NG SIU TUNG AND OTHERS v. THE DIRECTOR OF IMMIGRATION

FACV000001A/2001

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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BETWEEN:
NG SIU TUNG AND OTHERS Appellants
AND
THE DIRECTOR OF IMMIGRATION Respondent

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Court:

Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ

Date of Handing Down: 25 February 2002

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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 Departmenthad written within that period to the Immigration Department notifying the latter of such application; and that Mr Lau thereforefell within the policy decision. The Director of Immigration on the other hand said that the notification was only received by theImmigration Department after the Concession period. There being no specific finding by the first instance judge on this matter, itappeared to the Court that Mr Lau’s application for legal aid had not been notified by the Director of Legal Aid to the Directorof 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 tothe Court contending that applying the criteria set out in the judgment, Mr Lau should have succeeded since there was no challengeby the Director of Immigration on the documents produced by him relating to his application for legal aid and since there was sufficientevidence already before the Court to enable it to rule in his favour. We directed the parties to send in their written submissionsin 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 receivedby the Immigration Department within the Concession period. Counsel for the Director of Immigration, in a written submission to theCourt, conceded that Mr Lau’s appeal should be allowed, that the removal order against him should be quashed and that a declarationshould 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 Courtmakes no order as to costs save for an order for legal aid taxation in respect of Mr Lau’s own costs.

(Andrew Li) (Kemal Bokhary) (Patrick Chan)
Chief Justice Permanent Judge Permanent Judge

(R A V Ribeiro) (Sir Anthony Mason)
Permanent Judge Non-Permanent Judge

Representation:

Messrs Pam Baker & Co. assigned by the Legal Aid Department for the appellants

The Department of Justice for the respondent