KONG SAU MEI AND OTHERS v. THE DIRECTOR OF IMMIGRATION

1998 HCAL No. 65

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

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J U D G M E N T

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Introduction

1. On 3rd June 1998, the Deputy Director of Immigration ordered the removal of the Applicants from Hong Kong. They appealed against the removal orders to the Immigration Tribunal. The Tribunal was satisfied that the facts and matters on which the Applicants sought to rely would not entitle them to succeed on their appeals. The appeals were therefore dismissed without a hearing. The Applicants now apply, with the leave of Stone J., for judicial review of the removal orders. They seek the quashing of the removal orders, and a declaration that they are entitled to remain in Hong Kong.

The grounds on which the removal orders were made

2. Sections 19(1)(b) and 19(6) of the Immigration Ordinance (Cap. 115) ("the Ordinance") give the Deputy Director of Immigration the power to make removal orders from Hong Kong. The circumstances in which he can exercise that power include those cases in which "it appears to him" that the person against whom the removal order is to be made "has ... landed in Hong Kong unlawfully" (section 19(1)(b)(ii)), or "has contravened section 42 of the Ordinance" (section 19(1)(b)(iia)). In the case of the 1st Applicant, the Deputy Director of Immigration ordered her removal under section 19(1)(b)(iia). In the case of the 2nd and 3rd Applicants, the Deputy Director of Immigration ordered their removal under section 19(1)(b)(ii).

3. An important issue has arisen as to the nature of the court's inquiry. Mr. Philip Dykes S.C. for the Applicants argued that the questions whether the 1st Applicant contravened section 42 and whether the other Applicants landed in Hong Kong unlawfully are precedent facts. The principle is expressed in de Smith, Woolf and Jowell, "Judicial Review of Administrative Action", 5th ed., para. 5-043, as follows:

"Where a set of facts must exist for the exercise of the jurisdiction of the body (in the strict sense of permitting the body to enter into its inquiry) the courts are entitled to inquire into the existence of those facts. The language of jurisdiction is not necessary to justify such intervention. The statute in such a case imposes a condition as precedent to the exercise of the body's power and it is the duty of the court to ensure that the condition has been met. The exercise of the decision-maker's power is dependent upon the existence of a fact or set of facts; the court is entitled to ensure that those facts exist."

Thus, in Khawaja v. Secretary of State for the Home Department [1984] A.C. 74, on an application for judicial review of an immigration officer's order detaining the Applicant as an illegal entrant into the U.K., it was held that it was the court's duty to inquire whether there had been sufficient evidence to justify the immigration officer's belief that the entry had been illegal, and that the court's duty was not limited to inquiring whether there was some evidence on which the immigration officer had been entitled to decide as he had.

4. Mr. William Marshall S.C. for the Deputy Director of Immigration forcefully reminded me that Khawaja was a decision under the Immigration Act 1971. The court was therefore dealing with a statutory regime very different from the Immigration Ordinance. The nature of the court's inquiry into whether immigrants are illegal entrants under one statute is not necessarily the same as the nature of the court's inquiry into whether facts had occurred which gave rise to the power to make removal orders under another statute.

5. The inescapable fact is that section 19(1)(b) of the Ordinance gives the Deputy Director of Immigration the power to make removal orders "if it appears to him" that certain events have taken place. No such language appears in the provisions of the Immigration Act 1971 being construed in Khawaja. It follows that the existence of the Deputy Director of Immigration's power is not dependent on whether the events have in fact taken place. The existence of his power is dependent on whether it appears to him that the events have taken place. However, I do not believe that the legislation would have entrusted so important a decision to the Deputy Director of Immigration without ensuring that he did not act on a whim or caprice or on inadequate grounds. Accordingly, his power under section 19(1)(b) must be construed as being subject to the implied limitation that it may only be exercised if his belief that the events have taken place is based on reasonable grounds.

6. One of the practical effects of this conclusion is that the court's determination of the legality of the removal orders must be based on the material which was known to the Deputy Director of Immigration at the time when he made the removal orders. Additional facts which were not known to the Deputy Director of Immigration must be ignored, unless they show that the facts on which he based his decision were plainly wrong. That is not alleged to be the case here.

7. Before I leave this topic, I should add that Mr. Dykes sought to meet this argument in relation to the 2nd and 3rd Applicants in an ingenious way. As we shall see, a person lands in Hong Kong unlawfully if he lands in Hong Kong without the permission of an immigration officer. Accordingly, if the issue is not one of precedent fact, it is open to the Deputy Director of Immigration to make a removal order under section 19(1)(b)(ii) if it appears to him that the person landed in Hong Kong without the permission of an immigration officer. However, section 53D of the Ordinance provides for appeals against removal orders. Under section 53D(1), the Immigration Tribunal is obliged to dismiss an appeal

"where the Tribunal determines that on the facts of the case as it finds them the appellant ... does not ... have the permission of the [Deputy] Director of Immigration to remain in Hong Kong."

That is the language of precedent fact. Therefore, to enable section 19(1)(b)(ii) to live in harmony with section 53D(1), proof to the satisfaction of the court that the person landed in Hong Kong without the permission of an immigration officer is said to be required, rather than simply the reasonable belief of the Deputy Director of Immigration to that effect.

8. I cannot accept this argument. Section 53D(1) talks of permission to remain in Hong Kong, whereas the contravention to which section 19(1)(b) relates is the absence of permission to land in Hong Kong. More significantly, when the Ordinance was first enacted in 1971, section 19(1) enabled the Governor to make a removal order if it appeared to him that the entrant landed in Hong Kong without permission. I do not believe that when the Ordinance was amended in 1980 to provide for appeals against removal orders, it was the intention of the legislature to change the basis upon which removal orders could be made.

The relevant facts

9. The facts which were known to the Deputy Director of Immigration when the removal orders were made were as follows. The 1st Applicant, Kong Sau Mei, is the mother of the 2nd and 3rd Applicants, Chan Kar Ling and Chan Kar Man. All three Applicants arrived in Hong Kong on 28th July 1990. They came on Thai passports, which stated that they had been born in Thailand and were Thai nationals. Their passports named them as Sae-Chan Moeiying, Sae-Phan Chalita and Sae-Phan Songporn respectively. They were permitted to enter and remain in Hong Kong as visitors until 11th August 1990.

10. Madam Kong's husband, Chan Chi Keung, was a Hong Kong permanent resident. On 10th September 1990, the Applicants applied for a change of immigration status from visitors to dependents. Madam Kong applied as the wife of Mr. Chan, and Kar Ling and Kar Man applied as his step-daughters. Documents submitted by Madam Kong and her husband in support of that application purported to show that

(a) Madam Kong had been born in Thailand,

(b) Madam Kong had married Mr. Chan in Thailand in August 1989,

(c) she had been married before, that marriage had not been "registered", and she and her previous husband had been separated for about 2 years,

(d) Kar Ling and Kar Man were Madam Kong's children by her previous marriage and had been born in Thailand.

On 8th October 1990, the Applicants' application for a change of immigration status from visitors to dependents was approved, and on 4th November 1994 the Applicants were granted unconditional leave to remain in Hong Kong indefinitely.

11. The Applicants' permission to land in Hong Kong, the approval of their change of status to dependents of Mr. Chan, and the grant of unconditional leave to remain in Hong Kong indefinitely, were all based on the belief on the part of the relevant immigration officers that the Applicants were Thai nationals who had been born in Thailand, and that there had been no irregularities in respect of the acquisition of their passports. Had it been known that the Applicants had been born on the Mainland, that they were not Thai nationals, and that their passports had been obtained irregularly, none of the permissions or approvals would have been granted.

12. On 6th September 1996, the Royal Thai Consulate-General informed the Director of Immigration that the Applicants were "mainland Chinese" and that they had obtained their passports illegally. For that reason, the passports were "now" considered invalid, and the Consulate-General had already cancelled them. In due course, Madam Kong and her husband were interviewed. They admitted that

(a) Madam Kong had been borne on the Mainland in 1955,

(b) her real name was Kong Sau Mei,

(c) they had married on the Mainland in 1979,

(d) Mr. Chan was the natural father of the two girls,

(e) their real names were Chan Kar Ling and Chan Kar Man, and

(f) Kar Ling and Kar Man had been borne on the Mainland in 1982 and 1986.

13. In the course of their interviews, they were questioned about the passports on which the Applicants had travelled to Hong Kong. They admitted that Mr. Chan had come to Hong Kong clandestinely in 1980. Under the "reach base" policy prevailing at the time, he was granted permission to remain in Hong Kong. He wanted to be reunited with his wife and daughters in Hong Kong, but he realised that it may be some time before that could be achieved. However, in 1985 he had seen a newspaper advertisement offering Mainland residents the opportunity to emigrate to countries in South-East Asia from which they could eventually gain entry into Hong Kong. He contacted the agency which had placed the advertisement, and agreed to pay $300,000.00 to enable his wife and daughters to emigrate to Thailand. The Applicants then obtained PRC passports and settled in Thailand in order to fulfil residency requirements prior to naturalisation. In due course, the agency arranged for the Applicants to be provided with Thai passports, which Madam Kong collected from the Foreign Ministry of Thailand, and those were the passports on which they travelled to Hong Kong on 28th July 1990.

The removal order relating to Madam Kong

14. The removal order relating to Madam Kong was made under section 19(1)(b)(iia) of the Ordinance, i.e. on the ground that it appeared to the Deputy Director of Immigration that she had contravened section 42 of the Ordinance. At first blush, the fact that she had contravened section 42 of the Ordinance could not be disputed. In the light of the admissions which she had made, Madam Kong had been charged with the offence of making a false representation to an immigration officer when she arrived in Hong Kong in 1990, contrary to section 42(1)(a) of the Ordinance. The false representations related to the statements in her Thai passport that she was Sae-Chan Moeiying and that she had been born in Thailand. She pleaded guilty to that offence on 11th July 1997.

15. However, Mr. Dykes relied on section 42(5) of the Ordinance, which provides that the representation must be false in a material particular if the representation is to amount to a false representation for the purposes of section 42(1)(a). The sole point taken by Mr. Dykes was that, although the representations she made to the immigration officer on her arrival in Hong Kong were false, they were not false in a material particular. Since she had not therefore contravened section 42, the Deputy Director of Immigration's power of removal under section 19(1)(b)(iia) had not been triggered.

16. But when is a representation false in a material particular? In R. v. Secretary of State for the Home Department ex p. Jayakody [1982] 1WLR 405, the court had to decide what constitutes "material facts" in the context of an entrant's duty to disclose material facts when he applies to enter the U.K. as a visitor. At p.408B, Lord Denning M.R. said that material facts

"are facts which are of a decisive character. They must be such that, if [the entrant] had disclosed them, the Home Secretary would have been bound to refuse him entry or on which the Home Secretary would in all probability have refused him entry."

That approach was qualified by Staughton L.J. in Durojaige v. Secretary of State for the Home Department [1991] Imm. A.R. 307, who said at p. 313 that a statement to the Home Office was material if "it was likely to influence their decision", and by Laws J. (as he then was) in R. v. Secretary of State for the Home Department ex p. Ming [1994] Imm. A.R. 216, who held at p.222 that material facts included those which would have resulted in further inquiries being made, which might have affected the ultimate outcome of the case. If the difference between these two cases and Jayakody is more than a difference in emphasis, I prefer them to Jayakody.

17. There is no contemporaneous document in which the Deputy Director of Immigration stated which of the representations Madam Kong made to the immigration officer when she arrived in Hong Kong appeared to him - when he made the removal order in her case - to be false. He swore an affidavit after the hearing before me began, but I cannot gather from that which of the representations he thought were false at the time the removal order was made. I therefore cannot assume that he thought at the time that she had made any representations which were false other than those which formed the basis of the charge to which she pleaded guilty. Accordingly, I proceed on the assumption that the only representations which she made which the Deputy Director of Administration believed were false related to her name and her place of birth.

18. Mr. Dykes' arguments have had to be adapted to take account of my conclusion that the Deputy Director of Immigration's powers of removal are dependent on his view, and not the court's view, of the facts which trigger those powers. Accordingly, the question is: was it reasonably open to the Deputy Director of Immigration to conclude that those representations were false in a material particular?

19. The answer to that question has to be Yes. It may be that Madam Kong had been using the name Sae-Chan Moeiying in Thailand for some time, and that she was not impersonating anyone. Equally, it may be that one's name or place of birth is not regarded as significant when one seeks permission to land in Hong Kong provided that one has a valid travel document. But the fact remains that had the immigration officer known that her passport did not give her true name and the correct country of her birth, he would have made further inquiries. Those inquiries would have revealed that she had unlawfully obtained a Thai passport to enable her to emigrate to Hong Kong without having to apply for a one-way exit permit from the Mainland, which could have taken much longer than the few years she had had to wait in Thailand.

20. Since the Deputy Director of Immigration was reasonably entitled to conclude that the representations she had made had been false in a material particular, he was reasonably entitled to conclude that she had contravened section 42(1)(a), and his power to make a removal order against her under section 19(1)(b)(iia) had been triggered.

21. The removal orders relating to Kar Ling and Kar Man

The removal orders relating to Kar Ling and Kar Man were made under section 19(1)(b)(ii) of the Ordinance, i.e. on the ground that it appeared to the Deputy Director of Immigration that they had "landed in Hong Kong unlawfully". Section 2(2) of the Ordinance provides that references in the Ordinance to "landing in Hong Kong unlawfully" are references to landing in Hong Kong in contravention of the Ordinance. The section of the Ordinance which Kar Ling and Kar Man are said by Mr. Marshall to have contravened by landing in Hong Kong is section 38(1)(a), which makes it an offence for persons like Kar Ling and Kar Man to land in Hong Kong without the permission of an immigration officer. Section 2(2) of the Ordinance makes it plain that they would have landed in Hong Kong without permission and therefore in contravention of the Ordinance even if they were too young to be prosecuted.

22. The basis on which it had appeared to the Deputy Director of Immigration that Kar Ling and Kar Man had landed in Hong Kong without such permission was set out in documents prepared by the Immigration Department in connection with their appeals to the Immigration Tribunal. The documents were the same in all relevant respects for both Kar Ling and Kar Man, and in Kar Ling's case it read:

"It has been confirmed that the Thai passport of [Kar Ling] was unlawfully obtained. The permission granted to her to remain in Hong Kong was null and void. She was deemed to have landed in Hong Kong unlawfully."

23. Mr. Dykes took the preliminary point that the Deputy Director of Immigration had no power to deem Kar Ling and Kar Man to have landed in Hong Kong unlawfully. Their landing in Hong Kong was either lawful or unlawful. He has no power to deem, i.e. to treat, them as having landed in Hong Kong unlawfully if they had not indeed landed in Hong Kong unlawfully. I do not think that there is anything in this point. "Deemed" in the context simply meant "regarded". Thus, what was being said was that the fact that their Thai passports had been unlawfully obtained meant that they had to be regarded as having landed in Hong Kong without the permission of an immigration officer and therefore as having landed in Hong Kong unlawfully.

24. Mr. Dykes submitted that there were no basis on which the Deputy Director of Immigration could have concluded that the passports were unlawfully obtained. He pointed out that whether the passports had been unlawfully obtained depended on Thai law, and there is no evidence that the Deputy Director of Immigration was informed of Thai law on this topic. He also argued that there was no basis on which it could be said that Madam Kong knew that the passports had been unlawfully obtained: the admissions relating to the arranging of the passports by the agency for $300,000.00 were all made by Mr. Chan. All that may be so, but the question is not whether the passports were in fact unlawfully obtained, or even whether Madam Kong knew that they had been unlawfully obtained, but whether the Deputy Director of Immigration had reasonable grounds for believing that the passports had been unlawfully obtained. In my view, the Deputy Director of Immigration plainly had reasonable grounds for that belief in view of the letter which the Director of Immigration had received from the Royal Thai Consulate-General which specifically referred to the fact that the passports had been obtained illegally. Mr. Dykes argued that this letter was inadmissible as hearsay. That may have been right if the question had been whether the passports had in fact been obtained illegally. However, the letter was not hearsay in view of the fact that the issue was whether the Deputy Director of Immigration had had reasonable grounds for believing that the passports had been unlawfully obtained.

25. The real issue on the legality of the removal orders relating to Kar Ling and Kar Man is a question of law: if permission to land in Hong Kong is given on the basis of an unlawfully obtained passport, does that mean that the entrant landed in Hong Kong without permission at all? At first blush, the answer is obvious. Kar Ling's and Kar Man's permission to land in Hong Kong was vitiated by the deception which was practised on the immigration officer who granted that permission. He granted permission to them to land in Hong Kong because he had no reason to suspect that their passports might have been unlawfully obtained.

26. Mr. Dykes addressed that in two ways. First, he contended that no deception had been practised by Kar Ling and Kar Man. They had had nothing to do with the obtaining of their passports, and Kar Ling had not even produced her passport to the immigration officer. In view of her age, it was her mother who had produced it as required by section 5(5)(a)(i) of the Ordinance. I cannot accept this argument. The fact of the matter is that permission to land was given as a result of the deception which was being practised. Simply because Kar Ling and Kar Man had had nothing to do with the deception themselves does not affect the fact that it was the deception which resulted in them being given the permission to land in Hong Kong which they would otherwise not have obtained.

27. Mr. Dykes' more significant argument related to the nature of the document which must be produced when permission to land in Hong Kong is sought. The document which had to be produced by Madam Kong for Kar Ling was "a valid travel document": section 5(5)(a)(i). Surprisingly, there was no requirement for any document to be produced for Kar Man at all, who was only 4 years old at the time. Whether it was assumed that children of that age would be travelling on the passport of one of their parents, or whether it was because children of that age cannot commit a criminal defence, the reason for the omission is irrelevant. But since a passport was tendered on her behalf, I find that what had to be produced in her case was "a valid travel document" as well. In the light of all that, Mr. Dykes argued that the true question is not whether the Deputy Director of Immigration could reasonably have concluded that they had gained permission to land in Hong Kong on the basis of passports which had been unlawfully obtained, but whether he could reasonably have concluded that they had gained permission to land in Hong Kong on the basis of passports which were invalid.

28. I cannot accept this argument. The fact that the obligation is to produce a valid travel document does not mean that the production of such a document automatically entitles the person who produces it to permission to land in Hong Kong. If it was unlawfully obtained, and if permission to land in Hong Kong would have been refused if the facts relating to the circumstances in which it had been obtained had been known, permission to land in Hong Kong would have been obtained by deception, even if the document used to perpetrate that deception, though unlawfully obtained, was valid. I do not comment on Mr. Dykes' argument that it is wrong to assume that an unlawfully obtained passport is an invalid one. Where I disagree with him is his premise that if the passports were valid, permission to land in Hong Kong could not have been denied even if they were unlawfully obtained.

29. Mr. Dykes reminded me that it is an offence to use an unlawfully obtained travel document: section 42(2)(b). Since the contravention of section 42 is itself a ground for removal under section 19(1)(b)(iia), and since the Deputy Director of Immigration only relied on section 19(1)(b)(ii) as a ground for removal in the case of Kar Ling and Kar Man, the fact that the Deputy Director of Immigration had reasonable grounds for believing their passports to have been unlawfully obtained was irrelevant. I disagree. I see no reason why facts which may have triggered the power of removal under section 19(1)(b)(iia) could not also have triggered the power of removal under section 19(1)(b)(ii).

30. Since the unchallenged evidence is that permission to land in Hong Kong would have been denied if it had been known that the passports had been unlawfully obtained, it follows that the Deputy Director of Immigration was reasonably entitled to conclude that the permission granted to Kar Ling and Kar Man to land in Hong Kong was vitiated by the deception which had been practised on the immigration officer who admitted them. That permission was to be treated as never having been given, and the Deputy Director of Immigration was reasonably entitled to conclude that Kar Ling and Kar Man had therefore landed in Hong Kong without permission, and therefore unlawfully, so as to trigger his power to make removal orders against them under section 19(1)(b)(ii).

Conclusion

31. I have considerable sympathy for this family who face being split up as a result of the removal orders, and I have particular sympathy for Kar Ling and Kar Man who have lived in Hong Kong for most of their lives. But I have not been able to detect any legal flaws in the removal orders, and for the reasons I have given, this application for judicial review must be dismissed. At present, I see no reason why costs should not follow the event, and I make an order nisi that Madam Kong must pay to the Deputy Director of Immigration his costs of this application to be taxed if not agreed. However, I should record an undertaking given by Mr. Marshall on behalf of the Deputy Director of Immigration in the course of argument. Kar Ling and Kar Man will be regarded as having a right to abode in Hong Kong if the appeal to the Court of Final Appeal in the case of Chan Kam Nga v. The Director of Immigration [1998] HKLRD 752 is allowed. That appeal is due to be heard early in 1999, and the Deputy Director of Immigration has undertaken that he will not seek to execute any of the removal orders until the result of that appeal is known.