WONG KIN CHUNG v. DIRECTOR OF IMMIGRATION DEPARTMENT OF HKSAR

HCAL 2009/2024

[2025] HKCFI 750

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2009 of 2024

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only; or
	consideration of the documents and oral submissions by counsel for the applicant and counsel for the putative interested party in open court;

The application for leave to apply for judicial review is dismissed with no order to costs.

Observations for the applicant:

1.  This is the Applicant’s application for leave to apply for judicial review concerning his applications made to the Immigration Department (“Department”) for (1) Declaration of Change of Nationality dated 10 January 2024 and (2) Renunciation of Chinese National dated 24 April 2024 (“Applications”).

2.  The Form 86 was filed on 5 November 2024, which is supported by the Applicant’s Affidavit filed on the same day (“1^st Affidavit”). The Applicant’s case on his leave application was set out in the 1^st Affidavit. Three further Affidavits were filed by the Applicant on respectively 4 December 2024, 13 January 2025 and 7 February 2025. The first two of these Affidavits provided additional documents in support of this application. In addition to further documents, the last Affidavit also contained submissions and references to authorities.

3.  Pursuant to the directions of the court, the Department of Justice (“DOJ”), which represents the Department (Putative Respondent) and the 4 Putative Interest Parties, namely, the Secretary for Security, Commissioner of Correctional Services, Commissioner of Police and Secretary for Justice, had lodged with the court and served on the Applicant a chronological bundle of relevant documents in this case with a covering letter (“Letter”).

4.  The relevant background facts can be briefly stated. The Applicant was born in Hong Kong. He has a Hong Kong Permanent Identity Card as well as a Hong Kong Special Administrative Region, People’s Republic of China passport, which was issued on 12 August 2019 and valid for 10 years.

5.  The Applicant entered into Hong Kong on 9 October 2022 with his Portuguese passport which was issued on 13 August 2018 and expired on 13 August 2023. On 3 November 2022, the Applicant was remanded in the custody of the Correctional Services Department. On 11 April 2024, the Applicant was convicted of the offence of conspiracy to incite the commission by other persons of the offence of secession upon his guilty plea and admission of the facts of the case. He was sentenced to 5 years of imprisonment.

6.  It appears that the Applications were made by the Applicant at least in part with the hope that he would be afforded consular visits and other privileges, such as legal advice, and be deported from Hong Kong.

7.  The complaint of the Applicant in this application is that pursuant to Articles 3, 9 and 14 of the National Law of the PRC (“Nationality Law”), he is no longer a Chinese national due to his acquisition of foreign nationality.

8.  Nationality Law is applied in Hong Kong law by reason of its inclusion in Annex III of the Basic Law of the Hong Kong SAR of the PRC. Those Articles provide :

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

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 14 Persons who wish to acquire, renounce or restore Chinese nationality, with the exception of 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.

9.  I can see that there is scope for argument whether the Applicant has lost his Chinese nationality. However, for purposes of this application, there is a fundamental flaw in the Applicant’s case. He has made the Applications which have not been decided upon. It is plainly premature to launch a judicial review in the absence of decision on the Applications.

10.  The fact that no decision has yet been made on the Applications were pointed out in the Letter. It appears from the Applicant’s last Affidavit that he takes no issue with that fact. In the premises, this leave application must be dismissed, and I do so with no order as to costs.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1