NG SIU TUNG AND OTHERS v. THE DIRECTOR OF IMMIGRATION

FACV No. 1 of 2001

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2001 (CIVIL)

(ON APPEAL FROM CACV NO. 415 OF 2000)

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J U D G M E N T

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Chief Justice Li, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ :

1. On 10 January 2002, this Court handed down judgment in this appeal and in FACV 2 and 3/2001 (the January Judgment), presently reported at [2002] 1 HKLRD 561. We directed the parties to consult together for the purposes of drawing up and submitting to the Court for approval a draft of formal orders to be made by the Court for disposing of the appeals in respect of each of the representative applicants and of each person represented by them in accordance with the January Judgment. We also directed that, in the event of disagreement, the parties should make written submissions to the Court and, if necessary, apply for directions concerning the making of such written submissions.

2. As at 27 April 2002, the appeals of all the applicants in FACV 2 and 3/2001 and those of 4,763 (out of 5,073) applicants in this appeal had been disposed of pursuant to the January Judgment by orders in agreed terms. Since that date further appeals have been similarly disposed of. There are now outstanding no more than 238 applicants who claim that their appeals should be allowed or that their cases should be reconsidered favourably by the Director of Immigration (the Director). Their claims are contested by the Director.

3. Moreover, it appears from a schedule attached to a letter from the applicants' solicitors dated 18 July 2002 that 13 cases included in the 238 cases put forward by the applicants for the purposes of this Judgment are cases which have already been dismissed and are the subject of perfected orders of this Court. The 13 applicants in question and the dates on which orders for the dismissal of their appeals were perfected are as follows :-

4. Since perfected orders can only be re-opened in quite exceptional circumstances and since no submissions have been made that such circumstances exist, the perfected orders in question stand. This Judgment is not concerned with the re-opening of any dismissed cases and orders and directions given in this Judgment have no application to such cases.

5. Directions were given by Mr Justice Chan in respect of the disclosure by the Director of all relevant documents and the filing of written submissions for the purpose of resolving the remaining disputes between the parties.

6. Pursuant to directions given, files relating to the outstanding applicants have been disclosed by the Director. An affirmation and an affidavit of discovery have been filed by senior officers of the Immigration Department and of the Police respectively. The parties have also, pursuant to the Court's directions, filed written submissions in relation to these outstanding cases. Demands have since been made for further discovery.

7. A number of issues, both legal and factual, are raised in the submissions filed by the parties. They relate to three of the main issues in the appeals, namely, the Period 1 Group A issue, the Legitimate Expectation issue and the Concession issue. The applicants seek certain relief in cases where they say the matter can be disposed of by this Court and further directions in respect of those cases which cannot be so disposed of.

The appointment of representative applicants

8. The applicants submit that, for the purpose of the present exercise, the Court should direct that certain applicants do stand as representative applicants for the rest of the applicants whose cases are still outstanding. We reject this submission. The Director does not consent to the appointment of representative applicants. Indeed, the Director opposes such an appointment on the ground, with which we agree, that it would be extremely difficult, if not impossible, for this Court to categorise the remaining applicants appropriately in the absence of any properly framed factual bases accepted by both parties. In many cases, the parties are in dispute as to the facts and as to their legal significance.

9. We point out that the Court is concerned only with the implementation of the January Judgment, that is, to decide issues of fact and law which arise within the framework of the Court's conclusions and reasons for judgment. The Court will not deal with issues of fact or law which have not been raised in the proceedings.

Suggested quashing of removal orders

10. The applicants submit that where the Court cannot resolve a case on the materials presently available, the Court should quash the removal orders and direct the Director to reconsider the case. This submission must be rejected. There is no basis in law for the Court to quash an order unless it is established that the order, or the decision to make it, was unlawful. Whether it was unlawful depends upon resolution of the issues which now arise in consequence of the January Judgment.

Discovery, production of documents and directions

11. Questions arise as to the sufficiency of documents produced by the Director before and after orders made by Mr Justice Chan. Connected with these questions is a submission made by the applicants that the Director is under a constitutional duty, created by the Basic Law, to assist the applicants in establishing their case that they have a right of abode, which the Court should enforce by giving appropriate directions. Again, we reject this submission. The Basic Law imposes no duty on the Director to assist the applicants in establishing their case. But the Director is of course subject to obligations relating to discovery.

12. For the same reason, we reject the submission that the Court should require the Director to give reasons why he has failed to accept the contentions of those applicants whose cases are still in dispute. On the other hand, there is no reason why the Director should not be ordered to state the ground or grounds on which he disputes an applicant's claim to relief. In relation to those matters which are to be remitted to the Court of First Instance, that Court can make such orders where it considers the making of such orders proper.

13. The making of appropriate orders for further and better discovery and for production of specific documents under Order 24 of the High Court Rules will ensure that relevant materials in the possession of the Immigration Department are made available to the applicants. Production of documents is relevant to the resolution of the Period 1 Group A issue and to the other issues. Because the Court has concluded that it should deal with the Period 1 Group A issue and remit the other issues, in so far as they have not been resolved by this Judgment, to the Court of First Instance for determination, it may be necessary for this Court to make a suitable order for the production of documents in relation to the Period 1 Group A issue. If so, this matter will be addressed at a directions hearing to be fixed. In relation to the other issues, application should be made to the Court of First Instance for appropriate directions, including disclosure and production of documents.

Issues not yet covered by the Director's submissions

14. This Judgment deals with questions which include matters which have been raised by the applicants only in their Reply Submissions. The Director has not had the opportunity to respond. In relation to such questions, where issues are to be remitted to the Court of First Instance for determination, the remitter is ordered on the footing that the Director will be afforded the opportunity to be fully heard before that court.

Period 1 Group A

15. There are now 15 outstanding cases in which the applicants are claiming to have the right of abode as a Period 1 Group A applicant. The Director disputes :

The claims of the remaining 8 applicants to be Group A applicants are still pending verification. They are Ms Choi Ying Kwan (Applicant 885), Ms Fong Bing Wah (Applicant 1059), Ms Li Sau Heung (Applicant 2162), Ms Mok Yin King (Applicant 2562), Ms Yau Siu Ching (Applicant 4090), Ms Ng Kwan (Applicant 4812), Ms Chan Siu Fong (Applicant 5194) and Mr Chow Kam Yeung (Applicant 5291).

16. The first dispute concerns applicants who entered Hong Kong prior to 1 July 1997 but who subsequently left the HKSAR before they had established permanent residency. The question is whether they are required to have lodged a claim for right of abode before leaving or to have done something to indicate that they were claiming that right. The Director concedes that it is not necessary for an applicant to have lodged a formal claim for right of abode. The Director however argues that the quality of his entry, presence and/or departure must be examined before the Court can decide whether he can be regarded properly as a Period 1 arrival. On the other hand, the applicants contend that it is enough that they entered Hong Kong before 1 July 1997.

17. At paragraph 169 of the January Judgment we said:

18. Because the resolution of the question of law in paragraph 16 above turns on the application of the January Judgment to a situation not covered by submissions previously made to the Court, we shall deal with the Period 1 Group A issue after hearing submissions at a hearing to be fixed for January 2003. In relation to any outstanding factual issues, applications for discovery and for any other directions will be dealt with by a single judge of this Court prior to such hearing.

Legitimate expectation

19. This issue concerns three applicants. The first two claim that they attended at the Legal Aid Department at a relevant time and assert that they have a legitimate expectation based on oral representations made by staff of the Legal Aid Department to them in substantially the same terms as the pro forma letter referred to in the January Judgment at paragraph 74 and held by the Court to create a legitimate expectation. These two applicants are Ms Chong Chui Ching (Applicant 1015) and Ms Chen Ling Ling (Applicant 4453). Like submissions were advanced on behalf of Ms Chan Kam Ku (Applicant 490). However, this Court's order dismissing her appeal was perfected on 16 April 2002.

20. As a matter of law, we are of the view that an oral representation, if made in such terms and sufficiently clear and unambiguous, would create the relevant legitimate expectation.

21. The factual issue in relation to these applicants is whether an oral representation in such terms was made at a relevant time by an officer of the Legal Aid Department. This issue is remitted for determination by the Court of First Instance.

22. In the case of Ms Hung Cheung Ching (Applicant 1385), it is not disputed that she received a pro forma letter addressed to her two-year old daughter on 16 December 1998. She relies on that letter as giving rise to a legitimate expectation on her part. The Director objects on the ground that the letter was not addressed to that applicant but to her daughter.

23. We are of the view that the letter in this case was obviously intended to be read by the Applicant, given that the addressee, her daughter, was a two-year old infant. As such, it should be viewed as a representation made by the Legal Aid Department to the Applicant. Accordingly, her appeal is allowed, the removal order against her is quashed and the Director is directed to consider the exercise of his discretions under sections 11, 13 and 19(1) of the Immigration Ordinance in accordance with paragraph 142 of the January Judgment.

Concession claims

24. The remaining outstanding cases involve disagreements between the parties as to whether certain applicants qualify as beneficiaries of the Court's right of abode judgments published on 29 January 1999 by virtue of the Concession referred to at paragraphs 179 ff of the January Judgment.

25. The Court upheld as reasonable and rational, the criteria adopted by the Immigration Department for persons to qualify, namely, that such persons (1) must have been present in Hong Kong during the period from 1 July 1997 to 29 January 1999; (2) during that period, had made a claim to the Immigration Department for the right of abode; (3) were physically in Hong Kong when the claim was made; and that (4) the Director had a record of such a claim.

26. The applicants making complaints fall into several groups. The first group, referred to in paragraphs 29 to 42 of the applicants' Reply Submissions, alleges that claims for right of abode by overstayers under threat of removal were in fact made but not recorded. 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.

27. The complaints of the second group, referred to in paragraphs 63 and 65 to 76 of the applicants' Reply Submissions, are similar. These applicants allege that they attended at the Immigration Department with a view to applying for an extension of stay. They say that they put forward a claim for right of abode as the reason for seeking such extension but that their claims were not recorded. They were told by officers of the Immigration Department that a claim for the right of abode was not a ground for granting an extension.

28. The third group, referred to in paragraphs 77 and 80 to 89 of the applicants' Reply Submissions, involves applicants who filled in a form known as an Application for a Certificate of Registered Particulars. Such certificates set out what, if anything, is on the Immigration Department's register regarding the person applying for the certificate and are commonly used for various purposes, such as applications for foreign visas. The form requires one to state why the certificate is sought by ticking a box which may be applicable. The form also contains a box for "other" reasons and a space for stating what such reasons are. Applicants in this group allege that they inserted in this "other" space their claim to a right of abode as their reason for seeking a certificate. However, it is alleged that such forms were rejected by officers of the Immigration Department on the ground that such certificates had nothing to do with a claim for right of abode so that no record of such claims exists.

29. In all the cases in these three groups, 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.

30. 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.

31. 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.

32. However, it is submitted by the applicants that in some cases (referred to at paragraphs 43 to 62, 64 and 78 to 79 of the Reply Submissions), the relevant documents held by the Immigration Department including statements and other documents containing annotations, handwritten or otherwise, which, fairly read, should be regarded as amounting to the required record of a claim for the right of abode.

33. 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.

34. Apart from the requirement that the Director has a record of a claim for right of abode, there is the separate and prior requirement that during the period in question the person must have made a right of abode claim to the Immigration Department. Such a claim may have been made orally or otherwise and an applicant may establish that this requirement has been met by oral or other evidence.

35. In relation to the cases in these three groups, we remit to the Court of First Instance for determination the following two issues :

36. The fourth group of Concession claims, referred to in paragraphs 90 to 94 of the applicants' Reply Submissions, involves 32 applicants who were prosecuted by the Director after overstaying. When brought before the magistrate, they made statements in mitigation. The applicants assert that the statements they made amounted to a claim for the right of abode and that there is a record of these statements in the magistrate's transcript and in documents known as "Form 19" and notes and minutes kept in Immigration Department files.

37. In all these cases, the first question which arises is whether, on all the available evidence, a claim for right of abode was in fact made by each applicant in the course of the proceedings before the magistrate. The magistrate's transcript is admissible as evidence in relation to this question.

38. However, 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 record of any such claim.

39. However, the applicants submit that these prosecutions involved immigration offences and that officers of the Immigration Department were present when claims for right of abode were made in the course of proceedings before the magistrate. It is submitted that such claims ought therefore to be regarded as claims made to the Immigration Department. Moreover, it is alleged that some such officers made notes on their copy of "Form 19" (a Magistrates Court form) as well as notes on other documents being minutes on the Immigration Department file. The applicants contend that such notes constitute a record of such claims for Concession purposes. The Director has not yet had an opportunity to deal with this submission. At this stage, we consider it arguable that any claims made in such circumstances are claims made to the Immigration Department and that appropriate notes made by an officer of that department in documents in the department's possession, including copies of Form 19, are capable of constituting the required record. Such notes must be approached in the manner indicated in paragraphs 33 and 34 above.

40. We therefore remit for determination by the Court of First Instance the following issues in relation to cases within this fourth group :-

41. The fifth group of Concession cases, referred to at paragraphs 95 and 97 to 102 of the Reply Submissions, involves claims for right of abode allegedly made upon the applicants being arrested by the police. It is alleged that in some such cases, claims for right of abode were or may have been noted in the arresting police officers' notebooks so that acknowledgment of their claim ought in the ordinary course to have found its way into the records of the Immigration Department. 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.

42. 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.

43. In paragraph 96 of the applicants' Reply Submissions (to which the Director has not yet responded), it is alleged that five cases exist where available police documents constitute records of a claim for right of abode for the purposes of the Concession. Whether this submission is to be accepted requires such documents to be examined and interpreted adopting the approach set out in paragraphs 33 and 34 above.

44. We therefore remit for determination by the Court of First Instance the following issues in relation to cases within this fifth group :-

45. The sixth group of Concession cases, referred to at paragraphs 103 to 108 of the Reply Submissions, involves applicants who allege that they made claims for right of abode by letters to the Immigration Department. In some cases, it is said that the Director accepts the letter as a claim in this context but remains to be satisfied as to whether the relevant applicants were present in Hong Kong when such claims were made. In other cases, the Director is said to deny possession of claim letters allegedly sent. The applicants contend that they are able to establish through secondary sources that they made such claims and that records thereof were held by the Immigration Department. Finally, in two cases, the Director is said to dispute the contention that the letters in question constitute claims for right of abode.

46. The Director has not had the opportunity of making his position known to the Court on any of these cases. We accordingly remit for determination by the Court of First Instance the following issues raised in this sixth group :-

47. The seventh group of Concession claims, referred to at paragraphs 109 to 115 of the Reply Submissions, involves two applicants, namely, Mr Chung Yiu Fung (Applicant 1039) and Mr Zong Jie Yan (Applicant 4393). At a time when they were Chinese nationals, they acquired Tongan nationality and passports. The Director does not dispute the fact that they otherwise satisfy the criteria for inclusion in the Concession policy. However, he questions whether, as a matter of Chinese law, the applicants may have lost their Chinese nationality and so are ineligible for right of abode under BL24(2)(3). The Director suggests that this is an issue requiring expert evidence for its resolution. In any event, certain questions of fact arise in relation to the possible application of the Chinese nationality law. We accordingly remit to the Court of First Instance for determination the issue of whether such applicants are eligible for right of abode under BL24(2)(3).

48. Submissions were also advanced on behalf of Mr Tai Chee Keung (Applicant 3167) and Mr Tai Chee Kwong (Applicant 3168), the allegation being that they had complied with all Concession requirements but that the Director has failed to accept or properly to consider their applications. In fact, orders dismissing the appeals of these applicants were perfected on 25 March 2002.

Final disposal of outstanding cases by Court of Final Appeal

49. In formulating the issues remitted, we have acted on the understanding that these are the only issues outstanding between the parties in the cases in question. If, contrary to this understanding, there are other outstanding issues, the parties have liberty to apply generally in relation to the remitter. Any such applications should be made to a single judge of this Court.

50. After determination by the Court of First Instance of the issues remitted, that Court is directed to report its determination to this Court for ultimate disposal of these outstanding cases.

Mr Justice Bokhary PJ :

51. On 10 January this year I said in a minority judgment that I would allow all these appeals to the fullest extent in favour of all the appellants by (i) quashing all the removal orders and (ii) declaring that all the appellants are Hong Kong permanent residents with the right of abode here. And I adhere to that. I do not consider it appropriate for me to participate in resolving the issues which have arisen between the parties as to the effect of the majority's judgment. It would be otherwise if and to the extent that the members of the Court who formed that majority were now evenly divided amongst themselves on the resolution of those issues or any one or more of those issues. But that is not the present situation. So I do not propose to say anything more than that I adhere to everything that I said in my judgment on 10 January this year.

Chief Justice Li :

52. The Court allows the appeal of Ms Hung Cheung Ching (Applicant 1385) and makes the orders referred to in paragraph 23 above, as well as the other orders and directions set out in this Judgment.