SHOVE SHERPA v. THE DIRECTOR OF IMMIGRATION

HCAL 6/2014

[2018] HKCFI 1168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 6 OF 2014

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J U D G M E N T

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1.  This judicial review deals with the question of whether the applicant, a foreign national who was born in Hong Kong and considered by the Director of Immigration (the Director) to be a permanent resident having right of abode in Hong Kong prior to 1 July 1997, is entitled to right of abode in the Hong Kong Special Administrative Region (the HKSAR), despite the fact that he failed to satisfy the transitional provisions upon the change of sovereignty to be a permanent resident of the HKSAR.

2.  The applicant prior to 1 July 1997, by virtue of his birth in Hong Kong, satisfied to be a Hong Kong belonger under the provisions of the 1971[1] and 1982[2] editions of the Immigration Ordinance, Cap 115 (the 1971 Immigration Ordinance and 1982 Immigration Ordinance respectively), and a Hong Kong permanent resident (HKPR) under the 1987 edition of the Immigration Ordinance (the 1987 Immigration Ordinance).[3] He contends that he had dual right of abode under these different legal statuses prior to 1 July 1997 which carried forward after the change of sovereignty by virtue of Article 160 of the Basic Law (BL 160) and section 23 of the Interpretation and General Clauses Ordinance, Cap 1, (the IGCO).  He also contends that section 2A of the Immigration Ordinance, adopted as law by the HKSAR, recognised his status as a HKPR to further confer on the applicant right of abode in the HKSAR.

3.  The respondent, on the other hand, contends that he did not become a HKPR upon the commencement of the 1997 edition of the Immigration Ordinance (the 1997 Immigration Ordinance),[4] because he did not fulfil the transitional provisions under paragraph 6(1) of Schedule 1 to the Ordinance.  The applicant was granted the right to land in Hong Kong pursuant to section 2AAA(1) of the Ordinance, but as provided by section 2AAA(2), if a deportation order is made against such person the right shall cease while the deportation order is in force.  A deportation order was issued against the applicant on 28 July 2005, having committed deportable offences.

4.  The applicant brought judicial review proceedings seeking to challenge a number of decisions relating to his residential status in Hong Kong and to the deportation order that had been issued against him.  However, leave to apply for judicial review was only granted on the constitutional question raised by the applicant, which briefly stated, is whether he acquired right of abode by three legal bases prior to the change of sovereignty which were intact as at 30 June 1997 and to which the constitutional transition scheme of the Basic Law applied and thereby conferred upon him right of abode in the HKSAR. 

5.  The applicant submits that he has right of abode in the HKSAR and is therefore not amenable to deportation, and any official decision inconsistent with such right was unconstitutional and unlawful.  He further submits that even though paragraph 6(1) and paragraph 7 of Schedule 1 of the Immigration Ordinance do not apply to him, they are unconstitutional if they apply to extinguish or diminish his rights of abode.  Paragraph 6(1) concerns settlement requirements of a non-Chinese national who was a permanent resident of Hong Kong before 1 July 1997 in order to be a permanent resident of the HKSAR, and paragraph 7 concerns the loss of the status as a permanent resident of a non-Chinese national falling within the categories in paragraph 2(d), (e) and (f) because of a specified period of absence from Hong Kong.  He argues that if they apply to deny him his rights of abode, they are inconsistent with the constitutional transition scheme of the Basic Law and Article 24 of the Basic Law (BL24) which defines the categories of permanent residents of the HKSAR.[5]

6.  Deciding this judicial review challenge has been made extremely difficult because of the voluminous papers and materials filed which included research papers and articles without relevant authority or sources being cited.  The amended Form 86 together with annexures was over 200 pages in length.  The trial bundle consisted of nearly 3,000 pages of documents together with lengthy legal submissions and seven volumes of legislation and authorities.  The review also involved a historical overview of relevant policies and legislation and an extensive examination of voluminous papers and materials in order to distil the relevant facts and circumstances of the applicant’s case.

The background facts

7.  The applicant, Shove Sherpa, was born in Hong Kong on 27 February 1981.  His father, a Nepalese national, was then serving as a member of the Gurkha regiment with the British Army that was stationed in Hong Kong.  The applicant’s older brother and younger sister were also born in Hong Kong in 1979 and 1985 respectively.

8.  In accordance with a tri‑partite agreement signed between the governments of the United Kingdom, India and Nepal, Gurkha soldiers remained as Nepalese nationals throughout their service with the British Army.[6]

9.  In late 1985, the applicant’s father was relocated to Brunei where he was stationed until his discharge from the British Army in 1998.  The rest of the family did not accompany him to Brunei but instead moved back to Nepal.

10.  Sometime in 1996, the applicant’s father arranged a friend to apply to the Birth and Deaths Registry in Hong Kong for the birth records of his two sons.  It was on 24 June 1996 that Pemba Sherpa, who represented he was the uncle of the applicant, submitted an “Application for Search of Record of Birth” and an “Application for Birth Certificate(s)” in the name of “Sherpa Shere”.[7] As is apparent, the two applications incorrectly stated the first name of the applicant, namely, it should have been “Shove” instead of “Shere”.  The search application set out the names of the applicant’s father and mother, his date of birth as 27 February 1981 and his place of birth as the Gallipoli Family Hospital in the New Territories.  In the official remarks section of the application, it was noted that the birth record of the subject was uncertain, although the registration number Z509236 SS2 of the applicant’s birth certificate was provided, with the notation that the subject’s name should be verified before the birth certificate was issued.[8]

11.  A “Certified Copy of an Entry in a Register of Births” (a birth certificate) in respect of registration number Z509236 SS2 in the name of Shove Sherpa dated 9 July 1996 was issued. 

12.  It was claimed by the applicant that the applications failed to return a positive result, but this does not seem to have been the case as a birth certificate was issued. 

13.  The confusion over the applicant’s first name may have been attributable to the fact that the applicant’s name was recorded as “Sherpa Shere” in the Records Office, British Gurkhas Pokhara, Nepal, the central registry of all Gurkhas soldiers operated by the British Brigade of Gurkhas in Nepal.  It is claimed by the applicant that because his name was differently recorded in the Records Office, this needed to be cleared up and the Director required further and better particulars in respect of the applicant’s applications.  He noted that it was some years later on 17 October 1998 that the Records Office issued an official clarification confirming that “Sherpa Shere” and “Sherpa Shove” are names of one and the same person.[9]

14.  As correctly pointed out by the respondent, the birth certificate of the applicant had already been issued and the Director did not seek further and better particulars in relation to these applications as claimed.[10] This attempt to shift responsibility on the Director for any delay in asserting or establishing any claim of right of abode he may have had is without foundation.

15.  According to the Immigration Department records, it was not until 1999 that an application for a visit visa was submitted on behalf of the applicant to the Immigration Department.  This was confirmed by the records of the Right of Abode Section of the Immigration Department (the ROA Section).  I am informed by the respondent that according to office practice and procedure, on receipt of an application for visit visa to enter Hong Kong, if the applicant appears he can claim right of abode in Hong Kong, and the application contains information or documents showing a prima facie claim for such right, the case will be passed on to the ROA Section for assessment of the claim.  If the ROA Section is satisfied that the applicant is eligible for a claim, the Visitors Section of the Immigration Department (the Visitors Section) will be informed for consideration of issuing a visit visa to facilitate the applicant to come to Hong Kong to complete formalities of registration of a Hong Kong Permanent Identity Card or a Hong Kong Identity Card whichever is appropriate.  I am also informed that the applicant’s case was referred to the ROA Section for assessment of his right of abode status given his case circumstances. 

16.  By a letter dated 6 July 1999, the applicant’s local sponsor was requested to attend an interview with the ROA Section on 9 August 1999 to produce documents for the purpose of verifying the applicant’s claim.[11] There was no response from the local sponsor to this and other requests to attend for an interview.[12] Eventually, he did respond and he attended an interview scheduled for 2 November 1999.  He provided some documents relating to the applicant, which included the applicant’s Hong Kong birth certificates dated 13 March 1981 and 9 July 1996.[13]

17.  It seems that the documents submitted were not sufficient to assess the applicant’s right of abode status, and by letter dated 2 November 1999 and thereafter the local sponsor was requested to furnish further supporting documents.[14] 

18.  Once the relevant documents were provided, a preliminary assessment of the applicant’s right of abode was conducted in April 2000.  The ROA Section took the view that the available information supported the applicant to be a rightful holder of the Hong Kong birth certificate, registration number Z509236 SS2, that he satisfied to be a HKPR immediately before 1 July 1997, and that he might have a claim to the right of abode or right to land in Hong Kong. 

19.  As a consequence, the Visitors Section was informed of the ROA Section’s view and was asked to advise the applicant to submit an application for Verification of Eligibility for Permanent Identity Card (VEPIC) after his entry into Hong Kong.[15]

20.  To facilitate the application, the applicant was issued a single-journey visit visa on 13 June 2000 for a visit of two months.  He entered Hong Kong on 29 August 2000.[16] 

21.  On 2 September 2000, the ROA Section received the applicant’s VEPIC application dated 1 September 2000.[17] In the application, the applicant declared that he was a person not of Chinese nationality who was a permanent resident of Hong Kong before 1 July 1997.  He also submitted a “Declaration of having the Right of Abode only in Hong Kong” and a “Declaration of Having Taken Hong Kong as Place of Permanent Residence”.[18] 

22.  It was acknowledged that the applicant as a citizen of Nepal by descent enjoyed the right of abode there since his birth.[19] As rightly pointed out by the respondent, there was no basis for the applicant to claim that he was a person having the right of abode only in Hong Kong immediately before the establishment of the HKSAR.  In any event, he had been away from Hong Kong for about 15 years prior to submitting his VEPIC application.  There was no basis on which the applicant could show that he had already taken Hong Kong as his only place of permanent residence. 

23.  On 25 October 2000, the applicant submitted to the Immigration Department a “Personal Particulars” form[20] and a “Declaration of Having Returned to Settle in Hong Kong”, declaring that he returned to settle in Hong Kong as from 29 August 2000.[21] On 26 October 2000, he further declared that he had been absent from Hong Kong for a continuous period of not less than 3 years before his recent arrival on 29 August 2000.[22] 

24.  In a letter dated 1 December 2000, the Director advised the applicant in relation to his VEPIC application as follows:[23]

“I refer to your application for verification of eligibility for Hong Kong permanent identity card received by this Department on 2 Sept 2000.

According to the information provided, we considered that you are a non-Chinese national and was a Hong Kong permanent resident having the right of abode in Hong Kong immediately before 1 July 1997 under the law as then in force. A person not of Chinese nationality and was a Hong Kong permanent resident before 1 July 1997 can continue to have the status of permanent resident of the HKSAR if he can fulfil the transitional provisions under paragraph 6(1) of Schedule 1 to the Immigration Ordinance. However, as you did not return to settle in Hong Kong on or before 31 December 1998 and had been absent from Hong Kong for a continuous period of 36 months or more, you cannot become a permanent resident of the HKSAR.

As a result, your claim to the permanent resident status cannot be established. If you have further documents to substantiate your claim to the permanent resident status, you may make an application for permanent identity card for a formal determination. If you wish to do so, please contact the undersigned at [telephone number provided] for details.

Nevertheless, a non-Chinese citizen who loses the status as a permanent resident will acquire the right to land in HKSAR under Section 2AAA of the Immigration Ordinance. Therefore, you will have the right to land in Hong Kong and will be able to enter Hong Kong freely to live, study or work without any restriction.

 Please attend this office at the following address between 10‑11a.m. on 15 Dec 2000 with the original copies of the documents listed on the attached sheet for verification and further formalities.”

25.  It was acknowledged by the applicant that he had been away from Hong Kong for more than 36 months and had not returned to Hong Kong within the period of 18 months commencing on 1 July 1997.  He therefore failed to meet the requirements as set out in paragraph 6(1)(c) of Schedule 1.

26.  On 15 December 2000, the Director reiterated his previous advice to the applicant that his claim to permanent residence status was not established and that a non-Chinese citizen who loses such status will acquire the right to land in the HKSAR under section 2AAA of the 1997 Immigration Ordinance and will be able to enter freely to live, study or work without any restriction.[24]

27.  The applicant did not dispute the Director’s determination that his claim to permanent resident status was not established and that having lost that status, he had nevertheless acquired the right to land in Hong Kong.  On 27 December 2000, the applicant applied for a Hong Kong Identity Card which was issued to him.[25] 

28.  During the period that the applicant has been in Hong Kong, he has been convicted of a number of criminal offences.  This led to the making of a deportation order against him on 28 July 2005.[26]

29.  In the course of the deportation proceedings, the applicant made inquiries on 21 and 23 December 2005 in relation to the refusal to grant him HKPR status.[27] In response, the ROA Section by letter dated 11 January 2006 advised the applicant the reasons for refusal of his VEPIC application in 2000.[28] The letter stated, amongst other things, that:

(1) the applicant was of Nepalese nationality and a non-Chinese national;

(2) based on the available information, he was not qualified for HKPR status under paragraphs 2(a), (b), (c), (e), (f) and 6(2) of Schedule 1 to the Immigration Ordinance;

(3) he was not a HKPR under paragraph 2(d) of Schedule 1 to the Immigration Ordinance because he had not ordinarily resided in Hong Kong for not less than 7 years at the time when he submitted the application for VEPIC; and

(4) even though he was a HKPR immediately before 1 July 1997, he did not fulfil the transitional provision in paragraph 6(1) of Schedule 1 to the Immigration Ordinance because he did not return to settle in Hong Kong on or before 31 December 1998 and had been absent from Hong Kong for a continuous period of 36 months or more. 

30.  On 18 April 2006, the applicant made further inquiry as to the reason for the loss of his HKPR status which was again responded to by the ROA Section by letter dated 28 April 2006, reiterating the same reasons as stated previously.[29] 

31.  The criminal offences for which the applicant had been convicted whilst in Hong Kong, briefly stated are as follows. 

(1) 8 November 2002, the applicant was convicted of theft on 17 September 2002 for which he was sentenced to 1 month imprisonment.[30] 

(2) 23 December 2002, the applicant was convicted of possession of a dangerous drug on 5 August 2002 for which he was sentenced by way of a fine of $500.[31] 

(3) 12 May 2003, the applicant was convicted of theft on 6 March 2003 for which he was sentenced to 3 months’ imprisonment suspended for 12 months.[32] 

(4) 24 November 2003, the applicant was convicted of theft on 25 August 2003 and failing to surrender to custody without reasonable cause on 8 October 2003 for which he was sentenced to 6 months’ imprisonment plus activation of 2 months suspended sentence on 24 November 2003.[33] 

(5) 28 January 2005, the applicant was convicted of theft on 4 October 2004 for which he was sentenced to 15 months’ imprisonment.[34]

(6) 14 April 2009, the applicant was convicted of burglary on 29 October 2008 for which he was sentenced to 2 years’ imprisonment.[35]

(7) 15 June 2011, the applicant was convicted of theft on 22 May 2011 for which he was sentenced to 6 weeks’ imprisonment.[36] 

(8) 6 September 2012, the applicant was convicted of theft for which he was sentenced to 4 weeks’ imprisonment.[37]

(9) 21 November 2013, the applicant was convicted of theft and sentenced to 6 weeks’ imprisonment.[38]

(10) 6 December 2013, the applicant was convicted of theft for which he was sentenced to 8 weeks’ imprisonment, which was reduced to 3 weeks’ imprisonment on review on 13 December 2013.[39]

(11) 3 September 2014, the applicant was convicted of two charges of theft, possession of a dangerous drug and assaulting a police officer for which he was given a drug addiction treatment order.[40]

32.  As a result of the applicant’s perceived status and the convictions for the criminal offences, a Deportation Order was the subject of a warning which was eventually issued against the applicant.[41] A brief chronology in relation to the Deportation Order can be conveniently summarised as follows:   

(1) 24 November 2003, deportable offences had been committed by the applicant.[42] 

(2) 16 February 2004, a warning letter was issued to the applicant advising him that he was liable to deportation.[43] 

(3) 28 July 2005, a Deportation Order was issued and served on the applicant on 4 August 2005.[44]

(4) 1 February 2006, the applicant submitted a Petition to Permanent Secretary for suspension/rescission of deportation order.[45] 

(5) 14 June 2006, the Petition was refused.[46] 

(6) 23 August 2006, the applicant submitted a Petition to the Chief Executive.[47]

(7) 5 September 2006, the applicant made further representations to the Permanent Secretary.[48]

(8) 17 April 2007, the Permanent Secretary refused to reconsider the case.[49] 

(9) 25 May 2007, a request by the applicant for reasons from the Permanent Secretary was refused.[50]

33.  After unsuccessfully resisting the Deportation Order, the applicant made a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) which was processed between 2007 and 2011.  The application was made on 2 May 2007 and dismissed on 4 March 2011.[51] A Petition against the failed CAT claim was refused on 17 August 2011.

34.  After the failed CAT claim, the applicant made a refugee claim. The application as a refugee was made on 2 August 2011 and refused on 11 October 2012.

35.  After the failed refugee claim, the applicant instituted Habeas Corpus proceedings which were dismissed on 21 December 2012.[52]

36.  On 15 January 2014, the applicant instituted the present judicial review proceedings seeking relief in relation to paragraphs 6 and 7 of Schedule 1 and various other decisions dating back from 1 December 2000 onwards.

The legislative framework

37.  In order to address the applicant’s arguments, it is necessary to review the legislative history and framework of a person’s right to be a resident of Hong Kong and the entitlements accorded to such a person at various times.  An appropriate starting point for such a review is the 1971 Immigration Ordinance,[53] and the concept of a “Hong Kong belonger”. 

The 1971 Immigration Ordinance

38.  Under the 1971 Immigration Ordinance[54] the status of a “Hong Kong belonger” was created, and by section 2 it was defined to mean:

“(a) a British subject who was born in Hong Kong;

(b) a British subject by naturalization in Hong Kong;

(c) a British subject by registration in Hong Kong under section 7(2) of the British Nationality Act 1948;

(d) a British subject who is or has been married to, or is the child of, a person mentioned in paragraph (a), (b) or (c);”

39.  A person who had such status had the right to land in Hong Kong (section 8(1)(a)); could not be subject to a condition of stay (section 8(2)); and could not be subject of a removal order (section 19(2)); or a deportation order (section 20(1)).

40.  The 1980 edition of the Immigration Ordinance (the 1980 Immigration Ordinance)[55] replicated the provisions of the 1971 Immigration Ordinance in respect of a Hong Kong belonger and it was not until the 1987 Immigration Ordinance that it changed.  As we will see later, the rights and privileges of a Hong Kong belonger corresponded to section 2A(1) of the 1987 Immigration Ordinance in relation to a new status of a Hong Kong permanent resident which subsumed the status of a Hong Kong belonger. 

The 1982 Immigration Ordinance

41.  Under the 1982 Immigration Ordinance[56] a change in the status of a Hong Kong belonger was made by differentiating the status immediately before and on or after 1 January 1983.  By section 2(1), a Hong Kong belonger was defined to mean a person who:

“(a) immediately before 1 January 1983 was-

(i) a British subject who was born in Hong Kong;

(ii) a British subject by naturalization in Hong Kong;

(iii) a British subject by registration in Hong Kong under section 7(2) of the British Nationality Act 1948;

(iv) a British subject married or who had been married to, or was a child of, a person mentioned in sub-paragraph (i), (ii) or (iii);

(b) on or after 1 January 1983 belongs to a class or description of persons mentioned in the First Schedule;”

42.  The First Schedule was added to the Ordinance which further defined a Hong Kong belonger.  The First Schedule read:

“PERSONS WHO ARE HONG KONG BELONGERS UNDER SECTION 2(1)

1. Any person who immediately before 1 January 1983 was a Hong Kong belonger.

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

(a) under section 15(1)(b) or (2) of the 1981 Act;

(b) by naturalization in Hong Kong under section 18 of, and Schedule 1 to, the 1981 Act;

(c) by registration in Hong Kong under section 15(3) or (4), 17, 19, 21, 22 or 24 of, or paragraph 3, 4 or 5 of Schedule 2 to, the 1981 Act;

(d) under section 23(1), (3) or (4) of the 1981 Act.

3. Any person who is or becomes a British Dependent Territories citizen-

(a) by birth in Hong Kong under section 15(1)(a) of the 1981 Act;

(b) by descent under section 16 of the 1981 Act;

(c) under section 23(2) of the 1981 Act; or

(d) under paragraph 1 of Schedule 2 to the 1981 Act,

if that person’s father or mother or grandfather or grandmother has an appropriate qualifying connexion with Hong Kong.

4. Any person who is or becomes a British Dependent Territories citizen-

(a) by birth in any of the British Dependent Territories mentioned in Schedule 6 to the 1981 Act (other than Hong Kong) under section 15(1) of the 1981 Act; or

(b) by registration in any of the British Dependent Territories mentioned in Schedule 6 to the 1981 Act (other than Hong Kong under section 15(3) of the 1981 Act,

if that person’s father or mother has an appropriate qualifying connexion with Hong Kong or is or becomes settled in Hong Kong.

5. Any person who is or becomes a British Dependent Territories citizen by adoption in Hong Kong under section 15(5) of the 1981 Act if the adopter or, in the case of a joint adoption, one of the adopters, has an appropriate qualifying connexion with Hong Kong or is or becomes settled in Hong Kong on the date of the adoption order.

6. Any person who is or becomes a British Dependent Territories citizen by adoption in any of the British Dependent Territories mentioned in Schedule 6 to the 1981 Act (other than Hong Kong) under section 15(5) of the 1981 Act if the adopter or, in the case of a joint adoption, one of the adopters, has an appropriate qualifying connexion with Hong Kong or is or becomes settled in Hong Kong on the date of the adoption order.

7. Any woman who is or becomes a British Dependent Territories citizen by registration in Hong Kong under section 20 of the 1981 Act that woman’s husband has an appropriate qualifying connexion with Hong Kong.

8. Any person who is or becomes a British Dependent Territories citizen in any of the British Dependent Territories mentioned in Schedule 6 to the 1981 Act (other than Hong Kong) under any of the provisions of the 1981 Act and is or has been married to a person who has, or would if living have, an appropriate qualifying connexion with Hong Kong.

The references to-

(1) “a dependent territory”;

(2) “a dependent territory (no matter which)”;

(3) “any dependent territory”;

(4) “the dependent territory”;

(5) “any particular dependent territory”;

(6) “one and the same dependent territory (no matter which)”;

(7) “that territory”;

(8) “the last mentioned territory”;

(9) “the relevant territory”; and

(10) “the dependent territories”,

in the provisions of the 1981 Act which apply for the purposes of paragraphs 2 to 8 shall, unless the context otherwise requires, be construed as references to “Hong Kong”.

A person shall be taken to have an appropriate qualifying connexion with Hong Kong if that person is or becomes a British Dependent Territories citizen or would have become such a citizen at 1 January 1983 but for that person’s death-

(a) by birth in Hong Kong;

(b) by adoption in Hong Kong;

(c) by naturalization in Hong Kong; or

(d) by registration in Hong Kong.”[57]

The Joint Declaration

43.  On 19 December 1984, the Government of the United Kingdom (the UK and the UK Government respectively) and the Government of the People’s Republic of China (the PRC and the PRC Government respectively) signed the Joint Declaration on the Question of Hong Kong (the Joint Declaration)[58] which addressed, amongst other things, the categories of persons who had the right of abode in the HKSAR upon the resumption of sovereignty over Hong Kong by the PRC on 1 July 1997.  This was contained in Section XIV “RIGHT OF ABODE, TRAVEL, IMMIGRATION” of Annex 1 to the Joint Declaration, which read as follows:

“XIV. RIGHT OF ABODE, TRAVEL, IMMIGRATION

Right of abode

The following categories of persons shall have the right of abode in the Hong Kong Special Administrative Region, and, in accordance with the law of the Hong Kong Special Administrative Region, be qualified to obtain permanent identity cards issued by the Hong Kong Special Administrative Region Government, which state their right of abode:

● all Chinese nationals who were born or who have ordinarily resided in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region for a continuous period of 7 years or more, and persons of Chinese nationality born outside Hong Kong of such Chinese nationals;

● all other persons who have ordinarily resided in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region for a continuous period of 7 years or more and who have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region, and persons under 21 years of age who were born of such persons in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region;

● any other persons who had the right of abode only in Hong Kong before the establishment of the Hong Kong Special Administrative Region.

Passports etc

The Central People's Government shall authorise the Hong Kong Special Administrative Region Government to issue, in accordance with the law, passports of the Hong Kong Special Administrative Region of the People's Republic of China to all Chinese nationals who hold permanent identity cards of the Hong Kong Special Administrative Region, and travel documents of the Hong Kong Special Administrative Region of the People's Republic of China to all other persons lawfully residing in the Hong Kong Special Administrative Region. The above passports and documents shall be valid for all states and regions and shall record the holder's right to return to the Hong Kong Special Administrative Region.

Use of travel documents

For the purpose of travelling to and from the Hong Kong Special Administrative Region, residents of the Hong Kong Special Administrative Region may use travel documents issued by the Hong Kong Special Administrative Region Government, or by other competent authorities of the People's Republic of China, or of other states. Holders of permanent identity cards of the Hong Kong Special Administrative Region may have this fact stated in their travel documents as evidence that the holders have the right of abode in the Hong Kong Special Administrative Region.

Entry into the Hong Kong Special Administrative Region of persons from other parts of China shall continue to be regulated in accordance with the present practice.”[59]

44.  It was the case that the PRC Government’s basic policies in respect of Hong Kong were to be stipulated in the Basic Law to be made by the National People’s Congress of the PRC (the NPC). 

45.  In order to implement the provisions of the Joint Declaration and the effective transition of government in 1997, the Sino-British Joint Liaison Group (the JLG) was established.  One of its tasks was to address the issue of the entitlement of persons to right of abode.  It was agreed to introduce as a first step the concept of “right of abode” and the term “Hong Kong permanent resident” which were at that time unknown to the immigration law, which used the concept of “Hong Kong belonger” instead.  For this purpose, the Immigration (Amendment) (No. 2) Ordinance 1987 was enacted.[60]

46.  As stated in the Legislative Council Brief, it was envisaged that further amendments would be made to the Immigration Ordinance to reflect the provisions regarding right of abode of the Joint Declaration.[61]

The 1987 Immigration Ordinance

47.  The 1987 Immigration Ordinance[62] introduced a new status of Hong Kong permanent resident which subsumed the previous status of a Hong Kong belonger.  “Hong Kong permanent resident” was defined to mean a person who belongs to a class or description of persons specified in the First Schedule.[63] 

48.  The First Schedule to the 1987 Immigration Ordinance read:

“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 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 and has at any time been married to a person specified in sub-paragraph (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.”[64]

49.  In addition, the 1987 Immigration Ordinance also defined right of abode in Hong Kong under section 2A which read:

“(1) A Hong Kong permanent resident enjoys the right of abode in Hong Kong, that is to say he has the right-

(a) to land in Hong Kong;

(b) not to have imposed upon him any condition of stay in Hong Kong, and any condition of stay that is imposed shall have no effect;

(c) not to have a deportation order made against him; and

(d) not to have a removal order made against him.

(2) Notwithstanding subsection (1)(c), no person against whom a deportation order was made prior to 1 July 1987 enjoys the right of abode in Hong Kong unless the deportation order has expired or been revoked.”[65]

50.  It is section 2A of the 1987 Immigration Ordinance which was repeated in the 1997 Immigration Ordinance, with some slight variation, that the applicant relies upon to contend that he acquired right of abode in the HKSAR.  This will be discussed in greater detail later.

The promulgation of the Basic Law

51.  On 4 April 1990, the Basic Law was promulgated.[66] BL 24 reflected the first paragraph of Section XIV of Annex 1 to the Joint Declaration which identified the categories of persons who have the right of abode in Hong Kong.  This meant that the Immigration Ordinance would have to be amended in due course to align with BL 24 on permanent residents of the HKSAR, and to provide details on how the article should be given effect.

52.  BL 24 reads:

“(1) Residents of the Hong Kong Special Administrative Region (“Hong Kong residents”) shall include permanent residents and non-permanent residents.

(2) The permanent residents of the Hong Kong Special Administrative Region shall be:

(1) Chinese citizens born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region;

(2) Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the Hong Kong Special Administrative Region;

(3) Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2);

(4) Persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region;

(5) Persons under 21 years of age born in Hong Kong of those residents listed in category (4) before or after the establishment of the Hong Kong Special Administrative Region; and

(6) Persons other than those residents listed in categories (1) to (5), who, before the establishment of the Hong Kong Special Administrative Region, had the right of abode in Hong Kong only.

(3) The above-mentioned residents shall have the right of abode in the Hong Kong Special Administrative Region and shall be qualified to obtain, in accordance with the laws of the Region, permanent identity cards which state their right of abode.

(4) The non-permanent residents of the Hong Kong Special Administrative Region shall be persons who are qualified to obtain Hong Kong identity cards in accordance with the laws of the Region but have no right of abode.”[67]

53.  There are six categories in BL 24(2).  The first three deal with Chinese nationals, the fourth and fifth with foreign nationals and the sixth with persons who only had the right of abode in Hong Kong before the establishment of the HKSAR. 

54.  The qualification criteria for Chinese nationals and non-Chinese are different.  This was explained in the Final Report on the definition of residents of the Basic Law Consultative Committee in 1987,[68] where it stated that nationality was a factor under the Joint Declaration’s provision for different categories of persons qualified for the right of abode.[69] For Chinese nationals, it stated that it was not necessary for them to take Hong Kong as their place of residence to retain their permanent resident status.  For persons who have the right of abode in Hong Kong only, it stated that they may retain their right of abode unconditionally because they do not have the right of abode in places other than Hong Kong.  For foreign nationals, it stated that they must take Hong Kong as their place of permanent residence before they are entitled to the right of abode in Hong Kong.  As to their children who are born in Hong Kong, they must also take Hong Kong as their place of permanent residence in order to retain their right of abode after the age of 21.[70]

The Preliminary Committee Legal Sub-Group

55.  For the purpose of ensuring an effective transfer of sovereignty on 1 July 1997, it was decided on 2 July 1993 to establish a Preliminary Committee to the Preparation Committee of the HKSAR.  One of its tasks was to make proposals on measures to handle laws of Hong Kong then in force which would be inconsistent with the Basic Law for the purposes of BL 160.

56.  The Preliminary Committee Legal Sub-Group found that the definition of a HKPR in section 2 and the provisions relating to a HKPR in Schedule 1 of the 1987 Immigration Ordinance were inconsistent with the Basic Law.[71]

The Preparatory Committee Legal Sub-Group

57.  The Preparatory Committee was eventually established on 26 January 1996 which continued where necessary the work of the Sub-Groups.  In turn, a Preparatory Committee Legal Sub-Group was established, and continued to examine and report on issues concerning the existing and proposed law in relation to the right of abode in the HKSAR.  In particular, it examined the implementation of BL 24(2) and suggested certain transitional arrangements which were adopted in paragraphs 5(4) and 7 of the Preparatory Committee Opinion which read as follows:

“5. (4) Where persons not of Chinese nationality who have acquired Hong Kong permanent resident status fail to meet the requirement of taking Hong Kong as their permanent residence by ceasing to have ordinarily resided in Hong Kong for a continuous period of time prescribed by the HKSAR Government, they may, except with special reasons, have their permanent identity cards cancelled under the law and shall no longer enjoy the right of abode. However, they may enter Hong Kong freely to live and work without restrictions in accordance with the law and become permanent residents of the HKSAR subject to the fulfilment of the relevant requirements as stipulated in BL 24(2).”

“7. The following arrangements shall be applicable to persons who are holders of Hong Kong permanent identity cards and have the right of abode in Hong Kong before the establishment of the HKSAR:

(1) For Chinese citizens …

(2) For persons who have acquired Hong Kong permanent resident status before the establishment of the HKSAR and, after emigrating overseas, returned to settle in Hong Kong as foreign nationals before 30 June 1997, their permanent identity cards shall continue to be valid after 1 July 1997 and they shall have the right of abode in the HKSAR.

(3) For persons who have acquired Hong Kong permanent resident status before the establishment of the HKSAR and, after absence from Hong Kong for a period longer than the prescribed period, returned to settle in Hong Kong as foreign nationals after 1 July 1997, their permanent identity cards shall be cancelled in accordance with the law and they shall no longer have the right of abode in Hong Kong. However, they may enter Hong Kong to live and work without restrictions in accordance with the law and can become permanent residents of the HKSAR subject to the fulfilment of the relevant requirements as stipulated in BL 24.”[72]

58.  The Preparatory Committee Legal Sub-Group also recommended, in line with the Preliminary Committee Legal Sub-Group’s recommendation, that the Standing Committee of the National People’s Congress (the Standing Committee of the NPC) should declare the definition of a HKPR in section 2 and the provisions relating to a HKPR in Schedule 1 to the then Immigration Ordinance as inconsistent with the Basic Law and not to be adopted as laws of the HKSAR because the provisions were based on the UK nationality laws and in contravention of BL 18 and 24, the provisions of the Nationality Law of the PRC listed in Annex III to the Basic Law and the Standing Committee of the NPC’s Explanations.[73]

59.  The Standing Committee of the NPC accepted the Preparatory Committee Legal Sub-Group’s recommendation which it included in its “Decision on Treatment of the Laws Previously in Force in Hong Kong Special Administrative Region of the People’s Republic of China” on 23 February 1997.  This was endorsed and approved by the NPC on 14 March 1997.[74]

The Decision of the Standing Committee of the National People’s Congress

60.  The Decision of the Standing Committee of the NPC so far as material read as follows:

“Decision of the Standing Committee of the National People’s Congress on Treatment of the Laws Previously in Force in Hong Kong in accordance with Article 160 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China

(Adopted at the Twenty Fourth Session of the Standing Committee of the Eighth National People’s Congress on 23 February 1997)

 [In the Decision, Article 160 and Article 8 of the Basic Law are set out.]

In accordance with the above provisions, the Standing Committee of the Eighth National People’s Congress examined the proposals made by the Preparatory Committee of the Hong Kong Special Administrative Region on treatment of issues relating to the laws previously in force in Hong Kong, and decides at its Twenty Fourth Session as follows:

…

3. Such provisions of the ordinances and subordinate legislation previously in force in Hong Kong as set out in Annex 2 to this Decision are in contravention of the Basic Law and those provisions are not adopted as the laws of the Hong Kong Special Administrative Region.

…

Annex 2

The following provisions in ordinances and subordinate legislation previously in force in Hong Kong, which are in contravention of the Basic Law, are not adopted as the laws of the Hong Kong Special Administrative Region:

1. the definition of “Hong Kong permanent resident” in section 2 of the Immigration Ordinance (Cap 115, Laws of Hong Kong) and the provisions relating to “Hong Kong permanent residents” in Schedule 1 to that Ordinance;

2. any provision giving effect to the British Nationality Act as applied in Hong Kong;

…”[75]

The transition provisions of the Basic Law

61.  The Basic Law came into effect on 1 July 1997 and at this juncture it is worth noting the transition provisions of BL 8 and BL 160.  

62.  BL 8 reads:

“The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravenes this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.”

63.  BL 160 reads:

“Upon the establishment of the Hong Kong Special Administrative Region, the laws previously in force in Hong Kong shall be adopted as laws of the Region except for those which the Standing Committee of the National People’s Congress declares to be in contravention of this Law. If any laws are later discovered to be in contravention of this Law, they shall be amended or cease to have force in accordance with the procedure as prescribed by this Law.

Documents, certificates, contracts, and rights and obligations valid under the laws previously in force in Hong Kong shall continue to be valid and be recognized and protected by the Hong Kong Special Administrative Region, provided that they do not contravene this Law.”

The Immigration (Amendment) (No.3) Bill

64.  A Provisional Legislative Council was established to enact relevant legislation to address the change in sovereignty and provide a smooth transition.[76] On 7 June 1997, the Immigration (Amendment) (No.3) Bill was presented to the Provisional Legislative Council.  The Bill was passed and became the Immigration (Amendment) (No. 2) Ordinance, 1997, which came into operation on 1 July 1997.  The definitions of a HKPR in section 2 and Schedule 1 to the Immigration Ordinance were replaced.  Within Schedule 1, the transitional provisions were set out in paragraph 6 and the provisions for the loss of HKPR status were set out in paragraph 7.  The provisions were in accordance with the recommendations and endorsements of the relevant authorities, to the effect that persons not of Chinese nationality who lost their status of permanent residents because of their absence from Hong Kong had exceeded the prescribed period would have their permanent identity cards cancelled and they would no longer have the right of abode in Hong Kong.  Section 2AAA was added to the Immigration Ordinance to also reflect that such persons would have the right to enter freely, and to live and work in Hong Kong without being subject to any condition of stay. 

The 1997 Immigration Ordinance

65.  The 1997 Immigration Ordinance[77] redefined a HKPR through section 2A and Schedule 1 to the Ordinance. 

66.  Under section 2 of the 1997 Immigration Ordinance:

“Hong Kong permanent resident (香港永久性居民) means a person who belongs to a class or description of persons specified in Schedule 1;”

“right of abode in Hong Kong (香港居留權) means the right of abode in Hong Kong referred to in Part IA;”

67.  Part 1A consists of two sections.  Section 2A deals with right of abode for permanent residents, and section 2AAA deals with right to land for former permanent residents. 

68.  Section 2A reads:

“2A. Hong Kong permanent residents enjoy right of abode in Hong Kong

(1) A Hong Kong permanent resident enjoys the right of abode in Hong Kong, that is to say he has, subject to section 2AA(2), the right-

(a) to land in Hong Kong;

(b) not to have imposed upon him any condition of stay in Hong Kong, and any condition of stay that is imposed shall have no effect;

(c) not to have a deportation order made against him; and

(d) not to have a removal order made against him.

(2) Notwithstanding subsection (1)(c), no person against whom a deportation order was made prior to 1 July 1987 enjoys the right of abode in Hong Kong unless the deportation order has expired or been revoked.”

69.  Section 2AA(2) is under Part 1B and is concerned with establishing status of a permanent resident under paragraph 2(c) of Schedule 1, which relates to the category of person who is of Chinese nationality born outside Hong Kong. 

70.  Section 2AAA reads:

“2AAA. Right to land in Hong Kong for former permanent residents

(1) Subject to subsections (2) and (3), any person who—

(a) immediately before 1 July 1997 was a Hong Kong permanent resident under this Ordinance as then in force but did not become a permanent resident of the Hong Kong Special Administrative Region upon the commencement of the Immigration (Amendment) (No. 2) Ordinance 1997 (122 of 1997) shall, immediately upon such commencement;

(b) is a permanent resident of the Hong Kong Special Administrative Region but ceases to be such a permanent resident by virtue of the operation of this Ordinance shall, immediately upon such cessation,

have the right—

(i) to land in Hong Kong;

(ii) not to have imposed upon him any condition of stay in Hong Kong, and any condition of stay that is imposed on him shall have no effect; and

(iii) not to have a removal order made against him.

(2) If a deportation order is made against a person who has the right to land in Hong Kong under subsection (1), the right shall cease while the deportation order is in force.

(3) For the avoidance of doubt, it is declared that a holder of a permanent identity card defined in section 1A of the Registration of Persons Ordinance (Cap. 177) whose permanent identity card could have been declared invalid under regulation 3D(1) of the Registration of Persons Regulations (Cap. 177 sub. leg. A) on the ground that he has never had the right of abode in Hong Kong shall not have the right to land in Hong Kong under subsection (1).”

71.  So far as material Schedule 1 to the 1997 Immigration Ordinance reads:

“1. Interpretation

…

(4) For the purposes of calculating the continuous period of 7 years in which a person has ordinarily resided in Hong Kong, the period is reckoned to include a continuous period of 7 years—

(a) for a person under paragraph 2(b), at any time before or after the establishment of the Hong Kong Special Administrative Region; and

(b) for a person under paragraph 2(d), before or after the establishment of the Hong Kong Special Administrative Region but immediately before the date when the person applies to the Director for the status of a permanent resident of the Hong Kong Special Administrative Region.

(5) A person is settled in Hong Kong if—

(a) he is ordinarily resident in Hong Kong; and

(b) he is not subject to any limit of stay in Hong Kong.

2. Permanent resident of the Hong Kong Special Administrative Region

A person who is within one of the following categories is a permanent resident of the Hong Kong Special Administrative Region—

(a) A Chinese citizen born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region.

(b) A Chinese citizen who has ordinarily resided in Hong Kong for a continuous period of not less than 7 years before or after the establishment of the Hong Kong Special Administrative Region.

(c) A person of Chinese nationality born outside Hong Kong before or after the establishment of the Hong Kong Special Administrative Region to a parent who, at the time of birth of that person, was a Chinese citizen falling within category (a) or (b).

(d) A person not of Chinese nationality who has entered Hong Kong with a valid travel document, has ordinarily resided in Hong Kong for a continuous period of not less than 7 years and has taken Hong Kong as his place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region.

(e) A person under 21 years of age born in Hong Kong to a parent who is a permanent resident of the Hong Kong Special Administrative Region in category (d) before or after the establishment of the Hong Kong Special Administrative Region if at the time of his birth or at any later time before he attains 21 years of age, one of his parents has the right of abode in Hong Kong.

(f) A person other than those residents in categories (a) to (e), who, before the establishment of the Hong Kong Special Administrative Region, had the right of abode in Hong Kong only.

3. Establishing permanent residence under paragraph 2(d)

(1) For the purposes of paragraph 2(d), the person is required—

(a) to furnish information that the Director reasonably requires to satisfy him that the person has taken Hong Kong as his place of permanent residence. The information may include the following—

(i) whether he has habitual residence in Hong Kong;

(ii) whether the principal members of his family (spouse and minor children) are in Hong Kong;

(iii) whether he has a reasonable means of income to support himself and his family;

(iv) whether he has paid his taxes in accordance with the law;

(b) to make a declaration in the form the Director stipulates that he has taken Hong Kong as his place of permanent residence; the declaration for a person under the age of 21 years must be made by one of his parents or by a legal guardian; and

(c) to be settled in Hong Kong at the time of the declaration.

(2) A person claiming to have the status of a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(d) does not have the status of a permanent resident in the Hong Kong Special Administrative Region until he has applied to the Director and the application has been approved by the Director.

(3) For the purposes of paragraph 2(d), a person is taken to have entered Hong Kong on a valid travel document—

(a) if he entered Hong Kong before 1 July 1997 with an expired travel document or with a travel document that was not a valid travel document but was permitted to remain by an immigration officer or an immigration assistant; or

(b) if he was born in Hong Kong and was permitted to remain in Hong Kong by an immigration officer or an immigration assistant.

4. Establishing permanent residence under paragraph 2(e)

(1) For the purposes of paragraph 2(e), the person on attaining the age of 21 years ceases to be a permanent resident of the Hong Kong Special Administrative Region and may apply to the Director for the status of a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(d) at any time.

(2) Section 2AAA applies in relation to a person who ceases to have the status of a permanent resident of the Hong Kong Special Administrative Region under this paragraph.

5. Establishing permanent residence under paragraph 2(f)

(1) For the purposes of paragraph 2(f), the person is required—

(a) to furnish information that the Director may reasonably require to determine whether that person had the right of abode only in Hong Kong immediately before the establishment of the Hong Kong Special Administrative Region; and

(b) to make a declaration that he had the right of abode only in Hong Kong immediately before the establishment of the Hong Kong Special Administrative Region; the declaration for a person under the age of 21 years must be made by one of his parents or by a legal guardian.

(2) If the person claims that he had no right of abode in a place that the Director reasonably believes that he had, the onus of proving that he did not have the right of abode in the place lies on the person.

(3) A person under 21 years of age born in Hong Kong on or after 1 July 1997 to a parent who is a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(f) at the time of the birth of the person is taken to have the status of a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(f) if, but for this subparagraph, the person has no right of abode in any place including Hong Kong.

(4) The person on attaining the age of 21 years ceases to be a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(f) and may apply to the Director for the status of a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(d) at any time.

(5) Section 2AAA applies in relation to a person who ceases to have the status of a permanent resident of the Hong Kong Special Administrative Region under this paragraph.

6. Transitional

(1) A person who is not of Chinese nationality and who was a permanent resident of Hong Kong before 1 July 1997 is taken to be a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(d) and exempt from the requirements under paragraph 3 if—

(a) he was settled in Hong Kong immediately before 1 July 1997;

(b) after he ceased to be settled in Hong Kong immediately before 1 July 1997 he returns to settle in Hong Kong within the period of 18 months commencing on 1 July 1997; or

(c) after he ceased to be settled in Hong Kong immediately before 1 July 1997 he returns to settle in Hong Kong after the period of 18 months commencing on 1 July 1997 but only if he has not been absent from Hong Kong for a continuous period of not less than 36 months.

(2) A person who is a Chinese citizen and was a Hong Kong permanent resident immediately before 1 July 1997 under this Ordinance as then in force shall, as from 1 July 1997, be a permanent resident of the Hong Kong Special Administrative Region as long as he remains a Chinese citizen.

7. Loss of the status as a permanent resident

A permanent resident of the Hong Kong Special Administrative Region loses the status of such resident only if—

(a) being a person falling within the category in paragraph 2(d) or (e) has been absent from Hong Kong for a continuous period of not less than 36 months since he ceased to have ordinarily resided in Hong Kong; or

(b) being a person falling within the category in paragraph 2(f), has been absent from Hong Kong for a continuous period of not less than 36 months after he obtained the right of abode in any place other than Hong Kong and has ceased to have ordinarily resided in Hong Kong.”[78]

Interpreting statutory language

72.  As the applicant’s constitutional challenge turns on interpreting statutory language, it is appropriate to note that courts when interpreting statutes approach the task by construing the statutory language having regard to its context and purpose. 

73.  The approach was explained in HKSAR v Cheung Kwun Yin,[79] where Li CJ said:

“12. The modern approach is to adopt a purposive interpretation. The statutory language is construed, having regard to its context and purpose. Words are given their natural and ordinary meaning unless the context or purpose points to a different meaning. Context and purpose are considered when interpreting the words used and not only when an ambiguity may be thought to arise. In HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at p.606E, Sir Anthony Mason NPJ stated:

The modern approach to statutory interpretation insists that context and purpose be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity may be thought to arise.

See also Medical Council of Hong Kong v Chow Siu Shek (2000) 3 HKCFAR 144 at p.154B-C. …”

74.  Fok PJ in HKSAR v Fugro Geotechnical Services Ltd[80] further explained that:

“22. When it is said that context is the starting point, together with purpose, in statutory interpretation, that is not to say that one puts the words being construed to one side. On the contrary, since contextual and purposive construction is a tool or aid to assist a court in arriving at an interpretation that gives effect to the legislative intention, one must always have regard to the particular words used by the legislature in expressing its will. A court cannot attribute to a statutory provision a meaning which the language of the statute, understood in the light of its context and the statutory purpose, is incapable of bearing. For that reason, one must necessarily look to the statutory language to see what meaning or meanings it is capable of bearing.”

75.  From all of this, it is well recognised that the proper starting point in statutory interpretation is to look at the relevant words or provisions having regard to their context and purpose.  This requires considering the context and purpose in the first instance and not at some later stage when ambiguity may be thought to arise. 

76.  It is also important to bear in mind that in approaching the constitutional provisions which define the class and status of a person in Hong Kong, obviously the express language actually used is an important consideration.  This was emphasised by Li CJ in Ng Ka Ling & Others v Director of Immigration,[81] when addressing one of the categories in BL 24(2) at 29B-C:

“However, when interpreting the provisions that define the class of Hong Kong residents, including in particular the class of permanent residents (as opposed to the constitutional guarantees of their rights and freedoms), the courts should simply consider the language in the light of any ascertainable purpose and the context.”

77.  Also in Tam Nga Yin v The Director of Immigration,[82] when similarly addressing one of the categories in BL 24(2), the majority of the Court of Final Appeal noted at 258E-G:

“Once the courts conclude that the meaning of the text when construed in the light of its context and purpose is clear, the courts are bound to give effect to the clear meaning of the language. The meaning of the language is clear if it is free from ambiguity, that is, it is not reasonably capable of sustaining competing alternative interpretations.”

The applicant’s status prior to 1 July 1997

78.  As a result of the applicant’s birth in Hong Kong on 27 February 1981, he was a citizen of the United Kingdom and Colonies under section 4 of the British Nationality Act 1948 (the 1948 Act).[83] Section 1 of the 1948 Act provides that a citizen of the United Kingdom and Colonies is a British subject.  Accordingly, the applicant was a British subject at the time of his birth in Hong Kong. 

79.  Under section 2 of the 1971 Immigration Ordinance, a “Hong Kong belonger” meant, amongst other things, “a British subject who was born in Hong Kong”.  Accordingly, the applicant was therefore a Hong Kong belonger.  He enjoyed the right to land in Hong Kong, was free from conditions of stay, and no removal order or deportation order could be made against him.[84]

80.  On 1 January 1983, the British Nationality Act 1981 (the 1981 Act) and the amendments to the 1982 Immigration Ordinance[85] both came into operation. 

81.  The 1981 Act introduced, amongst other things, a new class of citizenship known as British Dependent Territories citizen.  As provided by section 23(1)(a) of the 1981 Act, the applicant, being a citizen of the United Kingdom and Colonies who had such citizenship by his birth in a dependent territory became a British Dependent Territories citizen on 1 January 1983.[86]

82.  Under the 1982 Immigration Ordinance, the definition of Hong Kong belonger under section 2(1) was deleted and substituted by a new definition.  A schedule was added to the Ordinance, the First Schedule, which defined 8 categories of persons who were Hong Kong belongers under section 2(1) of the Ordinance.  A British subject who was born in Hong Kong before 1 January 1983 remained a Hong Kong belonger under section 2(1)(a)(i).  As the applicant was born in Hong Kong in 1981, he continued to be a Hong Kong belonger and enjoyed the right to land in Hong Kong, and was free of immigration restrictions.[87] 

83.  On 1 July 1987, the definition of “Hong Kong belonger” under section 2(1) of and the First Schedule to the 1982 Immigration Ordinance was deleted and substituted by “Hong Kong permanent resident” in accordance with the 1987 Immigration Ordinance.[88] “Hong Kong permanent resident” was defined as “a person who belongs to a class or description of persons specified in the First Schedule”.  The 8 categories of Hong Kong belongers in the First Schedule of the 1982 Immigration Ordinance were deleted and substituted by 3 categories of HKPR.  The amendments to the 1987 Immigration Ordinance, consisted of an amendment to section 2, the addition of section 2A and the replacement of the First Schedule.  The relevant category of HKPR in the applicant’s case was paragraph 2(a) of the First Schedule which stipulated that “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 as having a connection with Hong Kong”.[89]

84.  Accordingly, the applicant was a British Dependent Territories citizen pursuant to section 23(1)(a) of the 1981 Act and by virtue of his birth in Hong Kong in 1981, he was taken to have a connection with Hong Kong under Article 2(1)(a) of the Hong Kong (British Nationality) Order 1986, which provided that a person should be taken to have a connection with Hong Kong if he was born in Hong Kong.  The applicant was therefore a HKPR under section 2(1) read together with paragraph 2(a) of the First Schedule to the 1987 Immigration Ordinance.[90] The addition of section 2A under Part IA of the 1987 Immigration Ordinance provided that a HKPR enjoyed the right of abode in Hong Kong. 

85.  It is not in dispute that the applicant was a Hong Kong belonger and later on a HKPR in Hong Kong prior to 1 July 1997, but as we will see in the discussion to follow, he had to qualify to be a HKPR in the HKSAR on or after 1 July 1997. 

The main argument

86.  In the course of submissions before the Court, it became apparent that the applicant’s case centres primarily on establishing that BL 24(2) is not exhaustive of the categories of HKPR in the HKSAR.  As a consequence, the submissions focused on:

(1) whether BL 24(2) is or is not exhaustive of the categories of HKPR in the HKSAR, although the applicant relied on a wide interpretation of BL 24(1);

(2) whether the applicant had dual right of abode in Hong Kong prior to 1 July 1997;

(3) whether the applicant’s dual right of abode was carried over into the HKSAR by BL 160 and section 23 of the IGCO; and

(4) whether the right of abode acquired under section 2A of the 1987 Immigration Ordinance was adopted by BL 160 into the laws of the HKSAR.

The applicant’s submissions

87.  Mr Robert SK Lee, SC,[91] for the applicant, submits that the applicant as from 1987 enjoyed dual right of abode in Hong Kong as a Hong Kong belonger since 1981 and a Hong Kong permanent resident since 1987, and there was nothing before or after 1 July 1997 that extinguished or diminished such rights of abode that he had acquired.  He submits that the Basic Law permits more than one source of right of abode in the HKSAR and that with the change of sovereignty a former right of abode continued by BL 160, or by section 23 of the IGCO. 

88.  He also submits that there is a third source of conferment of right of abode to the applicant under section 2A of the Immigration Ordinance, which provided that a HKPR enjoyed the right of abode in Hong Kong.  He argues that as the applicant was previously a HKPR and section 2A was adopted as law of the HKSAR by BL 160, he had right of abode in the HKSAR under this section, in addition to such right as conferred by BL 24(2).

89.  It is on the basis that the applicant had dual right of abode which carried forward that Mr Lee challenges the validity of paragraphs 6 and 7 of Schedule 1 to the Immigration Ordinance. He submits that paragraph 6 does not apply to the applicant’s right of abode under the status of Hong Kong belonger and that paragraph 7 applies to permanent residents of the HKSAR as defined under BL 24(2), but does not apply to the applicant as a Hong Kong permanent resident, a status that he acquired prior to 1 July 1997.  He submits, however, that in the event that paragraphs 6 and 7 extinguish or diminish such right, that they are unconstitutional.

90.  Mr Lee argues that the true issue before the Court is the meaning and effect of BL 24(1) and not BL 24(2) as argued by the respondent.  He submits that BL 24(1) permits other possible sources of right of abode for relevant “Hong Kong residents”.  He points to the wording of BL 24(1) which he contends provides for a broad and inclusive concept of Hong Kong residents as evidenced by the language used of Hong Kong residents “shall include permanent residents and non-permanent residents” (Emphasis added). 

91.  Mr Lee places great store on the phrase “shall include” in BL 24(1).  He relied on Lord Hoffmann NPJ’s explanation in Penny’s Bay Investment Co Ltd v Director of Lands,[92] that when a legislative draftsman say that a term shall “include” something, it means that in addition to the term having its ordinary, conventional meaning, it shall be deemed also to cover other things which might not be regarded as coming within that meaning.  Following this explanation, he argues that BL 24 envisages other categories of Hong Kong residents other than the two categories mentioned. 

92.  It is on this basis that Mr Lee contends that BL 24 does not provide that the enjoyment of right of abode is exclusive to the categories of permanent residents as specified in BL 24(2) and that there can be other categories of Hong Kong residents who may also enjoy right of abode.  He goes as far as to submit that BL 24 is open ended. 

93.  He does not seem to dispute that BL 24(2) exhausts all categories of permanent residents in the HKSAR.  His point is that the Basic Law does not provide that right of abode is dependent on permanent resident status only.  He notes that the authorities relied on by the respondent deal with BL 24(2) and not BL 24(1) which he says is a new issue not previously covered by immigration cases.  He falls back on the language of BL 24(1) and of the expression “shall include”, which he argues seeks to preserve different previously acquired rights including right of abode of relevant Hong Kong residents.  He argues that there is nothing in the Basic Law or elsewhere to require that these right of abode holders must also fit into one or more of the six categories of permanent residents in BL 24(2).  He says such an example is a British National (Overseas) (BN(O)) passport holder with a right of abode endorsement as provided by section 3A of the Registration of Persons Ordinance, Cap 177.  He suggests that BN(O) passport holders, who may not fall within BL 24, are entitled to right of abode in the HKSAR as set out in the endorsement on the passport which states that the holder has right of abode in Hong Kong. 

94.  This submission ignores that BL 24(2) defines the status of permanent residents using the phrase “shall be” when listing the six categories of persons who qualify for such status and that BL 24(3) provides that such permanent residents “shall have” right of abode.  There is no other reference in the Basic Law conferring the right of abode to anyone else.  In contrast, BL 24(4) provides that non-permanent residents “shall be” persons who qualify to obtain a Hong Kong Identity Card but have no right of abode.

95.  Mr Lee also contends that the transition scheme under the Basic Law confirmed the applicant’s right of abode in the HKSAR.  He relies on BL 160 and section 23 of the IGCO to support this contention. 

96.  As confirmed by the Director in his letter of 1 December 2000, the applicant had right of abode prior to 1 July 1997, which Mr Lee contends did not end, nor was it extinguished, by BL 24(2).  He argues that there are two bases to support his argument. 

97.  First, BL 160 encapsulates the spirit of continuity and guaranteed that the rights and obligations valid under laws previously in force would continue.  Such a right was the right of abode. 

98.  Secondly, section 23 of the IGCO provides that notwithstanding the repealing of legislation, the right existing under that legislation continues.  Section 23 provides:

“Where an Ordinance repeals in whole or in part any other Ordinance, the repeal shall not-

(a) revive anything not in force or existing at the time at which the repeal takes effect;

(b) affect the previous operation of any Ordinance so repealed or anything duly done or suffered under any Ordinance so repealed;

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any Ordinance so repealed;

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any Ordinance so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Ordinance had not been passed.” (Emphasis added)

99.  Mr Lee refers to the 1987 Immigration Ordinance where the previous First Schedule was deleted and replaced by a new First Schedule.  The previous First Schedule related to a Hong Kong belonger and was replaced by a new schedule which brought in the concept of a HKPR.  He argues that by the application of section 23(c), the right of abode that was with a Hong Kong belonger continued notwithstanding it had been repealed by the 1987 Immigration Ordinance.  Similarly, he argues that the right of abode that was with a HKPR under the 1987 Immigration Ordinance also continued.

100.  Mr Lee submits that the applicant had dual right of abode which carried forward by his previous statuses as a Hong Kong belonger and a HKPR, as well as right of abode conferred on him by section 2A of the Immigration Ordinance, which states that a HKPR enjoys the right of abode in Hong Kong.

101.  On the argument as to the validity of paragraphs 6 and 7 of Schedule 1 to the Immigration Ordinance, Mr Lee notes that the Director had rejected the claim of right of abode by the applicant because of his failure to meet certain conditions.  He argues this was a fundamental flaw of paragraph 6 as it did not permit other sources of right of abode in the HKSAR, namely, previously acquired right of abode that had not been extinguished by the Basic Law and continued through the transitional provisions of the Basic Law.  He says that the failure of the Director to acknowledge that a person may have a right of abode other than as provided for under BL 24(2) was wrong.  To this extent, he contends that paragraph 6 is unconstitutional. 

102.  Mr Lee applies the same argument to paragraph 7 on the basis that if the Court decided that the applicant had right of abode in the HKSAR then the application of that paragraph to the applicant’s case is unconstitutional. 

103.  The challenge to paragraphs 6 and 7 starts and ends with an interpretation of BL 24.  Mr Lee submits that BL 24 is not exhaustive of the categories of persons entitled to right of abode, and in support of his argument he relies on a wide interpretation of BL 24(1). 

104.  I do not agree with these submissions as will become apparent in the discussion to follow. 

Discussion

105.  The main argument of the applicant’s case is that he has dual right of abode prior to 1 July 1997 which carried forward after the change of sovereignty and was not extinguished by the confined categories for right of abode under BL 24(2).

106.  The respondent rejects the applicant’s claim that he has right of abode in the HKSAR under some residual status outside BL 24(2). 

107.  In addressing the applicant’s submissions, it is appropriate to note the following key factors.  The applicant was born in Hong Kong and has been a Nepalese national since birth. He was a Hong Kong belonger and later a HKPR under the then prevailing law before 1 July 1997.  He departed Hong Kong in 1985 and returned on 29 August 2000.  He was away from Hong Kong for about 15 years.  He submitted an application for VEPIC on 2 September 2000 which was rejected by the Director on 1 December 2000.  

108.  Mr Johnny Mok, SC,[93] for the respondent, submits that the applicant failed to qualify as a Hong Kong permanent resident with right of abode in the HKSAR for the following reasons.  First, he did not qualify for right of abode under BL 24(2)(4) at the time of his application for VEPIC, since he did not have 7 years’ continuous ordinary residence in Hong Kong.  Secondly, he would not have qualified if he were to apply now, since the 7 years’ continuous residence is broken by his various periods of imprisonment under section 2(4)(b) of the Immigration Ordinance.  Thirdly, he does not qualify under BL 24(2)(6) since he also had the right of abode in Nepal prior to 1 July 1997.  Fourthly, he did not qualify under other categories of persons defined in BL 24(2).

Interpretation of BL 24

109.  As correctly noted by Mr Mok, the applicant’s case turns on establishing that BL 24(2) is not exhaustive of the categories of HKPR in the HKSAR.  He argues that this contention is plainly contrary to the express language of BL 24, as well as the established authorities on this subject.  He advances four reasons why the applicant’s contention is wrong.

110.  The first reason is that, as a matter of constitutional interpretation, the relevant words in BL 24(2), having regard to their constitutional context and purpose, do not support the applicant’s contention.  In this regard, Mr Mok notes that BL 24 is found in Chapter III of the Basic Law, which concerns “Fundamental Rights and Duties of the Residents” and is the first article under the Chapter which defines what is meant by the expression “the Residents”.  BL 24 is the constitutional code for this purpose and each of the sub-articles of BL 24 are framed with this purpose in mind.  BL 24(1) deals with categories of “Hong Kong residents” which “shall include permanent residents and non-permanent residents”.  BL 24(2) deals with the categories of “permanent residents” of the HKSAR which “shall be” the six categories as listed.  BL 24(3) spells out the fundamental rights of the permanent residents, that is, the right of abode plus the entitlement to obtain “permanent identity cards which state their right of abode”.  BL 24(4) spells out the fundamental rights of the non-permanent residents, that is, the entitlement to obtain “Hong Kong identity cards” but having no right of abode. 

111.  It is noted that in its textual context, BL 24(2) is categorised by the choice of phrase “shall be”. On this point, Mr Mok argues that “shall be” does not mean “shall include” and therefore has a mandatory and exhaustive meaning.  The six categories are therefore clearly meant to be exhaustive.  He adds that BL 24(3) and BL 24(4) underscore the substantive difference in the fundamental rights accorded to the six categories of residents listed in BL 24(2), as opposed to those not listed.  He makes the point that this purpose reinforces the distinctive character of the list in BL 24(2), namely, that it is not an inclusive list but a fixed and specified one. 

112.  The specific character of BL 24 is also consistent with the exhaustive nature of BL 24(2).  In Director of Immigration v Chong Fung Yuen,[94] Stock J (as he then was) made this abundantly clear at 371G-372A:

“The contextual framework for any interpretation of the Basic Law must begin with a text of the Basic Law itself. Whilst the Basic Law uses ‘ample and general language’, and is ‘a living instrument intended to meet changing needs and circumstances’ (Ng Ka Ling, at 339J), and though a literal, technical, narrow or rigid approach is to be avoided, any question of interpretation is question specific, and it seems to me that art 24 has a character of its own in the context of the Basic Law. By that I mean that it is self-evidently intended to be more specific than other articles which provide for broadly stated rights; rights which fall to be considered amongst a vast panoply of different factual contexts, and against competing duties and necessities to which the courts in assessing the limits of those rights must have regard. Article 24 defines, and is intended to define, those who will have the right of abode in the Hong Kong Special Administrative Region, a subject which by its very nature requires much greater precision than many of the other articles. This is evident too from the degree to which the categories within art 24 have in fact been defined. Deliberate and clear distinctions are drawn between Chinese nationals and non-Chinese nationals; and Chinese nationals qualify for permanent resident status in some circumstances in which non-Chinese nationals do not ...” (Emphasis added)

113.  Stock J went on to explain that the instrument self-defined who was to have the status of permanent resident.  He said at 377B-C:

“The Basic Law, in art 24, is not some generalisation to future legislatures as to the path that might be taken. It is a constitutional bedrock conferring rights, from which rights there was to be no derogation. The instrument itself defined who was to have the status of permanent resident. That is not to say that there was left no room for particularisation or clarification, properly so-called. …”

114.  I agree with these submissions.  In my view, BL 24(2) is exhaustive of the categories of HKPR in the HKSAR and the reference to “the above-mentioned residents” in BL 24(3) is a reference to the residents within these categories who shall have the right of abode in the HKSAR.  The Basic Law does not provide for the entitlement of right of abode to anyone else, and specifically excludes that right to non-permanent residents of the HKSAR. 

115.  The second reason is that the Court of Final Appeal in Director of Immigration v Chong Fung Yuen[95] held that BL 24(2) was limited to the persons defined therein.  Li CJ, giving the judgment of the Court, explained at 231F-G:

“Article 24(2) defines the persons who are permanent residents of the HKSAR and art.24(3) confers on them the right of abode. So the purpose of art.24(2) taken together with art.24(3) is to confer the right of abode on the persons defined to be the permanent residents of the HKSAR. By the definition, certain persons are included. Those not included would be excluded and in this sense, the purpose of art.24(2) can be said to be to limit the persons who are permanent residents of the HKSAR and hence its population.”

116.  This was reiterated by the majority of the Court of Final Appeal in Tam Nga Yin v The Director of Immigration at 258G-H:[96]

“As pointed out in Chong Fung Yuen (sec.8.2), the purpose of art.24(2) taken together with art.24(3) is to confer the right of abode on the persons defined to be the permanent residents of the HKSAR. Certain persons are included and this necessarily means that those not included are excluded. In this sense, it can be said that the purpose of art.24(2) is to limit the persons who are permanent residents of the HKSAR and hence its population.”

117.  Mr Mok argues that on the clear understanding of the authorities, BL 24(2) is to limit the persons who are HKPRs and accordingly the categories as defined by the article are closed.

118.  Although the comments of the Court of Final Appeal in these cases are obiter dicta (comments said in passing), they nevertheless provide persuasive authority and were made against the background of the changes to the definition of a permanent resident of the HKSAR as reflected in the relevant legislation and the Decision of the Standing Committee of the NPC.  The authorities confirm that BL 24(2) and (3) confer the right of abode on persons defined to be the permanent residents of the HKSAR.[97] 

119.  The third reason is that the six categories of HKPR in BL 24(2) coincide with the categories of individuals identified in the Joint Declaration as being permanent residents in the HKSAR enjoying the right of abode.[98]

120.  Mr Mok notes that the legislative history of BL 24 does not assist the applicant in his argument as he has sought to use.  He argues that the Basic Law has already been enacted and promulgated, and the Court should focus on interpreting the words actually used in the promulgated version.  The legislative history is only relevant to the extent that the express words used, having regard to the context and the purpose of the provision, fail to clearly identify their meaning which is not the case in this instance.  The legislative history relied upon by the applicant revisits the use of the phrase “shall include” which has been supplanted by “shall be”.[99]

121.  I agree with Mr Mok’s submission.  The attempt by the applicant to rely on the legislative history of BL24 does not support his case.  In fact, the legislative history as already discussed reveals that BL 24 was intended to define exhaustively fixed categories of HKPR that would have right of abode in HKSAR.

122.  The fourth reason is that the other category of HKPR as illustrated by the applicant, namely, holders of the BN(O) passports is not valid and not supported by what is stated in the Legislative Council Brief dated 1 April 1987.[100] 

123.  The applicant refers to the inclusion of an endorsement in a BN(O) passport to be issued which was set out in the Legislative Council Brief as follows:

“The holder of this passport (or Certificate of Identity) has Hong Kong permanent identity card number (XYZ) which states that the holder has the right of abode in Hong Kong.”[101]

124.  However, the right of abode referred to in the endorsement is not derived from the BN(O) passport, but from the fact that the holder of the passport is in his or her own right a HKPR under the existing law.  That entitlement either survived the change of sovereignty through one of the categories in BL 24(2), or fell away because it was not accommodated in any of those categories.  Hence, there is no separate category of HKPR with right of abode in the HKSAR arising from being a holder of a BN(O) passport.

125.  The endorsement followed the amendments to the 1987 Immigration Ordinance, which as explained in the Legislative Council Brief, were to introduce a new concept of right of abode in Hong Kong so that, with such endorsement on the BN(O) passport, the passport would become an acceptable travel document.  It was also explained that from 1 July 1997, not all persons who have the right of abode in Hong Kong prior to that date would automatically retain such right of abode in the HKSAR, or they would have to satisfy the relevant requirements in section XIV of Annex 1 to the Joint Declaration.[102]

126.  Mr Mok points out that the Legislative Council Brief addressed the question of a BN(O) passport in 1987 and why it was necessary to amend the Immigration Ordinance to introduce the concept of right of abode.  He argues that it did not seek to address the categories of HKPR in the HKSAR to be established.  He also argues that a BN(O) passport is issued by the government of the United Kingdom and through its relevant legislation, and not the HKSAR.  Put simply, he submits that the act of a foreign state cannot confer right of abode in the HKSAR. 

127.  Mr Lee also relies on section 3A of the Registration of Persons Ordinance, Cap 177, which provides that a person who enjoys the right of abode in Hong Kong may apply in accordance with the relevant regulations for a permanent identity card to be issued to him, if such permanent identity card is required by the applicant for a HKSAR passport or a certificate of identity.  This provision was introduced as part of a package of legislative amendments in 1987 and explained in the Legislative Council Brief.  This was necessary because of the anticipated issue of BN(O) passports and the certificate of identity which needed to be endorsed that the holder has the right of abode in Hong Kong for travel purposes, in light of the concept of right of abode being introduced by the amendments to the Immigration Ordinance in 1987. 

128.  Section 3A was the enabling provision to allow a person who enjoys the right of abode to obtain permanent identity cards as part of a statutory framework that had been established for a new identity card replacement programme because such identity card was required by a person when applying for a BN(O) passport or certificate of identity.  This provision was enacted for the purpose of providing a travel document and did not confer on the holder of the new permanent identity card any continuance of the right of abode as from 1 July 1997.[103]

129.  The reliance by the applicant on the endorsement of the right of abode in Hong Kong in a BN(O) passport is misplaced because it confers no additional or separate right of abode to the holder of the passport.  It simply evidences that such a person had the right of abode at the time he applied for the passport that warranted the inclusion of the endorsement. 

Right of abode under BL 24

130.  An examination of the Basic Law reveals that BL 24 has a character of its own and is more specific in its terms and scope than other articles which provide for broadly stated rights.  By its very nature, BL 24 is intended to define those who have the right of abode in the HKSAR which requires greater precision and specificity than many of the other articles.  This is evident by the categories of persons under BL 24(2) that derive the entitlement of being a permanent resident.[104] 

131.  By BL 24(1), the residents of the HKSAR are defined as including permanent residents and non-permanent residents.  BL 24(2) provides that permanent residents shall be the six categories of persons that are set out from (1) to (6).  BL 24(3) provides that permanent residents shall have the right of abode in Hong Kong and shall be qualified to obtain, in accordance with the laws of the HKSAR, permanent identity cards which state their right of abode.  BL 24(4) provides that non-permanent residents shall be persons who are qualified to obtain Hong Kong identity cards in accordance with the laws of the HKSAR but have no right of abode.  To qualify as a HKPR in the HKSAR a person must come under one of the six categories. 

132.  Under the 1997 Immigration Ordinance, a Hong Kong permanent resident enjoys the right of abode in Hong Kong.  This is provided by section 2A which states that a permanent resident enjoys the right of abode in Hong Kong, namely (a) the right to land in Hong Kong; (b) to be free from any condition of stay in Hong Kong; (c) not to be deported from Hong Kong; and (d) not to be removed from Hong Kong.  A Hong Kong permanent resident means a person who belongs to a class or description of persons specified in Schedule 1 to the 1997 Immigration Ordinance.  This follows and is consistent with BL 24.

133.  Schedule 1 to the 1997 Immigration Ordinance replaced the previous Schedule 1 to the 1987 Immigration Ordinance,[105] which was repealed by section 5 of the Immigration (Amendment) (No. 2) Ordinance, 1997.  It also added by section 3, section 7A which specifically addressed the status of former Hong Kong permanent residents.  The section reads:

“7A. Former Hong Kong permanent residents

(1) Subject to subsection (2), a person who had the right of abode in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region but who loses the right after the establishment of the Hong Kong Special Administrative Region has the right -

(a) to land in Hong Kong;

(b) not to have imposed upon him any condition of stay in Hong Kong which may include a limit of stay, and any condition of stay that is imposed has no effect; and

(c) not to have a removal order made against him.

(2) If a deportation order is made against the person, the right to land under subsection (1) ceases while the deportation order is in force.”[106]

134.  Mr Mok argues that regardless of the previous position, the fact is that since 1 July 1997 and the taking effect of the Basic Law, BL 24(2) exclusively defines who is entitled to have HKPR enjoying right of abode in the HKSAR.  He submits that the applicant’s argument fails because it presupposes a category of HKPR with right of abode lying outwith the framework of BL 24.

135.  I agree with the submissions of the respondent.  It is clear in my view, by the wording, purpose and context of BL 24, that it exhaustively defines permanent resident by its six categorisations in BL 24(2) who only have right of abode in the HKSAR as provided by BL 24(3).

Dual right of abode

136.  I now turn to consider the applicant’s argument that as from 1987, by reason of the 1987 amendments, he enjoyed dual right of abode, namely, (i) as a HKPR with right of abode status acquired by reason of his former status as a “Hong Kong Belonger”, arising because he was a “British subject born in Hong Kong”, pursuant to the Immigration Ordinance then in force in 1971 and 1983; and (ii) as a HKPR with right of abode status acquired by reason of his former status as a British Dependent Territories citizen which separately qualified him for HKPR under the 1987 amendments. 

137.  In response to this argument, the respondent points out that the 1987 amendments merely replaced the previous categories of Hong Kong residents with a single concept of a HKPR. As a consequence, the rights previously attached to the Hong Kong belonger continued under this new HKPR status and a HK belonger and a British Dependent Territories citizen were different categories under the concept of a HKPR whereby the applicant could qualify, but whichever category used by the applicant, he could only qualify for one unitary HKPR status.  I agree, as it was clearly the case that the changes to the Immigration Ordinance sought to create the one unitary HKPR status. 

138.  From the various editions of the Immigration Ordinance, the 1987 amendments were intended to replace the previous varied statuses with a single status of HKPR.  The 1980 Immigration Ordinance only conferred the right to land in Hong Kong to three categories of persons, including a Hong Kong belonger.[107] It was defined as including a “British subject who was born in Hong Kong”.  The 1982 Immigration Ordinance amended the definition of a Hong Kong belonger,[108] so that other than “British subjects who was born in Hong Kong”, a British Dependent Territories citizen would also qualify as a Hong Kong belonger. 

139.  This was still the same status, namely, Hong Kong belonger, even though there was more than one way by which the applicant could qualify for such status.  In any event, the rights of a Hong Kong belonger continued to be defined by section 8 of the 1982 Immigration Ordinance.  By the 1987 amendments, a number of significant changes were made.  The changes addressed the different statuses, including the removal of the concept of a Hong Kong belonger and the creation of a new concept of a HKPR[109] which by its definition encompassed and overlapped to some extent the previous different statuses. Under the new definition of a HKPR, the applicant could qualify by being a British Dependent Territories citizen.  The applicant’s previous status as a “British subject who was born in Hong Kong” was no longer recognised under the Immigration Ordinance whether as a HKPR or the more limited right to land.[110] Those who qualified for the new HKPR status would have the right of abode as defined in section 2A of the 1987 Immigration Ordinance.[111]

140.  The applicant does not have dual right of abode as he claims.  His former rights as a Hong Kong belonger had, as from 1 July 1987 (the effective date of the 1987 amendments), been subsumed under his right of abode enjoyed as a HKPR, and therefore he only had one status, namely that of a HKPR.  This was prior to 1 July 1997 and he was therefore subject to the new constitutional and legislative changes that came into effect on 1 July 1997.

Reliance on BL 160

141.  The twist in the applicant’s case is that his right of abode enjoyed as a HKPR prior to 1 July 1997 was not affected by the non-adoption of the previous Schedule 1 to the Immigration Ordinance by the Standing Committee of the NPC pursuant to BL 160 because his right of abode was a right valid under section 23 of the IGCO, which was a “law previously in force”, as well as a law in force in the HKSAR. He further argues that the section would have carried forward his properly acquired right to enjoy a right of abode to, and continue their legal effects, in HKSAR, even when the original legal provisions conferring the right had been repealed. 

142.  In addressing this argument, it is necessary to note how laws that contravene the Basic Law were or are to be handled upon the change of sovereignty. 

143.  Of laws enacted by the legislature, BL 11(2) provides that no law enacted by the legislature shall contravene the Basic Law.[112]

144.  Of laws previously in force, there are two articles that address this matter.  BL 8 provides that the laws previously in force in Hong Kong shall be maintained, except for any that contravene the Basic Law and subject to any amendment by the legislature of the HKSAR.  BL 160(1) provides that the laws previously in force shall be adopted, except for those which the Standing Committee of the NPC declares to be in contravention of the Basic Law, and if any laws are later discovered to be in contravention of the Basic Law, they shall be amended or cease to have force in accordance with the procedure as prescribed by the Basic Law. 

145.  The Standing Committee of the NPC by Decision dated 23 February 1997, made pursuant to BL 8 and BL 160, declared that the definition of “Hong Kong permanent resident” in section 2 and the provisions relating to “Hong Kong permanent residents” in Schedule 1 to the 1987 Immigration Ordinance,[113] and any provision giving effect to the British Nationality Act as applied in Hong Kong,[114] contravened the Basic Law and are not adopted as the laws of the HKSAR.[115] 

146.  The effect of the Standing Committee’s Decision is as stated under BL 160(2) that the rights and obligations under the laws previously in force in Hong Kong would not continue to be valid and be recognised and protected by the HKSAR if they contravened the Basic Law.  Thus, the definition of a HKPR and the entitlement to right of abode under the 1987 Immigration Ordinance were invalidated and not adopted as law of the HKSAR.

147.  The applicant relies on section 23 of the IGCO, which provides that where an Ordinance repeals in whole or in part any other Ordinance, the repeal shall not, amongst other things, affect any right, privilege, obligation or liability acquired, accrued or incurred under any Ordinance so repealed. 

148.  However, as rightly pointed out by the respondent, under section 2(1) of the Ordinance, such provision is applicable except “where the contrary intention appears either from this Ordinance or from the context of any other Ordinance or instrument”.

149.  In the present case, section 23 is inapplicable in light of the context of other Ordinance or instrument, namely BL 8 and BL 160, the Decision dated 23 February 1997 of the Standing Committee of the NPC and the amendments to the Immigration Ordinance in 1997. 

150.  Under section 3 of the IGCO, “Ordinance” means (a) any Ordinance enacted by the Legislative Council (Legislative Council means the Legislative Council of the HKSAR and the Provisional Legislative Council during its existence); (b) any Ordinance adopted by virtue of Article 160 of the Basic Law as a law of the HKSAR; (c) any subsidiary legislation made under any such Ordinance except any such subsidiary legislation which has pursuant to Article 160 of the Basic Law been declared to be in contravention of the Basic Law; and (d) any provision or provisions of any such Ordinance or subsidiary legislation.  “Instrument” includes any publication in the Gazette having legal effect. 

151.  I agree with the respondent that the “contrary intention” is amply displayed in the following ways. 

152.  BL 8 and BL 160 expressly prohibit the continuation of the laws previously in force in Hong Kong which contravene the Basic Law.  BL 160 specifically provides that laws previously in force shall be adopted as the laws of the HKSAR except for those which the Standing Committee of the NPC declares to be in contravention of the Basic Law. 

153.  The Standing Committee’s Decision dated 23 February 1997 expressly declared that the definition of a HKPR and the provisions in Schedule 1 to the 1987 Immigration Ordinance contravene the Basic Law and are not adopted as the laws of the HKSAR.  Accordingly, the definition and provisions were invalid as a matter of law.[116]

154.  BL 24(2) exhaustively defines the six categories of a HKPR in the HKSAR and BL 24(3) confers the right of abode on them and them alone.  This being the effect of BL 24, the respondent argues that there is no room for applying section 23 in such a way as to confer on persons who do not come within the six categories the right of abode. 

155.  The amendments to the 1997 Immigration Ordinance repealed the former Schedule 1 and the classes of HKPRs as defined and substituted with a new Schedule 1 which set out the six categories of HKPRs of the HKSAR.  It also introduced a new section 7A to cater for the rights of former HKPRs.[117] As noted, this provision provides that former permanent residents have the right to land in Hong Kong, not to have imposed upon them any condition of stay and not to have a removal order made against them.  However, in contrast to HKPRs, such residents can have a deportation order made against them.[118] 

156.  In short, a contrary intention appears from the context of BL 24 as read in conjunction with the Standing Committee’s Decision, which plainly indicate an intention that the right of abode previously enjoyed in Hong Kong by a person as a HKPR under section 2 and Schedule 1 to the Immigration Ordinance in force before 1 July 1997 could not, by reason of such provision, continue to enjoy right of abode in the HKSAR. 

157.  The reliance by the applicant on BL 160 is misconceived as the rights in question were conferred under provisions of the Immigration Ordinance that contravened the Basic Law which did not continue under the terms of BL 160(2). 

Reliance on section 2A

158.  The applicant submits that a right of abode also conferred on him by section 2A which provides that “a Hong Kong permanent resident enjoys the right of abode in Hong Kong”.  He argues that the effect of section 2A is that any HKPR is to enjoy the right of abode in the HKSAR.  He submits that this is a reference to former HKPRs and as section 2A was adopted as part of the laws of the HKSAR by BL 160, the continuity of enjoyment of right of abode by former HKPRs was preserved.

159.  As rightly pointed out by the respondent, this argument ignores the fact that the term “Hong Kong permanent residents” is expressly defined in Schedule 1 to the 1997 Immigration Ordinance, which reflects the six categories in BL 24(2). 

160.  The applicant also argues that the definition of “Hong Kong permanent resident” in the 1997 Immigration Ordinance imports the same definition as contained in the 1987 Immigration Ordinance.  This argument is fallacious.  The 1987 Immigration Ordinance definition of “Hong Kong permanent resident” is defined by reference to the First Schedule (to the 1987 Immigration Ordinance), whereas the definition in the 1997 Immigration Ordinance is defined by reference to Schedule 1 (to the 1997 Immigration Ordinance).  Clearly, the definitions are not the same and are based on different categorisations as contained in their respective schedules. 

Paragraphs 6 and 7 of Schedule 1

161.  There remains the purported challenge by the applicant to paragraphs 6 and 7 of Schedule 1.  The position taken by the applicant is that the paragraphs do not apply to him because he has right of abode in the HKSAR outside BL 24(2). 

162.  As I have explained, in my view, and as clearly established by the wording of BL 24 and the relevant authorities, the categories of HKPR are the six categories as contained in BL 24(2) and only HKPRs of the HKSAR enjoy the right of abode. 

163.  The applicant argues that paragraph 6 does not apply to him because it does not restrict or deny any former status or right that the applicant claims he still has, and paragraph 7 only applies to those who have the right of abode in the HKSAR and does not apply to him as he has the right of abode that has been carried forward as a result of his previous statuses.

164.  In light of the decision that I have come to in respect of BL 24(2), the applicant’s challenge raises a hypothetical issue which would not be appropriate for this Court to address in the present circumstances.[119]

A Hong Kong permanent resident of the HKSAR

165.  In order for a former HKPR to become a HKPR of the HKSAR, he or she needs to satisfy the requirements set out in the new Schedule 1.  Those requirements followed the scheme in the Joint Declaration and BL 24.  For Chinese persons, they need only be born or ordinarily resided in Hong Kong for a continuous period of 7 years, or they were born outside Hong Kong of such residence.  For non-Chinese persons, they need to have ordinarily resided in Hong Kong for a continuous period of 7 years and have taken Hong Kong as their place of permanent residence, or they are under 21 years old born in Hong Kong of such residence.  For other persons who had the right of abode before 1 July 1997, they need to have the right of abode only in Hong Kong before such date and nowhere else. 

166.  This was made abundantly clear in the Legislative Council Brief for the amendments to the 1987 Immigration Ordinance.[120] It is set out in the Legislative Council Brief that virtually all people who are accorded the right of abode by the amendments to the 1987 Immigration Ordinance would continue to enjoy that right in the HKSAR after 30 June 1997 without having to requalify or having to make any declaration.  The relatively small number of non-Chinese nationals who will not automatically enjoy the right of abode after 30 June 1997 will be able to do so if they take the steps required to satisfy the requirements under Indent 2, that is, if they have ordinarily resided in Hong Kong before or after the establishment of the HKSAR for a continuous period of 7 years or more and have taken Hong Kong as their place of permanent residence.[121] 

167.  The scheme in place for residents of Hong Kong has its origins in the Joint Declaration which is reflected in BL 24.  BL 24 has been the subject of decisions by the courts where its provisions have been interpreted and upheld.  As previously mentioned, the Court of Final Appeal in Chong Fung Yuen, stated that BL 24(2) defines the persons who are permanent residents of the HKSAR and BL 24(3) confers on them the right of abode and that their purpose is to confer the right of abode on the persons defined to be permanent residents of the HKSAR.[122] The Court of Final Appeal repeated these comments in the majority judgment in Tam Nga Yin[123]at 258G-H. 

Delay

168.  The respondent argues that if the true purpose of this judicial review application was to mount a constitutional challenge, this would have been apparent to the applicant’s legal advisers some time ago and the inordinate delay in instituting the present proceedings was “detrimental to good administration”.[124] 

169.  As noted by the respondent, this case was mounted on an interpretation of the Basic Law and relevant statutory provisions, and there was no reason why this matter should not have been raised at the time when the key official decisions were made to refuse the applicant status as a permanent resident of the HKSAR on 1 December 2000 and to issue a deportation order against him on 28 July 2005. 

170.  When the applicant’s arguments were finally settled and unveiled, what appeared at the centre of this application for judicial review was an interpretation of BL 24.  It was the applicant’s case that BL 24(2) is not exhaustive of the categories of HKPR in the HKSAR, but this could have been mounted a long time ago, although it is clearly contrary to the express language of BL 24 as well as the established authorities on this subject which were not mentioned in the Form 86 and at the ex parte hearing. 

171.  I agree with the respondent that there has been substantial and unexplained delay in instituting the present judicial review proceedings which separately constitutes a good reason to dismiss the application.

Conclusion

172.  In my view under the Basic Law, only a Hong Kong permanent resident enjoys the right of abode in the HKSAR.[125] The status of a Hong Kong permanent resident means a person who belongs to a class or description of persons specified in the new Schedule 1 to the Immigration Ordinance.  This new schedule substituted the previous schedule to the 1987 Immigration Ordinance which was repealed by section 5 of the Immigration (Amendment) (No. 2) Ordinance (No. 122 of 1997).  The previous schedule was declared to be in contravention of the Basic Law and is not adopted as the laws of the HKSAR.  It no longer continues to be valid and recognised and protected by the HKSAR.

173.  In order for the applicant to have right of abode in Hong Kong, he needed to qualify as a HKPR in the HKSAR under the current statutory regime. 

174.  For the foregoing reasons, this judicial review application is dismissed.  I have had the benefit of examining the papers in relation to the applicant’s dealings with the various government authorities, spanning a period of some 20 years, and it is clear to me that every effort was made to accommodate and assist the applicant in his various claims and actions.  He was given a number of opportunities to facilitate and redeem his application for residency in Hong Kong, and in this regard no fault can lie with the Director’s handling and treatment of the applicant’s case. 

175.  I have not made an order as to costs and will hear the parties separately on the issue by way of written submissions, if necessary.