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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D E T E R M I N A T I O N

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Chief Justice Li (delivering the Determination of the Court):

1. In respect of his claim under "the Concession issue", it was contended on behalf of the 8th representative applicant, Mr Lau Pong, that he had made an application for legal aid while he was in Hong Kong during the Concession period; that the Legal Aid Department had written within that period to the Immigration Department notifying the latter of such application; and that Mr Lau therefore fell within the policy decision. The Director of Immigration on the other hand said that the notification was only received by the Immigration Department after the Concession period. There being no specific finding by the first instance judge on this matter, it appeared to the Court that Mr Lau's application for legal aid had not been notified by the Director of Legal Aid to the Director of Immigration within the Concession period. On that basis, the majority of the Court took the view that Mr Lau's appeal had to fail.

2. However, after the handing down of the judgment but prior to the drawing up of the Court's order, Solicitors for Mr Lau wrote to the Court contending that applying the criteria set out in the judgment, Mr Lau should have succeeded since there was no challenge by the Director of Immigration on the documents produced by him relating to his application for legal aid and since there was sufficient evidence already before the Court to enable it to rule in his favour. We directed the parties to send in their written submissions in relation to this matter.

3. The Director of Immigration has now indicated to the Court that he accepts that Mr Lau's application for legal aid had been received by the Immigration Department within the Concession period. Counsel for the Director of Immigration, in a written submission to the Court, conceded that Mr Lau's appeal should be allowed, that the removal order against him should be quashed and that a declaration should be made that he falls within the policy decision.

4. In these circumstances, the Court unanimously allows Mr Lau's appeal and makes the order and declaration sought. As before, the Court makes no order as to costs save for an order for legal aid taxation in respect of Mr Lau's own costs.