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HCMP000209/1987
IN THE HIGH COURT OF JUSTICE
HIGH COURT
MISCELLANEOUS PROCEEDINGS
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IN THE MATTER of an application by the Applicant WONG LEUNG FOO for Judicial Review of a Removal Order. |
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Coram: Hon. Jones, J. in Court
Date of hearing: 25th February 1987
Date of delivery of judgment: 25th February 1987
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JUDGMENT
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1. This is an application for judicial review pursuant to leave that I granted on the 28th January 1987 to quash a removal order that was made by the Director of Immigration on the 27th January 1987 on the grounds that it was ultra vires the powers of the Director of Immigration.
2. The facts show that the applicant was born in China on the 20th December 1946. His father left China to go to work in the Philippines in 1949 and remained there until his death in 1982. The applicant's mother came to live in Hong Kong in 1960 and has remained here continuously since that time. The applicant came to Hong Kong from China in 1963 and he lived here with his mother and stayed for about 2½ years before he left Hong Kong to go to the Philippines to assist his father in his business, in 1965. When he was in Hong Kong, he obtained an identity card in May 1963.
3. On the 4th April 1985, the applicant came to Hong Kong from the Philippines using a Chinese passport issued by the People's Republic of China. He then went to pay a visit to China on the 11th April 1985 and returned to Hong Kong on the 2nd May 1985 returning the following day to the Philippines. During his stay in Hong Kong, he was issued with a new identity card. He came back to Hong Kong from the Philippines on the 17th May 1986, again using the passport issued by the People's Republic of China. On this occasion, he received permission to remain in Hong Kong as a visitor for a period of 7 days, that is until the 24th May 1986. He went to China on the 23rd May 1986 and returned to Hong Kong on the 4th June 1986. On that occasion, he received permission to remain again as a visitor for 7 days, that is until the 11th June 1986. Whilst he was here in May 1986, he obtained a Hong Kong Re-entry Permit and also a Hong Kong certificate of identity. The applicant did not leave Hong Kong as he was required to do on or before the 11th June 1986 and has remained in Hong Kong since that time. As a result of his overstay, a removal order was made by the Director of Immigration on the 23rd January 1987. The applicant lodged an appeal against this decision to the immigration Tribunal on the same day but he has since abandoned that appeal.
4. It has been argued by Mr Ismail on behalf of the applicant that he acquired permanent residence in Hong Kong when he came here in 1963 and that the Immigration Ordinance that came into operation in April 1972 was ultra vires the powers of the Director. The applicant has claimed, and is supported by other evidence, that it has always been his intention to come back from the Philippines to live in Hong Kong.
5. Before the Immigration Ordinance came into operation the law relating to immigration was contained in three ordinances - the Deportation of Aliens Ordinance, the Deportation British Subjects Ordinance and the Immigration (Control and Offences) Ordinance. Those ordinances were repealed by the Immigration Ordinance in April 1972 which was passed to consolidate the law relating to immigration and deportation. Mr Ismail points to the fact that no reference is made in the Immigration Ordinance or in the Transitional. Provisions set out in the Second Schedule with regard to the policy that had previously been adopted by the Hong Kong Government before that time and that in the absence of express legislation depriving him of what he contends to be an accrued right, to have the right to land and to remain in Hong Kong, is entitled to be regarded as a permanent resident. The policy at that time is set out in an affirmation made by Mr Mak Yue Bong, an Acting Chief Immigration Officer which was affirmed on the 20th of February, in which he says in paragraph 3:-
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(a)
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That prior to the coming into force of the Immigration Ordinance, on the 1st of April 1972, persons not British Subjects were generally not refused permission to land in Hong Kong where they presented themselves to an Immigration Officer and produced a document showing that the Authorities in the People's Republic of China had granted permission for them to leave China (an "Exit Permit");
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(b)
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That there was (as is now) no concept in terms of the law of "permanent resident";
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(c)
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That once a person had landed in Hong Kong in terms of paragraph (a), it was not the policy or practice of the Hong Kong Govenment to deport such persons unless there was some reason to do so other than the mere fact of their continued presence in Hong Kong;
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(d)
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That a Certificate of Identity was a travel document generally issued in lieu of a person being able to obtain a national passport, and gave a person a right of entry into Hong Kong - it was valid for a maximum of three years only (Regulation 9(2) of the Immigration (Control and Offences) Regulations) and
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(e)
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That it was necessary for an Alien travelling on a Hong Kong travel document to have a re-entry visa (Section 20(1) (b) (iv) Cap. 243). As a matter of practice, the Director of Immigration waived this requirement for holders of Certificate of Identity as from the 10th August 1965."
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6. The right to land in Hong Kong and to remain without any condition of stay is now governed by S. 8(1) of the Immigration Ordinance which provides that :-
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8(1) |
The following persons shall have the right to land in Hong Kong that is to say - |
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(a) Hong Kong belongers;
(b) -
(c) Chinese residents but subject to section 20(6);
(d) resident British citizens but subject to section 20(6); and
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(e)
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persons who immediately before the 1st January 1983 were resident United Kingdom belongers but subject to Section 20(6)." |
7. A Chinese resident is defined in S. 2(l) as follows:
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"2(l) |
In this Ordinance, unless the context otherwise requires - |
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..................................................................................................................
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"Chinese resident" means an immigrant who -
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(a)
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is wholly or partly of Chinese race; and
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(b)
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has at any time been ordinarily resident in Hong Kong for a continuous period of not less than 7 years."
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8. It is clear on the evidence that the applicant qualifies under the first part of the definition, but he has clearly not been ordinarily resident in Hong Kong for a continuous period of not less than 7 years. Accordingly, the applicant has no right to remain in Hong Kong under that section.
9. Reliance has been placed by the applicant on S. 64(b) (vii) which provides:-
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"64. If -
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(b) |
in any proceedings with reference to any act done or proposed to be done under this Ordinance,
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a person claims that he -
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(vii) |
is exempt from any provision of this Ordinance or belongs to a class or description of persons who are exempt from any provision of this Ordinance, |
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the onus of proving the same shall lie on that person."
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10. Although Mr Ismail contended that the applicant was exempt by virtue of the old policy, I am quite satisfied as was submitted by Mr Strawbridge who appeared for the Crown that the exemption referred to in that section can only be sought under the provisions of the Immigration Ordinance.
11. Mr Ismail cited Chan Kan v. Tao Yue Ying (1) but that case is not relevant here because the party in question had a right to land under S. 8(l) (c) which, as I have said, does not apply to the present applicant. He also cited a passage from R .v Cheng Tien-fung (2) at 154 and 155, where Trainor J. had this to say:-
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"It is a fundamental principle in the interpretation of legislation that it must be interpreted to conform with the pre-existing law except in so far as a departure from it is clearly discernible. In the Privy Council case Murugiah v. Jainudeen (1955) A.C. 145 Lord Morton of Henryton at 152/3 said:-
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'Mr Dingle Foot, for the respondent, referred their Lordships to the following passage in Maxwell's Interpretation of Statutes (10th ed., p. 81): 'Presumption against implicit Alteration of Law: One of these presumptions is that the legislature does not intend to make any substantial alteration in the law beyond what it explicitly declares, either in express terms or by clear implication, or, in other words, beyond the immediate scope and object of the statute. In all general matters outside those limits the law remains undisturbed. It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law without expressing its intention with irresistible clearness.' Their Lordships agree that the law is correctly stated in the passage cited.' " |
12. However, whilst that is clearly a correct statement of the law, there is no evidence before the court that the applicant here has at any time had express permission to remain in Hong Kong. Again, under the old law, there was no equivalent of the provisions set out in S. 8(1) with regard to a person's entitlement to be a permanent resident.
13. The policy adopted by the Hong Kong Government at that time does not have the binding force of law as was submitted. Whilst I accept the well-known principles that were referred to in the case of the Attorney General for Canada & anr. v, Hallet a Carey Ltd. & anr. (3) which was cited to me by Mr Strawbridge, that where some ambiguity arises in legislation, the court may adopt an interpretation that leaves private rights undisturbed I accept and agree with Mr Strawbridge that the provisions of Sections 7 and 8 are abundantly clear. The law that now applies is that embodied in the Immigration Ordinance. Irrespective of the previous policy which, as I say, does not have the force of law, the applicant's entitlement to have the right to land and remain in Hong Kong is governed by the provisions ccntained in this Ordinance. He is neither covered nor has he been exempted from those provisions. As a result, the motion will be dismissed.
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(B.L. Jones)
Judge of the High Court
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(1) Civil App. 159/1985
(2) [1978] H.K.L.R. 152
(3) [1952] A.C. 427
Representation:
Mr A. Ismail (Y.K. Poon & Co.) for applicant
Mr N.L. Strawbridge & Miss E. Wu for the Attorney General
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