticised as somehow being oppressive or a form of wrongful pressure.

87. Applicants who received such counselling or advice, especially those who knew through the news media that others in their position had not been successful in seeking right of abode in Hong Kong and had been repatriated, must by then have been aware of the fact that their own chances of successfully applying were, at best, slim.  This, I am satisfied, in many instances explained the compliant attitude adopted by those applicants thereafter in the processing of their own repatriation.

88. As to the duties of interviewing officers, Mr Pang Kin Mo also testified that GIS officers who carried out interviews were instructed that, in respect of overstayers, there were two important questions to be asked.  First, why had the interviewee overstayed and, second, what was the interviewee’s present intention?  Interviewing officers therefore guided the process of interviews.

89. Importantly, it is clear from the evidence that, as they made no private notes for their files, they had to ensure that the answers to their questions appeared on the face of the ‘grounds for non‑removal’ form.  It follows that, to some degree, that had to mean directing or suggesting at least part of what an interviewee wrote on the form.

90. For the interviewing officers, of course, the desired outcome was an agreement by the interviewee to return voluntarily to the Mainland.  At the time, no doubt, that would have been seen as the only sensible outcome for many of the interviewees too.  At least that way they avoided detention.  As I have said, in respect of many of the applicants, although invariably they protested otherwise, I was satisfied that, even if they had orally asserted their claim for right of abode, or made an inquiry concerning it, having been advised that they must return to the Mainland to process any such application and knowing that a refusal to leave voluntarily meant detention and removal, they then acquiesced in the process of their removal.  In the process, no doubt, all too often the desire to record the fact that right of abode had been claimed was forgotten.  At that time the concession policy was not in existence so recording a claim may at that stage of the removal process have been seen — and rationally so — as an entirely superfluous exercise.

91. The fact that it was, in practical terms, necessary for interviewing officers to direct or suggest, at least in part, what was written by interviewees on their ‘grounds for non‑removal’ forms does not mean that wrongful pressure was placed on those interviewees.  If they were free to write what they wished or to amend what they were asked to write by adding to it or qualifying it then, in my judgment, the interviews constituted a lawful process free of wrongful pressure.  What must be understood is that this was an administrative process, one in which guidance from officers would be expected.

92. In any event, it was for the applicant in each case to assert right of abode and, to benefit under the concession policy, to do so in a sufficiently active manner as to ensure that some record of the assertion was made.  If they were free to do so; that is, if they were not actively prevented from doing so by being threatened or made the victim of oppressive conduct, then it seems to me that no valid criticism of wrongful pressure can be made.  As Mr Fok said, no doubt with the benefit of hindsight many of the applicants wish that they had recorded their claim on the face of the ‘grounds for non‑removal’ form.  But at the time, as I have said earlier, there was no value in doing so.

93. At this juncture, I digress to observe that listening to the evidence given during the hearings before this Court, a casual bystander would perhaps have been forgiven for concluding that between 1 July 1997 and 29 January 1999 when the applicants had had their dealings with officers of the Immigration Department and/or the police they had at that time been determined to meet the requirements of the concession policy while the officers had been equally determined to frustrate those efforts.  But, of course, at that time, as I have said, there was no such thing as the concession policy.  It did not exist.  Indeed, it only came into existence on 26 June 1999, some five months after the concession period (1 July 1997 – 29 January 1999) had come to an end.  Nor can it be said that during the concession period the policy was in any way in contemplation, certainly not so that it would have been known to the public or to rank and file public officers.  As the CFA’s January judgment makes clear, the policy decision by the Chief Executive in Council was only made consequent upon the Standing Committee of the National People’s Congress on 26 June 1999 issuing an interpretation of certain articles of the Basic Law pertaining to right of abode.  That being the case, it would be wrong to view the actions of the various witnesses (both applicants and public officers) as in some way intended either to fulfil or frustrate the necessary elements of the concession policy.

94. Finally, I turn to a reaction testified to by a number of applicants; namely, subservience in the face of authority.  When asked why, if they had been so determined to claim right of abode, they had failed to state that wish on the face of their ‘grounds for non‑removal’ form, many of the applicants testified to the effect that they did not believe they could defy authority.  In short, they were afraid to do anything other than comply in strict terms with the directions they received.  They explained this behaviour of subservience by making reference to such matters as their lack of education and what was the norm when dealing with the authorities in their places of origin.  No doubt many of the applicants were nervous.  As overstayers most would have appreciated their vunerability.  I accept too that many would have had an instinctive reluctance to challenge people in authority.  In light of that perhaps, depending on the character of the individual applicant, a suggestion would be taken as an instruction.  But, standing on its own, self‑induced timidity cannot, in my opinion, be translated into oppressive conduct by interviewing officers.  Wrongful pressure is determined, first, by an objective assessment of the actions of the authorities and, second, by its subjective effect.

The use of ‘standard form’ answers

95. On the evidence, it is quite clear, in my judgment, that many of the GIS interviewing officers, assailed as they were each day by the volume of illegal immigrants and overstayers, resorted to the use of what I describe as ‘standard form’ answers.  These may have been answers memorised by the officers or written down by them so that they could be copied.

96. Mr Pang Kin Mo accepted that experience demonstrated to the officers that the reasons for overstaying were invariably similar (for example, the wish to remain with family or to give birth) and the intentions of the interviewees were invariably similar too (for example, the need to return urgently to the Mainland).  The emergence of ‘standard form’ answers is therefore entirely understandable.  Indeed, although not used by GIS, a number of Immigration Department forms were put into evidence in which ‘standard form’ answers were already printed on the page.  I see nothing wrong in principle in the use of ‘standard form’ answers.  For lay persons, often of limited education, ‘standard form’ answers may have been of real assistance provided, of course, as I have said, the answers suggested were in accordance with what they were prepared to record.

97. The issue, therefore, in my judgment, was not whether answers were suggested by interviewing offices but whether applicants were free either to record them or not, whether they were free to add to or supplement those answers.  If they were free in those regards then there could be no criticism.

98. However, although a number of interviewing officers (invariably holding the rank of immigration assistant) accepted that they would suggest answers to applicants concerning the core questions of why they had overstayed and what they now wished to do, none of the officers accepted that any form of ‘standard form’ answers were prepared and/or used by them.  This, in my judgment, went against the great weight of the evidence.

99. On too many occasions, it was shown that answers given to one interviewing officer were identical or almost identical to answers given by other applicants to the same officer.  There was evidence too of answers given at different times by different applicants to different officers having a common source.  In this latter regard, by way of illustration, I refer to the testimony of Mr Leung Ka Cheong, an Immigration Assistant who, on 18 September 1997, interviewed Mr Chan Ching Hoi (applicant 80).  On his ‘grounds for non‑removal’ form, Mr Chan wrote in Chinese characters to the following effect :

“I have overstayed because of keeping company with my family.  I now want to return to China.”

Mr Leung denied any suggestion that he had given Mr Chan a ‘standard form’ answer to copy.  It was his testimony that the words had come entirely from the mind of Mr Chan.  Mr Leung was then shown three other ‘grounds for non‑removal’ forms which had been completed by overstayers.  These forms had been completed in October 1997, May 1998 and September 1998.  In each case the interviewing officers had been different.  In each case it may reasonably assumed, I think, that the interviewees were of different ages and educational level.  In each case, however, exactly the same set of characters was written down.  Including Mr Chan’s form, that was a total of four documents that were identical in respect of each and every character.  But it went further.  On each form in exactly the same place there was a space and then what appeared to be some kind of punctuation mark.  In my judgment, it was apparent that in each instance the characters had been drawn from a common written source; in short, some form of ‘standard form’ answer.  Mr Leung, however, denied that he used any ‘standard form’ answers.  He accepted that he did direct applicants to state why they had overstayed but he rejected any suggestion that he gave any further directions as to exactly what they should write.  Mr Leung said that he recalled several occasions when applicants wrote on their ‘grounds for non‑removal’ form that they wished to remain in Hong Kong to seek right of abode.  That may be the case.  But that does not detract from the fact that, on the evidence, Mr Leung clearly kept some written source material to assist overstayers in completing their ‘grounds for non‑removal’ forms.

100. The obstinate denial of almost all the interviewing officers to the use of ‘standard form’ answers caused me very real concern.  Was it an attempt to disguise concerted efforts by those officers to prevent applicants from recording that they wished to seek right of abode?  It was a question that had to be seriously considered in the light of the disappointing testimony of these officers.  At the end of the day, however, in looking to the facts of each individual case and taking all relevant evidence into account, I was satisfied that, while a good many applicants did have answers suggested to them, they were not wrongfully pressured into recording only those suggested answers.  I am satisfied that in each case if an applicant had wished to add to or supplement a suggested answer or write something else entirely, they would have been free to do so.

Determination of the individual cases

101. Having looked to matters generally, I now move to a determination of the individual cases.  For ease of reference, an index of the cases appears below :

(1)                Chan Pik Shan (307 : a ‘group one’ applicant)

(2)                Wu Kit Nga (4000 : a ‘group one’ applicant)

(3)                Chan Kin Piu (204 : a ‘group one’ applicant)

(4)                Cheung Sau Kam (713 : a ‘group one’ applicant)

(5)                Cheung Suet Kam (733 : a ‘group one’ applicant)

(6) & (7)       Chong Ming Lik (915) and Chong Ming Ngai (916) : both ‘group one’ applicants

(8)                Lau Suet Fa (1970 : a ‘group one’ applicant)

(9)                Lai Siu Fung (1663 : a ‘group one’ applicant)

(10)              Tai Lin Fat (3174 : a ‘group one’ applicant)

(11)              Sze Li Chun (3089 : a ‘group one’ applicant)

(12)              Sze Sau Kan (3122 : a ‘group one’ applicant)

(13)              Leung Kang Kwong (2113 : a ‘group two’ applicant)

(14)              Hui Yuk Heung (1380 : a ‘group one and ‘group four’ applicant)

(15)              Chan Ching Hoi (80 : a ‘group one’ and ‘group four’ applicant)

(16)              Kwok Siu Ping (1623 : a ‘group one and ‘group four’ applicant)

(17)              Ng Li Tung (2646 : a ‘group one’ and ‘group four’ applicant)

(18)              Sze Chiu Chi (3055 : a ‘group one’ and ‘group four’ applicant)

(19)              Lau Wai Kau (1981 : a ‘group one’ and ‘group four’ applicant)

(20)              Wong Yuen Sheung (3910 : a ‘group one’ and ‘group four’ applicant)

(21)              Cheng Siu Yin (593 : a ‘group one’ and ‘group four’ applicant)

(22)              Fu Kwong (1084 : a ‘group one’, ‘group two’ and ‘group four applicant)

(1)     Chan Pik Shan (307 : a ‘group one’ applicant)

102. In June 1998, when the applicant came to Hong Kong as a member of a tourist party, she had strong family connections here.  Both her parents were permanent residents.  Her husband was also a permanent resident as were the two children of her marriage.  The applicant was permitted to remain in Hong Kong for a few days only but overstayed.

103. On 31 October 1998, the applicant went to the Immigration Tower in the company of her husband.  She was heavily pregnant.  She went to the 13^th floor, to the offices of GIS, but, as an overstayer who had been a member of a tour group, was referred to the 14^th floor.

104. The applicant was given an ID 457 form which, she said, she completed by giving full particulars of her parents, her brother and her husband, all of whom had right of abode.  However, as she had not brought her parents’ identity cards, she was unable to state their numbers on the form.

105. The applicant was then interviewed, her interviewing officer being Immigration Assistant, Mr Ho Yuen Tung.  She said that she told the interviewing officer that both her parents had right of abode and asked if there was an amnesty in place which would give her the right to remain in Hong Kong with her family.  She said that the officer informed her that there was no such policy and she must return to the Mainland.

106. In the course of the interview, the applicant told the officer that she could, if necessary, bring copies of her parents’ identity cards. She also offered to bring a notarial certificate stating her place and date of birth but was told, she said, that this document was not required.  The evidence revealed that she did, in fact, return two days later, on 2 November 1998, with copies of her parents’ identity cards which she delivered into the possession of the Immigration Department.

107. During the interview, said the applicant, she was given a ‘grounds for non‑removal’ form and, being heavily pregnant and wishing to give birth to her child in Hong Kong, was directed to copy the characters which appear on the form.  In English, they are to the following effect :

“I , Chan Pik Shan, came to tour Hong Kong.  Originally set to return to Shenzhen with the tour group on 21 June 1998.  But because I wanted to give birth in HK, so I overstayed.  I know that this is not right and I now ask the authorities to arrange for my return to Shenzhen as soon as possible after the birth of the child.”

108. The applicant accepted that she was not threatened or coerced in any way to write the characters.  She said, however, that she was very nervous. The characters that she wrote did not reflect her full intentions.  But, as she had already expressed a desire to remain in Hong Kong after giving birth and had been told that it was not possible, she said that she simply wrote down what she was asked to write.  Put simply, she agreed to what was suggested to her.

109. When the applicant returned to the Immigration Tower on 2 November 1998 to file the copies of her parents’ identity cards, she said that, on the instructions of her father, she made ‘a strong request’ that she be granted right of abode.

110. The applicant was prosecuted for overstaying and fined $1,000.  She pleaded guilty.  She was asked if she had anything to say in mitigation but recalled that a lot of other accused pleaded that they wanted to be reunited with their families in Hong Kong and were told by the magistrate that they must first return to China.  She said that she saw no purpose in repeating what the others had said and kept her silence.

111. I found the testimony of the applicant to be credible.  She did not exaggerate. Her explanations, in context, were entirely plausible.  Having regard to her close family ties, she certainly had good reason to seek some way to be reunited with her family after giving birth to her child.  The probabilities, of course, point to the fact that her primary concern in October 1998 would have been the obtaining of permission to remain in Hong Kong to give birth.  But that primary concern does not exclude a desire to seek permanent resident for herself as well.

112. I do not dismiss the testimony of the interviewing officer, Mr Ho, as being deliberately untrue.  But, as he accepted, due to the lapse of time (and no doubt the many interviews conducted by him) he had no real recollection of events.

113. On the probabilities, therefore, I am satisfied that, in substance, the applicant did make two oral claims for right of abode, one on 31 October and the other on 2 November 1998.

114. The more difficult question to determine is whether the Director has a record of at least one of those claims as required by the concession policy.

115. The ‘grounds for non‑removal’ form does not and cannot constitute a record.  Nothing, on its face, suggests a clam for right of abode.  In my judgment, no issue of oppressive conduct can arise.

116. Nor, standing on its own, can the ID 457, an essentially neutral document, constitute a record.  However, in this case the ID 457 form is supported by copies of the parents’ identity cards, these being copies that the interviewing officer, Mr Ho, agreed he had asked the applicant to file with the Immigration Department.  These copies, because their filing (on the evidence) was unusual, must at least raise the question of whether they can constitute a record.  But they are not the only documents that an officer, going through the relevant papers for the purposes of managing the concession policy, would come across.  He would also read an internal minute (M2) dated 10 November 1998.  This minute, written by the team leader, Mr William Poon Siu Chuen, is to the following effect :

“      Upon enquiry, she revealed that her parents were HKRs.  However, she did not have birth proof because she was born in village and had not applied for a birth certificate.

       As revealed from her parents’ ROP records (at float), her so claimed father came to HK via Lo Wu on 10‑10‑78 and was granted permanent residence on 07‑10‑85.  On the other hand, her mother came to HK on 10‑10‑85 and acquired permanent residence on 12‑10‑92.  In other words, since subject was born before her either parent acquired permanent residence in HK, she should be deemed to have NO prima facie claim to ROA under the Immigration Ordinance.”  [my emphasis]

117. This minute may have been written for the purposes of facilitating investigation and in respect of a possible prosecution.  But, on a fair reading, the minute is clearly focused on the issue of the applicant’s eligibility for right of abode.  It goes so far as to say that prima facie she has no claim.  In my view, that minute, taken together with the filing of copies of the parents’ identity cards, must constitute a record —on its face — that in substance some sort of claim for right of abode has been made.

118. There was uncertainty as to how information concerning the applicant’s lack of a birth certificate came into the minute (M2).  The purpose of the minute was also explained.  But, as I have said in respect of many applicants, the test is not subjective intent, it looks instead to what appears on the face of relevant records and that record points directly to matters of eligibility.

119. My determinations are therefore as follows :

(i)      the applicant did make a claim for right of abode; and

(ii)      the Director does have a record of that claim as required by the concession policy.

(2)     Wu Kit Nga (4000 : a ‘group one’ applicant)

120. The applicant came to Hong Kong on 16 June 1998, being permitted to remain for a limited period in terms of her two‑way permit.  The applicant came to Hong Kong to be with both her parents and her husband, all of whom had right of abode in Hong Kong.

121. The applicant, who learnt that she was pregnant shortly before her arrival in Hong Kong, overstayed for two reasons.  First, she said, she wished to give birth to her child in Hong Kong and, second, she wished to seek right of abode.

122. In respect of her second intention, it is telling, I believe, to record that prior to her arrival she obtained a notarial certificate from the Mainland authorities to prove her relationship with her father.  She testified that she obtained this document because she believed it would be required for any application for permanent residence.

123. Although she came to Hong Kong nearly a year after the change of sovereignty, the applicant said that she was not informed of such matters as the certificate of entitlement scheme.  Friends in the Mainland had told her that she could apply for right of abode in Hong Kong, she said, and she proceeded on that advice.

124. The applicant waited until she was some eight months pregnant until she surrendered herself to the immigration authorities as an overstayer.  She was candid in admitting that she waited for so long because she knew that if she surrendered herself too early she may be repatriated in order to give birth in the Mainland.

125. The applicant said that shortly after her arrival in Hong Kong she and her husband made inquiries with the Immigration Department as to right of abode and were told that any application would have to be processed in the Mainland.  The applicant accepted, therefore, that she and her husband had been advised that she could not apply for right of abode in Hong Kong.  However, her testimony, which I accept as truthful in this regard, also revealed that attempting to seek right of abode was important for her and her family.

126. At this juncture, I should say that, while clearly the applicant attempted to put her best case forward, I found her to be an essentially honest witness.  Her evidence, in my opinion, was devoid of the overt attempts at manipulation and plain invention obvious in the testimony of a good many other applicants.  Put shortly, I found her in almost all matters to be essentially credible.

127. As to her surrender on 13 October 1998, the applicant said that she and her husband went direct to the offices of GIS on 13^th floor of Immigration Tower.  She did so, she said, because a ‘friend of a friend’ told her that she should do so in order to obtain a recognisance paper there.

128. The applicant said that at the reception counter, she informed the officer on duty that she had come for two reasons : to apply for permission to give birth in Hong Kong and to put in a claim for right of abode.  During cross‑examination, it was put to the applicant that, if she had already been advised that she could not claim right of abode in Hong Kong, no purpose would have been served in attempting to claim abode when she surrendered herself.  She replied to the effect that at that time she was not certain of the position in law.  I accept that that may have been the case.  In any event, earlier negative advice will not always prevent a further request in the hope of more positive advice the second time.

129. The applicant said that she was given an ID 457 form to complete.  She was able to give the identity card numbers of both her parents, she said, because she had brought photostat copies of their identity cards with her : further evidence of her desire to remain permanently in Hong Kong.

130. In the interview, the applicant said that she was asked on two occasions — she remembered this well, she said — how long her father had lived in Hong Kong and whether it was over seven years.  She replied by saying yes, it was more than seven years — it was ten years.  In light of this, she said, she took it that the officer knew that her father had right of residence and that she had the right to claim residence through him.

131. The applicant said that when she was given the ‘grounds for non‑removal’ form, she was told by the interviewing officer that, as she sought permission to remain to give birth, she should write that on the form.  The applicant said that she was shown a set of characters to copy and did so.  Her statement was to the following effect :

“I have been overstaying because I am 8 months pregnant.  I want to go back to China after giving birth to the child in Hong Kong.”

132. The applicant accepted that she did not attempt to add anything to those characters.  She accepted that she was not in any way threatened.  As I understood it, it was the essential thrust of her evidence that, having been told what to write by a person in authority, she simply complied.

133. The applicant was clearly a literate person, reasonably well‑educated.  She said that she had upper secondary education.  On the probabilities, it appears that she did copy the characters.  A couple of the characters are in the simplified form but most are traditional characters.  During her evidence, she said that she had only been in Hong Kong a short time and how therefore would she know how to write traditional characters.  The simplified characters were written by her, she said, when she was copying and were probably written instinctively.

134. In respect of the ‘no loss, no complaint’ form, the applicant said that she understood the nature of the form and signed it to the effect that she had no complaint.

135. In my judgment, the probabilities do support the applicant’s testimony that she did claim right of abode on 13 October 1998 when she surrendered herself.  She may have done so more in hope than realistic expectation but that is not uncommon and cannot undermine the finding that a claim itself was made.

136. However, although the ID 457 form contained details of her parent’s identity cards, in my judgment, neither that form — which otherwise was unendorsed — nor the ‘grounds for non‑removal’ form are on their own capable of constituting the required record under the concession policy.

137. On 22 January 1999, after the birth of her child, the applicant reported to the Joint Recognisance Office where she was served with a notice requiring her to attend at the Prosecution Section of the Immigration Department a week later and thereafter to present herself at Lo Wu on 3 February 1999 for repatriation.

138. However, when the applicant presented herself at the Prosecutions Section on 29 January 1999 — the last day of the window period under the concession policy — the applicant was not prosecuted.  Instead she and a number of other persons who were in her position; that is, children of Hong Kong persons with right of abode, were sent to the Victoria Immigration Centre (‘the VIC’).  The applicant said that she was at this time accompanied by her husband.

139. The reason for this sudden change of procedure — at least in respect of the applicant and certain other overstayers — was because the CFA had that same day handed down important judgments in respect of the right of abode litigation.  The applicant said that she and many others, being aware of this, repeatedly told the officers that they had right of abode and were entitled to remain in Hong Kong.  After a long wait, the applicant said that she had her recognisance papers stamped and was allowed to leave.  In the result, she said, she believed she was now free to remain in Hong Kong and that all that was left was a matter of bureaucratic process.  Did the applicant make a claim for right of abode on that day?  In my judgment, the probabilities support her evidence that she did.  In knowledge of the CFA judgments and in the hope of a sudden change, I can well understand the applicant wishing — at that eleventh hour — to assert her rights.

140. A few days later, however, on 14 February 1999, the applicant said that she was recalled to the VIC and informed that she would have to return to the Mainland.  She objected, she said, but in fear of being detained agreed to a voluntary return on 28 February 1999.

141. After her return to the Mainland, the applicant wrote a letter of complaint to the Director.  It was to the following effect :

“Until soon after I gave birth to my daughter (on 8 December), I received notification from the Immigration Department, telling me to go the Immigration Department on 29 January 1999 to wait for court hearing.  However, the staff of the Department made arrangement for us, children of permanent Hong Kong residents, to go to Victoria Detention Centre on that day to have our status verified.  The staff at Victoria Detention Centre did not handle our cases after stalling for a long time.  They only extended our stay in Hong Kong when we urged them.  Later, I was told by telephone to go to Victoria Detention Centre on 14 February 1999, where I was asked to sign a paper on voluntary removal for returning to the Mainland on 28^th this month.  A staff member there said that I would be departed if I did not sign the paper.  I had no alternative but to sign it.  Later, on the 25^th of this month, I went to Victor [Center] again to request for verification, but the staff there said that I had not come to Hong Kong before 10 July 1997.”

142. In all the circumstances, as I have said, I am satisfied that the applicant did claim right of abode on two occasions within the window period.  But is there a record of that claim?  I am satisfied that there is.  The record is contained in the ID 457 form when that form is read in conjunction with two internal minutes in the files of the Immigration Department, the first being dated 28 January 1999 (M4), the second being dated 11 February 1999 (M6).  I accept that the second record was compiled after the concession period had elapsed but it is a record of a claim (or claims) made within the period.  The minute, M4 reads :

“Since the Court of Final Appeal is going to deliver its verdict on Right of Abode issue on 29.1.99, (CPD) has agreed to defer prosecution in cases where the overstayers alleged that their parents are HKRs so that we can first study the possible impact of the verdict on these cases.”  [my emphasis]

The minutes, M6, reads :

“      Subject is a keyboard overstayer who claimed that one or both of his/her parents was/were HKPRs.  However subject cannot, for the time being, produce proof to support the claimed relationship, which, if proved, will allow subject a prima facie claim to ROA.  Even so, subject, according to the CFA’s judgment, will still have to apply for C of E before he/she can enjoy the ROA because subject arrived in HK after 09.07.1997.”  [my emphasis]

143. Evidence was led that use of the word ‘claimed’ was misleading and that all the applicant had done was supply information.  But, as I have said, a record is to be judged, either alone or in context, on the basis of what appears on its face.  The minute, M6, on its face, is specific in recording that to all intents and purposes the applicant has claimed right of abode.

144. My determinations are therefore as follows :

(i)      the applicant did make a claim for right of abode;

(ii)      the Director does have a record of that claim.

(3)     Chan Kin Piu (204 : a ‘group one’ applicant)

145. The applicant came to Hong Kong on the strength of a two‑way permit on 22 August 1998, being permitted to remain until 13 November 1998.

146. On 3 November 1998, while he was still within the limit of his stay, the applicant was found on the 43^rd floor of a building under construction.  With some justification, considering where he was found, the police contended that he was working and thus contravening the conditions of his stay in Hong Kong.

147. That same day, the applicant was transferred to the Immigration Department into the custody of a unit called the Task Force.  The applicant was interviewed under caution, a record of the interview being placed into evidence.

148. The applicant, however, contended that the record did not accurately reflect what he had said or attempted to say to his interviewing officer.  Indeed, this was one of the few cases in which allegations were made of overtly oppressive conduct.

149. The face of the record revealed that the applicant said that he had come to Hong Kong to visit his parents, both of whom had right of abode, and for purpose of tourism.  As to the police allegation that he was found working on a construction site, the applicant admitted only that he had been looking for work.  As to why he was looking for work, the applicant was recorded as saying :

“      You know, I am bored to have nothing to do when I have come to Hong Kong.  Therefore, I want to find a job to do to make some money to return to the Mainland.  However, I cannot find any.”

150. According to Mr Wong Kai Nam, the interviewing officer, after completion of the statement the applicant was informed that he would not be prosecuted but would instead be returned to the Mainland for breaching his two‑way permit.  He was then presented with a ‘grounds for non‑removal’ form and wrote characters to the following effect on the form :

“I know I am without right of abode in Hong Kong.  Please will your Department arrange for my return to the Mainland as soon as possible.”

151. It is not disputed that the applicant was returned to the Mainland that same day; that is, on the evening of 3 November 1998.

152. The general thrust of the testimony of the immigration officers was to the effect that this was an entirely unexceptional case.  The applicant was apprehended working at the building site in breach of his two‑way permit.  A decision was made not to prosecute him but rather to return him forthwith to the Mainland.  Having been informed of this, the applicant agreed to be returned to the Mainland, signifying that in writing.

153. The applicant, however, attempted to paint a very different picture.  He testified that during the course of the interview he was threatened and that, far from the interview taking the form of a question and answer process as the record indicates, the interviewing officer simply wrote down what he wished as if ‘writing an essay’.  The applicant said that his limited knowledge of Chinese characters meant that the interviewing officer wrote down his answers too and was thereby given even greater freedom of invention.  From time to time, said the applicant, the interviewing officer would speak to another immigration officer at a computer who was clearly feeding him with appropriate data.  When requested to sign the record of interview, the applicant said that he asked what it was about.  He was assured, he said, that his interests would not be harmed.  The applicant appears to have accepted that the record was read to him but protested that it was read very fast so that he could not hear clearly.

154. As to the contents of the record of interview, the applicant said that he told the interviewing officer that he had come to Hong Kong to be with his grandmother and his parents in order to care for them.  They were still mourning the recent death of one of his siblings.  He denied saying that he had come to Hong Kong for purposes of tourism.  He said that he made a claim for right of abode on the basis that others in his position had received the right to remain in Hong Kong.  In reply, he said he was threatened with imprisonment.

155. When it came to completing the ‘Grounds for non‑removal’ form, the applicant said that initially he wrote in his own hand the words : “I have right of abode”.  When the interviewing officer saw this, however, he took the form and threw it away.  The applicant testified that he was then presented with a second form and was ordered to copy the words that appear on the face of that form.  Initially, said the applicant, in the first sentence he omitted the character which indicated that he had no right of abode, the result being a statement in the affirmative rather than the negative.  However, the interviewing officer demanded that he inserted the negative Chinese character and he duly complied.

156. Despite being so badly treated, the applicant signed the ‘no loss, no complaint’ form.

157. If the applicant is believed, he was the subject of oppressive conduct and was actively prevented from recording the fact that he sought right of abode.  I have no hesitation, however, in rejecting his evidence almost in its entirety.  Mr Fok, for the Director, submitted that his testimony was largely an exercise in invention.  I agree.

158. During the course of cross‑examination, whenever he was faced with difficulties, the applicant’s invariable recourse was to resort to further accusations of ill treatment.  By contrast, the testimony of Mr Wong, the interviewing officer, although tested at length, came across as credible.

159. I have no doubt that, bar one or two ‘clerical’ errors, the statement made under caution correctly reflects what was said by the applicant.  This is a document which bears approximately 40 of his signatures.  I am further satisfied that the ‘grounds for non‑removal’ form was completed by him without any form of duress.  Assuming that the words were suggested by the interviewing officer, I have no doubt that, if he had wished, the applicant could have added to those words or varied them to suit what it was he wished to stay.

160. The ‘grounds for non‑removal’ form contains the sentence : “I know I am without right of abode in Hong Kong”.  In the circumstances of this case, I take that as amounting to no more than an acknowledgment by the applicant that he had no right to work in Hong Kong because he had no right of abode here.  Far from constituting a claim for right of abode, it was a recognition that he had no such claim.

161. My determinations are therefore as follows :

(i)      the applicant did not make a claim for right of abode;

(ii)      the Director has no record of any claim.

(4)     Cheung Sau Kam (713 : a ‘group one’ applicant)

162. The applicant, a kindergarten teacher by profession, came to Hong Kong with her infant son on 26 January 1997.  She and her son were permitted to remain until mid‑March.  The applicant, however, did not return to the Mainland on due date to rejoin her husband.  She and her son remained in Hong Kong with her family here.  Both her parents lived in Hong Kong.  They had right of abode together with a number of her siblings.  On the evidence, I am satisfied that the applicant overstayed in the hope that she, together with many others, would be able to claim right of abode when the change of sovereignty took place.

163. Upon the change of sovereignty, however, the applicant did not immediately present herself to the authorities to assert right of abode.  She preferred to wait and see what happened to others.  She paid careful attention to the news and was aware that many of those who did present themselves were detained and/or returned to the Mainland.  In light of this, she said that she decided to delay her visit to the Immigration Department.  On 19 July 1997, the applicant and her son went to the offices of GIS on 13^th floor of the Immigration Tower.  The applicant was accompanied by her father.

164. The applicant testified that at the GIS reception she told the officer that she had right of abode and wished to remain in Hong Kong.  She appears to have been silent as to the fate of her infant son who had no such right.  In reply, said the applicant, she was told by the officer that she would have to return to the Mainland to process her application.  That advice was, of course, in accordance with the prevailing statutory scheme.

165. At that time, therefore, the applicant must have appreciated that she had little chance, if any, of successfully claiming right of abode herself.

166. On behalf of the Director, it was submitted that the applicant made no such claim for right of abode.  Emphasis was laid on the inherent improbability of the applicant seeking to remain in Hong Kong when her infant son had no claim to any such right.  On the balance of probabilities, however, I am satisfied that the applicant did speak words which went further than a mere inquiry and in substance amounted to a claim for right of abode.  In respect of why she had overstayed and what she hoped to achieve that day when she presented herself at the offices of GIS I found her to be a balanced, credible witness.

167. The applicant testified that she was then given an ID 457 form to complete.  She said that she wrote the necessary details of her parents believing that completion of the form constituted an application for right of abode.  But whatever her subjective belief, she did not in any way endorse the form to the effect that she was seeking right of abode.  That being the case, the completed ID 457 form does not and cannot — on its face — constitute a record of her claim.

168. Thereafter the applicant was interviewed by an Immigration Assistant, Ms Pauline Cheng Po Lin.  Her son remained with her during the interview but her father waited in the reception area.  The applicant testified that she again asserted her claim to right of abode and was again informed that she would have to return to the Mainland in order to process her application.  The applicant said that she was also told that, as she had overstayed for several months, she was liable to be prosecuted.

169. The applicant completed her ‘grounds for non‑removal’ form in her own hand.  The characters have been translated to the following effect :

“I, Zhang Xue Qin [Madam Cheung], and my son Zhong Jun came to Hong Kong through Lo Wu on 26 January, 1997.  I know that we had to go back to the Mainland on 16 March 1997 but overstayed because I liked Hong Kong.  I now want to bring my son back to the Mainland.”

On its face, therefore, the form cannot be read as a record of the applicant’s claim for right of abode.  The applicant testified that she wished to write down what she had already told the interviewing officer; namely, that she claimed right of abode.  However, she was afraid to do so, she said, because she had been told that she was liable to prosecution and with that, to her understanding, came the possibility of imprisonment.  She said that she therefore wrote down what the interviewing officer told her to write.

170. Ms Cheng, the interviewing officer, had no independent recollection of the interview.  She said, however, that it had not been her practice to warn overstayers that they might be prosecuted nor had she dictated what should be written on grounds for non‑removal forms.  I have to say, however, that Ms Cheng, who gave evidence in respect of a number of applicants, was not in general terms a credible witness.  Her memory, even of publicly acknowledged contemporaneous events, was selective while her insistence that she did not suggest or dictate what should be written on interview forms often flew in the face of the written evidence itself.  In the present case, the applicant’s orderly and detailed statement (including relevant dates) lends credence to the applicant’s assertion that it was essentially dictated to her.

171. But it does not follow from that fact alone that the applicant was in any way threatened by Ms Cheng or was the subject of oppressive conduct aimed at preventing her from writing anything on the form to the effect that she had hoped to claim right of abode or still wished to do so.  In my judgment, on the evidence, if the applicant had been determined to write down her assertion she would not have been stopped from doing so.  The applicant herself, albeit obliquely, accepted that, when she came to write on the form, her principal concern was to avoid prosecution.  She therefore co‑operated in the process of her own removal (and that of her infant son) back to her husband in the Mainland.  Her passivity at that time is understandable.  She knew from the news that many overstayers like herself who had sought right of abode had been detained.  She herself had now been informed twice that, in order to claim abode in Hong Kong, she had to return to the Mainland.  It was, in my view, the only reasonable inference to be drawn from her testimony that, perhaps with undue reverence for authority in the form of Ms Cheng, she bowed to what she then believed to be the inevitable.

172. My determinations are therefore as follows :

(i)      the applicant did make a claim for right of abode;

(ii)      however, the Director has no record of any claim.

(5)       Cheung Suet Kam (733 : a ‘group one’ applicant)

173. The applicant is the sister of the previous applicant; that is, applicant 713.  The applicant came to Hong Kong on 1 April 1997, being permitted to remain until late May.  Both her parents and her husband lived in Hong Kong, all having right of abode.  A number of her siblings lived here.  It is evident, in my view, that this applicant (like her sister) did not return to the Mainland on due date but overstayed in the hope that she would be able to claim right of abode for herself when the change of sovereignty took place.

174. After her arrival in Hong Kong the applicant discovered that she was pregnant.

175. Upon the change of sovereignty, the applicant did not present herself to the authorities to claim right of abode.  She waited.  More specifically, she waited to see what would happen when her sister went to the Immigration Department to claim right of abode.  This event took place on 19 July 1997.  The sister was unsuccessful and shortly thereafter was repatriated.  From 19 July, therefore, the applicant, whose case was no stronger than her sister’s, must have appreciated that, assuming no change in the law, a claim made by herself in Hong Kong would fail.

176. The applicant waited until 24 November 1997 before she went to the offices of GIS on 13^th floor of Immigration Tower accompanied by her mother and husband.  These were the same offices to which her sister had gone four months earlier.  By then she was heavily pregnant, near full term.

177. The applicant testified that she informed the officer at the reception desk that both her parents enjoyed right of abode and that she wished to claim the same right through them.  She said that in reply the officer told her that she would have to return to the Mainland to process her application.  That advice was in accordance with the prevailing statutory scheme and was at the time, of course, entirely valid.

178. The applicant was given an ID 457 form to complete.  She entered the necessary details of her parents.  She said that she did not state her permanent address as by that time she considered Hong Kong to be her home.  The applicant, however, did not endorse the form in any way to indicate that she was seeking right of abode.  That being the case, the completed (or partially completed) ID 457 form does not and cannot — on its face — constitute a record of her claim.

179. Thereafter the applicant was interviewed by an Immigration Assistant, Mr Ng Wai Lun.  She said that she again asserted her claim for right of abode and was again informed that she must return to the Mainland in order to process her application.  According to the applicant, she was then given a ‘grounds for non‑removal’ form — although she did not know the nature of the document at that time — and was directed to copy from a laminated card on which were recorded various statements.  The officer directed her to copy one statement to the following effect :

“Overstayed because I am 9 months pregnant, now I want to give birth in Hong Kong then return to China.”

The applicant said that she made one change to the statement.  The characters on the laminated card spoke of being ‘several months pregnant’ but she changed that to give the actual extent of her pregnancy.

180. On its face, of course, the completed ‘grounds for non‑removal’ form cannot constitute a record as required by the concession policy.  Nothing is recorded to suggest any sort of claim for right of abode.

181. The applicant testified that the laminated card from which she had been directed to copy obscured the heading of the form and at the time of writing she did not realise therefore that it was a form on which she could record the fact that she sought right of abode.  She said that if she had been free to write what she wished she would have stated her claim.  I reject that assertion for the reasons that I set out below.

182. I did not find the applicant to be a credible witness.  Indeed, in my judgment, much of her evidence was specifically tailored not to accord with her memory of events but to meet what she saw as the required tactical result.

183. The applicant said that when her sister made her unsuccessful application in July, she did not question her as to details of her experience : what had happened to her and why.  She learnt only that her sister had been unsuccessful.  I find that difficult to accept.  The issue was one of great importance to both sisters and their family members.  It defies common sense to accept that there was no post mortem.  But, of course, an admission that there had been a post mortem would have opened the applicant to questions as to why, even though forewarned, she appears to have passively accepted the same administrative process by officers of the GIS as her sister.

184. I also found it difficult to accept the applicant’s testimony concerning the placing of the laminated card on the ‘grounds for non‑removal’ form so that it obscured the heading.  That evidence, in my view, quite manifestly was manufactured to shield the applicant from awkward questions as to why, if the form invited her to state her grounds for non‑removal, she did not do so.

185. The interviewing officer, Mr Ng, testified that, to the best of his memory, there were three main categories of people who came to the offices of GIS : illegal immigrants, overstayers who wished to return to the Mainland and overstayers who were pregnant and wished to give birth in Hong Kong before being returned.  Mr Ng (and other interviewing officers) was criticised for blindly placing people like the applicant into pigeon holes.  But, remembering that Mr Ng conducted something like 15 to 20 interviews a day, it is hardly surprising that over a period of time he discerned dominant categories of persons.

186. Mr Ng denied that he kept a laminated card with suggested statements on it.  As I have said in the body of the judgment, I am satisfied that a number of officers in GIS did have standard answers available.  It may perhaps be that Mr Ng did present the applicant with a card of some sort.  But I have no need to decide the issue because I am satisfied on the evidence that the applicant waited until she was heavily pregnant before presenting herself to the immigration authorities for one reason only : it was not to claim right of abode, it was so that she could not be repatriated until she had given birth to her child in Hong Kong.

187. By way of postscript, it should be recorded that the applicant was mistakenly placed on the concession list for a period of time.  I am satisfied that this was a result of human error.  There can be no suggestion that any of the minutes written in respect of this concession list issue constitute in themselves, even indirectly, a record of a claim for right of abode.

188. In conclusion, therefore, I have determined :

(i)      that the applicant did not make a claim of right of abode;

(ii)      the Director has no record of any claim.

(6) & (7)   Chong Ming Lik (915) and Chong Ming Ngai (916) :

both ‘group one’ applicants

189. These two applicants are brother and sister.  They visited the Immigration Tower together on two occasions and on the second occasion were interviewed, one after the other, by the same immigration officer.  For ease of management, their cases were heard together and I deal with their cases in the same manner.  While looked at together, the case of each applicant is, of course, determined on its own facts.

190. Applicant 915 (I will call him Mr Chong) came to Hong Kong on 24 April 1997 on the strength of a two‑way permit.  He was permitted to enter Hong Kong with his young son.  Applicant 916 (I will call her Madam Chong) came to Hong Kong on 1 May 1997.  She was also permitted entry on the strength of a two‑way permit and entered with a child, her young daughter.  Both applicants testified that they came to Hong Kong in order to remain until the change of sovereignty took place so that they could then claim right of abode.

191. The applicants’ parents both enjoyed the status of permanent residents in Hong Kong and had unsuccessfully sought the issue of one‑way permits in favour of their children since the mid‑1970s.  Both applicants had an extended history of seeking the right to live in Hong Kong.  As early as 1983, Madam Chong had apparently petitioned the Secretary for Security seeking permission to remain in Hong Kong.  The petition had been unsuccessful.  But when a removal order had been issued, she had appealed that order.  Again she had been unsuccessful.

192. In my view, the probabilities support the applicants’ testimony that each of them came to Hong Kong for the specific purpose of seeking right of abode.  This is supported by the fact that, in the company of their father, both applicants presented themselves at the Immigration Tower on 5 July 1997, the third working day after the change of sovereignty.

193. Mr Chong, who testified first, said that they arrived at the Immigration Tower at about eight o’clock in the morning to discover that there were already a large number of people waiting.  They were placed in a queue on the ground floor of the building.

194. Madam Chong said that, while waiting in the queue, she saw newspaper reporters interviewing others in the queue who informed the reporters that they were there to claim right of abode.  The evidence made it plain that a large number of overstayers converged on the Immigration Tower that day seeking to claim right of abode.  Mr Pang Kin Mo, a Senior Immigration Officer in GIS, in his affirmation dated 15 March 2003, spoke of special arrangements being put in hand at that time to deal with the expected flood of abode seekers.

195. Mr Chong testified that when he reached the head of the queue on the ground floor, he informed the officer on duty at the counter that they wished to obtain right of abode.  He and his sister, he said, were then handed the forms seeking their personal details and those of their families.  These were ID 457 forms.  Mr Chong said that he completed the form himself.  Madam Chong said that, as she was reasonably new to Hong Kong and did not speak Cantonese fluently, she asked her father to complete the form on her behalf.

196. After completion of the forms, the applicants and their father were escorted to the offices of GIS on the 13^th floor.  Mr Chong said that he and his sister were asked for their completed ID 457 forms and their expired two‑way permits.  Mr Chong said that he was again asked to state the purpose of their visit and again said that he and his sister were seeking right of abode.  Mr Chong said that he was asked to produce his father’s identity card.  This was inspected by the immigration officer who copied particulars of the card onto a piece of paper.  Discovery of the relevant records, however, revealed no such note.

197. After waiting for some time, the applicants were given receipts for their surrendered two‑way permits together with what they have described as ‘letters of guarantee’; that is, letters which temporarily regularised their stay.

198. The applicants were called back to the Immigration Tower on 14 July 1997, again in the company of their father.  At the offices of GIS receipts for their two‑way permits and their ‘letters of guarantee’ were collected.

199. Mr Chong said that he was interviewed first.  The interviewing officer was Ms Pauline Cheng Po Lin.  Mr Chong testified that he told the interviewing officer that he wished to remain in Hong Kong to apply for right of abode.  The interviewing officer, however, told him that even children of a young age had to return to the Mainland so how could he, an adult, expect to stay.  Having had his claim rejected, Mr Chong said that he was then handed a ‘grounds for non‑removal’ form.  He was asked if he was literate and replied that he was.  According to Mr Chong, the interviewing officer then handed him a paper on which characters were written and told him to copy them onto the form.  He did so.  The Chinese characters written by Mr Chong were to the following effect :

“I, Zhuang Ming Li, and my son Zhuang … Huang came to Hong Kong through Lo Wu on 24 April 1997.  I knew that my son and I might stay till 16 May 1997, but overstayed because I liked Hong Kong.  I now want to go back to China.”

200. Mr Chong accepted that he was not threatened in any way by the interviewing officer nor was he warned of salutary consequences if he failed to follow her instructions.  He said that, although he did not wish to go back to China, at the time he simply did not realise the reason why he was required to write these characters, was not certain how best to object and, in the result, simply obeyed.

201. Madam Chong was next interviewed by Ms Pauline Cheng.  Madam Chong said that she informed the interviewing officer that her parents had right of abode in Hong Kong and she wished to remain in Hong Kong with them.  She was told that she must go back to China and make any claim for right of abode there.  Madam Chong said that a ‘grounds for non‑removal’ form was produced.  The interviewing officer asked her if she knew how to fill out the form.  She shook her head.  The interviewing officer, she said, gave the appearance of being angry and said words to the effect : “you are as stupid as your brother”.  Madam Chong said that the interviewing officer then wrote some characters onto a piece of paper and directed her to copy those characters.  She said that the interviewing officer was acting in a very brusk manner, insisting that she do it quickly.  Madam Chong said that she did not have an opportunity to read all the characters together and she simply copied them one after the other.  When she had done so she was told to sign and duly placed her signature on the document.  The characters which appear on Madam Chong’s ‘grounds for non‑removal’ form are to the following effect :

“I, Zhuang Ming Li, and my daughter Chen … Ying came to Hong Kong through Lo Wu on 1 May, 1997.  I knew that my daughter and I might stay till 16 May 1997, but overstayed because I liked Hong Kong.  I now want to go back to China.”

202. Madam Chong said that she thought of making a complaint that she had not been dealt with fairly.  But, as she put it, she came from a Mainland village, had little knowledge of Cantonese and was fearful of doing so.

203. Both Mr Chong and his sister signed ‘no loss, no complaint’ forms.

204. When questioned, Ms Pauline Cheng said that at about this time she had been interviewing between 15 to 20 people a day.  She accepted that in July 1997 the pressures had been particularly great.  Concerning mistakes, appearing on the applicants’ ‘grounds for non‑removal’ forms, she said that she had been in a hurry that day.

205. Ms Cheng testified that she had not directed the applicants what to write nor given them pre‑written characters from which to copy.  However, when the remarkable similarity of the applicants’ two statements was pointed out, she accepted that she had dictated the first sentence of each statement.  That the balances of each statement were identical she explained on the basis of co‑incidence.  I reject her testimony in that regard.  The two statements, while they give different names and different dates, are in all other respects almost identical to each other.  They give essentially the same information in the same order and in their conclusions express exactly the same desires.

206. But that being said, I am unable to find on the evidence that either applicant was forced to write the words they did or in any way prevented from adding to or supplementing the words with an assertion of a claim for right of abode.

207. I readily accept that the interviews would have been comparatively brisk and, assessing Ms Cheng’s character (on the basis only of her testimony) I also accept that her manner may have been brusk.  But both applicants appear to have acquiesced in agreeing to write what they were asked to write.  Both applicants are literate and must have appreciated the import of the words.  Yet both, one after the other, not only failed to query what they were asked to write but at the end of their interviews signed forms confirming they had no complaint.

208. I found both applicants to be essentially credible although Madam Wong, a somewhat nervy woman, was prone to exaggeration and I am satisfied did exaggerate the alleged oppressiveness of her interview.  On the probabilities I am satisfied that each of them did claim right of abode on their first visit to the Immigration Tower on 5 July 1997.  I am less certain, however, as to claims allegedly made on the second occasion.

209. The difficulty that the applicants faced, however, was the lack of a record of their claim or claims.

210. The ID 457 forms completed by them on their first visit were not endorsed in any way so that, on their face, they were evidence of a claim.  Yes, their father’s name appeared in a top corner but, on its own, I fail to see how that advances matters.

211. I considered the possibility that the manner in which the applicants were processed on 5 July 1997 may have been recorded in such a way as to point to the fact that they had claimed right of abode.  But nothing was shown to me on the face of available documents which would assist in that regard.

212. Quite clearly, the ‘grounds for non‑removal’ forms, on their face, cannot constitute a record of any sort of claim.

213. My determinations are therefore as follows :

(i)      each applicant did make a claim for right of abode;

(ii)      the Director has no record of any such claims.

(8)     Lau Suet Fa (1970 : a ‘group one’ applicant)

214. The applicant’s father came to Hong Kong in 1973.  Her mother came in 1987.  Since about 1980 the applicant had applied without success for the issue to her of a one‑way permit.

215. In or about December 1993, the applicant was permitted to visit Hong Kong.  She overstayed until she was arrested in September of the following year, prosecuted and repatriated.  Wishing to return to Hong Kong, the applicant obtained another two‑way permit.  But this one was not in her name, it was in the name of a friend, Lau Yin Yuk.  On 26 May 1995, by using that false travel document, the applicant entered Hong Kong.  She then remained in Hong Kong with her parents until the change of sovereignty.

216. The applicant said that, with the change of sovereignty, she hoped to be able to obtain permanent right of residence.  However, in the days following reunification she saw on the television that large numbers of people who had gone to the Immigration Tower to claim right of abode had been repatriated.  She therefore waited, she said, unaware of the legislation that had come into force in respect of people in her position, until 31 July 1997.  On that day she went to the Immigration Tower.  At the offices of GIS on the 13^th floor, she informed the officer at reception that she had come to register for right of abode.  The officer told her that there was no system of registration in Hong Kong and that she must return to the Mainland in order to process her application.

217. By then, of course, on her own evidence, the applicant must have appreciated that there was no immediately accessible means of claiming right of abode in Hong Kong and that, as an overstayer, the great likelihood was that she would have to be repatriated.

218. The applicant was, of course, faced with an additional difficulty.  The name on her expired two‑way permit was a false name.  She said that she was interviewed by two immigration officers that day, not just one.  She said that she admitted that the name on her permit was false.  She was then warned, she said, that if that was the case she would find herself in trouble.  Fearful of what may happen, she said that she therefore confirmed that the false name of Lau Yin Yuk was her real name.

219. The applicant completed an ID 457 form.  In it, she gave her false name.  Although she had family — a husband and children — in the Mainland, she did not give their details.  The form did, however, give the correct names and details of her parents.

220. In addition, the applicant lodged a copy of her father’s identity card.  The evidence indicated that she may also have lodged a copy of her mother’s identity card but, if so, that document appears no longer to be part of the Director’s records.

221. A copy document proving that a parent was a permanent resident of Hong Kong was something additional and it may be asked why an overstayer at that time would have brought such a document to the Immigration Tower unless it was to back up a claim for right of abode.  But that supporting document on its own, in my judgment, is not sufficient to constitute a record for the purposes of the concession policy.  A document of that kind could be filed for a number of reasons, for example, to support a sympathetic explanation for overstaying.  The other difficulty which the applicant faced in advocating that the ID 457 form and the copy of the father’s identity card constitutes a record is that the form is completed in a false name.

222. It should also be mentioned that the applicant’s testimony as to asserting a right of abode was somewhat ambiguous.  Although given an opportunity to amplify her evidence, she went no further than saying that she told her interviewing officer that she wished to remain in Hong Kong with her parents.  I took that, however, in substance to be a claim, especially as she had lodged evidence that her parents were permanent residents.

223. In my judgment, the probabilities do support the applicant’s evidence that in substance an oral claim was made.  I accept the force of what was said on her behalf :

“      The fact that Ms. Lau had been so determined in the past and had run so many risks in her endeavours to stay in Hong Kong with her parents makes it unbelievable that she should suddenly give up all and wish to return to the mainland.  Her staunch resistence to the notion that she could have any chance of applying in the mainland was surely the result of bitter familiarity with the procedures for applying for one‑way permits.”

224. The applicant was interviewed by an Immigration Assistant, Ms Clara Cheung King Wai.  In respect of this interview, the applicant said that she was asked why she had overstayed and replied to the effect that she had been with her parents.  She said that she was then handed a ‘grounds for non‑removal’ form.  Although she looked at the form, she said, she did not comprehend what ‘removal’ meant.  She did not know what to write.  In the result, she said, the interviewing officer dictated to her what she should write.  The English translation is to the following effect :

“I have overstayed because of keeping company with my family.  I now wish to go back to China.”

225. The applicant — like so many others — made no claim that she had been actively prevented from writing what she wished to write or forced against her will to write what was dictated to her.  The applicant accepted that she was not sure what to write.  She made no claim of threatening behaviour on the part of Ms Cheung or coercion.  She said that she did not wish to go back to the Mainland, what she wanted to do was to remain in Hong Kong and be issued a Hong Kong identity card.  In attempting to explain why she had failed to state her wish in writing and had only written down what she had been told to write, the applicant (somewhat ambiguously) said that she had only been following ‘the course of nature’ or acting ‘according to nature’.

226. The interviewing officer, Ms Cheung, had no independent recollection of the interview.  However, she denied dictating to the applicant what was written on the ‘grounds for non‑removal’ form.  As she said : “she wrote it herself and not at my dictation.”  I reject that evidence.  The statement is according to a formula.  The evidence revealed that statements in exactly the same format appeared on something like 14 other ‘grounds for non‑removal’ forms.

227. But, as I have said in respect of other cases determined in this report, the fact that words were suggested does not of itself amount to oppressive conduct, certainly not in respect of administrative interviews of this kind.  It is quite clear, in my view, that the applicant in this case willingly acquiesced in writing the words suggested to her.  If she had wished to assert her claim for right of abode, I am satisfied that she would have been able to do so.  The fact is that she did not take advantage of the opportunity given.  Timidity or confusion or, as I have alluded to earlier, a realisation that she would in any event have to be returned to the Mainland dictated her actions.

228. The ‘grounds for non‑removal’ form cannot, on its face, constitute a record in terms of the concession; it does not in any way evidence a claim for right of abode.

229. Accordingly, I have determined this case as follows :

(i)      the applicant did make a claim for right of abode;

(ii)      the Director has no record of any such claim.

(9)     Lai Siu Fung (1663 : a ‘group one’ applicant)

230. On 30 July 1996, being in possession of a two‑way permit, the applicant came to Hong Kong.  She was permitted to remain until late September of that year but overstayed.  The applicant’s father had come to Hong Kong in 1980, her mother in 1986.  The applicant herself had attempted without success to obtain a one‑way permit.  The applicant overstayed, she said, because her father told her after the change of sovereignty she would be able to claim right of abode.

231. The applicant, however, did not present herself to the immigration authorities until almost a year after the change of sovereignty.  In that time she learnt that a large number of people in her position had attempted to claim right of abode but had been repatriated.  The applicant said that she was aware of the ‘time of birth’ limitation and the certificate of entitlement scheme introduced by statute in July 1997.  She was also aware of litigation concerning the right of abode issue.

232. The applicant said that she and her mother went to the Immigration Tower on 19 May 1998.  She said that she chose this date because a court ruling on the right of abode issue was either about to come out or had come out.  With the lapse of time, she was confused on this issue.  Nor was she able to say that the ruling, if already given, supported her claim.

233. Other applicants testified that at the offices of GIS they would first be asked to complete an ID 457 form by an officer at reception and thereafter would be interviewed.  It appeared to be this applicant’s testimony, however, that the two‑stage process was compacted into one interview.

234. The applicant said that initially she and her mother were in the interview room with the interviewing officer.  Both of them told the officer that they were there to claim right of abode for her.  However, according to the applicant, the interviewing officer told them that right of abode could not be claimed in Hong Kong and that to claim such right of abode she would first have to return to the Mainland.  According to the applicant, her mother became upset.  The mother was worried that the applicant, who is of very short stature would not be able to cope for herself back in the Mainland.  With emotions running high, said the applicant, the interviewing officer then directed the mother to leave the interview room and to wait outside.

235. The applicant, who has upper secondary education, said that she was then presented with a ‘grounds for non‑removal’ form. However, she was confused and unhappy and, although she was not prevented from reading the form, she took little notice of what was written on it.  According to her, the officer directed her to write on the form.  The characters that she wrote were to the following effect :

“I have overstayed because of keeping company with my family.  I now want to go back to China.”

236. In respect of these characters, the applicant said that she could not now remember whether the words were dictated to her or whether she was asked to copy them.  The Chinese characters are, as I have said elsewhere, almost a standard formula.  But the applicant accepted that she was not threatened by the interviewing officer.  All she could say was that she was fearful that, if she opposed the interviewing officer or confronted him in any way, she would get into trouble and would not be able to remain with her family.

237. The applicant was later prosecuted for breach of her two‑way permit.  She pleaded guilty.  She made no claim for right of abode at the magistracy.  She explained that she had been educated in the Mainland, that she was not an out‑going person and that she was again afraid of trouble.

238. In my judgment, even if the applicant was in large measure directed what to write on the ‘grounds for non‑removal’ form, there is no evidence of any oppressive conduct on the part of the interviewing officer, Mr Peter Hui Wing Chung.

239. The ID 457 form contains no endorsement or notation that, on its face, could be read as recording a claim for right of abode.  The ‘grounds for non‑removal’ form is not capable of constituting a record either.

240. My determinations are therefore as follows :

(i)      the applicant did make a claim for right of abode;

(ii)      however, the Director has no record of any such claim.

(10)   Tai Lin Fat (3174 : a ‘group one’ applicant)

241. The applicant came to Hong Kong on 6 April 1997.  His two‑way permit allowed him to remain until early May of that year.  However, he overstayed.  He did so, he said, because he was waiting for the anticipated amnesty which would be granted to persons in his position upon the change of sovereignty.  This is credible.  Both his parents had right of abode and attempts had been made over an extended period of time to obtain a one‑way permit so that he could join his parents.

242. The applicant said that he took a special interest in the fate of persons who presented themselves to the Immigration Department immediately after the change of sovereignty and was aware that they had been arrested and repatriated.  In light of this, the applicant said that he ‘hid himself away’ until 9 December 1997 when he summoned the courage to surrender himself to the immigration authorities.  The applicant said that he surrendered himself in order to claim right of abode.  Despite taking an interest in what was happening to persons in his position, he said that he had no knowledge of the certificate of entitlement scheme then in operation of the time of birth limitation or indeed of the commencement of right of abode litigation.  In the context of his testimony, that did not ring true.

243. In the papers prepared for his case, the applicant is recorded as recounting the following in respect of his visit to the Immigration Tower on 9 December 1997 :

“The family decided he should surrender and claim RoA [right of abode] so on 9/12/97 Mr Tai and both his parents attended ID Wanchai, 13th floor.  There they explained they were surrendering for right of abode.  The officer looked at their documents and told them that only those born after their parents had become a PR have right of abode.”

244. However, when testifying, the applicant said that he approached the officer at the reception desk and said that it was his intention to remain in Hong Kong in order to be with and care for his parents.  He said that he was then handed on ID 457 form for completion.  He denied that the officer at reception had told him that only those persons born after at least one parent had become a permanent residence were able to claim right of abode.

245. Indeed, generally the applicant was vague and uncertain as to what transpired on the day of his surrender.

246. The ID 457 form was, it seems, completed by the applicant’s father.  It contains no endorsement to the effect that a claim for right of abode was being sought.  The form is more notable for its omissions.  It does not record that the applicant was a married man with children in the Mainland.  It does not record that the applicant had two brothers in Hong Kong in addition to the two sisters whose details were given.

247. As to his interview, the applicant recalled virtually nothing except for the single assertion made by him that he was told to copy the characters that appear on his ‘grounds for non‑removal’ form.  The characters are to the following effect :

“      Overstayed because I was with family.  Now I want to return to China”

The applicant made no assertion to the effect that he wished to write something else but was threatened to write only what he was directed.  When asked in cross‑examination why he did not complain about being directed what to write and filled out the ‘no loss, no complaint’ to the effect that he had no complaint, the applicant said that he did not know that he could complain.  Yet, as counsel for the Director pointed out, he was literate and able to understand the documents placed in front of him.

248. The GIS officer who interviewed the applicant was Ms Lindy Yu Man Yan.  She gave evidence in respect of two other applicants (1663 and 3910) who had written the exact same characters on their ‘grounds for non‑removal’ form.  Despite this, Ms Yu persisted in her assertion that she in no way prompted the applicant.  I reject her evidence in that regard.  Manifestly, in my view, some form of assistance was given.

249. But directing a person what to write by way of assistance when that person consents is not the exercise of unlawful pressure.  Indeed, as I have said, in an everyday administrative process interviewees may seek that help.  In my judgment, the balance of probabilities in respect of the applicant indicates that he knew he would have to be repatriated and complied with the process.  I do not accept that he surrendered himself for the specific purpose of claiming right of abode.  While I cannot discount the possibility (I put it no higher) of some query being made as to whether he could remain in Hong Kong with his parents, I am satisfied that no claim for right of abode was made.

250. In my judgment, looked at objectively, neither the ID 457 form nor the ‘grounds for non‑removal’ form, considered alone or together, can possibly be said to constitute a record of any claim.

251. My determinations are therefore as follows :

(i)      the applicant did not make a claim for right of abode;

(ii)      the Director has no record of any claim.

(11)   Sze Li Chun (3089 : a ‘group one’ applicant)

252. The applicant came to Hong Kong on 6 September 1996, her two‑way permit authorising her to remain until 29 November of that year.  At that time both the applicant’s parents were permanent residents.  In addition, the applicant’s husband was a permanent resident.

253. When the applicant came to Hong Kong, she was pregnant.  She therefore overstayed, hoping to give birth to the child in Hong Kong.  She had given birth to her first child in Hong Kong.

254. On 8 May 1997, in the company of her husband, the applicant surrendered herself to the immigration authorities.  At the offices of GIS she was given an ID 457 form which, she said, was completed by her husband.  The form records details of her family but otherwise contains no endorsement specifically related to a claim for right of abode.

255. When the applicant was interviewed, she was given a ‘grounds for non‑removal’ form on which she wrote characters to the following effect :

“      I overstay because I am pregnant for eight months.  I want to give birth to my child in Hong Kong before returning to China.”

256. According to the applicant, before she wrote on the form she was asked what she wished to do after birth.  She said that she wished to remain in Hong Kong to care for her baby.  The interviewing officer, however, told her that she must return to the Mainland and gave her a piece of paper, saying that she should copy the characters written on that paper.  The applicant said that she complied.  When asked why she had not written what she wanted to write, the applicant smiled and said simply that it was not possible to say no.  The applicant, however, did not speak of any threat or overt oppressive conduct.  She accepted that she signed two forms : the ‘grounds for non‑removal’ form and the ‘no loss, no complaint’ form.  In respect of the second document, she said that it was not her who circled the character to indicate she had no complaint.  But, in my judgment, that takes the matter no further.

257. While I am satisfied that the interviewing officer, Mr Fabian Wong Chi Koon (a man not a woman as the applicant recalled), did give assistance to the applicant in completing her ‘grounds for non‑removal’ form, which may have included directing her as to the characters to write, I do not accept that it constituted oppressive conduct.  The applicant herself accepted that there were no overt threats or anything of that kind.  I am satisfied that, if directions were given, they were given with the applicant’s consent.

258. The applicant gave birth on 3 July 1997 shortly after the change of sovereignty.  She said that she knew of the events that took place at the Immigration Tower in the days following reunification and said that, if she had not just given birth, she would have gone forward to claim right of abode too.

259. On 24 July 1997, the applicant said that she went to the Joint Recognisance Office of the Immigration Department to have her recognisance extended.  On that occasion, she said she informed the officer dealing with her that she wished to remain in Hong Kong to claim right of abode.  The officer replied that there was no mechanism available to her for making such an application in Hong Kong and that she must return to the Mainland to process any such application.

260. The applicant said that she was then asked to place her signature on a form.  The form signed by her is to the following effect :

“      Ms. Sze Lee Chun, I am Senior Immigration Assistant Kong Yiu Ming, currently attached to the Joint Recognizance Office or Removal Sub‑division.  I now notify you to go to the Prosecution Section, Room 1306, 13/F, Immigration Tower, 7 Gloucester Road, Wan Chai at 9:00 a.m. on 4 August 1997 for the necessary formalities and you have to bring along 5000 Hong Kong dollars as bail money.  You must also arrive at Lo Wu Control Point of the Immigration Department with your luggage by train between 1:00 p.m. and 3:00 p.m. on 7 August 1997, report to the Immigration Officer on duty and present the receipt for payment of fine, so that arrangements can be made for your repatriation to China on the same day.”

It is this document, taken together with other documents on file, that is put forward as a record of the applicant’s claim.

261. The applicant impressed me as a quiet, gentle, essentially honest witness.  On the probabilities I am satisfied that when she went to Joint Recognisance Office after reunification she did assert the belief that she had right of abode.  The difficulty, however, is that there is simply no record of that assertion.  Even read together with the other documents on file, I fail to see how a standard form advising the applicant of her intended prosecution and repatriation — unendorsed in any way by the applicant — can be said, on its face, to constitute a record of a claim.  It is nothing of the kind.

262. My determinations are therefore :

(i)      the applicant did make a claim for right of abode on 24 July 1997, but

(ii)      the Director has no record of that (or any) claim.

(12)   Sze Sau Kan (3122 : a ‘group one’ applicant)

263. The applicant came to Hong Kong with her husband and two children on 11 March 1997.  Their two‑way permits authorised them to remain in Hong Kong as visitors until 8 April of that year.  The applicant, her husband and children overstayed.

264. The applicant said they overstayed in anticipation of obtaining right of abode upon the change of sovereignty.  Both of the applicant’s parents enjoyed the status of permanent residents.  Although there was some doubt as to the date, the applicant said that she and her family surrendered themselves to the immigration authorities on 14 July 1997.  Certain independent evidence, however, suggests that it was on 4 July 1997.

265. The applicant said that she told the officer with whom she dealt that day that she was there to claim right of abode.

266. The applicant, however, was not interviewed on the day she surrendered.  She was instead sent away, her remaining in Hong Kong being regularised in terms of a recognisance document.  In early July, of course, a very large number of persons were presenting themselves to the immigration authorities and many interviews were postponed.

267. The applicant returned to the Immigration Tower on 24 July 1997 and was told to go to 14^th floor.  Persons who had entered Hong Kong as members of tour groups and who overstayed were dealt with on this floor.

268. The applicant said that she was with her husband and two children.  She said that she and her husband were handed forms — ID 457 forms — onto which personal particulars were to be written.  Her husband, she said, completed her form.

269. The applicant said that she and her husband were then interviewed.  She said that she told the interviewing officer that both she and her husband were there to claim right of abode.  In reply, however, according to the applicant, the officer said that the ability to claim right of abode in Hong Kong “was no longer there”.  She was therefore told, she said, to write something different on the ‘grounds for non‑removal’ form which both she and her husband had been given.

270. The applicant said that, in light of this turn of events, she and her husband were at a loss what to write.  The officer therefore sought a number of details from her husband, wrote them down and suggested that her husband copy what had been written.  According to the applicant, the husband protested that he did not want to return, that his father was in poor health and needed his care.  In reply, said the applicant, the officer said that this was just part of his “routine procedures” and that if their case could not be processed that day they would have to be detained overnight.

271. In the result, said the applicant, her husband copied what had been written by the officer and she, in turn, copied what her husband had written.

272. When her turn came to write, said the applicant, she again said that she wished to apply for right of abode and was told that it was not possible.  She was advised, she said, to write that she had been in Hong Kong to look after her father‑in‑law.  The applicant’s statement is to the following effect :

“I, Shi Xiu Jin, came to Hong Kong by a two‑way exit permit through China HK Ferries on 11 March 1997 together with my husband Wu … Xu, my son Wu … Long and my daughter Wu … Xuan.  We may stay in Hong Kong till 7 Apr. 1997.  We have overstayed in Hong Kong because of keeping company with my father‑in‑law.  I now wish to go back to the Mainland as soon as possible.  All my family members are in good health.”

273. The applicant’s statement is effectively a mirror of her husband’s statement.  Ms Ma Suk Kwan, the interviewing officer had no independent recollection of the interview.  That is understandable.  She was interviewing a large number of people each day.  She said that it was not her practice to tell people what to write.

274. In my judgment, however, while it is understandable that the applicant may simply have copied her husband’s statement, it is apparent to me that the husband must have been guided in what to write.  Why else would a sentence be included concerning family health?  The statement of the husband (and through him, the wife) has the clear markings of an orderly composed document, one that meets the requirements of the Immigration Department.

275. But having said that, and while Ms Ma did not impress me as a witness, I am unable to find that either the husband or the applicant (or the two together) were the victims of oppressive conduct.  There may have been some confusion and/or hesitation on their part, the officer may well have offered to assist them.  But I am satisfied that, if the applicant had wished to record the fact that she was claiming (or had hoped to claim) right of abode, she would not have been prevented from doing so.  I reject the suggestion that any threats were made concerning detention.

276. That being the case, while I believe the probabilities support the applicant’s testimony that she did make some form of claim for right of abode, I am not satisfied that there is any record evidencing such claim.  The recognisance form given to her on 4 or 14 July 1997 cannot, on its face, evidence such claim, even by inference in the light of procedures adopted at that time.  Nor can it be said that the applicant’s statement on the ‘grounds for non‑removal’ form constitutes a record; there is nothing on the face of that document, even read in context, that begins to suggest anything in the nature of a claim.

277. My determinations are therefore as follows :

(i)      the applicant did make a claim for right of abode, but

(ii)      the Director has no record of that claim.

(13)   Leung Kang Kwong (2113 : a ‘group two’ applicant)

278. The applicant came to Hong Kong on 6 January 1998 to visit his mother.  He did not overstay.  Instead, shortly before the expiry of his two‑way permit, he went with his mother to the Chinese Visitors Office (‘the CVO’) in Yau Ma Tei.  The visit was made on 31 January 1998.

279. The applicant testified that the purpose of his visit to the CVO was to seek right of abode; that is, the right to remain permanently in Hong Kong with his mother.

280. At the outset, I should say that the applicant struck me as an essentially credible witness.  He did not manifestly exaggerate or distort his testimony for tactical purposes.  His testimony had the ring of honest recollection.  By way of example, the applicant accepted that there were posters on the walls of the CVO saying that those who wished to seek right of abode in Hong Kong must return to the Mainland in order to process their application.

281. The applicant testified that when he arrived at the CVO, he approached a counter and told the immigration officer at that counter that he wished to remain in Hong Kong on a permanent basis in order to look after his mother.  He said that he showed the officer various papers including a medical certificate attesting to his mother’s frail health.  In reply, he said, the officer informed him that there was no mechanism for processing his claim for right of abode and that he would have to return to the Mainland in order to process his claim.  As to his mother’s state of health, the officer said that his mother’s case did not appear to be a special case, that her condition appeared to be stable and in the circumstances an extension of only two days could be granted.

282. In light of this, said the applicant, he agreed to make an application for an extension of stay and was given a form ID 91 to complete.

283. The form ID 91 is specific as to its purpose.  It bears the heading ‘Application for an Extension of Stay’ and in about the middle of the document contains the words : ‘I now apply to extend my stay until …”.  The applicant completed that portion of the form by inserting a date which amounted to a two day extension.  Directly below that portion, the following words are printed : “Give full reason for your request and submit any documentary evidence that you have in support of your application”.  The applicant completed that portion by writing : “Mother physically not well.  Stay some more time, to take care of her”.  In my judgment, nothing written on the form ID 91 can be read as constituting a claim for right of abode.  What is written is, in the context of the form, nothing more than a request to remain in Hong Kong a few more days.

284. After completion of the form ID 91, the applicant said that he was then interviewed at another counter by another officer.  In this interview, he said, he again said that he wished to remain in Hong Kong on a permanent basis to care for his mother.  The record of interview, however, only bears the short note : “to take care of mother”.  Again, in my judgment, that record, read alone or in conjunction with the form ID 91, cannot be taken as evidence of a claim for right of abode.

285. The officer who interviewed the applicant was Mr Lok Hing Tung.  Mr Lok said that he was approached from time to time by persons seeking right of abode.  His practice, he said, had been to refer such persons to Immigration Headquarters.  He said that during the concession period no journal or register of persons who asked about right of abode claims was maintained.

286. Mr Lok had no independent recollection of the interview with the applicant and (understandably) had to refer to his standard practice at the time.

287. On all the evidence, I am satisfied that the applicant did make a claim for right of abode at the CVO on 31 January 1998.  The difficulty, however, is that, in my opinion, as earlier stated, I am unable to find that there is any record which on its face constitutes evidence that such a claim was made.

288. By way of postscript, it should be said that, having left Hong Kong in February 1998 in accordance with his extended two‑way permit, the applicant returned in January 1999.  In an affirmation dated 18 October 2002, the applicant said the following in respect of his return :

“      I alighted from the train at the terminal in Hung Hom.  When I tried to enter, I was taken to one side and into an interview room, where there were two immigration officers.  My name was written down.  They checked my luggage, and asked the purpose of my visit.  I replied that I wanted to take care of my mother, and I further asserted my right of abode and asked about the means by which I could pursue my claim.  There was no reply to this.”

However, when he testified, the applicant made no mention of asserting a right of abode at Hung Hom station.  Indeed, during cross‑examination he was asked if he had said anything other than the fact that he had come to visit his mother and he confirmed that he had not.

289. Counsel representing the applicant did not submit that the Hung Hom interview should be accepted as a claim that fell into the concession policy.

290. My determinations are therefore as follows :

(i)      the applicant did make a claim for right of abode but

(ii)      the Director has no record of any such claim.

(14)   Hui Yuk Heung (1380 : a ‘group one’ and ‘group four’ applicant)

291. Both the applicant’s parents are Hong Kong permanent residents.  Her brother was born in Hong Kong.  In or about 1988, an attempt was made to obtain a one‑way permit for the applicant but it was not successful.  At all material times therefore the applicant had compelling reason to seek right of abode.

292. The applicant came to Hong Kong in 1994, her two‑way permit authorising her to remain as a visitor for a limited period.  She overstayed.  Indeed, she remained in Hong Kong until her repatriation in late 1998 after her arrest by police officers on or about 25 September of that year.

293. The applicant said that, with the approach of the change of sovereignty, she and her family anticipated that she would be granted right of abode.  However, after reunification she learnt that large numbers of persons in her position who surrendered themselves were arrested and repatriated.  The anticipated amnesty did not materialise.  The applicant said that in the circumstances she dared not surrender herself.  She did not seek in any way to claim right of abode but it was to be inferred from her evidence that she believed, if she waited long enough, matters would be resolved in favour of persons like herself.

294. On or about 25 September 1998, while out with her mother and brother, the applicant was stopped by police and asked for her identity card.  She said that at the scene her mother told the police that her daughter was entitled to right of abode through herself and her husband as they were both permanent residents.  She said that, when the home was visited, her father made the same protestation.

295. The officers who stopped the applicant had no independent recollection of the event.  They had to rely on notebook entries.  Those entries say nothing of any such assertions.  Police notebooks are, of course, not intended as exhaustive records.  The arresting officer said that such assertions would have been most unusual and, if made, he believed he would have made some record of them in his notebook.

296. But, in my judgment, it is not possible to dismiss the applicant’s evidence in respect of these claims.  They may have been made in desperation, in fear of losing a member of the family, but that does not mean they could not and were not made.  Nor can it be said that an absence of a police notebook entry must be conclusive.  In looking to the evidence, as a whole, especially the applicant’s later recorded assertions, I believe the probabilities support her testimony that such claims were made.

297. After a night in police detention, the applicant was transferred to the Victoria Immigration Centre.  She said that her parents came to the centre to try and obtain a recognisance for her but were unable to do so.

298. The applicant said that she was interviewed twice that day.  On the first occasion, she was asked to complete a form having the same purpose as an ID 457 form, on the second occasion she completed a ‘grounds for non‑removal’ form.

299. In the first interview, said the applicant, she told the officer that both her parents had right of abode and through them she too had right of abode.  She also said that during a telephone conversation between the officer and her father, her father had made the same assertion.

300. The applicant said that the officer who interviewed her endorsed the personal particulars form with the dates when her parents had first been registered in Hong Kong as having permanent residence.  Such an endorsement does appear.  However, the officer concerned, Mr Fung Kam Chun, said that he did not interview the applicant at all and that he made the endorsements after the applicant’s file had been passed to him.

301. Ms Laura Louie Ka Yuk, who did interview the applicant that day, said that she was the one who gave the personal particulars form to the applicant to complete, identifying certain of her handwriting on the form.  Mr Fok, for the Director, in his submissions, commented that “the contention that the personal particulars form was completed in the presence of Mr Fung, the Senior Immigration Officer in the unit, and before Ms Hui was interviewed by Ms Louie, simply makes no sense.  The consistent evidence has been that the more junior officers collect the basic data and the more senior officers consider and make recommendations based on that data.  That the opposite should have happened here is not credible.”  In my judgment, there is strength in that submission.  On the probabilities, I am satisfied that there was no interview with Mr Fung as alleged by the applicant.  In this regard, the applicant’s memory failed her.

302. The applicant’s ‘second’ interview was with Ms Louie.  On that occasion, said the applicant, she was given a ‘grounds for non‑removal’ form.  She wrote on that form in Chinese characters to the following effect :

“My name is Hui Yuk Heung.  I am from Guangdong Province and speak Chiu Chow dialect.  I hold no government position in the Mainland of China and am not a cadre … I came to Hong Kong only for tour/visiting relatives.  My parents are permanent Hong Kong residents, but I do not have documentary evidence to support that.  I have been overstaying in Hong Kong without extension of stay or taking up any employment.  I now wish to go back to the Mainland of China as soon as possible.”

303. The applicant testified that when she was given the ‘grounds for non‑removal’ form, she was also given a second piece of paper.  On this second paper, she said, were words that she was asked to copy.  The applicant said that the purpose of the form was not explained to her.  She started to copy, she said, and then continued in her own characters to write down that her own parents were both Hong Kong permanent residents.  At that juncture, she said, she was asked if she possessed proof of that claim and, when she replied that she did not, was instructed to write that down.  It was the essential thrust of the applicant’s testimony that she had already orally asserted that she had right of abode through her parents and that, if she had not been interrupted, would have specifically asserted that in writing too.  I reject that evidence.  In my judgment, in her anxiety to prove her case, that was an invention by the applicant.

304. But that being said, the recorded assertion by the applicant that both her parents were Hong Kong residents cannot be set to one side as simply a statement made in mitigation, not when read with the other documentary records.

305. In determining how best to deal with the applicant, the records of the Director reveal that certain minutes were written, considered and advised upon.  In particular, one minute, M3, states the following :

“      She [the applicant] had knowingly overstayed in HKSAR since    15‑3‑95    without applying for extension of stay.  She also claimed that she had not taken up employment while staying in HKSAR.  She claimed that her parents were HK residents but could not exhibit documentary proof for the said claim.”

On that minute there appears the following handwritten note :

“Pl. consider O/S charge.  ROP record confirmed that both of her parents were not PR at the time of her birth.  Besides, she could not produce any P of R.”

306. These minutes reveal that an investigation was made into the right of abode status of the applicant’s parents.  That, it would seem, would have been done because of the applicant’s assertion recorded in her ‘grounds for non‑removal’ form.  In my judgment, on the face of the records, it can therefore be said that there is evidence of a claim made by the applicant for right of abode.  I accept, of course, that the applicant did not in direct terms claim that right for herself.  But, as I have said, no set litany of words was required.  Why would a young woman write those words if it was not in substance to seek a right to be with her parents even if it was also an excuse as to why she had been with them for so long?  In my opinion, therefore, when looked at in context, her assertion should be inferred to be a claim in terms of the concession policy.

307. On 30 September 1998, the applicant was prosecuted for breaching a condition of her stay.  She pleaded guilty.  In mitigation, the following exchange is recorded on the transcript :

“COURT:        Yes, I’ve been told you have a clear record.  You’ve overstayed for three years and six months.  Have you anything to say in relation to the matter before I sentence you?

DEFENDANT:        Because my mother is illiterate, I have to teach my younger brother.  I have been applied for the one‑way permit for more than ten years, not yet approved.

COURT:         Anything else?

DEFENDANT :       Nothing else.”

[my emphasis]

308. In my opinion, the words of the applicant that I have placed in italics fall short of constituting a claim.  They simply record the fact that an application for a one‑way permit had been made in the Mainland, so far without success.  The basis for the Mainland claim is not stated nor, importantly, why so far it had not met with success.  There is nothing in that statement to suggest that she wished to remain in Hong Kong because she believed she had a right to do so.  In addition, as I understand it, there was no record of this assertion resting with the Director.

309. My determinations are therefore as follows :

(i)      the applicant did make a claim for right of abode to the Director but not to the magistrate;

(ii)      the Director does have a record of the claim.

(15)   Chan Ching Hoi (80 : a ‘group one’ and ‘group four’ applicant)

310. The applicant came to Hong Kong on 26 March 1997, being permitted to remain until 22 April.  Both the applicant’s parents and his sister lived in Hong Kong, having right of abode here.  The applicant was the only member of the family living in the Mainland.  The applicant overstayed, he said, because he had been told by a relative in the Mainland that, upon the change of sovereignty, he would be able to obtain right of abode in Hong Kong.

311. The applicant testified that, although he himself did not go to the Immigration Tower in July 1997, he was very interested in developments and knew that a number of abode seekers had been repatriated.  He said that he also knew of the certificate of entitlement scheme.  But his evidence was to the effect that he believed that a certificate could not be obtained on the Mainland.  Such a certificate would have to be obtained in Hong Kong.  Accordingly, on 18 September 1997, together with his mother and sister, he went to the Immigration Tower.  His purpose was to seek right of abode.  Although he knew that earlier applicants had been repatriated, he said that he thought things might be different for him.

312. The applicant said that on the ground floor of the Immigration Tower he informed an officer that he was there to seek right of abode.  The officer looked at his two‑way permit and referred him to 13^th floor to the offices of GIS.  At those offices, he told the officer at reception that he wished to seek right of abode.  In reply, he was told that there was no such policy.

313. The applicant said that he was given an ID 457 form to complete.  He did so, giving the full details of his parents but only the ID card number of his mother as his father had not accompanied him that day.  The applicant, however, did not endorse the form in any way to indicate that he was seeking right of abode.  Accordingly, the completed ID 457 form does not and cannot — on its face — constitute a record in terms of the possession policy.

314. The applicant was interviewed by an Immigration Assistant, Mr Leung Ka Cheong.  The applicant testified that he told Mr Leung that he wished to obtain right of abode; that is, the right to remain in Hong Kong with his family.  Mr Leung replied that he did not have any right to remain in Hong Kong.

315. According to the applicant, Mr Leung gave him a ‘grounds for non‑removal’ form and, when he hesitated, not knowing how best to complete the form, also handed him a piece of paper on which Chinese characters were written.  These characters gave him the option to write either that he had overstayed in order to be with his family or that he had overstayed because he liked Hong Kong.  He was told by the interviewing officer that he could choose either.  He therefore wrote down characters which have the following translation :

“I have overstayed because of keeping company with my family.  I now want to return to China.”

316. The applicant accepted that, when presented with the paper containing the suggested answers, he raised no objection.  He said he was afraid that if he did object he might be prosecuted for ‘something more serious’.  But no suggestion was made that he was actively prevented from writing what he wished nor that he was threatened in any way.  On his own evidence, it was his own subjective fear which prompted his compliance rather than anything said or done by the interviewing officer.

317. On the balance of probabilities, I am satisfied that the applicant did go to the offices of GIS hoping that he may be able (in some way) to claim right of abode.  That being the case, the probabilities support his testimony that he did make an oral claim that day.  But there is no record of that claim.  In my judgment, neither the ID 457 form nor the ‘grounds for non‑removal’ form are capable of constituting the required record.

318. Was the applicant given a sheet of paper on which suggested answers were inscribed?  Yes, I believe he may well have been.  Mr Leung, the interviewing officer, said that he never dictated answers nor did he possess material on which suggested answers were inscribed.  In that regard, I reject his evidence.  I have already referred to the evidence of Mr Leung in the body of this judgment when considering the almost universal denial by officers of the GIS to using pre‑written answers despite compelling evidence to the contrary.  There is no need for me to repeat what I have said.  It suffices to say that in the present case the applicant’s answer was in exactly the same format as at least three other answers given by other interviewees to different officers on different dates.  That being so, the only reasonable inference to be drawn is that all those answers, including the applicant’s, must have come from a common source.  But how does that advance matters in favour of the applicant?  I do not see that it does.

319. In his testimony, the applicant made no suggestion that he was made the subject of oppressive conduct.  It was his own timidity in the face of authority that led him to select a pre‑written answer and write it down.  If he had wished to add to that answer, there is nothing to suggest that he would have been prevented from doing so.  It was for the applicant to assert his claim, whether orally or in writing.  He failed to do so.

320. The applicant was prosecuted for contravening a condition of his stay in Hong Kong; namely, overstaying, and appeared in the Magistracy on 25 September 1997.  He pleaded guilty to the charge.  After his conviction, the transcript reveals the following exchange between the applicant and the court :

“      It’s reasonable to be united with my parents.  In that way I break the law.  I don’t think it’s acceptable.

COURT:     You can be reunited with your parents and not break the laws.  You can come and then you can go back during the period of your stay.  There’s nothing unreasonable about that.”

The prosecutor, a member of the Immigration Department made the following cryptic note on his file : “Parents for union break the laws”.

321. The applicant recalled, however, that he spoke more expansively, saying words to the following effect :

“I wished to be united with my family in Hong Kong. I felt that it was reasonable for me to stay with my family in Hong Kong.  The fact that I had applied in China without success over 20 years was a fact not acceptable to me.”

322. That, of course, is not what was translated by the court interpreter to the magistrate, Mr T.S. Jenkins.  Nor is it, reflected in the prosecutor’s note.  In my judgment, I should therefore look to the official transcript not to the applicant’s own evidence as to what — so long after the event — he recalled saying.

323. It was submitted on behalf of the applicant that the words spoken to the magistrate, fairly read, amounted to a claim for right of abode.  I cannot agree.  The applicant said no more than that his natural desire to be with his parents resulted in him breaking the law.  Nothing appears in that brief statement to the effect that the applicant’s parents themselves had right of abode in Hong Kong and that he had come to Hong Kong in order — through them — to secure his claim to right of abode.

324. My determinations are therefore as follows :

(i)      the applicant did make a claim for right of abode at the Immigration Department;

(ii)      the Director has no record of any such claim;

(iii)     the applicant did not make a claim for right of abode at the magistracy.

(16)   Kwok Siu Ping (1623 : a ‘group one’ and ‘group four’ applicant)

325. The applicant had been attempting to obtain the right to live in Hong Kong since about 1988.  At that time both her parents lived here.  In 1996, however, her father died.

326. The applicant came to Hong Kong on the strength of a two‑way permit on 9 April 1996, being permitted to remain for about a month.  The probabilities support the applicant’s contention that she overstayed in the hope that, upon the change of sovereignty, she would be able at last to obtain the right to live in Hong Kong so that she could care for her ageing mother.

327. On or about 9 July 1997, the applicant went to the 2^nd floor of the Immigration Tower to ask if an amnesty was now in place to enable people to seek right of abode.  She was told that there was no amnesty.  She then left the building.

328. The applicant did not return to the Immigration Tower until 2 January 1998, some five months later.  She said that the purpose of her visit on this second occasion was to try to find some means by which she could remain permanently in Hong Kong.  She was referred to the offices of GIS on 13^th floor and obtained an ID 457 form from the officer at reception.  She said that she could not remember what conversation took place between her and the officer.  To the best of her memory, however, she was not told why she had to fill out the form.

329. The applicant said that, in so far as she was able, she filled out the ID 457 form.  She did not recall the number of her mother’s identity card but was apparently told by the officer at reception that it was not essential to include this information.  The applicant did not endorse the ID 457 form in any way to indicate that she was seeking right of abode.  That being the case, the form does not and cannot — on its face — constitute any record of a claim for right of abode.

330. The applicant was interviewed by Immigration Assistant, Ms Lindy Yu Man Yan.  The applicant said that she was shown a ‘grounds for non‑removal’ form and asked if she knew how to fill it out.  She said that she did not know how.  In the result, said the applicant, Ms Yu dictated certain words to her and she wrote these on the form.  The words recorded are to the following effect :

“I overstayed because I was with family, now I want to return to China.”

331. Evidence revealed that this same form of words appeared in many other ‘grounds for non‑removal’ forms.  Ms Yu, the interviewing officer, who said that she had no independent recollection of the interview, was asked about the standard wording.  She was one of the few interviewing officers who did not reject outright the suggestion that she had assisted with answers.  Her reply was that, after such a lapse of time, she could not remember.

332. The applicant testified that, when she was asked to write her words on the ‘grounds for non‑removal’ form, she did not fully comprehend what she was writing.  She said that she was very nervous.  She said, however, that she had no wish to return to the Mainland; she wished to remain in Hong Kong to care for her mother.

333. The applicant, a sympathetic witness, was clearly overwhelmed by the ordeal of having to testify.  At one stage she appeared to be in tears.  I can well accept her evidence that, in January 1998 when she visited the Immigration Tower, she was also in a state of distress.

334. Although in her affirmation prepared for the proceedings the applicant stated that she had claimed right of abode, she did not testify to this effect.  When asked by myself whether she had said anything to Ms Yu, the interviewing officer, she answered that she could not remember.

335. Of greater importance perhaps, the applicant made no allegation in her testimony that she was in any way threatened by Ms Yu or prevented from writing what she wished on the ‘grounds for non‑removal’ form.  It appears that she either accepted the inevitability (as an overstayer) of being returned to the Mainland or that, in her state of distress, she acted in an entirely passive manner, keeping her wish to remain to herself.

336. On the probabilities, looking to the evidence as a whole, I am unable to find that the applicant made any claim for right of abode on 2 January 1998.

337. Nor can I find any record of a claim.  On its face, quite clearly, the ‘grounds for non‑removal’ form, either read alone or in conjunction with the ID 457 form, does not constitute a record for the purposes of the concession policy.

338. As a long‑term overstayer, the applicant was prosecuted in the magistracy.  The hearing took place on 7 January 1998.  She pleaded guilty.  The transcript of the proceedings records the following exchange between her and the court :

“COURT:      Anything to say before penalty is imposed?

DEFENDANT:       I have to take care of my sick mother here.”

The applicant was fined $3,000 but was unable to pay this amount.  She returned to court on 9 January 1998.  The transcript of proceedings on this date records her saying the following :

“      I have to take care of my sick mother in Hong Kong.  My father has just died owing to cirrhosis.  I don’t have money, please be lenient.”

339. In my judgment, neither of those statements (assuming a record of them was kept by the Director) are capable of constituting a claim for right of abode.  All that is said is that the applicant has to take care of her sick mother.  That does not go far enough to constitute any sort of claim for right of abode.

340. In conclusion, therefore, I have determined :

(i)      that the applicant did not make a claim for right of abode at the Immigration Department;

(ii)              the Director has no record of any claim;

(iii)            the applicant did not make a claim for right of abode in the magistracy.

(17)   Ng Li Tung (2646 : a ‘group one’ and ‘group four’ applicant)

341. The applicant’s parents came to Hong Kong in 1986.  The applicant himself came to Hong Kong on 30 March 1994, being permitted to remain in terms of his two‑way permit until 21 July of that year.  He overstayed.

342. On 13 September 1997, the applicant attempted to return to the Mainland via Lo Wu.  The applicant gave evidence as to why he made the attempt.  He said that he knew that many people seeking right of abode in Hong Kong had been arrested and repatriated.  He also knew of the right of abode litigation, he said, but believed that it would take two years or more to be resolved.  He therefore resolved to return to the Mainland in order to obtain a one‑way permit there.

343. As an overstayer, the applicant was stopped at Lo Wu by the immigration authorities and interviewed.  The interviewing officer was Mr Ngai Sik Shui.  The applicant testified that he told the officer that he was returning to the Mainland in order to obtain a one‑way permit so that he could return to Hong Kong as a permanent basis to look after his parents.  Assuming that such a statement in substance constituted a claim for right of abode, there is nothing other than the applicant’s testimony as to that statement.  The interviewing officer made no record of such a statement.  A form called a ‘secondary examination sheet’ says only that the applicant had overstayed in order to care for his elderly and sick parents.  The applicant himself wrote a statement which in English, is to the following effect :

“Flat 813, Shui Fung House, Tin Shui Estate, Yuen Long, Hong Kong [Tel:]        26173031        Father: Ng …        73 years old.        Mother: Yeung … Sun    65 years old

My father and mother are both troubled by illness and old age.  My father has got cataracts and is deaf due to old age.  My mother suffered from hyperplasia in her lumber region, etc.  Please forgive me.  I have no brother nor sister in Hong Kong.  Wu Li Dong (signature) 13 Sep. 97

I have been looking after my father and mother in Hong Kong.  That is why I have overstayed.  Please do forgive me.”

Nothing appears in that statement either, even though written by the applicant himself, to support his assertion that he told the interviewing officer of his reason for returning to the Mainland.  On the probabilities, therefore, I am unable to accept that the applicant made any statement to the effect that he was returning to the Mainland to seek a one‑way permit.

344. After his interview, the applicant was not allowed to cross the border but was referred to GIS for further investigation.  The applicant attended the offices of GIS on 18 September 2003.  The applicant said that at the reception he was given an ID 457 form to complete.  He gave particulars in that form of both his parents but did not have the information with him to enable him to enter the numbers of their identity cards to prove their status as permanent residents.  That document is entirely neutral.  On its face, it evidences no claim.

345. In respect of his interview, the applicant said that he was given a ‘grounds for non‑removal’ form but could not remember why.  He said that he told the interviewing officer that he wished to remain in Hong Kong to look after his parents.  It was a statement to this effect that he wished to write on the form, he said.  However, according to his testimony, the interviewing officer gave him a ‘sample’ card from which to copy and he did as instructed.  The characters that he wrote are to the following effect (and are in familiar form) :

“Overstayed because I was with family.  Now want to return to China.”

The applicant accepted that he raised no objection to writing these words.  He explained this by saying : “when staff told us to do anything, we would do it.”  In short, he complied without question, copying only the characters from what he called the ‘sample’ and writing nothing else.  There is no evidence of oppressive conduct, threats or coercion.  If he had wished to assert a claim for right of abode, I am satisfied the applicant would have been able to do so.

346. The applicant was prosecuted for overstaying.  He pleaded guilty.  Having been convicted, the following exchange is recorded between himself and the magistrate :

“COURT:     Anything to say?

DEFENDANT:       My parents have heart problems.  My mother is handicapped.  I hope your Worship can give me a lenient sentence.”

347. Nothing appears in that exchange to the effect that the applicant believed he was entitled to right of abode in Hong Kong.

348. As to the making of an oral claim for right of abode, considering the evidence as a whole, I am satisfied on the probabilities that no such claim was made, not at Lo Wu, the offices of GIS or before the magistrate.

349. None of the records exhibited were capable, on their face, of constituting a record of any claim.

350. My determinations are therefore as follows :

(i)      the applicant did not make a claim for right of abode at Lo Wu, the offices of GIS or before the magistrate;

(ii)      the Director has no record of any claim.

(18)   Sze Chiu Chi (3055 : a ‘group one’ and ‘group four’ applicant)

351. The applicant entered Hong Kong on the strength of a two‑way permit on 7 October 1997, being permitted to remain until 1 November of that year.  Both her parents enjoyed rights of permanent residence in Hong Kong.  The applicant overstayed.

352. More than a year later, on 23 December 1998, the applicant went with her younger sister and her parents to the Immigration Tower.  The applicant testified that her parents — on the basis of what they had seen on television and read in the newspapers — had told her that she should present herself to the immigration authorities in order to claim right of abode.

353. While the parents remained downstairs, the applicant said that she and her younger sister went to the offices of GIS on the 13^th floor.  According to the applicant, her mother had learnt from a clansman that she should go to the officers of GIS and directed her to the 13^th floor.  The applicant said that she approached an officer at the reception counter and was asked if she was pregnant.  Officers in GIS, of course, processed overstayers who wished to give birth in Hong Kong before returning to the Mainland.  The question was an insensitive one as the applicant, then a single woman, was not pregnant.  She said that she scolded the officer.

354. In documents prepared for her case, the applicant is recorded as telling the officer that she was there to claim right of abode.  It is further recorded that she took medical documents with her relating to her parents’ ill‑health to support her contention that there was a real need for her to remain in Hong Kong.  However, no mention was made of these matters in the course of her testimony.  I accept, of course, that after such a long period her memory was fallible.

355. The applicant said that she was given an ID 457 form to complete.  This, she said, was completed in her presence by her younger sister.  The form contains no specific endorsement by the younger sister which goes beyond the standard recording of family particulars.

356. The applicant said that her sister was with her when she was interviewed.  She said she was given a ‘grounds for non‑removal’ form but was not sure how best to complete the form.  She sought assistance, she said, because, having been raised on the Mainland, she had difficulty with traditional Chinese characters.  As I understood the applicant’s evidence, the interviewing officer, Mr Yeung Wai Kwong, then directed her what to write on the form.  The applicant said that she could not recall whether the officer wrote out the characters that she should copy or whether he presented her with some kind of standard form on which the words were already written.  The applicant said that she duly copied what she had been directed to write but added characters to the effect that she wished to seek right of abode.  According to the applicant, when the interviewing officer saw this, he took the form and threw it into the wastepaper bin.  He then gave her another form and told her to copy only what he had previously directed her to write.  The characters which appear on the form resting with the Immigration Department are to the following effect :

“I have overstayed because of keeping company with my family.  I now want to go back to China.”

357. If the applicant is to be believed, she was deliberately prevented from recording her claim for right of abode : a clear example of oppressive conduct.  Indeed, during the course of cross‑examination, when it was put to her that she had at all times been free to write what she wished and that her failure to record any form of complaint in her ‘no loss, no complaint’ form gave the lie to her allegations, she said, first, that she had asked the officer to retrieve the form from the wastepaper bin so that she could sign it, a request that was ignored, and, second, that it had been her sister who had told her that she must be quiet.  In my judgment, however, the applicant was not to be believed.  I did not find her to be a credible witness and, in my view, much of her testimony in respect of critical issues was tailored to what she saw as her best tactical advantage with scant regard for the truth of what her memory dictated.  The exchange to which I have referred earlier in this paragraph smacked of invention on her part.

358. The applicant’s sister, who, she said, was with her during the interview, did not give evidence.  In an affirmation prepared for court proceedings the sister is recorded as saying :

“      … the form was placed in front of my sister, and the officer told her what to write, i.e. the words were orally dictated to her.  I was sitting next to my sister when she was writing the form Grounds for Non‑Removal, and I specifically recall seeing my sister write down the extra words ‘and apply for write of abode’ which were not dictated.  At this, the officer took the form, and threw it away.  My sister then asked him to write down on a piece of paper what he wanted her to write, which the officer then did, and my sister then copied the words from this piece of paper.”

Untested in cross‑examination and in light of my very firm findings in respect of the applicant herself, this statement, in so far as it may support the applicant, in my judgment, does not advance her case.  I say that having looked at all the evidence in the round.

359. It must be remembered that this was not the applicant’s first dealings with the Immigration Department as an overstayer.  It was put to her that she had been to the Immigration Tower on two previous occasions, in 1989 and 1994.  At first, she denied this.  Then she said that she had no recollection of why she had been there.  The independent evidence showed that in 1994 she had overstayed for approximately two months before surrendering herself.  On that occasions, she had completed a ‘grounds for non‑removal’ form, her characters being to the following effect :

“I , Sze Chiu Chi, have overstayed in Hong Kong, no extension of stay, now want to return to China as soon as possible.  I do not work in Hong Kong.  My sister, Sze So Yuen, wants to bail me, Chiu Chi, out.”

360. When shown the 1994 form, the applicant said that these words too had been dictated to her.  In a matter of minutes, therefore, she had moved from a denial, to an assertion of a lack of memory to a specific statement that words written on her interview form had been dictated to her.

361. The testimony of Mr Yeung Wai Kwong, who interviewed the applicant in December 1998, was much criticised by counsel for the applicant but I found his testimony to be essentially credible.

362. Along with almost all the other interviewing officers in GIS, Mr Yeung at the time held the rank of immigration assistant.  His attachment to GIS was his first attachment as an officer in the service.  It was clear from his evidence, taken with the evidence of other GIS officers, that these young, inexperienced men and women had little knowledge of their place within the broader administrative process or even, in many cases, of the underlying purpose for conducting interviews.  Briefings were perfunctory and it seemed to me that many picked up the ‘know how’ of the job from their colleagues.

363. Mr Yeung admitted that he had two questions in respect of which he always sought an answer : why had an interviewee overstayed and what was the purpose of his or her surrender?  While several other interviewing officers denied any form of prompting, Mr Yeung accepted that he always sought an answer to these two questions, the answers to be recorded on the ‘grounds for non‑removal’ form.  But outside of this, he said, he would not interfere with an interviewee’s freedom to write what he or she wished.  Mr Yeung, who naturally had little or no recollection of the applicant’s interview, said that he would never have thrown away a form because it contained a reference to seeking right of abode.  If words to that effect were written, he said, he would simply have referred the matter to a senior officer.  I accept his evidence in this regard.

364. On all the evidence, therefore, I am not satisfied that the applicant made a claim for right of abode when she surrendered herself on 23 December 1998.

365. I have come to my finding of fact despite the presence of certain endorsements on the ID 457 form and an internal Immigration Department minute dated 23 December 1998 bearing the heading ‘M1’.  The evidence showed that the endorsements were made by Mr Alan Ho King Chung, an Immigration Officer in GIS.  The endorsements reveal that Mr Ho had checked on the dates when the applicant’s parents had been registered as permanent residents in Hong Kong.

366. The minute, M1, is a standard minute, pre‑printed except for spaces provided for the insertion of relevant dates and is to the following effect :

“             Case concerns a keyboard ovestayer who surrendered to GIS on      23 DEC 1998      for departure arrangements.

2.            Brief enquiries has been conducted and subject is found to be within the prosecution category.  Subject now wants to return to China as soon as possible.

3.            ID 457 and SF/IM/645 are completed at (  4  ) and (  5  ) respectively.  Subject has been informed vide (  6  ) to attend PD [Prosecution Division] at 9:00 a.m. on

31‑12‑98      with bail money for follow‑up action.

4.            As the case now stands, I recommend to pass file to PD for consideration of prosecution.  Submitted for your consideration, please.”

By way of a margin note, Mr Ho has written on the minute :

“Previous record attached.  Parents first reg   HK I/C in 9/80, 4/87, after subject’s birth.”

The ID 457 form contains Mr Ho’s endorsements that the parents were ‘first registered’ in ‘9/80’ and ‘4/87’.

367. Mr Ho explained that he made endorsements by way of standard practice on his part to show his seniors that he had done something in respect of the file.  It is an entirely inadequate answer.  But the important issue, in my view, is whether on their face, read in context, those endorsements could amount to evidence of a claim for right of abode and I do not find, even on the most generous reading, that they are so capable.  The minute, M1, is in any event a minute recording the fact that the applicant had surrendered herself for repatriation and should be prosecuted.  Nothing appears in the margin note to suggest, even indirectly, that a claim for right of abode had been made or is to be implied as having been made.

368. In terms of the recommendation made in the minute, M1, the applicant was prosecuted for overstaying, appearing in the Magistracy on 31 December 1998.  She pleaded guilty and was sentenced to three months imprisonment suspended for 18 months together with a fine of $1,500.  The transcript reveals the following to be the only relevant exchange between the applicant and the court :

“Court:             Do you have anything to say?

Defendant:      Can the fine be lower?  I came to take care of my parents.  They are sick.

Court:             That is rather regrettable.  As you are not a first offender, all I can do is to give you time to pay the fine.”

369. I do not see how anything said there, either read alone or in conjunction with other records resting with the Immigration Department, can be said to constitute evidence of a claim for right of abode.  The words constitute no more than a statement in mitigation.

370. My determinations are therefore as follows :

(i)      the applicant made no claim for right of abode at the offices of GIS or before the magistrate;

(ii)      the Director has no record of any claim.

(19)   Lau Wai Kau (1981 : a ‘group one’ and ‘group four’ applicant)

371. The applicant came to Hong Kong on 7 April 1997.  His two‑way permit authorised him to remain until 1 June 1997.  However, he overstayed.

372. The applicant, a married man with children on the Mainland, testified that he had made two applications for a one‑way permit but had been unsuccessful on both occasions.  He overstayed in Hong Kong, he said, because he believed that, upon the change of sovereignty, he would be able to claim right of abode.

373. Upon the change of sovereignty, the applicant said that through his father he made various inquiries with the immigration authorities to see if he could obtain right of abode.  He accepted that he was told that he must return to the Mainland to process his application.  During his testimony, the applicant was referred to a standard statement put out at that time by the Immigration Department.  He agreed that the advice he received had been in general accord with this statement which reads :

“      Mainland residents coming to Hong Kong on strength of Two Way Permit for visiting relatives or sightseeing must leave Hong Kong before the expiry of their limit of stay.  According to the Certificate of Entitlement Scheme, Mainland residents entitled to the right of abode in Hong Kong under Article 24(2)(3) of the Basic Law should first apply for a One Way Permit from the Public Security Bureau in the Mainland.  On completion of the preliminary assessment, the Public Security Bureau will pass the relevant information to the Hong Kong Immigration Department for verification and issue of ‘Certificate of Entitlement’ in those qualified cases.  The Public Security Bureau will affix the ‘Certificate of Entitlement’ onto the One Way Permit on issuing the permit to the applicants to facilitate their entry into Hong Kong for settlement.”

374. On 19 July 1997, the applicant testified that he attempted to return to the Mainland to his wife and family in order to make an application for right of abode through the Mainland authorities.  However, as an overstayer, he was stopped by immigration officials at Lo Wu.

375. The applicant said that at the time of being stopped he was asked why he had overstayed.  He said that he replied to the effect that he had been taking care of his parents who enjoyed right of abode in Hong Kong.  He told the officer that he had ‘applied’ to the immigration authorities to remain but had been refused.  The applicant, of course, had made no application for the right to remain in Hong Kong.  On his own evidence, he had done no more than make certain inquiries and had done so through his father so that he himself would not be detained as an overstayer.

376. Although there is no record of what was said when the applicant was first stopped, there is a record of his interview with a second officer to whom he was referred.  This officer was Ms Law Shuk Ha.  At the time she was acting in the post of what is called a channel supervisor.  The record appears on the face of a document called a ‘secondary examination sheet’ (form ID 518).  The form is intended as an internal record only.  It is completed by the interviewing officer.  Ms Law, who conducted the interview with the applicant, did say however that if an interviewee asked to write something down then he or she would be given the opportunity.  I accept her testimony in that regard.  Indeed, she impressed me in all respects as a careful, honest witness.

377. The record of interview records that the applicant gave as his reason for overstaying the need to look after his parents in Hong Kong.  The record contains one other relevant endorsement; namely, the statement : “no other strong ground provided”.

378. The applicant testified that in the course of this interview with Ms Law he repeated that he had ‘applied’ to remain in Hong Kong but without success.

379. The statements made at Lo Wu, submitted the applicant’s counsel, constituted claims for right of abode.  That, in my judgment, is not the case.  The applicant, in fact, had not made any formal application in Hong Kong.  But even if he had, on his own evidence he did no more than inform the interviewing officers at Lo Wu that he had made claims unsuccessfully and now wished to return to China.  That constituted a recitation of history on his part not a claim itself.

380. In any event, even if I am wrong in that regard on the basis that I have taken too narrow a view, I do not see how the ‘secondary examination sheet’ can be said to constitute a record evidencing a claim.  The document simply records why the applicant had overstayed, the principal reason being to care for his parents, the other reasons, in the opinion of the interviewing officer, being of little substance.  There is no guide — on the face of the document — to say what those other reasons where.  To suggest it must have included a claim for right of abode is speculation.

381. So that his return to the Mainland could be formally processed, the applicant was referred to the offices of GIS on 13^th floor of Immigration Tower.  He went to those offices on 28 July 1997.

382. In accordance with standard practice, the applicant was given an ID 457 form to complete.  He entered the names of his parents, giving their identity card numbers and of his siblings who lived on the Mainland.  He failed, however, to record the fact that he was married.  Indeed, he specifically recorded that he was not married : an untruth.  During cross‑examination, it was put to the applicant that he filled out the form in the way he did in order to try and build some sympathy for himself, perhaps avoiding prosecution.  It was suggested that he did so by trying to show that his parents had no family to look after them in Hong Kong and that he — without any obligations himself —had been here to care for them.  As I understood his evidence, the applicant accepted that this had been his intention.

383. After he had completed his ID 457 form, he was interviewed by Ms Chow Wing Man.  The applicant testified that he was asked why he had overstayed.  He replied, he said, to the effect that he had come to Hong Kong in order to remain here permanently to care for his parents.  The applicant continued by saying that he gave the interviewing officer details of his parents’ ailments and asked if the officer could use her discretion to let him remain in Hong Kong to care for his parents.  According to the applicant, the officer replied by saying that this could not be done unless one parent was near to death.

384. Ms Chow, the interviewing officer, whom I found to be a credible witness, testified that officers of her rank were not permitted to exercise their discretion by allowing overstayers to remain in Hong Kong for compassionate reasons.  If such a request had been made, she said, she would have referred the matter to a more senior officer.

385. The applicant said that when he was handed a ‘grounds for non‑removal’ form, the interviewing officer showed him a laminated piece of paper with characters on it.  The officer said that he should not be troubled and that she would tell to him what should be written onto the form.  This was done.  The familiar mantra was written by the applicant to the following effect :

“I have overstayed because of keeping company with my family.  I now want to go back to China.”

386. During the course of cross‑examination, the applicant accepted that what was written was essentially the truth.  He qualified this, however, by saying that if he had been told the true nature of the form and if he had been allowed to write what he wish to write, he would have added to those words or qualified them so as to state that he sought right of abode.

387. When the interviewing officer, Ms Chow, was questioned on the basis that the applicant’s characters written on the ‘grounds for non‑removal’ form where exactly the same as the characters written by another person interviewed by her, she accepted that this may well have been the case.  However, she denied the use of any laminated paper or dictating what should be written.  At the beginning of her evidence, Ms Chow was shown two earlier ‘grounds for non‑removal’ forms completed when she had been the interviewing officer.  Both forms both record that the interviewees had overstayed because they believed they had right of abode in Hong Kong.  Although each case must be judged on its own facts and within its own ‘administrative policy’ context, these forms do indicate at least that previously Ms Chow had permitted interviewees to record the fact that they believed they had right of abode.  As it is, of course, the applicant did not testify that he been actively prevented from writing what he wished.  As I understood his evidence, it was rather that he did not comprehend the true nature of the ‘grounds for non‑removal’ form and that, if he had been given the opportunity in stated terms to write exactly what he wished, he would have written different characters.

388. In my judgment, the applicant was not a credible witness.  On his own admission, he had learnt from inquiries made through his father that he would have to return to the Mainland to process any claim for right of abode and indeed that was why he was attempting to return.  That intention to return in the knowledge that he could make no claim here must have coloured his thinking.  He was given at least two opportunities to have it recorded that he sough right of abode, the second time, in his own writing, and yet the documentary evidence does not support him in any way.  Far too much of the applicant’s testimony smacked of what he wished he had said rather than what he honestly remembered saying.

389. In any event, neither the ID 457 form nor the ‘grounds for non‑removal’ form can be taken as constituting any form of record of a claim.  Even on the most indulgent reading, they come nowhere near any such conclusion.

390. On 31 July 1997, the applicant appeared at Western Magistracy charged with a breach of condition of his two‑way permit.  He pleaded guilty and, in mitigation, was asked if he had anything to say.  He replied to the following effect :

“      I want to tell you Worship that my parents are in Hong Kong and they don’t have any child in Hong Kong and I held a China permit to come to Hong Kong to look after my parents.  My mum has heart ailment and my father has strained the waist.  And I attempted to apply at the Immigration but they told me that it is only when either my parents’ life is at risk and have medical certificate can I have a chance.  But, in fact, their life is not at risk but indeed they need assistance.”

391. That is a fairly full statement but I do not see how it can be read as constituting evidence of a claim made for right of abode.  The phrase that he ‘attempted to apply at the Immigration’ cannot, on its face, be read, either alone or in conjunction with other records, as recording a claim to remain permanently in Hong Kong by reason of a claim for right of abode.  The whole statement is concerned with mitigation of culpability and, if anything, infers that a claim had been made by him to extend his permission to remain in Hong Kong for compassionate reasons not for reasons arising out of a constitutional right to claim permanent residence.

392. My determinations are therefore as follows :

(i)      the applicant did not make a claim for right of abode to officers of the Immigration Department either at Lo Wu or at Immigration Tower;

(ii)      the applicant did not make a claim for right of abode to the magistrate;

(iii)     the Director has no record of any claim.

(20)   Wong Yuen Sheung (3910 : a ‘group one’ and ‘group four’ applicant)

393. The applicant came to Hong Kong on 30 August 1996 to visit her father, mother and her two younger siblings, all of whom had right of abode in Hong Kong.  Her two‑way permit authorised her to remain until 24 October 1996.  However, she overstayed.

394. The applicant had overstayed on one previous occasion; that is, in 1993 when she had been arrested and detained pending prosecution and repatriation.  On that occasion she had been required to complete an ID 457 form and a ‘grounds for non‑removal’ form.  When she overstayed for the second time, she was not therefore a complete stranger to these forms or the process generally of prosecution and repatriation.

395. The applicant testified that in 1996 she overstayed for two reasons.  First, she intended to wait until the change of sovereignty in order to claim right of abode.  She had heard, she said, that children of Hong Kong residents who surrendered themselves after the change of sovereignty would be given Hong Kong identity cards.  In addition, she said that in or about February 1997 her mother was injured and confined to a wheelchair.  As her younger siblings was still at school, it was necessary for her to remain in Hong Kong to care for her mother.

396. The applicant said that she intended to apply for a Hong Kong identity card shortly after the change of sovereignty.  However, she learnt that large numbers of persons in her position who had surrendered were arrested and repatriated.  In light of her previous experience, she was therefore too frightened to present herself to the immigration authorities.

397. Eventually, she said, on 6 January 1998, she surrendered herself to the authorities at the Immigration Tower.

398. In the earlier part of 2002, in a brief record of her case prepared by her then solicitors, the applicant is said to have surrendered herself because she felt discouraged by events post reunification and wished to be surrendered to the Mainland.  In this regard, the record reads :

“Ms Wong came to HK on 29/8/96 to wait for amnesty, but there was no news all along.  In 1998, she was still waiting to see what happened and felt discouraged.  She wanted to surrendered to return to China …”  [my emphasis]

399. During cross‑examination, the applicant accepted that she had given these instructions.  However, in her testimony — in a clear volte face — she said that she presented herself to the immigration authorities in order to obtain an identity card which would enable her to remain permanently in Hong Kong.

400. Although she said that she paid attention to media reports and took an interest in the on‑going right of abode litigation, the applicant testified that she knew nothing of the certificate of entitlement scheme in terms of which all applications for right of abode had to be processed on the Mainland.  In the context of her testimony this evidence rang hollow.

401. As to the course of events on 6 January 1998, the applicant said that she went to the Immigration Tower with her mother and a younger sister.  They went first, she said, to the second floor to ask where they should apply for a Hong Kong identity card.  However, when the expired two‑way permit was shown, they were all directed to the offices of GIS on 13^th floor.

402. At the offices of GIS, the applicant said that both she and her mother approached the officer at reception.  They said that they were seeking an identity card for the applicant.  However, when the expired two‑way permit was revealed, the applicant said that the officer told them that she was not permitted to apply for an identity card until she had processed her application for a one‑way permit through the Mainland authorities.  According to the applicant, upon hearing this her mother became emotional, insisting that her daughter had to remain in Hong Kong to care for her.  The applicant said that she was then given an ID 457 form to complete.  Strangely, in light of what she herself said she had just been told, the applicant said that she believed she was completing the form so that she could apply for a Hong Kong identity card.

403. The applicant said that her younger sister had to complete most of the ID 457 form as her mother at that time was in some discomfort and she had to attend to her.  The form itself contains no specific endorsement that may, on its face, be read as constituting any sort of claim for right of abode.

404. The applicant testified that she was interviewed in the absence of her mother.  The interviewing officer was Ms Lindy Yu Man Yan.

405. The applicant said that she told the interviewing officer that she wished to apply for an identity card so that she could remain in Hong Kong to care for her mother.  In reply, she said, the officer told her that as an overstayer she was liable to be imprisoned and that if she wanted to obtain right of abode in Hong Kong she must process her application on the Mainland.  The applicant said that she nevertheless persisted in her request.  The applicant said that the interviewing officer then gave her a ‘grounds for non‑removal’ form and told her to fill it out.  Surprisingly, the applicant testified that she believed this form too to be part of her process of applying for an identity card.  It was manifest, in my opinion, that the applicant was prepared to tailor her testimony in whatever fashion was necessary to try and demonstrate that — in her mind at least — all the documents completed by her were a record of her claim for right of abode.

406. As it is, nothing appears on the face of the ‘grounds for non‑removal’ form that speaks, directly or indirectly, of Hong Kong identity cards or of a desire to remain permanently in this jurisdiction.  The characters written by the applicant were instead to the following (familiar) effect :

“I have overstayed because of keeping company with my family.  I now want to go back to China.”

407. How then did the applicant say that these words came to be written by her?  She testified that the interviewing officer showed her a piece of paper on which the characters were written and instructed her to copy them.  Initially, said that applicant, she refused to do so.  She was, however, threatened that if she refused she would have to go to prison.  In the face of this threat, she said that she complied.

408. Despite this threat, the applicant accepted that she signed the ‘no loss, no complaint’ form, putting a circle around the character which indicated she had no complaint.  When asked why, the applicant said that the interviewing officer had covered part of the form with her hand so that she could not read all the characters.  Presumably therefore she circled the character for ‘no’ instead of ‘yes’ without understanding why.  Her testimony smacked of invention.

409. During the course of cross‑examination, the applicant was referred to the ‘grounds for non‑removal’ form completed by her on the first occasion she had overstayed.  That form read :

“      I, WONG Yuen‑sheung, have overstayed in Hong Kong without applying for an extension of stay.  (I) now want to return to China as soon as possible.  I have never worked in Hong Kong.  My father, WANG Szu‑tsai, wants to bail me out pending hearing.”

When shown this form, the applicant accepted that she had understood at that time that it had been completed by her as part of the process of her repatriation.

410. Ms Yu, the interviewing officer, said that she did not direct that applicant what to write on the ‘grounds for non‑removal’ form.  I reject her evidence in that regard.  It is telling, in my view, that the earlier ‘grounds for non‑removal’ form had been completed by the applicant in simplified characters used in the Mainland.  The 1998 form, however, completed just four years later, was in traditional characters.  I am satisfied that Ms Yu was deliberately untruthful.

411. But having made that finding, it does not follow, in my judgment, that the applicant was threatened by Ms Yu that she must write these words.  I am satisfied that at the time the applicant knew that she had no alternative but to surrender herself for the purposes of return and that she complied voluntarily with the necessary process for bringing that about.

412. For the reasons given in the body of my findings, I reject the applicant’s evidence that she surrendered herself in order to claim right of abode and did make such a claim.  In my judgment, the first recording of her case was the accurate one; namely, that she was discouraged by events and simply sought her return to the Mainland.

413. The applicant also asserted that when she was prosecuted for breaching her conditions of stay she claimed right of abode.  I reject that assertion.  The applicant appeared in court on 13 January 1998.  In mitigation, she said the following :

“      I intended to go back at the time when my period of stay expired, but as my mother had her foot injured at that time and had therefore to be hospitalized, I had to take care of her and could not go back.”

There is nothing in those words to imply any form of claim for right of permanent residence in Hong Kong.

414. My determinations are therefore as follows :

(i)      the applicant did not make a claim for right of abode, either to officers of the Immigration Department or to the magistrate;

(ii)      the Director has no record of any claim.

(21)   Cheng Siu Yin (593 : a ‘group one’ and ‘group four’ applicant)

415. The applicant came to Hong Kong on 17 August 1996, being authorised in terms of her two‑way permit to remain until 10 October of that year.  She overstayed.  She did so, she said, because she hoped that after the change of sovereignty an amnesty would be granted for persons in her position — children of parents who had right of abode — so that she could remain permanently in Hong Kong.

416. Certainly, she knew that before the change of sovereignty overstayers could not claim right of abode.  Her own sister, who had come to Hong Kong illegally, was repatriated on 13 May 1997.  The applicant testified that the removal of her sister had been effected without the knowledge of her family.  This, however, was false.  Evidence revealed that her father had been kept fully informed.

417. Upon reunification, the applicant did not immediately surrender herself.  Indeed, she did not surrender herself until 14 January 1998.  She said that she went to the offices of GIS in order to obtain a Hong Kong identity card.  Although she admitted she was not absolutely clear on the issue, she said that she believed there was an amnesty in place and, to use her words, that she would be welcomed under the amnesty.  However, when cross‑examined as to why she had waited until January 1998 to surrender herself, she then admitted that she had learnt there was no amnesty.

418. In my judgment, the applicant’s evidence was incapable of belief.  It shifted from question to question.

419. The applicant said that she went to the offices of GIS with her father and told the officer at the reception counter that her father was a Hong Kong permanent resident and that she wished to remain in Hong Kong.  She was asked to produce her expired two‑way permit, she said, and was then told that a certificate of entitlement was not available in that office.

420. The applicant said that she filled out her ID 457 form at the time she was interviewed.  That, in my judgment, was a lapse of memory on her part.  The time noted at the top of the form is 9:30 a.m. while the interview itself is recorded as taking place at 10:15 a.m.  The interviewing officer, Ms Leung Wing Yee, explained that the officer at the reception counter would note down the time when a completed ID 457 form was returned to the reception counter.

421. When the applicant was interviewed by Ms Leung, she completed a ‘grounds for non‑removal’ form.  The characters she wrote were to the following effect :

“I have overstayed because of keeping company with my family.  I now want to go back to China.”

422. The writing of these characters, according to the applicant, came about in the following way.  When the interview commenced, the applicant said that she told the officer that she did not want to leave Hong Kong and wanted to stay.  She produced evidence of her parents’ identity cards to show that they enjoyed right of residence in Hong Kong.  She said that when the ‘grounds for non‑removal’ form was placed in front of her, a piece of paper was used by the interviewing officer (paper on which was written the characters she was to copy) to cover the top part of the form so that the sentence – ‘please state your grounds for non‑removal’ — was not visible.  She said that she was then told to copy the characters onto the form.

423. The applicant’s testimony as to the use of a piece of paper to hide the true nature and purpose of the form was, in my opinion, quite patently invented by the applicant to try to explain why it was that, if she was seeking right of abode, she did not, when given the opportunity, state that fact.

424. The applicant said that the first sentence she copied was correct.  However, she said that she did not want to return to the Mainland and hesitated before writing the second sentence.  When she hesitated, she said, she was urged to finish quickly.  She protested, she said, that she did not wish to leave Hong Kong.  The officer did not answer her.  After that, she said, she wrote the second sentence.  In cross‑examination, the applicant admitted that it was at that time important for her to ‘get her message across’.  But she did not do so, she said, because she was told what to copy, was frightened and did not believe she had any choice in the matter.

425. The applicant may well have been frightened but I reject any suggestion that, objectively, she was given no choice.

426. The interviewing officer, Ms Leung, struck me as essentially credible. She said that she would ask an interviewee why he or she had overstayed and what they now intended to do.  Common answers, she said, were that the interviewee had been staying with family and now wished to return to the Mainland.  I am satisfied on the probabilities that Ms Leung did assist the applicant in completing the form.  But I do not accept that it was without the applicant’s consent.

427. On 19 January 1998, the applicant was prosecuted in the magistracy for breaching her conditions of stay.  She pleaded guilty.  The transcript of proceedings reveals following exchange in respect of mitigation :

“COURT : … Mitigation, please.

DEFENDANT :     In 96 my father fell and got his back injured and application for social assistance is made.  He rely on the 1,200 allowance for living each month.

COURT :        What have you done for money while you’ve been here for almost 18 months?

DEFENDANT :     The whole family live together.  I have my parents and younger brother.”

I fail to see how, on any basis, that exchange can be put forward as a claim for right of abode.

428. I am satisfied that the applicant did not at any time make a claim for right of abode.

429. My determinations are therefore as follows :

(i)      the applicant did not make a claim for right of abode either to the Director or the magistrate;

(ii)      the Director has no record of any claim.

(22)   Fu Kwong (1084 : a ‘group one’, ‘group two’ and

         ‘group four’ applicant)

430. Both of the applicant’s parents and his younger brother enjoyed the status of permanent residents in Hong Kong.  The applicant testified that he had first attempted to obtain a one‑way permit to join his family in Hong Kong in 1986 but had been unsuccessful in all his attempts.

431. The applicant came to Hong Kong on 2 February 1997, his two‑way permit authorising him to remain until 27 March of that year.  During this visit, he said, he learnt of his rights under Art.24 of the Basic Law.  Being eager to secure permanent residence, he said that he purchased a copy of the Basic Law.

432. In addition, immediately on his return to the Mainland, he said that he applied for a notarial certificate verifying his relationship with his parents.  This document was obtained, he said, because he understood that in applying for right of abode in Hong Kong he would have to submit proof of relationship.

433. The plaintiff testified that he went to considerable trouble to obtain an English translation of the notarial certificate.  He did so, he said, because he mistakenly believed that the Hong Kong authorities would demand a document in the English language.  Although the applicant was subject to cross‑examination on the question of why he thought it necessary to obtain an English translation, I accept the submissions made by the applicant’s counsel that the important point is that the evidence demonstrates that he did go to the trouble to obtain a notarial certificate.  There can only be one reason for so doing : a belief that it was a necessary document to advance his claim for right of abode.

434. While, due to the lapse of time, many applicants had difficulty recalling events, this applicant appeared to have a detailed recollection, speaking with force of matters even of the most peripheral significance.  During the course of his testimony the applicant was easily raised to anger.  He spoke with an air of righteous indignation, stating that he had on a number of occasions attempted to assert his belief that he was entitled to right of abode.  Clearly, the applicant felt that he had been dealt with unfairly by the Hong Kong authorities.  In my judgment, however, having portrayed himself as a man of such forceful character, it is puzzling that no record was made by him of his alleged claims.

435. Being in possession of his notarial certificate, the applicant said that he wished to return to Hong Kong as soon as possible.  However, he was unable to do so until 19 December 1997, his two‑way permit authorising him to remain until 12 January 1998.  During this second visit, he said, he and his mother made a number of visits to the Immigration Department.  His purpose was to claim right of abode.  He said that he went to the Immigration Tower and was referred to the Information Office.  Having shown his various documents, including his notarial certificate, he said that the staff at the office advised him that he must process his claim on the Mainland and could not do so in Hong Kong.

436. The applicant, however, did not return to the Mainland within the time permitted.  He overstayed, only surrendering himself on 27 March 1998.  On this occasion, he said, he went to the Immigration Tower with both his parents.  He said that he was again in possession of all relevant documents and that his purpose was to obtain a permanent Hong Kong identity card; in short, to secure his permanent residence in Hong Kong by completing the required formalities.

437. On his own evidence, of course, the applicant had just a month or two earlier been advised by the immigration authorities that he could not make a claim for right of abode in Hong Kong and would have to return to the Mainland to do so.  Indeed, evidence demonstrated that at the relevant time staff of the Information Office were instructed to give a standard response to enquiries of the kind made by the applicant, the response to be in the standard form cited earlier in this report : see paragraph 373.

438. While I accept that the applicant may have had his difficulties with the Mainland authorities in trying to process a claim for a one‑way permit and while he may have been uncertain as to the exact state of the law, I am unable to accept that he surrendered himself on 27 March 1998 in such sure knowledge, as he wished to portray, that he was there solely to process a claim for right of abode.

439. The applicant said that he and his parents went to the Information Office on the second floor but were referred to the offices of GIS after his expired two‑way permit had been examined.

440. At the offices of GIS, the applicant said that he showed his various documents to the officer on duty.  These were returned to him.  He was given an ID 457 form to complete and did so.

441. He was then interviewed.  He said that he went into the interview room with his mother but she was told to leave.  The interviewing officer was Mr Ng Wai Lun, an immigration assistant.  According to the applicant he showed his documents to the interviewing officer, telling him that both his parents were Hong Kong permanent residents and that he wished to settle in Hong Kong.  According to the applicant, the interviewing officer merely asked him if he was in Hong Kong to keep his family company.  On being told that this was correct, according to the applicant the interviewing officer then took a card out of the box and told the applicant to copy the contents of that card onto a ‘grounds for non‑removal’ form.  In papers prepared for his case, the applicant is recorded as saying that the interviewing officer was holding a set of card that he spread on the table, giving the applicant the choice from which card to copy.  This, in my view, was a clear inconsistency.

442. The applicant testified that he wanted to tell the interviewing officer that he was seeking an identity card in order to remain permanently in Hong Kong.  However, according to the applicant, the officer told him that he had committed in offence by overstaying and that he must go back to the Mainland if he wished to make an application for right of abode.  In the result, said the applicant, he simply copied what was contained on the card and at the end, under instruction, placed his signature on the ‘grounds for non‑removal’ document.  The characters written by the applicant were to the following effect :

“I have overstayed because of keeping company with my family.  I now want to go back to China.”

443. The applicant said that he attempted to elicit the officer’s sympathy by showing him documents concerning his brother’s serious illness.  The applicant said that however the officer appeared either not to understand him — the applicant complained of language difficulties during the interview — or was simply disinterested.  According to the applicant, the officer told him for second time that he must return to the Mainland, that he had committed an offence in Hong Kong and that he was liable to prosecution.

444. The applicant testified that during the interview he requested the interviewing officer to retain copies of the various documents that he wished to submit.  He said that the officer declined to do so.  During the course of the hearing, however, evidence was led to show that this same interviewing officer had on other occasions accepted documents given to him.  In my judgment, the applicant greatly exaggerated his testimony.  I am satisfied on the probabilities that if he had wished to give documents to the interviewing officer, those documents would have been accepted and placed on file.

445. I am also satisfied that the interviewing officer did not present the applicant with the choice of pre‑written forms removed from a box.  The interviewing officer accepted that it was his practice to ask each interviewee why they had overstayed and what they now wished to do.  To that extent, I am satisfied that there may have been some assistance given by him but not without the applicant voluntarily accepting that assistance.

446. The applicant signed the ‘no loss, no complaint’ form, indicating on the face of the document that he had no complaint.

447. While I accept that initially the applicant no doubt did make a number of enquiries concerning his status, I reject his evidence that on 27 March 1998 he asserted a claim for right of abode.  As I have indicated, I am unable to place any reliance on his testimony concerning his visit to the offices of GIS that day.  In my judgment, if he had been so determined to assert his claim for right of abode, he would have been able to write something on the ‘grounds for non‑removal’ form and would have taken advantage of that opportunity.

448. On 1 April 1998, the applicant was prosecuted for breaching his conditions of stay.  He pleaded guilty.  In mitigation, the transcript reveals that the applicant said the following :

“DEFENDANT :      My Mother was ill and my father was unemployed and my brother was sick as well so I stay in Hong Kong to look after them.

COURT :    And what does the family do for money?

DEFENDANT :     The money is from my father’s work.”

449. In respect of the applicant’s brief statement in mitigation, it was suggested that his words were not correctly interpreted.  In the course of submissions, counsel for the applicant said that the words spoken by him could mean either “I had to remain in Hong Kong to take care of them” or “I want to remain in Hong Kong to take care of them”.  The applicant testified that he had spoken the second sentence; in short, a statement of his desire to remain in Hong Kong to take care of his family.  In my judgment, after such a long lapse of time, this smacked of an attempt to manipulate existing evidence to advantage.  The words would have been translated by a qualified court interpreter.  The translation is the official translation and on the basis of that translation I am satisfied that no claim for right of abode was made or is recorded.

450. The applicant returned to Hong Kong in late 1998, again on a two‑way permit.  During his visit, he went to the Chinese Visitors Office (“the CVO”) with his mother.  Again, according to the applicant the purpose of his visit was to assert his claim to right of abode.  Again, according the applicant he approached the officer at the counter and showed him his file of supporting documents.  He said that he told the officer all his family lived in Hong Kong and he wished to settle here.  In reply, the officer told him that the CVO only dealt with extensions of stay.  If he wished to seek an extension that could be done.  However, if he wished to seek settlement then he would have to return to the Mainland in order to process his application.  The applicant said that the officer became impatient with him as there was a queue of people waiting.  The exchange became agitated.  The applicant said that he was then given an ‘application for an extension of stay’ form.  The applicant said that he partially completed this form but told a second officer that he wished to obtain an extension of stay so that he could apply for right of abode.  In response, he was told that he would only been given two days.  This, he said, led to an argument between himself and his mother who was anxious for any extra time with him.  The applicant said that he told the officer that two days meant nothing and that his claim for settlement in Hong Kong must be dealt with.  But in the end result, said the applicant, his mother’s wish prevailed and he agreed to apply for an extension of two days only.  Accordingly, in that portion of the form where he was to state his reasons for seeking an extension, he wrote : “live with my parents for a period of time longer”.

451. In my judgment, the evidence of the applicant in respect of this visit to the CVO was exaggerated at best if not invented.  I reject his testimony that he made a claim for right of abode on that occasion.  In any event, the document completed by him cannot, on its face, constitute the record of any such claim.

452. The applicant was for a time included on the Director’s concession list.  A good deal of evidence was led concerning this.  I am satisfied, however, that the inclusion was a mistake.  Nothing further emerged from this evidence to suggest that the applicant had claimed right of abode and/or that there was a record which evidenced such claim.

453. My determinations are therefore as follows :

(i)      the applicant did not make a claim for right of abode to the Director, either at the offices of GIS or the CVO, nor did he make a claim for right of abode to the magistrate;

(ii)      the Director has no record of any claim.

Conclusion

454. Accordingly, in respect of the cases of the 22 applicants determined to date, I have concluded that only three have made claims for right of abode with records of those claims resting with the Director.  The three applicants are Chan Pik Shan (307), Wu Kit Nga (4000) and Hui Yuk Heung (1380).