Wong King Lung and Others v. Director of Immigration

1992, No.MP4151
1993, No.MP70
1993, No. MP564

H E A D N O T E

The members of the family in three test cases had the right of abode in Hong Kong with the exception of one member in two of the cases who had arrived in Hong Kong illegally whilst in the third case the member was lawfully present on a visitor's visa. The applicants contended that their rights to family under Article 19 and rights to children under Article 20 had been infringed under the Bill of Rights Ordinance.

However, it was held that s.11 of the Bill of Rights Ordinance precludes any application that seeks to challenge the provisions of the Immigration Ordinance under the Bill of Rights with regard to decisions relating to the entry into, stay in and departure from Hong Kong in respect of persons who remain in Hong Kong unlawfully.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. Introduction

I have before me three motions for judicial review which have been selected as test cases to determine a preliminary point of law as to whether s.11 of the Hong Kong Bill of Rights Ordinance (BORO) excludes recourse by illegal immigrants and their family members who have the right of abode in Hong Kong to challenge the Immigration Ordinance under the BORO in respect of the rights of the family and the children.

Facts

2. I shall set out the brief facts of the three cases. In MP 4151/1992 the 6th applicant Madam Cheng Chun Heung (Madam Cheng) married her husband the 7th applicant who is a Hong Kong resident, in China in January 1986. There are 5 children of the marriage, the 1st to 5th applicants who were all born in Hong Kong and therefore have the right of abode. The children were born on the 22nd March 1986, 5th September 1987, 3rd February 1989, 29th December 1990 and 23rd August 1992. Madam Cheng entered Hong Kong illegally in 1985 and 1986 and was repatriated to China. She entered Hong Kong again illegally in July 1987. A removal order was made against her on the 9th May 1991 and an appeal against this decision was dismissed by the Immigration Tribunal on the 14th May 1992. On the 3rd December 1992 the Director of Immigration refused to exercise his discretion under s.13 of the Immigration Ordinance to allow Madam Cheng to stay in Hong Kong. I granted leave to apply for judicial review on the 30th December 1992.

3. In MP 70/1993 the 3rd applicant So Hoi Ling who is illegitimate was born in China on the 16th August 1991. She was adopted in China in September 1991 by the 1st applicant So Kam Cheung and his wife Wu Wai Suen the 2nd applicant who are both residents of Hong Kong. The child entered Hong Kong illegally on the 31st December 1991. A removal order was made against her on the 19th May 1992 and an appeal to the Immigration Tribunal was dismissed on the 3rd June 1992. On the 16th December 1992 the Director of Immigration refused to exercise his discretion to allow the child to remain in Hong Kong under s.13 of the Immigration Ordinance. Leave for judicial review was granted by Liu J. on the 11th January 1993.

4. In MP 564/1993 the 3rd applicant Lau Sin Ting was born in China on the 11th February 1988. Her parents Lau Shek To (the 1st applicant) and Chiu Chun Chi (the 2nd applicant) were married in China on the 15th April 1981. At this time the 1st applicant was a Hong Kong resident but the 2nd applicant did not have the right of abode. Lau Chun (the 4th applicant) was born to the 1st and 2nd applicants in China on the 22nd May 1982. The 2nd and 4th applicants applied in 1987 for one-way permits to join the 1st applicant in Hong Kong. Their applications were granted in 1989 and they came to Hong Kong to live in October of that year. Meanwhile the 3rd applicant was born as I have said on the 11th February 1988. A one-way permit was sought on behalf of the 3rd applicant on several occasions but the applications were refused. However, a two-way permit was obtained in 1992 and the child arrived in Hong Kong on the 7th June 1992 and was granted a visitor permit which has been extended from time to time. As a result she has been a lawful visitor to Hong Kong at all material times. Nevertheless the Director of Immigration has refused to exercise his discretion under s.11 of the Immigration Ordinance to allow her to remain in Hong Kong. I granted leave for judicial review on the 25th February 1993.

5. It is therefore a common feature of the three cases that all the applicants with the exception of the mother Madam Cheng in MP 4151/1992 and the two children So Hoi Ling in MP 70/1993 and Lau Sin Ting in MP 564/1993, have the right of abode in Hong Kong.

6. The applicants' case is that the removal of the three applicants who do not have the right of abode in Hong Kong constitutes a violation of, inter alia, the right to family of their respective family members in Hong Kong under Article 19 of the BORO taken alone or in conjunction with Article 1. Further, the removal of Madam Cheng also constitutes a violation of the right of the children as guaranteed by Article 20 of the BORO taken alone or in conjunction with Article 1. The articles relied upon by the applicants where relevant provide :

"Article 1

Entitlement to rights without distinction

(1) The rights recognized in this Bill of Rights shall be enjoyed without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

(2) ......

 

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.

(2) ......

(3) .....

(4) ......

Article 20

Rights of children

(1) Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

(2) ....."

7. For the respondent it is submitted that by virtue of s.11 of the BORO which appears in Part III under the heading "Exceptions and Savings" the Bill of Rights does not apply. This section reads :

"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."

The Issue

8. The preliminary issue to be decided is whether s.11 of the BORO precludes only persons who do not have the right to enter and remain in Hong Kong from challenging the Immigration Ordinance under the Bill of Rights, or whether it goes further to preclude their family members in Hong Kong who have the right to enter and remain in Hong Kong from such challenge.

The Hong Kong Bill of Rights

9. The Hong Kong Bill of Rights Ordinance 1991 came into operation on the 8th June 1991 and is entrenched into the law of Hong Kong by the Hong Kong Letters Patent 1991 (No.2). The Hong Kong Bill is closely linked with the International Covenant on Civil and Political Rights (ICCPR) as applied to Hong Kong. The ICCPR which is a treaty was ratified by the United Kingdom in 1966 and extended to Hong Kong in 1976. The provisions of the ICCPR have therefore been incorporated into the law of Hong Kong and the 23 articles set out in Part II of the Bill have all been taken from the Covenant.

10. Apart from s.11 and Articles 1, 19 and 20 to which I have referred, the following provisions of the BORO are also relevant. Section 2 is concerned with interpretation and provides, where relevant :

"2. Interpretation

(1) ......

(2) The Bill of Rights is subject to Part III.

(3) In interpreting and applying this Ordinance, regard shall be had to the fact that that purpose of this Ordinance is to provide for the incorporation into the law of Hong Kong of provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong, and for ancillary and connected matters.

(4) Nothing in this Ordinance shall be interpreted as implying for the Government or any authority, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized in the Bill of Rights or at their limitation to a greater extent than is provided for in the Bill.

(5) There shall be no restriction upon or derogation from any of the fundamental human rights recognized or existing in Hong Kong pursuant to law, conventions, regulations or custom on the pretext that the Bill of Rights does not recognize such rights or that it recognizes them to a lesser extent.

(6) ......"

The effect of the BORO on pre-existing legislation and subsequent legislation is dealt with in ss.3 and 4 which provide :

"3. Effect on pre-existing legislation

(1) All pre-existing legislation that admits of a construction consistent with this Ordinance shall be given such a construction.

(2) All pre-existing legislation that does not admit of a construction consistent with this Ordinance is, to the extent of the inconsistency, repealed.

4. Interpretation of subsequent legislation

All legislation enacted on or after the commencement date shall, to the extent that it admits of such a construction, be construed so as to be consistent with the International Covenant on Civil and Political Rights as applied to Hong Kong."

Article 8 is concerned with liberty of movement and provides:

"Article 8

Liberty of movement

(1) Everyone lawfully within Hong Kong shall, within Hong Kong, have the right to liberty of movement and freedom to choose his resident.

(2) Everyone shall be free to leave Hong Kong.

(3) The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in this Bill of Rights.

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

Article 9 is concerned with restrictions on expulsion from Hong Kong and provides :

"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 competent authority or a person or persons especially designated by the competent authority."

Section 12 which appears in Part III with regard to exceptions and savings is relevant to Article 9 and provides :

"12. Persons not having the right of abode

Article 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."

When the ICCPR was applied to Hong Kong by the United Kingdom, the following reservation was adopted :-

"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."

Article 8(4) of BORO is taken from Article 12.4 of the ICCPR.

11. The United Kingdom also made another reservation for Hong Kong which reads :

"The Government of the United Kingdom reserve the right not to apply Article 13 in Hong Kong in so far as it confers a right of review of a decision to deport an alien and a right to be represented for this purpose before the competent authority."

Article 13 has been reproduced in the BORO as Article 9.

General Principles of Interpretation of the Bill of Rights

12. Guidance as to the interpretation of the Bill of Rights was given by the Court of Appeal in R. v. Sin Yau Ming [1992]1 HKLR 127. At p.139 of his judgment Silke V.-P. had this to say :

"... The words of the statute should be interpreted by the court as being intended to carry out the state's international treaty obligations and not in any manner inconsistent therewith provided the words of the statute are reasonably capable of bearing such meaning. (Garland v British Rail [1983]2 AC 751 (H.L.) and the words of Lord Diplock at page 771 A-C)

We are here concerned with a constitutional document even though brought into force by an Ordinance. It is nevertheless established as a self-contained document by virtue of the provisions of the Letters Patent and section 8 of the Hong Kong Bill."

Reference in Sin Yau Ming was made to the speech of Lord Diplock in A.G. of the Gambia v Jobe [1984] AC 689 at p.700 where he said :

"A constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction."

13. Sin Yau Ming decided that in obtaining guidance to the Bill of Rights it was appropriate to refer to decisions in other common law jurisdictions such as the United States, Canada and the European Court of Human Rights. However, in referring to such decisions, Lord Woolf in delivering the judgment of the Privy Council in Attorney General of Hong Kong v. Lee Kwong Kut and Ors (unreported 19th May 1993) had this to say at pp.9 and 10 :

"Such decisions can give valuable guidance as to the proper approach to the interpretation of the Hong Kong Bill, particularly where the decisions in the other jurisdictions are in relation to an article in the same or substantially the same terms as that contained in the equivalent provision of the Hong Kong Bill. However, it must not be forgotten that decisions in other jurisdictions are persuasive and not binding authority and that the situation in those jurisdictions may not necessarily be identical to that in Hong Kong. This is particularly true in the case of decisions of the European Court, as Silke V.-P. recognised. The European Court is not concerned directly with the validity of domestic legislation but whether, in relation to a particular complaint, a State has in its domestic jurisdiction infringed the rights of a complainant under the European Convention; whereas, in the case of the Hong Kong Bill, the Hong Kong courts, and on appeal the Board, have to determine the validity of domestic legislation having regard to the entrenched provisions of the Hong Kong Bill."

14. Mr Lee, Q.C., counsel for the applicants submitted that as fundamental rights and freedoms should be interpreted generously therefore any provision that allows for restrictions should be narrowly and strictly construed. In support of his argument, he cited Klass v Federal Republic of Germany [1978]2 EHRR 214 where the court at pp.230 and 231 had this to say about Article 8 of the European Convention on Human Rights which is concerned with respect for private and family life :

" 42. The cardinal issue arising under Article 8 in the present case is whether the interference so found is justified by the terms of paragraph 2 of the Article. This paragraph, since it provides for an exception to a right guaranteed by the Convention, is to be narrowly interpreted. Powers of secret surveillance of citizens, characterising as they do the police state, are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions."

Mr Lee also cited a passage from the judgment of Silke V.-P. in Sin Yau Ming at p.145 where he said :

"... The interests of the individual must be balanced against the interests of society generally but, in the light of the contents of the Covenant and its aims and objects, with a bias towards the interests of the individual."

15. Mr Lee also submitted that the burden of justifying any restriction of fundamental rights lies on the respondent.

Intention of the Legislature

16. Mr Lee submitted that there is no evidence to suggest that the intention of the legislature in enacting s.11 was to ensure that decisions made under the Immigration Ordinance in relation to entry to, stay in and departure from Hong Kong of all persons, including Hong Kong permanent residents, would not be affected by the introduction of the BORO. Indeed he said that it appears that the question in issue had not been considered by the Legislative Council at the time when the BORO was debated and that the Immigration Ordinance was scarcely mentioned during the debates.

History of the United Kingdom's Reservation

17. Mr Lee argued that as the intention of the legislature in enacting s.11 is to incorporate the corresponding reservation to the ICCPR entered into by the United Kingdom, s.11 should not receive an interpretation wider than the corresponding reservation. He adverted to the fact that the reservation was entered into by the United Kingdom shortly after the United Kingdom had been held to be in violation of Article 3 (right against degrading treatment) of the European Convention of Human Rights in East African Asians v United Kingdom [1975]3 EHRR 76. In that case the United Kingdom had refused to permit entry into the United Kingdom of large numbers of East African Asians from Kenya and Tanzania. These East African Asians were British subjects residing in Kenya and Tanzania when they were colonies of the United Kingdom. Upon their independence, those who held Citizen of United Kingdom and Colonies (CUKC) passports which gave them the right to enter the United Kingdom, were given an option to retain their CUKC status which most of them exercised. Subsequently, when they found life in Kenya and Tanzania no longer tolerable, partly because of the radical Africanization policy, they went to the United Kingdom, but were prevented from entering by an urgent amendment to the then immigration legislation. The effect of the amendment was to introduce the concept of patriality. Only a patrial had the right to enter the United Kingdom. In general, a patrial was defined as one who had settled in the United Kingdom for the last two generations. Most of these East African Asians were precluded from entering the United Kingdom as they did not satisfy this requirement of patriality. As a result, having regard to this background, Mr Lee submitted that the intention of the reservation was to keep out those who have no tie with the United Kingdom. It was not intended to affect those who had already established family ties with the United Kingdom. If there is any doubt as to the scope of the reservation, the doubt should be resolved in favour of the applicants.

Principles of Interpreting Reservations or Limitation Provisions

18. Mr Lee asserted that any reservation to a treaty must not be incompatible with the aims and objects of the treaty itself. The court therefore has to determine the scope of a reservation, which may not be interpreted so as to limit the enjoyment and exercise of the rights and liberties recognised by the ICCPR to a greater extent than is provided for in the reservation itself. The United Kingdom's reservation to the ICCPR is clearly confined to persons not having the right to enter and remain in Hong Kong. In support of his submission Mr Lee referred to the Vienna Convention on the Law of Treaties that applies to treaties between States. Article 19 of the Vienna Convention deals with the formulation of reservations and reads :

"Article 19

Formulation of reservations

A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a reservation unless :

(a) the reservation is prohibited by the treaty;

(b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or

(c) in cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty."

19. Mr Lee drew my attention to an advisory opinion of the Inter- American Court of Human Rights of the 8th September 1983 with regard to the interpretation of provisions in the American Convention on Human Rights concerning the death penalty. The American Convention on Human Rights "Pact of San Jose, Costa Rica" was signed on the 22nd November 1969 and came into force on the 18th July 1978. One of the issues discussed in the opinion concerned reservations to the Convention provided under Article 75 which reads :

"Article 75

This Convention shall be subject to reservations only in conformity with the provisions of the Vienna Convention on the Law of Treaties signed on May 23, 1969."

In the opinion at paragraph 60, the Court said :

"60).... As this Court has already stated, the reference to Article 75 ...makes sense only if it is understood as an express authorization designed to enable States to make whatever reservations they deem appropriate, provided the reservations are not incompatible with the object and purpose of the treaty. ..."

Later, at paragraph 62 the Court said :

"62)Reservations have the effect of excluding or modifying the provisions of a treaty and they become an integral part thereof as between the reserving State and any other States for whom they are in force. Therefore, without dealing anew with the question of reciprocity as it relates to reservations which, moreover, is not fully applicable as far as human rights treaties are concerned, it must be concluded that any meaningful interpretation of a treaty also calls for an interpretation of any reservation made thereto. Reservations must of necessity therefore also be interpreted by reference to relevant principles of general international law and the special rules set out in the Convention itself."

My attention was also drawn to two further passages in the opinion at paragraphs 65 and 66 which read :

"65. ...... If reservations to the Convention, to be permissible, must be compatible with the object and purpose of the treaty, it follows that these reservations will have to be interpreted in a manner that is most consistent with that object and purpose.

66. ...... a reservation may not be interpreted so as to limit the enjoyment and exercise of the rights and liberties recognized in the Convention to a greater extent than is provided for in the reservation itself."

20. Mr Lee also cited Belilos v Switzerland (1988) 10 EHRR 466 with regard to the interpretation of Article 64 of the European Convention for the Protection of Human Rights and Fundamental Freedoms which provides :

"Article 64

1. Any State may, when signing this Convention or when depositing its instrument of ratification, make a reservation in respect of any particular provision of the Convention to the extent that any law then in force in its territory is not in conformity with the provision. Reservations of a general character shall not be permitted under this Article.

2. Any reservation made under this Article shall contain a brief statement of the law concerned."

In this case the Court said that reservations relied upon by the Swiss Government were couched in terms that were too vague or broad for it to be possible to determine their exact scope and meaning so that the reservations were declared to be invalid.

21. Accordingly, Mr Lee submitted that the reservation to the ICCPR and a fortiori, s.11 must be interpreted in the light of the aims and objects of the ICCPR and be given a narrow interpretation consistent with the attainment of such purposes, and in particular Article 5(1) of the ICCPR and s.2(4) of the BORO from which it is derived. In other words, the purposes of the ICCPR control both the effect and the scope of the reservations made under it.

22. Further, and in the alternative, he submitted that s.11 is a limitation clause restricting the rights of any person in Hong Kong which would otherwise be guaranteed by the BORO. A restrictive meaning should be given to a limitation clause so as not to defeat the aims and purposes of the Bill of Rights. In this respect he referred me to Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Policial Rights (1985)7 Human Rights Quarterly 3, at p 4. In interpreting the Bill of Rights, full recognition should be given to the aims and purposes of the ICCPR which are to respect and to ensure to all individuals within the territory of the State Party the rights recognised by the ICCPR. The Bill of Rights must benefit every person within Hong Kong or subject to its jurisdiction.

Applicants' Submissions

23. Mr Lee asserted that s.11 does not prevent a person who has the right to enter and remain in Hong Kong placing reliance on the Bill of Rights to challenge immigration legislation, even if it may indirectly benefit a person who has no right to enter and remain in Hong Kong. Accordingly as s.11 is expressly confined to "persons not having the right to enter and remain in Hong Kong" it does not on the face of it affect the right of a person who has the right to enter and remain in Hong Kong from challenging immigration legislation under the Bill of Rights.

24. In support of this submission Mr Lee cited Fajujonu v Minister for Justice [1990]2 IR 151. In this case three children were born in Ireland to the 1st and 2nd plaintiffs who were unauthorised aliens living in Ireland. Before any deportation order had been made against the 1st and 2nd plaintiffs, they sought a declaration that they were entitled to reside in Ireland under the Irish Constitution. The court held that the children had a constitutional right to the company, care and parentage of their parents, which right can be exercised against the State, and although the parents as aliens had no particular constitutional rights to remain in Ireland, they were entitled to assert a choice of residence on behalf of their infant children in the interests of those children.

25. Reliance was also placed on Wholesale Travel Group Inc. v R. [1991]67 CCC(3d) 193 where it was held that s.7 of the Canadian Charter of Rights and Freedoms which guarantees everyone the right to life, liberty and security of the person, can only be enjoyed by human beings and therefore a corporation is unable to seek a declaration that certain provisions of a statute had infringed the section. However, the Supreme Court of Canada held that once a statutory provision had been declared invalid for having violated s.7, the benefit of the declaration could be enjoyed by a corporation. A natural person cannot be precluded from challenging a statutory provision under s.7 on the ground that such an action will indirectly benefit a corporation who is not an intended beneficiary. Accordingly Mr Lee argued by analogy that a person whose constitutional right to family is violated cannot be precluded from challenging the immigration legislation under the Bill of Rights purely on the ground that by taking such proceedings, he will indirectly benefit someone who is not the intended beneficiary of the Bill of Rights.

26. Mr Lee went on to assert that the right to family belongs to every member of the family so that the removal of the three applicants who do not have the right of abode in Hong Kong constitutes a prima facie interference with the right to family of each of their respective family members. Further, it is not necessary at this stage to determine whether the violation can be substantiated. Mr Lee referred me to X., Y. and Z. v United Kingdom (1982) 29 D & R 205 where the European Court held at p.209 as follows :

"The Commission refers to its constant jurisprudence that there is no right to enter or reside in a particular country guaranteed as such by the Convention ..... However, the Commission has also held that, in view of the right to respect for family life ensured by Article 8 the exclusion of a person from a country in which his close relatives reside may raise an issue under this provision of the Convention."

Mr Lee also cited Beldjoudi v France (1992)14 EHRR 801 where at pp.832 and 833 the Court said :

" The Court acknowledges that it is for the Contracting States to maintain public order, in particular by exercising their right, as a matter of well-established international law and subject to their treaty obligations, to control the entry, residence and expulsion of aliens.

However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be necessary in a democratic society, that is to say, justified by a pressing social need, and in particular, proportionate to the legitimate aim pursued."

27. Mr Lee further submitted that irrespective of the status of their parents, the children in MP 4151/1992 have a constitutional right to the company, care and parentage of their parents within a family unit which right the children can exercise against the State when the right is threatened or interfered with by the removal of their parent from Hong Kong. In this respect, Mr Lee again placed reliance on Fajujonu and in particular the judgment of Finlay CJ at pp.162 and 163 where he had this to say :

" I have come to the conclusion that where, as occurs in this case, an alien has in fact resided for an appreciable time in the State and has become a member of a family unit within the State containing children, who are citizens, that there can be no question but that those children, as citizens, have got a constitutional right to the company, care and parentage of their parents within a family unit. I am also satisfied that prima facie and subject to the exigencies of the common good that that is a right which these citizens would be entitled to exercise within the State.

I am also satisfied that whereas the parents who are not citizens and who are aliens cannot, by reason of their having as members of their family children born in Ireland who are citizens, claim any constitutional right of a particular kind to remain in Ireland, they are entitled to assert a choice of residence on behalf of their infant children, in the interests of those infant children.

Having reached these conclusions, the question then must arise as to whether the State, acting through the Minister for Justice pursuant to the powers contained in the Aliens Act, 1935, can under any circumstances force the family so constituted as I have described, that is the family concerned in this case, to leave the State. I am satisfied that he can, but only if, after due and proper consideration, he is satisfied that the interests of the common good and the protection of the State and its society justifies an interference with what is clearly a constitutional right.

The discretion, it seems to me, which in the particular circumstances of a case such as this is vested in the Minister for Justice to consider as to whether to permit the entire of this family to continue to reside in the State, on the one hand, or to prevent them from continuing to reside in the State, on the other hand, is a discretion which can only be carried out after and in the light of a full recognition of the fundamental nature of the constitutional rights of the family. The reason, therefore, which would justify the removal of this family as it now stands, consisting of five persons three of whom are citizens of Ireland, against the apparent will of the entire family, outside the State has to be a grave and substantial reason associated with the common good.

On the findings of fact which have been made by the learned trial judge there is not any finding that the existence of important family rights in the children of this marriage have been ignored or brushed aside in the investigations carried out on behalf of the Minister. Neither, however, is there a finding nor any evidence, it would appear to me, to support a finding of a careful consideration of those rights and a particular importance attached to them by reason of their constitutional origin. In any event the position of the family itself, the exercise by it of its rights to remain as a family unit and the exigencies of the common good which may be affected by the continued residence in the State of the first and second plaintiffs, are all matters which must, of necessity, have been subject to at least the possibility, if not the probability, of very substantial change since this matter was investigated in 1984.

In these circumstances, I am satisifed that the protection of the constitutional rights which arise in this case require a fresh consideration now by the Minister for Justice, having due regard to the important constitutional rights which are involved, as far as the three children are concerned, to the question as to whether the plaintiffs should, pursuant to the Act of 1935, be permitted to remain in the State."

28. Mr Lee contended that the right to family of the family members who are Hong Kong permanent residents and the right of the children who are Hong Kong permanent residents should not and cannot be taken away by s.11 in the absence of clear language. If a restriction clause is ambiguous and susceptible to different interpretations, namely whether s.11 takes away only the right of those who have no right to enter and remain in Hong Kong to challenge the immigration legislation or it goes further to take away the constitutional right of a person who has a right to enter and remain in Hong Kong to challenge the immigration legislation if such an action would indirectly benefit a person who has no right to enter and remain in Hong Kong, the former interpretation which is less restrictive should be adopted.

29. Mr Lee contended that if the legislature had not intended to exclude the right of Hong Kong permanent residents to challenge the immigration legislation or decisions made thereunder if such a challenge would indirectly benefit a person with no right of abode in Hong Kong, it would have adopted much clearer language in the section for example as follows :

"No immigration legislation or any decision made thereunder concerning the entry into, stay in or departure from Hong Kong of any person not having the right to enter and remain in Hong Kong shall be open to challenge by any person whomsoever under this Ordinance."

Respondent's Submissions

30. Mr Marshall, Q.C., on behalf of the respondent, submitted that Articles 8 and 9 implicitly divide people into three categories in respect of immigration status, namely those with the right of abode in Hong Kong under Article 8(4), those lawfully in Hong Kong under Article 8(1) and those illegally or unlawfully in Hong Kong under Articles 8(1) and 9.

31. Mr Marshall said that the clear legislative intention behind the various provisions of the BORO relating to persons who do not have the right of abode in Hong Kong is that it is permissible to treat them in a different way from persons who have the right of abode in relation to decisions which may loosely be described as immigration decisions. Further, it is important to observe that it is clearly not the legislative intention to exclude all decisions which the Director of Immigration can make in relation to persons who do not have the right of abode. The Director has the power to maintain in custody persons who are suspected to be illegal immigrants but in that respect those persons would be able to bring a claim under the BORO if it is alleged that there has been a breach of their rights during custody. The only decisions which are excluded from the operation of the BORO are those governing the entry, stay and removal from Hong Kong. Mr Marshall contended that the applicants have sought to create a new category of persons in addition to those already identified in respect of those who are in Hong Kong illegally but who have family members in Hong Kong so that in effect they are afforded the protection of the BORO based on the rights asserted by the family members who have the right of abode. He went on to submit that despite the provisions of s.11 an alien may still bring a challenge against a decision by way of appeal against a removal order under s.53A of the Immigration Ordinance and under s.53 to lodge an objection in respect of decisions under the Ordinance except those specifically excluded, whilst a petition can be lodged with the Governor under Colonial Regulation 168. This is in addition to the rights to challenge a decision by way of judicial review if there has been an error of law in the decision-making process. Accordingly, the introduction of s.11 does not mean that the persons affected by such decisions are without remedy.

Conclusions

32. As was submitted by Mr Marshall, the only question for determination is whether the legislature intended by s.11 to save the application of certain immigration legislation for the specified decisions. Either the provision is saved by Part III or it is not. It is therefore unnecessary for the respondent to justify the exception with the result that no onus of proof lies upon the respondent as contended by Mr Lee. The issue is essentially a matter of construction.

33. With regard to the principles of interpreting reservations or limitation provisions, the authorities of Fajujonu v Minister of Justice, X.,Y. and Z. v United Kingdom, Beldjoudi v France and the advisory opinion of the Inter- American Court of Human Rights will only be relevant if the interpretation of s.11 by Mr Lee is correct for the ICCPR has no restrictions on reservations. Belilos v Switzerland does not assist the applicants for Article 64 contains provisions restricting reservations and provides that reservations of a general character will not be permitted. As the interpretation by the Swiss Government was contrary to Articles 64(1) and 64(2), the Government could not rely on its interpretative reservation and was bound by the Treaty. Here it is clear as emphasised by Mr Marshall that the ICCPR has no restrictions on reservation. Wholesale Travel Group Inc v R. is of no assistance for the facts are totally different from the facts in these proceedings. The issues are in no way comparable to the defence raised in the criminal proceedings under the Canadian Charter. Further, the Siracusa Limitation Provisions are concerned with limitation clauses such as Article 8(3) of the BORO which is the equivalent of Article 12(3) of the ICCPR. The principles do not apply to the reservation provisions set out in the ICCPR and adopted in Part III of the BORO.

34. It was asserted that if the applicants' argument is accepted, Hong Kong could be faced with an influx of a large number of close family members from China estimated to be about 400,000 although this figure has been challenged. In order to prevent this problem arising and to ensure a fair system of entry into Hong Kong, the procedure by way of one-way permit and short term visitors has been followed to avoid queue jumping whether by illegal immigrants or short term visitors who have reneged on promises given on entering Hong Kong to return to China after a short visit.

35. Hong Kong has been faced with the problem of illegal immigration for several decades. Accordingly, it has been necessary to have strict immigration controls for the economic benefit and social welfare of the territory. Hong Kong with its limited land area cannot accept unlimited numbers of immigrants into the territory without creating serious problems for the community.

36. Whilst it has been contended for the applicants that if the BORO does not apply it will amount, in effect, to ousting the jurisdiction of the court this is not correct. The rights of illegal immigrants and aliens are protected by ss.13 and 14 of the Immigration Ordinance under which the Director of Immigration can exercise his discretion to allow any person to remain in Hong Kong which is normally exercised for humanitarian reasons in exceptional cases. Further, certain decisions can be challenged under s.53 of the Immigration Ordinance and an appeal can be lodged under s.53A of the Immigration Ordinance against a removal order. A petition can also be made to the Governor-in-Council under Colonial Regulation 168. Rights of redress are also available by way of judicial review.

37. It is clear that a reservation can modify the provisions of a treaty provided that it is not incompatible with its objects and purpose. The United Kingdom was therefore entitled to make the reservation provided that it was not incompatible with the objects and purpose of the ICCPR. That reservation serves the same purpose by its adoption as s.11 without being a breach of s.2(4). Section 2(2) provides that the Hong Kong BORO is the statement of rights in Part II subject to the exceptions and savings in Part III.

38. In my judgment, s.11 is clear and unambiguous. It is not restricted to keeping out persons who have no ties to the territory, but is intended to exclude the decisions under the Immigration Ordinance relating to the entry, stay and removal of persons who do not have the right of abode in Hong Kong. I am satisfied that s.11 is consistent with the aims and objects of the ICCPR as applied to Hong Kong. Although Mr Lee submitted that the language of the section should have been clearer and gave an illustration as to how it should have been drafted which I have set out earlier in this judgment, I consider that this argument amounts to a counsel of perfection. Indeed s.11 makes no reference to the members of the family with the right of abode having any such rights.

39. Nonetheless, I am satisfied that if any of the applicants' rights are infringed whilst they are in Hong Kong as for instance, under Article 3, which is concerned with torture, inhuman or degrading treatment, those rights are protected under the BORO.

40. Although Mr Lee ably presented a novel and ingenious argument on behalf of the applicants, I am quite satisfied that the legislature at the time when the Bill of Rights was debated never envisaged that these submissions would be advanced.

41. In cases involving the Bill of Rights, I would respectfully endorse the observations of Lord Woolf in Attorney General of Hong Kong v. Lee Kwong Kut and Ors. which although concerned with criminal proceedings must apply generally. At p.19 he had this to say :-

"While the Hong Kong judiciary should be zealous in upholding an individual's rights under the Hong Kong Bill, it is also necessary to ensure that disputes as to the effect of the Bill are not allowed to get out of hand. The issues involving the Hong Kong Bill should be approached with realism and good sense, and kept in proportion. If this is not done the Bill will become a source of injustice rather than justice and it will be debased in the eyes of the public. In order to maintain the balance between the individual and the society as a whole, rigid and inflexible standards should not be imposed on the legislature's attempts to resolve the difficult and intransigent problems with which society is faced when seeking to deal with serious crime. It must be remembered that questions of policy remain primarily the responsibility of the legislature."

42. However, whilst it is necessary to exercise the present policy having regard to the great problems caused by illegal immigration, I am of the opinion that the Director of Immigration should not exercise his discretion under ss.13 and 14 too rigidly. I believe that all right thinking members of society will regard a policy that requires the removal of a child who is less than 2 years old without her parents, the 5 year old daughter and the mother of the five young children decidedly unattractive and unworthy of a government that professes to support human rights. The interests of maintaining the family unit when children are involved should be a most important consideration to be taken into account by the Director of Immigration when exercising his discretion. This is particularly so when a family has lived together in Hong Kong for a substantial period of time.

43. However, for the reasons that I have given, I am satisfied that s.11 of BORO precludes the applicants from challenging the Immigration Ordinance under the Bill of Rights.