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.  Pursuant to the remitter ordered by this Court in its judgment of 30 July 2002 (“the July 2002 judgment”), Hartmann J dealt with certain factual issues in relation to 19 of the applicants in this appeal who claimed a right of abode in Hong Kong on the ground that they qualified under the Concession Policy announced by the Government on 26 June 1999 (“the Concession Policy”). On 23 August 2006, the Judge submitted a report of his findings on these factual issues (“the Third Report”) so that the appeals of these 19 applicants can be disposed of by this Court.

2.  As a result of the Judge’s findings, 10 of these 19 applicants had their appeals disposed of by consent orders (four agreed to have their appeals dismissed and six agreed to have their appeals allowed). This judgment deals with the remaining nine applicants.

Representation of the applicants

3.  At the hearing before this Court,

(1) seven were represented by Messrs Barnes & Daly. Three of them (Applicants 2799, 3525 and 4537) made submissions through counsel while the other four (Applicants 1590, 1940, 4055 and 4432) filed and made submissions on their own; and

(2) two were not legally represented. Applicant 2233 made submissions on her own and Applicant 2785 (who did not attend before the judge throughout the hearing and was content to have her case dealt with on the basis of her affirmations and other documents) did not file any written submission and was absent.

Factual issues before the Judge

4.  These applicants, like many others, alleged that in different ways, they had made a claim for right of abode to the relevant authorities during the period covered by the Concession Policy and are thus entitled to benefit under it. Two main factual issues fell to be decided by the Judge in respect of each of them, namely,

(1)     whether the applicant had made any claim for right of abode during the concession period; and

(2)     whether the Director of Immigration (“the Director”) has any record of such claim or claims.

5.  The Judge, having heard all the evidence and considered all the documents and submissions, found against each of these applicants on both issues.

6.  They now seek to challenge the Judge’s findings. In respect of the three applicants on whose behalf their counsel, Mr Kwok Sui Hay and Mr Sean Fang, had made submissions, the challenge is focused on whether the Judge was correct in finding that the letter sent or oral statements made by them did not constitute a claim for right of abode. In respect of the other applicants who had made their own submissions, it is argued generally that the Judge was wrong to reject their evidence which was to the effect that they had made verbal claims for right of abode on various occasions during the concession period.

What constitutes a claim

7.  It is common ground that the test of what constitutes a claim is that set out in paragraphs 231 and 232 of our judgment of 10 January 2002 (“the January 2002 judgment”). What is in dispute between the parties is the Judge’s application of this test to the respective cases of the applicants. For present purposes, it is worth repeating what we said in the January 2002 judgment, the relevant paragraphs of which are as follows:

“231.    In these circumstances, we take the view that the rational approach should be to judge whether a claim was in substance being made. So long as the message was clear and could reasonably be understood to constitute a request to be granted the right of abode in Hong Kong, this was enough to constitute a claim. It would be wrong in these circumstances to construe the letters written by lay people strictly as if they were formal legal documents.

232.     In our view, a letter should be reasonably understood as making in substance a claim to the right of abode if it clearly (1) identifies a person as a Hong Kong permanent resident and another person as his child; (2) provides some details such as his or her date or place of birth; and (3) asks for the child to come to Hong Kong to either settle or to enjoy his right of abode. It is not necessary to use words like ‘claim’, ‘demand’, ‘assert’ or ‘right’. Reference to the Basic Law or its specific provisions is unnecessary, although such a reference is indicative of a claim of right. Even stronger are claims where the letters are accompanied by supporting documents.”

8.  These remarks apply to claims both made orally and in writing. Each alleged claim must be construed in its context which includes the circumstances in which it was made and any documents which accompanied such a claim. In this connection, as we said in paragraph 230 of the same judgment, one must also bear in mind the level of education of the applicants, their anxiety, frustration or even confusion arising from an imperfect understanding of the various court decisions prevailing at the relevant time and allowance must be given to the wording used by them provided that the message is clear and unambiguous. Each applicant’s case is to be decided in the light of its own facts and circumstances. A comparison with a previous successful or unsuccessful case must be viewed with caution; such an exercise is often not very helpful.

Applicant 2799 – Madam O Ngan Mui

9.  This applicant relies on a letter which she alleged had been written and sent by her on 26 October 1998 to the Director. She did not keep a copy of it and the Director denied having received it, describing it as a “phantom letter” which must be viewed with circumspection. According to her recollection, it was to the following effect:

“My mother suffers from heart disease. I want to stay in Hong Kong to take care of my mother. I want to settle here and obtain an ID card.”    

10.  The Judge was satisfied that a letter in those terms was written, posted and on probabilities, received by the Director. However, he took the view that it was “no more than a plea to be allowed to settle in Hong Kong on humanitarian grounds” and that “no matter how generously [he approaches] what was written, [he is] unable to come to the conclusion that, on any ordinary reading, what is to be drawn from the underlying meaning of the words is consistent with a claim”.

11.  Counsel for the applicant submits that the Judge had misdirected himself in construing the words in the way he did. It is argued that the applicant’s request to settle in Hong Kong and to get an ID card was unambiguous and that applying the test in the January 2002 judgment, this was sufficient to amount to a claim. It is further submitted that although there was no mention about the basis of her request, this was not a necessary requirement. Counsel accepts that the letter might also be understood as a request to be allowed to remain in Hong Kong on humanitarian grounds, but there is, he argues, no reason why it could not be regarded as both a humanitarian plea and a claim for right of abode. He compares this case with the case of Miss Li Shuk Fan (FACV No 2 of 2001) and that of Applicant 2113 in which it was held that both of them had made a claim for right of abode.

12.  Mr Joseph Fok SC leading Mr Daniel Wan for the Director submits that the letter did not contain all the information required and that the applicant’s case is clearly distinguishable from the two cases referred to.

13.  We agree with the construction given by the Judge to the words in question. They start with a reference to the applicant’s sick mother and a desire to stay in order to take care of the old lady. There is however no mention of her mother’s status in Hong Kong. The request which follows simply asks to settle in Hong Kong and to obtain an ID card. No other reason is given. When the whole letter is viewed objectively, it is difficult to link such a request with any entitlement to the right of abode, in fact with having any right at all. Nor can it reasonably be understood in such a way. On the contrary, the letter gives the impression that the desire to remain in Hong Kong was prompted by the condition of the mother and the author’s intention to look after her. The case of Miss Li Shuk Fan is totally different from this case – the letter written by Miss Li’s father was clear and unambiguous with references to his status as a permanent resident in Hong Kong, his relationship with her and her repeated unsuccessful applications in the Mainland for a one-way permit to settle in Hong Kong. Similarly the case of Applicant 2113 was considered by the Judge in the light of the circumstances pertaining to that case.

14.  We are thus unable to accept Mr Kwok’s submissions. Madam O Ngan Mui’s appeal must fail.

Applicant 3525 – Ms Tsui Siu Fung

15.  Ms Tsui alleges that on 6 March 1998 when she was prosecuted and brought before a magistrate for having breached her condition of stay, she had a conversation in court with the magistrate after he had sentenced her (to a fine of $1,000) and that what she said during this exchange amounted to a claim for right of abode.

16.  It appears from the transcript of the proceedings that she told the magistrate that: her father had been in Hong Kong for over 10 years but her applications for coming to Hong Kong (which in the context must have been a reference to applications made in the Mainland) had not been permitted; she was told by the Mainland authorities that this was because her mother had not lived in Hong Kong for seven years; she had worked in Guangzhou but had to resign to come to Hong Kong; she was single; and her father was 50 years of age and working as a warehouse worker. Upon hearing that, the magistrate suggested that her father should return to the Mainland with her and help her make an application there.

17.  It is submitted on behalf of Ms Tsui that what she said to the magistrate constituted a claim for right of abode and would have been so constituted had it been made to an immigration officer and that this amounted to a claim to the Immigration Department since its officer was present before the magistrate.

18.  The Judge rejected this submission holding that what was said must be considered in its context and that in the context of this case, what she was attempting to do was merely to convey to the magistrate the pity of her situation and that the whole exchange did not amount to a claim.

19.  We are of the view that the Judge was entitled to come to the conclusion that what was said during the exchange after sentence did not constitute a claim for right of abode. The applicant was complaining about her unsuccessful applications to come to Hong Kong. The magistrate, out of sympathy, made enquiry about her situation. It was in response to the magistrate’s questions that she informed him of the difficulty she had encountered in making application in the Mainland and the hardship facing her and her father. Nothing which Ms Tsui said could reasonably be understood to be asserting, either directly or indirectly, a right of abode or even asking to settle in Hong Kong. This is sufficient to dispose of Ms Tsui’s appeal.

Applicant 4537 – Mr Chung Wai Kin

20.  Mr Chung’s case is this. On 28 January 1998, having overstayed for 3 months, he and his father were returning to the Mainland to celebrate the Chinese New Year. He was stopped at Lo Wu Checkpoint and prevented from leaving. On 3 February, he went with his father to the Immigration Department. He alleges that both at the counter as well as later in an interview with an officer, he submitted certain papers which included his father’s ID card. He also asked the officers whether he could remain in Hong Kong in order to look after his father. The Director denied that these questions had been put to the officers. But the Judge was satisfied that they had been asked by the applicant.

21.  However, the Judge held that when the questions were considered objectively, they amounted to no more than making an enquiry as to the possibility of remaining in Hong Kong on compassionate grounds, that is, to look after an ailing and aged parent. While acknowledging that this finding was harsh to Mr Chung, the Judge said he could not see how the words used could be linked, directly or by inference, to the fact that his father was a Hong Kong permanent resident which gave him the alleged right of abode.

22.  Mr Kwok submits that the Judge was wrong to have so construed the applicant’s questions. He argues that depending on the context, a claim for right of abode can be made in the form of a question. It is submitted that the Judge should have taken into account the fact that many of the applicants are not well educated and might have used words couched “in polite or even apologetic terms”. Counsel draws comparison with a number of other cases (Applicants 307, 1970, 2113 and 3126) in which the applicants concerned were said to have used similar wording and succeeded.

23.  On the other hand, Mr Fok submits that the Judge was right to have come to the conclusion that what Mr Chung said constituted no more than an enquiry. It is argued that what was said must be construed in the context of the case and that when so construed, it was clear that he was not making any claim. Counsel submits that the other cases relied on by the applicant are distinguishable.

24.  We agree with the Judge’s finding that Mr Chung did not make any claim for right of abode. He did not make any attempt to do so during his period of overstay. He was stopped on his return to the Mainland and had apparently admitted that he wanted to return to the Mainland. When he was further interviewed, the reason he offered for having overstayed was that he had to care for his father, not because he had a right of abode. At the time he produced his father’s ID card to the immigration officer, he could easily have asked to remain in Hong Kong on the basis that his father was a permanent resident. However, he did not do so. He only asked to remain to look after his father. All this is not consistent with an assertion or a claim for any right. The questions he asked were clear enough but they did not convey the necessary message. The cases relied on by counsel in comparison do not assist the applicant. The statements made or questions asked in those cases were rightly held in their respective contexts to have amounted to a claim for right of abode. Mr Chung’s case must also be dismissed.

Applicants 1590, 1940, 2233, 4055 and 4432

25.  Each of these five applicants alleges that he or she had on different occasions made a claim for right of abode during the concession period. Very briefly, their main allegations are these:

(1) Applicant 1590 – Madam Kwok Chung Lam.

On 17 October 1997, she went with her brother to the Immigration Department for two purposes: to surrender for having overstayed and to register her right of abode.

(2) Applicant 1940 – Mr Lau Man Lung.

On 14 December 1998, after he was arrested by the police on a building site and then referred to the Immigration Department, he made a claim during an interview with an immigration officer;

(3) Applicant 2233 – Madam Li Lu Ye.

On 1 September 1997, she made a claim for right of abode to an immigration officer after she was released from prison having completed her sentence for various immigration offences, and on 8 July 1998, after she had returned to Hong Kong, she made various claims to several officers.

(4) Applicant 4055 – Mr Yang Ren Zhong.

On 21 July 1997, after he was arrested by the police for overstaying in Hong Kong and detained in Victoria Remand Centre, his father came to bring his passport to him. On that occasion, his father made a claim for right of abode on his behalf and in his presence.

(5) Applicant 4432 - Madam Chan Shui Chun.

On 22 September 1998, the day on which her two-way permit was due to expire, her father accompanied her to apply for an extension and there they made a claim for right of abode.

26.  Having considered and analyzed their evidence carefully, the Judge rejected their respective versions of events, having formed the opinion that the evidence was either invented (Applicants 1590, 2233 and 4432) or not credible (Applicant 1940) or that the applicant concerned had little regard for the truth (Applicant 4055) or was prepared to make up almost any assertion in order to advance his or her case (Applicants 1940 and 4055).

27.  In their written and oral submissions, these applicants complain that the Judge should not have disbelieved their evidence. They maintain that they are telling the truth and purport to offer explanations for the shortcomings in their evidence.

28.  The Judge had the advantage of hearing and seeing these applicants and their witnesses give evidence and answer questions under cross-examination. He is in the best position to assess their credibility and his findings were made upon such an assessment. Unless we are satisfied that he was plainly wrong in his conclusions or had misdirected himself as to the effect of the evidence, we would not be justified in interfering with his findings. See Ng Siu Tung and others v. Director of Immigration (No. 4) (2006) 9 HKCFAR 63 at paragraph 25. In the present case, the Judge had carefully and thoroughly considered the evidence adduced by and on behalf of these applicants and gave convincing reasons for rejecting their evidence.

29.  Having considered the evidence and the submissions carefully, we are not satisfied that the Judge was plainly wrong or that he had misdirected himself in reaching his conclusions. The appeals in these cases must be dismissed.

Applicant 2785 – Madam Ngan Pui Yuk

30.  Madam Ngan did not attend the hearing before the Judge or before this Court, notwithstanding that she had been notified of the dates of hearing. She had written to the Judge saying that she was content to stand by her affirmations and documents produced to the Judge. She has not filed any written submission for the hearing before this Court. Her case was that on 15 September 1997, she surrendered herself to the Immigration Department having overstayed in Hong Kong and on that occasion, she made a claim for right of abode. The judge was satisfied that what she said did not amount to a claim. Having considered the affirmations and documents filed on behalf of Madam Ngan, we are satisfied that the Judge was entitled to come to that conclusion. Her appeal also fails.

Documents immediately discarded

31.  During the course of the hearing, Mr Fok drew our attention to the Judge’s ruling in relation to Applicant 4387 (Mr Chow Wing Wai). The Judge found that that applicant’s letter supporting a claim for right of abode was left with the immigration officer when the other documents were returned to him and that the officer in good faith discarded it since there was no reason to retain it. (See Third Report at para. 632.) The Judge held that although the letter was discarded, it nevertheless satisfied the requirement of a record. (See para. 636.)

32.  In relation to that applicant, the parties are agreed that a consent order should be made allowing his appeal. Without disturbing the agreed disposition of his case, Mr Fok submits that the Judge’s conclusion that the requirement for a record was satisfied was incorrect. Mr Fok makes the same submission in relation to Applicant 923 (Mr Chuang Shu Lau) and 2641 (Madam Ng Kwan Hung) who are husband and wife where the parties are agreed that their appeals should be dismissed. (Their applications for one-way permit have been approved.) In these two cases, the Judge held that the relevant documents alleged to have been submitted by them were an invention. (See Third Report at para. 837.) Nevertheless, Mr Fok submits that even if the documents existed but were immediately destroyed as being redundant, the record requirement was not satisfied and in this connection, he seeks to challenge the Judge’s conclusion in the case of Applicant 4387 referred to above. Mr Fok says that our views on the correctness of the Judge’s conclusion would provide helpful guidance in future cases.

33.  It is inappropriate to express any view on this matter. In relation to Applicant 4387, the parties are agreed that his appeal should be allowed. In relation to Applicants 923 and 2641, the parties are agreed that their appeals should be dismissed and in any event, since the Judge held that the documents in question did not exist, the point does not arise for determination. And it is inappropriate to provide any general guidance since the matter is necessarily fact specific.

Orders

34.  For the reasons discussed above, we make the following orders:

(1) the appeals of Applicants 1590, 1940, 2233, 2785, 2799, 3525, 4055, 4432 and 4537 are dismissed;

(2) there be no order as to costs save that the costs of each of the applicants who are legally represented be taxed in accordance with the Legal Aid Regulations; and

(3) there be liberty to apply to a single judge of this Court.

The Schedule contains a summary of the disposal of the 19 applicants dealt with by consent orders and by this judgment.

35.  Finally, we acknowledge that in the disposal of these appeals, we have been greatly assisted by the Judge’s comprehensive report.

Mr Justice Bokhary PJ:

36.  My position in this appeal - which I explained on 30 July 2002, have repeated since and repeat again now - is as follows.  On 10 January 2002 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 apart from saying that I adhere to everything that I said in my judgment on 10 January 2002, I say no more than that to the extent that the other members of the Court decide anything in favour of any of the appellants, such decision has my respectful support.

Mr Kwok Sui Hay and Mr Sean H J Fang (instructed by Messrs Barnes & Daly and assigned by the Legal Aid Department) for the applicants/appellants 1590, 1940, 2799, 3525, 4055, 4432 and 4537

Mr Joseph Fok SC and Mr Daniel Wan (instructed by the Department of Justice) for the respondent

Applicant 2233, Li Lu Ye, in person, present

Applicant 2785, Ngan Pui Yuk, in person, absent

Applicants 1590, Kwok Chung Lam, 1940, Lau Man Lung and 4055, Yang Ren Zhong represented by Messrs Barnes & Daly and assigned by the Legal Aid Department but made submissions on their own

Applicant 4432, Chan Shui Chun represented by Messrs Barnes & Daly and assigned by the Legal Aid Department did not appear to make her submissions

Schedule

A.  Cases disposed of by consent orders

B. Cases disposed of after hearing