LAU SAN CHING v. APOLLONIA LIU, the Returning Officer of Kwai Tsing District

1994, MP No.3215

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H E A D N O T E

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ELECTION PETITION - RESIDENTIAL QUALIFICATION OF A CANDIDATE - 10 YEAR ORDINARILY RESIDENT IMMEDIATELY PRIOR TO NOMINATION - CANDIDATE DISQUALIFIED BECAUSE OF HIS ABSENCE FROM HONG KONG FOR 7 YEARS 5 MONTHS OF THE RELEVANT PERIOD - DURING THIS PERIOD HE WAS SERVING A TERM OF SENTENCE OUTSIDE HONG KONG

HELD :

1. The candidate was ordinarily resident in Hong Kong within the relevant period.

2. His absence from Hong Kong did not negate his ordinary residence.

3. (Obiter) A strong case has been made out that Section 18(2) of the Electoral Provisions Ordinance is inconsistent with Article 21 of the Bill of Rights.

1994, MP No.3215

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ORIGINAL JURISDICTION

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REASONS FOR DECISION

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The Decision

1. On 19th January 1995, at the conclusion of the hearing of the petition by Mr Lau San Ching ("Mr Lau"), I held that the decision of the Returning Officer was incorrect when she ruled that the nomination paper submitted by Mr Lau for his candidacy in the 1994 District Board Election was invalid. I ruled that Mr Lau was an ordinary resident within the meaning of s.18(2) of the Electoral Provisions Ordinance and was qualified for nomination as a candidate. As a result, Mr Wong Yiu Chung, who was declared to have been elected as the District Board member in the constituency that Mr Lau sought to stand as a candidate, was not duly elected and that no other person was duly elected at that election.

2. I indicated that I shall give reasons in writing for my decision. I now give the reasons.

Nature of application

3. A District Board Election was scheduled to be held on 18th September 1994. Mr Lau, the Petitioner, decided to stand as a candidate in the Lai Wah Constituency of the Kwai Ching District in this election. On 1st August 1994, he submitted his nomination paper to the Returning Officer of the Kwai Tsing District Office. On 11th August 1994, Mr Lau was orally informed by the Returning Officer that his nomination paper was rejected. At the same time he was given a copy of her written decision. The written decision stated that the nomination paper was invalid because he was not qualified for nomination as a candidate under s.18(2) of the Electoral Provisions Ordinance. The reason given by the Returning Officer for her decision was that:-

"Having considered your absence from Hong Kong during the past ten years immediately preceding the date of your nomination, you are not considered as having ordinarily resided in Hong Kong during the entire ten year period by being habitually and normally resident in Hong Kong."

4. Mr Lau was also advised of his right to challenge the decision by way of election petition which was the matter before me.

5. The election in the Lai Wah Constituency of the Kwai Ching District Board was then held on 18th September 1994 without Mr Lau's name appearing on the ballot paper. On 19th September 1994, Mr Wong Yiu Chung was declared to have been duly elected.

6. Mr Lau challenged the election of Mr Wong on the basis of a material irregularity in the conduct of the election. Mr Wong has indicated that he does not wish to be a party to these proceedings.

7. Mr Lau had previously sought judicial review of the decision of the Returning Officer. The application was refused on the basis that the election petition was the appropriate remedy and the decision was confirmed on appeal.

Personal background of Mr Lau

8. The following background can be gathered from the Affirmation of Mr Lau filed in support of his application for judicial review in High Court MP No.2302 of 1994 and which by order of Jerome Chan, J. was allowed to stand as evidence in these proceedings.

9. Mr Lau was born in Hong Kong on 1st January 1953. His father came from Huizhou County, Guangdong Province in 1940 and settled permanently in Hong Kong. His mother was born in Hong Kong. Mr Lau's parents were married in Hong Kong. His parents were and still are resident in Hong Kong. Mr Lau has the right of abode in Hong Kong and is a Hong Kong Permanent Resident within the definition in s.2 and the Schedule of the Immigration Ordinance, Cap.115.

10. From his birth until 1963, Mr Lau lived with his parents, brothers and sister at an address in Reclamation Street, Mongkok and thereafter the family including himself moved to an address in Kwun Tong where his parents and one of his brothers still live.

11. The entirety of Mr Lau's primary, secondary and tertiary education had been in Hong Kong. His secondary school was King's College and in 1973 he entered the University of Hong Kong as a science student and graduated in 1976 with the degree of Bachelor of Science.

12. After graduating from university, he became a teacher. In September 1980, he changed his career and worked as a sales engineer in a company in Hong Kong ("the computer company") which was engaged in trading in and supplying of computer parts and components.

13. On 25th December 1981, Mr Lau was in Guangzhou, China during one of his short visits there which he had undertaken since December 1980. The purpose of the visits, was, according to him, to meet members of various groups supporting political reforms. The visits were made in his spare time during weekends or public holidays and normally lasted one or two days. During this period, he continued to work with the computer company. At that time, he was also still living with his parents at the address in Kwun Tong although from about 1976 onwards, he had started to rent a room in Mongkok and from mid-1979 onwards a room in Yaumatei where he stayed 4 or 5 nights a week, returning to the address in Kwun Tong at weekends and whenever possible at other times. This was the address where most of his personal belongings were kept. This arrangement was made because of the occasional need to work in the evenings and because of the difficulty of getting to and from Kwun Tong in the traffic conditions then prevailing.

14. On 26th December 1981 he was arrested by officers of the Guangzhou Municipal Bureau of Public Security and detained at a detention centre in Guangzhou. On 25th August 1982, after completion of investigations by the Public Security Bureau, the Guangzhou Municipal People's Procuracy issued an indictment against him. He was charged under Article 102 of the Criminal Code for the crime of counter-revolutionary sedition.

15. Following a trial on 7th February 1983, he was sentenced by the Guangzhou Municipal Intermediate People's Court to a fixed term of 10 year's imprisonment to run from the date of judgment but subject to reduction in respect of the period he was confined after the original detention and before sentence. An appeal against conviction and sentence was dismissed by the Guangdong Province Superior People's Court on 15th March 1983.

16. Mr Lau served the entirety of his sentence, first in Meizhou Prison and later in Huaiji Prison in Guangzhou. At all times, it was Mr Lau's intention to return to Hong Kong. He was released from prison on 25th December 1991 and allowed to return to Hong Kong on 26th December 1991.

17. Mr Lau had by then lost his job. The computer company terminated his employment in January 1982. Since his return to Hong Kong he took up employment in other fields. He had throughout his imprisonment in China retained his home and belongings at his parents' address. In fact that was the address given as his residence in the indictment. He also had an 8-week trip which he made in 1992 on a speaking tour of Europe, US and Canada. Otherwise, Mr Lau has been in Hong Kong since his return from China.

The Challenge

18. Mr Lau challenged the decision of the Returning Officer on two grounds:-

(1) He was ordinarily resident in Hong Kong during the ten year period immediately preceding the date of his nomination in accordance with s.18(2) of the Electoral Provisions Ordinance;

(2) Section 18(2) was inconsistent with Article 21 of the Hong Kong Bill of Rights.

Ordinary Residence

Reg. v. Barnet L.B.C., ex parte Shah

19. The governing authority on the meaning of "ordinarily residence" is the case of Reg. v. Barnet L.B.C., ex parte Shah [1983]2 AC 309 a decision by the House of Lords. The facts of the case as set out in the headnote of the judgment are as follows: In each of these appeals, a student had entered the United Kingdom some 3 years previously, or earlier, for the purpose of seeking an educational qualification by pursuing a course of study at a school or college, paying his own fees and relying on family resources for his maintenance. After obtaining his educational qualification, he applied to the Local Education Authority for an award under s.1 of the Education Act 1962, or, in the case of the student in the third appeal, Schedule 5 to the Education Act 1980, in respect of a first degree, or comparable, course of further education.

20. In each case the student's application was refused, each student applied for judicial review of the decision on the ground that it had, by applying the wrong test in respect of "ordinary resident" erred in law in reaching the conclusion that the student had failed to prove that he had been ordinarily resident in the United Kingdom throughout the 3 years preceding the course in question. In each of the first four cases, the student had entered the United Kingdom as a student with limited leave to enter, the limited leave including a condition that on completion of his studies, he would leave the country; in the fifth case, the student had entered with his family for settlement and obtained indefinite leave.

21. Section 1 of the Education Act imposed a duty upon the Local Education Authority to bestow awards upon persons ordinarily resident in its area who possessed the requisite educational qualifications. The exception is contained in Regulation 13 of the Local Education Authority Awards Regulation 1979 which provided that:

"Other exceptions.

13. An authority shall not be under a duty to bestow an award in respect of a person's attendance at a course -

(a) upon a person who has not been ordinarily resident, throughout the 3 years preceding the first year of the course in question, in the United Kingdom ....."

22. Lord Scarman held that the natural and ordinary meaning of the words "ordinary resident" has been authoritatively determined by the House of Lords in two tax cases in 1928, namely Levene v. Inland Revenue Commissioners [1928] AC 217 and Inland Revenue Commissioners v. Lysaght [1928] AC 234. In Levene Viscount Cave L.C., at page 225, said :

"I think that [ordinary residence]connotes residence in a place with some degree of continuity and apart from accidental or temporary absences."

In Lysaght Viscount Sumner, at page 243, said :

"I think the converse to 'ordinarily' is 'extraordinarily' and that part of the regular order of a man's life, adopted voluntarily and for settled purposes, is not 'extraordinary.'"

In Levene Lord Warrington of Clyffe said, at p.232:

"I do not attempt to give any definition of the word 'resident'. In my opinion it has no technical or special meaning for the purposes of the Income Tax Act. 'Ordinarily resident' also seems to me to have no such technical or special meaning. In particular it is in my opinion impossible to restrict its connotation to its duration. A member of this House may well be said to be ordinarily resident in London during the Parliamentary session and in the country during the recess. If it has any definite meaning I should say it means according to the way in which a man's life is usually ordered."

23. The following principles can be extracted from the judgment of Lord Scarman:-

(1) Ordinary resident is not a term of art in English law. (page 340)

(2) In their natural and ordinary meaning the words "ordinarily resident" mean "that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration". The significance of the adverb "habitually" is that it recalls 2 necessary features mentioned by Viscount Sumner in Lysaght, namely residence adopted voluntarily and for settled purpose. (page 342)

(3) The decision in each of the decided cases depended upon its own particular facts and such dicta as can be culled from the reported judgments must be read with that in mind. (page 342)

(4) A person could be ordinarily resident in two countries at the same time. This is a significant feature of the word's ordinary meaning for it is an important factor distinguishing ordinary resident from domicile. (page 342)

(5) Unless it can be shown that the statutory framework or the legal context in which the words are used required a different meaning, "ordinarily resident" refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration. (page 343)

(6) One exception is that if a man's presence in a particular place or country is unlawful, e.g. in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence. (page 343).

(7) There are two, and no more than two, respects in which the mind of the person is important in determining ordinary residence. The residence must be voluntarily adopted. Enforced presence by reason of kidnapping or imprisonment, or a Robinson Crusoe existence on a desert island with no opportunity of escape, may be so overwhelming a factor as to negative the view to be where one is.

There must be a degree of settled purpose. The purpose may be one or several. It may be specific or general. It is not necessary that the person intends to stay where he is indefinitely. The purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family, or merely love of the place are common reasons for a choice of regular abode. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled. (page 344)

(8) The legal advantage of adopting the natural and ordinary meaning is that it results in the proof of ordinary residence which is ultimately a question of fact depending more upon the evidence or matters susceptible of objective proof than upon evidence as to state of mind. If there can be proved a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences, ordinary residence is established provided only it is adopted voluntarily and for a settled purpose. (page 344)

(9) The "real home" test is wholly inconsistent with the natural and ordinary meaning of the words as construed by the House of Lords in the two tax cases, it is an unhappy echo of domicile. (page 345)

(10) The language of the education regulation lays emphasis not on intention or expectation for the future which is implicit in the idea of permanence, but on immediately past events, namely the usual order of the applicant's way of life and the place where in fact he has lived during the 3 years preceding his projected course of further education. (page 345)

(11) In the context with which these appeals are concerned, i.e. past residence, intention or expectations for the future are not critical: what matters is the cause of living over the past 3 years. (page 348)

The "immediately preceding" test

24. In the present case, it can hardly be challenged that Mr Lau was an ordinary resident of Hong Kong before December 1981 when he went to China. He was born in Hong Kong and received his education here. Upon his completion of university education he took up full time employment here. It was the place where his habitual and normal residence was and had been since his

birth. The issue is whether for the ten years immediately preceding August 1994 when he submitted the nomination paper, he was ordinarily resident in Hong Kong.

25. The date stated on the nomination paper was 27th July 1994. The nomination paper was submitted to the Returning Officer on 1st August 1994. Mr Marshall, leading counsel for the Respondent, submitted that in respect of the 10 years preceding 27th July 1894, it is apparent that as a matter of physical fact that at the commencement on 27th July 1984, Mr Lau was physically present in Guangzhou where he remained without interruption until December 1991 (a period of 7 years and almost 5 months) when he came to Hong Kong where he

has remained since, a period of 2 years and 7 months apart from a temporary absence of 8 weeks. Mr Marshall submitted that the statutory provision in Shah was a 3 year "immediately preceding" test. Section 18(2) of the Election Provisions Ordinance is a 10 year immediately preceding test. Section 18(2) provides that no elector shall be qualified for nomination as a candidate or for election unless he has ordinarily resided in Hong Kong for the 10 years immediately preceding the day of his nomination. He referred to the judgment of Lord Scarman at page 349 which sets out the appropriate question in applying an "immediately preceding" test:-

"My Lord, it is, therefore, my view that local education authorities when considering an application for a mandatory award, must ask themselves the question: Has the applicant shown that he has habitually and normally resided in the United Kingdom from choice and for a settled purpose throughout the prescribed period, apart from temporary or occasional absences? If a local education authority asks this, the correct, question, it is then for it, and it alone, to determine whether as a matter of fact the applicant has shown such residence. An authority is not required to determine his 'real home', whatever that means: nor need any attempt be made to discover what his long term future intentions or expectations are. The relevant period is not the future but one which has largely (or wholly) elapsed, namely that between the date of the commencement of his proposed course and the date of his arrival in the United Kingdom. The terms of an immigrant student's leave to enter and remain here may or may not throw light on the question: it will, however, be of little weight when put into the balance against the fact of continued residence over the prescribed period - unless the residence is itself a breach of the terms of his leave, in which event his residence being unlawful, could not be ordinary."

He submitted that, mutatis mutandis, in respect of s.18(2), the relevant question is: Has the intended candidate (i.e. Mr Lau) shown that he has habitually and normally resided in Hong Kong from choice and for a settled purpose throughout the 10 years immediately preceding 27th July 1994 apart from temporary or occasional absences? He submitted that the answer to that question has to be "no" because for the first 7 years and 5 months of the period Mr Lau was absent from Hong Kong totally. If he was totally absent for that period, he had, during the period of absence, neither habitually or normally resided in Hong Kong for a settled purposes nor can he rely on temporary or occasional absences because, given the ordinary meaning of these words in the context of ordinary residence, one cannot meaningfully describe a continuous absence of 7 years and 5 months as either an occasional or temporary absence. He submitted that it was equally clear from the same passage of Lord Scarman that the Returning Officer was not required to determine where Mr Lau's real home was nor need she attempt to discover what his long term future intentions or expectations were. She was only looking at the facts of the immediate past. Mr Marshall submitted that Mr Lau had failed in establishing the fact of residence in Hong Kong for the specific period. He had failed to show abode in Hong Kong at all during the first 7 years and 5 months of the period, never mind the settled purpose as part of the regular order of his life.

26. The relevant period is, of course, the 10 year immediately preceding the nomination and the relevant question to be asked is, of course, the one formulated by Lord Scarman. Lord Scarman, however, was dealing with a case where the students were not ordinarily resident in U.K. before they came to that country. One must bear this fact in mind when considering the test. Furthermore, Lord Scarman did not prohibit any consideration of events that took place before the relevant period. In Levene Viscount Sumner, at page 226, held that:-

"I agree that the taxpayer's chargeability in each year of charge constitutes a separate issue, even though several years are included in one appeal, but I do not think any error of law is committed if the facts applicable to the whole of the time are found in one continuous story. Light may be thrown on the purpose, with which the first departure from the United Kingdom took place, by looking at his proceedings in a series of subsequent years. They go to show method and system and so remove doubt, which might be entertained if the years were examined in isolation from one another."

The question of ordinarily residence is a question of fact and of degree and must be determined on all the circumstances of the case. (See the judgment of Viscount Cave L.C. in Levene at page 223.) In my view, it is not correct to look at the relevant period in question in isolation without regard to Mr Lau's previous mode of life. It is not correct to determine the issue by simply referring to the 10 year period and his absence in 7 years and 5 months out of this 10 year period and to hold that he could not be habitually or normally residing in Hong Kong because of these years of absence. This is certainly not the approach undertaken by the courts in, for example, the tax cases when they had to decide whether a taxpayer who had been absent from U.K. during the year of assessment remained to be an ordinary resident of U.K. The court did not decide the issue simply on the length of the absence. There are cases in which the taxpayer was absent throughout the whole or the majority period of the tax year, nonetheless the court still considered the reason of the absence and the nature of the absence during the relevant tax year. The approach adopted by Mr Marshall, is with respect, an over-simplification. One is reminded of the words of Viscount Cave L.C. in Levene :

"The suggestion that in order to determine whether a man ordinarily resides in this country you must count the days which he spends here and those which he spends elsewhere, and that it is only if in any year the former are more numerous than the latter that he can be held to be ordinarily resident here, appears to me to be without substance."

The approach advanced by Mr Marshall is, of course, not the one disapproved of by Viscount Cave L.C., but the point is that one simply does not look at the length of the absence alone.

27. Lord Scarman held that a person may have two ordinary residence at the same time. But it seems a man must have at least one residence at any one time. Indeed the Lord President in Rogers v. Inland Revenue [1879]1 TC 225 held that ".... and a man must have a residence somewhere." In this case there are only two places relevant for the consideration. One is Hong Kong, the other is China. Between his birth and December 1981, Mr Lau was ordinarily resident in Hong Kong. An absence from an existing ordinary residence throughout the entire relevant period may not break the connection or otherwise negate ordinary residence. This is illustrated by Rogers which I shall refer to later. The relevant fact is the nature of that absence. Was it temporary, of finite duration? Was it voluntary or involuntary? Was it occasional? Was it such as to cost him to lose his long established connection with Hong Kong? During the 10 year period, Mr Lau was in China. It was not a case, however, of him departing Hong Kong for the purpose of settling permanently elsewhere. He did not go to China for a settled purpose. His visits to China starting from December 1980 and ending with his arrest were of short durations lasting one or two days. He maintained his employment and his home in Hong Kong during the visits to China. During 7 years 5 months of the 10 year period he was serving a sentence of imprisonment in China. He could not be ordinarily resident in China during this period because as Lord Scarman in Shah observed, the residence must be voluntarily adopted and enforced presence by reason of imprisonment may be so overwhelming a factor as to negative the view to be where one is. Mr Marshall has not argued otherwise on this point.

28. If during this period Mr Lau was not ordinarily resident in China, where would he be ordinarily resident? The answer is that, considering his mode of life in Hong Kong prior to his departure in December 1981 for China, he was ordinarily resident in Hong Kong during the relevant 10 year period and that his absence from Hong Kong was of a temporary nature which did not negate his ordinary residence in Hong Kong. Absence enforced or otherwise would not necessarily disrupt a period of ordinary residence, the tribunal will have to consider the particular circumstances of each individual case (per Cons Vice-President in Director of Immigration v. Ng Shun-loi [1987] HKLR 798. In the present case, the absence was temporary because it was for a fixed period only. "Temporary" as described by the Oxford English Dictionary is : "lasting for a limited time; existing or valid for a time (only); not permanent; transient; make to supply a passing need". His absence during the 10 year period was temporary because it was for a limited time since his sentence of imprisonment was for a fixed term of 10 years and it existed for a time only. When he left Hong Kong on 25th December 1981, he undoubtedly left in the full expectation that he would be back in a matter of days at the end of the Christmas holidays, back to his job and his family. He could not have lost that ordinary residence in Hong Kong simply by being physically elsewhere.

29. In Chief Adjudication Officer & another v. Ahmed & other, Times Law Report April 6, 1994, the Court of Appeal had to construe the words "temporarily absence" of the Social Security (Persons Abroad) Regulations. In the rather short report it was held that it was wrong to treat temporary as being synonymous with "not permanent". The task to be performed was to apply the words of the regulation "temporarily absence" to the facts of the particular case. It was held that the quality of absence might change with the passage of time. A claimant might go abroad for a comparatively short period of treatment intending to return after, say, 3 or 4 months. But the position might alter and as time passed it might become more and more difficult to show that he was only temporarily absent. The word "temporarily" connoted that, although the day of the return remained uncertain, the absence contemplated was an absence for a limited period only.

30. While 7 years and 5 months is indeed a long time, Lord Scarman referred to temporary absence of long or short durations. Although Lord Scarman in his later formulation of the principle did not refer to the question of duration, he at page 343, expressly approved of the formulation by Lord Denning MR that, "that the person must be habitually or normally resident here, apart from temporary or occasional absences of long or short duration."

31. Mr Marshall argued that there must come a point of time in which the temporary absence becomes inconsistent with the fact of habitual residence and its continuity. This proposition is correct if the person voluntarily and with a settled purpose chose to adopt a residence elsewhere. However, where that person did not choose to reside in a foreign country on that basis, the duration of the period of absence could not be relevant in determining whether the continuity of the habitual residence has been terminated by the absence. The quality of absence of Mr Lau could not change with the passage of time if he remained in custody throughout the relevant period. Of the cases cited by Mr Marshall, such as Noor Hussain (1971)56 Cr.App.R.165, IRC v. Combe (1932)17 TC 405, Withers v. Wynyard (1938)21 TC 724 and Reed v. Clark (1985)9 TC 323 which show that the litigants were no longer ordinarily resident in U.K. at the material time, the common theme of these cases is that the litigants there all voluntarily chose to depart from England and conduct their regular habitual mode of life elsewhere.

32. Godfrey J.A. at the judicial review proceedings held that:

"In the case of the applicant who was detained in custody in China, it is difficult to understand how that involuntary detention can have deprived him of his ordinary residence in Hong Kong; but all these matters required full argument, the right place for which is the election court."

Mr Marshall informed the court that he did not have the opportunity of fully arguing the issue of ordinarily residence in the Court of Appeal. Nonetheless, the view expressed by Godfrey J.A., provisional it may be at that stage, is one I would respectfully adopt.

The cases

33. Both parties have referred to a number of cases. Mr Kat described the cases he relied upon as the "absence cases" to illustrate the principle that absence from one existing ordinary residence may not break the connection or otherwise negate ordinary residence. Mr Marshall, on the other hand, referred to cases showing how absence could terminate the ordinary residence of a person in a particular place. Before I deal with these cases, it is necessary to bear in mind what Lord Scarman said in Shah : the decision in each of the decided cases depends upon its own particular facts and such dicta as can be culled from the reported judgments must be read with that in mind. Furthermore, as Nicholls J. in Reed v. Clark held, the difference between the examples of cases is one of degree and there is an area in which different minds may reach different conclusions.

34. In Tewkesbury Case,Whithorn v. Thomas (1844)7 MAN & GI 10 (135ER1), the claimant's ordinary residence with his wife and family was outside the borough. He rented a room in the borough, kept the key and slept there about twelve times during the relevant period. The issue was whether he was resident in the borough for 6 months before 31st July which would qualify him to vote at the borough. On the facts it was held that the claimant was ordinarily resident outside the borough with his wife and family.

35. In Rogers v. Inland Revenue [1879]1 TC 225, the issue was whether the taxpayer was a person residing in Great Britain during the tax year from April 1878 to April 1879. He was a master mariner and was last in Great Britain in July 1877, he was absent from the country during the whole year to which the assessment applies. He possessed in his own name a dwelling house in Great Britain where his wife and children had resided during the relevant tax year. The Lord President held that:-

"Where is this man's residence? The question undoubtably is that his residence is in Great Britain. He has no other residence, and a man must have a residence somewhere. The circumstance is that Captain Rogers has been absent from the country during the whole year to which the assessment applies does not seem to me to be a speciality of the least consequence. That is a mere accident. He is not a bit the less a resident in Great Britain because the exigencies of his business have happened to carry him away for a somewhat longer time than usual during this particular voyage."

36. In Cooper v. Cadwalader (1904)5 T.C. 101 an American ordinarily resident in New York, with no place of business in the United Kingdom, rented a house and shooting rights in Scotland, where he spends about 2 months continuously in each year. It was held that he was a person "residing in the United Kingdom" and liable to assessment to Income Tax. The Lord President held that :

"He has in effect, a lease of heritage in Scotland, he occupies personally the subjects let to him for a considerable period of each year and when he is absent in America these subjects are kept in readiness for his return. His occupation of the subjects is not of a casual or temporary character, but is substantial, and as regards some of its incidents is continuous."

37. In Thomson v. IRC [1919] SC 8, the issue was whether the taxpayer was a person residing in the United Kingdom during the year of assessment 1911-1912. The taxpayer owned a house in Scotland where his wife and family resided. He was there from 6th April 1911 to August 1911, where after he was absent in Africa where he was required by his contract of employment to live for 8 months of the year. Clerk L.J. held that:-

"I think in the sense of the Income Tax Acts a man may reside in more than one place at the same time.

That was, in my opinion, expressly decided in, or necessarily follows from, the cases of Lloyd and Cadwalader. Even, therefore, if it were conceded that for 8 months of the year in question, the Appellant resided in West Africa, where he actually was, and which was a place of his employment under the agreement so long as the agreement was in force, that would not preclude him from being so held to reside during this 8 months where his wife and family lived in a house which he had provided for them as a place of residence. In my opinion, the Appellant did during the whole year reside in the sense of the said Acts where that house was. I think it makes no difference that he might also be held to have resided for this 8 months in Africa. So far as this part of the situation is concerned, I do not find any distinction taken between the ordinary or principal residence and any other place of residence. But on this stated case, I am of opinion that, assuming that the Appellant have for part of the year two residences, his ordinary or principal residence was all the time where his wife and family were."

38. In Levene v. Commissioners of Inland Revenue [1928] AC 217, the taxpayer was a British subject, resident and ordinarily resident in the United Kingdom. In March 1919, he decided to leave, sold his furniture, surrendered the lease of his house and lived in the United Kingdom in hotels until December 1919. He then went abroad and did not return until July 1920. In the years 1920 to 1924, he spent between 19 and 22 weeks per year in the U.K. Until January 1925 when he bought a flat in Monaco, he lived in hotels both in the U.K. and abroad. The question was whether he was resident or ordinarily resident in the U.K. during the tax years 1921-22, 1922-23, 1923-24 and 1924-25. The Lord Chancellor held that the question whether one person is resident of a place is one of fact and of degree and must be determined in all the circumstances of the cases. On the facts of the case, he held that:-

"The result is that during the period from the end of 1919 until January 1925, he went much abroad, partly for the sake of his own and his wife's health, partly no doubt to search for a house or flat, and partly (as may be inferred from the finding of the Commissioners) in the hope of escaping liability to the English Income Tax; but none of these purposes was more than a temporary purpose, and he regularly returned to England for the greater part of the summer months though for less than one half of each year. On these facts, I think that it was plainly open to the Commissioners to find that during the years in question, he was resident in the United Kingdom, and I think it probable that rule 3 above-quoted applied to him."

39. In The Commissioner of Inland Revenue v. Combe [1932]17 TC 405, the taxpayer, prior to 24th April 1926, was resident and ordinary resident in the U.K. On that date, he left the U.K. to enter the employment of a company in New York. The employment was in the nature of an apprenticeship, with a view to his becoming a European representative of the firm. During each of the years 1926-1927, 1927-1928 and 1928-1929, he visited the United Kingdom on his employer's business. He was not a householder in the United Kingdom, nor had he a fixed place of abode there, but he resided at hotels during his visits. On appeal, the General Commissioners decided that in each of the 3 years he was not resident in the United Kingdom. This finding was affirmed by the Court of Session.

40. In Withers v. Wynyard [1938]21 TC 724, the taxpayer was an actress. She was a British subject and lived in the U.K. until October 1931 when she signed a contract to act in a play in America. She left for America in November 1931 and early in 1932 entered into a contract there to act for an American film company for a period of 51/2 months ending in December 1932 with further options. She returned on 8th April 1933 to U.K. where she acted in a play during May and June. On 7th July she went abroad for a holiday returning to the U.K. on 1st September. She left for America in accordance with her contract with the film company on 24th September 1933 and remained there until July 1934 when she returned to the U.K. permanently. She was the tenant of a flat in London which she sublet from time to time during her absence abroad but in which she stayed in May and June 1933, in the interval between two sublettings. She was assessed for income tax in the years 1932 - 1933 and 1933 - 1934. On appeal, the General Commissions discharged the assessment for the year 1933 to 1934 on the ground that she was not resident in the U.K. for that year. Lawrence J. held that there was evidence upon which the Commissioners could come to their view that she was not resident during the year in question.

41. In Stransky v. Stransky [1954] P 428 a wife petitioned for divorce. The test of jurisdiction was ordinary residence in England for 3 years preceding her petition. She had a flat in London where she resided, though during the 3 years she had spent substantial periods of time (in all more than 15 months) in Germany, where her husband was. Karminski J. held that the wife was ordinarily resident in England for a period of 3 years which conferred the necessary jurisdiction on the court. He referred to the judgment of Somervell L.J. in Macrae v. Macrae [1949]2 All ER 36:-

"Ordinary residence ... can be changed in a day. A man is ordinarily resident in one place up till a particular day. He then cuts the connection he has with that place - in this case he left his wife; in other case he might have disposed of his house and makes arrangement to have his home somewhere else. Where there are indications that the place to which he moves is the place which he intends to make his home for, at any rate, an indefinite period, as from that day he is ordinary resident at that place."

42. In R. v. Edgehill [1963]1 QB 593, the defendant came to England in June 1957. He lived there with a woman by whom he had a child. On May 16th, 1959 he went to Belgium for a fortnight's holiday but was sentenced to detention by the Belgium authorities who, on October 14th, 1959, deported him back to England where he had continued to reside. In July 1962, he was convicted of a criminal offence and a deportation recommendation was made. Under the relevant statute no deportation recommendation was to be made if the offender was ordinarily resident in the U.K. on the date of his conviction and he has been continuously so resident for a period of at least 5 years ending with the date of the conviction. Lord Parker C.J. found that he was ordinary resident in U.K. He referred to the judgment of Karminski J. in Stransky v. Stransky which held that:

"Clearly, mere temporary absences from England, such as a holiday abroad, would not make a gap in the period of ordinary residence."

Lord Parker C.J. held that :

"It will be a matter no doubt of fact and degree in each case, and all that the court would like to say is that the principles enunciated in the income tax cases and Stransky v. Stransky would seem to apply to s.7(2) of the Act now under consideration."

43. In Clerk v. Insurance Officer of Australia Limited [1965]1 Ll.R.308, the issue was whether a policy holder was entitled to be indemnified by the insurance company for damages and cost recovered against him by his daughter. The indemnity under the insurance policy is restricted to persons other than any relative or friend of the insured ordinarily residing with the insured. The facts were that the daughter had lived continuously with her parents until February 1960 when she was sent to a boarding school. She spent her vacations between that day and the day of the accident, 2nd September 1961, at her parent's own. It was intended that she should return to school at the end of the vacation and continued to board at the school for 2 or 3 more years. She has spent in total about 30% of each year at the parents' home. Whilst away for 19 months, she had left some clothes and books behind but no room had been kept for her. At the day of the accident she had been staying at the parents' home for about 14 days. It was held that the fact that more time was spent at boarding school than at the parents' home is entirely outweighed by the circumstances that the daughter's permanent home had at all times been with her parents and that the time spent at the school was for the special purpose of education; that the connection with the parents' home and household had never been severed and that they always intended to maintain the connection while the infant's mode of living remained under their control. The daughter was at the time of the accident ordinarily residing with her father. Smith J. of the Australia Supreme Court of Victoria at page 311 held that:-

"The duration of residence and the comparative times spent in different places or households, will of course commonly be a great importance, but they are not factors which are necessarily decisive. They may be outweighed by other factors. ....."

"Again if a person had once become so connected with a particular household that it would be regarded as his permanent home, an absence from it even if of long duration and spent in only one other household would not in general be regarded as changing the place where he ordinarily resides, so long as the moves is for a special limited purpose and is not intended to be permanent or to continue indefinitely: compare, as regards the relative unimportance of a 'residing' which is for a special purpose and not for general purposes of living with 'its accessories in social relations, interest and convenience'.....".

Lord Scarman in Shah held that this case was correctly decided on the facts.

44. In Sanger v. Phelan [1970]16 FLR 397 a seaman appealed against his summary conviction for failing to register under the National Service Act which required certain persons ordinarily resident in Australia to register under the Act upon a specified date. The seaman had been abroad for 19 months as a merchant seaman on the specified day and 6 months after the date he returned to Australia. He argued that he was not ordinarily resident in Australia during the relevant time. Dethridge J. held that:-

"Conceivably if his absence had extended over years, despite his intention to ultimately return, a stage would have been reached when he could not reasonably be described as ordinary resident in Australia. Losing a residence may be a matter of degree, just as acquisition of a residence may be (see Lord Buckmaster in Inland Revenue Commissioners v. Lysaght)."

The learned judge held on the facts of the case the seaman did not cut himself off as an Australian resident and had not done so before his return in Australia and that at the specified date he was ordinarily resident in Australia.

45. In Noor Hussain [1971]56 Cr. App. R.165 a commonwealth citizen who had resided in England from 1962 to 1968, on December 6, 1968 left his employment in England and returned to Pakistan where he stayed with his 2 wives and 5 children for 20 months. He was convicted of an offence in June 1971, and recommended for deportation. Under the relevant legislation, no recommendation shall be made upon the conviction of an offender who was ordinarily resident in the U.K. on the date of his conviction and had been continuously so resident for a period of at least 5 years ending with that date. Phillimore L.J. held that:-

"Of course, the mere breaking of any residence to take up an ordinary holiday abroad does not render the person no longer a resident. The question which the court has had to consider is whether 20 months went beyond what could be described as an ordinary holiday. Granted the Appellant had been here, with the one exception which I have mentioned, since 1962, but I confess that 20 months would appear to be clearly in excess of what would normally be described as a holiday. There is nothing here to suggest that this Appellant when he went back to Pakistan, had not at any rate at that time made up his mind to go back and lived there with his wives and children and his plot of land."

46. In Graves v. Graves [1973]36 DLR(3d) 637, the issue was whether the petitioner was ordinarily resident in Nova Scotia for the year preceding the filing of the petition on 15th December 1972. The petitioner was ordinarily resident in Nova Scotia prior to the beginning of the relevant period and went to Ontario to attempt a reconciliation with her husband in May 1972. She left behind some small assets and asked her sister to hold vacant for her, for a month, accommodation "in case things didn't work out". She returned to Nova Scotia after one week in Ontario. The Supreme Court of Nova Scotia held that:-

"From another point of view, it may, I think be said that this petitioner was not 'ordinarily resident' in Ontario when she joined the respondent there, in May, 1972. I am aware that it has been suggested by higher authority that the word 'ordinarily' adds little to the word 'reside' (per Viscount Cave LC in Levene [1928] All ER Rep 750), and yet I find it of some assistance in determining this petitioner's status to sue in this court. I would regard her residence in Ontario, in the circumstances I have outlined, as 'extraordinary' resident (i.e. the 'antithesis of ordinary' residence) and therefore not much residence as would break the continuity of her Nova Scotia residence for the requisite period."

47. In Britto v. The Secretary of State for the Home Department [1984] Imm. AR 93, the Appellants were British Overseas Citizens and they applied for a certificate of entitlement to the right of abode in the U.K. The issue was whether they were ordinarily resident in the U.K. for the last 5 years or more that was prior to their application on 24th December 1982. Between 29th August 1977 and 23rd January 1983, Mr Britto spent a total of 7 months in the U.K. and a total of 4 years and 10 months overseas. Between 29th August 1977 and 9th October 1982, Mrs Britto spent 1 year and 4 months in the U.K. and 4 years and 1 month abroad. Mr Britto during the relevant time was employed by the U.N. Technical Assistance Programme in Ethiopia and subsequently in Nepal. The Immigration Appeal Tribunal held that:-

"..... Mr and Mrs Britto had a settled purpose (which was to establish a home for the family and eventually to live in it permanently). The regular habitual mode of life consisted of the availability of the home for, apart from the year immediately after the purchase, the house was available and used by the family, and the 'visits' by Mr and Mrs Britto made whenever leave permitted. Through these visits and their context was a continuity in the 'regular habitual mode of life' (which was missing in Kaniz Sultana, (2888)). Mr and Mrs Britto are in the position not unlike the English civil servants working abroad. Once accepted that there may be concurrent ordinary residents and the element of physical presence becomes less dominant. In this case, the family home and the accepted family intention taken together with the regular visits (even though limited in duration) lead us to the conclusion that Mr and Mrs Britto were ordinarily resident here for the required period."

48. In Vassis: ex parte Leung [1985] 64 ALR 407, a solicitor misapplied money entrusted to him by his clients and upon learning that a receiver was about to be appointed to his practice, he fled Australia and went to Greece for 2 years before returning to Australia. A bankruptcy petition was presented against him. The issue was whether the solicitor was at the time when the act of bankruptcy was committed ordinarily resident in Australia. Burchett J. held that:-

"The question whether a person is ordinarily resident is a question of fact: Levene v. IRC [1928] AC 217. It is obviously not to be answered, in respect of any particular time, by asking where that person was then resident. Otherwise the word 'ordinarily' would have no meaning. But even the unqualified concept of residence is not tied to the accidents of a day; for, as Viscount Sumner said in IRC v. Lysaght [1928] AC 234 at 245:

'One thinks of a man's settle and usual place of abode as his residence.'

At the same time, his Lordship pointed out that:

'In many cases in ordinary speech one's residence at a time is the underlying assumption, though a man may be the occupier of two houses, he is thought of as only resident in the one he lives in at the time in question.'

In s.43 of the Bankruptcy Act, the phrase is not "resident in Australia" but "ordinarily resident in Australia", and it expressed an alternative to "personally present ... in Australia". In such a context, it must convey the former of the meanings which I have quoted from Viscount Summer's speech rather than the latter. If a man's home is in Australia, a merely temporarily absence would not prevent his being ordinarily resident in Australia. It is a question of fact and degree at what point a temporary absence might, if sufficiently prolonged, prevents its being proper to continue to regard him as ordinarily resident in Australia. In Akbarali v. Brent London Borough Council (i.e. the Shah case) [1983]2 AC 309 at 344, Lord Scarman said:-

'For if there be proof a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences, ordinary residence is established provided only it is adopted voluntarily and for a settled purpose.' "

The learned judge, after referring to the evidence, stated that:-

"There is no suggestion that during his absence, he established any other ordinary residence at any particular place in Greece. His own evidence, to which I have referred, clearly indicates that he regarded his journey overseas, desperate flight though it was, as no more than a temporarily interruption of his ordinary residence in Victoria. I do not think the law requires it to be regarded in any different light. It may be compared, for example, to an absence overseas by a Melbourne university lecturer upon sabbatical leave at Athens University who would, in my opinion, still be correctly described as ordinarily resident in Australia if at the conclusion of his sabbatical leave he intended to resume life here."

49. In Reed v. Clark [1985] STC 323, the taxpayer was a British subject domicile in England. For the years both before and after 1978-1979, he was resident in the U.K. He departed for Los Angeles on 3rd April 1978 and did not visit the U.K. until he arrived back in London on 2nd May 1979. He was pressed to pay income tax for the year 1978-79. He was advised that it should be possible for him to avoid U.K. tax on the payment to him of certain copyright materials which he was entitled to provided that he did not set foot in the U.K. during the year of assessment 1978 to 1979. The taxpayer argued that he was not an ordinary resident for the year 1978 to 1979 and was not subject to the U.K. tax assessment. Nicholls J. accepted the finding that the taxpayer was not ordinary resident in U.K. for the relevant period. Nicholls, J. at page 345 referred to Shah and held that:-

"On that basis, it seems to me plain that a British resident's departure abroad for a period of a few weeks or months with the firm intention of returning at the end of the period to live here as before would be likely always to be for the purpose only of occasional residence. At the opposite end of the scale, it seems to me equally plain that the departure of such a resident abroad for a limited period of (say) 3 years would not necessarily be for the purpose only of occasional residence just because from the outset he had a firm intention of returning at the end of the period to live here as before; 'not necessarily', because all the circumstances would have to be considered. IRC v. Combe [1932]17 TC 405 is an example of this, where on the facts Captain Combe's business and residential headquarters were permanently in New York throughout the 3 years. For my part, I think this latter conclusion is also true of residents abroad for just over one year in duration. The difference between these examples is one of degree, and there is an area in which different minds may reach different conclusions. In my view, a year is long enough period for a person's purpose of living where he does to be capable of having a sufficient degree of continuity for it to be properly described as settled. Hence, depending on all the circumstances, the foreign country could be the place where for that period he would be ordinarily and not just occasionally resident."

50. In R. v. Immigration Appeal Tribunal ex parte Ng [1986] Imm. A.R.23, Mr Ng arrived in the U.K. on 29th August 1962. He worked in the U.K. and left for Hong Kong on 24th August 1967 although his contract of employment continued until 31st August 1967. The issue was whether Mr Ng had ordinarily resident in the United Kingdom for 5 years or more after he first began to reside in the United Kingdom for the purpose of the Immigration Act 1971. Webster J. held that:-

"In my view, the (Immigration) Tribunal asked themselves the right question and drew from the fact an inference which was at least a proper one and, in my view, an inevitable one. It was in my view an inevitable inference that when the Appellant left the United Kingdom, he intended to reside and be employed in Hong Kong for the foreseeable future. In the light of that inference, the conclusion that he was not or did not remain ordinarily resident in this country after he left was, in my views, one which cannot be challenged and is itself inevitable."

Webster J. referred to the decision of the Immigration Appeal Tribunal which, after referring to Shah, held that:-

"The question whether Mr Ng remained ordinarily resident in England is not necessarily answered by becoming ordinarily resident in Hong Kong. However, in our view, as from Mr Ng's arrival in Hong Kong, it could not be said that England was his abode adopted for a settled purpose. His departure was not for a temporary absence and clearly he ceased to be ordinarily resident at some time on or after 24th August when he left. The factors of employment and payment of National Insurance and tax may be relevant where there is no clear evidence of a permanent move from one country to another. However, on the facts of this case, viewed objectively, that move took place when Mr Ng physically went to Hong Kong. He then ceased to be ordinarily resident in England."

51. In Cheung Cheong v. Attorney General [1987] HKLR 356, a man illegally entered Hong Kong in 1965 and applied for and was issued with an identity card in 1966. In 1968, he left Hong Kong in a fishing vessel without having complied with the proper exit procedures. The vessel was stopped by Chinese authorities and the man was subsequently sentenced to 5 years' imprisonment in China. On his release from prison, he returned to his native village in China and lived there with his wife and children for over 10 years. He came back to Hong Kong in July or August 1984 illegally. A Removal Order was made against him. The Court of Appeal was referred to the judgment of Shah and the court proceeded on the basis that the Immigration Tribunal was satisfied that the man was ordinary resident in Hong Kong at the time of his departure in 1968. Huggins V-P held at page 359 that:-

"We must, therefore, assume it to have been in relation to the period of imprisonment that the Tribunal was not satisfied, and it was upon that narrow point that the case was argued below. The issue then becomes one of intention: if the intention of the immigrant was to return to Hong Kong as soon as the force majeure was removed, he could contend that his ordinary residence in Hong Kong had not been interrupted. It had, however to be a settle intention to return and not merely a hope of returning. Until the expiration of the first four years and 3 months of his incarceration he would, of course, have had no right to return to Hong Kong, for he could not on any view, have been a 'Chinese resident'. What was his intention thereafter? It seems to me there was very clear evidence that he did not intend to return, because he did not, within a reasonable time after his release, make any attempt to return. He went back to his native village and stayed there for 10 years. At least there was evidence which would support a finding that the immigrant was not ordinary resident in Hong Kong during the 5 years he spent in prison in China ..."

52. In Director of Immigration v. Ng Shun Loi [1987] HKLR 798, a man first came to Hong Kong from China in 1962 and remained for one year. He was issued with an identity card. In 1963, for the purpose of visiting his wife and his child in China, he obtained a one month permit permitting him to depart Hong Kong and return in one month. Upon returning to China his identity card and re-entry permit were taken by the authorities and he was confined in a commune for many years. The evidence regarding his period of confinement was not clear. He stated that he was confined for 10 years, this would take him through to 1973 whereas he said he was released from the rural area in 1978 when he was declared innocent. In 1979, he made his first attempt to return to Hong Kong and in June 1986, he managed to come to Hong Kong illegally. It was contended that he was ordinarily resident in Hong Kong for a continuous period of not less than 7 years which gave him the right to land in Hong Kong. The Immigration Tribunal found that the Appellant had continued residence in Hong Kong since obtaining his identity card in October 1962. The Court of Appeal overturned the decision of the Immigration Tribunal. The late Hunter J.A. held that:-

"What the evidence shows, in my judgment, is that this man was simply resident, query 'ordinarily resident', in Mainland China if you look at his way of life during any part of this period. That is the only conclusion which can be reached upon the evidence which was advanced before the Tribunal."

On the facts of the case, it would be surprising if the Court would come to any other conclusion. There you have a 25 year old man, who had no connection with Hong Kong whatsoever, coming to Hong Kong illegally in March 1962 and left Hong Kong the following year. Although he had obtained an identity card, there was not finding that he was an ordinary resident during that one year period. He left his wife in China and his child, who was born after he came to Hong Kong, remained in China. When he left Hong Kong in March 1963, there was no evidence that he left anything behind which he could have called a home. After his confinement in a commune for 10 years, he remained in China until June 1986 when he came to Hong Kong again. By then he was in China for 23 years. It was with this sort of background that Hunter J.A. at page 800 had this to say:-

"The question for this Court is how far intention is relevant, because the whole of the finding of the Immigration Tribunal before us was based upon the proposition that because this respondent wished to return to Hong Kong during the whole of his 23 years in China, he could still be regarded as being ordinarily resident in Hong Kong for the whole of that period. I am bound to say that one only has to state their proposition in those terms to see that it is a somewhat striking and far-reaching. The proposition amounts to this: if I want to be in A, I am in A notwithstanding that I am in fact in B."

Compare that with the facts of this case: Mr Lau was born in Hong Kong, his parents were resident in Hong Kong. He has the right of abode in Hong Kong for the next 29 years he lived in Hong Kong. He received the whole of his education here and after school he took up employment here. When he left for China in December 1981, it was for a short duration. Although he rented a room from 1976 onwards, he returned to his parents' home at weekends and kept most of his personal belongings there. He was still in the employ of the computer company in December 1981. This employment only came to an end in January 1982. After his period of confinement in China, he immediately returned to Hong Kong where he resided for the next 2 years and 7 months before the date of the nomination.

53. Much has been said about the issue of intention. Although Mr Lau, in his evidence, stated that he intended to return to Hong Kong after his imprisonment in China, and that he carried out that intention by returning to Hong Kong in 1991, one must follow faithfully what Lord Scarman said regarding the limited relevance of intention in determining ordinarily residence.

54. In Ng Shun Loi, Cons V-P dealt with the argument which was predicated upon the suggestion that "ordinarily resident" is a legal status which having once been acquired, remains with its possessor until he or she abandons it and that in the circumstances it would be a matter exclusively of his or her intention. The learned Vice-President held that :

"With every respect, the speech of Lord Scarman in R. v. Barnet London Borough Council, ex parte Shah is emphatic that this is not the case. Intention plays a very minor part in the determination of ordinary residence, being limited to such light as it may shed upon the question of voluntary adoption or settled purpose. Ultimately it is no more than a question of fact. Absence enforced or otherwise would not necessarily disrupt a period of ordinary residence. The tribunal will have to consider the particular circumstances of each individual case."

One must bear in mind that one must not elevate the nature of ordinarily residence into a legal status. Ultimately it is no more than a question of fact. In the circumstances of this case, I am of the view that the absence which was enforced did not disrupt the period of ordinarily residence of Mr Lau.

Bill of Rights

55. The other challenge to s.18(2) of the Electoral Provisions Ordinance is that the ten preceding year ordinary residence requirement is inconsistent with Article 21 of the Hong Kong Bill of Rights Ordinance in that it is an unreasonable and disproportionate restriction of the right to elect and to be elected and has, to the extent of such inconsistency, been repealed by s.3(2) of the Hong Kong Bill of Rights Ordinance.

56. I have indicated at the time of the giving of my decision that having decided that Mr Lau was an ordinary resident, it was not necessary for me to reach a concluded view on the question regarding the Bill of Rights. However, as the matter was fully argued, I shall now deal with this issue.

57. The relevant sections of the Electoral Provisions Ordinance is s.8 and s.18.

"Voting

8(1) Subject to subsection (2), no person shall be entitled to be registered as an elector in any register unless he has ordinarily resided in Hong Kong for the seven years immediately preceding the day of his application for inclusion in the register.

(2) The requirement in subsection (1) relating to ordinary residence in Hong Kong for seven years shall not apply to any person who is a Hong Kong permanent resident within the meaning of the Immigration Ordinance (Cap.115).

Candidate

18(1)Subject to subsection (2), any person, unless disqualified by virtue of this Ordinance, the Boundary and Election Commission Ordinance (Cap.432) or any other enactment, shall be qualified for nomination as a candidate if he is entitled to be and is registered as an elector.

(2) No elector shall be qualified for nomination as a candidate or for election unless he has ordinarily resided in Hong Kong for ten years immediately preceding the day of his nomination."

58. Article 21 of the Hong Kong Bill of Rights Ordinance provides that :-

"Every permanent resident shall have the right and the opportunity, without any of the distinctions mentioned in article 1(1) and without unreasonable restrictions -

(b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the view of the electors;"

A Hong Kong permanent resident is defined in the Immigration Ordinance as :

1. 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 7 years.

2. Any person who is a British Dependent Territories citizen and who -

(a) belongs to a class or description of persons specified in Article 2 of the Hong Kong (British Nationality) Order 1986 (L.N.233 of 1986) as having a connection with Hong Kong; or

(b) is such a citizen by virtue of his having a connection with any of the British Dependent Territories (other than Hong Kong) mentioned in Schedule 6 to the British Nationality Act 1981 (1981 c.61 U.K.) and has at any time been married to a person specified in subparagraph (a).

3. Any person who is a Commonwealth citizen and who immediately before 1 January 1983 had the right to land in Hong Kong by virtue of section 8(1)(a) as then in force.

The Bill of Rights regime

59. The Bill of Rights regime in Hong Kong comprises of:-

(a) The Hong Kong Bill of Rights Ordinance ("Bill of Rights")(Cap.383);

(b) The International Covenant on Civil and Political Rights ("ICCPR") as apply to Hong Kong; and

(c) Article VII(5) of the Letters Patent. This, until 1997, restricts the legislature by preventing new legislation which is contrary to the covenant as applied to Hong Kong.

60. The United Kingdom signed the ICCPR in 1966, ratified and extended it to Hong Kong in 1976 when the ICCPR came into effect. This international treaty obligation has since bound and continued to bind the United Kingdom in respect of Hong Kong.

Purposive approach

61. The purpose of the Bill of Rights is : "to provide for the incorporation into the Laws of Hong Kong of provisions of the ICCPR as applied to Hong Kong", (see Bill of Rights long title and s.2(3)).

62. The Bill of Rights came into force on 8th June 1991. It binds the government and all public authorities, and any person acting on behalf of the government or a public authority. Part II of the Bill of Rights reproduces almost verbatim the corresponding provisions on substantive rights of the ICCPR.

63. Any statutory provisions which were enacted before 8th June 1991, the date upon which the Bill of Rights came into force, shall, insofar as the language of the statutory provisions permits, be construed in a manner consistent with the Bill of Rights, and insofar as the language of the statutory provisions does not admit such a construction, be repealed to the extent of inconsistency. (Bill of Rights, s.3(1) and (2))

64. Section 18(2) of the Electoral Provisions Ordinance was enacted before 8th June 1991.

65. In R. v. Sin Yau Ming [1992]1 HKCLR 127, the Hong Kong Court of Appeal held that in construing the Bill of Rights, the court should adopt the purposive approach. This approach is approved of by the Privy Council in R. v. Lee Kwong-kut [1993]3 HKPLR 76 (see the speech of Lord Woolf at pp.965-966 of the judgment). Lord Woolf, whilst recognising the value of decisions in other common law jurisdictions, including the U.S.A., Canada and of the European Court of Human Rights, stated that :

"However it must not be forgotten that those 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."

66. Where it is shown that a fundamental right has been infringed, the onus is on the government to show on a balance of probabilities, that the infringement is justifiable, the evidence must be cogent and persuasive. While the interest of the individual must be balanced against the interest of society generally, in the light of the contents of the ICCPR and its aims and objects, there is a bias towards the interest of the individual in the balancing exercise (see Sin Yau Ming at p.145).

67. The parties in this case agreed that the approach to be adopted in determining whether the restrictions on the right guaranteed by the Bill of Rights is reasonable or not is as follows :

(a) What objectives the restrictions are to be achieved (legitimate objectives);

(b) Whether there is a rational connection between the objectives to be achieved and the means or restrictions employed (rationality test); and

(c) Whether the restrictions are proportionate responses to the achievement of the legitimate objectives (proportionality test), see : M. Nowak, UN Covenant on Civil and Political Rights : CPPR Commentary (Kehl : Engel, 1993), p.455, paragraphs 40-41; and Pietraroia v. Uruguay, Human Rights Committee, Communication No.44/1979, Selected Decisions under the Optional Protocol, Vol.1, page 76 at 79, paragraph 16).

The Cases

68. Mr Kat, referred me to a number of decisions from the European Court of Human Rights, the Canadian Courts on the Canadian Charter of Rights and the U.S. Courts on their constitution.

European Court of Human Rights

69. Article 3 of Protocol No 1 of the European Convention of Human Rights provides: "The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."

70. In Mathieu-Mohin and Clerfayt v. Belgium (1987) 10 EHRR 1, at 36, para 52, it was held that :

" In their internal legal orders the Contracting States make the right to vote and to stand for election subject to conditions which are not in principle precluded under Article 3. They have a wide margin of appreciation in this sphere, but it is for the Court to determine in the last resort whether the requirements of Protocol No 1 have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim and that the means employed are not disproportionate."

Canadian Charter of Rights

71. The reasonableness of a residence requirement has also been considered by the Canadian courts under s.3 of the Canadian Charter of Rights, which reads: "Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein."

72. Section 2 of the Charter provides that the rights in the Charter are "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

73. In Sauvé v. Attorney General of Canada (1992) 89 DLR (4th) 644 the court held that affirming the sanctity of the franchise and preserving the integrity of the voting process was insufficient to justify depriving prison inmates of their right to vote. "While not a criminal case, this case is nevertheless one in which the power of the state is pitted against the individual and in which the state is very much the single antagonist, even though the state's position represents a multitude of interests. If anything, I would have thought that strict compliance with Oakes would be required to save s.51(2) and that the most pressing and substantial state objectives would need to be identified in justification of a limitation of the right to vote." (per Arbour J.A. at page 649)

74. The reasonableness of a residence requirement has also been considered by various Canadian provincial courts. The Saskatchewan Court of Appeal held that whether a residency requirement constituted a reasonable restriction to the right to elect depended on which legitimate objectives the residence requirement was to achieve. "Genuine link with the constituency" and "familiarity with political issues" were identified as the objectives. The court found that 6 months' advance residence requirement was reasonable for these two objectives :Storey v. Zazelenchuk (1984) 36 Sask R 103, at 132-133.

75. In Reference re Yukon Election Residency Requirements (1986) 27 DLR (4th) 146, the Court of Appeal of the Yukon Territory held that the purposes of imposing a residence requirement were threefold:

(a) to assure the integrity of the electoral process;

(b) to assure that the voters are properly informed of the issues in any election; and

(c) to assure that voters have a sufficient connection with the territory.(pages 148-149)

76. While the Court found that on these 3 grounds there was a rational basis for the residence requirement, it was also held that the requirement would only be a reasonable restriction on the right to election in the qualifying residential period was of a short duration (at 148). In that case a 12 months' residence requirement was found to be within reasonable limits.

United States Constitution

77. In Dunn v. Blumstein 31 L Ed 2d 274 (1972) at 284, the US Supreme Court also held that any restriction on the right to vote must be justified by compelling and substantial state interests.

78. The court found that a one-year residence requirement could not be justified by any compelling state interest; that broadly imposed political disabilities such as durational residence requirement were not needed to deal with the evils of fraud (at 291); and that a durational residence requirement was a crude device to achieve the articulated state goal of assuring the knowledgeable exercise of the franchise (at 291-293).

"In sum, durational residence laws must be measured by a strict equal protection test: they are unconstitutional unless the State can demonstrate that such laws are 'necessary to promote a compelling governmental interest' ... Thus phrased, the constitutional question may sound like a mathematical formula. But legal 'tests' do not have the precision of mathematical formulas. The key words emphasize a matter of degree: that a heavy burden of justification is on the State, and that the statute will be closely scrutinized in light of its asserted purposes." (pages 286-294)

The court found that 30 days would be an ample period of time for the state to complete whatever administrative tasks that were necessary to prevent fraud, and one year, or three months, was too much. (at 288)

Is the Restriction Rational?

Mr Marshall's Arguments

79. Mr Marshall's submission is that the residential requirement under s.18(2) is reasonable. He submitted that first of all there is no dispute as to the validity of residence qualifications per se in respect of the ICCPR. They were discussed during the drafting of Article 25B as written by Karl Josef Partsch in "Freedom of Conscience and Expression, Political Freedoms" published in a work entitled "The International Bill of Rights" edited by Louis Henkin at p.243 :

"Exclusion from the right to vote and to be elected was discussed at the drafting of Article 25(b). During these discussions, it was recognised that certain restrictions are reasonable and not controversial, for example, minimum age requirements, the exclusion of lunatics, mentally diseased or disabled persons, and minimum residency requirements. Such restrictions appear in numerous reports of state parties."

At p.239 the authors stated that :

"After the umbrella clause, three single rights follow :The right to take part in the conduct of public affairs, the right to vote, and the right of access to public service. These rights differ from all other rights enshrined in the Covenant : other rights are ensured to 'everyone' or to 'every human beings'; Article 25 guarantees these rights only to citizens. Of course, a State may do more than it is obliged to do under the Covenant and may admit aliens to one or more of these rights."

80. Nowak at paragraph 41 of his work stated that :

"In other words, whether specific restrictions on various political rights are reasonable may only be evaluated on a case by case basis by drawing on the principle of proportionality and taking into account the overall political situation of the State concerned."

81. Mr Marshall argued that cases on residence restrictions on citizens of Canada and the U.S. is not an analogous situation. In Hong Kong there is no restrictions on voting or standing on the basis of residential requirements in respect of any particular area of Hong Kong. In the United States, the franchise is not extended to aliens. It takes five years residence before one can apply for citizenship. If one becomes a citizen, he has a further seven years before being qualified for election to the House of Representatives (Article 1, s.2) and nine years for the Senate (Article 1, s.3). To be a candidate for President, it is not enough to be a citizen, you have to be born there and have lived there 14 years (Article 2, s.4). The minimum that it would take an alien to become a representative will be 12 years and 14 years for the Senate. It was submitted that this length of citizenship requirements are closely analogous to ordinary residence. In contrast, in Hong Kong, the ordinary residence restriction of seven years residence immediately preceding registration for any alien to be allowed to vote is reasonable. Such alien does not have to be naturalised. Likewise, without any requirement of naturalisation, after 10 years of residence preceding an election, an alien in Hong Kong can be elected to the legislature.

82. In "Parliaments of the Word" 1986, Vol.1, pp.65 and 66, the restriction to nationals, age restrictions, are set out and represent considerable restrictions in many countries in respect of candidacy for the legislature. At p.66 it was stated that "where naturalisation is not an absolute bar, a relatively long period of citizenship has to be established .... The qualification of nationality is frequently supplemented by a condition of residence ...".

83. Compared with the countries quoted, Hong Kong with its 10 years ordinary residence immediately preceding an election requirement, without age (other than voting age of 21), or any citizenship requirement is favourable to the rights of the large percentage who were not born in Hong Kong.

84. The fact that local conditions are paramount considerations is stressed in the European Court jurisprudence by reference to a "high margin of appreciation". This concept is employed when an international adjudicative body is assessing a complaint against a State or Territory. It does not directly apply in an intra-state determination on rights but the reality is that if an exercise of comparing international practice is undertaken, local conditions, such as the stage of democratic development, the composition and fluctuation of the residents population and other such factors may justify restrictions that would not justify them elsewhere. The domestic judge or assessor may legitimately consider what margin of appreciation would be afforded by outsiders in respect of local conditions. The case ofMathieu-Mohin illustrates this point. The applicants' complaint that the law regulating membership of the Flemish Council in Belgium violated Protocol No.1, Article 3 by which States undertakes to allow elections ensuring "the free expressions of the opinion of the people in the choice of the legislature". They complained essentially that the law precluded them from being members of the Flemish Council because of the oath they took in French. The European Human Rights Commission found in their favour. The European Court of Human Rights took a different view. It was held that in respect of the right to vote and the right to stand for election "The State had a wide margin of appreciation" (paragraph 52).

85. In order to appreciate the importance of local conditions, Mr Marshall argued that one should start with the history of Hong Kong since 1980 and the demographic and economic circumstances of its residents and the valued judgments of the residents and government in respect of those problems. 1980 was the starting point because although there was partial franchise for the Urban Council before then, 1980 marks the commencement of proposals for a territory-wide substantially (but not wholly) electoral system of District Boards.

86. A key factor in local conditions in the period 1979-1994 is the proportion of non-citizens or non-nationals (i.e. aliens who make up the population of Hong Kong). In the 1991 census, 59.6% of the population were British with right of abode in Hong Kong only. Of all the rest, only about 60,000 were born in Hong Kong, of whom the largest group in this sub-group born in Hong Kong were British with right of abode in places outside Hong Kong (about 40,000). This leaves a very large number not born in Hong Kong, namely 2,222,678 out of a total population of 5,522,281. 34.4% of the population are Chinese permanent residents not born in Hong Kong. The 1981 figures are not significantly different. So far as is known, modern Hong Kong, as compared with other separate territories or nation states, is unique in this respect.

87. A second key factor is the mobility and shifting nature of the Hong Kong population. The emigration figure is high and the numbers shifting their ordinary residence out of Hong Kong for work or study prior to deciding to emigrate is high. The official estimates of emigration is about 21,000 per year from 1980 through 1986. In the period since 1987, it has averaged about 55,000 reaching a peak of 66,000 in 1992 before falling to 53,000 in 1993. This is balanced by the influx of legal immigrants (to say nothing of illegals) of 35,000 per year since 1980 and now at 125 per day. These are huge numbers for a territory of 1078 sq.km.

88. Mr Marshall further argued that the community had approved of the law proposing residential requirements on voting and standing in elections. In 1980, the District Board election process was discussed in the Green Paper entitled "A Pattern of District Administration in Hong Kong" dated June 1980. Paragraph 13 reads :-

"While in any case it is the government's intention to develop the District Advisory Boards, it is proposed that this would be assisted by the introduction of an elected element and for this purpose suffrage be extended to all residents of the New Territories over the age of 21 with at least three years residence in Hong Kong."

89. The implicit assumption in this proposal put forward for public discussion is that for candidacy, the qualifying period would be at least that of voters.

90. The object of the Green Paper was to provide a basis for public discussion and this was followed by the White Paper "District Administration in Hong Kong" of January 1981. The White Paper referred to the public consultations and written submissions the government had received on the matter. In respect of the proposed Hong Kong residence requirement of three years in the Green Paper, the majority of comments received suggested three years was too short. Qualifying periods of five, seven or even ten years' residence had been proposed. The main argument against the three year period was that a person who had lived in Hong Kong for that period of time only was unlikely to have sufficient knowledge of local conditions and candidates. Another argument against the three year period was that it was at variance with matters which the government had adopted for other purposes, e.g. the Immigration Ordinance, the residence period qualifying certain categories of people for the right to land in Hong Kong was seven years, also the eligibility criteria applied by the Housing Authority for public housing was seven years residence in Hong Kong (Paragraph 30). The White Paper proposed that a person who has been ordinarily residing in Hong Kong for seven or more years before the closing date for registration should be eligible to become a registered voter. In addition, the following categories of people should also be enfranchised notwithstanding that they have not attained the seven years residence requirement. They are :

(1) People who have obtained the status of Hong Kong belonger as defined in the Immigration Ordinance.

(2) People who are registered voters for the Urban Council Ordinary Election in 1981.

91. The White Paper at paragraph 33 referred to the suggestion that foreign nationals living in Hong Kong should be excluded as voters, so that only persons who were British subjects or Hong Kong citizens by birth would be able to register and vote. In paragraph 34, it was stated that :

"Government considers that foreign nationals who meet the age and residence requirements should not be excluded from registering and voting. First, this would be a retrograde step in that the existing Urban Council franchise does not exclude them. Secondly, and in government's view this is a more important consideration, Hong Kong is a very open society and foreign nationals have made and will no doubt continue to make an important contribution to the well-being and development of the community."

Paragraph 35 stated that :

"Accordingly, it is proposed to make provisions for persons to be enfranchised who have been ordinarily resident in Hong Kong for more than seven years irrespective of their nationality."

92. These considerations and decisions lying behind the provisions of the Election Provision Ordinance do not refer to the ICCPR which was not part of the domestic law of Hong Kong. However, Mr Marshall argued that the government would in considering legislation always consider treaty obligations and when possible take them into account. It was refuted that the government was imposing unreasonable restrictions on the right to vote or to candidacy. It was submitted that these considerations clearly had the recently returning citizen or permanent resident in mind. Returning citizens are expressed as exceptions to the seven year period in respect of the right to vote because although they do not have sufficient knowledge of local conditions and candidates, they have an earlier and strong legal and political connection with the community. Also as voters, they are a small number as compared to those continuously here. Therefore they, as voters, do not have sufficient influence on the poll. And in addition voting is seen as connected with being a citizen.

93. As candidates, not only do they lack the residential qualification for voters or sufficient knowledge of local conditions, but also, they inevitably, cannot satisfy, that extra knowledge of local conditions that the community wish to see and the administration accepted as a reasonable preliminary condition before they would be sufficiently well qualified for the important and responsible post they would occupy if elected.

94. A fortiori this residence restrictions for voters or candidates are wholly reasonable for non-citizens be they called aliens or foreigners. Where there are substantial number of this, it is reasonable to allow them civic rights but it is only reasonable to do so for those who have been in Hong Kong long enough, if voters, to have knowledge of local conditions and candidates, or if candidates, long enough to have sufficient local knowledge to be qualified to carry out the important office if they have been elected.

95. These residential qualifications, namely seven years for voters and ten years for candidates were subsequently adopted for Legislative Council elections including functional constituency and for municipal elections.

96. By the Immigration (Amendment) Ordinance No.2, (Ordinance No.31 of 1987), the exception for citizens from seven years residence preceding registration was widened to include, in effect, all those immigrants from the People's Republic of China who had been lawfully in Hong Kong for seven years. This had no impact on new residents immigrating from China but it did mean that returning "Chinese residents" - to use the old term for those who have resided for seven years - returning to Hong Kong after residence overseas would be immediately entitled to register and vote.

97. Article 21 of the Bill of Rights gave the rights to permanent residents instead of citizens as it is in Article 25 of ICCPR. It was extended to cover Chinese residents who remain non-nationals or aliens, as well as citizens who are those entitled to BDTC or BNO passport. This class of permanent resident, if they were recent returners from overseas, had already been exempted from the seven year residence requirement before voting. As regards qualifying to be a candidate, this class were, as before, no better or worse off than the citizens. Recent returners in either category would not qualify as candidates.

98. Since the passage of the Electoral Provisions Ordinance, there had been frequent periodic reviews of all electoral provisions. In the 1987 Green Paper, the residential requirements are specifically commented upon :

"Other electoral arrangements

Paragraph 149 - in a separate exercise, the administration announced in May 1986 that it would review electoral arrangements generally, and invited the public to comment on such arrangements in writing. Fourteen submissions were received on various subjects.

Paragraph 150 - The review identified a number of possible improvements to existing arrangements .... no significant changes were considered necessary in other aspects such as residential qualifications for candidates and electors for all types of elections, the number of nominators required for candidates, polling hours and the form of ballot papers."

99. Mr Marshall submitted that the purpose of the Green Paper is to introduce matters for further consideration. What is to be taken from the White Paper and the fact that it did not touch on these matters is that the community's views were in favour of the status quo on this issue. While the specific focus of what is written in the other reviews does not touch upon registration requirements, it does not mean that they were not considered. It probably means that they were considered, found to be satisfactory and uncontroversial and not matters which should be the subject of change. Silence probably means approval of the status quo.

100. In 1992, the Select Committee of the Legislative Council accepted the present rules regarding the qualification for voters and candidacy.

101. Although the 1981 White Paper did not expressly mention the "immediately preceding" aspect of the proposal, it is neither a draft nor proposed legislation nor drafting instructions. But paragraph 31 dealing with voting, uses the phrase "ordinarily resident for seven or more years before the closing day for registration". There is also clear reference to more onerous requirements when it comes to candidacy.

Mr Kat's submission

102. Mr Kat submitted that the ten year immediate prior residence requirement had no rational connection with the legitimate objective sought to be achieved. The objective as identified are (1) to ensure the integrity of the electoral process, (2) to ensure that the candidates are familiar with their constituencies and properly informed of the election issues and (3) to ensure a sufficient connection with the territories. Each of these can be achieved by a much shorter period of residence. The suitability of a candidate is, in the final analysis, a matter for the electors to decide when they cast their votes.

103. In Canada, the residency period ranges from six months to a year : Storey v. Zalzelenchuk; Canadian Encyclopedic Digest 1989, p.54.

104. In Australia, the residency period is three months preceding polling day : Australian Commentary on Halsbury, paragraph C422, C471.

105. In New Zealand, the residency period for a voter is residence at some period in New Zealand for a continuous period of not less than 12 months : Re Wairarapa Election Petition [1988]2 NZLR 74 at 80, 87.

106. By comparison, the ten years requirement in Hong Kong is clearly unreasonably lengthy. It is 10 to 20 times that of Canada, Australia, New Zealand and the United Kingdom. If the objectives to be achieved by an advance residency requirement in those larger, more sparsely populated and diverse jurisdictions can be achieved within 12 months, what is the rational reason to justify a substantially longer period of residence in Hong Kong?

107. Although Hong Kong may be a special situation, it does not justify the longer restrictions.

108. It may be reasonable to enact a requirement that a potential candidate has to be ordinarily resident in Hong Kong at the time of his election, or for a short duration before the date of his nomination. However the requirement of ordinary residence of a continuous period of ten years immediately preceding the day of his nomination cannot be justified.

109. Article 21 of the Bill of Rights protects the right to elect and to be elected of every permanent resident. Article 21 is modelled directly upon Article 25 of the ICCPR, it has not enlarged the scope of the ICCPR as applied to Hong Kong. Article 25 of the ICCPR refers to citizen. The term should be construed broadly and liberally. In the Hong Kong context, this refers to Hong Kong permanent residents and cannot be confined to meaning to British Dependent Territory Citizens. Hong Kong is not a State and cannot have its own nationality or citizenship law. Hong Kong permanent resident is the equivalent concept to citizenship in Hong Kong.

110. Under the Immigration Ordinance, a Hong Kong permanent resident includes, inter alia, (1) a person who is wholly or partly of a Chinese race and has at any time been ordinarily resident in Hong Kong for a continuous period of not less than seven years, or (2) any person who is a British Dependent Territory Citizen by reason of a connection with Hong Kong.

111. Although 43.4% of the Hong Kong permanent residents are technically aliens by nationality, they cannot be so regarded under Article 25 of the ICCPR. They are Hong Kong permanent residents, they enjoy a right of abode in Hong Kong, they acquire the status of Hong Kong permanent resident by way of seven years continuous residence in Hong Kong. They enjoy the same rights as any BDTC in Hong Kong. Therefore, Article 21 of the Bill of Rights by replacing "citizen" with "permanent resident" only gives effect to Article 25 of the ICCPR as applied to Hong Kong.

112. The right to be elected is guaranteed by Article 21 to all Hong Kong permanent residents. Most Hong Kong permanent residents who are guaranteed a right to elect and to be elected under Article 21 would also have been residing in Hong Kong for a continuous period of not less than seven years. The reasonableness of any additional residence requirement before a Hong Kong permanent resident can exercise his constitutional right to elect and to be elected has to be considered in such light.

The 1980 Green Paper/1981 White Paper

113. The reason put forward to justify the ten years prior residence period is that this was government's decision said to be based upon the weight of opinion given to the government during the public consultations documented in the 1980 Green Paper and the 1981 White Paper. Those consultations were made 14 years ago when Hong Kong's social and political circumstances were substantially different. Further, even if such consultations are to be given any weight, a careful reading of the Green and White Paper showed that they did not indicate support for a requirement of continuous ordinary residence for ten years immediately preceding the day of nomination as now enacted in s.18(2).

114. Paragraph 13 of the 1980 Green Paper simply refers to three year residence. In respect of the 1981 White Paper, paragraphs 43 and 48 deal with ordinary residence for ten years or more as qualification for being a candidate. No justification has been put forward to justify the more restrictive formula adopted in s.18(2). Further, paragraph 31 of the 1981 White Paper simply proposes that a person who has been ordinary resident in Hong Kong for seven years or more before the closing day for registration should be eligible to become a registered voter.

115. Mr Kat submitted by the time the Bill of Rights had been enacted, the political and social circumstances in Hong Kong have changed dramatically since 1981 and even more by 1994. This can be seen from the sequence of events set out below. Further, members of the public who responded in 1980 had not even had the benefit of campaigns and votings in a general election for the legislature.

1982 - District Board Elections introduced. District Boards being advisory bodies on local affairs only, composed of both appointed and elected members.

Late 1982 - Sino-British negotiation on the future administration of Hong Kong.

1984-85 - The Joint Declaration initialled in September 1984 and came into effect in May 1985.

1985 - Functional Constituency Elections to the Legislative Council introduced members of District Boards grouped into ten geographical constituencies returning ten members to the Legislative Council.

1988 - District Boards' advisory role enhanced by requiring all government departments to consult the Boards about all district matters, significant departures from the Boards' advice have to be justified. (Paragraph 48, 1988 White Paper)

1988 - District Board Members still forming ten geographical constituencies returning ten members to the Legislative Council.

April 1990 - Basic Law promulgated.

June 1991 - Bill of Rights Ordinance came into force.

September 1991-First direct elections to the Legislative Council introduced, replacing the electoral college formed by the District Board members.

1994 - Appointed membership of District Boards abolished, only directly elected members.

The 1987 Green Paper/1988 White Paper

116. In the 1987 Green Paper, no reasons or explanations were given as to why no significant changes were considered necessary in respect of residential qualifications for candidates and electors for all types of elections. Nor was there any mention of the residence requirement in the 1988 White Paper. Since the coming into force of the Bill of Rights in July 1991, the constitutionality of all pre-existing legislation must be examined critically by the courts on present day standards, in the light of the aims and objects of the ICCPR.

The 1992 Legislative Council Select Committee

117. Mr Kat submitted that the 1992 LegCo Select Committee Report was laconic in the extreme. It disclosed no examination or consideration of disqualification, recited no views received on the subject and made no recommendations.

118. The only public consultation in evidence on this point is that of 1980 when the social and political situation was materially different both to 1991 and today.

119. While familiarity with local circumstances may be a legitimate objective, there is persuasive authority that it does not support a period as lengthy as ten years and still less that the ten years must be ten years immediately preceding the day of the nomination. Implicit in the latter requirement of s.18(2) is an irrefutable presumption that irrespective of how long a person has lived in Hong Kong in the past, if he resides in Hong Kong for less than ten years immediately preceding the day of his nomination, he would not have the extra knowledge of local conditions that would qualify them for the important and responsible post that were occupied if elected. The proposition is so absurd that it needs only to be stated to be rejected.

120. Adopting knowledge of local affairs as the sole or primary criteria for the exercise of the right to vote and to stand for election is at best a dubious, if not dangerous, concept which cannot satisfy either the rationality or the proportionality test. The courts of other jurisdictions considering similar provisions have held that only a short duration is necessary for this criteria in conjunction with others to be fulfilled : Storey, re Yukon and Sauve.

Is the Restriction proportional?

Mr Marshall's Argument

121. Mr Marshall submitted that the primary source of the proportionate requirement is Mathieu-Mohin where the wording of the Protocol is not "without unreasonable restrictions" but :

"Conditions which will ensure the free expression of the opinion of the people in the choice of the legislature."

122. The respondent had equated the test set out in Mathieu-Mohin with the concept of "reasonable restrictions". However, given the different wording of the Protocol as against ICCPR, a different test of "whether restrictions are reasonable" may be appropriate. Nowak at paragraph 41 says that "reasonable force to be evaluated on a case by case basis by drawing on the principle of proportionality and taking into account the overall political situation of the State concerned.".

123. On the basis that restrictions have to be imposed : "in pursue of a legitimate aim, and the means employed are not disproportionate", Mr Marshall submitted that the aim is clear and very legitimate. To meet the community view that only citizens should participate would have deprived about 40% of the population of the right to vote or stand. To meet the community view that a three year residence requirement for voting was substantially insufficient and that longer residence was required for candidates would deprive returning residents who would only amount to a small proportion of the resident population. The emigration figures in 1981 to 1991 are about 336,000, of whom only a proportion would return - perhaps 25% or 84,000 - which is about 1.6% of the resident population. This, of course, will retain the right to vote.

124. It was a legitimate aim to avoid reducing the franchise by 40%. If this was done by the residence requirement as enacted, it followed the strongly expressed community view in favour of recent knowledge of Hong Kong. To follow that was also a legitimate aim.

125. It was also a legitimate aim to in part follow the widely expressed community view that "non-citizens" should not be enfranchised or allowed to stand as candidate by, instead, requiring the non-citizen newcomer to serve time as ordinary residents before being enfranchised and allowed to stand.

126. It was also a legitimate aim to follow the community view that the residence period for candidates should be longer than that for voters.

127. The alternative of leaving 40% out of these rights would have been disproportionate. Having shorter periods than seven and ten years could not have satisfied the aim of meeting strongly expressed community views. If the periods were substantially longer than seven and ten years, say ten years and twelve years, there will have been a danger of disproportionality again emerging.

128. In the result, the only available restrictions that would substantially meet the legitimate aims were the restrictions in fact imposed. Given the alternatives, they were also the only proportionate means of meeting these legitimate aims. In view of the unique problems of Hong Kong and its stage of development, they were reasonable restrictions and the means used to meet legitimate aims were wholly proportionate.

129. The extent of the population that are consequentially affected by these restrictions, other than new immigrants to Hong Kong, which is the intended effect of achieving the legitimate aims is only the returning residents wishing to stand as candidates who are a very small percentage of the resident population. They in turn are within the range of the legitimate aim of requiring recent local knowledge for candidates at a higher level than for voters.

130. In the 1994 District Board Elections there were 767 nominations and 10 were rejected for various reasons. Only six were rejected for failing to satisfy the ordinary residence qualification.

131. The residential requirement is uniform in each of the three tiers of election, namely the District Board, the Municipal Councils, and the Legislative Council. The matter was historical : District Boards that came first and then the decisions were made to make it uniform in the two higher tiers. Further, there are constitutional links between the three tiers of representative institutions. Under s.7A of the Urban Council Ordinance, each District Board in the Urban Council area shall elect one of its members as a representative member on the Urban Council. Similarly, under s.8 of the Regional Council Ordinance, each District Board in the Regional Council area shall elect one of its members to be a representative member of the Regional Council. Under the Legislative Council (Electoral Provisions) Ordinance the Urban Council and the Regional Council are designated as two of the 15 functional constituencies of the Legislative Council. Members of the Urban Council and of the Regional Council are required respectively to elect one of its members to be a member of the Legislative Council. Further, whilst the three tiers have different constitutional roles, it is equally important that their members know Hong Kong well in order to be able to effectively represent their constituents.

Mr Kat's arguments

132. Mr Kat submitted that the residence requirement in s.18(2) fails to satisfy the proportionality test. It is unduly harsh and restrictive. It could exclude a large group of otherwise well qualified candidates. For example, a Hong Kong permanent resident who was born and has spent a substantial years in Hong Kong decided to emigrate to Canada, he left with his family to Canada, but after settling in Canada for two months, he found Canada did not suit him. He returned to Hong Kong, he would lose his right to stand for election despite his 40 years connection with Hong Kong. He could only regain that right by ordinarily residing in Hong Kong for another ten years, even though he has left Hong Kong for only two months.

133. Another example is a migrant to Hong Kong who has spent nine years here and obtained the status of Hong Kong permanent resident would still be unable to exercise his right to be elected, no matter how well integrating to Hong Kong society he may be, or how well familiar he is with the local circumstances, or how genuine and sincere he may be in contributing his expertise to local affairs. Also in respect of the case of Mr Lau, if the Returning Officer is found not to have erred on ordinary residence, the only way Mr Lau can regain his constitutional right to be elected is to be ordinary resident in Hong Kong for another ten years from 1991.

134. Mr Kat submitted that a decade is a long period of time, and it has been said that "a week is a lifetime in politics". The irrational result of this prior ten years ordinary residence requirement far outweighs whatever merits there may be for maintaining a residence requirement in general. It is a disproportionate and unreasonable restrictions on the right to be elected within Article 21 of the Bill of Rights.

135. Further, a period of ten years continuous ordinary residence immediately preceding the day of nomination cannot be justified given the small size, mass communications, high standards of education and the pace and mobility of Hong Kong society. Hong Kong society is extremely mobile, particularly in the last few years. Many of the Hong Kong's 4,000,000 permanent residents travel abroad temporarily for various purposes. In 1993, a total of 82.2 million passengers travelled in and out of Hong Kong, up 6.8% from the 77 million in 1992. Movements to and from China also increased by 9.4% from 48 million in 1992 to 52.5 million in 1993. The present restriction can operate in an arbitrary and unfair fashion, depriving Hong Kong permanent residents of the right to be elected because they exercise their constitutional right to travel.

136. While the right to vote and to stand for election is protected not only for Hong Kong permanent residents, but also for certain categories of person who have lived in Hong Kong for seven years and for aliens who have satisfied the ten years residence requirement, this by itself cannot justify the restriction. Article 21 of the Bill of Rights laid down the minimum rights, namely that every permanent resident has the right to elect and to be elected. This is plainly regardless of any other nationality or citizenship. At the same time, unless and until a person has acquired the status of Hong Kong permanent resident, he or she would not be guaranteed the right to be elected under the Bill of Rights. It may be generous for the government to extend this right to non permanent residents, but this should not be done at the expense of the fundamental rights of the permanent residents. It is no answer to say that because the rights is extended to aliens, therefore the rights of the permanent residents has to be restricted. The logic does not follow. Indeed, the objective of conferring the right to be elected on aliens can easily be achieved without in any way restricting the right of permanent residents to stand for election. Mr Kat submitted that unless the respondent can justify the legitimate nature of the restriction, it was not an answer to say that only six candidates were rejected for failing to satisfy the ordinary residence qualification.

Observation

137. The following are some of the observations one can make in this area.

138. Article 21 of the Bill of Rights gives every permanent resident in Hong Kong to vote and to stand as candidates. It is for the Crown to justify that the ten year prior ordinary residence is reasonable. To do so, the Crown must show that there is an legitimate objective by imposing the restrictions, and that the rationality and proportionality tests must be satisfied.

139. I have no doubt that there is a legitimate government purpose in imposing a residential requirement. As stated in Re Yukon, in the context of voters, the purposes include -

i) assurance of the integrity of the elected process;

ii) assurance that the voters are properly informed of the issues in any election; and

iii) assurance that voters have a sufficient connection with the territory.

These purposes apply equally to the residential qualification for the candidates.

140. I agree that there is also a rational basis for imposing an appropriate period of residential requirement to achieve the legitimate purpose, but it does not appear that there is a rational basis for imposing a 10 year residential requirement. Further the 10 year requirement appears to be disproportionate to achieve the legitimate aim. The residential requirement imposed in other jurisdictions is far shorter. The Canadian residency period ranges from 6 months to a year, the Australian residency period is 3 months preceding polling day and the New Zealand requirement is residence at some period for a continuous period of not less than 12 months.

141. The Crown seeks to justify the 10 year period on the unique local condition of the existence of a large population of non citizens and the decision to enfranchise this large group of non citizens. It is a fact that the majority of the population in Hong Kong is British Dependent Territories Citizens ("BDTCs") with the right of abode in Hong Kong only. They were formerly known as the "Hong Kong belongers". At the same time, there co-exists in Hong Kong another large group of population which was formally known as "Chinese residents" with a continuous residence in Hong Kong of at least seven years. In 1987 this group of residents became the permanent residents of Hong Kong together with the BDTCs. They have the right of abode in Hong Kong, they are free to leave Hong Kong and have a right to return at any time, they enjoy all civil, political, social and economic rights in the same way as any BDTCs in Hong Kong. Article 21 of the Bill of Rights gives the election rights to every permanent resident of Hong Kong. It makes no reference to citizenship. The choice is deliberate. It does not grant the election rights to citizens but rather to permanent residents. The definition of permanent resident has been in our legislation since 1987. The Electoral Provisions Ordinance also makes no reference to citizens. I really cannot see how, at this stage of the history of Hong Kong, arguments that seek to justify restrictions on the election rights of permanent residents on the basis of the distinction between citizens and non-citizens and the enfranchisement of non-citizens, could have any relevance to the issue before the court.

142. Further, although it is laudable for the Government to recognise the contribution and the existence of the non-British population in Hong Kong, who has been continuously resided in Hong Kong for at least seven years, by giving them the right to vote in elections, this does not mean that restrictions should be imposed on the fundamental rights of the permanent residents by means of long residential requirements. There really is no logical link between these two matters. Most Hong Kong permanent residents would have been residing in Hong Kong for a continuous period of not less than seven years. The reasonableness of any additional residence requirement before a Hong Kong permanent resident can exercise his constitutional right to elect and to be elected has to be considered in such light.

143. You have the situation here of a permanent resident, who by virtue of s.8(2) of the Electoral Provisions Ordinance, does not have to fulfill any residential requirement before he could exercise his right to vote, whereas a permanent resident before he could stand as a candidate, has to be, by virtue of s.18(2), ordinarily resident for 10 years immediately preceding the date of his nomination. How could this disparity i.e. the 10 year requirement on a permanent resident candidate and the total absence of any residential requirement for a permanent resident voter be justified if the legitimate objectives of imposing a residential requirement is to ensure that the voters or candidates are properly informed of the issues in an election or that the voters or candidates have a sufficient connection with the territory. It was argued that the rights of a permanent resident candidate are no better or worse off than the citizens who needed to fulfill the 10 year residential requirement before they could stand as candidates. While previously the disparity on the residential requirements regarding voters and candidates could not possibly be the basis of any legitimate complaint, the position must be looked at differently with the introduction of Article 21 of the Bills of Rights. Both the voters and the candidates are important components of the electoral process. How could the right to elect and be elected granted to permanent residents be subject to measures of such vast difference? This must be the clearest indication of the irrational and disproportionate nature of the 10 year restriction. Even taken into account the political situation of Hong Kong (as suggested by Nowak) and the historical context in which the Electoral Provisions Ordinance was enacted, by no means of imagination can it be said that s.18(2) is consistent with Article 21. The simplest way to give effect to the decision of allowing non permanent residents to stand as candidates, is to specify in the legislation the category of people entitled to stand as candidates, namely the permanent residents and the other group who has fulfilled the initial requirement of being an elector, instead of grouping them all under the current s.18(2) which is based on years of residential qualification. If, on top of that, some short duration of residence is required, it can be provided for in the legislation. Section 18(2) as it now stands unjustifiably restricts permanent residents from exercising their election rights.

144. Regarding the unique phenomenon of a large influx of new arrivals in Hong Kong, this really has no bearing on the issue before the court because the new arrivals would not be qualified as permanent residents which is the basis of the guarantee under Article 21.

145. It is said that the current restrictions were adopted as a result of consultation with members of the public and there was a strong public demand for a long residential requirement. However, a scrutiny of the 1981 White Paper showed that this argument is not sound. Paragraph 42 of the 1981 White Paper stated that some part of public opinion suggested that candidates should meet certain higher standards of qualification than those required for a voter. And based on that suggestion, it was considered justified to introduce a longer period of residence for candidates than for the ordinary voters. There is no rational basis for doing so. One just do not see how a higher standard of qualification can be achieved by three extra years of residence on top of the seven year residential requirement for voters. If a man is required to acquire the necessary local knowledge that would enable him to stand as a representative of the constituency, surely by the time he has resided here for seven years he would have sufficient local knowledge to meet this demand. Would the candidate be any better informed or better qualified if he has resided here for three extra years? Hong Kong is, afterall, a very small place and the ease one could receive information, both locally and internationally through the newspapers, radios and televisions is well known. Furthermore, it is clear that the 1981 White Paper did not require seven year immediate prior residence requirement for voters or a ten year immediate prior residence requirement for candidates. How this eventually became part of the legislation has not been adequately explained.

146. One simply has to recognise that there has been great changes in Hong Kong since 1981. There has been greater participation by the population in public affairs in terms of election and standing as candidates in the District Boards, Municipal Councils and Legislative Council elections. It seems lame to justify the current restrictions on consultations made in 1980/81 when great changes has occurred in Hong Kong since that time. When the Electoral Provisions Ordinance was enacted, the rights guaranteed by ICCPR could not possibly be considered by the legislature since it was not part of the domestic law. It was argued that since 1981 there were periodic reviews of the residential qualification for voters and candidates including the recent review by a Select Committee of the Legislative Council in 1992, and that no change was considered to be necessary. With respect, it is for the Crown to show that when the reviews were conducted, the relevant bodies had considered the implication of Article 21 of the Bill of Rights which grants the right to vote and stand as candidates to every permanent resident of Hong Kong and how the 10 year residential requirement can be justified in that light. There is no evidence in that regard.

147. It is said that the residential requirement extends to all three tiers of election and there is a constitutional link between the three tiers of election in that representatives of the District Boards will sit in the Municipal Councils and members of the Municipal Councils would sit in the Legislative Council. One may ask whether a uniform residential restriction is in fact justified in view of the different functions to be performed by the elected representatives in these three levels of representative government. Afterall, District Board members are concerned only with local affairs, such as, for example, how traffic conjestions can be improved or noise pollution can be reduced in one particular district while in the Urban and Regional Councils, the concern is in respect of municipal affairs such as the operation of sports and cultural facilities or the licensing of sale of liquor and in the Legislative Council, members are entrusted with the task of enacting legislation for Hong Kong.

148. It really is not a useful comparison to refer to the period of residential requirements for election to the U.S. House of Representatives or Senate, which are the legislative bodies or for that matter the Presidency. If any useful comparison is to be made, one may ask what are the residential requirements, if any, for election to the state legislatures, local government or city assemblies in the U.S.A. or elsewhere.

149. If the residential restrictions is not rational or proportional, surely it is not an answer to say that in the recent District Board election only six candidates were rejected because they had not fulfilled the residential requirements. The example given by Mr Kat of the returning permanent resident is a valid one. Why should he have to wait for another ten years before he can exercise his right to stand as a candidate. At the end of the day and given some form of residential requirement is necessary, it must be up to the electors to decide whether any particular candidate has the necessary quality to act as their representative in the representative institution. If the right to stand as candidate is guaranteed under the Bill of Rights to all permanent residents of Hong Kong, why should some members of this particular group be deprived of such a right even though they may only represent a small percentage of the general population. If it is intended that a candidate should have some knowledge of the local affairs, then this could easily be achieved by requiring him to be resident in Hong Kong for, say, one year preceding the day of the nomination or, following the New Zealand approach, requiring him to have at some period resided continuously in Hong Kong for not less than one year. One must bear in mind that most of the permanent residents have in fact been ordinarily resident in Hong Kong for seven years. In this connection, it is instructive to refer to the New Zealand legislation dealing with qualifications of electors. The section is set out in Re Wairarapa Election Petition.

"39. Qualification of Electors -

(1) Subject to the provision of this Act, every adult person is qualified to be registered as an elector of an electoral district if -

(a) that person is -

(i) a New Zealand citizen; or

(ii) a permanent resident of New Zealand; and

(b) that person has at some period resided continuously in New Zealand for not less than one year; and

(c) ........."

150. Mr Kat submitted that in the event that Article 18(2) is found to be inconsistent with Article 21, the Court applying a red pencil test should delete the words "for the ten years immediately preceding the day of his nomination" from this section, so that the section will read as follows :

"No elector shall be qualified for nomination as a candidate or for election unless he has ordinarily resided in Hong Kong."

Alternatively, he invited the Court to delete the words "for the ten years", so that the section will read :

"No elector shall be qualified for nomination as a candidate or for election unless he has ordinarily resident in Hong Kong immediately preceding the day of his nomination."

Mr Marshall, on the other hand, submitted that if the red pencil test is to be applied, all that the Court has to do is to delete the word "the" from the section, so that the section will read :

"No elector shall be qualified for nomination as a candidate or for election unless he has ordinarily resident in Hong Kong for ten years immediately preceding the day of his nomination."

151. The red pencil test is certainly a means that the Court can resort to as indicated by Lord Woolf in Attorney General v. Lee Kwong-kut. However, starting from the premises that some form of residential requirement is necessary and this is a matter which was conceded by Mr Kat, to apply the red pencil test to a legislation such as the Electoral Provisions Ordinance is not entirely satisfactory. The position can be contrasted with the existence of statutory provisions in other jurisdictions for referring constitutional questions to the higher courts of the land for determination. In the Yukon case, it was a reference to the Court of Appeal to determine whether it was within the competence of the Yukon legislature to define a residency requirement in respect of voting in a Yukon territory election of (a) one year; (b) six months; (c) a minimum time necessary for administrative purposes. There is no comparable mechanism in Hong Kong.

152. In my view, a strong case has been made out that the 10 year residency requirement is inconsistent with Article 21 of the Bills of Right. It is hoped that the Government would consider a comprehensive review of the residential restriction in our election laws before yet another challenge is lodged in this area.