COMMISSIONER OF REGISTRATION v. REGISTRATION OF PERSONS TRIBUNAL

HCAL 198/2017

[2018] HKCFI 2173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 198 OF 2017

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J U D G M E N T

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A.      INTRODUCTION

1.  This is the judicial review application of the Commissioner for Registration (“the Commissioner”) to challenge the decision (“the 2017 Tribunal Decision”) of the Registration of Persons Tribunal (“the Tribunal”) made on 10 February 2017.

2.  In the 2017 Tribunal Decision, the Tribunal allowed the appeal (“the Appeal”) of the Interested Party (“Tiffany”) against the Commissioner’s decision of 21 September 2015 in which she refused to grant Tiffany a Hong Kong permanent identity card.

3.  The Commissioner seeks an order of certiorari to quash the 2017 Tribunal Decision.  The Commissioner also seeks an order of mandamus directing the Tribunal to dismiss the Appeal.

4.  As usual, the Tribunal (as the respondent) adopts a neutral stance to the application, and has not taken any steps herein.

5.  After leave to apply for judicial review was granted on 15 August 2017, attempts were made by the Commissioner to effect service on Tiffany at her provided addresses in Hong Kong to no avail.  On 18 December 2017, the court ordered that notice of these proceedings and court papers be served on Tiffany by way of substituted service through email.

6.  Although Tiffany has not responded to the email service nor has she filed any skeleton or evidence in this application, she has appeared at the hearing and opposes the application.

B.      BACKGROUND

B1.    The relevant statutory framework for permanent residency

7.  The statutory framework that relates to the qualifications to be a Hong Kong permanent resident is well-rehearsed.  Relevant for the present purposes, it is as follows.

8.  Article 24 of the Basic Law (“BL24”) states, among others, that:

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

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 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);

…

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.”

9.  This definition of permanent residents in BL24 is implemented in paragraph 2 of Schedule 1 of the Immigration Ordinance (Cap 115) (“the IO”), which insofar as relevant provides as follows:

“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).”

10.  Hence, under paragraph 2(c) of Schedule 1 of the IO (“Paragraph 2(c) of Schedule 1”), a person who is born abroad will be regarded as a Hong Kong permanent resident only if (a) he is a Chinese national; and (b) he is born to a parent who is also a Chinese national and a Hong Kong permanent resident.

11.  Paragraph 1(1) of Schedule 1 defines “Chinese citizen” as a person of Chinese nationality under the Nationality Law of the People’s Republic of China (“the Nationality Law”).

12.  Article 5 of the Nationality Law provides that:

“父母雙方或一方為中國公民，本人出生在外國，具有中國國籍；但父母雙方或一方為中國公民並定居在外國，本人出生時即具有外國國籍的，不具有中國國籍。

(English Translation)

Any person born abroad whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality. But a person whose parents are both Chinese nationals and have both settled abroad, or one of whose parents is a Chinese national and has settled abroad, and who has acquired foreign nationality at birth shall not have Chinese nationality.”

13.  Thus, under Article 5 of the Nationality Law, even if a person (“A”) is born to a parent who is a Chinese national, A would not be regarded as a Chinese national if at the time of A’s birth:

(1)   A’s Chinese national parent has already settled abroad; and

(2)   A has acquired foreign nationality.

14.  In other words, under BL24 and Paragraph 2(c) of Schedule 1, as a matter of law, a person who is born abroad would not be regarded as a permanent resident in Hong Kong if at the time of his birth, his Chinese parent has already settled abroad, and he has acquired foreign nationality.

B2.    Tiffany’s first application to the Commissioner

15.  Tiffany’s father (“Mr Wang”) was born in Mainland China.

16.  Tiffany’s mother (“Ms Boke”) was born in Mainland China.  She was first issued with a Hong Kong Identity Card in November 1963.  It is not disputed that she is a Chinese national and was and remains a Hong Kong permanent resident.

17.  Mr Wang and Ms Boke married in 1967 and moved to the United States in the same year.  Mr Wang and Ms Boke both acquired US citizenship on 23 May 1977.

18.  Tiffany was born in the United States on 13 March 1982 and acquired US citizenship at birth.  On 9 September 1982, about six months after her birth, Tiffany left the United States with her parents and moved to Taiwan.

19.  Tiffany has lived in Taiwan since then.  She renounced her US citizenship on 14 June 2013.

20.  Tiffany applied for Verification of Eligibility for a Permanent Identity Card (“VEPIC”) on 23 July 2013.[1] This was rejected by the Immigration Department by letter dated 17 October 2013.  The Immigration Department was of the view that she did not fall within Paragraph 2(c) of Schedule 1, since she was not a Chinese national as at the time of her birth, she acquired United States nationality and her parents had already settled abroad in the United States.

21.  Notwithstanding that, on 8April 2014, Tiffany applied to the Commissioner for registration of a permanent identity card under the Registration of Persons Regulations (Cap 177A).  The Commissioner refused this application by letter on the same day on the basis that there was insufficient evidence to prove that she had the right of abode in Hong Kong.  I refer to this decision as “the Commissioner’s 2014 Decision”.

B3.    The 2015 Tribunal Decision

22.  Tiffany appealed the Commissioner’s 2014 Decision to the Tribunal.  The Tribunal as then constituted (“the 2015 Tribunal”) heard the appeal (“the Previous Appeal”) on 16 January and 5 March 2015.

23.  Before both the Commissioner and the 2015 Tribunal, Tiffany contended that she qualified to be a Hong Kong permanent resident under Paragraph 2(c) of Schedule 1.  This was so as she said she was a person of Chinese nationality born outside Hong Kong to a Chinese citizen who was a Hong Kong permanent resident (ie, Ms Boke).

24.  It was not disputed that Tiffany was: (a) born outside Hong Kong, and (b) born to a Chinese citizen (Ms Boke)who was a Hong Kong permanent resident.  Hence, the only relevant question remained in the Previous Appeal for the 2015 Tribunal to determine whether Tiffany fell within Paragraph 2(c) of Schedule 1 was whether she was a Chinese national.

25.  As to that question, there was no dispute that Tiffany acquired foreign nationality at birth.  In the premises, the sole issue for the 2015 Tribunal in the Previous Appeal was whether Ms Boke was “settled abroad” at the time of Tiffany’s birth.

26.  By way of a decision dated 14 May 2015 (“the 2015 Tribunal Decision”), the 2015 Tribunal dismissed the Previous Appeal.  In doing so, the Tribunal held that:

(1)   Ms Boke did settle in the United States by no later than 23 May 1977.

(2)   Tiffany had failed to prove that Ms Boke was no longer settled in the United States at the time of Tiffany’s birth.

(3)   As such, Tiffany was not a Chinese national under Article 5 of the Nationality Law.  She therefore was not a permanent resident of Hong Kong as defined in Paragraph 2(c) of Schedule 1, and did not enjoy a right of abode in Hong Kong.

B4.    Tiffany’s subsequent application and the 2017 Tribunal Decision

27.  Despite the 2015 Tribunal Decision, which was made on 14 May 2015, Tiffany made a fresh VEPIC application only two months later on 15 July 2015.  This was again rejected by the Immigration Department by letter dated 18 August 2015.

28.  Tiffany then again applied to the Commissioner for registration of a Hong Kong permanent identity card on 21 September 2015.  The Commissioner promptly refused this application by letter of the same day.  I will refer to this decision as “the Commissioner’s 2015 Decision”.  Tiffany then appealed this decision to the Tribunal (ie, the Appeal).

29.  A differently constituted Tribunal (“the 2016 Tribunal”) heard the Appeal on 12 July 2016.

30.  The 2016 Tribunal allowed the Appeal by way of the 2017 Tribunal Decision.  It found that:

(1)   Ms Boke did settle in the United States by no later than 23 May 1977.

(2)   However, Ms Boke and Mr Wang formed an intention to relocate to Taiwan at around the time of Tiffany’s birth, and therefore, on a balance of probabilities, were not settled in the US at the time of her birth.

(3)   Tiffany was thus a Chinese national under Article 5 of the Nationality Law, a permanent resident of Hong Kong as defined in Paragraph 2(c) of Schedule 1 and enjoyed the right of abode in Hong Kong.

31.  It can be seen that the 2017 Tribunal Decision for all material purposes is directly contrary to and inconsistent with the 2015 Tribunal Decision.  The 2017 Tribunal Decision is the subject of the present judicial review.

C.      THIS JUDICIAL REVIEW

32.  The Commissioner raises five grounds of judicial review.  They are as follows:

(1)   The 2016 Tribunal failed to conclude that it was bound by the 2015 Tribunal Decision (“Ground 1”).

(2)   The 2016 Tribunal failed to take into account the 2015 Tribunal Decision as a relevant consideration (“Ground 2”).

(3)   The 2016 Tribunal erred in finding that the parents had no longer settled abroad on account of “change of intention” (“Ground 3”).

(4)   The 2017 Tribunal Decision is irrational and/or Wednesbury unreasonable (“Ground 4”).

(5)   The 2016 Tribunal failed to draw adverse inference or take into account the absence of evidence from the Ms Boke (“Ground 5”).

33.  As submitted by Mr Suen, counsel for the Commissioner, Ground 1 is the Commissioner’s principal ground of challenge.  If the Commissioner succeeds on this ground, it is unnecessary and indeed inappropriate for the court to consider the other grounds.

34.  I would now turn to look at the first ground.

C1.    Ground 1 – Error of law in failing to conclude it was bound by the 2015 Tribunal Decision

35.  The Commissioner contends that the 2016 Tribunal fell into error of law by failing to treat the facts as found in the 2015 Tribunal Decision as binding and conclusive on Tiffany as a party under the doctrine of res judicata.[2]

36.  To put it shortly, a res judicata is a decision pronounced by a judicial or other tribunal with jurisdiction over the cause of action and the parties, which disposes once and for all of the fundamental matters decided, so that, except on appeal, they cannot be re‑litigated between persons bound by the judgment.[3]

37.  As stated above, on the question of whether Tiffany is qualified to be a Hong Kong permanent resident under Paragraph 2(c) of Schedule 1, the 2015 Tribunal already found as a fact that Ms Boke was settled abroad in the United States at the time of Tiffany’s birth, and thus she did not qualify as a permanent resident under that provision.

38.  In the premises, Mr Suen in this application submits that, under the doctrine of res judicata, it was not open to Tiffany to seek to reopen and re-argue in the Appeal before the 2016 Tribunal the sole critical question of whether her mother (Ms Boke) was settled abroad at the time of her birth.  She is bound by the finding and conclusion of this question under the 2015 Tribunal Decision.  Indeed, it is Mr Suen’s submission that Tiffany was estopped from pursuing the Appeal at all, given that the very “cause of action” of claiming a permanent resident status under Paragraph 2(c) of Schedule 1 has already been conclusively determined by the 2015 Tribunal Decision.

39.  In the premises, Mr Suen says the 2016 Tribunal committed an error of law in making the 2017 Tribunal Decision in disregarding the doctrine of res judicata. This is particularly so since the 2016 Tribunal’s attention was specifically drawn to the finding of the 2015 Tribunal Decision by the Commissioner at the hearing.

40.  I agree with Mr Suen.

41.  In the specific context of registration of persons’ appeals before the Tribunal concerning the determination of permanent resident status, this court has concluded in Wang Wenxiang v Registration of Persons Tribunal (HCAL 177/2013, 6 November 2015) at paragraphs 64 - 83 that the modified doctrine of res judicata applies to a decision of the Tribunal.

42.  In Wang Wenxiang, the applicant sought judicial review of a decision of the Tribunal in that case contending, among others, that the Tribunal had wrongly concluded that it was bound by a previous Tribunal decision on the same issue.

43.  The application for judicial review in that case was dismissed on other grounds. However, this court went on to hold at paragraph 74 that the Tribunal in that case was in any event correct in finding that the previous Tribunal’s decision was binding on the parties based on a modified doctrine of res judicata.

44.  In so ruling, I observed in footnote 11 to paragraph 74 that this conclusion is reinforced by section 3D(6) of the Registration of Persons Ordinance (Cap 177) (“the ROPO”), which expressly states that decisions of the Tribunal under this section shall be final and conclusive.

45.  Further, as pointed out by Mr Suen, the doctrine of res judicata applies in the context of appeals before the Tribunal is also supported by way of analogy by the following authorities:

(1)   In Chu Ru Ying v Commissioner of Inland Revenue [2010] 2 HKLRD 1052, the Court of Appeal has confirmed the Board of Review’s decision that after the taxpayer therein has availed herself of all channels of appeal in relation to a previous assessment, it is not open to her in a subsequent assessment to seek to attack the previous assessment, which was “final and conclusive” under section 70 of the Inland Revenue Ordinance, Cap 112 (“the IRO”); and

(2)   In Dl54/98, (1999) 14 IRBRD 17, the Board of Review held that section 69(1) of the IRO (which, like section 3D(6) of the ROPO, provided that the decision of the Board shall be “final”) means that the Commissioner of Inland Revenue could not seek to go behind a previous decision of the Board of Review and re-assess the same taxpayer on the same facts.

(3)   In R (Coke-Wallis) v Institute of Chartered Accountants [2011] 2 AC 146 at paragraphs 25 - 31, the House of Lords held that disciplinary proceedings were civil in nature and, therefore, the principles of res judicata applied and that in view of the objects and powers of the Institute of Chartered Accountants in England and Wales, there was no reason why cause of action estoppel should not apply to successive sets of proceedings before its disciplinary committee.

46.  In the present case, if Tiffany had wished to challenge the 2015 Tribunal Decision under the Previous Appeal, the proper course of action for her was to apply for judicial review within the appropriate time limit.  Tiffany however did not seek to challenge the 2015 Tribunal Decision by way of judicial review.

47.  In the premises, as a matter of law, Tiffany is bound by the 2015 Tribunal’s finding that (a) Ms Boke was settled in the United States at the time of her birth and thus Tiffany was not a Chinese national under the Nationality Law, and (b) Tiffany therefore did not qualify as a permanent resident under Paragraph 2(c) of Schedule 1.

48.  To seek to re‑litigate the same subject matter in the Appeal which was based on the same evidence relied on in the Previous Appeal clearly amounts to an abuse of process.   This is the very mischief that the doctrine of res judicata seeks to prevent.  As explained by Stock JA in China North Industries Investment Ltd v Chum [2010] 5 HKLRD 1 at paragraph 47:

“This doctrine, res judicata, is not a rule of evidence but one of substantive law, for which the underlying public policy is the interest of the community in the termination of disputes and the finality of judicial decisions and, further, the need for individuals to be protected from vexatious multiplicity of suits.”

49.  At this hearing, Tiffany contends that the 2017 Tribunal Decision should be upheld because she was entitled to “appeal” against the wrong finding of the 2015 Tribunal Decision.

50.  This is clearly incorrect.  The Appeal is not an appeal against the 2015 Tribunal Decision.  It is an appeal against the Commissioner’s 2015 Decision.  Further, objectively, Tiffany should be clearly aware of the fact that she was not appealing against the 2015 Tribunal Decision, as right after the 2015 Tribunal Decision, she lodged a fresh VEPIC application to the Immigration Department, and failing which, a fresh permanent identity card application to the Commissioner in 2015.  This obviously shows that Tiffany could not have regarded herself as appealing against the 2015 Tribunal Decision.

51.  I therefore do not accept this submission.

52.  Tiffany also says this court should uphold the 2017 Tribunal Decision since the Commissioner’s present judicial review application is a “political persecution”, seeking to take away her entitled Chinese nationality and Hong Kong permanent resident status, because she had once boarded the Mainland’s first carrier as reported on the newspaper.

53.  The court is only concerned with the law but not politics.  This submission, which is in any event based purely on bare assertions, is therefore entirely irrelevant to the question of whether the 2016 Tribunal erred in law in making the 2017 Tribunal Decision.  I would not take that into account.

54.  For all the above reasons, the 2016 Tribunal erred in law in making the 2017 Tribunal Decision by allowing Tiffany to re-litigate the same subject matter and issue that have already been decided in the 2015 Tribunal Decision.

55.  In the premises, the Commissioner succeeds under Ground 1, and the 2017 Tribunal Decision should therefore be quashed even on this basis alone.

C2.    Grounds 2, 3, 4 and 5

56.  As mentioned above, all these grounds are advanced by the Commissioner as a fall-back in case she fails under Ground 1.  As the Commissioner has now succeeded on Ground 1, strictly speaking, it is unnecessary for the court to determine these other grounds.

57.  Moreover, these grounds effectively involve the examination of the relevant evidence and law to say whether it was irrational in the public law sense for the 2016 Tribunal to find that Ms Boke was not settled abroad in the United States at the time of Tiffany’s birth.  In my view, it is inappropriate for this court to revisit this in this judicial review when it has already concluded above that, as a matter of law, this question is not open for re-argument and re-determination.

58.  In the premises, I would not further deal with these grounds in this judgment.

D.      CONCLUSION

59.  The Commissioner succeeds in this judicial review on Ground 1.  I therefore order that the 2017 Tribunal Decision be quashed.

60.  The only remaining question is whether I should further grant an order of mandamus as sought directing the Tribunal to dismiss the Appeal.

61.  The relevant principles governing my exercise of discretion in the grant or refusal of an order of mandamus are not in dispute.  These were succinctly summarised by Lam JA (sitting as an additional judge of the Court of First Instance) in Building Authority v Appeal Tribunal (Buildings) [2013] 1 HKLRD 101:[4]

“90.   When the court sets aside a decision of an administrative tribunal in a judicial review on errors of law, the usual course is to send the case back to the tribunal for a decision in accordance with the law. This is because in a judicial review the court would not assume the role of the primary decision-maker.

91.   However, there are cases where the court can come to the conclusion that there could only be one result that is legally open to the administrative body. In those cases, the court can grant a mandamus directing the administrative body to act accordingly. In R v Ealing London Borough Council (1997) 29 HLR 179, 185, Laws J (as he then was) said:

There are … rare cases where the public law court is able to conclude that only one result was legally open to the body in question, and in that case an order of mandamus may issue to require that result to be arrived at. Even there, however, the court does not undertake the role of primary fact-finder, substituting its judgment on the merits for that of the body reviewed. It merely recognizes the existence of a situation in which a public authority, properly directing itself on the facts according to the law, has only one choice legally open to it.

See also R (Luminar Leisure Ltd) v Crown Court at Norwich [2004] 1 WLR 2512, [20]; International Trader Ltd v Town Planning Appeal Board (unrep., HCAL 13/2007, [2007] HKEC 2039), [139].”

62.  Applying these principles to the present case, I accept that the only decision that was legally open to the Tribunal was to dismiss the Appeal in light of my decision on Ground 1.  I will explain why.

63.  In law, res judicata can either give rise to a cause of action estoppel or an issue estoppel.  These have been explained by Lord Clarke in R (Coke-Wallis) at paragraphs 25 and 26 as follows:

“Res judicata

25 It is important to note that this appeal is concerned only with the case where there have been two successive sets of disciplinary proceedings. It is not concerned with a case in which either set of proceedings was either criminal or civil proceedings. In Spencer Bower & Handley, Res Judicata, 4th ed (2009), para 1.05 it is stated that res judicata can either give rise to a cause of action estoppel or to an issue estoppel. In this case the claimant relies upon cause of action estoppel, which is concisely defined in para 1.06 in this way: ‘If the earlier action fails on the merits a cause of action estoppel will bar another.’

26 The relationship between cause of action estoppel and issue estoppel was described, in terms that have been generally accepted, by Diplock LJ in Thoday v Thoday [1964] P 181, 197-198:

‘The particular type of estoppel relied upon by the husband is estoppel per rem judicatam. This is a generic term which in modern law includes two species. The first species, which I will call “cause of action estoppel”, is that which prevents a party to an action from asserting or denying, as against the other party, the existence of a particular cause of action, the non-existence or existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, ie judgment was given upon it, it is said to be merged in the judgment, or, for those who prefer Latin, transit in rem judicatam. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does; he is estopped per rem judicatam. This is simply an application of the rule of public policy expressed in the Latin maxim “Nemo debet bis vexari pro una et eadem causa”. In this application of the maxim 'causa' bears its literal Latin meaning.’

Res judicata, or estoppel per rem judicatam, is thus a generic term of which cause of action estoppel and issue estoppel are two species. The distinction between the two species is of potential importance because the former creates an absolute bar, whereas the latter does not: see para 47 below.”

64.  Hence, a cause of action estoppel creates an absolute bar with no exception for special circumstances against the losing party or his privy to pursue the same cause of action in a subsequent matter again.[5] Issue estoppel creates a bar to raise the same issue decided in a previous matter again in a subsequent different matter or action between the same parties or their privies.[6]  There is however an exception for special circumstances.[7]

65.  In the present case, whether there is a cause of action estoppel or issue estoppel, the Appeal must fail.  This is so since:

(1)   If there is a cause of action estoppel created by the 2015 Tribunal Decision, Tiffany is absolutely barred from raising again in the Appeal before the Tribunal the claim for permanent resident status under Paragraph 2(c) of Schedule 1.

(2)   If there is no cause of action estoppel but only an issue estoppel created under the 2015 Tribunal Decision, Tiffany is estopped from seeking to re-litigate in the Appeal the same fundamental issue of whether Ms Boke was settled in the United States at the time of Tiffany’s birth.  In this respect, Tiffany has not suggested even in this judicial review why her case may fall within any of the established special circumstances to permit her to re-litigate this very issue.  In the premises, she is also bound to fail in the Appeal as a matter of law.

66.  I therefore further make an order of mandamus as sought directing the Tribunal to dismiss the Appeal upon being remitted to it.

67.  Finally, I will look at costs.

68.  Mr Suen has asked for the costs of this judicial review if the Commissioner succeeds.

69.  I am unable to agree.

70.  The Commissioner succeeds in this application on the ground that the 2016 Tribunal erred in law in effectively failing to apply the doctrine of res judicata.

71.  However, when the Appeal was heard before the 2016 Tribunal, the Commissioner at paragraph 21 of her skeleton had only “urged” the 2016 Tribunal “to respect” the 2015 Tribunal Decision.[8]

72.  This is not a submission based on the principle of res judicata.  In other words, the 2017 Tribunal was not drawn to any submissions on the doctrine of res judicata and it was not part of the Commissioner’s case that Tiffany was estopped in law from raising the matter or issue again in the Appeal.[9] Tiffany was thus also not made aware of this ground of opposition in law.

73.  In the premises, I do not think it is fair in all the circumstances to ask Tiffany to bear the costs of this judicial review, where the 2017 Tribunal Decision is quashed on the basis of a point of law not specifically relied upon by the Commissioner before the 2016 Tribunal.

74.  I therefore order that there should be no order as to costs in this application.