LAI YAU CHIK v. DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 2029/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 2029 OF 2001

(ON APPEAL FROM HCAL 288 OF 2001)

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J U D G M E N T

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Hon Woo JA (giving the judgment of the Court):

Facts

1. The Applicant was born in the Mainland on 10 June 1986. Her father is Mr Lai Kar Shing. He was born in Guangdong in 1954 and arrived irregularly in Hong Kong on 18 April 1979 by swimming across the border.

2. On 24 May 1979, Mr Lai made an application for registration at the Registration of Persons Office for an identity card. He was issued with a form known as R.O.P. 3b (Rev) ("the Form") which acknowledged the receipt of his application. A number "H01989" was entered on the Form against the printed words "Future I/C No.". The relevant parts of the Form read as follows:

"2. You are required to report immediately to the Immigration Branch Office (Clearances) in this building and obtain in the panel below a clearance endorsement. You are then required to report to the Immigration Department for investigation. An Identity Card will not be issued until you have obtained an endorsement from the Immigration Branch Office (Clearances) and a Hong Kong Entry Permit from the Director of Immigration.

ENDORSEMENT

Immigration Branch Office (Clearances)	Investigation Section, Immigration Department

3. ...

4. If you cannot obtain an endorsement from the Immigration Branch Office (Clearances) and a Hong Kong Entry Permit within the collectable period, you must return to this Branch Office within 5 days after the stated expiry date to have the period extended...."

3. On 26 May 1979, Mr Lai went to the Immigration Department Branch Office (Clearances) and obtained a clearance endorsement, which was reflected on the Form by a stamp bearing the date of 26 May 1979 in the left-hand column under ENDORSEMENT. This date of 26 May 1979 on which clearance was effected also appeared on some internal documents of the Immigration Department.

4. On 4 July 1979, by internal minutes the Immigration Department cleared Mr Lai for approval for permission to remain in Hong Kong.

5. On 9 July 1979, an Entry Permit ("the Entry Permit") was issued to Mr Lai which was stated to be "valid for presentation on or before 9 July 1979". On the Entry Permit, there appeared to be a stamp with the date 9 July 1979, which also bore a statement "permitted to remain until 8 October 1979".

6. In November 1979, Mr Lai collected his Hong Kong Identity Card No. XXXXXX from the Registration of Persons Office, pursuant to the instructions contained in the Form.

7. As said before, on 10 June 1986, the Applicant was born in the Mainland.

8. In or about May 1995, the Applicant made an application for a certificate of entitlement to the right of abode in the HKSAR. By a letter dated 11 March 2000, the Director of Immigration ("the Director") informed the Applicant that her application was refused. The reason given by the Director was as follows:

"... we are not satisfied that such supporting documents provided by you are sufficient to prove that, at the time of your birth, your father, Mr Lai Kar Shing, had ordinarily resided in Hong Kong for a continuous period of not less than seven years."

9. By a notice of appeal dated 19 March 2000, the Applicant appealed to the Immigration Tribunal against the decision of the Director on the ground that at the time of her birth, her father, ie, Mr Lai, had ordinarily resided in Hong Kong for a continuous period of seven years or more and that therefore, under Article 24 paragraph (2) sub-paragraph (3), she was a Hong Kong permanent resident having right of abode in the HKSAR.

10. The appeal came before the Immigration Tribunal on 9 November 2000 and was dismissed on 23 November 2000.

11. On 13 February 2001, the Applicant applied for leave to apply for judicial review of the decision of the Director and also of the decision of the Immigration Tribunal. Leave was granted by Cheung J (as he then was) on 22 February 2001.

12. The application for judicial review was heard before Yeung J on 12 June 2001 and was dismissed by him on 27 June 2001.

13. This is an appeal from Yeung J's judgment.

Background

14. When Mr Lai entered Hong Kong in April 1979, what is known as the "reached base" or "touch base" policy was in force in Hong Kong. That policy was discontinued by a public announcement on 23 October 1980. The matter was described in AG of Hong Kong v Ng Yuen Shiu [1982] 2 AC 629 at 633 as follows:

"The appeal arises out of the serious immigration problem which faced the government of Hong Kong in 1980. Immigrants from mainland China were pouring into the colony in increasing numbers. Some of the immigrants had permission to enter, but the majority did not. For some years up until October 23, 1980, the government of Hong Kong followed the 'reached base' policy, under which illegal immigrants from China were not repatriated if they managed to reach the urban areas without being arrested."

15. The termination of the "touch base" policy was referred to in Mak Yui Ming & Ors v Attorney General [1980] HKLR 900 (Full Bench) and [1981] HKLR 435 (CA) where the Court of Appeal said at p 436I-437B of the latter report:

"The history of the matter is as follows. The three appellants were in Canton on 23rd October 1980. On that day they heard a broadcast from a radio station in Hong Kong which was in the following terms:

'This important announcement is directed at all immigrants from China who entered Hong Kong illegally.

A new law has been passed which means all illegal immigrants from China who do not already have an identity card, or who have not applied for registration, must now do so-immediately.

This is your last chance. If you do not register for an identity card before midnight on Sunday, October 26 you are liable to be repatriated to China.

The place to register is the special registration centre in Victoria Barracks on Hong Kong Island. The entrance to the centre is in Cotton Tree Drive.

Special arrangements have been made to keep the centre open day and night until midnight on Sunday. If you are an illegal immigrant who does not have an identity card you must go to the centre and register immediately. And, you should take with you three recent passport photographs of yourself.

It is important that you realize this is your last chance. You have until midnight on Sunday. So register now.'"

Issues and grounds of appeal

16. The relevant parts of Article 24 of the Basic Law provides as follows:

"The permanent residents of the Hong Kong Special Administrative Region shall be:

(1) ...

(2) Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the Hong Kong Special Administrative Region;

(3) Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2); ..."

17. Paragraph (2)(c) of Schedule I to the current Immigration Ordinance, Cap 115 has the same effect by providing that a permanent resident of the HKSAR includes "a person of Chinese Nationality born outside Hong Kong before or after the establishment of the HKSAR to a parent who, at the time of birth of that person, was a Chinese citizen falling within category (a) or (b)." Category (b) covers "a Chinese citizen who has ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the HKSAR."

18. Whether the Applicant is a permanent resident of the HKSAR and therefore entitled to be issued with a certificate of entitlement to the right of abode in the HKSAR depends on whether at the time of her birth, her father Mr Lai had ordinarily resided in Hong Kong for a continuous period of not less than seven years.

19. Section 2(4) of the Immigration Ordinance 1971 ("the Ordinance") that was in force at the material time provided as follows:

"For the purposes of this Ordinance, a person shall not be treated as ordinarily resident in Hong Kong -

(a) during any period after the commencement of this Ordinance in which he remains in Hong Kong -

(i) without the authority of the Director, after landing unlawfully; ..."

20. In the light of the facts of this case, the issue that has to be decided is whether Mr Lai remained in Hong Kong with the authority of the Director from 26 May 1979 or only from 4 or 9 July 1979.

21. Two grounds of appeal are raised. The first ground challenges Yeung J's holding that the authority granted to the Applicant's father to remain in Hong Kong was only granted by the Director on 4 July 1979 and communicated to him on 9 July 1979. The second ground of appeal challenges the judge's holding that the ordinary residency of the Applicant's father did not commence on 26 May 1979 and only commenced at the earliest on 4 July 1979.

22. Put in the context of the facts of this case, the issue for the determination of this Court can be narrowed down to this: Was the clearance dated 26 May 1979 as endorsed on the Form, which was in fact made by a Senior Immigration Officer, an authority of the Director for Mr Lai to remain in Hong Kong as from that date?

The power of the court to review

23. Before we address the narrow issue, we must first deal with the submission of Mr Marshall SC, for the 1st Respondent, that the matter was a question of fact which had been decided by the Immigration Tribunal and that unless that decision was perverse, the court should not interfere with it by way of judicial review. He draws our attention to Lord Brightman's speech in Reg v Hillingdon London Borough Council, ex parte Puhlhofer [1986] 1 AC 484, at 518, as follows:

"Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."

24. This dictum was followed by Stock J, as he then was, in Aita Bahadur Limbu v Director of Immigration, HCAL 133/1999 (10 December 1999, unreported) and Santosh Thewe & Another v Director of Immigration [2000] 1 HKLRD 718. In Limbu, Stock J stated as follows:

"The applicant has no right in law to remain in Hong Kong as a resident and the decision is one within the discretion of the Director. He has a policy, however, whereby those who are truly dependants of family sponsors in Hong Kong may be permitted to remain. The legislature has entrusted to the Director a discretionary power to grant permission to reside to individuals who, in the first instance, have no right to reside here and that discretion is a very wide one. It must not be exercised in bad faith, or arbitrarily, or perversely and the policy which the Director has adopted is one which must not be exercised without considering the circumstances of each individual case. To that extent the courts will review the exercise of the discretion, but the courts are concerned with legality and not with merits. Where the determination of facts are left to the Director and the facts sweep across a range 'from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body save in a case where it is obvious that the public body are acting perversely': see Hillingdon London Borough Council ex-parte Puhlhofer [1986] 1 AC 484, 518."

25. While we agree with the authorities cited, it is necessary to see what exactly the findings of fact of the Tribunal were.

Determination of the issue

26. The findings of the Tribunal that are detrimental to the Applicant's case were based on two documents, namely Mr Lai's application for an entry permit to remain in Hong Kong dated 27 May 1979 and the Entry Permit issued on 9 July 1979. In respect of the application, the Tribunal said:

"In that document there appears (in English and Chinese) the following:-

'I further declare that I have never had or held and do not have or hold any form of travel document and do not have an identity card or other evidence that I am legally in Hong Kong.'

As Mr. LAI was not questioned about whether he read and understood that declaration, we do not draw any inference adverse to him about whether he then genuinely believed that he was legally in Hong Kong. The inference we do draw is that the Director of Immigration, by requiring that declaration to be made, must have designed the form for use by those who have no evidence that they are legally in Hong Kong. It is a form to be used by those to whom he has not yet given authority to remain. Requiring a person to make that declaration is conduct inconsistent with an existing grant of an authority to remain, express or implied."

27. As to the Entry Permit, the Tribunal found:

"It is, however, the first document issued by the Director of Immigration which expressly says that Mr. LAI is authorised to remain here. We therefore find that no express authority to remain was ever given to Mr. LAI before 9th July, 1979.

The Department's records, showing as they do, that from the time he approached the Registration of Persons Office on 24th May, 1979 until 4th July, 1979 his eligibility for authority to remain was being processed and investigated, do not enable us to infer that, during that time, he had implied authority to remain."

28. Mr Marshall asks us to note that the judge, perhaps in deference to counsel's arguments, went much further in fact finding than that which was strictly required of him. The judge found that he would have reached the same conclusion on the facts as the Tribunal. Mr Marshall submits that the value of the judge's conclusion is that it demonstrates that the factual conclusions of the Tribunal are compelling and inevitable. We agree. However, there is another finding of the Tribunal which needs to be scrutinised. The Tribunal said:

"After 'touching base' he [Mr. LAI] applied, on 24th May, 1979, at the Registration of Persons Department for a Hong Kong identity card. He was given a document which is the original of our photocopy Exhibit 21(b) [ie, the Form]. He said that possession of that document gave him immunity from arrest and return to the Mainland. He believed that that document showed the Director of Immigration's authority for him to remain in Hong Kong.

Madam HUI's testimony was concerned mainly with identifying and explaining the documentary exhibits. She did, however, agree that possession of the original of Exhibit 21(b) would have given Mr. LAI the immunity he claimed."

29. Mr McCoy SC, for the Applicant, argues in effect that the so-called immunity, created by the clearance of 26 May 1979, is tantamount to an implied authority of the Director for Mr Lai to remain in Hong Kong, as required by s 13 of the Ordinance, which provides:

"The Director may at any time authorize a person who landed in Hong Kong unlawfully to remain in Hong Kong, subject to such conditions of stay as he thinks fit, ..."

30. Before us, it does not seem to be disputed that as a legal proposition "authority" and "permission" can be implied from the circumstances. In Re Wong Shu-hung and Immigration Tribunal [1985] HKLR 463 at 466K to 467E, Mantell J said:

"One judicial definition of 'permit' includes the abstention from taking reasonable steps to prevent an act which it is within a man's power to prevent (per Atkin, L.J., in Berton v. Alliance Economic Investment Co. [1922] 1 KB 742). Certainly in that sense of 'suffering' the children to remain in Hong Kong the Director of Immigration had permitted their stay and they were still 'permitted' to be here at the date of the making of the removal orders. It takes no more than a moment's reflection to show that such an attribution of meaning will not do in the context of the Ordinance. An illegal immigrant is suffered to remain in Hong Kong for the purpose of examination under s. 4 and the scheme of the ordinance would be frustrated if that were to be equated with permission under s. 53A. And having regard to the use of the word 'authorise' in s. 13, I read the words 'had ... permission' as being equivalent to 'had been given permission' connoting to my mind something less passive than mere acquiescence in someone remaining with the territory. So in my judgment at the very least the Director of Immigration must evince an intention to permit an illegal immigrant to remain before it can be said that there is any ground for appeal within s. 53A(1)(b). Of course that might be done by express words: it might be done by the issue of an entry permit; or it might be implied from words or conduct falling short of an express permission. The question here is whether by allowing time to pass without making a removal order the Director of Immigration can be said to have evinced an intention to permit these children to remain. ... In those circumstances, it is quite impossible to say that by reason of the passage of time the Director of Immigration evinced an intention to permit Wong Kwok Keung and Wong Kwok Tai to remain in Hong Kong."

31. It will be noted that "authority", "permission" and "sufferance" have different meanings. The passage cited above in Re Wong Shu-hung shows clearly that there is a distinction between the three terms, authority, permission and sufferance. We consider that such distinction should be made in relation to the understanding of the scheme of the Ordinance. Authority is referred to in s 2(4) and s 13 of the Ordinance. Both of these provisions refer to unlawful landing that can be regularised only by the Director authorising "a person who landed in Hong Kong unlawfully to remain in Hong Kong" under s 13. Indeed, as Mr Marshall has pointed out, the two provisions are married together. On the other hand, "permission" is used in a number of provisions in the Ordinance. For example, in s 7, it is provided that a person may not land in Hong Kong without the permission of an immigration officer unless he satisfies certain conditions set out therein. S 4 provides that an immigration officer may examine any person on his arrival in Hong Kong and may require that person to submit to further examination to decide if that person is committing or has committed an offence under s 38(1)(b), ie, if he has landed in Hong Kong unlawfully. S 11(1) gives power to an immigration officer to give a person permission to land in Hong Kong or refuse him such permission.

32. While Mr McCoy accepts that the word "authority" was used in the Ordinance to connote what was required to regularise the position of illegal entrants whereas "permission" was used in conjunction with legal entrants, Mr Marshall has, we consider correctly, demonstrated to us that the scheme of the Ordinance was such that for illegal entrants, the "authority" under s 13 required for them to remain in Hong Kong must be a conscious determination on the part of the Director, which would not be made until after thorough investigation and proper consideration. Further, Mr Marshall submits that although an illegal entrant might stay in Hong Kong while his case was being investigated and processed, before the determination whether an authority under s 13 was made, his position was similar to that when he was subject to examination or further examination by the immigration officer under s 4 of the Ordinance. The illegal entrant could not be treated as having the authority of the Director under s 13 to remain in Hong Kong. We consider that this is a correct view of the scheme of the Ordinance.

33. Mr McCoy further argues that even if Mr Lai was in Hong Kong pending investigation or processing on 26 May 1979 he was still in Hong Kong with the authority of the Director to remain in Hong Kong for the purpose of investigation and processing. It is contended that since Mr Lai was free to move about in Hong Kong, he had the authority of the Director to remain in Hong Kong since 26 May 1979, because the authority under s 13 could have been on condition, on contingency and even revocable. Reliance is placed on R v Secretary of State for Home Affairs, ex parte Soblen [1963] 1 QB 829 at 842, where Lord Denning MR stated:

"It seems to me that in essence this question is one of fact. Mr. Elwyn Jones is quite right in saying that leave to land can in some circumstances be implied, but I must say on the facts of this case I see no possible ground for any implication that the applicant was ever given leave to land in the proper sense of the word. To 'land' does not mean physically to land a body on the land of this country. To 'land' in these articles means to land as a free man, free to move about in this country, either subject to conditions or not. The applicant was certainly not given leave to land in that sense at all."

34. However, it our view, the Soblen case relating to "leave to land" does not assist the Applicant. First, the word "leave" is quite different from the word "authority". Secondly, the present case relates to authority "to remain in Hong Kong" and not to land here. Mr Marshall draws our attention to Mak Yui Ming where the Court of Appeal held that an application for a future identity card, the same as the Form (but without the endorsement that avails in the instant case), did not amount to a permission to remain in Hong Kong. In Huang Bing Zhi v Immigration Tribunal and Director of Immigration, HCAL 1718/2000 (Yeung J, 18 January 2001, unreported) as affirmed by the Court of Appeal in CACV 357/2001 (23 January 2002, unreported), it was held that a white card issued by the Immigration Department containing a date of appointment to attend the Immigration Office by an applicant for an extension of stay did not amount to a permission to remain in Hong Kong up to the appointment date.

35. Each case depends on its own facts. In the present case, before 4 July 1979, there is no evidence to show that the Director or any immigration officer had expressly allowed Mr Lai to remain in Hong Kong. There was in force the touch base policy, but the Director and his Department would have to process each application for lawful stay in Hong Kong from Mainlanders. Despite the touch base policy, the Director must satisfy himself that the applicant for lawful stay should be allowed to remain in Hong Kong. Mr McCoy relies heavily on the evidence of Mrs Hui Chau Suoo Man, who gave evidence for the Director before the Immigration Tribunal, that the clearance on 26 May 1979 was the end of the investigation on Mr Lai. Nonetheless, while the status of Mr Lai being from the Mainland had been cleared on 26 May 1979, and even if the investigation on him had been concluded also on that date by immigration officers, the Director must still exercise his discretion or make a decision on whether or not to allow him to remain in Hong Kong. The Director must have time to make his decision, to examine the clearance by his officers and the result of their investigation and take into account all relevant matters for his decision or the exercise of his discretion.

36. Though it is true that Mrs Hui agreed with counsel for the Applicant that after 26 May 1979 when Mr Lai was in possession of the Form that if he went to the New Territories, he would not be arrested by the police or sent back to China, she clearly denied the proposition put by counsel that the Form and the Entry Permit were actually performing the same functions as far as permission to remain was concerned. The evidence of Mrs Hui that Mr Lai would not be arrested or repatriated as from 26 May 1979 could, in our view, at best be said to be a sufferance for Mr Lai to remain in Hong Kong until the due process of deciding whether he should be granted authority to remain in Hong Kong was finalised. That, in our view, was the effect of the Form with the clearance endorsement, which was similar to the position of an entrant who was subject to further examination under s 4 of the Ordinance. On the other hand, the Entry Permit, that notionally gave permission to Mr Lai to enter Hong Kong on 9 July 1979 and permitted him to remain until 8 October 1979, was the first time ever that authority was granted to Mr Lai to remain in Hong Kong. This is the same as the reasoning in Re Wong Shu-hung that the passage of time for the due processing of an application does not amount to implied permission. The period between 26 May 1979 when the Form was endorsed and 4 July 1979 when it was decided that authority to remain in Hong Kong would be granted to Mr Lai could be said to be a mere sufferance of Mr Lai's presence in Hong Kong. That means his presence in Hong Kong was tolerated pending the finalisation of the processing of his application. This is far from being the authority of the Director to remain in Hong Kong as required by ss 2(4) and 13 of the Ordinance for Mr Lai to commence his ordinary residency in Hong Kong.

Conclusion

37. In the circumstances, the appeal must be dismissed. We also make an order nisi that the 1st Respondent do have the costs of this appeal and that the Applicant's cost be taxed in accordance with the Legal Aid Regulations.