Hong Kong Case Law: Decisions & Judgments

Topic

Concession policy

Legal area

Court

18 Mar 2008

NG SIU TUNG AND OTHERS v. THE DIRECTOR OF IMMIGRATION

Citation

NG SIU TUNG AND OTHERS v. THE DIRECTOR OF IMMIGRATION
Court

Court of Final Appeal
Case number

FACV1/2001

A document or other material constitutes a record under the Concession Policy only if it was received by the Department in circumstances indicating an intention to keep it as part of the Department's files; momentary examination and immediate return of a document at a counter does not meet that threshold, and absent such record the applicants' claims fail; appellate court will not disturb the remitter judge's credibility and factual findings unless plainly wrong.
4 Jan 2008

NG SIU TUNG AND OTHERS v. DIRECTOR OF IMMIGRATION

Citation

NG SIU TUNG AND OTHERS v. DIRECTOR OF IMMIGRATION
Court

Court of First Instance
Case number

HCAL81/1999

Where an applicant cannot point to any record in the possession of the Immigration Department evidencing a claim for right of abode, the concession cannot apply; allegations that officers negligently failed to record a claim are insufficient. Therefore each application fails where no departmental record exists, regardless of credibility of oral assertions absent corroborative contemporaneous records.
25 Jul 2007

NG SIU TUNG AND OTHERS v. THE DIRECTOR OF IMMIGRATION

Citation

NG SIU TUNG AND OTHERS v. THE DIRECTOR OF IMMIGRATION
Court

Court of Final Appeal
Case number

FACV1/2001

The Court upheld the trial judge's adverse factual findings, held that the record requirement for Concession Policy claims cannot be waived, dismissed the appeals of the applicants whose cases were remitted and the Fifth Report applicant, directed that the imprisoned applicant's case proceed and refused to rescind the remitter for the 11 applicants whose legal aid had been discharged.
7 Feb 2007

NG SIU TUNG AND OTHERS v. DIRECTOR OF IMMIGRATION

Citation

NG SIU TUNG AND OTHERS v. DIRECTOR OF IMMIGRATION
Court

Court of First Instance
Case number

HCAL81/1999

On the balance of probabilities the judge found that none of the seven applicants made a claim for right of abode at the relevant interviews or arrests and there was no evidence of oppressive conduct or material failure by the Director that would estop the Director; accordingly the Director has no record of any claim for each applicant and the applications fail.
13 Nov 2006

NG SIU TUNG AND OTHERS v. THE DIRECTOR OF IMMIGRATION

Citation

NG SIU TUNG AND OTHERS v. THE DIRECTOR OF IMMIGRATION
Court

Court of Final Appeal
Case number

FACV1/2001

Applying the January 2002 test, the Judge properly construed each communication in its factual context and found the asserted letters and oral statements lacked the substantive content necessary to constitute a claim for right of abode; the Judge's adverse credibility findings were within his province and not plainly wrong, so the appeals of the nine named applicants were dismissed.
23 Aug 2006

NG SIU TUNG AND OTHERS v. DIRECTOR OF IMMIGRATION

Citation

NG SIU TUNG AND OTHERS v. DIRECTOR OF IMMIGRATION
Court

Court of First Instance
Case number

HCAL81/1999

The court resolved each application by applying a facts-and-probabilities test: an asserted claim requires either contemporaneous documentary evidence in Director's possession or, if a posted letter is proved to have been sent, the CFA presumption of receipt can satisfy the record requirement absent rebuttal. Oral statements are measured by their content and context (mere enquiries or humanitarian pleas do not amount to a claim). Credibility of witnesses and the existence/ provenance of documents determine whether the Director has the required record under the concession policy.
5 Jan 2006

NG SIU TUNG AND OTHERS v. THE DIRECTOR OF IMMIGRATION

Citation

NG SIU TUNG AND OTHERS v. THE DIRECTOR OF IMMIGRATION
Court

Court of Final Appeal
Case number

FACV1/2001

When an applicant proves on the balance of probabilities that a letter claiming right of abode was duly posted, there is a rebuttable presumption that the letter was received; if the Department has no surviving physical file or notation because the document was lost within the Department's administrative processes, the presumed receipt may satisfy the concession policy's record requirement and thus establish the necessary record for right of abode claims; appellate courts will defer to the trial judge on credibility unless there is demonstrable error.
16 Sept 2005

NG SIU TUNG AND OTHERS v. DIRECTOR OF IMMIGRATION

Citation

NG SIU TUNG AND OTHERS v. DIRECTOR OF IMMIGRATION
Court

Court of First Instance
Case number

HCAL81/1999

For the remitted factual issues the court determined on a case-by-case basis: where contemporaneous documentary entries existed that, on their face, corroborated an oral claim (eg completed ID457/ID328 or equivalent forms containing parental PR identity numbers or other clear annotations), the Director possessed the necessary record and the applicant succeeded; where documentary material did not, on its face, corroborate a claim or where evidence of letters was uncorroborated and no receipt could be traced, the Director did not have a record and the applicant failed. The court further held th…
23 Aug 2005

MO JIANMEI v. DIRECTOR OF IMMIGRATION

Citation

MO JIANMEI v. DIRECTOR OF IMMIGRATION
Court

Court of First Instance
Case number

HCAL87/2004

Applicant failed to prove on the balance of probabilities that she made a claim for right of abode during the concession window and failed to show the Department had a record of any such claim; inconsistencies in witness accounts, the established practices and record systems of the Department, the content of the extension form (noting only 'overlook'), and the absence of SES/P&V/attendance records led to dismissal of the judicial review application.
9 Jan 2004

NG SIU TUNG AND OTHERS v. THE DIRECTOR OF IMMIGRATION

Citation

NG SIU TUNG AND OTHERS v. THE DIRECTOR OF IMMIGRATION
Court

Court of Final Appeal
Case number

FACV1/2001

A valid record for the concession must be in the Director's possession and, when fairly read, on its face constitute evidence of a claim for right of abode; ID 457 entries that include a parent's Hong Kong identity card number can constitute such a record when viewed in context; deficient departmental practices or suggested standard answers do not by themselves estop the Director—estoppel requires wrongful pressure preventing recording.