CHEUNG CHEONG v. ATTORNEY GENERAL AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. The applicant seeks an order of certiorari quashing both a Removal Order made against him by the Deputy Director of Immigration under s.19(1)(b)(ii) of the Immigration Ordinance ("the Ordinance") on the 19th March 1986 and a decision of the Immigration Tribunal under s.53D(1) of the Ordinance made on the 7th of April 1986. He asks further for an order of mandamus requiring the Tribunal to hear his appeal according to law and for a declaration that he is a Chinese resident within the meaning of Section 2 of the Immigration Ordinance and is therefore a person with a right to remain in Hong Kong.

2. The applicant came to the notice of the Director of Immigration when he applied on 7th August 1984 for an identity card to replace his Hong Kong identity card which he said he had lost. He was then, on the 19th of September 1984, apprehended by the police after having failed to produce his identity card when stopped at a routine road block. This incident was not in any way connected with his application to the Director. He made a cautioned statement to PCA5913 on the evening of his arrest in which, after saying that he had come to Hong Kong in December of 1965 illegally, he detailed the places where he had resided and the work which he had done from that time until his apprehension. He made no mention of ever having left Hong Kong during that period.

3. On 3rd February of 1986, the applicant was, pursuant to his application for a replacement card, interviewed by an Assistant Immigration Officer, Mr Chan Sui-keung. In his statement to Mr Chan he said that, after coming illegally to Hong Kong in 1965, he had obtained an identity card and had, after 2 to 3 years, around 1968, gone on a fishing expedition with friends. He said that, having entered Chinese territorial waters, they were all arrested, that the boat was confiscated and that he was sentenced to five years imprisonment. He said that, on discharge from prison, five years later, he returned to his native place to live with his wife and children and that : "At the time, my Hong Kong identity card was forfeited by the Chinese Officials. Since the situation of the border was tense I dared not return to Hong Kong immediately. " He went on to say that he returned to Hong Kong in "1984, since the Sino-British relationship improved, the border was more open" and that when he "first told the officers at the identity card issue office that I had lost my identity card, I missed out part of the details". He explained, in his second statement to which I will turn 'next, that the details m ssed out were as to his imprisonment and his stay thereafter in China.

4. On the same day he made a further statement to another Assistant Immigration Officer, a Miss Chow Ho-ming, in which he repeated the details of his original entry into Hong Kong and his arrest and imprisonment in China. When describing what had occurred on his release from prison he said, "I could not get my identity card back after I was released from prison. At that time, it was announced that if those who intended to sneak into Hong Kong from China were caught by the Chinese side, they would be put into prison, therefore, I did not dare to sneak into Hong Kong all along. "

5. He also stated, referring to his application to the Director for a replacement card in 1984: "After I had arrived here, I went to the Immigration Department to `report the loss of my identity card but I never dared to mention that I had served custodial sentence in China because I was afraid that I would be repatriated back to China once I mentioned that. "

6. On the 21st March 1986, the Director of Immigration pursuant to Section 19(1)(b)(ii) of the Immigration Ordinance, served a "Notice of Removal Order and Right of Appeal" form on the applicant stating that the Deputy Director of Immigration had, on the 19th of March 1986, made a Removal order against him on the ground that he had landed in Hong Kong unlawfully. The form included an "Explanatory Statement" which said: "Mr Cheung first entered Hong Kong illegally from China on 3rd October 1965 and was issued with a Hong Kong identity card on the 17th March 1966.

7. On 7th August 1984 Mr Cheung applied to the Registration of Persons Office for a replacement of his Hong Kong identity card which he claimed to have been lost. During enquiries, Mr Cheung admitted that he had departed Hong Kong illegally for China by fishing junk in about 1969. He stated that he had been imprisoned in China for five years in about 1969. He further admitted that after he was discharged from prison, he had stayed with his family in China until 1984 when he returned to Hong Kong illegally. He added that his Hong Kong identity card had been impounded by the Chinese Authorities.

8. Mr Cheung's wife, son, 2 daughters, widowed mother and sister are in China, he has no relatives in Hong Kong. "

9. The applicant appealed on 21st March 1986 to the Immigration Tribunal under Section 53A of the Ordinance which requiries that the appellant in his Notice of Appeal set out "his grounds of appeal and the facts on which he relies". The ground which he set out in his Notice of Appeal, which was signed by his solicitors, was that he "has the right to land in Hong Kong under Section 8(1) of the Ordinance in that he is a Chinese. Resident within the meaning of Section 2(1) of the Ordinance and that, Section 20(6) therefore has no application in the present case".

10. The facts which he relied upon were stated as follows:

"(1)      Mr Cheung came to Hong Kong in 1965 and was issued with a Hong Kong identity card number XXXXXXX in March 1966.

(2)     he has been in Hong Kong continuously for a period of not less than 7 years prior to his detention by the Immigration Department. Mr Cheung did make a statement to the Immigration Department to the effect that he had been absent from Hong Kong and had returned to Hong Kong illegally in 1984, however, that statement was made as a result of threats and inducements made by Immigration Officers - especially Mr Cheung was told that if he were to make such a statement, he would be given assistance by the Immigration Officers in respect of his application for a new identity card. "

11. Although the applicant pleaded that the statements to the Immigration Officers were made as a result of threats and inducement it was not pleaded that they were untrue. Mr Kenneth Chan, who appears for the applicant before this Court, argued the matter before the Immigration Tribunal upon the basis of the facts set out in the "Explanatory Statement" which summarized those statements. Mr Strawbridge who appeared before me for the 1st Respondent stated that, when the hearing commenced, the Tribunal had in front of it the Notice of Removal Order and the Notice of Appeal against that order. He said that Mr Chan submitted that the applicant had been an ordinary resident in Hong Kong from March 1966, when he was issued an identity card, which at that time protected him from removal from Hong Kong, until December 1968, when he left on the ill-fated fishing trip, (a period of 2 years and 9 months. ) and then from December 1968 when he was arrested until the expiration of his sentence of five years imprisonment (a period of five years). The argument of the applicant was that this total period of 7 years and 9 months was a continuous period of ordinary residence in Hong Kong.

12. The applicant neither gave evidence nor called or tendered evidence to the Tribunal.

13. Mr Strawbridge informed me that Mr Lo, who appeared for the Director of Immigration, when he came to present his case tendered the two statements given to Immigration Officers and that, while it is not accepted that the facts in the statements are true, the matter was argued before the Tribunal and is argued before this Court upon the basis of those facts. The cautioned statement made to PCA5913 was not before the Tribunal.

As is its custom the Tribunal did not set out the facts which it had found.

14. I am satisfied, and counsel concur, that I can properly regard the Tribunal's record of the proceedings, upon which I must decide the application for certiorari, as containing not only the decision set out above and the "Notice of Removal Order" but also the two statements of the applicant to the Immigration Officers.

15. I am satisfied that I cannot, when considering the application for certiorari, make use of the material contained in the affidavits, Which were filed by each side in the application to this court, which include the statement to PCA5913.

16. Mr Chan argued that a period of ordinary residence is not interrupted by a period of imprisonment in a country other than that in which the imprisoned person has, up to that time, been an ordinary resident. He referred in this regard to R. v. Barnet L.B.C. Ex p. Shah (1983) 2 AC 309 where Lord Scarman said, at 343:

"Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that 'ordinarily resident' refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration. "

and, at 344 :

"There are two, and no more than two, respects in which the mind of the "propositus" is important in determining ordinary residence. The residence must be voluntarily adopted. Enforced presence by reason of kidnapping or imprisonment, or a Robinson Crusoe existence on a desert island with no opportunity of escape, may be so overwhelming a factor as to negative the will to be where one is. "

He argued, given the facts, that the period of imprisonment must be taken as a period of ordinary residence in Hong Kong. Mr Strawbridge argued that even if the applicant was imprisoned this Court could not be satisfied that the Tribunal was wrong in law.

17. He did not seek to argue that imprisonment interrupted a period of ordinary residence where the imprisoned person upon release returned to his country of ordinary residence. He submitted, however, that it was a matter of fact and that an enforced resident was not automatically and irrevocably outside the category of ordinary resident. In this regard he referred to In Re MacKenzie (1941) 1 Ch. 69 where an Australian woman of unsound mind, who was kept in England under constaint, was held, nonetheless, to have been ordinarily resident in the United Kingdom. Mr Strawbridge also relied upon Shah's case citing the decision of Lord Scarman, at 344:

"The legal advantage of adopting the natural and ordinary meaning, as accepted by the House of Lords in 1928 and recognised by Lord Denning M.R. in this case, is that it results in the proof of ordinary residence, which is ultimately a question of fact, depending more upon the evidence of matters susceptible of objective proof than upon evidence as to state of mind. "

18. It was argued that, in the present case when one looked at the overall factual position, and in particular at the period of ten years residence in China after release from prison, there was evidence upon which the Tribunal could come to the conclusion that the intention to reside in Hong Kong had been abandoned sometime prior to the end of the period of imprisonment and that a seven year period of ordinary residence had not run.

19. I found no assistance in MacKenzie's case which was, as Morton J. points out at 76, decided very much on its own facts. I would have no hesitation in holding that the only conclusion that could properly be drawn from the facts before the Tribunal was that the applicant was ordinarily resident in Hong Kong for a period of not less than 7 years.

20. The applications for certiorari and mandamus are granted. The decision of the Tribunal is quashed and the matter is remitted to the Tribunal which is directed to reconsider it and reach a decision in accordance with the judgment of this Court. There was no argument addressed to this Court in support of the application to quash the Removal Order and that application is refused.

21. I turn now to consider the application for a declaration. S. 53D of the Ordinance provides:

22. In Punton v. Ministry of Pensions and National Insurance (1964) 1 All E.R. 448, the plaintiffs, the national insurance commissioner having held that they were disqualified from unemployment benefit for the period of a strike by other workers, sought a declaration that he was wrong in law. The judge held that he had no jurisdiction and in any event refused the relief in the exercise of his discretion. The Court of Appeal upheld the judge saying that there was no jurisdiction to make, by way of the exercise of the supervisory power of the High Court, a declaration which could not alter the commissioner's award, but would only result in two conflicting decisions subsisting, of which that in the lower court would be the effective and prevailing one.

23. Sellers L.J., when dealing with that situation, said at 455:-

"Apart from certiorari there is no machinery for getting rid of the decision of the National Insurance Commissioner and, what is more important, no way of substituting an effective award on which the claims could be paid. It would be out of harmony with all authority to have two contrary decisions between the same parties on the same issues obtained by different procedures, as it were on parallel courses which never met or could meet, and where the effective decision would remain with the inferior tribunal and not that of the High Court. I conceive that to be the case here, and it seems to me to lead to a conclusion against the jurisdiction of the High Court in this particular matter. The tribunal is wholly independent and the commissioner or a deputy commissioner has to be a barrister or advocate of not less than ten years' standing and an appeal may be heard if thought desirable by more than one member of the tribunal and we were told that the tribunal does sometimes sit in banc. It is a statutory judicial tribunal to deal with a special subject-matter where the decisions will frequently be on mixed law and fact and where finality and the minimum of delay are sought to be achieved. There is much to lead to the implication that the jurisdiction of the courts was intended to be excluded and very little to be set against such a conclusion. If the court has jurisdiction as claimed, counsel for the plaintiffs conceded that an insurance officer as well as an insured person could proceed by summons for a declaration in respect of any decision with which he was dissatisfied. This would be opening up a new field of litigation before the court, which in my view seems quite contrary to the intention of the statute and in no way envisaged by it. "

24. Bearing in mind that the decision of the Immigration Tribunal is, by virtue of s.53D, final it would, I am satisfied, be equally out of harmony with authority for this Court to embark upon a hearing on the facts which might lead to a decision contrary to that to which the Tribunal has, by this Court, been directed to come.

25. I refuse to embark upon the application for declaration. It stands dismissed.