re ho ming-sai

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In re Ho Ming-sai an d Others

(High Court)

(Miscellaneous Proceeding No. 1004 of 1992)

Nazareth,J.A. (sitting asanadditionalHighCourtJudge)

23rd September a nd 1 st October 1992.

Administrative and constitutional law - judicial review - Director of Immigration - illegalimmigrants - whether Director s decision Wednesbury unreasonable.

Two sisters entered Hong Kong illegally in order to take care of their father who lived alone

and was diagnosed as schizophrenic and had been hospitalised three times for treatment in a

mental hospital. They arrived in November 1990 and surrendered to the Immigration Department

in February 1991 under the mistaken impression that there was an amnesty. They applied to the

Director to exercise his discretion under s.13 of the Immigration Ordinance Cap 115) to be

allowed to remain in Hong Kong on humanitarian grounds. A psychiatric report was given to the

Director which diagnosed the father as suffering from schizophrenia and recommended that his

daughtersbe

the appropriate persons to look after him. The Director refused to allow thedaughters to remain in HongKong. They sought judicial review of his refusal.

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35

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Held:

1.

2.

When exercising his discretion under s, 13 of the Immigration Ordinance to

allow an illegal immigrant to remain to Hong Kong on humanitarian grounds,

the Director of Immigration has no obligation to make enquiry concerning the

medical condition of an applicant who seeks leave to remain in Hong Kong on

account of his medical condition, an d his failure to do so is not Wednesbury

unreasonable. (See p.32, lines 30-31 and p.33, lines 24-25.)

As regards the evidence of schizophrenia and its bar to the applicant s beingallowed to return to China to be with his daughters and the need for his

daughters to be with him an d other related matters some of these ha d no t

been brought to the Director s attention, a nd t he re wa s no evidence that others

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Nazareth,J.A. (sitting asanadditionalHighCourtJudge)

23rd September and 1st October 1992.

Administrative and constitutional law - judicial review - Director of Immigration - illegal

immigrants - whether Director s decision Wednesbury unreasonable.

Two sisters entered Hong Kong illegally in order to take care of their father who lived alone

and was diagnosed as schizophrenic and had been hospitalised three times for treatment in a

mental hospital. They arrived in November 1990 and surrendered to the Immigration Department

in February 1991 under the mistaken impression that there was an amnesty. They applied to the

Director to exercise his discretion under s.13 of the Immigration Ordinance Cap 115) to be

allowed to remain in Hong Kong on humanitarian grounds. A psychiatric report was given to the

Director which diagnosed the father as suffering from schizophrenia and recommended that his

daughters be the appropriate persons to look after him. The Director refused to allow the



30 HONG KONG LAW REPORTS [1993] 2 HKLR

th e Director in exercrsmg his discretion to allow the applicants to remain 1

under s, 13 wa s perverse. See p33 lines 45-46 and p34 lines 1-5.)

5. was not a ground even in an aspirational sense that the Director of

Immigration had failed to consider any possible breach of the International

Covenant on Civil and Political Rights or of customary international law since 5

there was no evidence that the Director failed to take these matters into

account or that they were drawn to his attention. ee p.34, lines 22-27. )

6. Th e Director had no duty in law to make any findings of fact in respect of th e

request of the applicants to be allowed to remain in Hong Kong and his failure

to do so di d no t constitute an error of law. See p.34, lines 32-41.) 10

7. Th e Director w as no t a quasi-judicial body and ha d no duty to give reasons for

his decision either by t he r ul es of natural justice or fairness or as part of his

humanitarian discretion under s. 13. See p.35, lines 15-18.)

8. T he D ir ec to r s function under s.13 is neither judicial nor quasi-judicial but a

discretion which d er iv es f ro m t he r oy al p re ro ga ti ve . Accordingly neither th e 15rules of natural justice nor fairness required him to give th e applicants an

opportunity to see any medical report which may have contradicted the

applicants report or to consider or give further evidence about any provisional

findings adverse to the applicant. Dicta of Lord Denning in Schmidt v Secretary

State for Home Affairs [1969] 2 Ch 149, R v Governor of Brixton Prison ex 20

parte Soblen [1963] 2 QB 243, R v Home Secretary ex parte Mughal [1974] 1

QB 313, applied. See p33 l ines 41-44; p.35, lines 19-23, 31-34 and 39-41;

p.36, lines 37-40 and p.37, lines 6-36.)

Application refused. 25

G. McCoy, instructed byWongHui Co. an d the Director of Legal Aid , for the applicants.

P.GrahamandY.M.Liu, SeniorCrownCounsel, for the respondent.

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Cases cited in the judgment:

Chan Sau-mui an d Others v. Director of Immigration Civil Appeal No.60/1992

Lau Tak-pui v. Director of Immigration [1992] 1 HKLR 374

Lee Bu n and Another v. Director of Immigration [1990] 2 HKLR 466

Mahon v. Air New ZealandU d [1984] AC 808, [1984] 3 WLR 884, [1984] 3 All ER 201 35

Moore, ex parte [1965] 1 QB 456

v. Civil Service Appeal Board, ex parte Cunningham [1991] 4 All ER 310

v. Governor of Brixton Prison, ex parte Soblen [1963) 2 QB 243, [1962] 3 WL R7. T he U ir ec to r w as n ot a quasr-jumcrat nouy and na n no duty to give reasons ror

his decision either by th e rules of natural justice or fairness or as part of hi s

humanitarian discretion under s. 13. See p.35, lines 15-18.)

8. Th e Director s function under s.13 is neither judicial nor quasi-judicial but a

discretion which derives from t he r oy al prerogative. Accordingly neither th e 15

rules of natural justice no r fairness required him to give the applicants an

opportunity to see any medical report which may have contradicted theapplicants report or to consider or give further evidence about any provisional

fmdings adverse to the applicant. Dicta of Lord Denning in Schmidt v Secretary

State for Home Affairs [1969] 2 Ch 149, R v Governor Bruton Prison ex 20

parte Soblen [1963] 2 QB 243, R v Home Secretary ex parte Mughal [1974] 1

QB 313, applied. See p33 l ines 41-44; p.35, lines 19-23, 31-34 and 39-41;

p.36, lines 37-40 an d p.37, lines 6-36.)

Application refused. 25



HC In re Ho Ming-sai and Others Nazareth, J.A.) 31

1 Secretary of State for Education and Science v. Tameside Metropolitan Borought

Council [1977] AC 1014, [1976] 3 WLR 641, [1976] 3 All ER 665, 75 LGR 190

z reth, J.A.:

I have before me an application by the three applicants, the third applicant Ho Juen-hoi being

the father of the other two applicants, for leave to apply for judi cial review of a decision of the

10 Director of Immigration given on 7th January 1992, refusing to exercise his discretion to

allow the first two applicants to remain in Hong Kong. Unlike Ho Juen-hoi, who is a lawful

resident, the two applicants landed Hong Kong unlawfully. In their own words they sneaked

into Hong Kong in November 1990 and surrendered to the Immigration Departm ent in

February 1991 under the impression that there was an amnesty.15 Their father used to live alone before they came to Hong Kong. Their mother, they say,

was not prepared to live with him because she cannot tolerate his behaviour. Dr Singer,

whose-psychiatric report has been exhibited on behalf of the applicants, diagnos ed him as

suffering from schizophrenia and noted he had been hospitalised for treatment three times

between 1960 and 1966. His behaviour is often bizarre and abnormal. Treatment helps but he

20 requires someone to care for him. r Singer adds that the first applicant, his elder daughter,

would be a fit and proper person to care for him. t would be better if the second applicant,

the other daughter, could also help as the task would be too taxing for one person.

The Director of Legal Aid, who arranged for the psychiatric examination to be c nie d out

on behalf of the applicants, sent the report to the Director of Immigration on 24th September25 1991, asking to be informed whether the Director proposed to re-open investigation of the

case and agree to set aside the removal orders.

According to the first affidavit of the first applicant, Ho Ming Sai, upon receipt of

Dr Singer s report, the Director of Immigration arranged for her father to have another

assessment at the Tuen Mun Hospital. Thereafter, she affirmed, the Immigration Department

30 told her that the doctors in Tuen Mun Hospital remarked that her fathe r did not need someone

to care for him although he had mental problems. She added that she did not know whether

there was such a remark by the Tuen Mun Hospital but she doubted very much if the doctor

was in a position to comment as he had only seen her father for half an hour.

Shortly after her father s assessment at Tuen Mun Hospital, by a letter dated 7th January

35 1992, the Director of Immigration responded to the letter of 27th September 1991 from the

Director of Legal Aid in the following terms:

10 Director of Immigration given on 7th January 1992, refusing to exercise his discretion to

allow the first two applicants to remain in Hong Kong. Unlike Ho Juen-hoi, who is a lawful

resident, the two applicants landed Hong Kong unlawfully. In thei r own words they sneaked

into Hong Kong in November 1990 and surrendered to the Immigration Department in

February 1991 under the impression that there was an amnesty.

15 Their father used to live alone before they came to Hong Kong. Their mother, they say,

was not prepared to live with him because she cannot tolerate his behaviour. Dr Singer,

whose-psychiatric report has been exhibited on behalf of the applicants, diagnosed him as

suffering from schizophrenia and noted he had been hospitalised for treatment three times

between 1960 and 1966. His behaviour is often bizarre and abnormal. Treatment helps but he

20 requires someone to care for him. r Singer adds that the first applicant, his elder daughter,

would be a fit and proper person to care for him. t would be better if the second applicant,

the other daughter, could also help as the task would be too taxing for one person.

The Director of Legal Aid, who arranged for the psychiatric examination to be cani ed out

on behalf of the applicants, sent the report to the Director of Immigration on 24th September




1. Certiorari to bring up into the High Court for the purpose of quashing the 1

decision of the Director of Immigration in refusing to exercise in a lawful

manner his discretion under s. 13 of the Immigration Ordinance Cap . 115 .

2. Mandamus directed to the Director of Immigration directing him to exercise his

discretion under s . 13 of the Immigration Ordinance to consider whether or not 5to allow Ho Ming-sai (or Sin ) and Ho Ming- fung, the 1st applicant and

2nd applicant herein to stay in Hong Kong.

A third relief originally sought is not now pursued

Section 13 of the Immigration Ordinance provides that:

The Director may at any time authorise a person who has landed on Hong Kong

unlawfully to remain in Hong Kong .

10

tis common ground that the Director has a discretion to allow an illegal immigrant to remain 15in Hong Kong .

tis not in dispute that to obtain leave the applicants must show that they have an arguable

case. (See e.g. R. v. Secretary of State for the Home Department, ex parte Swati [1986] 1

WLR477

In their application the applicants specified their grounds under four heads with no less than 20

18 paragraphs of particulars. t has to be said with regret that every conceivable ground

regardless of merit has been thrown in, not without justification attracting the characterisation

of a blunderbuss approach by Mr Peter Graham for the respondent. Some of the particul ars

even mystified the applicants counsel, Mr McCoy, who had to abandon them. In sum they

tended to discredit those few he was able to argue. It is with the latter that I propose to 25concern myself.

The first head of the appellants grounds is that the decision of the Director of Immigration

in refusing to exercise his discretion at all or lawfully in accordance with s. 13 of the

Immigration Ordinance Cap. 115) is Wednesbury unreasonable.

Paragraph (a) of the parti culars is that the Director failed to take into account or failed to 30

make sufficient enquiry concerning the medical condition of the applicant Ho Juen-hoi.

Mr. McCoy for the appli cants neither cites or relies upon any authority in support of these

grounds. e submits simply that to properly exercise his discretion it is necessary, and there

is a corresponding duty upon the Director, to make enquiry . In the context of the now

generally well-established scope and procedures pertaining to judicial review the ground that 35

the Director failed to make enquiry concerning the medical condition of the applicant Ho

Juen-hoi is surprising, and one for which some authority would be expected. But Mr McCoyno t crvno ht to rr-lv l V n lnv Tn< tf . l l h . s imn lv suhrnits that it is nlain and obvious that

The Director may at any time authorise a person who has landed on Hong Kong

unlawfully to remain in Hong Kong

t is common ground that the Director has a discretion to allow an illegal immigrant to remain 15

in Hong Kong .

tis not in dispute that to obtain leave the applicants must show that they have an arguable

case . (See e.g . R. v. Secretary of State for the Home Department, ex parte Swati [1986]1

WLR477 )

their application the applicants specified their grounds under four heads with no less than 20

18 paragraphs of particulars. t has to be said with regret that every conceivable ground

regardless of merit has been thrown in, not without justifi cation attracting the characterisation

of a blunderbuss approach by Mr Peter Graham for the respondent. Some of the particulars

even mystified the applicants counse l, Mr McCoy, who had to abandon them. In sum they

tended to discredit those few he was able to argue. t is with the latter that I propose to 25



HC In re Ho Ming-sai and Others Nazareth, J A 33

1 the care and assistance of his wife, who was unlawfully present in Hong Kong and whose

removal the Director of Immigration had ordered. In his affidavit the Deputy Director had

stated that:

5 Consideration was also given to the fact that [the husband] had a brother,

brother-in-law and uncle in Hong Kong and that family service and the Social

Welfare Department were available to give assistance in case of need.

The applicants sought to have the Deputy Director cross-examined as to whether such care

10 was available. McCoy appearing for the applicant sought to rely upon the following

authority in the speech of Lord Diplock in Secretary of State for Education and Science v.

Tameside Metropolitan Borough Council [1977] AC 1014 at 1065:

Or, put more compendiously, the question for the court is, did the Secretary of State15 ask himself the right question and take reasonable steps to acquaint himself with the

relevant information to enable him to answer it correctly?

Sir Derek Cons, Vi P at pp 9 and 10 of the judgment stated:

20 For my part I am unable to read those words , taken in the context of that case, as

imposing upon the Director in circumstances such as the present any obligation to

seek out and interview the relatives mentioned.

I am satisfied therefore that failure of the Director to make enquiry is not an arguable25 ground

I turn then to the alleged failure of the Director to take into account the medical condition

of Ho Juen-hoi in paragraph a) and the other matters mentioned in some of the succeeding

paragraphs of the particulars of the first ground, i.e. the medical diagnosis of schizophrenia of

Ho Juen-hoi, the expert medical opinion as the need for and suitability of Ho Ming-sai and

30 Ho Ming-fung to remain with him and look after him, and the fact that the schizophrenia of

Ho Juen-hoi was a bar to his return to China resulting in inevitable separation of a father from

his two daughters who were uniquely able and required to look after him . Some of these

matters had not been brought to the attention of the Director of Immigration. There was

absolutely no evidence that the Director had failed to take account of others. I am satisfied35 that for those reasons these are not arguable grounds.

The particulars go on to claim that the Director took into account an opinion that the applicant

Ho Juen-hoi did not need someone to care for him, which was not based upon a thorough orlU was avauabie. McCoy appeanng tor the applicant sought to rely upon the tollowmg

authority in the speech of Lord Diplock in Secretary of State for Education and Science v.

Tameside Metropolitan Borough Council [1977] AC 1014 at 1065:

Or, put more compendiously, the question for the court is, did the Secretary of State

15 ask himself the right question and take reasonable steps to acquaint himself with the

relevant information to enable him to answer it correctly?

Sir Derek Cons, Vi P at pp 9 and 10 of the judgment stated:

20 For my part I am unable to read those words, taken in the context of that case, as

imposing upon the Director in circumstances such as the present any obligation to

seek out and interview the relatives mentioned.

I am satisfied therefore that failure of the Director to make enquiry is not an arguable




discretion to allow the applicants to remain under s. 13 was perverse in the sense it was so 1

unreasonable that no reasonable Director properly directing himself and assessing the

material and evidence presented to him with reference to proper legal criteria, could have

come to such a decision . Having heard what Mr McCoy had on this ground I am satisfied

that it is not arguable. 5

In paragraph (g) it was alleged that the Director failed to take into account the fact that

the applicants have a well-founded fear of persecution in China by reason by their mother s

imputed political opinion, on account of her arrest and imprisonment in China on charges of

spying for Taiwan and that their forced return to China would constitute a breach of

customary international law (i.e. the customary international rule prohibiting refoulement), 10

and of the International Covenant on Civil and Political Rights: By forcing the first and

second applicants to return to a country in which they have a well-founded fear of political

persecution which would itself in breach of, inter alia, Articles 19, 22 and 26 of the Covenant,

the Director of Immigration is causing the Hong Kong Government to facilitate a breach of the

said Covenant and thereby to be in breach of Articles 2 and 3 of the said Covenant . Had the 15Director not so failed, Mr McCoy submits, he would have realised that the first two applicants

were political refugees entitled to political asylum and to political refugee screening. Instead,

he submits, the Director placed their case in the wrong pigeon-hole . In the peculiar

circumstances of this case he further submits, that was perverseand ednes ury unreasonable. I

must confess that I do not see it that way at all, not even arguably so. 20

Further there is no evidence that the Director failed to take the matters in paragraph (g) into

account or, for that matter, that they were drawn to his attention. In any case, the Convention

referred to has not been extended to Hong Kong and is not part of our law (Lee Bun and

another v. irector of Immigration [1990) 2 HKLR 466; 473 D-I). I do not see that it

affords the applicants any ground even in the aspirational sense Mr McCoy sought to rely 25upon. I am satisfied, therefore, that this ground is not arguable, and for like reasons that

paragraph (h) which also relates to the Covenant is not arguable.

Finally in paragraph (i) it is claimed that the Director failed in the premises to take into

account relevant consideration or took into account irrelevant considerations in reaching his

decision . This ground is not particularised and insofar as it relates to the earlier paragraphs 30

has been rejected. I am likewise satisfied it does not raise any arguable grounds.

The second head of grounds upon which the applicants rely is that the decision of the

Director of Immigration in refusing to allow the applicants to remain in Hong Kong pursuant

to his discretionary power under s. 13 of the Immigration Ordinance, displays an error of law

upon the face of the record and/or was unfair. is not apparent on its face what this head 35relates to. However proceeding to the particulars, paragraph (a) claims that the Director failed

to make appropriate findings of fact in respect of the request for the applicants to be allowed

in Hong Kong. No authority was cited by Mr McCoy for the proposition that the Directorano or me mternanonai covenant on IVil ano r ouucai xignts: ny rorcmg me nrst ano

second applicants to return to a country in which they have a well-founded fear of political

persecution which would itself in breach of, inter alia, Articles 19, 22 and 26 of the Covenant,

the Director of Immigration is causing the Hong Kong Government to facilitate a breach of the

said Covenant and thereby to be in breach of Articles 2 and 3 of the said Covenant . Had the 15

Director not so failed, Mr McCoy submits, he would have realised that the first two applicants

were political refugees entitled to political asylum and to political refugee screening. Instead,he submits, the Director placed their case in the wrong pigeon-hole . In the peculiar

circumstances of this case he further submits, that was perverseand ednes ury unreasonable. I

must confess that I do not see it that way at all, not even arguably so. 20

Further there is no evidence that the Director failed to take the matters in paragraph (g) into

account or, for that matter, that they were drawn to his attention. In any case, the Convention

referred to has not been extended to Hong Kong and is not part of our law (Lee Bun and

another v, irector of Immigration [1990) 2 HKLR 466; 473 D-I). I do not see that it

affords. the applicants any ground even in the aspirational sense Mr McCoy sought to rely 25



HC In re Ho Ming-sai and Others (Nazareth, J.A.) 35

1 reasons would be disclosed, or that the Director was a tribunal with the character of a judicial

body (R. v, Civil Service Appeal Board, ex parte Cunningham [1991] 4 All ER 310). On

the contrary the Director s position was very similar to that of the Home Secretary in Schmidt

v, Secretary of State for Home Affairs (CA) [1969] 2 Ch 149, 170H-I71C where Lord

5 Denning observed that the Home Secretary could refuse to extend leave to an alien to stay

without giving reasons.

In Hong Kong the matter was considered in Lau Tak-pui v. Director of Immigration

[1992] 1 HKLR 374, and it was acknowledged (at p. 382) that the general rule that the

common law, which enshrines the principles of natural justice, does not itself require a public

10 law authority or tribunal always, or even usually, to give reasons for its decision. The case

was concerned with a decision of the Immigration Tribunal rather than the Director, and

although the court concluded that the Tribunal should give adequate reasons, it did so on the

basis that the Tribunal acts judicially and that the case concerned was a special case (at pp 384

and 385).15 I am therefore not persuaded that Dr Singer s report and opinion, or its rejection, or the

humanitarian component, or the requirements of natural just ice or fair play insofar as they

applied, required the Director to give reasons for his refusal to allow the first and second

applicants to stay. In my judgment this ground is not arguable.

Paragraph (d) is that the Director was required as a matter of law and/or fairness to give

20 the applicant an opportunity to consider and if necessary give further evidence about any

provisional findings of reasons adverse to the applicant, prior to a formal decision adverse to

the applicant being made . This is similar to paragraph (a) of the particulars of head 3, and I

shall return to it in the context of that paragraph.

Paragraph (e) is that the Director made a decision that the applicant Ho Juen-hoi did not25 need someone to care for him, which was based on no evidence . Mr McCoy did not pursue

this ground.

Proceeding to head 3 of the grounds, this is that the decision of the Director of Immigration

not to exercise his discretionary power under s. 13 of the Immigration Ordinance to authorise

the applicants to remain in Hong Kong, was made in breach of natural justice . Mr McCoy

30 says it is the broadest ground.

Paragraph (a) of the particulars is that the Director took into account an opinion which

contradicted the medical report and opinion of the applicant s medical expert without giving

the applicants an opportunity to see such medical opinion or to comment upon the same ;

paragraph (e) of head 1 is in substance the same.35 I rightly understood Mr McCoy s submissions, the burden of paragraph (d) of head 2 is in

substance the same as that here, and in addition that the provisional finding contemplated was

the acceptance of an opinion of the Tuen mun Hospital doctor that Ho Juen Hoi did not need10 law authority or tribunal always, or even usually, to give reasons tor Its decision, The case

was concerned with a decision of the Immigration Tribunal rather than the Director, and

although the court concluded tltat the Tribunal should give adequate reasons, it did so on the

basis tltat the Tribunal acts judicially and that the case concerned was a special case (at pp 384

and 385).

15 I am therefore not persuaded that Dr Singer s report and opinion, or its rejection, or the

humanitarian component, or the requirements of natural just ice or fair play insofar as tltey

applied, required the Director to give reasons for his refusal to allow the first and second

applicants to stay. In my judgment this ground is not arguable.

Paragraph (d) is that tlte Director was required as a matter of law and/or fairness to give

20 the applicant an opportunity to consider and if necessary give furtlter evidence about any

provisional findings of reasons adverse to the applicant, prior to a formal decision adverse to

the applicant being made . This is similar to paragraph (a) of the particulars of head 3, and I

shall return to it in the context of that paragraph.

Paragraph (e) is that the Director made a decision that the applicant Ho Juen-hoi did not




Those of us with experience of judicial review are very much aware that the scope

of the authority of decision-makers can vary widely and so long as the authority is

not exceeded it is not for the courts to intervene. They and not the courts are the

decision-makers in terms of policy. They and not the courts are the judges in the

case of judicial and quasi-judicial decisi ons which are lawful. The public law 5

jurisdiction of the courts is supervisory and not appellate in character. All this is

very much present to the minds of judges who are asked to giv e leave to apply for

judicial revi ew. Such leave will only be granted if the appli cant makes out a prima

facie case that something has gone wrong of a nature and extent which migh t call for

the exercise of the judicial review jurisdiction per Lord Donal dson, M.R. in Ex 1

par te Cunningham at 315H

Except in one respect, to whic h I shall come, Mr McCoy agai n does not rely upon any

authority for his bold attempt to have the essential nature of judicial review and its limited

scope disregarded

inwa

ys that wil l not only have far-reaching cons equences but seem to be 15inconsistent with that essential nature.

is important, first of all to have regard to the Director s function. is neither a judicial

or quasi-judicial function. is not merely an exercise of the discretion under s. 13, but a

discretion that derives from and in part replaces the royal prerogative (see R. v, Secretary of

State f or the Home Department, ex parte Rajinder Kaur and Others [1987] Imm AR 278; 20

291 per Glidewell, L.J.). is not fettered by the Immi gration Ordinance in any of the ways

contended for, nor is there any requirement even impli ed by or under that legislation that

persons unlawfully in Hong Kong who seek leave to remain can have any sort of right to

embark upon a hunting expedition into the Directo r s files.

Mr McCoy s general submissions of unfairness, which is really a complaint of the unfairness of 25the limited nature and scope of judicial review, and the difficulties the applicants face without the

information in the Director s possession, without knowledge of what information the Director

relied upon, without the provisional or preliminary views the Director formed and the reasons for

his decision, are all complaints about the established nature and scope of judicial review. I am

satisfied that they are not arguabl e on that general basis. 30

na rather more specif ic basis, he seeks to found his submission upon Dr Singer s report

and opinion, arguing that once received, the applicants were entitled to know and the Director

was obliged to disclose the reasons for rejecting it, any contrary report and opinion, the

reasons for accepting it in preference to Dr Singer s report, the reasons for the decision, and

even rel evant documentary material in his possession. Even if it were probable that a report 35

and opinion had been sought and receiv ed from the Tuen Mun Hospital doctor and taken into

account, as Mr McCoy was able to argue convincingly, I do not see that the applicants can be

entitled to the information they seek, without legal authori ty to support that contention. p ne unnmgn m a t H J n

Except in one respect, to which I shall come, Mr McCoy agai n does not rely upon any

authority for his bold attempt to have the essential nature of judicial review and its limi ted

scope disregarded in ways that will not only have far-reaching consequences but seem to be 15

inconsistent with that essential nature.

is important, first of all to have regard to the Director s function. It is neither a judicialor qua si-judicial functi on. is not merely an exercise of the dis cretion under s. 13, but a

discretion that derives from and in par t replaces the royal prerogative (see R. v. Secretary of

State for the Home Department, ex parte Rajinder Kaur and Others [1987] Imm AR 278; 20

291 per Glidewell, L.J.). is not fettered by the Immi gration Ordinance in any of the ways

contended for, nor is there any requirement even impl ied by or under that legislation that

persons unlawfully in Hong Kong who seek leave to remain can have any sort of right to

embark upon a hunting expedition into the Director s files.

Mr McCoy s general submissions of unfairness, which is really a complaint of the unfairness of 25



HC In re Ho Ming-sai and Others (Nazareth, J.A ) 37

5

as to the risk of the finding being made and thus deprived of any opportunity to

adduce additional material of probative value which, had it been placed before the

decision-maker, mi t have deterred him from making the finding even though it

cannot be predicted that it would inevitably have had that result.

In identifying the rules of natural justice ge rmane to the appeal thei r Lordships

recognised that the court in Ex parte Moore [1965] 1 QB 456, 488, 490 whence they derived

those rules , was dealing with the exe rcise of an investigative jurisdiction, though of a

different kind from that Mahon was concerned with. The Director in the present case was

10 not dealing with the exercise of an investigative jurisdiction. He was dealing with the

exerc ise of discretion - moreover, as Graham points out, discretion related to the residue

of prerogative power.

Mr Graham also relied upon the di t of Lord Denning in three cases . First, Schmidt v,

Secretary of State for Home Affairs in which Lord Denning, M.R. approved the view taken15 by Lord Parker, c.J. in Ex parte Aktar Singh, that the immigration officers in the latter case

were under no duty to tell the Commonwealth citizen concerned why he was refused

admission and were not bound to give him an opportunity of making representations.

Second, R. v. Governor of Brixton Prison, ex parte Soblen [1963] 2 QB 243 (C.A , 298

in which Lord Denning held that an alien had no right to be heard before a deportation order

20 was made (although he reserved his opinion on whether the alien did not have that right before

the deportation order was executed).

Finall y, Graham referred to R. v, Home Secretary, ex parte Mughal [1974] 1 QB 313,

325, in which it was submitted that the immigration officer ought to have disclosed and sought

the appli cant s explanation on adverse reports he had received about the applicant s passport25 and tax returns. Lord Denning declined to accept that critici sm, pointing out that the

immigration officer was not a judge or judicial officer, and that so long as he acted honestly

and fairl y the courts cannot and should not interfere. Significantly in the present context, with

reference to the immigration officer s inquiries, he added:

30 There was no need at all for the immigration officer to put them to him when they

proved adverse. The rules of natural justice must not be stretched too far. Only too

often the people who have done wrong seek to invok the rules of natural justice so

as to avoid the consequences.

35 In the result it does not seem to me that the applicants have shown an arguable case under

head 3.

Mr McCoy did not pursue the grounds under head 4, which related to an alleged policy not not aeanng With the exercise ot an Investigative j urisdiction. He was dealing with the

exercise of discretion - moreover, as Mr Graham points out, discretion related to the residue

of prerogative power.

Mr Graham also relied upon the di t of Lord Denning in three cases. First, Schmidt v.

Secretary of State for Home Affairs in whi ch Lord Denning, M.R. approved the view taken

15 by Lord Parker, c.J. in Ex parte Aktar Singh, that the immigration officers in the latter case

were under no duty to tell the Commonwealth citizen concerned why he was refused

admission and were not bound to give him an opportunity of making representations.

Second, R. v, Governor of Brixton Pr ison, ex parte Soblen [1963] 2 QB 243 C.A , 298

in which Lord Denning held that an alien had no right to be heard before a deportation order

20 was made (although he reserved his opinion on whether the alien did not have that right before

the deportation order was executed).

Finally, Graham referred to R. v, Home Secretary, ex parte Mughal [1974] 1 QB 313,

325, in which it was submitted that the immigration officer ought to have disclosed and sought

the appli cant s explanation on adverse reports he had received about the applicant s passport




Since this appears to be the first of the several such cases foreshadowed in hanSau mui 1

p. 12 I am handing down this judgment in open court .

pp icantion refused

M.T.D.

re ho ming-sai

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