RE LEE KA MING

1990, M.P. No. 1812 and
1990, M.P. No. 1828

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HEADNOTE

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The term "ordinary residence" in item 1 of the First Schedule to the Immigration Ordinance, Cap.115, is not to be construed so as to exclude from its compass residence in Hong Kong on the part of a child who was born here and who remained here without having himself practised any deception on the immigration authorities let alone having himself committed any offence against our immigration laws.

1990, M.P. No.1812

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. In this case two applications have been heard together. One application is for judicial review of a decision of an Immigration Tribunal made on May 1, 1990, dismissing the appeal of one Lee Ka Ming against a removal order made against him on March 13, 1990, and served on him on March 16, 1990. The other is for habeas corpus to secure his liberty.

2. Lee Ka Ming is a 7 year old boy who was born in Hong Kong and has lived here all his life.

3. His parents came here from China in late 1980. Their cohabitation dates from the end of that year. The two of them lived as man and wife. On April 18, 1983, Ka Ming was born. From then on, the three of them lived as parents and child.

4. On January 18, 1990, that household of three was broken up upon the mother and child being taken into custody with a view to their removal to China.

5. Removal orders were made against both of them by the Director of Immigration on March 13, 1990. They appealed against those orders. Their appeals were dismissed by the Immigration Tribunal on - as I have said - May 1, 1990.

6. His mother is still in custody here pending removal to China; but Ka Ming's liberty has been restored to him by this Court. That was done by an order made in the habeas corpus proceedings on June 15, 1990, by my brother Duffy who also (by his Order made on the same day in the judicial review proceedings) gave leave to seek judicial review. Ka Ming remains in peril of removal. Hence these applications.

7. Whether he has a right of abode in Hong Kong Is what this case is all about. Certiorari to bring up and quash the Immigration Tribunal's decision that he does not and a declaration that he does is the relief sought by way of judicial review.

8. The background to this case is as follows : Both of Ka Ming's parents came to Hong Kong as illegal immigrants, Landing here unlawfully and remaining here without authority. Because he managed to "touch base" before the cut-off date under the Government's then "touch base" policy, the father was able to obtain the Director of Immigration's authority to remain in Hong Kong. He obtained that on November 2, 1981. Because she did not manage so to "touch base", the mother has not been able to obtain such authority.

9. Mr McCoy, who appears on behalf of Ka Ming, has conceded for the purpose of this case that another woman was misrepresented as the boy's mother for the purpose of obtaining a birth certificate for him.

10. The removal order against Ka Ming was made under section 19(1)(b)(iii) of the Immigration Ordinance, Cap.115, which provides that the Director of Immigration may make a removal order against a person requiring him to leave Hong Kong " ... if it appears to him that that person ... being a person who by virtue of section 7(2) may not remain in Hong Kong without the permission of an immigration officer or immigration assistant, has remained in Hong Kong without such permission." Section 7(2) provides - in so far as is material to the present case - that a" ... person who was born in Hong Kong but who does not enjoy the right of abode in Hong Kong ... may not remain in Hong Kong without the permission of an immigration office or immigration assistant."

11. It is accepted on Ka Ming's behalf that he did not enjoy the right of abode in Hong Kong at the time of his birth.  what is said on his behalf is that he has acquired such right since then.

12. Section 2A(1) of the Immigration Ordinance provides that Hong Kong permanent residents enjoy the right of abode here. The term "Hong Kong permanent resident" is defined n section 2 (1) which provides that it " ... means a person who belongs to a class or description of persons specified in the First Schedule."

13. The first class or description in that schedule - which is the class or description relied upon on Ka Ming's  behalf - is worded thus :

"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.''

14. It is in my judgment necessary to include those provisions i.e. sections 2(1) and 2A(1) and the First Schedule in one's consideration of this case. And in so far as Mr Liu for the Director of Immigration suggests - as he appeared at one stage to suggest- that the case can be decided by reference to section 19 in isolation, I reject his argument.

15. Now it is common ground that ka Ming is wholly of Chinese race. It is also common ground that he has throughout his life been resident in Hong Kong, where he is now a primary one schoolboy.

16. Although they disagree as to the effect of its application to the present case, both Mr McCoy and Mr Liu naturally accept the correctness of Lord Scarman's statement in Reg. v. Barnet London Borough Council, ex parte Shah[1983]2 A.C. 309 at pp.343G - 344B that :

"Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that '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 for his life for the time being, whether of short or of long duration.

 

There is, of course, one important exception. If a man's presence in a particular place or country is unlawful, for example, in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence (even though in a tax case the Crown may be able to do so) : In re Abdul Manan [1971]1 W.L.R. 859 and Reg.v. Secretary of State for the Home Department, Ex   parte Margueritte [1982]3 W.L.R. 753. There is, indeed, express provision to this effect in the Act of 1971, section 32(2). But even without this guidance I would conclude that it was wrong in principle that a man could rely on his own unlawful act to secure an advantage which could not have been obtained if he had acted lawfully."

17. The question of unlawfulness apart, I do not think that there can be any real doubt that Ka Ming's residence in Hong Kong has been ordinary.

18. Turning to an examination of the question of unlawfulness, I begin by noting that in the passage from his speech which I have just quoted, Lord Scarman concludes with a reference to the settled principle that no man may benefit by his own wrong.

19. That principle is to be seen in operation throughout the illegal entry and overstaying cases in Britain, which cases I find of assistance in deciding this one. In Reg. v. Home Secretary, ex paste Puttick [1981] 1 Q.B.767 Donaldson L.J. referred (at p.775G) to the requirement of Public policy that the courts " ... refuse to assist a criminal to benefit from his crime at least in serious cases ....". And in Reg. v. Home Secretary ex parte Margueritte [1982]3 W.L.R. 754 Lord Denning M.R. referred (at p.757H) to the need for an illegal entrant or overstayer to "... redeem his fault so as to get indefinite leave to remain."

20. Here Ka Ming has committed no offence. What he did would not amount to a crime even in the case of an adult. And, in any event, he did not reach the minimum age of criminal responsibility until he turned 7. Section 3 of the Juvenile Offenders ordinance, Cap. 226, provides that : "It Shall be conclusively presumed that no child under the age of 7 years can be guilty of an offence." And, as coincidence would have it, 7 years is the period laid down in item 1 of the First Schedule

21. In Reg. v. Home Secretary, ex parte Khan [1977] 1 W.L.R. 1466 a woman had entered Britain on a passport which her husband had obtained for her and which was false but which she, being illiterate, did not know was false. Nevertheless the Court of Appeal held that she was an illegal entrant and liable to removal. That case was followed by the Divisional Court in Reg. v. Home Secretary, ex parte Ibrahim "The Times", March 29, 1980, in which a woman was held to be an illegal entrant and liable to removal after she had entered Britain on a representation by her fiance that he intended to marry her, which representation was false but was believed by her to be true.  However, in the leading case of Reg. v. Home Secretary, ex parte Khawaja [1984]1 A.C. 74 Lord Bridge expressed (at p.119 F-G) doubts as to the correctness of the decision in Khan's Case (supra) saying this : "I am not convinced that [that case], where it was decided that the innocent wife who obtained leave to enter on a false passport procured for her by her husband was an illegal entrant, was rightly decided. In such cases the proper conclusion may depend on a variety of circumstances and I think it safer to express no present view but to leave such cases to be decided as they arise."

22. I am indebted to Mr Liu who very properly drew my attention to the statement in "MacDonald on Immigration Law and Practice" 2nd ed. (1987) at p.389 that : "Taking their cue from Lord Bridge's doubts the Home Office do not seek to remove as illegal entrants by deception those who were not party to the deception."

23. As to the nature of Ka Ming's residence in Hong Kong, it is to be noted that section 2(4) of the Immigration Ordinance provides that :

No attempt was made to suggest that Ka Ming is caught by that sub-section apart from a half-hearted suggestion that he landed here by being born here. I reject the argument that being born constitutes landing within the meaning of the Immigration Ordinance. Accepting it would mean saying that one could read item (a)(i) of the sub-section thus : "without the authority of the Director of Immigration, after having been born unlawfully." How can a baby be born unlawfully?

24. "Expulsion under the immigration law is ...." - as McMullin J.A. said in A.G. v. Cheung Kam-ping [1980] H.K.L.R. 602 at p.610 - " ... a penal consequence of breach of that law ...".

25. The conclusion to which I have come is that the term "Ordinary residence" in item 1 of the First Schedule to the Immigration ordinance is not to be construed so as to exclude from its compass residence in Hong Kong on the part of a child like Ka Ming who was born here and who remained here without having himself practised any deception on the immigration authorities let alone having himself committed any offence against our immigration laws.

26. In the circumstances I do not think that his state of being ordinarily resident here was terminated by his being arrested on  January 18, 1990 (when he was 6 years and 9 months of age) or by the service upon him of a removal order on March 16, 1990 (when he was 6 years and 11 months of age). The making and service of a removal order is accompanied by a right of appeal. It is on such appeal that the person against whom the order is directed has an opportunity to be heard; and it is such right of appeal which brings about compliance with the rules of natural justice. Whether or not Ka Ming's state of being ordinarily resident here was terminated by the Immigration Tribunal's dismissal of his appeal on May 1, 1990, is of no consequence. By then he had already attained the age 7, having turned 7 on the 18th of the previous month.

27. It is unnecessary, therefore, for Ka Ming to rely on the argument that the word "person" in item 1 of the First Schedule includes a child in the womb. But had it been necessary to decide that point, I would have decided it in his favour. I do not propose to go through all the cases. It suffices to refer to three. In a passage in his speech in Villar v. Gilbey [1907] A.C. 139 running from the second paragraph beginning at p.144 to the end of the paragraph ending at p.146 - in which passage is to be found a detailed statement of the law as to the doctrine of "en ventre sa mere" - the Lord Chancellor began thus :

"It is certain that a child en ventre sa mere is protected by the law, and may even be party to an action. Again, in computing lives for the purpose of the rule against perpetuities, a child en ventre sa mere is taken as if it were actually living. And under the old law, which treated a will made before marriage as revoked by marriage and the subsequent birth of a child, it made no difference whether the child was actually born before the father's death or was still en ventre sa mere at that time."

And his Lordship concluded by stating in effect that the doctrine is to be applied whenever its application would benefit a child even if applying it does violence to the English language.

28. In Williams v. Ocean Coal Co. Ltd [1907]2 K.B. 422, a workmen's compensation case, the Court of Appeal held that a posthumous child - in other words one who was in its mother's womb when its father died in circumstances giving rise to workmen's compensation for his dependents - was also a dependent. At p.429 the Master of the Rolls said this :

"There is only one other point upon which I do not think it is necessary to say more than a few words. There was a posthumous child. Is that posthumous child dependent within the meaning of the Act? I think he is. There has of recent years been a great deal of discussion on points very similar to this; but the last case in the House of Lords, Villar v. Gilbey [1907] A.C.139, decided that a child en ventre sa mere is to be deemed born as far as necessary for the benefit of that unborn child. That is not merely a rule of real property law - it is a rule. applicable to personal property, and it is a rule which, in my view, ought to be applied for the benefit of this posthumous child in dealing with this Workmen's Compensation Act. I hold, therefore, that the posthumous child is dependent as well as the mother in the circumstances."

29. The third case is Caller v. Caller [1968] P. 39. There the Divisional Court held that a child in the womb can be accepted as a child of the family within the meaning of sections 2 and 16(1) of the Matrimonial Proceedings (Magistrates Courts) Act 1960. At p.44D Karminski J. said that"...a child  can exist en ventre sa mere as much as a child who has in fact been delivered". Latey J. said this at p.46 D-F :

"Now the first question, therefore, which was argued by [counsel] is not that there is any doubt that in the husband's mind the matter was agreed, but whether an unborn child can be accepted as a child of the family:  and what his able and ingenious argument boiled down to in the end was that a child unborn is not a child. I should take a lot of persuading that when Parliament chooses the simple words "a child" it intends any special meaning. I do not think the words are intended to be used in any way other than the natural' way according 'to the common use of language: I should have thought myself that in the ordinary English language pregnancy means 'having a child' or 'having a baby'. But [counsel] contends that. what should be said is 'I am having an embryo' or 'I am having a foetus,' or words to that effect. I am unable to accept that argument and in my view a man can accept as a child of the family his wife's unborn child just as readily as he can accept her born child:  and that is what happened in this case. "

30. Even if one were to take away from the 7 year period running from the time of Ka Ming's birth to his 7th birthday the 3 months between his arrest and that birthday, he has in my judgment the requisite 7 years because for at least 3 months before his birth he was a person within the meaning of item l of the First Schedule, albeit a person waiting to be born or en ventre sa mere. I do not think that his mother's immigration difficulties could adversely affect him in law. He had the physical benefit of his mother's womb; but that benefit carried no legal burden. His residence here was ordinary residence within the meaning of item l of the First Schedule even when it was residence en ventre sa mere.

31. One of the arguments advanced on behalf of the Director of Immigration is that a decision in favour of this boy would, or might, "open the floodgates". I am not convinced that it would have any such effect. In any event, what I am concerned with is this boy's rights under the law as it stands. If there should develop in future a situation in which a change in the law appears necessary then that would be a matter for the legislature.

32. My decision is that the Immigration Tribunal's decision that Ka Ming was not a Hong Kong permanent resident constituted an error of law on the face of the record of the proceedings before it. By an order of certiorari I bring up and quash that decision and the removal order against Ka Ming which it confirmed.

33. In my judgment Ka Ming is a Hong Kong permanent resident, has the right of abode in Hong Kong and is not liable to removal. I make a declaration accordingly.

34. At the moment Ka Ming's liberty is not absolute, he being on bail. I order that habeas corpus go to restore to him his liberty in full. He is no longer on bail or subject to any requirement to surrender himself to any form of custody. He is free.

35. In thanking counsel for their assistance, I am sure that neither of the other two counsel before me would begrudge Mr Liu the special tribute which I would like to pay to the fair and balanced way in which he presented his arguments in this very anxious case - a case in which, I should add, I make no criticism whatsoever of those who have, in all good faith of course, taken a different view from the one which I have formed after the benefit of three days' argument.