AZAN AZIZ MARWAH v. DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 38/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 38 OF 2008

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J U D G M E N T

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Facts

1.  This application for judicial review raises the question of how a person, who is not of Chinese descent, can acquire Chinese nationality under the Nationality Law of the People’s Republic of China as applied to Hong Kong.

2.  The applicant’s father, Mr Marwah, was born in India on 10 November 1948 and is a native Indian.  He first registered for a Hong Kong identity card in January 1974.  He acquired the status of a permanent resident of the Hong Kong Special Administrative Region (HKSAR) in January 1998.

3.  The applicant’s mother, Mrs Marwah, was born in the United States on 10 September 1947 and is a US citizen.  She first registered for a Hong Kong identity card in January 1975 and became a permanent resident of the HKSAR in December 1997.

4.  The applicant was born in Hong Kong on 3 August 1983.  Shortly after he was born, his birth was reported to the Consulate General of the United States in Hong Kong as a citizen of the USA born abroad.  The applicant is a citizen of the United States at birth and is the holder of a US passport.  He acquired the status of a permanent resident of the HKSAR on 6 January 1998.  He was first issued with a Hong Kong permanent identity card in January 2002.  The applicant has been living in Hong Kong since birth but is now reading law in London.

5.  On 3 September 2003, upon Mr Marwah’s application, the Director of Immigration granted him a Certificate of Naturalisation as a Chinese national.  He has since become a Chinese national and has been issued with a Home Visit Card.  Mr Marwah is now holding a HKSAR Passport as well as a Hong Kong permanent identity card.

6.  On 4 July 2006, the applicant applied to the Director for a HKSAR Passport pursuant to s 3 of the Hong Kong Special Administrative Region Passports Ordinance (Cap 539).  His application, however, was rejected on the ground that he is not a Chinese citizen: s 3(2)(a) of the Ordinance.  Under s 2 of the Ordinance ‘Chinese citizen’ means:

“A person of Chinese nationality under the Nationality Law of the People’s Republic of China, as implemented in the Hong Kong Special Administrative Region in accordance with the Explanations of Some Questions by the Standing Committee of the National People’s Congress concerning the implementation of the Nationality Law of the People’s Republic of China in the Hong Kong Special Administrative Region adopted at the 19^th meeting of the Standing Committee of the National People’s Congress at the 8^th National People’s Congress on 15 May 1996.”

7.  The applicant’s appeal from the Director’s refusal to the HKSAR Passports Appeal Board was summarily dismissed by the Appeal Board by letter dated 21 November 2007.

Nationality Law of the PRC

8.  At issue is whether the applicant’s case falls within art 4 of the Nationality Law of the People’s Republic of China as applied to Hong Kong.

9.  The Nationality Law of the People’s Republic of China is one of the national laws which applies locally with effect from 1 July 1997 pursuant to Annex III of the Basic Law.

10.  The Nationality Law was the Mainland Government’s first set of nationality law.  It was adopted and promulgated in 1980 and came into force on 10 September 1980.  It was, of course, enacted only in Chinese, and the relevant provisions are reproduced below, with an English translation taken from the HKSAR’s Promulgation of National Laws 1997 dated 1 July 1997, Schedule 4:

“第一條  中華人民共和國國籍的取得、喪失和恢復，都適用本法。

第二條  中華人民共和國是統一的多民族的國家，各民族的人都具有中國國籍。

第三條  中華人民共和國不承認中國公民具有雙重國籍。

第四條  父母雙方或一方為中國公民，本人出生在中國，具有中國國籍。

第五條  父母雙方或一方為中國公民，本人出生在外國，具有中國國籍；但父母雙方或一方為中國公民並定居在外國，本人出生時即具有外國國籍的，不具有中國國籍。

第六條  父母無國籍或國籍不明，定居在中國，本人出生在中國，具有中國國籍。

第七條  外國人或無國籍人，願意遵守中國憲法和法律，並具有下列條件之一的，可以經申請批准加入中國國籍：

一、中國人的近親屬；

二、定居在中國的；

三、有其他正當理由。

第八條  申請加入中國國籍獲得批准的，即取得中國國籍；被批准加入中國國籍的，不得再保留外國國籍。

第九條  定居外國的中國公民，自願加入或取得外國國籍的，即自動喪失中國國籍。

第十條  中國公民具有下列條件之一的，可以經申請批准退出中國國籍：

一、中國人的近親屬；

二、定居在中國的；

三、有其他正當理由。

第十一條  申請退出中國國籍獲得批准的，即喪失中國國籍。

…

第十四條  中國國籍的取得、喪失和恢復，除第九條規定的以外，必須辦理申請手續。未滿十八周歲的人，可由其父母或其他法定代理人代為辦理申請。

第十七條  本法公布前，已經取得中國國籍的或已經喪失中國國籍的，繼續有效。

…

(English translation)

Article 1  This Law is applicable to the acquisition, loss and restoration of nationality of the People’s Republic of China.

Article 2  The People’s Republic of China is a unitary multinational state; persons belonging to any of the nationalities in China shall have Chinese nationality.

Article 3  The People’s Republic of China does not recognize dual nationality for any Chinese national.

Article 4  Any person born in China whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality.

Article 5  Any person born abroad whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality.  But a person whose parents are both Chinese nationals and have both settled abroad, or one of whose parents is a Chinese national and has settled abroad, and who has acquired foreign nationality at birth shall not have Chinese nationality.

Article 6  Any person born in China whose parents are stateless or of uncertain nationality and have settled in China shall have Chinese nationality.

Article 7  Foreign nationals or stateless persons who are willing to abide by China’s Constitution and laws and who meet one of the following conditions may be naturalized upon approval of their applications:

(1) they are near relatives of Chinese nationals;

(2) they have settled in China; or

(3) they have other legitimate reasons.

Article 8  Any person who applies for naturalization as a Chinese national shall acquire Chinese nationality upon approval of his application; a person whose application for naturalization as a Chinese national has been approved shall not retain foreign nationality.

Article 9  Any Chinese national who has settled abroad and who has been naturalized as a foreign national or has acquired foreign nationality of his own free will shall automatically lose Chinese nationality.

Article 10  Chinese nationals who meet one of the following conditions may renounce Chinese nationality upon approval of their applications:

(1)they are near relatives of foreign nationals;

(2)they have settled abroad; or

(3)they have other legitimate reasons.

Article 11  Any person who applies for renunciation of Chinese nationality shall lose Chinese nationality upon approval of his application.

…

Article 14  Persons who wish to acquire, renounce or restore Chinese nationality, with the exception of the cases provided for in Article 9, shall go through the formalities of application. Applications of persons under the age of 18 may be filed on their behalf by their parents or other legal representatives.

…

Article 17  The nationality status of persons who have acquired or lost Chinese nationality before the promulgation of this Law shall remain valid.

…”

The Explanations

11.  Given the peculiar circumstances of Hong Kong residents in terms of their nationalities and rights of abode overseas, the Standing Committee of the National People’s Congress has given certain explanations concerning the implementation of the Nationality Law in Hong Kong after 1997.  As mentioned, those explanations are known as ‘Explanations of Some Questions by the Standing Committee of the National People’s Congress concerning the implementation of the Nationality Law of the People’s Republic of China in the Hong Kong Special Administrative Region’ (the Explanations), which were adopted at the 19^th meeting of the Standing Committee of the National People’s Congress at the 8^th National Congress on 15 May 1996.  The relevant part of the Explanations reads (English translation):

“… Taking account of the historical background and the existing circumstances of Hong Kong, the Standing Committee gives the following explanations concerning the implementation in the Hong Kong Special Administrative Region of the Nationality Law of the People’s Republic of China-

  1.Where a Hong Kong resident is of Chinese descent and was born in the Chinese territories (including Hong Kong), or where a person satisfies the criteria laid down in the Nationality Law of the People’s Republic of China for having Chinese nationality, he is a Chinese national.

  2.All Hong Kong Chinese compatriots are Chinese nationals, whether or not they are holders of the ‘British Dependent Territories Citizens passport’ or ‘British Nationals (Overseas) passport’.  With effect from 1 July 1997, Chinese nationals mentioned above may, for the purpose of travelling to other countries and territories, continue to use the valid travel documents issued by the Government of the United Kingdom.  However, they shall not be entitled to British consular protection in the Hong Kong Special Administrative Region and other parts of the People’s Republic of China on account of their holding the above mentioned British travel documents.

  3.According to the Nationality Law of the People’s Republic of China, the British Citizenship acquired by Chinese nationals in Hong Kong through the ‘British Nationality Selection Scheme’ will not be recognised.  They are still Chinese nationals and will not be entitled to British consular protection in the Hong Kong Special Administrative Region and other parts of the People’s Republic of China.

  4.Chinese nationals of the Hong Kong Special Administrative Region with right of abode in foreign countries may, for the purpose of travelling to other countries and territories, use the relevant documents issued by the foreign governments.  However, they will not be entitled to consular protection in the Hong Kong Special Administrative Region and other parts of the People’s Republic of China on account of their holding the above mentioned documents.

  5.If there is a change in the nationality of a Chinese national of the Hong Kong Special Administrative Region, he may, with valid documents in support, make a declaration at the authority of the Hong Kong Special Administrative Region responsible for nationality applications.

  6.The Government of the Hong Kong Special Administrative Region is authorised to designate its Immigration Department as the authority of the Hong Kong Special Administrative Region responsible for nationality applications.  The Immigration Department of the Hong Kong Special Administrative Region shall handle all nationality applications in accordance with the Nationality Law of the People’s Republic of China and the foregoing provisions.”

12.  The legislative intent behind the Explanations was elaborated by Mr Qiao Xiao Yang (喬曉陽), who was then the Vice-Chairman of the Legislative Affairs Commission of the Standing Committee of the National People’s Congress, in an address he gave to the 19^th meeting of the Standing Committee of the 8^th National People’s Congress on 7 May 1996.  The relevant part of the address reads (English translation):

“  Due to historical reasons, the nationality status of Hong Kong residents is quite complicated.  At present, apart from the British Dependent Territories Citizens’ Passport and the British National (Overseas) Passport issued by the British Government, many Hong Kong residents of Chinese descent are holders of passports issued by other countries.  In 1990, the British Government, in breach of its promise, implemented the so-called British Nationality Selection Scheme and unilaterally decided to grant British citizenship to 225 000 Chinese compatriots residing in Hong Kong.  This made the nationality issue of Hong Kong residents even more complicated.  …

To maintain the stability and prosperity of Hong Kong and to ensure the smooth implementation of the Nationality Law, and in view of the historical background and the reality of Hong Kong, the Standing Committee of the National People’s Congress should make a legal interpretation on the problems concerning the implementation of the Nationality Law in the Hong Kong Special Administrative Region in accordance with the provisions of the Nationality Law, the Basic Law and the usual practice of the State in handling the nationality issue of Hong Kong residents. … The Draft Interpretation is explained as follows.

1.Questions concerning the Chinese nationality of Hong Kong residents

In accordance with the Nationality Law of the People’s Republic of China, all Chinese compatriots residing in Hong Kong are Chinese nationals.  As the majority of Hong Kong residents are of Chinese descent and were born in the territory of China, they should have Chinese nationality.  Therefore, regarding the acquiring of Chinese nationality, Article 1 of the Draft Interpretation, based on the relevant provisions of the Nationality Law, provides a more explicit explanation which reads ‘Where a Hong Kong resident is of Chinese descent and was born in the Chinese territories (including Hong Kong), or where a person satisfies the criteria laid down in the Nationality Law of the People’s Republic of China for having Chinese nationality, he is a Chinese national.’  This interpretation, which is in line with the basic principle prescribed by the Nationality Law of taking the doctrine of descent (jus sanguinis) as the first consideration and integrating with the doctrine of the place of birth (jus soli), provides a more objective standard for ascertaining the Chinese nationality of Hong Kong residents in a simple and convenient way.

2.Questions concerning the status of ‘British Dependent Territories Citizens’ and the British citizenship granted under the ‘British Nationality Selection Scheme’

Problems concerning the status of Hong Kong residents who are ‘British Dependent Territories Citizens’ were resolved in the Exchange of Memoranda between the governments of the two countries when the Sino-British Joint Declaration was signed.  Regarding the ‘British Nationality Selection Scheme’, China has already stated clearly that the British citizenship of Chinese national residing in Hong Kong granted under the ‘British Nationality Selection Scheme’ shall not be recognized.  Articles 2 and 3 of the Draft Interpretation seek to settle these two questions in a legal manner.

3.Questions concerning the foreign travel documents held by Chinese nationals residing in Hong Kong

At present, some Chinese compatriots in Hong Kong hold foreign passports for the convenience of travelling.  Article 4 of the Draft Interpretation particularly deals with this situation.  According to the Article, in ascertaining the Chinese nationality of Hong Kong compatriots, the question of whether they are holders of foreign passports shall not be considered.  In practice, their foreign passports are regarded only as a travel document and they are allowed to continue to use them for the purpose of travelling to other countries or regions.  But such travel documents shall have no legal effect in demonstrating nationality status in the Hong Kong Special Administrative Region (HKSAR) and any other part of the People’s Republic of China.  This is a concrete manifestation of the basic principle of the Nationality Law of not recognizing dual nationality as applied to the HKSAR and a flexible and practical provision that facilitates the exit and entry of Hong Kong residents.  This will have a positive effect on maintaining Hong Kong’s status as a free port and an international financial and trade centre, as well as the stability and prosperity of the Hong Kong community.

…

The Nationality Law has express provisions on how to handle applications for Chinese nationality by Hong Kong residents who are not Chinese nationals.  The competent authorities of the Hong Kong Special Administrative Region that handle nationality applications may handle such applications in accordance with the Nationality Law and this Interpretation.

…”

Rival arguments

13.  As mentioned, the Nationality Law was made applicable to the HKSAR by way of promulgation by the HKSAR on 1 July 1997.

14.  It is the applicant’s case that he falls within art 4 of the Nationality Law.  His argument is straightforward.  He contends that his father is a Chinese national (through naturalisation) and he was born in China (including Hong Kong), and therefore he has Chinese nationality.  He fulfils in entirety the requirements set out in art 4 of the Nationality Law.  He further contends that since his father became a Chinese national by naturalisation on 3 September 2003, he also became a Chinese national as from that day. 

15.  The counter argument by the Director is equally straightforward.  Art 4, Mr Anderson Chow SC appearing for the Director contends, refers to the time of birth of the person claiming nationality.  In other words, art 4 determines the nationality of the person at birth, but not at any other subsequent time.  Therefore, looking at the matter at the time of birth, a person has Chinese nationality when he is born in China (including Hong Kong) if his parents or one of them is a Chinese national.  Any acquisition of Chinese nationality by his parents (or one of them) at any later point in time is wholly irrelevant.

16.  Mr SH Kwok, Mr Newman Lam with him, appearing for the applicant, further contends, as a fallback position, that the Explanations have, in any event, the effect of relaxing the provisions in the Nationality Law when it is applied to Hong Kong.  I will presently return to Mr Kwok’s fallback argument.  I will focus on the Nationality Law as enacted first.

Chinese text

17.  In interpreting the Nationality Law as enacted, one must bear in mind that it is a piece of Mainland legislation, which was enacted only in Chinese.  It is the original Chinese text that one must look at closely.  The English translation is no more than a translation.  Art 4 reads in Chinese:

“父母雙方或一方為中國公民，本人出生在中國，具有中國國籍。”

18.  One should immediately note that as a matter of Chinese language, the words used are capable of bearing both the meaning contended for by the applicant, as well as that maintained by Mr Chow.  In particular, the Chinese character “為” (be), can refer to a present state of affairs, or a state of affairs which existed or had already existed at or prior to the time of birth.

19.  Moreover, the Chinese wording is capable of referring to a state of affairs which existed at the time of birth, as well as a state of affairs as at the present or indeed as at any point in time.

20.  In those circumstances, there is no question of deciding the dispute in the present case by the natural meaning of the provisions only.

Purpose and context

21.  Nor should that be the correct approach.  The correct approach must be to examine the provisions in the light of their purpose and context.

22.  In this regard, it is important to look at the Nationality Law as a whole.  Art 1 sets out what the Law is enacted to deal with.  

23.  Art 2 sets out the fact that China is a unitary multi-national (or multi-ethnical) state and persons belonging to any of the nationalities (or ethnical groups) in China shall have Chinese nationality.

24.  Art 3 sets out an important principle under Chinese nationality law, namely, the non-recognition of dual nationality.

25.  Arts 4-8 are important and should be read together.  Very generally speaking, art 4 deals with those who were born in China of Chinese nationals.  Art 5 concerns those born overseas of Chinese nationals.  Art 6 deals with those born in China of persons with doubtful or no nationality.  Arts 7 and 8 deal with naturalisation of foreigners.

26.  I will first look at Mr Chow’s contention in light of these articles.  According to Mr Chow’s contention, arts 4-8 represent an orderly and simple scheme of nationality (including naturalisation) to apply.  Save for naturalisation, everything is to be looked at and determined as at the time of birth.

27.  Thus, for a person born in China (including Hong Kong),

(a)  if one or both of the parents are Chinese nationals at the time of birth, the person automatically has (具有) Chinese nationality at birth (art 4);

(b)  if none of the parents is a Chinese national at the time of birth but one of them is a foreign national, the person does not have Chinese nationality at birth (arts 4 and 6), but such a person, if he subsequently wants to acquire (取得) Chinese nationality, can apply for naturalisation (arts 7 and 8);

(c)   if both parents are stateless or are of uncertain nationality and have settled in China at the time of birth, the person has Chinese nationality at birth (art 6);

(d)  if his case does not fall within any of the above, the person does not have Chinese nationality at birth, but he can, if he wishes to acquire Chinese nationality later on, apply for naturalisation pursuant to arts 7 and 8.

28.  For a person born outside China,

(a)  if none of the parents is a Chinese national at the time of birth, the person does not have Chinese nationality at birth (art 5), but he may, if he wishes to acquire Chinese nationality subsequently, apply for naturalisation pursuant to arts 7 and 8;

(b)  if (i) one or both parents are Chinese nationals at the time of birth, (ii) one or both of them have settled aboard at the time of birth, and (iii) the person has (具有) foreign nationality at birth, then that person does not have Chinese nationality at birth (art 5), but he may apply for nationalisation pursuant to arts 7 and 8 if subsequently he wishes to acquire Chinese nationality;

(c)  if one or both parents are Chinese nationals at the time of birth, and (i) none of them has settled aboard at the time of birth or (ii) the person does not have foreign nationality at birth, that person has Chinese nationality at birth (art 5).

29.  Mr Chow accepts that his construction, based on looking at everything as at the time of birth, is subject to one exception.  That is to say, if one or both parents were already dead at the time of birth, the nationality (if any) of the deceased parent(s) at the time of death must be looked at in order to apply the articles.  Mr Chow contends that this result can be easily achieved by a purposive construction of the articles.

Odd results under applicant’s construction

30.  On the other hand, Mr Kwok’s construction of these articles is much more complicated.  If I understand his argument correctly, he accepts everything said by Mr Chow in relation to when a person may have Chinese nationality at birth.  However, he goes further.  He says that the relevant provisions apply not only to having Chinese nationality at birth, but are intended to apply at any given point in time as well.  So in the case of art 4, the parent or parents need not be a Chinese national at the time of birth: as and when one of the parents acquires Chinese nationality since birth of the child in question, the child is also entitled to Chinese nationality upon the parent’s acquisition of Chinese nationality (by naturalisation), without a separate application for naturalisation of his own.  All he needs to do to formally obtain Chinese nationality is to make a formal application (under art 14), which must be approved.  In fact, that represents precisely the applicant’s case.

31.  Although Mr Kwok has attempted to limit his argument to art 4 and the type of situations faced by his client, given the same wording used in the first part of art 5, it is difficult not to conclude that under Mr Kwok’s argument, the same applies to a person born outside China.  In other words, for a person born outside China, even though none of his parents was a Chinese national at the time of birth, so long as one of them becomes a Chinese national subsequently, that person also has Chinese nationality as well, without needing to make a separate application for naturalisation.

32.  All this would lead to odd results. 

33.  Take a US couple giving birth to a child whilst working on a short-term basis in China as an example.  The child does not have Chinese nationality at birth because his parents are US citizens.  Rather, the child is a US citizen by birth.  Suppose the whole family then returns to the States and lives there for the next 40 years and then one of the parents successfully applies for naturalisation as a Chinese national.  According to Mr Kwok’s argument, that child, who is now 40 years old, a US citizen working in the US, will, as a matter of Chinese law, be entitled to have Chinese nationality, pursuant to art 4.

34.  Likewise, the same would happen even to a child born outside China.  The moment one of his parents becomes a Chinese national by naturalisation, that child, regardless of his nationality, age and country or place of residence, will, in the eyes of Chinese law, be entitled to have Chinese nationality as well, pursuant to the first part of art 5.  

35.  But not only that – in these two examples, by the same token, the children and grandchildren etc of the child in question would also be entitled to have Chinese nationality, by the operation of the same articles.  This would not only be odd, but simply absurd.

Saved by non-recognition of dual nationality?

36.  Mr Kwok seeks to avoid these odd examples by arguing that they will not happen because the child in each example has got foreign nationality.  Given the prohibition against dual nationality in art 3 of the Nationality Law, arts 4 and 5 will not apply to the child in the two examples I gave.  The child in each of my two examples would only have Chinese nationality upon the naturalisation of the parent if the child himself does not have any nationality (in other words, he is stateless), and he has to make a formal application under art 14 to formally acquire his Chinese nationality.

37.  The problem with Mr Kwok’s argument is that he has to read an exception based on dual nationality into arts 4 and 5 in order to avoid the odd results that I have pointed out.

38.  Art 4 is completely silent on this supposed exception.  

39.  Art 5 poses even more difficulties.  This is because the second part of art 5 actually refers to the situation where the person in question was born with foreign nationality.  The general exception regarding dual nationality which Mr Kwok attempts to read into art 5 does not, therefore, sit very well with the wording of art 5.

But why?

40.  But more importantly, when construing the provisions in light of their purpose and context, one must ask: is there any real purpose to be served by Mr Kwok’s construction?

41.  This takes me to consider even more closely the case of a person born in China. 

42.  For such a person, if one or both of his parents are Chinese nationals, he has Chinese nationality at birth.  That is natural enough.  If none of his parents is a Chinese national at the time of his birth, then given the emphasis on the nationality of the parents to determine a person’s nationality (the so-called “血統主義” (jus sanguinis)) under the Chinese Nationality Law (infra), it is only natural that such a person does not have Chinese nationality at birth.  If the parents have foreign nationality, the chances are that the child, even though born in China, would have foreign nationality at birth.

43.  If the person is born to stateless parents or parents of uncertain nationality, it is perfectly understandable why under art 6 of the Nationality Law, that person has Chinese nationality at birth. 

44.  For those who are born in China but who do not have Chinese nationality at birth, that need not be the end of the matter if they want to acquire Chinese nationality.  This is because they can always apply for naturalisation as a Chinese national pursuant to arts 7, 8 and 14.  In particular, art 7(2) provides for settlement in China as one of the grounds for naturalisation.

45.  In those circumstances, one asks rhetorically: why does the Nationality Law, upon its true construction, should still want to provide for yet another way of conferring Chinese nationality at a later point in life on a person who was born in China but did not have Chinese nationality at birth?

46.  Mr Kwok cannot think of any good answers.  He can only postulate two examples where a ‘deserving’ person may need the construction he advocates in order to have Chinese nationality at a later point in life.  First, a person born in China of parents who were foreign nationals at the time of birth, but who did not have any foreign nationality at birth.  Secondly, an abandoned child found in China who has subsequently been adopted by a foreign national.  In either case, neither art 4 nor art 6 gives the person Chinese nationality at birth, and his construction, Mr Kwok contends, would give such a person Chinese nationality upon the acquisition of Chinese nationality by one of the person’s parents or adoptive parents.

47.  I do not believe that these relatively rare examples take Mr Kwok’s case very far, in terms of discovering the purpose and intent of the articles under examination.  In the first example, the short answer is that the person in question can apply for naturalisation under art 7, particularly if he has settled in China.

48.  But if that person has moved to live overseas since birth, it is difficult to see why the Nationality Law should be bothered with conferring on him Chinese nationality upon the naturalisation of one of his parents as a Chinese national.  For all one knows, he may or may not remain a stateless person after moving to live overseas.  But even if he should remain stateless, that primarily would be the problem for the country or place where he has chosen to reside in.  Moreover, if one of his parents becomes a Chinese national by naturalisation, the person may also apply, if he so wishes, for naturalisation under art 7(1), ie having a near relative of Chinese nationality.  And in that event, the State also retains a discretion whether to grant the person’s application for naturalisation.  In that way, both the wish of the person and the interest and discretion of the State are fully respected.  It must be remembered that nationality is not only about passports and travelling convenience.  It carries with it important rights and obligations – political, legal, social, fiscal and personal – that are mutual.

49.  In relation to Mr Kwok’s second example, depending on the facts, the abandoned child may well have got Chinese nationality at birth pursuant to art 6.  But even if he did not have Chinese nationality at birth, if he settles in China, he is perfectly entitled to apply for naturalisation under art 7(2).  On the other hand, if he chooses to live aboard, then after the naturalisation as a Chinese national of one of his adoptive parents, he may, if he so wishes, also apply for naturalisation as a Chinese national pursuant to art 7(1).  There is simply no need to adopt Mr Kwok’s construction to cater for this second type of case.

50.  In fact, one can do a similar analysis in relation to those born outside China, because as I said, no matter how Mr Kwok would like to restrict his construction to art 4, the first part of art 5 is in identical terms to art 4 (save that the person was born outside China), and the same or similar questions may be asked regarding what purpose, if any, would be served by adopting the construction put forward by Mr Kwok in relation to those born outside China.

Chinese legal materials

51.  In this regard, it is highly significant that in none of the Chinese academic and other materials that the parties have put in to assist the Court in interpreting the provisions of the Nationality Law is it specifically mentioned that Chinese nationality can be had by a person under art 4 (or art 5) after his birth, upon the naturalisation as a Chinese national of one of his parents, without a separate application for naturalisation by the person himself.  It is fair to observe, and counsel are in agreement, that all academic writers focus on how a person can have Chinese nationality at birth pursuant to arts 4, 5 or 6.

52.  Thus, in Zhang Yong (張勇) and Chen Yu-tian (陳玉田), The Nationality Issues of Hong Kong Residents (香港居民的國籍問題) 69, the learned authors discuss the situation of a person born in China having Chinese nationality at birth:

“在國籍原始取得方面，中國國籍法採取了以血統主義為主﹑出生地主義為輔的原則。一個人出生在中國，在兩種情形下出生時即具有中國國籍，一種情形是其父母雙方或一方具有中國國籍，另一種情形是其父母無國籍或國籍不明且他們定居在中國。相應地，如果一個人出生在中國，在兩種情形下出生時不具有中國國籍，一種情形是其父母雙方均為外國人，另一種情形是其父母雖無國籍或國籍不明，但他們並非定居在中國。這樣，在中國國籍法下，判斷一個出生在中國的人是否在出生時取得中國國籍，就必須追溯其父母的國籍。

(English translation)

With respect of the acquisition of nationality at birth, the PRC Nationality Law adopts a principle which is guided by jus sanguinis and supplemented by jus soli.  A person born in China shall have Chinese nationality at birth under two circumstances: either both of his parents have or one of his parents has Chinese nationality, or when his parents are stateless or of uncertain nationality and have settled in China.  Correspondingly, a person born in China shall not have Chinese nationality at birth under two circumstances: one is when both of his parents are foreign nationals, and the other being the case that although his parents are stateless or of uncertain nationality, they have not settled in China.  As such, in order to determine whether a person born in China shall have Chinese nationality at birth under the PRC Nationality Law, the nationality of his parents must be traced.”

53.  Not a single mention is made of the possibility of such a person having Chinese nationality at a subsequent stage in life when one of the parents becomes a Chinese national by naturalisation.

54.  Likewise, in Cai Cheng (蔡誠) and Siao Yang (蕭揚), Interpretation of the Laws of the People’s Republic of China – Encyclopaedia of Decided Cases (中華人民共和國百法釋解 . 案例全書) 371, the learned authors again discuss arts 4, 5 and 6 in terms of the conferring of nationality at birth.  The possibility of a person having Chinese nationality (without a separate application by him for naturalisation) after birth as a result of the naturalisation of one of his parents as a Chinese national is not mentioned at all.  See also Xiang Dang (項讜), Chinese Immigration Legal System (中國出入境法律制度) 87-88.

55.  Again significantly, not a single case which deals with the possibility of having Chinese nationality in the way that the applicant suggests in his argument in the present case, can be found in the expert and other materials that have been placed before the Court.

56.  In my view, if that possibility does exist, it is unthinkable that no such mention can be found in any Chinese materials.

57.  Looking at the Nationality Law in light of its purpose and context, I have no difficulty in rejecting Mr Kwok’s argument. 

Implications of the Explanations

58.  I now move on to deal with the Explanations and see whether the same assist Mr Kwok’s argument.  If I have not misunderstood counsel’s argument, the Explanations are relied on for at least two purposes.  First, the Explanations are required in order to overcome a difficulty that the applicant faces as a result of a contention he raises (through counsel) in relation to the proper construction of art 4.  Secondly, the Explanations are said to signify a general relaxation of the provisions in the Nationality Law as it is applied in Hong Kong.

59.  It should be remembered that when discussing arts 4 and 5, I have pointed out certain odd results that would flow from Mr Kwok’s construction.  According to Mr Kwok’s construction, a person born in China can subsequently have Chinese nationality under art 4 if one of his parents becomes a Chinese national by naturalisation.  That person (and his children etc) will be entitled to Chinese nationality upon his parent’s naturalisation.  This is so regardless of whether that person has already got foreign nationality.  The same odd result appears in the case of a person born outside China, because the logic of Mr Kwok’s construction would spill over to the proper construction of art 5, which applies to those born outside China.

60.  As I have already described, Mr Kwok seeks to eliminate these odd results by arguing that the person in question will not have Chinese nationality notwithstanding the naturalisation of his parent if he has already got foreign nationality.  I have already said why I do not think Mr Kwok’s argument is persuasive.

61.  The purpose of my present discussion is to point out that if Mr Kwok is right with his argument, so that notwithstanding the parent’s naturalisation, a person born in China (or for that matter, born outside China) will not have Chinese nationality upon the parent’s naturalisation if he has already got foreign nationality, that would immediately defeat his client’s own case.  For it must be remembered that the applicant was born a US citizen and he is still a US citizen.  According to Mr Kwok’s own argument, the applicant simply does not qualify for Chinese nationality notwithstanding his father’s naturalisation. 

62.  This is where Mr Kwok seeks to pray in aid the Explanations.  He contends that the true effect of the Explanations, particularly para 4 of the Explanations, is to allow dual nationality.  Thus the foreign nationality of a Hong Kong resident is simply regarded under the Explanations as a right of abode in the foreign country and the foreign passport that a Hong Kong resident holds is simply treated as a travelling document that such a person may use for travelling convenience.  In that way, the prohibition against dual nationality in art 3 of the Nationality Law is effectively glossed over.  In those circumstances, the applicant, although a US citizen holding a US passport, can still have Chinese nationality upon his father’s naturalisation as a Chinese national, pursuant to art 4.

63.  Mr Kwok further makes the point that in this regard no distinction should be drawn between those Hong Kong residents, born in Hong Kong, of Chinese descent and those, also born in Hong Kong, who are not of Chinese descent.  Both classes of Hong Kong residents can hold foreign passports and have foreign nationalities, and still be Chinese nationals in Hong Kong at the same time.  To do otherwise would be discriminatory, in contravention of art 25 of the Basic Law and arts 1 and 22 of the Hong Kong Bill of Rights.

64.  Assume, for the sake of argument, Mr Kwok is correct that the Explanations relax the prohibition against dual nationality.  Still his argument is difficult to square with the actual wording of the Explanations.  Para 1 specifically says that a Hong Kong resident of Chinese descent and born in Chinese territories (including Hong Kong) is a Chinese national.  For any other person, if that person satisfies the criteria laid down in the Nationality Law, he is also a Chinese national.  So a distinction is indeed drawn between a Hong Kong resident, born in Hong Kong, of Chinese descent, and one who is not of Chinese descent.  Furthermore, para 2 of the Explanations, quite apparently, only applies to ‘Hong Kong Chinese compatriots’ (香港中國同胞), a term which is commonly understood to refer to those who are of Chinese descent only.  So again, a distinction is drawn between those who are of Chinese descent, and those who are not.

65.  On the other hand, para 3 of the Explanations refers to all Chinese nationals in Hong Kong, so it is not restricted to those who are of Chinese descent.  However, it begs the question of who these Chinese nationals in Hong Kong are, as to which, one must return to para 1 for an answer.

66.  Likewise, para 4 of the Explanations which Mr Kwok relies on, applies to Chinese nationals in the HKSAR who has a right of abode in a foreign place.  No distinction is drawn between those who are of Chinese descent and those who are not.  However, para 4 applies to ‘Chinese nationals in the HKSAR’, which is determined by para 1 of the Explanations which does draw a distinction between those of Chinese descent and those who are not.

67.  In those circumstances, in my view, the Explanations do not assist Mr Kwok in overcoming the obstacle that he places on the path of the applicant’s claim for nationality.  In other words, so far as a person born in Hong Kong who is not of Chinese descent is concerned, his acquisition of Chinese nationality is still governed by the provisions in the Nationality Law simpliciter.  So according to Mr Kwok’s own argument, his client, who is not of Chinese descent, cannot have Chinese nationality under art 4 because he has already got US citizenship at birth.

68.  In other words, even, assuming, for the sake of argument, Mr Kwok’s construction of art 4 is sound, the built-in exception to his construction would defeat his client’s own case, and the Explanations do not assist him.  I should add that there is no indication whatsoever that the applicant is prepared to renounce his US citizenship in order to have Chinese nationality.

Discriminatory?

69.  In so far as Mr Kwok further contends that if such be the case, the provisions in the Explanations are discriminatory against those who are not of Chinese descent and therefore breach the provisions in the Basic Law and the Hong Kong Bill of Rights, they are arguments only raised for the first time by Mr Kwok at the substantive hearing.  They are not arguments contained in the Form 86A.  No relief has been sought by Mr Kwok in relation to the provisions in the Explanations.  They raise important questions.  Amongst other things, they raise the question of whether the provisions in the Basic Law (a fortiori, the provisions in the Hong Kong Bill of Rights) take precedence over or otherwise override the Explanations made by the Standing Committee of the National People’s Congress, and the further question of whether the courts have the necessary jurisdiction to deal with these questions by way of judicial review: cf Ng Ka Ling v Director of Immigration (No 2) (1999) 2 HKCFAR 141.  Furthermore, as an unequal treatment can be justified, Mr Kwok’s argument is fact-sensitive and we simply lack the necessary evidence to deal with the matter.

70.  It is fair to say that once all these difficulties have been pointed out to Mr Kwok, Mr Kwok has not seen fit to press his arguments in his submission.  Nor has he applied for leave to amend the Form 86A.

71.  In so far as it may be necessary, I would formally disallow these points to be run in these judicial review proceedings.

General relaxation by the Explanations?

72.  As to Mr Kwok’s second point that generally speaking, the Explanations relax the provisions in the Nationality Law in so far as it is implemented in Hong Kong, so that art 4, regardless of its true construction and scope of application on the Mainland, operates in Hong Kong to confer Chinese nationality on a person like the applicant when one of his parents becomes a Chinese national by naturalisation, I see no merit in this submission.  None of the paragraphs in the Explanations suggests a general and open-ended relaxation of the provisions in the Nationality Law, beyond what has been specifically provided in those paragraphs.  And in my view, the explanations given by Mr Qiao in relation to the draft interpretation do not require such a general and sweeping interpretation of the Explanations.  In particular, nowhere is it mentioned in the Explanations or in Mr Qiao’s address that art 4 is intended to be relaxed to such an extent that a person born in Hong Kong, who is not of Chinese descent, and who did not have Chinese nationality at birth, can, without a separate application for naturalisation by him, have Chinese nationality upon the naturalisation of one of his parents as a Chinese national, particularly when and in spite of the fact that he is already a foreign national by birth.

73.  I cannot find anything in the materials that remotely hints at such a possibility.

74.  Furthermore, if Mr Kwok be correct, then all the potentially odd and even absurd results that have been discussed in the earlier part of this judgment would follow, insofar as applying art 4 to Hong Kong is concerned.

Chan Kam Nga

75.  Finally, I come to deal with the Court of Final Appeal decision in Chan Kam Nga v Director of Immigration (1999) 2 HKCFAR 82, a case heavily relied on by Mr Kwok in support of his construction of art 4.  In Chan Kam Nga, the Court had to interpret art 24(2) and (3) of the Basic Law, concerning the definition of a permanent resident of the HKSAR.  Art 24(2) provides that the permanent residents of the HKSAR shall be Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the HKSAR.  Art 24(3) provides that the permanent residents of the HKSAR shall be persons of Chinese nationality born outside Hong Kong of those residents listed in art 24(1) and (2).  At issue was whether the person in art 24(3) must have been born before the Chinese citizen in art 24(2) has ordinarily resided in Hong Kong for a continuous period of not less than seven years.  The Court preferred to give the words their natural meaning (at p 89C/D to G/H):

“The Natural Construction

In the Court of Appeal the Chief Judge of the High Court said that ‘The focus is certainly on birth’. Nazareth VP said that: ‘The criterion ‘born ... of’ a permanent resident, immediately and naturally goes to the time of birth’.  And Mortimer VP said that the words of Article 24 ‘focus upon parentage, the status of the parents, the place of birth and the birth itself’.  As it seems to me, however, the word ‘born’ had to be used in category (3) because the category covers persons born outside Hong Kong. Whatever else the words ‘born .. of’ do or do not cover, they must cover a birth child.  Each of these 81 appellants is the birth child of the parent on whose Hong Kong permanent resident status he or she relies.

Simply as a matter of giving words their natural meaning, I am of the view that the construction for which the appellants contend is correct.

Let me explain why I am of that view.  Take any parent and birth child.  Asked if the child is a person born of the parent, one is bound to answer ‘yes’.  Now take the same parent and child, adding the fact that the parent is a Hong Kong permanent resident.  Asked if the child is a person born of a Hong Kong permanent resident, one would surely still answer ‘yes’.  One would not pause to enquire when the parent became a Hong Kong permanent resident.  As a matter of ordinary language, that is irrelevant to the question of whether the child is a person born of a Hong Kong permanent resident.”

76.  Mr Kwok urges the Court to adopt a similar approach.  Counsel argues that although the Nationality Law is a piece of national law applicable to the whole country, it has become a piece of local law as well by way of promulgation, and the common law principles of construction of statues apply to the construction of art 4.

77.  I do not think Chan Kam Nga takes Mr Kwok’s case very far.  Quite apart from the fact that the actual decision in Chan Kam Nga has since been displaced by the Interpretation of the Standing Committee of the National People’s Congress issued on 26 June 1999: see Lau Kong Yung v Director of Immigration [1999] 3 HKLRD 778, 796, the provisions in the Basic Law which the Court of Final Appeal had to interpret are very different from the provisions that this case is concerned with.  In Chan Kam Nga, the Court had to deal with six free-standing categories of persons who are given the status of a permanent resident of the HKSAR, according to art 24 of the Basic Law.  The Court preferred to give the words in art 24(2) and (3) their natural meaning and felt that their natural meaning gave effect to an obvious purpose of art 24(3), namely, the purpose of enabling the child in question to be with his or her parent here, thereby securing the unity of the family: see Chan Kam Nga at pp 89H-90C.

78.  However, in the present case, one is concerned with provisions in the Nationality Law of the People’s Republic of China.  The proper construction of art 4 is informed by the other articles in the Law, and is guided by the purpose and context of the Law.  Furthermore, as I have pointed out, unlike the Basic Law, which has been prepared in both Chinese and English, the Nationality Law was enacted back in 1980 as a piece of legislation in Chinese only.  Only the Chinese text was and is official on the Mainland.  Of course, when the Law was promulgated as applicable to Hong Kong in 1997, we do have an English translation.  However, primarily, so far as natural meaning is concerned, one must be guided by the original Chinese text.  And as I have observed at the outset of this judgment, so far as the natural meaning of the Chinese words used is concerned, the wording is capable of sustaining both the interpretation advanced by Mr Chow, and that submitted on behalf of the applicant.

79.  In those circumstances, I do not think the approach adopted by the Court of Final Appeal in Chan Kam Nga really advances Mr Kwok’s argument to any significant extent. 

Conclusion on construction of art 4 as applied to HKSAR

80.  For the reasons that I have explained in detail, I have come to the firm conclusion that on a proper construction of art 4 of the Nationality Law as implemented in Hong Kong, the applicant does not have Chinese nationality upon the naturalisation of his father as a Chinese national.  If he wishes to become a Chinese national, he may apply for naturalisation himself under arts 7 and 8 of the Law.  I do not think the Explanations advance his case at all.

Other grounds for judicial review

81.  In the application for judicial review, the applicant has also relied on four other grounds to challenge the Passports Appeal Board’s dismissal of his appeal, namely, procedural impropriety, failure to give reasons, failure to properly discharge statutory function and irrationality.

82.  I do not think these arguments advance the applicant’s case at all, given the conclusion that I have reached on the proper construction of art 4.  In other words, given that conclusion, the outcome of the applicant’s application for the issue of a HKSAR passport is a foregone conclusion from day one, irrespective of the procedural and other complaints that he now makes.  These complaints cannot possibly affect the outcome of his application or appeal, or likewise, the outcome of this application for judicial review.  See Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653.  I do not propose to pronounce any judgment on these academic issues.

Outcome

83.  In conclusion, the application for judicial review is dismissed with costs, including all costs previously reserved, to the respondents, to be taxed if not agreed.

84.  I thank counsel for their assistance.