VALLEJOS EVANGELINE BANAO also known as VALLEJOS EVANGELINE B. v. COMMISSIONER OF REGISTRATION AND ANOTHER

HCAL 124/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 124 OF 2010

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D E C I S I O N

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1.  After this court handed down the judgment of 30 September 2011, the Commissioner took out a summons on that date seeking relief pending appeal. The relief prayed forth in the summons are as follows,

“1. In view of the Court’s finding in the Judgment handed down on 30 September 2011, there be a declaration that section 2(4)(a)(vi) of the Immigration Ordinance, Cap. 115 is inconsistent with Article 24(2)(4) of the Basic Law;

2. All other relief sought in the Originating Summons dated 17 December 2010 (‘the Originating Summons’) be adjourned with liberty to restore after determination of the intended appeal to the Court of Appeal by the 1^st Respondent against the said Judgment (‘Intended Appeal’);

3. In the alternative to paragraphs 1 and 2 above, there be a stay of execution or a temporary suspension of such orders as may be granted by the Court on the Originating Summons pending determination of the Intended Appeal or further Order of the court; and

…”

2.  A notice of appeal was lodged by the Commissioner on 4 October 2011.  The Commissioner also sought to have the appeal heard expeditiously.  I was told that directions for expedited hearing have yet to be given.  In any event, it is likely that there would be an interim period of a few months before the appeal can be heard and the case may go further.

3.  In the skeleton submissions filed on 11 October 2011, the relief sought was reformulated in the draft order attached to it.  The reformulated relief is in the following terms,

“(I) In view of the Court’s finding in the Judgment handed down on 30 September 2011 (‘the Judgment’), there be a declaration that section 2(4)(a)(vi) of the Immigration Ordinance, Cap. 115 is inconsistent with Article 24(2)(4) of the Basic Law;

(II) All other relief sought in the Originating Summons dated 17 December 2010 (‘the Originating Summons’) be adjourned with liberty to restore after determination of the appeal to the Court of Appeal by the 1^st Respondent against the said Judgment (‘Appeal’); and

(III) In view of the relief granted under paragraphs (I) and (II) above, the 1^st Respondent be at liberty to withhold the processing of any existing or fresh applications for verification of eligibility for permanent identity card made by the Foreign Domestic Helpers;

…

[Alternatively:

(I) A Declaration that section 2(4)(a)(vi) of the Immigration Ordinance, Cap. 115 contravenes or is otherwise inconsistent with Article 24(2)(4) of the Basic Law and is unconstitutional and has no effect;

(II) An Order of certiorari to quash the Decision of the 1^st Respondent made on or about 2 December 2008 (i) finding there was insufficient evidence to show that the Applicant has the right of abode in Hong Kong, and (ii) refusing to issue a Hong Kong permanent identity card to the Applicant;

(III) An Order of certiorari to quash the Decision of the 2^nd Respondent made on or about 4 June 2010 dismissing the Applicant’s Appeal;

(IV) A Declaration that the Applicant is a permanent resident of the Hong Kong Special Administrative Region under Article 24(2)(4) of the Basic Law and/or paragraph 2(d) of Schedule 1 to the Immigration Ordinance;

(V) Alternatively, an Order that the Applicant’s Appeal before the 2^nd Respondent be remitted to the 2^nd Respondent with an Order of mandamus that the 2^nd Respondent shall reconsider the Applicant’s Appeal in accordance with the Judgment dated 30 September 2011 herein;

(VI) There be a stay of execution or a temporary suspension of paragraphs (I) to (IV), or paragraphs (I) to (III) and (V) above pending determination of the 1^st Respondent’s Appeal or further Order of the court;

(VII) In view of the relief granted under paragraphs (I) to (VI) above, the 1^st Respondent be at liberty to withhold the processing of any existing or fresh applications for verification of eligibility for permanent identity card made by the Foreign Domestic Helpers;

…]”

4.  At the hearing of the summons on 26 October 2011, Lord Pannick QC informed the court that the concern of the Government are two-folded,

(a) Mindful of the possibility of this court’s judgment being overturned on appeal and the confusion or disruption it might cause if steps were taken in the meantime, the Government would wish to maintain the status quo and insofar as it is possible would not take positive steps to implement the law as set out in the judgment;

(b) The Government does not wish to do anything which could be seen as acting in defiance of the judgment in the meantime.

5.  Though references were made to cases on suspension of declaration and temporary validity orders[1], Lord Pannick properly accepted that the present situation is quite different.  In those cases, the Government accepted the court’s conclusion on the unconstitutionality of a current legislation or practice.  Due to the exceptional circumstances occasioned by the striking down of a statutory provision or a practice, the court agreed that time should be given to the legislature to put in place a new piece of constitutionally compliant legislation.  In the meantime, as a stop-gap measure, the court accepted that as a matter of practical justice the Government may need to carry on with the existing practice.  The difference between a suspension and a temporary validity order was considered by the Court of Final Appeal in Koo Sze Yiu v Chief Executive (2006) 9 HKCFAR 441. 

6.  In the present case, the Government is appealing against this court’s judgment in respect of the constitutionality of the Impugned Provision.  Thus, there is no question of giving time to the Government to procure a new piece of legislation to be passed to deal with the same problem.  Rather, the situation is, like all cases where a judgment is subject to appeal, one of uncertainty of final outcome.  The uncertainty is inherent in our legal system because of the inevitable time lapse between a first instance judgment and the final determination of the issue upon appeals. Thus, the court has to deal with applications for stay pending appeal from time to time. 

7.  The unusual situation in the present case is that the Government is more concerned about the macro impact of the judgment in the public administration as a whole rather than the immediate impact on the parties to the proceedings.  Lord Pannick very fairly indicated on behalf of the Commissioner that he would not object to let the Applicant have immediate benefit of the judgment.  What the Government worries (based on the materials before this court I would accept as legitimate worry) is that the full scale implementation of the law set out in the judgment would bring about confusion and disruption in the public administration not only in the immigration sector but also in labour, social welfare and electoral sectors. 

8.  Short of a temporary validity order, the court cannot pre-empt any person from relying on the legal principles set out in a judgment of the court.  It is inherent in our common law system that, once pronounced, the legal principles set out in a judgment has the force of law.  Thus, in A v Director of Immigration CACV 314 of 2007, 18 July 2008, Tang VP said at para.8,

“It is clear that the court has the power to stay an order and that includes the power to stay a declaration. But it seems to me that a stay would not make the judgment a non-judgment: as if it had never been made. I do not believe it is possible for this court to say that it should not (sic) be assumed that our judgment does not represent our view of the law. Of course it may be that the Court of Final Appeal will eventually overturn our decision, but in the meantime, our judgment must have effect as a judgment so far as our statements of the law and their implications are concerned.”

9.  In view of the judgment of the Court of Final Appeal in Koo Sze Yiu v Chief Executive (2006) 9 HKCFAR 441, it is difficult to seek a temporary validity order (assuming that this court has jurisdiction to grant such relief) on the facts of the present case.  Quite rightly, as made clear in the skeleton submissions placed before the court, the Government did not seek such an order in this instance.

10.  Thus, even if this court were to grant a stay pending appeal, it would not have the effect of shielding the Government from any challenges by other persons based on the judgment[2].  As I said in the course of the hearing, it is for the Government to decide on the policy to be adopted during this interim period.  This court cannot pre-judge any issue which may arise in any potential challenge to a proposed policy by way of fresh judicial review proceedings.  Such challenge, if any, would simply have to take its own course. 

11.  As regards the second concern of the Government, since the only relief that may be perceived as having impact on other cases is the grant of declaration, there is no basis for suggesting that by adopting a policy of not implementing the law on a full scale basis during the course of an appeal the Commissioner or other public official is guilty of contempt of court.  A declaration is not a coercive judgment and the grant of declaration per se does not require the Government to take any action.  Thus, the failure on the part of the Government to take any action to implement the law in accordance with the declaration is not a contempt of court: see Zamir & Woolf, The Declaratory Judgment Para.1.02; Wade & Forsyth, Administrative Law, 10^th Edn. p.481; De Smith’s Judicial Review, 6^th Edn., para.18-038.

12.  But potential liability for contempt of court is not the only aspect of this concern.  As observed by Lord Woolf in M v Home Office [1994] 1 AC 377 at p.397B,

“… in ordinary circumstances ministers of the Crown and government departments invariably scrupulously observe decisions of the courts. Because of this, it is normally unnecessary for the courts to make an executory order against a minister or a government department since they will comply with any declaratory judgment made by the courts and pending the decision of the courts will not take any precipitous action.”

This is an important hallmark of the Government’s respect for the rule of law and I have confidence that our Government would continue to observe this tradition.

13.  I have no doubt that the summons was taken out by the Commissioner in the present case with due regard to this good tradition. However, as illustrated by cases like Koo Sze Yiu v Chief Executive (2006) 9 HKCFAR 441, there are exceptional cases where the Government may deem it necessary to have the court’s endorsement as to its departure from such practice.  Though for reasons given below I do not consider it appropriate for this court to give any endorsement of the policy of the Government at this stage, I can see the wisdom behind the issue of the summons.  As observed by Sir Anthony Mason NPJ in that judgment at para.62,

“Further, the protection of wide-ranging human rights and fundamental freedoms has generated new and not infrequent problems arising from the invalidity of statutes, leaving a ‘gap’ in the law, with novel and serious problems for the community.”

Novel problems require creative solutions and exceptional circumstances may call for exceptional judicial measures.  In a situation like the present one, an application to the court will enable the issues to be ventilated properly in a judicial process.

14.  When such a situation arises, the court as the ultimate guardian of the rule of law should exercise its discretion by reference to what is necessary to do practical justice in meeting the needs of law and order of the society as a whole.  This was the approach adopted in Koo Sze Yiu: see paras.28 to 31 of the judgment of the Court of Final Appeal.

15.  The availability of appeal is inherent in our legal system.  It is also a necessary feature in the common law system of precedents.  Lower courts are bound by the decisions of higher courts and points of law previously decided by higher courts can only be challenged at higher levels.  Thus, the exercise by a party of a right to appeal should not normally be regarded as acting in defiance of the rule of law.   

16.  The practical problem of what actions a party should be allowed to take in the interim period pending a final determination always arises in a legal system which permits appeal.  In ordinary civil litigation, when there is disagreement between the parties, this question can be resolved by the court in an application for stay of execution pending appeal. In public law litigation, the problem assumes a further dimension: what the Government should do in the meantime in terms of general public administration?  Unlike ordinary civil litigation, this is not a mere question of doing justice between the immediate parties to the proceedings.  The problem, as illustrated by the present case, can affect many aspects of public administration with wide ranging social implications.

17.  In my judgment, one should start from the fundamental principle that in public law litigation the court should not assume the role of the executive.  Thus, as I said above, the court should recognize that the primary responsibility for administration falls on the Government and such responsibility include making decisions as to how to deal with a situation occasioned by a first instance judgment striking down a legislative provision. In cases where the Government decides to appeal against such judgment, it would have to decide what policy or policies to adopt in different aspects of public administration bearing in mind that there is yet to be a final determination as to what the law is.  As Ms Li SC submitted, it is not for this court to advise the Government what can or cannot be done. 

18.  What I can however say is this: provided that (1) the Government makes such decisions in good faith and (2) a party who is adversely affected retains the right to challenge such decisions by way of judicial review, I cannot see how such a state of affairs can be regarded as inimical to the rule of law in Hong Kong.  From time to time, actions to implement a first instance judgment would be put on hold by the Government (even though it succeeds in a judicial review) to afford opportunity to a losing applicant to exercise his right of appeal, e.g. enforcement of removal or deportation orders against persons who lost in a challenge to such orders pending appeal; enforcement of eviction orders against public housing tenants.  I have never heard any suggestion that in those circumstances the rule of law is compromised.  And this is due to our acceptance of such phenomenon as the necessary incidence to a right of appeal which is a fundamental feature in our legal system.  By the same token, in cases where the Government is the appellant, the rule of law is not compromised simply because in the meantime it does not give full effect to a judgment pending appeal.   

19.  It would not be proper for the court to go further to endorse or comment on a particular proposed policy because that would amount to pre-judging the issue in the abstract.  It would carry the risk of pre-empting applications by parties not before the court who do not have the opportunity of making submissions to the court as regards the policy concerned.

20.  Coming back to the present case, as between the immediate parties to the proceedings, the position of the Applicant is not affected since Lord Pannick did not press for any stay of remedies personal to her.

21.  In the light of the above, there is no need to grant any suspension order and the Government properly agreed to withdraw the Summons.