吳文演 AND ANOTHER v. 人事登記審裁處

HCAL 72/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 72 OF 2011

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J U D G M E N T

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1.  This judicial review raises two important questions for the first time before the court. First, is Article 10 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“Article 10”), which, among other things, mandates a public hearing, engaged in an appeal before the Registration of Persons Tribunal (“the Tribunal”)? Second, if it does, is the Tribunal holding the hearing in private, which is its current general practice, necessarily a contravention of Article 10?

2.  The background leading to this judicial review may be summarized as follows.

A. BACKGROUND

A1. The 1^st applicant

3.  The 1^st applicant was born in the Fujian Province, Mainland China on 19 February 1962.  He came to Hong Kong on 6 February 1997 by a One-way Chinese Exit Permit No.0469734 (“A1’s OWP”).  The Director of Immigration (“the Director”) granted him permission to remain in Hong Kong until 6 February 2004.  On 14 February 1997, the 1^st applicant was issued a non-permanent HKID card and a Document of Identity for Visa.  His extension to stay in Hong Kong was extended to 14 February 2004.

4.  By a letter dated 1 December 1999, the Bureau of Entry and Exit Administration of the Mainland (“BEEA”), the body responsible for administering OWPs, notified the Immigration Department (“the Department”) that the A1’s OWP was obtained illegally; and that the BEEA had revoked A1’s OWP.  The BEEA asked the Department to revoke the 1^st applicant’s qualification to remain in Hong Kong.  The Department sought further clarifications from the BEEA, resulting in a series of correspondence. Eventually, the Department determined that the permission granted to the 1^st applicant to stay in Hong Kong on 6 February 1997 was nullified.

5.  On 16 September 2002, the Department issued a removal order against the 1^st applicant.  The 1^st applicant appealed to the Immigration Tribunal.  On 7 April 2005, the Department withdrew the removal order.  The Immigration Tribunal then dismissed the 1^st applicant’s appeal.

6.  On 19 April 2005, the 1^st applicant applied for verification of eligibility for a permanent identity card on the ground that he had resided in Hong Kong for 7 years consecutively since 6 February 1997.  On 28 September 2006, the Director acting as the Commissioner of Registration (“the Commissioner”) informed the 1^st applicant, among other things, that his leave to stay in Hong Kong was obtained by fraudulent means and hence invalid.  On 11 October 2006, the Director refused the 1^st applicant’s application for verification of eligibility for a permanent identity card.  On 31 October 2006, the Commissioner notified the 1^st applicant that his request for a permanent HKID card was refused.

7.  On 10 November 2006, the 1^st applicant appealed to the Tribunal.

A2. The 2^nd applicant

8.  The 2^nd applicant is the 1^st applicant’s daughter.  She was born in the Mainland on 24 December 1984.  She came to Hong Kong on a OWP No.0597623 (“A2’s OWP”) on 5 February 1999.  She was granted permission to remain in Hong Kong until 30 January 2006.  She was granted a Hong Kong identity card on 5 February 1999.

9.  On 10 October 2006, the 2^nd applicant applied for verification of eligibility for a permanent identity card on the ground that she had resided in Hong Kong for 7 years consecutively since 5 February 1999.  On 13 August 2007, the Department notified the 2^nd applicant, among other things, that her leave to stay in Hong Kong was obtained by fraudulent means and hence invalid.  The reason was that A2’s OWP was obtained by reason of reunion with the 1^st applicant.  As A1’s OWP was illegally obtained, A2’s OWP was also invalid.  The Department refused to verify the 2^nd applicant’s permanent resident status.  On 4 May 2007, the 2^nd applicant applied for a permanent HKID card, which was rejected by the Commissioner on the ground that there was no sufficient evidence to show that she had the right of abode.

10.  On 11 May 2007, the 2^nd applicant appealed to the Tribunal.

A3. The hearings before the Tribunal

11.  The applicants’ appeals were heard together by the Tribunal, which commenced on 22 September 2008.  At the outset of the hearing, counsel for the applicants made several preliminary applications and some more on subsequent dates.  There were in total 7 preliminary applications.  A very lengthy hearing ensued, which lasted for 29 days until 8 June 2009.  On 8 January 2010 (Day 30), the Tribunal handed down its rulings on the preliminary points (“the Preliminary Ruling”).

12.  What concern the present proceedings are 3 of the 7 determinations made by the Tribunal in the Preliminary Ruling.

13.  First, on Day 1, the hearing was originally held in public with the 1^st applicant’s friends and a reporter of a local newspaper present.  Counsel for the applicants argued that the hearing before the Tribunal should be conducted in public, invoking Article 10.  He further contended that as the Registration of Persons Ordinance, Cap 177 (“the Ordinance”), was silent on the mode of the appeal hearing before the Tribunal, hearings before the Tribunal must necessarily be conducted in public.

14.  After hearing arguments, the Tribunal determined that a ruling on the mode of hearing was required.  The 1^st applicant’s friends and the reported then left the hearing room.  The remainder of the hearing in its entirety was then held in private.  In the Preliminary Ruling, the Tribunal ruled it would not determine the argument as its function was fact-finding.  However, there can be no doubt that in effect the Tribunal had, by how it conducted the hearing, determined that the appeals were to be heard in private (“Preliminary Determination 1”).

15.  Second, the Commissioner relied on the correspondence between the Department and BEEA with redactions.  The applicants’ applied for discovery of un-redacted copies of the correspondence, which the Tribunal refused (“Preliminary Determination 2”).

16.  Third, contrary to the applicants’ contention, the Tribunal ruled that the civil standard of proof, and not the criminal standard of proof, applied to the Commissioner’s allegation that A1’s OWP and A2’s OWP were obtained illegally (“Preliminary Determination 3”).

17.  Having disposed of the preliminary application, the Tribunal spent Day 31 (1 March 2010) on directions. Then on 1 April 2010 the applicants applied to this court for judicial review against Preliminary Determinations 1 to 3.  On 21 June 2010 (Day 32), the Tribunal had another directions hearing.  It then proceeded to hear the substantive appeals on 23 August 2010.  On 8 September 2010, I refused to grant leave without prejudice to any fresh application for judicial review on the same grounds after the conclusion of the appeal hearing before the Tribunal.  I took the view that the leave application, made in the course of the substantive hearing, was premature.  And there were no exceptional circumstances for the court to interfere while the outcome of the substantive appeals was yet to be known.  In the event, the substantive hearing of the appeals continued until 30 December 2010 to complete.  In total, the substantive hearing lasted for 9 days (Days 33 to 41).

18.  On 26 May 2011, the Tribunal made its final determination and dismissed the applicants’ appeals (“the Final Determination”) on the grounds that the applicants’ OWPs were unlawfully obtained and had been invalidated by the BEEA; that permissions previously granted to the applicants to land in Hong Kong were null and void and their stay in Hong Kong were unlawful and without permission by the Director; that the applicants’ unlawful stay in Hong Kong did not constitute ordinary residence; and that the applicants had never been entitled to the right of abode.

B. JUDICIAL REVIEW

19.  The applicants immediately mounted the present application for judicial review against the Tribunal. Pursuant to my direction, the Commissioner was joined as an interested party. The Tribunal took a neutral position and did not appear at the substantive hearing.

20.  In gist, the applicants contended that Preliminary Determinations 1 to 3 are all procedural irregularities, which had tainted the Final Determination.  They further sought to impeach the Final Determination on the further grounds that the Tribunal had acted unjustly and unreasonably, in the Wednesbury sense, in dealing with the evidence and that it had failed to meet the legal requirement of giving reasons.  They asked for an order of certiorari to quash Preliminary Determinations 1 to 3 and the Final Determinations and, following that, a rehearing of their appeals before the Tribunal.

21.  Separately, the 2^nd applicant contended that the Tribunal had come to an irrational decision that she had also obtained her OWP by unlawful means.  She argued that the reason for her application for the OWP was for reunion with the 1^st applicant, which was valid and genuine.  She accordingly did not obtain her OWP by unlawful means.  The validity of her OWP should not be affected by the alleged unlawful means of the 1^st applicant in obtaining his OWP.  At the hearing before me, Mr CY Li, SC for the applicants, abandoned this ground of challenge.

C. STATUTORY PROVISIONS ON THE TRIBUNAL’S PRACTICE AND PROCEDURE

22.  In the light of the challenges mounted by the applicants against the Preliminary Determinations, I think it is convenient to preface the discussion with a brief overview of the statutory provisions on the Tribunal’s practice and procedure in appeals.

23.  The Tribunal is established under section 3C of the Ordinance.  Its jurisdiction on appeal is conferred by section 3D(1) :

“The Tribunal shall have jurisdiction to hear and decide any appeal by a person who is aggrieved by a decision of a registration officer not to issue a permanent identity card to that person…”

24.  On practice and procedure of appeals, section 3E provides :

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

25.  The regulations made under section 7 of the Ordinance are the Registration of Persons Regulations, Cap 177A (“the Regulations”).  Regulation 26A prescribes :

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

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

26.  Schedule 4 sets out the procedure to be adopted in appeals in board terms.  Relevant to the present proceedings are :

(1) Paragraph 2 – appeals are to be heard without delay as expeditiously as is practicable.

(2) Paragraph 3(1) – appeals are to be heard by 2 adjudicators.

(3) Paragraph 6 – an appellant may be represented by a lawyer or such other representative authorized by the appellant as the Tribunal may approve.

(4) Paragraph 9(1) – the Tribunal may summon any person to attend as a witness to give evidence or produce any documents in that persons’ possession, custody or power which may relate to any issue in the appeal.

(5) Paragraph 12 – the Tribunal shall keep a summary or record of proceedings in every appeal which comes before it in such form as the chief adjudicator may determine.

27.  Significantly, the Regulations contain no express provision on the mode of the hearing of an appeal.

D. PRELIMINARY DETERMINATION 1

D1. Public or private hearing – a matter for the Tribunal

28.  As noted, the Regulations are silent on whether a hearing of an appeal before the Tribunal, in whole or in part, should be conducted in public or private.  In the absence of any specific provision, this is a matter to be determined by the chief adjudicator under Regulation 26A(1).  However, on the evidence before me, the chief adjudicator has not made any specific determination in this regard.  The matter is therefore left to be determined by the individual Tribunal actually hearing the appeal.  And rightly so as Ribeiro PJ observed in Lam Siu Po v Commissioner of Police (2009) 12 HKCFAR 237, at para 138 :

“At common law and in the absence of inconsistent legislative intervention, administrative and domestic tribunals are generally regarded as master of their own procedure possessing a flexible discretion to take whatever procedural course may be dictated by the requirements of fairness.”

29.  Thus it was wrong for the Tribunal to shy away from answering the question whether the applicants’ appeals should be heard in public on the purported ground that its function is fact-finding.  I would add this.  In avoiding the question, the Tribunal re-iterated that its function is fact-finding.  By stressing that its function is fact-finding, the Tribunal seemed to be suggesting that legal issues arising from the applicants’ reliance on Article 10 did not fall within its purview.  That view, if truly intended, must be wrong.  For nothing in the Ordinance or the Regulations curtails the Tribunal’s jurisdiction in such a way.

D2. Two questions

30.  That said, having heard the appeals (except part of Day 1) in private, the Tribunal had effectively ruled that Article 10 was not engaged.  The more pertinent questions for present purposes are – in the present case :

(1) is Article 10 engaged?

(2) if yes, has Article 10 been contravened?

31.  In the Preliminary Ruling, the Tribunal referred to the section 11 of the Hong Kong Bill of Rights Ordinance :

“As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation.”

32.  It is not clear if in effectively ruling that the appeals were to be heard in private, the Tribunal were relying on section 11.  However, that does not matter now as Mr Chan, for the Commissioner, said that he would not rely on this saving provision for present purposes.  That being the case, I will not dwell on the effect of section 11.  I just wish to say that the Commissioner’s stance here does not necessarily mean that section 11 has no application in all subsequent appeals before the Tribunal.  Depending on the actual circumstances, section 11 may well apply.

D3. Legal principles

33.  Article 10 provides :

“All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. …”

34.  As said, this is the first occasion where the court is asked to determine if Article 10 is engaged in an appeal before the Tribunal.  In the absence of direct authority, Mr Li referred me to a number of local and overseas authorities.  I do not think I need to deal with them in detail.  For my part, a more preferable way of identifying the applicable principles is to consult Lam Siu Po, where Ribeiro PJ had comprehensively reviewed the local and international jurisprudence on Article 10 and related treaty provisions, that is, Article 6(1) of the European Convention on Human Rights (“ECHR”) and Article 14(1) of the International Covenant on Civil and Political Rights (“ICCPR”).  And I am able to extract the following principles from his Lordship’s judgment which, in my view, are apposite to the present case.

35.  First, Article 10 gives effect to the rule of law. When it is engaged, it enables the individual faced with a determination by a governmental or public authority which may have affect his civil rights and obligations to the protections of Article 10, including the right to a fair and public hearing by a competent, independent and impartial tribunal established by law.  (§67)

36.  Second, the Article 10 protections are not confined to a court of law.  It may also extend to administrative tribunals having judicial characteristics.  (§76)

37.  Third, since Article 10’s engagement depends on whether an individual’s civil rights and obligations are to be determined or whether he is facing a criminal charge in a specific instance, Article 10 may be engaged only in relation to some, but not all, the matters dealt with by a particular administrative authority or administrative tribunal.  (§91)  In other words, a matter placed before the tribunal may or may not attract Article 10 protections depending on whether it involves determination of a criminal charge or of the individual’s civil rights and obligations.  (§92)

38.  Fourth, when Article 10 is engaged, the person concerned is entitled to “a fair and public hearing by a competent, independent and impartial tribunal established by law”.  However, Article 10 does not operate to destroy or radically alter the entire administrative system by requiring decisions to be taken publicly by independent and impartial tribunals imported into the administrative structure for that purpose.  It does not require every element of the protections conferred to be present, but only that such protections should be effective when the determination is viewed as an entire process, including as part of that process such appeals or judicial review as may be available.  (§109)

39.  Fifth, as shown in the international jurisprudence on Article 6(1) of ECHR and Article 14.1 of ICCPR, Article 10 can be given effect if the process of determining a person’s rights and obligations beginning with the administrative process is subject to control by “a court of full jurisdiction”.  (§116)

40.  Sixth, a court is a court of full jurisdiction when it has “full jurisdiction to deal with the case as the nature of the decision requires”.  (§117) Full jurisdiction does not mean full decision making power or the jurisdiction to re-examine the merits of the case.  (§124)

41.  Seventh, a court of full jurisdiction may deal with the case in the manner required in at least two different ways.  It may do so by supplying one or more of the protections mandated by Article 10 which were missing below, for instance, by assuming the role of the necessary independent tribunal or by giving the individual concerned the needed public hearing.  Or it may do so by exercising its supervisory jurisdiction so as to correct or quash some non-compliant aspect of the determination by the authority or tribunal concerned, for instance, where there has been a want of impartiality or some unfairness in the original process.  If in assuming such a role, the court is armed with full jurisdiction to deal with case as the nature of the challenged decision requires, there is compliance with Article 10’s requirements.  (§118)

42.  Eighth, with reference to the requirement of publicity, although it is a highly important aspect of a fair trial, it does not mean that there must be publicity at the original hearing or at every stage.  Where the matter proceeds to a public hearing before a court of full jurisdiction, the protection against secret trials is achieved.  (§118)  If, however, where the public hearing comes before a court with limited jurisdiction so that important aspects of the decision cannot be publicly reviewed, Article 10’s requirements may not be met.  (§119)

43.  Ninth, generally speaking in Hong Kong, a court exercising its judicial review jurisdiction without statutory interference is likely to qualify for most purposes as a court of full jurisdiction.  (§§126 & 133)

44.  Tenth, in individual cases, the sufficiency of judicial review for the purpose of Article 10 compliance is dependent on the subject matter of challenge, the manner in which it was arrived at, its content and the proposed grounds of challenge.  (§131)

45.  With these principles in mind, I now consider the first question if Article 10 is engaged in the present case.

D3. Is Article 10 engaged?

46.  In my view, the answer is straightforward.  Article 10 is clearly engaged in the present case.

47.  As apparent from its jurisdiction, set up and practice and procedure, the Tribunal does possess some judicial characteristics.  Further, under section 3D(4) of the Ordinance, an appeal may only be brought before the Tribunal under subsection (1) by a person on the ground that on the facts of his case he enjoys the right of abode in Hong Kong and shall succeed if, and only if, the Tribunal determines that he has that right.  So generally speaking, in dealing with an appeal brought under section 3D(1), the Tribunal must determine if the appellant enjoys the right of abode in Hong Kong.  From the appellant’s perspective, he is undoubtedly facing a determination of a very important aspect of his civil rights, namely the right of abode in Hong Kong.

48.  In the present case, the major issue before the Tribunal was whether the A1’s OWP was obtained by unlawful means and hence the applicants’ respective permissions to remain in Hong Kong granted by the Director should be vitiated.  This issue would determine the applicants’ right of abode in Hong Kong.  They were undoubtedly facing a determination by the Tribunal of this aspect of their civil rights and obligations, and a very important one indeed, thus triggering the protections under Article 10.

49.  To the second question if Article 10 has been contravened I next turn.

D4. Has Article 10 been contravened?

50.  The requirement of publicity is undoubtedly an important aspect of the determination process of a person’s civil rights and obligations.  It contributes to the achievement of a fair process by promoting transparency, subjecting it to public scrutiny, and guarding the persons concerned against any possible abuse of power or unfair treatment in secret.  It instils public confidence in the system.

51.  However, as seen, a holistic approach has to be adopted.  The entire determination process is to be viewed as a whole.  Article 10 will be complied with if the process beginning with the administrative process is subject to control by a court of full jurisdiction to deal with the case as the nature of the decision requires, even if publicity is missing when the matter is dealt with by the administrative body or tribunal.

52.  Here, although under section 3D(6) of the Ordinance the decision of the Tribunal hearing the appeal is final, it is always subject to the court’s judicial review jurisdiction. The question is whether in the present case, this court now dealing with the applicants’ judicial review is “a court of full jurisdiction” for the purpose of Article 10 compliance.

53.  In answering this question, I take into account the subject matters of the Determinations, the manner in which the Tribunal made them, their content and the applicants’ challenges.

54.  The Preliminary Determinations concern the practice and procedure of the Tribunal in hearing an appeal.  They are essentially questions of law.  The Tribunal made the determinations as it did after hearing full submissions from the parties.  Put bluntly, the applicant’s challenge against the Preliminary Determinations is that the Tribunal had erred as a matter of law in making them.  They fall properly and squarely within the purview of this court’s judicial review jurisdiction. The Final Determination is impeached firstly on the ground that it is tainted by the Preliminary Determinations.  On this basis, this court surely has jurisdiction to deal with it.  The Final Determination is next impeached as being unjust and Wednesbury unreasonable.  The thrust of the applicants’ complaint is that the Tribunal had unjustly and unreasonably, in the Wednesbury sense, in dealing with the evidence presented before it.  On that basis, this court also has jurisdiction to deal with the Final Determination as well.  Finally, the Final Determination is impeached on the ground that the Tribunal has failed to give reasons.  This is also a matter that this court can visit here without any difficulty.

55.  Further, I can see nothing in the Ordinance or the Regulations which intervenes with the court’s jurisdiction over all the Determinations in this judicial review.

56.  In short, this court has the full jurisdiction to deal with the subject matters of all the Determinations in public without any statutory interference and in fact have done so.  So viewed as a whole, the protection of publicity in the present case is achieved without any deficit through recourse to judicial review : see Lam Siu Po, at §136.

57.  Mr Li argued as a general proposition that judicial review could not be regarded as part of the determination process to see if there is compliance with Article 10.  He submitted the view expressed by Ribeiro in §109 of Lam Siu Po is wrong.  He contended that if his Lordship’s view is right, it would mean that an aggrieved party could never mount a challenge and seek appropriate remedy in a judicial review based on Article 10 since once his right or grievance is heard in the judicial review, there is an automatic compliance with Article 10.  He argued that only a court hearing an appeal from the tribunal is “a court of full jurisdiction” for the purpose of Article 10 compliance.  This court, sitting in a judicial review, is not a court of full jurisdiction.  With respect, Mr Li’s submission is plainly wrong and must be rejected.

58.  Mr Li’s attack on the view expressed by Ribeiro PJ in §109 is a non‑starter. For his Lordship’s view is well supported by the international jurisprudence on Article 6(1) of ECHR and Article 14.1 of ICCPR (summarized in §§110-114) which, as pointed out by his Lordship (at §115), has been adopted by the Appeal Committee in Chow Shun Yun v Wek Pih (2003) 6 HKCFAR 299 and the Court of Appeal in Tse Wai Chun v Solicitors Disciplinary Tribunal [2002] 3 HKLRD 712 in the context of Article 10.

59.  Mr Li’s very sweeping argument that an aggrieved party could never mount a judicial review based on the purported non-compliance with Article 10 is misconceived.  He failed to recognize the essential requirement that the court hearing the judicial review must be “a court of full jurisdiction” in order to achieve Article 10 compliance.  And whether the reviewing court is a court of full jurisdiction must depend on the facts of the case, although generally speaking it is likely to qualify as such for most of the purposes.  Lam Siu Po offers a ready example.  There, the Police (Discipline) Regulations sanctioned the refusal of legal representation in disciplinary proceedings.  Ribeiro PJ said at §141 that so long as the subordinate legislation were in force, they divested the reviewing court of the status of a court of full jurisdiction, depriving it of the power necessary to deal with the case as the nature of the decision (involving an unfair refusal of legal representation) required.  Here, as I have demonstrated, this court has the full jurisdiction to deal with the matters now complained of by the applicants.  It is a “court of full jurisdiction” for the purpose of Article 10 compliance.

60.  The challenge against Preliminary Determination 1 fails.

E. PRELIMINARY DETERMINATION 2

61.  Before the Tribunal, the Commissioner relied on the correspondence between BEEA and the Department. Parts of the correspondence were redacted.  The applicants sought discovery of full and un-redacted copies of the documents, which the Tribunal refused.  The applicants contended that the Tribunal’s refusal to order discovery is unfair and amounted to a procedural irregularity.

62.  The proper approach to this kind of complaint is well settled.  In Chu Ping Tak v Commissioner of Police [2002] 3 HKLRD 679, Deputy Judge Cheung (as the Chief Judge of the High Court then was) had this to say :

“59. In my judgment, the position is as follows. Faced with a complaint based on non-disclosure of documents or material, the Court’s task in a judicial review is, first, to determine whether as a matter of fairness and natural justice, the documents or material ought to have been disclosed to the applicant by the decision‑making body so as to afford the applicant an opportunity to respond to the documents or material. At this first stage, it is not necessary for the applicant to establish prejudice as a ground of judicial review : Boddington v British Transport Police [1999] 2 AC 143 at p 174D-E (cited with approval in Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653 at p 663 para 40).

60. Secondly, if the Court comes up with an affirmative answer to the first question, it should proceed to the second stage of the matter by considering whether to exercise its discretion to quash the decision of the decision-making body below or grant some other appropriate relief, if any. At this second stage, the fact that there has been (ex hypothesi) a breach of procedural fairness is, of course, by itself a relevant and indeed a weighty consideration to be taken into account. However, at this second stage, the absence of prejudice, if such is the case, is also a relevant factor to be taken into account : Boddington v British Transport Police [1999] 2 AC 143; and Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653. In fact, as is demonstrated by the actual decision in Leung Fuk Wah v Commissioner of Police, if the non‑disclosure did not produce a substantial prejudice to the applicant whatsoever, it would seem that the discretion of the Court would most likely, if not inevitably, be exercised against the grant of any relief : See p 668 para 76 of the judgment, where the Court of Appeal observed that :

Judicial review being a discretionary remedy, if Mr Leung does not, as a matter of substance, suffer prejudice, then the failure to observe the principle of fairness should not be a ground for quashing the decision.”

63.  Applying this two‑stage approach, I first consider if as a matter of fairness and natural justice, the un-redacted documents ought to have been disclosed to the applicants by the Commissioner.

64.  In the course of the hearing before me, the Commissioner has, without making any concession, produced a bundle containing the whole set of the correspondence in question. Most of the redacted parts are now un‑redacted.  It can now be seen that the originally redacted parts are mostly file references of the documents, personal information of the handling officers in the BEEA and some unrelated third parties whose OWPs were also revoked by BEEA at the same time as A1’s OWP.  The personal information of the persons whose OWPs were revoked including the 1^st applicant was contained in a table.  In the table is a column under the heading “备注”.  The personal information of the other persons remains redacted.  According to the Commissioner, which is not contradicted by any evidence before me, the information contained in the “备注” column, which remains redacted, is irrelevant to the applicants’ appeals before the Tribunal.

65.  Having carefully studied the documents disclosed by the Commissioner now, I fail to see how the redacted parts of the correspondence (whether un-redacted now or not) would possibly have any bearing on the matters before the Tribunal.  Mr Li submitted that the documents might be relevant and useful which could lead to a chain of inquiry as to whether the A1’s OWP was obtained illegally or whether the whole exercise was orchestrated by BEEA as a disgusted attempt to extradite him back to the Mainland.  It is however significant to note that there is simply no evidence placed before the Tribunal to support the applicants’ allegation against BEEA at all.  In fact, the applicants had chosen not to give evidence.  The allegation against BEEA remained no more than a bare assertion.  In the circumstances, the decision of the Tribunal to refuse discovery was, in my view, entirely correct.  Fairness and natural justice did not require production of the full, un-redacted correspondence to the applicants as contended by them.

66.  That being my conclusion, stage 2 of the approach does not arise.

67.  The challenge against Preliminary Determination 2 also fails.

F. PRELIMINARY DETERMINATION 3

68.  This can be shortly disposed of.

69.  Mr Li submitted in effect that since the Commissioner’s case against the applicants is based on the allegation that the 1^st applicant had obtained the OWP unlawfully, which is criminal in nature, this entails the Tribunal applying the criminal standard of proof.  Mr Li’s submission is wholly unsustainable.  For it is well established that in a case involving an alleged deception vitiating permission to land or stay in Hong Kong, the burden of proof imposed on the authority is the civil standard of balance of probabilities : Lau Fong v Director of Immigration, HCAL 128/1999, 29 June 2000, unreported, per Hartmann J (as he then was) at pp11-14; Lui Hau Man v Director of Immigration, HCAL 134/2002, 21 January 2003, unreported, per Chu J (as she then was) at §§61-66.

70.  The applicants’ challenge against Preliminary Determination 3 fails.

G. FINAL DETERMINATION

71.  As said, there are principally three grounds in support of the applicants’ challenge against the Final Determination.

G1. Tainted with irregularities

72.  This ground must fail after I have ruled that none of the Preliminary Determinations can be impeached as procedural irregularity.

G2. How the Tribunal dealt with the evidence

73.  Mr Li’s rather lengthy submissions boil down to one single point, namely, the Tribunal erred in relying on the letters issued by the BEEA in concluding that the applicants’ OPW were unlawfully obtained.

74.  The question of how the courts in Hong Kong should approach BEEA correspondence is not a new matter. It has been visited by our courts in a number of cases : see Tsui Siu Wai v Director of Immigration, HCMP1665/1994, unreported, 6 December 1994 (Patrick Chan J, as he then was); Li Fu Shan v Director of Immigration [2002] 4 HKC 284 (Hartmann J); Lui Hau Man v Director of Immigration, supra, Fung Suet Fong v Director of Immigration, HCAL 108/2002, unreported, 10 January 2004 (Chung J); Ng Wing Hung v Commissioner of Registration, HCAL 125/2006, unreported, 4 July 2007 (Chu J); Choi Ka Tak v Director of Immigration, HCAL 97/2007, unreported, 23 July 2008 (Chu J and Lam J, as he then was).  Mr Chan has helpfully summarized the principles derived from the authorities, which I would gratefully adopt and set out with some slight revisions as follows :

(1) Statements made by the BEEA as to the validity of OWPs are relevant and in most cases weighty evidence as to the status of such permits.

(2) Not only are the Hong Kong immigration authorities fully entitled to rely on such statements, it is inappropriate for them to be concerned with the process through which the Mainland authority decides whether a particular OWP is valid or not.

(3) The above approach involves no abrogation of the Hong Kong authority’s duty to find on the facts.  This is because, absent any substantial and serious issues of authenticity/ irregularity as regards a BEEA communication, the only question of fact for the Hong Kong authority is : what is the BEEA’s conclusion as gleaned from the communication as to the validity or lawfulness of a given permit?

(4) It will be an exceptional case where there is any scope to second guess what appears on a BEEA statement given the presumption of regularity that applies to such matters.  It is for the applicant to adduce cogent evidence to overcome this presumption and the Court will not disturb a tribunal’s assessment in this regard absent manifest factual error or Wednesbury unreasonableness.  The mere fact that the applicant has adduced some conflicting evidence is entirely insufficient.

75.  Applying these principles to the present case, I can see no merits in the applicants’ complaints at all.

76.  The applicants first contended that it was wrong for the Tribunal to accept what was stated in the BEEA letters as they did not bear any official chop, thus putting authenticity of the documents in doubt.  This submission is devoid of merits.  When the whole series of BEEA correspondence is considered, no doubt can possibly arise on their authenticity from the absence of the official chop.

77.  They next complained that the Tribunal erred in failing to consider the evidence to determine for itself whether there was evidence to show that the 1^st applicant’s OWP was obtained through bribery.  The Tribunal had undoubtedly acted on the BEEA letters.  The applicants themselves had not given evidence.  And the Tribunal rejected the purported expert evidence called by them on the BEEA letters. There was no evidence which is capable of contradicting or qualifying the BEEA letters.  In the circumstances, the Tribunal was perfectly entitled to accord substantial value and weight to the BEEA letters as it saw fit.

78.  They then complained that the Tribunal had failed to consider whether, even if the applicants’ OWPs were invalidly obtained in the first instance, they could nevertheless have subsequently become a valid and effective document.  This complaint is nonsensical.  The clear evidence is that throughout the applicants’ OWPs had been invalidated and revoked by the BEEA and there is not an iota of evidence to remotely suggest that they might have been subsequently re‑validated.

79.  Finally, the applicants argued that the Tribunal failed to approach the evidence with the necessary circumspection when the evidence seemed to suggest that the Mainland authorities wanted to extradite the 1^st applicant to the Mainland for the smuggling case of Lai Chang Xing.  This is likewise a hopeless complaint.  There is no evidence whatsoever that is capable of showing any hidden agenda of the Mainland authorities as alleged.  In any event, the Tribunal had taken into account this point in dismissing the appeals.  It regarded the point as being unmeritorious.

80.  Mr Li’s very lengthy submissions on how the Tribunal had dealt with the evidence, bordering on forensic examination of some of the documents, did not add much to the applicants’ case.  I will not deal with them in detail lest this judgment will be unduly overburdened.  Suffice it to say that having considered them carefully, I can see no substance in any of the points taken by counsel.

81.  This ground fails.

G3. Duty to give reasons

82.  Instead of keeping a summary or record of proceedings as mandated by para 12 of Schedule 4, the Tribunal had kept a substantially verbatim transcript of the entire proceedings from Day 1 to Day 42.  That had resulted in 11 box files with nearly 2000 pages of documents.  Mr Li submitted that the reasons in support of the Preliminary Determinations and Final Determination are all over the place and not intelligible.

83.  I readily accept that it was wholly unnecessary for the Tribunal to keep the record of proceedings in such a way.  In my view, the record needs not to be over-elaborate.  It is good enough as long as it is accurate, adequately informative and sufficiently intelligible in the context of the circumstances.  In a case such as the present, in respect of the facts, it would be sufficient for the Tribunal to set out succinctly (a) the undisputed facts, (b) the factual disputes, (c) the evidence adduced by the parties, (d) how it resolved the factual disputes, and (e) the findings it made on the factual disputes.  On law, what the Tribunal needs to do is to (a) identify the legal issues, (b) summarize the parties’ submissions, and (c) state its rulings on the legal issues with reasons.  The Tribunal can then give its determination(s) based on the factual findings and rulings on law, if any, and dispose of the appeal accordingly.  Prepared in this way, the record will serve its principal function of adequately explaining to the parties and, where necessary, to the court how the Tribunal disposed of the appeal and the reasons why.

84.  I also accept that finding the reasons from the Tribunal’s record of proceedings here is a labour‑intensive exercise.  But I do not accept that the Tribunal had failed to give reasons or sufficiently adequate and intelligible reasons.  In fact, the applicants and their legal advisers had no difficulty at all in discerning the Tribunal’s reasons in preparing the Amended Form 86 and detailed submissions.

85.  This ground fails too.

I. DISPOSITIONS

86.  For the above reasons, I dismiss the applicants’ applications for judicial review.

87.  Costs should follow the event.  There will be an order nisi, to be made absolute 14 days after handing down of this judgment, that the applicants do pay the Commissioner costs, including all costs reserved, to be taxed if not agreed.