COMMISSIONER OF REGISTRATION v. REGISTRATION OF PERSONS TRIBUNAL AND ANOTHER

HCAL176/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO.176 OF 2002

---------------------

----------------------

-------------------------

J U D G M E N T

-------------------------

1.This is an application for judicial review by the Commissioner of Registration ("the Commissioner") of the decision ("the Decision") of the Registration of Persons Tribunal ("the Tribunal") allowing the appeal of Mr Wong Hi Kwong ("Mr Wong") against the Commissioner's refusal to issue to him a Hong Kong permanent identity card.

Factual background

2. Mr Wong was born in mainland China on 13 November 1946. He reported to have entered Hong Kong illegally on 3 September 1970. On 18 September 1970, he was granted permission to remain in Hong Kong unconditionally by the Director of Immigration ("the Director") and was also issued with an entry permit.

3. Consequent upon an application for identity card made on 24 September 1970, Mr Wong was issued with a Hong Kong Identity Card on 22 January 1971. On 1 March 1972, he applied for a Certificate of Identity ("CI") and it was issued to him on 23 March 1972. The CI was for five years and expired on 23 March 1977. The CI also contained an endorsement to the effect that it would cease to be valid upon the holder obtaining a national passport.

4. On 23 April 1972, Mr Wong departed Hong Kong and entered Canada as landed immigrant. He obtained his Canadian passport in 1974, whereupon the CI ceased to be valid.

5. On 17 January 1992, Mr Wong entered Hong Kong on the strength of his Canadian passport. He was permitted to enter and remain as a visitor until 17 April 1992. Mr Wong departed from Hong Kong on 5 March 1992. Since then, he had travelled frequently in and out of Hong Kong on the strength of his Canadian passport. A summary of his travel record appears by the table below :

Entry	Departure
17.1.1992	5.3.1992
6.3.1992	12.7.1992
12.7.1992	19.7.1992
21.7.1992	1.9.1992
8.9.1992	7.12.1992
11.12.1992	10.3.1993
13.3.1993	12.6.1993
15.6.1993	14.9.1993
17.9.1993	16.12.1993
19.12.1993	18.3.1994
21.3.1994	3.9.1994
4.9.1994	25.2.1995
26.2.1995	25.5.1995
26.5.1995	--

In respect of Mr Wong's last entry on 26 May 1995, he was permitted to enter and remain as a visitor until 26 August 1995. He did not, however, leave Hong Kong and has remained in Hong Kong since.

6. It is of significance to note that between 17 January 1992 and 26 May 1995, Mr Wong had never been given a limit of stay that exceeds 180 days. Similarly, although the Director has granted extensions of his stay during this period, none of them exceeds 180 days.

7. On 16 June 1992, Mr Wong made an application to change his immigration status from visitor to employment, which was withdrawn on 10 July 1992. He made a similar application on 8 June 1994. Owing to insufficient supporting documents, the application was closed on 15 September 1994.

8. Then on 1 December 1994, Mr Wong made a claim of right of abode to the Director, claiming to have resided in Hong Kong between September 1964 and 23 April 1972. He also applied for a Hong Kong permanent identity card on 6 December 1994. The processing of both applications was closed on 30 March 1995 due to insufficient proof.

9. On 12 February 1998, Mr Wong made an application for verification of eligibility for permanent identity card, which was closed on 16 March 1998 owing to insufficient proof of continuous ordinary residence.

10. On 25 July 2000, Mr Wong made a second application, in which he claimed to have ordinary residence in Hong Kong for the periods from September 1970 to 23 April 1972 and from January 1992 up to July 2000. The application was refused by the Director on 4 October 2000.

11. On 12 February 2001, Mr Wong applied to the Commissioner for a HK permanent Identity Card, which was refused on the same day.

12. Mr Wong then appealed to the Tribunal and the appeal was heard on 21 June 2002. The Tribunal allowed the appeal, holding that Mr Wong has the right of abode in Hong Kong. The Decision was announced in a letter dated 11 July 2002.

13. On 10 October 2002, the Commissioner applied for leave to judicial review the Decision and leave was granted on 24 October 2002. On 29 October 2002, the Notice of Motion was issued. On 5 February 2003, Mr Wong applied to set aside the leave granted ex parte. The application was heard on 10 February 2003 and was dismissed with costs reserved.

Relief sought

14. In this application, the Commissioner seeks the following relief :

(1) A declaration that the Decision was unlawful, null and void and of no effect;

(2) an order of certiorari to quash the Decision with a direction that the appeal be remitted to the Tribunal for reconsideration in accordance with the judgment of this court;

(3) an order of mandamus requiring the Tribunal to reconsider and dismiss the appeal;

(4) alternatively to (3) and the second part of (2) above, an order dismissing Mr Wong's appeal to the Tribunal; and

(5) an order for costs.

The Decision

15. The reasons underlying the Tribunal's decision that Mr Wong has the right of abode in Hong Kong are encapsulated in paragraphs 5 to 8 of the Decision, which are set out below :

"5. The [Commissioner] agrees that the Immigration Ordinance No. 55 of 1971 as cited above is not applicable to [Mr Wong].

6. Under such circumstances, this Tribunal believes that Chinese residents who were granted unconditional stay in Hong Kong prior to 1 April 1972 do not have to reside in Hong Kong for a continuous period of not less than seven years in order to acquire the right to land.

7. For this reason, this Tribunal believes that when [Mr Wong] landed in Hong Kong on 17 January 1992, he had the right to land. This right to land is not subject to the restriction imposed by section 11(10) of the Immigration Ordinance (Cap. 115 of the Laws of Hong Kong).

8. As [Mr Wong's] landing in Hong Kong on or after 17 January 1992 was lawful and the [Commissioner] does not dispute that [Mr Wong's] residence in Hong Kong from 17 January 1992 to 12 February 2001 has already exceeded the required continuous period of not less than seven years, [Mr Wong], having met the requirements stipulated in paragraph 2 (b) or (d) in Schedule 1 of the Immigration Ordinance, has become a permanent resident of the Hong Kong Special Administrative Region and can be issued with a Hong Kong permanent resident identity card."

The ground for judicial review

16. The application of the Commissioner is on the sole ground that the Tribunal has committed an error of law.

17. The argument of the Commissioner, put briefly, is that the legal framework under the relevant legislations before 1972, did not provide for immigrants, of which Mr Wong is one, to acquire the right to land. Accordingly, Mr Wong had not acquired and did not have a right to land when he returned in 1992. It follows that he was and is subject to the limits of stay imposed by the Director on each of his entries since January 1992. It also follows that he has become an overstayer since 27 August 1995. In the circumstances, he does not have an ordinary residence of not less than seven years so as to qualify him as a permanent resident of the HKSAR and be entitled to be issued with a Hong Kong permanent resident identity card.

18. The core issue in this application is whether Mr Wong had the right to land in Hong Kong on 17 January 1992. If he did, his residence was lawful and continuous thereafter and he would acquire the right of abode after seven years. But if he did not, then the limits of stay imposed by the Director was valid and he became an overstayer in August 1985.

The immigration control legislations

19. In considering whether Mr Wong had the right to land in Hong Kong in 1992, it is necessary to briefly examine the immigration control legislations that had developed over the years.

20. When Mr Wong first entered Hong Kong and was given permission to remain in 1970, the relevant immigration control legislation in force was the Immigration (Control and Offences) Ordinance, Cap.243. Section 2(1) of the Ordinance defines "immigrant" as "any person other than a person born in the Colony and in possession of documentary proof of such birth". Under section 3(1)(a), other than servicemen, no person may enter Hong Kong save under and in accordance with the permit of the Director. Section 15 provides that the Director may permit an immigrant to remain in Hong Kong for a limited period and may also impose conditions for his stay. Section 22 further empowers the Director to limit the stay of an immigrant entering Hong Kong.

21. In October 1971, the Immigration Ordinance, Cap.115 was enacted and it became effective on 1 April 1972. This was the law in force when Mr Wong departed from Hong Kong for Canada on 23 April 1972. The 1971 Ordinance consolidated and amended the law relating to immigration and deportation, which was hitherto contained in separate legislations. Section 2(1) of the Ordinance defines "immigrant" to mean a person who is not a Hong Kong belonger. The section further defines "Hong Kong belonger" to mean either a British subject born in Hong Kong, a British subject by naturalization or a British subject by registration or the spouse or child of such British subjects.

22. Section 7 of the 1971 Ordinance provides that no person may land in Hong Kong without the permission of an immigration officer unless he has the right to land, or is a member of crew of an aircraft or a serviceman, who is entitled to land under sections 9 and 10 thereof. Under section 8(1), the right to land is enjoyed by Hong Kong belongers as well as resident United Kingdom belongers and Chinese residents, who are not under a deportation order. Chinese resident is a legal status and is defined under section 2(1) to mean an immigrant who is wholly or partly of Chinese race and has at any time been ordinarily resident in Hong Kong for a continuous period of not less than seven years. Under section 11(1), the Director may grant or refuse permission to land in Hong Kong for a person who has no right to land. The Director can also impose conditions of stay when granting permission to stay.

23. The Immigration Ordinance underwent major amendment in 1987. The concept of "right of abode" was introduced through the addition of Part IA. Section 2A provides that a Hong Kong permanent resident enjoys the right of abode in Hong Kong, which includes the right to land in Hong Kong and not to have imposed upon him any condition of stay. Schedule 1 provides, inter alia, that any person who is wholly or partly of Chinese race and has at any time been ordinarily resident in Hong Kong for a continuous period of not less than seven years is a Hong Kong permanent resident. The categories of Hong Kong permanent resident were further expanded in 1997.

24. Several points emerge from these legislations that are pertinent to the present deliberations :

(1) It is evident from the definition of "immigrant" that the Immigration (Control and Offences) Ordinance differentiates between a person born in Hong Kong and one born outside Hong Kong. The latter is regarded as an "immigrant" and is subject to the restrictions and limitations that the Director may impose upon his stay in Hong Kong.

(2) The right to land in Hong Kong was not a part of the immigration law before the 1971 Immigration Ordinance. Until 1 April 1972 when the 1971 Immigration Ordinance came into force, no person may enter and remain in Hong Kong except with the Director's permission.

(3) It was only until the coming into effect of the 1971 Ordinance that there is a concept of right to land for people not born in Hong Kong. In particular, for persons who are wholly or partly of Chinese race, they will acquire the right to land in Hong Kong after having resided in Hong Kong for a continuous period of mot less than seven years.

(4) Under the 1971 Immigration Ordinance, persons who do not enjoy the right to land in Hong Kong need the Director's permission to land in Hong Kong, and they may also be subject to immigration control during their stay in Hong Kong.

(5) As for the concepts of Hong Kong permanent resident and right of abode, they only became part of the law with the 1987 amendments to the Immigration Ordinance.

The right to land

25. In the present case, by the time Mr Wong departed from Hong Kong for Canada on 23 April 1972, he had resided in Hong Kong for a little over 19 months. He could not have acquired a right to land in Hong Kong under the Immigration (Control and Offences) Ordinance by reason of the fact that no such right was recognised and conferred by the legislation. He also could not have acquired a right to land under the 1971 Immigration Ordinance due to the fact that he had not yet resided in Hong Kong for a continuous period of not less than seven years. Hence, when Mr Wong returned to Hong Kong in 1992, he could not claim to have the right to land in Hong Kong. He could only enter Hong Kong on the strength of the permission granted by the Director, and be subject to the conditions of stay imposed by the Director. It follows that when he did not leave upon the expiration of his visitor visa in August 1995, he became an overstayer. The consequence is that he cannot rely upon his stay in Hong Kong after January 1992 as counting towards his ordinary residence. He therefore does not have a continuous ordinary residence of not less than seven years to qualify him as a permanent resident of the HKSAR and is not entitled to be issued with a Hong Kong permanent identity card.

The Tribunal's reasoning

26. When granting Mr Wong's appeal, the Tribunal gave as its reason that Chinese residents who were granted unconditional stay before 1 April 1972 do not have to reside in Hong Kong for a continuous period of not less than seven years in order to acquire the right to land. This reason is flawed in a number of respects.

27. Firstly, "Chinese resident" is not a legal status and category of persons under the pre-1971 immigration control legislations. Secondly, insofar as the Tribunal may be referring to Chinese nationals who had migrated to Hong Kong, it is not altogether correct to suggest that they were granted unconditional stay in Hong Kong. Under the pre-1971 immigration control legislations, they were no different from other immigrants and they were subject to immigration control. Even where no condition as to the purpose of their stay in Hong Kong or no limit of stay was imposed upon him, it was not the case that they were not subject to any condition at all. For an immigrant who was permitted to land on a condition of stay of unlimited duration, he could always have limits of stay imposed and could also be removed if he exceeded the limits : Hussain and Hussain v. Registrar of Births and Deaths (CFI) unreported, HCAL 73/1999 per Chung J at p.8, and (CFA) [2002] HKLRD 205 at 214C-I.

28. Thirdly and most importantly, until the coming into effect of the 1971 Immigration Ordinance, no right to land in Hong Kong could be conferred upon an immigrant, whether of Chinese race or otherwise. Accordingly, the suggestion that a Chinese resident who was given unconditional stay before 1 April 1972 could have acquired the right to land without residing in Hong Kong for a continuous period of not less than seven years is erroneous.

The respondent's arguments

29. Mr Wong relies heavily on the fact that he was issued with a Hong Kong identity card and a CI before he left for Canada. It is said that his stay in Hong Kong was not subject to conditions and he is entitled to land in Hong Kong without permission or restriction. The basic fallacy in Mr Wong's argument is that, being an immigrant; he was at all time subject to immigration control even though there was no limit on the duration of his stay. Further, given that the concept of a right to land was not known to the Immigration (Control and Offences) Ordinance, the issue of an identity card in 1970 could not have conferred upon Mr Wong any right to land in Hong Kong. Neither could it confer upon him the status of a Hong Kong permanent resident. Mr Wong's contention that the absence of limit on the duration of his stays means that his identity card was a Hong Kong permanent identity card has no legal basis.

30. As for the issue of the CI, it is important to note the terms endorsed on the CI. Firstly, it was stated that the Certificate ceased to be valid upon the holder obtaining a national passport. Accordingly, when Mr Wong obtained his Canadian passport in 1974, his CI ceased to be valid. Any right that may be associated with the CI was no longer available to Mr Wong. Secondly, clause 2 of the endorsement stated that the CI did not convey, by itself, exemption from any of the regulations concerning aliens living in, or travelling in and out of, Hong Kong. The CI could not have conferred upon Mr Wong any right to land or to be free from immigration control. As stated under clause 4, the CI only entitled the holder to return to Hong Kong without a visa. It was explained in paragraph 5 of Cheung Hon Leung's affirmation that the Director always made a discretionary decision under section 11(1) of the Immigration Ordinance in favour of granting permission to land to a CI holder. But there was no legal right to return to Hong Kong. In any event, the entitlement to return without a visa only existed during the validity of the CI. Again, Mr Wong's argument that the fact that he was issued with a CI shows that he enjoys the right of abode is without legal support.

31. Mr Wong further argues that when he returned to Hong Kong in 1992, he did not enter as a visitor. It is said that he was misled by the immigration officer and he never accepted that he was a visitor. These arguments ignore the plain fact that Mr Wong could only have entered in 1992 on the strength of the Director's permission for he had no right to land. It is also untenable in view of his application in June 1992 to change his immigration status from visitor to employment.

32. Additionally, Mr Wong refers to section 11(10) of the Immigration Ordinance, which provides that any permission given to a person to land or remain in Hong Kong shall expire immediately after the person's departure from Hong Kong. Relying on the Court of Final Appeal's judgment in Gurung Kesh Bahadur v. Director of Immigration [2002] 2 HKLRD 775, Mr Wong says that section 11(10) does not apply to Hong Kong residents such that the right to land and the right of abode he acquired under his identity card or CI did not expire upon his departure from Hong Kong. In my view, the reference to section 11(10) and/or the decision of Gurung Kesh Bahadur completely misses the point. The fact is Mr Wong does not have the right to land or the right of abode. The ratio in Gurung Kesh Bahadur simply does not arise.

33. Mr Wong also argues that the case of Hussain and Hussain is distinguishable because the father of the applicant in that case is a "settled" person. The importance and relevance of Hussain and Hussain is that the Court of Final Appeal points out in no unambiguous terms that the concept of a right to land did not exist until the 1971 Immigration Ordinance became operative. This statement of law is unaffected by the status of the father of the applicant in the case.

34. Subsequent to the court hearing on 13 February 2003, Mr Wong had written to the court making further representations and submissions. That is clearly inappropriate given that Mr Wong does not have a right of reply and that the parties had already completed their submissions and the court had retired to deliberate on the case. I pay no regard to and will not deal with these subsequent representations.

Relief and costs

35. For the above reasons, the decision of the Tribunal is erroneous in law and is liable to be quashed. Mr Marshall SC asks that, instead of remitting the matter to the Tribunal for reconsideration, this Court proceeds to dismiss Mr Wong's appeal to the Tribunal. It is said that this is an appropriate course given that there is only one lawful decision. For my part, I am not prepared to adopt the course proposed by Mr Marshall. I will remit the appeal to the Tribunal for reconsideration.

36. There is no reason why the rule of "costs follow event" should not apply. I therefore make an order that Mr Wong pays the Commissioner the costs of this litigation including the costs reserved. Mr Marshall SC asks that a gross sum costs order be made under Order 62, rule 9(4)(b) of the Rules of High Court. I agree that given the relatively simple nature of this application, it is appropriate to make a costs order under Order 62, rule 9(4)(b) so as to dispense with the need for full taxation.

37. Two skeleton bills had been put in by the Commissioner. The first relates to the application to set aside the leave for judicial review and is in the amount of $11,400. The other bill relates to the costs for the whole litigation but excluding the costs of the application to set aside leave, and is in the amount of $252,013 (i.e. $238,513 plus $13,500, being 4.5 hours of court attendance at the hearing by the handling government counsel). The total costs claimed therefore come up to $263,413. Mr Wong objected to the amount of the costs claimed on the basis that it was excessive. Under the two skeleton bills, some 37 hours of work were claimed by the handling government counsel on correspondence, general preparation and court attendance. This is in my view excessive having regard to the nature and profile of this litigation. I also consider the time spent by the law clerk on the preparation of the hearing bundles and of the second skeleton bill to be excessive. I take the view that a gross sum costs order of $200,000 is a reasonable one, and I so order.

Conclusions

38. In short, the orders that I make are as follows :

(1) A declaration that the decision of the Tribunal was unlawful, null and void and of no effect;

(2) An order of certiorari to quash the decision and that the appeal be remitted back to the Tribunal for reconsideration in accordance with this judgment;

(3) An order of mandamus requiring the Tribunal to reconsider the appeal and dismiss the appeal;

(4) The applicant does pay the Commissioner's costs of this litigation, including costs reserved, assessed at $200,000 under Order 62, rule (9)(b) of Rules of the High Court.