STEWART MARCUS JONATHAN v. SECRETARY FOR SECURITY AND ANOTHER

HCAL 256/2022

[2025] HKCFI 1673

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 256 OF 2022

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D E C I S I O N

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A. Introduction

1.  The facts giving rise to this case are rather unusual, and it is likely that they give rise to the first occasion on which the material point for consideration has arisen.

2.  Those facts relate to a person – the Applicant – an American national who formerly had status as a Hong Kong permanent resident (“HKPR”), who lost that status and, though he nevertheless retained his right to land in Hong Kong, was subsequently convicted of a deportable offence and made the subject of a Deportation Order.

3.  The Deportation Order was made on 18 March 2022 by the decision (“Decision”) of the Secretary for Security (“Secretary”) with the input of the Director of Immigration (“Director”).

4.  By Form 86 dated 22 April 2022, the Applicant sought leave to apply for judicial review, to challenge the Decision. The Secretary and the Director were named as the Putative Respondents to the intended challenge. After significant delay – which I explained in my decision dated 7 February 2025, [2025] HKCFI 595 (“Leave Decision”) – the matter came on for hearing on 14 November 2024.

5.  Shortly before that time, the Applicant had filed an affirmation setting out his revised intended grounds for judicial review with submissions. In that material, the Applicant raised an argument on the Hong Kong Bill of Rights Article 19 (“BOR 19”) relating to ‘Rights in respect of marriage and family’, connected to the effect of section 2AAA of the Immigration Ordinance Cap 115 (“IO”), and the interaction between them and section 11 of the Hong Kong Bill of Rights Ordinance Cap 383 (“BORO”).

6.  BOR 19(1) – which reflects Article 23 of the International Covenant on Civil and Political Rights (“ICCPR”) – provides that:

Article 19 Rights in respect of marriage and family

(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

7.  Section 2AAA of the IO provides that a person who is a HKPR but ceases to be so by virtue of the operation of the IO shall, upon such cessation, have the right (1) to land in Hong Kong, (2) not to have imposed upon him any condition of stay in Hong Kong, and any condition of stay that is imposed on him shall have no effect; and (3) not to have a removal order made against him.

8.  Section 11 of the BORO provides that:

11. Immigration legislation

As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation.

9.  It is well-established that, in ordinary immigration decisions including potentially making removal or deportation orders, the Director and Secretary are not obliged to take humanitarian or compassionate factors into account. However, if he does so, the weight to be given to those factors is a matter for the decision-maker, subject to interference by the Court only on traditional public law unreasonableness grounds.

10.  However, the Applicant argued that, because he is a person who does have the right to enter and remain in Hong Kong, the section 11 exclusion does not apply to him. Therefore, he is entitled to rely upon BOR 19, so that his right to family life cannot be interfered with unlawfully.

11.  In my restatement of its terms, the argument continued that, when the proposed Deportation Order was being considered, taking into account the specific interference with the Applicant’s family life was therefore mandatory and not discretionary. That requirement arose so as to assess whether the interference could be objectively justified in the light of (a) the significance of the reasons for deportation and (b) the degree of hardship the family and its members would encounter as a consequence of such deportation if effected. That is a proportionality analysis. That analysis – which seeks to balance the State’s interest on the one hand and individual rights on the other – can be or will be fact-sensitive to the particular circumstances of the case.

12.  By my Leave Decision, I granted leave to apply for judicial review only on that ground, based upon the interaction of section 11 of the BORO, BOR 19 and section 2AAA of the IO. I dismissed as not reasonably arguable all other grounds which the Applicant sought to raise.

13.  I also gave further directions to bring the matter to a substantive hearing, including for the appointment of amici curiae. The substantive hearing took place on 23 April 2025. At that hearing, the Applicant appeared in person, and the Secretary and Director were represented by Mr Martin Ho and Ms Celeste Chan of Counsel. The amici curiae were Ms Bonnie YK Cheng and Mr Jonathan Fung (the latter of whom signed the written submissions provided, but was excused from attendance at the hearing itself).

14.  The Applicant made no oral submissions, and the main battleground was fought over between Mr Ho and Ms Cheng.

15.  At the end of the hearing I reserved my decision. This is my Judgment.

B.  Further Background

16.  The Applicant was born in Hong Kong on 14 March 1984, to his parents who have HKPR status. His dependant visa was approved on 6 October 1994. On 16 January 1998, he acquired unconditional stay in Hong Kong. On 6 March 1998, he became a HKPR.

17.  On 20 August 2012, the Applicant departed from Hong Kong, and thereafter was absent until his return to Hong Kong on 18 January 2019.

18.  On 8 May 2019, the Applicant applied for replacement of his Hong Kong Identity Card. On 14 August 2019, the Director assessed that the Applicant had lost his HKPR status owing to the fact that he had been absent from Hong Kong for a continuous period of not less than 36 months since he ceased to have ordinarily resided in Hong Kong. However, as stated, the Applicant retained his right to land in Hong Kong pursuant to the provisions of section 2AAA of the IO.

19.  On 16 March 2021, the Applicant was convicted and sentenced to 2 years and two months’ imprisonment, upon his conviction in Hong Kong of the offence of ‘trafficking in a dangerous drug’, to which he had pleaded guilty. The period of imprisonment ended on 7 March 2022.

20.  Whilst serving his imprisonment, the Applicant was interviewed by an officer of the Immigration Department on 7 June 2021. The purpose of the interview was to notify the Applicant of the Director’s intention to apply for a Deportation Order against him, pursuant to section 20(1)(a) of the IO. He was provided with the Notice of Consideration of Deportation and the accompanying Explanatory Note. The Notice specifically invited the Applicant to make representations, if he wished, in relation to the proposed application for a Deportation Order and/or the effect of such a Deportation Order (if made) on the applicant or his family members.

21.  Though the Applicant apparently refused to sign those documents to acknowledge receipt, on the same day he nevertheless wrote and signed a document to explain his grounds against deportation, as:

I Stewart Marcus Jonathan, object to the deportation order, because I was born in Hong Kong and I want to stay in Hong Kong.

22.  Further, the Applicant instructed solicitors, who wrote a letter of representations dated 18 January 2022, the material parts of which are as follows:

We have been instructed to make representations to your good department regarding this matter. We are writing today for your department to consider not issuing a deportation order against Mr. Stewart based on the following grounds:

(a) Mr Stewart was born, raised and educated in Hong Kong;

(b) He had the right of abode in Hong Kong, but due to the studies in the United States of America, he lost his right of abode in Hong Kong on his arrival back in Hong Kong and instead he was given a right to land;

(c) Mr Stewart’s whole family has lived in Hong Kong and his elder brother is a Hong Kong permanent resident and has been running a business in Hong Kong for over 10 years. He is willing to fully support Mr Stewart for his rehabilitation after his release from prison;

(d) Mr Stewart is currently engaged, and his fiancée is a Hong Kong permanent resident. Both of them intend to get married after his release and start a family here in Hong Kong. He will reside with his fiancée upon his release from prison. His fiancée is ready to stand surely for his application and willing to provide any supporting documents, should you require that;

(e) Mr Stewart has secured a job after Unipac Properties Limited, and the company has offered him the position of project organizer (please see the attached job letter for your easy reference).

(f) Mr Stewart has also been offered the position of an honorary basketball team coach on a voluntary basis to provide coaching services to ADHD children (Please see the attached job letter for your easy reference);

(g) Prior to this conviction, Mr. Stewart has been an exemplary citizen and had a clear record. He pleaded guilty to the charge and expressed his remorse at the time of his sentence. He is aware of the gravity of his mistake and undertakes not to repeat any such mistake again in future.

(h) Mr. Stewart has applied to institutions in Hong Kong to enroll in personal training qualification course. He has worked as personal trainer in the past and it has been his life long passion to become a professional in the field;

(i) Mr Stewart undertakes to refrain from any criminal activity;

(j) Mr Stewart poses no threat to the community;

(k) Mr Stewart is willing to undergo some supervision by your department after his release from prison and accepts if he has to follow any conditions imposed on him after his release that will help towards his rehabilitation; and

(l) Mr Stewart undertakes to comply with any other conditions the Director deems necessary in these circumstances.

(m) Mr. Stewart has considered Hong Kong his home all his life and he wishes to continue calling Hong Kong his home in future. We request you to consider his application favourably on compassionate grounds.

23.  On 8 March 2022, a memo was sent from the Director to the Secretary making an application for a Deportation Order against the Applicant. The Recommendation made was as follows:

2. The Director of Immigration considers the continued presence of Mr Stewart in Hong Kong to be undesirable. The Commissioner for Narcotics has no comment to the proposal of making a deportation order against Mr Stewart. The Commissioner of Police has no objection to the deportation of Mr Stewart and considers that his departure would be conductive to the public interest. The Director of Immigration has confirmed that the offence, of which Mr Stewart has been found guilty, is punishable with imprisonment for not less than two years. It is therefore recommended that Mr Stewart be deported for life. The Permanent Secretary for Security will be asked to consider whether a deportation order should be made under section 20(1)(a) of the Immigration Ordinance, Cap. 115.

24.  The attachment to the memo included the following:

REPRESENTATIONS ON DEPORTATION

1. Mr Stewart has been informed of the intended deportation and a Notice of Consideration of Deportation was served on him on 7 June 2021 (Appendix I). On the spot, he raised objection against deportation as he was born in Hong Kong and he wanted to stay in Hong Kong (Appendix II).

2. Mr Stewart submitted a written representation, through his legal representative, on 18 January 2022 objecting to deportation order with following grounds provided (Appendix III):

(a) Mr Stewart was born and raised in Hong Kong. He acquired the right to land in Hong Kong after his return from his studies in the United States of America;

(b) Mr Stewart’s elder brother is a HKPR and is running a business in Hong Kong. He is willing to fully support Mr Stewart for his rehabilitation;

(c) Mr Stewart’s fiancée is a HKPR and they intended to get married after his release from prison and start a family in Hong Kong;

(d) Mr Stewart had secured a job offer as a project organizer in a local company;

(e) Mr Stewart had been appointed as an honorary basketball team coach on a voluntary basis to provide coaching services to ADHD children;

(f) Mr Stewart had enrolled in personal training qualification course in local institutions. He worked as a personal trainer in the past and he was passionate in becoming a professional in this field;

(g) Mr Stewart had a clear criminal record prior to his current conviction and posed no threat to the community. He was remorseful to his wrongdoings and promised to refrain himself from any criminal activities in the future;

(h) Mr Stewart was willing to undergo any supervision and comply with any condition by the Immigration Department deemed necessary; and

(i) Mr Stewart had considered Hong Kong as his home. He wished the Immigration Department not to issue a deportation order against him on compassionate grounds.

3. Mr Stewart further submitted copies of the following documents in support of his representation (Appendix IV):

(a) Mr Stewart’s employment contract from a local company; and

(b) Mr Stewart’s appointment letter as an honorary basketball team coach from a local foundation.

REMARKS/MITIGATING FACTORS

1. According to records, Mr Stewart was born on 14 March 1984 in Hong Kong to his HKPR parents, Mr James Marvin STEWART JUNIOR and Madam Lynda Faye STEWART. Mr Stewart was approved dependant visa on 6 October 1994. He acquired unconditional stay in Hong Kong on 16 January 1998, and subsequently acquired the right of abode in Hong Kong on 6 March 1998 under paragraph 2(d) of Schedule 1 to the Immigration Ordinance, Cap. 115 (“the Ordinance”).

2. In light of Mr Stewart’s long absence from Hong Kong, the Right of Abode Section (“ROAS”) had made an assessment on his eligibility for right to abode in August 2019. On 14 August 2019, it was concluded that he had been absent from Hong Kong for a continuous period of not less than 36 months and had lost his permanent resident status under paragraph 7(a) of Schedule 1 to the Ordinance. Nevertheless, he still enjoyed the right to land in Hong Kong by virtue of section 2AAA of the Ordinance.

3. Records revealed that Mr Stewart’s father, Mr James Marvin STEWART JUNIOR, was approved employment visa on 6 October 1994. He acquired unconditional stay in Hong Kong on 16 January 1998, and subsequently acquired the right of abode in Hong Kong on 6 March 1998. Mr Stewart’s mother and two siblings, Madam Lynda Faye STEWART, Madam Charrise Lynn MATHEW and Mr James Marvin STEWART III, were approved dependant visa on 6 October 1994. They acquired unconditional stay in Hong Kong on 16 January 1998, and subsequently acquired the right of abode in Hong Kong on 6 March 1998.

4. In making the recommendation for Mr Stewart’s deportation, the Director of Immigration (“the Director”) has taken into account the representations made by him. The Director is aware that Mr Stewart’s HKPR brother and fiancée are in Hong Kong, and notices that he was born in Hong Kong and he had acquired the right to land in Hong Kong since 2019. However, the Director believes that Mr Stewart, being an able-bodied adult, should not have any undue hardship in re-establishing himself in the United States of America. The circumstances that the deportation of Mr Stewart may deprive him of his proximity to his family members in Hong Kong have also been carefully considered. The Director opines that Mr Stewart’s family members are free to visit or reunite with him outside Hong Kong if they wish to do so.

5. The Director considers that the offence committed by Mr Stewart is serious in nature, and that it will not be in the public interest to allow him to remain in or come to Hong Kong again. After careful consideration of all the circumstances, the Director recommends that Mr Stewart be deported for life on the basis of his criminal conviction in Hong Kong.

25.  On 18 March 2022, after considering all the circumstances, the Secretary made the Decision, making the Deportation Order against the Applicant.

C.  Relevant Legal Provisions

26.  As indicated above, the Applicant was made subject to the Deportation Order under section 20(1)(a) of the IO. Insofar as is material for present purposes, section 20 provides:

20. Power to deport

(1) The Chief Executive may make a deportation order against an immigrant if—

(a) the immigrant has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years; or

(b) the Chief Executive deems it to be conducive to the public good.

(5) A deportation order shall require the person against whom it is made to leave Hong Kong and shall prohibit him from being in Hong Kong at any time thereafter or during such period as may be specified in the order.

(7) A deportation order made against a person shall invalidate any permission or authority to land or remain in Hong Kong given to that person before the order is made or while it is in force.

27.  Hence, the power to deport arises only as regards an “immigrant”: see section 20(1). Further, a deportation order made will invalidate any permission or authority to land or remain in Hong Kong, whether given before the deportation order is in force or while it is in force: see section 20(7).

28.  Under section 2 of the IO, an “immigrant” means a person who is not an HKPR.

29.  HKPRs are, in turn, defined as persons who belong to a class or description of persons specified in Schedule 1 to the IO. Schedule 1, entitled ‘Permanent Residents of the Hong Kong Special Administrative Region’, relevantly states:

2. Permanent resident of the Hong Kong Special Administrative Region

A person who is within one of the following categories is a permanent resident of the Hong Kong Special Administrative Region –

(a) A Chinese citizen born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region.

(b) A Chinese citizen who has ordinarily resided in Hong Kong for a continuous period of not less than 7 years before or after the establishment of the Hong Kong Special Administrative Region.

(c) A person of Chinese nationality born outside Hong Kong before or after the establishment of the Hong Kong Special Administrative Region to a parent who, at the time of birth of that person, was a Chinese citizen falling within category (a) or (b).

(d) A person not of Chinese nationality who has entered Hong Kong with a valid travel document, has ordinarily resided in Hong Kong for a continuous period of not less than 7 years and has taken Hong Kong as his place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region.

(e) A person under 21 years of age born in Hong Kong to a parent who is a permanent resident of the Hong Kong Special Administrative Region in category (d) before or after the establishment of the Hong Kong Special Administrative Region if at the time of his birth or at any later time before he attains 21 years of age, one of his parents has the right of abode in Hong Kong.

(f) A person other than those residents in categories (a) to (e), who, before the establishment of the Hong Kong Special Administrative Region, had the right of abode in Hong Kong only.

30.  These paragraphs almost mirror Article 24 of the Basic Law (“BL 24”), which therefore need not be rehearsed here.

31.  Persons who have obtained the status of HKPR under §§2(d) to (f), who are invariably non-Chinese nationals, may lose that status as prescribed under §7:

7. Loss of the status as a permanent resident

A permanent resident of the Hong Kong Special Administrative Region loses the status of such resident only if—

(a) being a person falling within the category in paragraph 2(d) or (e) has been absent from Hong Kong for a continuous period of not less than 36 months since he ceased to have ordinarily resided in Hong Kong; or

(b) being a person falling within the category in paragraph 2(f), has been absent from Hong Kong for a continuous period of not less than 36 months after he obtained the right of abode in any place other than Hong Kong and has ceased to have ordinarily resided in Hong Kong.

32.  According to the Director’s memo, the Applicant obtained his HKPR status under §2(d), and therefore lost it under §7(a).

33.  Because an “immigrant” is a person who is not a HKPR, a person who has lost HKPR status becomes an immigrant.

34.  Nevertheless, as already touched on above, former HKPRs retain the “right to land” under Section 2AAA of the IO, which provides:

2AAA. Right to land in Hong Kong for former permanent residents

(1) Subject to subsections (2) and (3), any person who –

(a) immediately before 1 July 1997 was a Hong Kong permanent resident under this Ordinance as then in force but did not become a permanent resident of the Hong Kong Special Administrative Region upon the commencement of the Immigration (Amendment) (No. 2) Ordinance 1997 (122 of 1997) shall, immediately upon such commencement;

(b) is a permanent resident of the Hong Kong Special Administrative Region but ceases to be such a permanent resident by virtue of the operation of this Ordinance shall, immediately upon such cessation,

have the right –

(i) to land in Hong Kong;

(ii) not to have imposed upon him any condition of stay in Hong Kong, and any condition of stay that is imposed on him shall have no effect; and

(iii) not to have a removal order made against him.

(2) If a deportation order is made against a person who has the right to land in Hong Kong under subsection (1), the right shall cease while the deportation order is in force.

35.  Further, pursuant to section 2 of the IO:

(1)  “to land” means (1) enter by land or disembark from a ship or aircraft and (2) in the case of a person who arrives in Hong Kong otherwise than by land or in a ship or aircraft, land in Hong Kong; and

(2)  “condition of stay” limits the period during which a person may remain in Hong Kong and is synonymous with “limit of stay”.

36.  Pursuant to section 2A of the Ordinance, HKPRs hold “right of abode”, which – by way of contrast with the position of immigrants including former HKPRs – includes the right not to have removal orders or deportation orders made against them. Hence, the key difference between the “right of abode” and the “right to land” is whether or not the person who has the right may have a deportation order made against him: persons with the right of abode cannot be deported, but persons with the right to land can be deported.

37.  Save for those falling under sections 9 and 10 of the Ordinance (neither of which is material for present purposes), persons without a right of abode or a right to land are not entitled to land in Hong Kong without the permission of an immigration officer or assistant. The same is true for a person who was born in Hong Kong but who does not enjoy the rights of abode or to land in Hong Kong: see section 7 of the IO.

38.  The BORO was enacted to create the BOR, in effect broadly to implement the ICCPR. But, section 11 of the BORO contained what is called the “immigration reservation”.

39.  In 1976, the UK entered a reservation in respect of itself and Hong Kong when it signed and ratified the ICCPR. It stipulated:

The Government of the United Kingdom reserve the right to continue to apply such immigration legislation governing entry into, stay in and departure from the United Kingdom as they may deem necessary from time to time and, accordingly, their acceptance of article 12(4) and of the other provisions of the Covenant is subject to the provisions of any such legislation as regards persons not at the time having the right under the law of the United Kingdom to enter and remain in the United Kingdom. The United Kingdom also reserves a similar right in regard to each of its dependent territories.

40.  Section 11 of the BORO was enacted to implement the immigration reservation into Hong Kong domestic law: see Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59 (“Comilang”) at §22. Section 11 is as follows:

11. Immigration legislation

As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation.

41.  The meaning of the words “persons not having the right to enter and remain in Hong Kong” which are the focus of the argument in the present case. As was pointed out during the argument, although the constitutional status, scope and effect of section 11 has been examined in four Court of Final Appeal decisions, the precise ambit and scope of those words has not previously been considered.

42.  This provision is supported by Article 154 of the Basic Law, which empowers the Hong Kong Special Administrative Region (“HKSAR”) Government to apply immigration controls on entry into, stay in and departure from the Region by persons from foreign states and regions. It is also constitutionally entrenched, along with the rest of the BORO, by virtue of Article 39 of the Basic Law, which I need not quote here.

43.  The “right to enter and remain” in Hong Kong is not defined in the BORO. However, the phrase “right to enter” also appears in the Bill of Rights Article 8(4) (“BOR 8(4)”) and Basic Law Article 31 (“BL 31”), which may be relevant to the analysis below:

(1)  BOR 8(4) provides that:

No one who has the right of abode in Hong Kong shall be arbitrarily deprived of the right to enter Hong Kong.

(2)  BL 31 provides that:

Hong Kong residents shall have freedom of movement within the Hong Kong Special Administrative Region and freedom of emigration to other countries and regions. They shall have freedom to travel and to enter or leave the Region. Unless restrained by law, holders of valid travel documents shall be free to leave the Region without special authorisation.

44.  As for the right to family, and as stated above, BOR 19 stipulates that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

45.  Reference can also be made to section 12 of the BORO, and Article 9 (“BOR 9”). Section 12 provides that:

12. Persons not having the right of abode

Article 9 [i.e. BOR 9] does not confer a right of review in respect of a decision to deport a person not having the right of abode in Hong Kong or a right to be represented for this purpose before the competent authority.

46.  BOR 9 provides that:

Article 9 Restrictions on expulsion from Hong Kong

A person who does not have the right of abode in Hong Kong but who is lawfully in Hong Kong may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the applicant authority or a personal persons are specially designated by the competent authority.

47.  I will traverse these various provisions as necessary below.

D.  Statutory History

D.1  Introduction

48.  Mr Ho thought it helpful for the purposes of determining the point at issue to canvass matters relating to statutory history. Indeed, it is possible to explore the evolution of the right to land and the right of abode, before looking at section 11 of the BORO.

49.  That exercise, it seems to me, will lead to the same answer as can be found simply by looking at the material provisions without any trawl through historical materials: see section F of this Judgment (below). But the history undoubtedly supports the answer reached even without it.

50.  Some of the relevant history was canvassed in a case cited by Mr Ho, namely the decision of Zervos J (as Zervos JA then was) in Shove Sherpa v Director of Immigration [2018] 5 HKC 89 at §§44-50 – a decision upheld on appeal, [2020] 1 HKC 548. But that case did not concern the “right to land” or section 11 of the BORO in the same was as this case.

D.2  Pre-1971

51.  The IO was first enacted in 1971 (“IO 1971”). Prior to that, the phrase “right to land” did not exist in the Hong Kong statutes on immigration.

52.  Between 1842 and 1971, a patchwork of statutes regulated matters of immigration (involving the entry, stay and departure of persons), registration of persons, and deportation. Immediately before 1971, this patchwork of ordinances included the Immigrants Control Ordinance No. 4 of 1949 (“ICO 1949”); the Immigration (Control and Offences) Ordinance 1958 (“ICOO 1958”); the Deportation of Aliens Ordinance No. 39 of 1935 (“DAO”); and the Deportation (British Subjects) Ordinance No. 16 of 1936 (“DBO”).

53.  I do not think it necessary to rehearse the various provisions of the ICO 1949, ICOO 1958, DAO and DBO, but the following observations may be made. Between the four ordinances, they shared a high degree of similarity of what was meant by “aliens”, “immigrants”, “British subjects” and “British protected persons”.

54.  When it came to permitting persons entry into Hong Kong, and setting conditions for their stay, the ICO/ICOO did not draw any distinction between an alien and immigrant, or indeed a British subject or British protected person. However, under the DAO and DBO, deportation were only available against aliens and immigrant British subjects who did not belong to Hong Kong. Specifically, aliens were deportable for either being a deported British protected person, a convict of any Hong Kong crime, or a person not conducive to public good. For immigrant British Subjects not belonging to Hong Kong, they were deportable if any court recommended deportation as a response to conviction, if they are undesirable, if they are destitute, or if they are a prohibited immigrant.

55.  It seems British subjects who ‘belonged” to Hong Kong were not vulnerable to deportation altogether. These persons must first be British subjects, which meant they had to be a UK or Colony citizen, or a citizen of any country listed under section 1(3) of the British Nationality Act 1948. Then, in order to “belong” to Hong Kong, these British subjects had to be either born in Hong Kong, or born of parents who were ordinarily resident in Hong Kong during the birth, or ordinarily resident in Hong Kong for a continuous period of seven years.

56.  Of course, the ICO 1949, ICOO 1958, DAO and DBO applied without regard to who had a “right to land” or a “right of abode”, since these rights did not yet exist in Hong Kong. But it seems the word “land” was treated synonymously with “enter” and “arrive”.

D.3  IO 1971

57.  The phrase “right to land” first appeared in 1971 under IO 1971, which consolidated and amended the ICOO 1958, DAO and DBO. Section 7 of the IO 1971 provided that a person may not land in Hong Kong without the permission of an immigration officer unless he has the right to land in Hong Kong by virtue of section 8.

58.  This is an early example of the distinction between the right and a permission – the former a statutory right, the latter requiring the exercise of an administrative discretion.

59.  The IO 1971 also introduced the concept of a Hong Kong Belonger, defined in section 2.

60.  Section 8(1) provided that Hong Kong belongers (“HK Belongers”), resident United Kingdom belongers (“Resident UK Belongers”), and Chinese residents (“Chinese Residents”) shall each have a right to land in Hong Kong. Section 8(2) further provided that their right to land shall not be affected by any condition of stay imposed. Anyone who was not an HK Belonger was an immigrant: section 2. Those who fell outside these classes were immigrants without a right to land in Hong Kong, and therefore required the Immigration Department’s permission to enter Hong Kong under conditions of stay: sections 4, 7, 11 and 13 of the IO 1971.

61.  The “right to land” was not specifically defined in the IO 1971. Nonetheless, its meaning may be discerned from the context of the entire ordinance. First, the word “land” replaced the word “enter” in earlier legislation, but it seems only as a synonym, where the use of synonyms to signify the meaning of “land” is carried over from the previous ordinances, since even the words “enter”, “disembark” and “arrive” are used as substitutes to “land” in the very same provision of section that defines it.

62.  Further, as stated, section 7 allowed persons with the right to land under section 8 to land in Hong Kong without the permission of an immigration officer. Section 8(2) said a condition of stay should have no effect on such persons. Sections 18 and 19 did not allow for the removal of HK Belongers, Chinese Residents and Resident UK Belongers. Section 20 allowed for the deportation of the latter two classes of persons only. Hence, HK Belongers were immune from deportation.

63.  This was acknowledged in the debates over the bill to the IO 1971. Those debates also had the theme that the right to land was described as the right of entering, remaining, leaving and re-entering Hong Kong free from conditions of stay (though there was no direct reference to the right to land as including the freedoms from removal or deportation).

D.4  IO 1980 and 1982

64.  The 1980 edition of the IO replicated the provisions of the IO 1971 in respect of a HK Belonger, though the 1982 edition of the IO slightly redefined that term.

D.5  Joint Declaration

65.  Following the Sino-British Joint Declaration of 1984 (“Joint Declaration”), the IO 1971 was amended in 1987. Amongst other things, the Joint Declaration addressed the categories of persons who had a “right of abode” once the HKSAR was established upon the People’s Republic of China’s resumption of sovereignty over Hong Kong. Section XIV of Annex 1 to the Joint Declaration enumerated the classes of persons eligible to hold the right of abode, and provided that abode holders would be qualified to obtain permanent identity cards issued by the HKSAR Government (“HKIDs”).

D.6  IO 1987

66.  In order to implement the provisions of the Joint Declaration, and the effective transition of government in 1997, the Sino-British Joint Liaison Group agreed, amongst other things, to introduce the concept of “right of abode” and the term “Hong Kong permanent resident” (i.e. HKPR). This new status of HKPR was introduced by the 1987 IO, in its First Schedule. Further, section 2A(1) defined right of abode in Hong Kong as follows:

(1) A Hong Kong permanent resident enjoys the right of abode in Hong Kong, that is to say he has the right –

(a) to land in Hong Kong;

(b) not to have imposed upon him any condition of stay in Hong Kong, and any condition of stay that is imposed shall have no effect;

(c) not to have a deportation order made against him; and

(d) not to have a removal order made against him.

67.  The Explanatory Memorandum to the bill of the 1987 IO summarised these changes as:

[1.] The main object of this Bill is to amend the principal Ordinance by introducing the term “right of abode in Hong Kong” and according that right to “Hong Kong permanent residents” as defined. The Bill is complementary to proposed legislative amendments to the Registration of Persons Ordinance (Cap. 177). Those latter amendments introduce a new permanent identity card which will state that the holder has the right of abode in Hong Kong. Such cards will be required for the inclusion of a right of abode endorsement in British National (Overseas) passports and certificates of identity to be issued from 1 July 1987.

2. Clause 2 of the Bill amends the principal Ordinance by inserting a new definition of “Hong Kong permanent resident” which in turn refers to the new First Schedule (clause 27). The definitions “Chinese resident” and “Hong Kong belonger” are combined to become the new definition “Hong Kong permanent resident” and consequently those 2 existing definitions are removed. The definition “immigrant” has been amended and means anyone who is not a “Hong Kong permanent resident”. Certain other definitions have become redundant and are removed and the opportunity has been taken to revise others. The new definition “right of abode in Hong Kong” has been inserted and this refers to a new Part IA. (clause 3).

3. Clause 3 of the Bill adds a new Part IA to the principal Ordinance. This Part defines the right of abode in Hong Kong (enjoyed by a Hong Kong permanent resident) as the right to land, the right not to have imposed upon such person any condition of stay, and the right not to have a deportation order or removal made against such person.

68.  It can also be noted that the Legislative Council Brief dated 1 April 1987, prepared by the Security Branch, expressly identified the “right to land” as including the “right to enter and to remain free of conditions of stay”, and that “right of abode” should include or be equivalent to those rights in addition to freedom from removal and from deportation. What were previously HK Belongers and Chinese Residents were subsumed into the new status of HKPR, who would have right of abode. But resident British citizens and resident UK belongers would not have right of abode, but would continue to enjoy the right to land in Hong Kong, meaning the right to enter, the right to remain with freedom from conditions of stay, and freedom from removal. They would, however, be subject to deportation.

69.  The inclusion of the freedom from deportation to the right of abode was a deliberate effort to assure people holding the right that their future residence in Hong Kong was absolutely secure.

D.7  Promulgation of BL 24

70.  On 4 April 1990, the Basic Law was promulgated. BL 24 reflected the first paragraph of Section XIV of Annex 1 to the Joint Declaration, which identified the categories of persons who have the right of abode in Hong Kong. This meant that the IO would have to be amended in due course to align BL 24 on permanent residents of the HKSAR, and to provide details on how the article should be given effect.

71.  BL 24 also introduced a distinction between permanent residents and non-permanent residents, both of which still amounted to a “resident” under the Basic Law. Although this latter term is left undefined in the Basic Law, by inference it means persons who do not fall under the definitions of permanent residents enumerated under BL 24(2): see Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480 (“Gurung (CFA)”) at §1.

72.  BL 24(3) and (4) stipulate that HKPRs and non-HKPRs shall be persons who are qualified to obtain HKIDs, but the latter class shall not possess the right of abode, a fact that will be reflected in the HKIDs they obtain. At any rate, any resident may acquire an HKID.

D.8  1997 Amendments – Implementation of BL 24

73.  Between 1987 and 1997, steps were taken by the provisional authorities in Hong Kong that ultimately led to the Central People’s Government declaring that the law on HKPRs did not fully reflect BL 24 and would therefore not be adopted as part of the laws of the HKSAR upon its establishment. The Provisional Legislative Council remedied this problem with two amending ordinances in 1997.

74.  First was the Immigration (Amendment) Ordinance 1997 (“IO 1997 (No. 1)”). It was designed to amend the IO to bring the immigration status of “resident British citizens” and Resident UK Belongers into line with those of citizens from other countries. This was done by (1) removing such classes from the IO altogether; (2) having their right to land removed; (3) replacing the right with a status of unconditional stay; and (4) abolishing the procedure applicable only to the removal or deportation these classes of people: Explanatory Memorandum to the bill of the IO 1997 (No. 1); §12, Legislative Council Brief dated 13 February 1997.

75.  In its Report on the bill dated 9 April 1997, and in its Further Report dated 11 June 1997, the Bills Committee made the following points:

(1)  British citizens enjoyed privileges in immigration status mainly because of the special constitutional relationship between Hong Kong and the UK. The right to land is one of the elements of this privileged status: §2, Report; §9, Further Report. The Committee noted that the Administration proposed a package of legislative and administrative measures to bring the immigration status of British citizens on par with, but not in a disadvantaged position vis-à-vis, other foreign nationals: §3, Report; §10, Further Report.

(2)  The right to land in Hong Kong is the right to be free from any limit and condition of stay, and not removable from Hong Kong, but deportable. The right is also a statutory right: §2(b), Report; §9, Further Report; presumably derived from §3(b), Legislative Council Brief.

(3)  The differences between the right to land and unconditional stay are that the former is a statutory right, while those with the right are free from any conditions of stay and are subject to special removal and deportation arrangements: §14, Report; §10, Further Report.

76.  The second amending statute was the Immigration (Amendment) Ordinance (No. 2) 1997 (“IO 1997 (No. 2)”). Its purpose was to fully implement the right of abode as guaranteed under BL 24: Explanatory Memorandum of the bill to the IO 1997 (No. 2). Of importance was the addition of a new section 7A with the heading ‘Former Hong Kong permanent residents’:

(1) Subject to subsection (2), a person who had the right of abode in Hong Kong before or after the establishment of the [HKSAR] but who loses the right after the establishment of the [HKSAR] has the right–

(a) to land in Hong Kong;

(b) not to have imposed upon him any condition of stay in Hong Kong, and any condition of stay that is imposed has no effect; and

(c) not to have a removal order made against him.

(2) If a deportation order is made against the person, the right to land under subsection (1) ceases while the deportation order is in force.

77.  Section 7A applied to permanent residents who acquired a right of abode under paragraphs 2(d) to 2(f) in Schedule 1 to the IO (which dealt with non-Chinese persons). Paragraph 7 of Schedule 1 lists the situations when the right of abode would be lost. These paragraphs are already quoted above.

78.  According to the Bills Committee’s report on the bill dated 16 June 1997, it noted at §14 that:

The Bills Committee also seeks clarification from the Chief Executive's Office as to whether children born outside Hong Kong to former permanent residents need to return to Hong Kong before 30 June 1997 in order to qualify for the ROA. Upon clarification from the Chief Executive's Office, the Bills Committee notes that if such children do not qualify as Chinese citizens under the Nationality Law of the People's Republic of China as applied to the HKSAR, they will lose the ROA but will acquire instead the right to land in Hong Kong under the new section 7A irrespective of whether they are physically in Hong Kong on or before 30 June 1997. However, they could, if they wish, acquire ROA if they satisfy the conditions under paragraph 2(d) of Schedule 1 to the Bill.

79.  Similarly to the debates regarding the IO 1987, the amending ordinances of 1997 understood the right to land to be a bundle of rights. It was also described very broadly as a right to enter, live and work in Hong Kong, though the latter two words were apparently meant more as a practical description of the right or remaining. It was also understood to be a statutory right, distinct from for instance an unconditional stay, which was in essence an administrative arrangement.

80.  It was IO 1997 (No. 2) that first introduced the mechanism for HKPRs who acquired their status under §§2(d)-(f) under Schedule 1 to the IO to lose it under §7. At that time, section 7A operated in tandem with §7 of Schedule 1.

D.9  Adaptation Ordinance 1998: Refining the Right to Land

81.  The Adaptation of Laws (Nationality Related Matters) Ordinance No. 28 of 1998 (“AOL 1998”), was enacted amongst other things to make supplementary provisions for the right to land in Hong Kong enjoyed by former permanent residents: see Explanatory Memorandum to the bill to the AOL 1998.

82.  The Legislative Council Brief dated 12 February 1998 explained that:

3. Separately, Section 7A of the Immigration Ordinance (Cap. 115) (copy at Annex B) defines the “right to land” status of former Hong Kong permanent Residents (former HKPRs) who will be conferred such status upon ceasing to enjoy right of abode. Note: It is essential that the Immigration Ordinance be amended to reflect which provisions apply to persons with “right to land” for better presentation and technical refinement.

83.  It also noted that persons who enjoy "right of abode" or "right to land" in Hong Kong equally enjoy the right to enter, stay and work in Hong Kong unconditionally without any visa requirements. The only difference between "right of abode" and "right to land" is that a person who enjoys the former may not be deported: Note at page 1, Legislative Council Brief; see too §§12-13, Bills Committee Report dated 20 March 1998.

84.  To achieve these aims, the AOL 1998 repealed section 7A and replaced it with section 2AAA of the IO (which I have set out above). Regardless, this amendment added nothing new to the law on the right to land, since section 2AAA was only a “technical refinement”.

E.  Section 11 of the BORO

85.  I have set out above the provision in section 11 of the BORO. As sometimes described, it is the “immigration reservation”. Indeed, Comilang at §22 explained that section 11 BORO was enacted to implement the immigration reservation into Hong Kong domestic law.

86.  The Court of Final Appeal also noted in GA v Director of Immigration (2014) 17 HKCFAR 60 (“GA (CFA)”) at §29(2) and (3) that since section 11 referred to immigration legislation governing entry into, stay in and departure from Hong Kong, it also reflected Article 154(2) of the Basic Law, which authorises the HKSAR to exercise immigration controls on entry into, stay in and departure from the region. In short, the reservation as implemented via section 11 of the BORO was designed to enable effective immigration control to be exercised: see GA(CFA) at §29(3).

87.  The section 11 provision has been examined and explained by the Court of Final Appeal several times in the last twenty years or so. Relevant authorities include: Gurung (CFA); Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 (“Ubamaka”); GA (CFA); and Ghulam Rabani v Secretary for Justice (2014) 17 HKCFAR 138 (“Ghulam”), and Comilang. Amongst them can be found the following key principles:

(1)  Article 39 of the Basic Law constitutionally entrenched the Bill of Rights by incorporating it as part of the Basic Law: see Comilang at §24.

(2)  Article 39 also has the same effect on section 11 of the BORO, in that this section applied on a constitutional level to cognate rights enshrined in both the Bill of Rights and the Basic Law: see Comilang at §§24-35.

(3)  It can be noted that in Gurung (CFA) in 2002, section 11 was not yet expressly understood to be applicable on a constitutional level to Basic Law cognate rights, hence its minor role in the Court of Final Appeal’s decision, and was in any event only mentioned once at §22.

(4)  As a restricting provision, section 11 must be construed narrowly, whilst the rights and freedoms it may potentially restrict must be given a generous interpretation in light of their constitutionally protected status under the Basic Law and the Bill of Rights: see Gurung (CFA) at §24; Ubamaka at §116.

88.  The legislative history of section 11 was considered at length by the Court of Final Appeal in Ubamaka at §§48-96, GA(CFA) at §§28-29, and Comilang at §§17-27. As stated above, the starting point is that section 11 operates at the constitutional level.

89.  I acknowledge that in Tam Ng Yin v Director of Immigration (2001) 2 HKCFAR 251 at 261B, the Court of Final Appeal stated that the immigration reservation in section 11 have “the effect of rendering the ICCPR and the Bill of Rights inapplicable to immigration legislation in relation to persons who do not have the right of abode in Hong Kong”. However, in light of the issues in that case, I do not regard that as an authoritative statement that section 11 applies only to persons with the right of abode (and not to persons with the right to land). In any event, that case was somewhat earlier than the subsequent cases where the Court of Final Appeal appeared to say something different.

90.  Ubamaka at §46 (affirmed in GA(CFA) at §23) set out a four-stage analysis of whether section 11 precludes a person’s reliance on a right protected by the Bill of Rights or the Basic Law:

(1)  The Government bears the burden of proving that factually and as a matter of law the person who seeks to rely on a relevant right is a person who does not have the right to enter and remain in Hong Kong. This is because section 11 does not apply to HKPRs with a right of abode nor “to Hong Kong residents and others who are lawfully entitled to be in Hong Kong”.

(2)  The Government must also establish that it is seeking, as against that person, lawfully to enforce duties or to exercise powers arising under immigration legislation which govern entry into, stay in and departure from Hong Kong and that such duties or powers are properly applicable on the facts.

(3)  The person seeking protection of his rights must identify which rights from the Bill of Rights and/or the Basic Law he is invoking and must adduce evidence supporting his claim that such rights would be infringed if the Government were to proceed with its enforcement of its relevant duties or exercise of its relevant powers.

(4)  Whether the engaged and potentially infringed rights, due to the operation of relevant provisions of the immigration legislation, are capable of being displaced by section 11.

91.  Questions (2) and (4) are not controversial in the present case. It is questions (1) and (3) which are engaged, since the main issue is whether the Applicant did have a right to enter and remain in Hong Kong as the holder a right to land, and if so whether his BOR 19 rights were infringed by the making of the Deportation Order.

F.  Did the Applicant Have the Right to Enter and Remain?

92.  As stated above, the meaning of the words “persons not having the right to enter and remain in Hong Kong” in section 11 of the BORO are the focus of the argument in the present case.

93.  It is trite that, when interpreting statutory provisions, the Court must have regard to the natural language of the words used in proper context, and in light of the objectives and purposes of the provisions and instrument as a whole. A similar approach is taken to constitutional interpretation. But it can also be borne in mind that constitutional rights will generally be construed narrowly, and that the Basic Law must be construed coherently with the BOR and BORO, which include section 11.

94.  In this regard, reference can be made to the Court of Appeal decision in GA v Director of Immigration (unreported, CACV 44-48/2011, 27 November 2012) (“GA (CA)”) at §39, where Fok JA (as Fok PJ then was) made the point that, the language of the IO having been in place when the BORO was enacted, reading across to the IO when considering the meaning of section 11 is not only permissible but enables the Court to arrive at a proper purposive and contextual construction of section 11. I adopt that approach. It is obviously sensible to interpret section 11 by reference to cognate or similar terms found in the IO.

95.  The material argument as to the proper statutory construction of those words in section 11 was raised by the Applicant, and by my Leave Decision I granted leave to apply for substantive judicial review on that ground, but the Applicant made no further submissions at the hearing. Instead, the main ‘contest’ is between Mr Ho and Ms Cheng.

96.  Mr Ho submits that the words in issue identify the classes of persons which the legislature indicated would not be able to assert all BOR rights in immigration matters covered by any immigration legislation. Mr Ho submits that the Applicant – as a Former HKPR – is plainly without the right to “enter and remain in Hong Kong”, triggering section 11 of the BORO, with the effect that he is precluded from relying on BOR 19. In his written submissions, which he developed orally, he summarizes the reasons as follows:

(1)  First, linguistically and syntactically, the phrase “right to enter and remain” requires the person to have both the right to enter, and the right to remain, in Hong Kong.

(2)  Second, on a proper construction of section 11, the “right to remain” denotes a right to remain in unqualified terms (as otherwise the phrase would be devoid of meaning and superfluous). Since the legislature made clear the deliberate choice to retain the power to deport Former HKPRs, a Former HKPR does not enjoy any unqualified right to stay in Hong Kong and hence has no “right to remain” on top of his or her “right to enter” Hong Kong.

(3)  Third, on the facts of this case, the Applicant was made subject to the Deportation Order, which would also take away his right to land in (and hence right to enter) Hong Kong under section 2AAA(2) of the IO.

97.  As to the first two points, Mr Ho accepts that there might be two rival constructions of the provision, being: (1) where “the right to enter and remain” is read conjunctively as one single condition, so that it suffices to negate the condition if either the right to enter or the right to remain is lacking; and (2) where “not having the right to enter and remain” is read disjunctively as two separate conditions, so that to negate the conditions it has to be shown that the person lacks both the right to enter and the right to remain, and that if the person has either the right to enter or the right to remain, she falls outside the ambit of section 11.

98.  Mr Ho submits that the first construction is correct. As it happens, I do not think that is controverted by Ms Cheng. In any event, I accept it to be correct. A person “having the right to enter and remain in Hong Kong” within the meaning of those words in section 11 is a person who has both the right to enter and the right to remain. It is insufficient to have one right but not the other.

99.  However, I think this is something of a red herring. This is because the phrase “right to enter and remain in Hong Kong” is to identify an applicable bundle of rights, which some people will have but others will not. Though I have accepted they are different rights, the phrasing suggests they may in this context travel together.

100.  Indeed, it is clear that the real contest in this case is between (1) whether only HKPRs (and not Former HKPRs) have the right to enter and remain in Hong Kong, or (2) whether both HKPRs and Former HKPRs have the right to enter and remain in Hong Kong. That turns less on the “right to enter” than on the “right to remain”, because it does not seem controversial that (subject to Mr Ho’s third point on chronology) both HKPRs and Former HKPRs have the “right to land”. So, put shortly, where there is no doubt that a HKPR also has the “right to remain”, does a Former HKPR also have (or continue to have) that right?

101.  The straightforward answer to that question is ‘yes’:

(1)  The Former HKPR has the right to land referred to in the heading of section 2AAA of the IO.

(2)  That encompasses at least that (a) he needs no permission to enter and (b) he needs no permission to remain.

(3)  He has no need for either permission, because he has those rights.

(4)  There is a logic to the fact that a person who does not need permission to arrive also does not need permission to stay.

(5)  The Former HKPR cannot be made subject to any necessary discretionary permissions or conditions – neither as to entry/landing in Hong Kong, nor as to for how long he can stay/remain or what he must or may do whilst he stays/remains in Hong Kong.

(6)  The Former HKPR can come and go as he pleases, and live and work in Hong Kong if and as he chooses.

(7)  Those are statutory rights which he held as HKPR, and which he continues to hold as a Former HKPR.

(8)  On any view, the Former HKPR has the right to enter/land and the right to remain/stay and, if he does so, he does so lawfully.

102.  It seems to me that, to put it another way:

(1)  the phrase “right to enter” in section 11 is synonymous with the “right to land” simpliciter as enjoyed by both HKPRs and Former HKPRs under the IO;

(2)  the phrase “right to remain” in section 11 is synonymous with the right not to have any limits or conditions of stay imposed upon them as enjoyed by both HKPRs and Former HKPRs under the IO;

(3)  logically the two rights, though separate, can operate together;

(4)  in my judgment, the phrase “right to enter and remain” in Section 11 of the BORO therefore reflects the first two elements of the composite rights of the right of abode and the right to land under sections 2A and 2AAA of the IO.

103.  It can be noted that I am not the only one who has arrived at the same conclusion. Though the case was not cited to me in argument, Hartmann J (as he then was) said the same thing albeit obiter (not overturned on appeal) in Lau Fong v Director of Immigration (unreported, HCAL 128/1999, 29 June 2000) at p 24:

The [immigration] reservation is specific in that it applies to persons who do not have the right under our law to enter and remain in Hong Kong; the reservation does not apply to those who have right of abode or the right to land in Hong Kong in terms of section 2A or 2AAA of the [IO]. However it does apply to those persons, like the Applicant, who must seek the permission of the Director to enter Hong Kong and who may only stay for prescribed periods of time.

104.  This was also the approach advocated by Ms Cheng, acting impartially as a friend of the Court.

105.  However, Mr Ho answers the above question in the negative. He says that the “right to remain” is, ‘in the requisite sense’ (his words), an “unqualified right to remain”, which is not the case for a person who is always subject to the possibility of deportation.

106.  Mr Ho submits that it is apposite that the only difference between the rights enjoyed by a HKPR and a Former HKPR is that the latter is liable to be deported, while the former is not. That, he says, reflects a deliberate legislative choice to retain the power of deportation against Former HKPRs as part of the Government’s broader immigration control policy. That may well be correct, but it looks at the wrong question. That it is obviously correct that the power of deportation has been retained his vis-à-vis Former HKPRs seems to me to say little as to when or how that power might be exercised.

107.  Mr Ho submits that the power of deportation has been a powerful tool to distinguish between classes of people, and the relevant classes are immigrants and HKPRs, with the definition of “immigrants” as simply those people who are not HKPRs. So, he submits, the legislative intent behind retaining the power of deportation over Former HKPRs is to exercise tighter immigration control over those persons, because their connection with Hong Kong has become insufficiently close as a result of their continuous absence for more than 36 months since they ceased ordinarily to reside in Hong Kong. But, again, though that may well be correct, that simply identifies the retained power of deportation, and says little as to when and how that power might be exercised.

108.  Nor do Mr Ho’s submissions identify that, unless and until the power of deportation arises for consideration, the Former HKPR does not have the right to remain. Even if the word “unqualified” (which does not appear in section 11) is somehow to be added or read in to the phrase “right to remain”, then his right to remain is not qualified where the Former HKPR cannot have imposed upon him any limits or conditions of stay, and where any limits or conditions imposed are of no effect.

109.  I also do not think there is any support for Mr Ho’s submission to be found in the two cited cases of Lubiano v Director of Immigration [2020] 5 HKLRD 107 and Fernandez Yvette Dingle v Commissioner of Labour [2021] 3 HKC 369. Both cases concerned a foreign domestic helper (“FDH”), and it seems to me to be obvious that (1) a FDH is in a vastly different position than a Former HKPR, and (2) as a person without any entitlement to land in Hong Kong without the permission of an immigration officer, and who would then be subject to limits and conditions of stay, a FDH could not possibly be regarded as a person having the right to enter and remain in Hong Kong (as those cases confirm).

110.  I can turn conveniently to the chronological argument, raised by Mr Ho as an alternative in his third point. Mr Ho submits that because the Deportation Order has been made (on a prima facie lawful basis, as I held in my Leave Decision), the Applicant falls automatically within section 11 of the BORO as a result of the “ceasing” effect of section 20(7) of the IO, which he submits operates ab initio.

111.  In support of this point, he cites the Court of Appeal decision in Riaz v Permanent Secretary for Security [2021] HKCA 1017 (“Riaz”). The applicant was subject to an extant deportation order whose application to rescind or suspend the order was rejected. Leave to apply for judicial review against this refusal was refused and was upheld on appeal on the basis, inter alia, that the applicant fall within section 11, since the deportation order took away any right to enter and remain in Hong Kong. However, I think this case is readily distinguished:

(1)  I do not read the decision as saying that section 20(7) operates ab initio. It merely stated the obvious that the permission to enter and remain granted by the Director was given before the deportation order, which operated to abrogate the permission from the moment the order was granted. The prior permission was invalidated upon the making of the deportation order.

(2)  That is why, at the time of the application for suspension or rescission, the applicant was not a person having the right to enter and remain in Hong Kong.

(3)  But the present case is concerned with the time prior to the making of the Deportation Order.

112.  In any event, I find it inherently unattractive – and I think it is incorrect – to suggest that a Former HKPR who (on this argument) did have the right to enter and remain in Hong Kong is nevertheless to be treated by a later making of a deportation order as though he never had that right from the very moment he lost his right of abode as a HKPR and became a Former HKPR. Mr Ho’s submission would also mean that the practical effect of making any deportation order in the present context would be that the deportation order would never be capable of being challenged. It would mean that the very making of a deportation order would in effect ‘trump’ any potential challenge as to its being made, which cannot be right.

113.  This was also part of the reasoning adopted by the Court of Final Appeal in Gurung(CFA), when a similar line of argument had been advanced by the Director based upon section 11(10) of the IO, which operates automatically to invalidate a person’s permission to land or remain in Hong Kong upon that person departing from Hong Kong. Chief Justice Li said at §§37-38:

37. The rights to travel and to enter are constitutionally guaranteed by art.31 of the Basic Law and the courts must give them a generous interpretation. In the case of a non-permanent resident whose permitted limit of stay had not expired, his right to re-enter Hong Kong after travelling is an essential element of these rights. To deprive such a non-permanent resident of his right to re-enter Hong Kong by reason of his travelling outside Hong Kong is to contravene his rights to travel and to enter under art.31. Any application of s.11(10) to such a non-permanent resident would contravene these rights. This is because that provision fastens on the exercise of his right to travel, that is his departure, as the reason which triggers automatically the termination of the permission previously granted to him with a limit of stay which had not expired. Indeed, by effecting such termination, the application of s.11(10) to him would destroy his status as a non-permanent resident which is the foundation of the rights conferred by art.31.

38. It is unnecessary to consider in this case whether the rights to travel and to enter under art.31 could be subject to restrictions and if so, the test for judging permissible restrictions. Even assuming the rights in question can be restricted, the application of s.11(10) to him as discussed above would not merely amount to restrictions on his rights to travel and to enter. Such application would be totally inconsistent with his rights and indeed would have the effect of abrogating the rights in question. Accordingly, the application of s.11(10) to him would infringe his constitutional rights to travel and to enter under art.31 and such application would be unconstitutional and invalid.

114.  I am also not convinced section 20(7) of the IO is applicable in this case:

(1)  First, section 20(7) applies to persons with “permission or authority” to enter or remain in Hong Kong, but a Former HKPR needed no permission or authority to enter or remain, as he had those rights.

(2)  Secondly, whilst the invalidation of any permission or authority to land or remain in Hong Kong applies to that permission or authority even if it was given before the making of the deportation order, that does not mean (either logically or as a matter of construction) that the prior permission or authority is treated as never having been granted, as opposed to being treated as valid up until the making of the deportation order which renders it invalid.

(3)  Thirdly, section 2AAA(2) of the IO provides that the composite right to land enjoyed by former HKPRs “shall cease while the deportation order is in force”, which points to a current and forward-looking (and not back-dated or ab initio) removal of the rights. The cessation of the right begins from the making of the deportation order, and continues for as long as the deportation order is in force.

115.  The issue in the present case is whether the Secretary and Director acted lawfully in issuing the Deportation Order. Therefore, as Ms Cheng points out, the applicability of section 11 must be tested at the time of the making of the Decision, not at the time of these judicial review proceedings.

116.  As indicated above, reference might also be made to the Court’s approach to BL 31 and BOR 8(4). BL 31 enshrines the right of residents to “have freedom to travel and to enter or leave” Hong Kong. Hence, the Court’s construction of “enter” in the specific context of BL 31 may be relevant to the construction of the “right to enter” in Section 11 of the BORO.

117.  BL 31 was construed by Chief Justice Li in Gurung (CFA) in the following manner:

19. Article 31 confers on residents, permanent and non-permanent, a number of rights and freedoms. The second sentence guarantees “the freedom to travel and to enter or leave the Region”. “The freedom to travel” on its own in relation to a jurisdiction would involve the freedom to depart from and return to that jurisdiction. In any event, this is expressly provided for by the words “and to enter or leave the Region” in the second sentence after “the freedom to travel” …

37. The rights to travel and to enter are constitutionally guaranteed by art.31 of the Basic Law and the courts must give them a generous interpretation. In the case of a non-permanent resident whose permitted limit of stay had not expired, his right to re-enter Hong Kong after travelling is an essential element of these rights …

118.  Though the Court of Final Appeal did not provide further guidance on what the right to enter under BL 31 meant, it nonetheless affirmed the judgment of the Court of Appeal when it unanimously dismissed the appeal. The judges of the Court of Appeal in Gurung [2001] 3 HKLRD 32 (“Gurung (CA)”) had slightly different views as to what “right to enter” meant under BL 31. Le Pichon JA (with Rogers V-P in agreement) considered the right to enter under BL 31 to be different from the narrow right to land. But she noted that at a bare minimum the right to enter necessarily encompasses within it a right to land:

100. … The right to enter or leave connotes the ability to come or go at pleasure though, in the case of a non-permanent resident, only so long as the limit of stay (including any extensions thereto) has not expired through effluxion of time.

102. … So viewed from the other end, the Government is in no wise worse off if the right to enter has the meaning attributed to it in [§100] above, namely that it is a right to return and remain in Hong Kong until the permission to stay (already in place before the exercise of the freedoms under art. 31) were to expire through effluxion of time.

119.  Yuen J (as she then was) adopted a slightly different strand of reasoning, being of the view that the freedom to enter was synonymous with the right to land as understood under the IO: see §§108-109. It meant, “as a corollary to the freedom to leave, that no entry permit would be required for a Hong Kong resident”. Hence all members of the Court of Appeal agreed that the bare minimum of the right to enter is the right to land simpliciter under the IO. The majority also thought that BL 31 contains a right to enter and a right to remain, the latter being limited by the terms of a permission of stay (if any is imposed).

120.  Regarding BOR 8(4), it seems improbable that this right is limited to landing in Hong Kong only, for such a right would be superfluous if after landing an HKPR is required to seek permission to remain in Hong Kong. Obviously, it means both the right to land simpliciter and remain. BOR 8(4) was no more than an assurance that right of abode holders would never be denied entry or deprived of the right of entry to Hong Kong arbitrarily. I do not think it was meant to confine the “right to enter” under section 11 of the BORO to abode holders, especially because the right to enter is not unique to the right of abode under the IO.

121.  Mr Ho has also mentioned BOR 9 and section 12 of the BORO, though he did not really pursue the point in oral argument. In any event, they essentially concern procedural fairness in respect of deportation of non-HKPRs, but that is not the point in issue.

122.  Lastly, I record that part of the debate between the parties involved the legal position of non-permanent residents and others who have a permission to enter and remain in Hong Kong, like visitors, and whether they fall under the ambit of Section 11 of the BORO. However, I do not think analysis of this point is either strictly necessary or particularly fruitful. As was accepted during argument, though the Court of Final Appeal has traversed some of the ground relevant to section 11 in the previous decision mentioned above, the precise question at issue in the present case has not been squarely addressed. I think it suffices simply to note that cases such as Ubamaka, GA, Ghulam and Comilang have at least consistently reiterated that persons other than abode holders may have the right to enter and remain, and thus falling outside section 11.

123.  As Ms Cheng points out, in Ubamaka at §46(a), Ribeiro PJ stated that section 11 does not apply to Hong Kong permanent residence with a right of abode to Hong Kong residents and others who are lawfully entitled to be in Hong Kong. As Ms Cheng also points out, the Applicant was, at the time of consideration of making the Deportation Order, at the very least a Hong Kong resident lawfully entitled to be in Hong Kong.

124.  In conclusion, at the point of time prior to the making of the Deportation Order, and the consideration of making it, the Applicant was a person who had the right to enter and remain in Hong Kong, and therefore the immigration reservation did not apply to him. Therefore, he was entitled to have his BOR 19 rights mandatorily taken into account during the process of the consideration as to whether or not to make the Deportation Order against him.

G.  Have the Applicant’s BOR 19 Rights Been Infringed?

125.  It is convenient to deal with Mr Ho’s first point, namely that a proportionality analysis is in apposite when the legislature had already conducted the balancing exercise in prescribing the circumstances under which deportation had been made, and there is no challenge against the constitutionality of section 20 of the IO itself.

126.  Mr Ho cites HKSAR v Ng Ngoi Yee Margaret (2024) 27 HKCFAR 434 at §§122-126, where in the context of a criminal case it was held to be inappropriate to introduce proportionality assessments and every stage of arrest, prosecution, conviction and sentence, given that there are well-developed rules of law and procedure governing those processes which have their own logic and justification. However, it seems to me that that case is readily distinguished, because it concerned a systemic challenge against each and every step of the criminal process. However, the present case concerns a challenge only against the making of the Deportation Order, in circumstances where I have held that the Applicant at the material time fell outside section 11, and so was not prevented from asserting his BOR 19 rights.

127.  The starting point is to recognise the appropriate scope and meaning of BOR 19. I do not think it is controversial that “family” is to be interpreted broadly. It does not refer solely to the family home during a marriage or cohabitation. It could go beyond a person’s immediate family, and might include a spouse and children, extended family, such as a parent, an adult child, grandparent or grandchild. Indeed, it has become important to accept the concept of the various forms of family as exist. Though there must be bare minimums to exist before a family qualifies under BOR 19, such as living together, economic ties and a regular and intense relationship, determining whether a family does exist is a question of fact.

128.  In my view, the making of a deportation order could interfere with BOR 19 rights. Indeed, it seems trite that expulsion of an individual from the place where his family members are living is likely, at least prima facie, to amount to an interference with the rights to family. Here, the Applicant has a brother and fiancée in Hong Kong, and it seems to me that is sufficient to constitute a “family” under BOR 19. Hence, his separation from them upon deportation would be an interference.

129.  Hence, the mandatory requirement to take the Applicant’s BOR 19 rights into account arose so as to assess whether the interference could be objectively justified in the light of (a) the significance of the reasons for deportation and (b) the degree of hardship the family and its members would encounter as a consequence of such deportation if effected. As I have already identified, that is a proportionality analysis. It is an analysis which seeks to balance the State’s interest on the one hand and individual rights on the other. The analysis can be or will be fact-sensitive to the particular circumstances of the case.

130.  This is not the exercise which the Secretary and Director consciously engaged in at the time of considering making the Deportation Order against the Applicant. This is because they approached the decision-making on the usual basis that there is no obligation to take humanitarian or compassionate factors into account, and that if those factors are taken into account the weight to be given to them is a matter entirely for the Secretary and Director (subject only to interference on Wednesbury unreasonableness grounds).

131.  However, this case might well identify the existence of a distinction without a material difference. This is because I think there is considerable force in Mr Ho’s submission that the Secretary and Director did substantially the same thing as would be required under the proportionality analysis consciously performed, as they did when in fact they took the humanitarian and compassionate matters raised on behalf of the Applicant into account.

132.  The Secretary and Director relied upon same evidence advanced by the Applicant in the materials provided by him or on his behalf during the decision-making process, and which he has in effect repeated in these proceedings (where he has chosen not to provide any supplementary material, notwithstanding the right to do so granted by my directions permitting him right of reply on the evidence).

133.  Those materials do not assist in showing that deportation would cause a significant degree of hardship on the family as a whole. There is nothing to suggest that his brother would struggle continuing his own existence in Hong Kong, especially since he is an HKPR, which indicates permanency, and that he has run a business in Hong Kong for over a decade. Similarly, little was adduced on the Applicant’s fiancée, who also is an HKPR; the Applicant asserted only that he had a fiancée, and that they intend to marry after his release from prison and start a family in Hong Kong. No further evidence was adduced to show any steps taken by the Applicant and his fiancée towards these ends, if any. Also, the Applicant’s lengthy stay of around seven years in the US, and the fact that his parents and sister currently live there, suggest some familiarity and ability to support himself there, and perhaps, his fiancée if she chooses to join him in the event of his deportation.

134.  Further, although the Applicant lived in Hong Kong for most of his life and was convicted at least four years ago, the nature and seriousness of the crime he committed (trafficking in dangerous drugs) may properly be regarded as a particularly weighty factor in supporting the Deportation Order’s objectives of deterring others (be they former HKPRs or other immigrants) from committing the same or similar crime, and to reflect the public’s revulsion.

135.  Therefore, in this case, I accept that the same reasons would be adopted by the Secretary and Director as would be applied even upon the proportionality analysis. Indeed, the actual thought process and reasoning which is evident from the materials – which I have quoted at some length in the ‘Further Background’ section of this Judgment – shows that the Secretary and Director did appropriately weigh the potential effect of the Deportation Order on the Applicant’s unity with his family in Hong Kong, as well as the effect it would have on him personally, as against the public interest in deporting him. If it is strictly correct that the consideration did not extend to the precise hardship as may be caused, that simply reflects that the Applicant failed to advance any further material in that respect – even in these proceedings.

H.  Result

136.  I find that the Applicant was at the material time a person who had the right to enter and remain in Hong Kong, and therefore the immigration reservation did not apply to him. Therefore, he was entitled to have his BOR 19 rights mandatorily taken into account during the process of the consideration as to whether or not to make the Deportation Order against him, triggering a proportionality analysis.

137.  However, the Applicant fails in establishing that the Deportation Order was a disproportionate measure in the Hysan sense.

138.  In any event, even were the Decision to be quashed and the matter sent back for review, it is clear that the Secretary and Director would be bound to reach the same conclusion to issue the Deportation Order.

139.  The Deportation Order therefore stands, and the substantive application for relief fails.

140.  In light of the division of spoils, and in the exercise of my broad discretion as to costs, I make no order as to costs between the Applicant and the Respondents. The costs of the amici curiae will be paid from public funds in the usual way. Nevertheless, I make those costs orders in the first instance on a nisi basis, to become absolute after 14 days if no party application for variation. Any such variation application will be dealt with on paper.