CACV 108 & 109/99
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NOS. 108 & 109 OF 1999
(ON APPEAL FROM HCAL NOS. 20 & 21 OF 1999)
|LAU KONG YUNG (an infant suing by his father and next friend LAU YI TO) and 16 others
|THE DIRECTOR OF IMMIGRATION
Coram : Hon Chan CJHC, Nazareth VP & Mortimer VP
Dates of Hearing : 20, 21 and 27 May 1999
Date of Judgment : 11 June 1999
J U D G M E N T
Chan, CJHC :
1. These appeals arise from two actions commenced by these 17 appellants and another applicant (who had withdrawn from the proceedings) against the Director of Immigration. In the first action (HCAL No.20 of 1999), the appellants sought an order of certiorari quashing the decisions of the Director to remove them from Hong Kong and to detain them pending such removal; an order of prohibition prohibiting the Director from executing the removal orders made against them; an order of mandamus requiring the Director to specify in a notice in the Gazette the manner in which they might apply for a certificate of entitlement; and other declarations including a declaration that these appellants were permanent residents of the Hong Kong Special Administrative Region by virtue of Article 24(2) of the Basic Law. In the second action (HCAL No.21 of 1999), the appellants asked for writs of habeas corpus to issue to enable their immediate release from detention by the Director.
2. The appellants' respective cases are quite similar to one another. All of them were born in the Mainland. Four for them are under the age of 18 (A1, A2, A6 and A12) and the others are over 18. They all claim to have at least one parent who is a permanent resident of Hong Kong. Twelve of them were born before one of their parents became a permanent resident; 2 of them (A10 and A14) were born after one of their parents became a permanent resident but before 1 July 1987 and 3 of them (A1, A6 and A12) were born after one of their parents became a permanent resident and after 1 July 1987.
3. All the appellants (except A12 and A14) came to Hong Kong from the Mainland by means of two-way permits. The 12th appellant came here illegally. The 14th appellant went from the Mainland to Singapore and then came to Hong Kong as a visitor. All the appellants have relatives residing in Hong Kong. Apart from A12 (who had not been granted permission to land when she came), all the appellants had overstayed in breach of their conditions of stay granted by the Director. Shortly after the Court of Final Appeal had given its judgments on 29 January 1999 in Ng Ka Ling & others v Director of Immigration  2 HKCFAR 4 and Chan Kam Nga & others v Director of Immigration 2 HKCFAR 82, these appellants claimed to be permanent residents of Hong Kong under Article 24(2) of the Basic Law. The Director made removal orders against them saying that they had failed to establish their status by means of certificates of entitlement. They were arrested and detained pending removal to the Mainland. They commenced the present proceedings. The trial judge dismissed their actions and these are the appeals from that decision.
Basis for the removal orders
4. The removal orders which were issued by the Director against all the appellants and which are the subject matter of these proceedings were in the following terms:
"Whereas it appears to me that (ABC) is contravening or has contravened a condition of stay in respect of him; in the exercise of the powers conferred by section 19(1)(b) of the Immigration Ordinance (Chapter 115), I hereby make a removal order requiring the said person to leave Hong Kong."
5. Each of the removal orders was accompanied by a Summary of Facts and Reasons for removal. The Reasons for removal were stated to be as follows:
"(ABC) has contravened his condition of stay by overstaying in the Hong Kong Special Administrative Region since (date) and his status as a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1 to the Immigration Ordinance cannot be established in accordance with section 2AA(1) of the same Ordinance."
6. The Summary of Facts in respect of all the appellants except A15 and A16 contained the following paragraph :
"Though (ABC) was born in the Mainland of China to his Hong Kong permanent resident father, (DEF), his status as a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1 to the Immigration Ordinance cannot be established in accordance with section 2AA(1) of the same Ordinance."
7. In respect of the removal orders made against A15 and A16, the relevant paragraph in the Summary of Facts used a different wording which made it clear that it was merely the assertion of the applicants that they were born of parents who are permanent residents.
8. There was a dispute before the trial judge as to whether the Director had, in the above paragraph contained in the Summary of Facts, already accepted the permanent resident status of the appellants except A15 and A16. There was evidence, which the trial judge accepted, to the effect that the Immigration staff were only concerned as to whether the appellants could establish their claims for permanent resident status under the third category of Article 24(2) of the Basic Law by the production of certificates of entitlement and that they did not find it necessary to make any findings of fact on the appellants' claims to have the relationship of parent and birth child with a Hong Kong permanent resident. In other words, there had been no verification by the Immigration staff of the claimed relationship of the appellants, whether on the documents produced or otherwise. The trial judge held that there was no acceptance by the Director as to the status of any of these appellants. There is no appeal against this finding of fact. Ms Gladys Li SC for the appellants indicates that this does not have any significance to her case in these appeals.
9. However, such evidence shows that what the Immigration staff had done was only to inquire whether the appellants had any certificate of entitlement and that they had not examined the documents or other evidence adduced by the appellants in support of their claims for permanent resident status or made any finding of fact from such materials. This was the basis for the making of the removal orders in the present case.
10. Ms Li SC, leading Ms Margaret Ng, for the appellants submits that the principal issue in these appeals is : whether the Director may lawfully order the removal from Hong Kong and the detention pending that removal of a person who claims to be and can establish that he is a permanent resident by refusing to examine that person's claim and the materials adduced in support of the claim on the ground that the person does not have a certificate of entitlement. It is submitted that the Director cannot do so.
11. Ms Li's main argument is that the Director is under a duty to consider the merits of each of the appellants' claims when he is contemplating the removal of the appellants. Such duty is said to arise in this way. First, the appellants are conferred by the Basic Law the status of permanent resident and the right of abode in Hong Kong. No person with the status of permanent resident can be removed. The Director is therefore obliged under the Basic Law to consider their claims to such status and right before making the removal orders against them. In refusing to consider the materials adduced by the appellants and insisting on the production of certificates of entitlement, the Director has failed this constitutional obligation and has infringed the right of those persons who are in fact permanent residents. Secondly, as a result of the decisions of the Court of Final Appeal in Ng Ka Ling and Chan Kam Nga, there is no lawful or applicable scheme whereby these appellants can apply for certificates of entitlement. Hence, the Director cannot lawfully rely on the absence of a certificate as his basis for removal but is under a duty to consider the merits of each of the appellants' claims. Thirdly, the enjoyment of the right of abode as set out in s.2A(1) of the Immigration Ordinance is, according to the CFA decision in Ng Ka Ling, not subordinate to any provision. The Director has a duty to verify the status of a person claiming to be a permanent resident even if the claim is put forward in a manner which do not comply with the prescribed procedure.
12. Counsel's second argument is that the Director cannot rely on the provisions of the Immigration Ordinance as precluding him from examining the claims of the appellants. First, Part 1B of the Ordinance which was introduced by the No. 3 Ordinance only applies to persons falling within paragraph 2(c) of Schedule 1 to the Ordinance. Since part of paragraph 2(c) was held by the Court of Final Appeal to be unconstitutional in Chan Kam Nga, the whole basis of the scheme in Part 1B had disappeared. The Director cannot rely on s.2AA or any other provision in Part 1B. The Court of Final Appeal did not address the issue of whether the unconstitutional words in paragraph 2(c) were as a matter of law severable. What the Court did was striking down the whole of section 2AA leaving no peg for the No. 3 Ordinance to hang on. Secondly, most of the appellants did not fall within the original paragraph 2(c) of Schedule 1. They would be in the same position as those persons who arrived in Hong Kong before the enactment of the No. 3 Ordinance. Since they are permanent residents, they had the right to...