SYED HAIDER YAHYA HUSSAIN AND ANOTHER v. The Registrar of Births and Deaths

CACV77/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 77 OF 2000

(ON APPEAL FROM HCAL 73 OF 1999)

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J U D G M E N T

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Hon Rogers Acting CJHC:

1. This is an appeal and cross-appeal in judicial review proceedings. By judgment dated 7 January 2000, Chung J dismissed the applicants' application for judicial review of a decision by the Registrar of Births and Deaths refusing the applicants' applications for amendment of their birth certificates.

Background

2. The applicants were born on 8 March 1984 and 13 March 1985. It is noted under column 12 of their respective birth certificates that their status as Hong Kong belongers was "not established". For reasons which will become apparent, it is the applicants' case that they were Hong Kong belongers upon their birth. If the applicants were Hong Kong belongers at the time of their birth, they would immediately prior to 1 July 1997 have been permanent residents of Hong Kong. As such, after the establishment of the HKSAR, they would have been entitled to the benefit of paragraph 6 of Schedule 1 of the Immigration Ordinance, Cap.115 and would have thus come within the category of permanent residents of the HKSAR and entitled to permanent identity cards. There is no dispute between the parties that if the applicants' father had been "settled" in Hong Kong within the meaning of section 50(2) of the British Nationality Act 1981, the applicants would have been Hong Kong belongers at the time of their birth.

3. It is for these reasons that on 4 March 1999, the applicants applied to the Registrar for amendment of their birth certificates so that the certificates would state that the applicants' "Hong Kong belonger status" could be marked as "established". That application for amendment was made under section 27(1)(c) of the Births and Deaths Registration Ordinance, Cap.174. It is to be noted at this stage that there is no time limit for the making of an application for such an amendment. That application was refused on 20 April 1999 and an application was made for judicial review on 25 June of the same year.

4. Apart from an objection based initially upon delay, but developed into an argument that section 27(1)(c) did not empower the Registrar to make the amendment sought, the parties are in agreement that the issue that arises in this court is whether the applicants' father was "settled" in Hong Kong at the time of their births. If he was, the applicants were Hong Kong belongers but if he was not, their birth certificates are accurate and the Registrar's decision does not fall to be reviewed.

Background facts

5. There is no dispute as to the essential background facts. The applicants' father, who is also acting as their next friend is Mr Syed Pervez Hussain. For convenience and in order to avoid confusion in relation to names, I shall refer to him in this judgment as "the father".

6. The father was born in Pakistan in 1948 therefore at birth was a British Subject. He came to Hong Kong in September 1951 when he was 3 years old. He was the third generation of his family to live in Hong Kong. After he arrived, he stayed in Hong Kong continuously for a period well in excess of 7 years. Between 1959 and 1971, the father travelled in and out of Hong Kong on a number of occasions to study abroad, for family visits and, no doubt, for holidays. He was never outside Hong Kong for a period of more than 7 years. Up until 1971, no conditions were imposed on his stay in Hong Kong.

7. In September 1969 the father was granted a Class A Re-Entry permit which was valid until September 1970. He did not use that permit. He attended University in Pakistan where he received Bachelor of Arts and Master of Arts degrees. On returning to Hong Kong on 19 June 1971, a condition of stay was endorsed upon his passport for the first time. The endorsement stated that the father was allowed to remain for 3 months and there was a prohibition on his obtaining employment, establishing a business or even studying at a school. In the next month, those restrictions were lifted and the father was permitted to stay in Hong Kong until 1 month prior to the expiry of his passport. His passport was renewed from time to time and, until 1988, it was thereafter always endorsed with a limitation of stay. In January 1988, his passport was endorsed with permission to remain without condition as to length of stay or otherwise save that the father did not require a visa to re-enter Hong Kong within 12 months from the date of his last departure. Eventually in February 1999, the father was issued with a Hong Kong permanent identity card, thus recognising his right of abode in Hong Kong as a permanent resident. Meanwhile, the father had married in 1976 and the two applicants were born in Hong Kong.

THE MAIN ISSUE

8. The main issue in this case lies in a comparatively small compass.

The applicants' contention

9. The applicants contend that on completing 7 years residence in Hong Kong in 1958, by reason of the provisions of the Deportation (British Subjects) Ordinance 1936, the father had acquired the status or right that he could not be deported from Hong Kong. That status or right, once acquired, was not lost despite the repeal of the Deportation (British Subjects) Ordinance by the coming into force of the Immigration Ordinance 1971. The endorsements in the father's passports from June 1971 were therefore of no effect. At the time of the applicants' birth, they were entitled to be regarded as British Dependent Territories citizens in accordance with section 15(1)(b) of the British Nationality Act 1981 because they were born in Hong Kong, which was a dependent territory, and their father was settled in Hong Kong. If the applicants became British Dependent Territories citizens under section 15(1)(b) of the 1981 Act they would have been Hong Kong belongers in accordance with paragraph 2 of the First Schedule of the Immigration Ordinance, Cap.115, as it then was. That Ordinance had been amended on the coming into force of the Immigration (Amendment)(No.2) Ordinance 78 of 1982.

The respondent's contention

10. Whereas the respondent does not dispute that if the father was "settled" in Hong Kong at the time of the applicants' birth, the applicants would have been Hong Kong belongers, the point taken is that the father was not "settled" in Hong Kong. It is said that his stay in Hong Kong was subject to valid restrictions which prevented him from being settled. In brief, it is said that the restriction on the right to remain in Hong Kong which had not been imposed on the father until 1971 but was continued thereafter was a valid restriction arising under immigration powers and was quite separate from the right not to be deported which had been acquired under the Deportation (British Subjects) Ordinance.

11. In my view, this argument on behalf of the Registrar is wrong. By September 1958 the father had acquired the right not to be deported from Hong Kong and he could not thereafter be removed or deported. This was an accrued right and his status of enjoying that right remained. I shall attempt, briefly, to explain the reasons. They stem largely from the legislative background and from the implementation of the legislation and Government policy.

THE HISTORY OF THE LEGISLATION

Immigration and Passports Ordinance 1934

12. As was submitted by Mr Marshall SC on behalf of the respondent, immigration control as it is known today appears to have emerged with the Immigration and Passports Ordinance 1934. Albeit that replaced the Passport Ordinance 1923. By the 1934 Ordinance, the Inspector General of Police was empowered to appoint police officers who would examine those coming to Hong Kong and their passports and travel documents. Entry could be refused to people who came within a list of categories set out in section 4(1) of the Ordinance. That list consisted of specified categories of those who at the time would have been considered undesirable immigrants. It might be observed that today the list might be curtailed in some respects.

13. This provision in the Ordinance appears to have been applicable to all. However the provisions in the Ordinance that required those wishing to enter Hong Kong to have either a valid passport or some other valid travel document which established their nationality and identity and authorised them to enter Hong Kong, did not apply to persons of Chinese race. Whilst there was also exemption for persons under 15 and seamen on ships the requirement to have a valid passport or travel document would have applied to people born in Hong Kong who were not of Chinese race. A valid passport meant amongst other things are that was valid for travel to Hong Kong.

14. Section 10 of the Ordinance read :

"Neither the possession of a valid passport or travel document nor any visa or endorsement thereon shall be deemed to imply that the holder will be permitted to land in the Colony or, if allowed to land, that he will be permitted to stay in the Colony; nor shall it serve as any excuse for disobeying any deportation, banishment or expulsion order."

15. This section was of general application but there was nothing in the Ordinance giving the Inspector General of Police specific powers to refuse entry to British subjects other than as outlined above.

16. Section 11(1) of the Ordinance dealt with transit visas for persons coming to Hong Kong on route for other destinations. Section 11(2) provided that the Inspector General of Police could endorse a valid passport or travel document of an alien who had not resided in Hong Kong for more than 1 month since his last arrival with a limit of stay. That would appear to have been the only power to impose limits of stay.

17. Those who landed without permission or without a valid passport or travel document or who contravened a limit of stay were liable to be guilty of an offence and on conviction could be expelled.

18. Thus, for example, a British subject who came to Hong Kong with a valid passport or even a valid travel document duly endorsed and who did not fall within any of the categories of section 4(1) of the Ordinance, once admitted, could remain in Hong Kong. Even in respect of aliens, the power to impose a limit of stay had to be exercised, within a period of 1 month from the date of their last arrival.

19. Thus the effect of this Ordinance appears to me to have been in keeping with the long title which was "to regulate the entry and departure of persons into and out of the Colony, to prohibit the entry of undesirable immigrants and to confer various powers in connection therewith."

Deportation (British Subjects) Ordinance 1936

20. The 1934 Ordinance was followed some two years later by the Deportation (British Subjects) Ordinance 1936. In contrast to aliens who, had been the subject of a series of Ordinances culminating in a 1935 Ordinance there had been some, but very limited, powers of deportation of British subjects under earlier Ordinances. After the repeal in 1935 of a 1917 Ordinance, there had been no power to deport British subjects. From the "objects and reasons" which formed part of the Bill leading up to the passing of the 1936 Ordinance, it would appear that the Ordinance followed, with some modifications, a model Bill which had been attached to a report dated 12 September 1933 of a Departmental Committee of the Colonial Office appointed by the Secretary of State. The Ordinance itself was entitled "An Ordinance to regulate the Deportation of Undesirable British subjects." Section 3 of the Ordinance empowered the Governor to make a deportation order in respect of an immigrant British subject who did "not belong to the Colony". Section 2(2) provided that for the purposes of the Ordinance a person shall be "deemed to belong to" Hong Kong if he or she was a British subject and was either born in Hong Kong or

"(b) has been ordinarily resident in the Colony continuously for a period of seven years or more and since the completion of such period of residence has not been ordinarily resident in any other part of His Majesty's dominions or any territory under His Majesty's protection continuously for a period of seven years or more;".

21. Since the only power to deport under the Ordinance came under section 3, it thus would be apparent that a British subject who had ordinarily resided in Hong Kong for 7 years acquired the right not to be deported from Hong Kong. Thus, neither under the Immigration and Passports Control Ordinance 1934 nor under the Deportation (British Subjects) Ordinance 1936 could any deportation removal or expulsion be effected in relation to such a British subject.

22. This privileged position would seem to be further exemplified in the fact that the Registration of Persons Ordinance 1934 appears to have exempted British Subjects staying in Hong Kong from registration with the police.

23. It is also of interest to note that there was a correlation between the Immigration and Passports Ordinance 1934 and 1936 Ordinances. If a person fell within the first part of section 3 of the 1936 Ordinance, he might be liable to be deported if amongst other things, he fell within the definition of prohibited immigrant. Prohibited immigrant was defined as meaning a person who fell within one or more of the categories of section 4(1) of the Immigration and Passports Ordinance 1934. The correlation thus being that a British subject might be refused entry under 1934 Ordinance if he fell within one of the categories of section 4(1) of the 1934 Ordinance but once in Hong Kong, he could only be removed under the powers under section 3 of 1936 Ordinance.

Immigration Control Ordinance 1940

24. The Immigration and Passports Ordinance 1934 was repealed by the Immigration Control Ordinance 1940. It was a provision, no doubt, to cope with wartime conditions. It brought Chinese persons within the provisions relation, to passports and travel documents but for the purposes of these proceedings there was no material change. It is, perhaps, an aside to note Professor Chen's comment in his article in the McGill Law Journal 1988 631 at p. 637 when he said that the new system of immigration control was not effectively enforced.

25. Thus immigration control related to the time when the immigrant landed in Hong Kong and the powers of the Immigration Officer under the Ordinance were exercisable in relation to persons arriving in Hong Kong at the time of their arrival. Again, the provisions of section 11(2) limited the period for endorsing a limit of stay in respect of aliens to 1 month after the last arrival of an alien.

Immigrants Control Ordinance 1949

26. The Immigrants Control Ordinance 1949 replaced the 1940 Ordinance and section 15 empowered the Immigration Officer to impose conditions :

"in or upon the occasion of or subsequent to any permit granted to an immigrant to enter, whether for the purpose of residence, sojourn or transient visit or for transhipment at a port in the Colony and may at any time vary or add to those conditions as he thinks fit."

27. Under the 1949 Ordinance, immigrant was defined broadly as meaning any person who was not born in Hong Kong. Whilst the ambit of section 15 clearly empowered the Immigration Officer to vary or add to conditions of stay when an entry permit had been given, the purpose of the Ordinance still related to control of persons entering Hong Kong. The words "vary or add to" do not appear to confer any power to impose a condition of stay where none previously existed. The word "subsequent" must, it seems to me, be read in its context in the section. Whilst it clearly envisaged a temporal gap between the grant of a permit and the imposition of a condition, the imposition of a condition was obviously to be in the context of the grant of the permit and not something to be imposed years later.

28. Section 22 of the 1949 Ordinance which was relied upon by the judge below read :

"The Immigration Officer shall, at all times, have discretion to limit the stay of any immigrant entering the Colony."

29. Despite the broad meaning given to the term immigrant, nevertheless, the provision was clearly directed to control a person's entry into Hong Kong.

30. In any event, in September 1958 when the father had been in Hong Kong for 7 years, he had so remained in Hong Kong without any restriction or limitation upon his stay. In my view, he had thereby acquired a status which precluded his deportation in particular under the Deportation (British Subjects) Ordinance 1936. There was in force at that time no other provision which in my view could have enabled the imposition of a restriction on the father's residence in Hong Kong thereafter. His right to remain in Hong Kong therefore, in effect, became crystallised at that stage.

Immigration (Control and Offences) Ordinance 1958

31. Shortly after the crystallisation of the father's right, the Immigration (Control and Offences) Ordinance 1958 came into force. It contained a similar list of categories of persons whose entry might be prohibited as was contained in section 4(1) of the 1934 Ordinance. Interestingly however section 15 was expanded. Not only did it have the same provision as was contained in the 1949 Ordinance but there was added subsection (2) which read :

"Nothing in this section shall be taken to derogate from the law for the time being in force in relation to deportation and expulsion of persons from the Colony."

As with the 1949 Ordinance it seems to me that the powers exercisable by the Immigration Officer under section 15, except in the context of granting an entry permit, were limited to adding to or varying conditions of stay. They were not exercisable if no conditions had been imposed either as to limitation of stay or otherwise when the permission to enter Hong Kong had been given. Likewise, section 15(2) of the new Ordinance in my view exemplified the fact that the law relating to deportation, specifically under the Deportation (British Subjects) Ordinance was complimentary to the law relating to immigration. The fact that the subsection specified that there was no derogation from the law included, on my reading, not merely the fact that the powers of deportation of British subjects under the 1936 Ordinance remained but any rights which a person might have acquired under the 1936 Ordinance likewise remained.

32. The Immigration (Control and Offences) (Amendment) Ordinance 1969 for the most part equated British subjects to aliens in so far as immigration was concerned. It did so by requiring all persons coming to Hong Kong to have a visa. It did not, however, affect the general proposition that deportation was governed by the Deportation Ordinance and that the Immigration Ordinance covered questions of immigration rather than control of persons already in Hong Kong who had acquired rights under, for example, the Deportation (British Subjects) Ordinance 1936.

The Immigration Ordinance 1971

33. The Immigration Ordinance 1971 was an Ordinance which consolidated and amended the law relating to immigration and deportation. It created three new categories of persons namely, the Hong Kong belongers, the resident United Kingdom belongers and the Chinese residents. All these three categories of persons had the right to land in Hong Kong.

34. Deportation was dealt with in a separate part of the Ordinance which empowered the making of a removal order against any person who committed an offence by landing without permission or otherwise unlawfully or by contravening any condition of stay in force; the other ground for deportation was that the person was an undesirable immigrant.

The imposition of the limit of stay

35. As set out in the affirmation of Choy Ng Sui Chow, Whitty, a Senior Immigration Officer giving evidence on behalf of the Registrar, following the enactment of the Immigration (Control and Offences) Ordinance, Cap.243, (the 1958 Ordinance) immigration control on British subjects was introduced.

36. Importantly, however, paragraph 6 of the affirmation confirms that despite the powers in the Ordinance, those were never used. The affirmation states unequivocally:

"...before 8 September 1969 British subjects and Commonwealth citizens were not subject to immigration control and were permitted to enter and remain unconditionally in Hong Kong..."

37. The father applied for a "Multiple Re-entry" (Class A) visa in September 1969 and one was granted which was valid for a year. He did not however return to Hong Kong until 19 June 1971 and, in accordance with the new policy, his stay was limited for 3 months. This, as explained above, was subsequently extended and the restrictions on his actions were removed.

38. The imposition of a limitation on the father's stay nearly 20 years after his first arrival in Hong Kong, purportedly under rules which related to the control of immigration to Hong Kong could at best be described as surprising and in many respects alarming. That a person, and others in his position, who had lived in Hong Kong and been permitted to make Hong Kong their permanent home without restriction for 20 years, had been allowed to come and go without restriction or limitation of stay and had conducted himself and themselves in an irreproachable manner should suddenly be subject to a limitation of stay by reason of immigration control could, in my view, only be the consequence of the clearest legislation but would, nonetheless, be a result which was repugnant both to commonsense and legitimate expectation. The government had never used any powers of immigration control in respect of British subjects who had remained in Hong Kong for seven years and acquired the right not to be deported under the 1936 Ordinance.

The accrued right

39. Such commonsense and legitimate expectation is, in my view, however, partially encapsulated in section 23 of the Interpretation and General Clauses Ordinance, Cap.1 that reads :

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

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

40. The 1971 Ordinance repealed the Deportation (British Subjects) Ordinance 1936. By reason of section 23 (c) of the Interpretation and General Clauses Ordinance, in my view, the father's accrued rights and privileges which had been acquired, in the phraseology of the 1936 Ordinance, because he belonged to the Colony having lived in Hong Kong for 7 years, were not affected.

41. Even without the provisions of section 23(c), I consider that the common law would come to the same conclusion. Lord Brightman said in Yew Bon Tew v Kenderaan Bas Mara [1982] 3 WLR 1026 at 1029 :

"Apart from the provisions of the interpretation statutes, there is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past."

Whereas there could have been a limitation of stay imposed upon the father when he arrived in Hong Kong in 1951 there was not. After the father had been in Hong Kong for 7 years, he acquired rights and could not be deported. Any subsequent limitation of stay imposed for no apparent reason other than change of Government policy was in my view little short of arbitrary. There were no grounds of objection which could be validly raised against the father.

42. Whether one regards the limitation of the Class A Re-entry permit to a period of one year as being separate or linked with the imposition of the limitation of stay upon the father's return to Hong Kong in 1971 appears to me not to matter. If a man had a right to stay in Hong Kong and make Hong Kong his home it would be most alarming that he should not also have had the right to return to Hong Kong if he left Hong Kong only for an insignificant period. The notion that a person who was protected against deportation could not be allowed to return to Hong Kong even if he left Hong Kong for a day trip, for example to Macau, raises specters of oppression.

43. What should have been regarded as a significant absence was a period of seven years from the date when he last lived in Hong Kong. That was the period in which residence in some other British territory would deprive a person of his protection under section 3 of the 1936 Ordinance. Certainly absence for the period of study at university could only be regarded as a reasonable and necessary period.

44. As averred on behalf of the Registrar, up until 1969 the Government had never imposed any restriction on the right to remain in Hong Kong in respect of a returning British subject who had remained in Hong Kong for seven years and acquired immunity from deportation under the 1936 Ordinance. It can be assumed, therefore, that the Government had never used any of the powers under the Immigration Ordinances to restrict the right of stay of persons in the position of the father.

45. As the article by Professor Chen in the McGill Law Journal shows the implementation of the law was far from absolute. As the affidavit of Choy Ng Sui Chow shows, the imposition of restrictions was the result of a change of Government policy.

46. In my view when leaving Hong Kong in 1969 for his university studies, and on returning to Hong Kong in 1971, the father had a legitimate expectation that he would be allowed to return to and remain in Hong Kong upon completion of his studies. Indeed, the expectation was in my view that he could come and go from Hong Kong, as he needed provided he maintained his connection here. That expectation came about as a result of the actions and policy practised by the Government up until the time it changed its policy.

47. Clearly, it was not the intention of the Ordinance, nor was it even the Government policy of the day, that a British subject in the position of the father should be subject to a limitation of stay when he returned to Hong Kong after an absence of what was in the circumstances a reasonable period. Hence the grant of Class A Re-entry permits. But the limitation of the validity of those permits to a period of one year from the date of departure, coupled with the imposition of a limit of stay on return outside that period, was not something founded in reason or practice. It was something that the previous action of the Government had given the father a legitimate expectation not to be imposed. It was a limitation on acquired rights and reversal of government policy to the disadvantage of the father in a way that was unfair. In my view the limitation of stay which was imposed on the father was invalid and, at the relevant times, the father was settled in Hong Kong within the meaning of section 50(2) of the British Nationality Act 1981.

Delay

48. As mentioned previously, the respondent objected to the grant of relief in this case on the basis of what was categorised as delay.

49. There was a tentative argument that the decision sought to be challenged was that of the Registrar when the original birth certificates were made. That however was clearly wrong. The decision that was challenged was the refusal of the amendment. The point however as developed appeared to be more an argument that the amendments to the birth certificates, which were sought, were not amendments which were envisaged by section 27 of the Births and Deaths Registration Ordinance, Cap.174.

50. Quite simply, an application can be made for amendment at any time. There is no time limit in either section 27(1)(c) or any other part of the Ordinance limiting the time within which an application may be made to the Registrar for the correction of an error of fact or substance in the register. Since the application for judicial review was made within a reasonable time after the date upon which the Registrar refused to make such correction, in my view, the objection of delay must fail.

51. So, too, must the objection that the correction was not one within the ambit of section 27(1)(c). That subsection relates to correction of any error of fact or substance. Even if the notation "not established" under the column of Hong Kong belonger status might not fall within the term fact, it must in my view fall within the term substance. The respondent's points in this regard which were not pursued with vigour must, in my view, fail.

52. In the circumstances it appears to me that the decision of the Registrar to refuse correction of the entries relating to the applicants' status as Hong Kong belongers at the time of their births was clearly erroneous.

53. In those circumstances this appeal should be allowed. In view of the way the matter was argued, it seems to me the applicants are entitled to the following relief even if the relief goes beyond simply requiring the amendment of the birth certificates :

1. The applicants' (appellants') application for judicial review be allowed;

2. There be the following declarations :

A. That the 1st applicant acquired the status of "Hong Kong belonger" at his birth in Hong Kong on 8 March 1984 under the Immigration Ordinance (Cap 115 ) as it then read;

B. That the 1st applicant acquired the status of "Hong Kong permanent resident" on 1 July 1987 when the Immigration (Amendment) Ordinance 1987 came into force;

C. That the 1st applicant continues to enjoy the status of "Hong Kong permanent resident" within the meaning of the Immigration Ordinance as it now reads;

D. That 2nd applicant acquired the status of "Hong Kong belonger" at his birth in Hong Kong on 13 March 1985 under the Immigration Ordinance as it then read;

E. That the 2nd applicant acquired the status of "Hong Kong permanent resident" on 1 July 1987 when the Immigration (Amendment) Ordinance 1987 came into force;

F. That the 2nd applicant continues to enjoy the status of "Hong Kong permanent resident" within the meaning of the Immigration Ordinance as it now reads;

3. There be an order of mandamus directed to the respondent to amend the birth certificate of the 1st applicant so as to state that the 1st applicant's Hong Kong belonger status is "established";

4. There be an order of mandamus directed to the respondent to amend the birth certificate of the 2nd applicant so as to state that the 2nd applicant's Hong Kong belonger status is "established".

54. There should in the circumstances be an order nisi that the cost of this appeal should be to the appellants.

Hon Leong JA:

55. The applicants were born in Hong Kong in March 1984 and March 1985 respectively of Pakistani parents. Their birth certificates issued by the Registrar of Births and Deaths ("the Registrar") stated that their Hong Kong belonger status was "not established". On 4 March 1999, they applied to the Registrar to amend their birth certificates to state that their Hong Kong belonger status was "established". The effect of this amendment would enable them to show that they had acquired a form of British Nationality at birth and would enable them to obtain British Nationality (Overseas) passports.

56. In their application to the Registrar, they claimed that at the time of their births, their father Mr Syed Pervez Hussain ("the father") was settled in Hong Kong, a British Dependent Territory. That being so, they were British Dependent Territories Citizens at birth under the British Nationality Act 1981 and were Hong Kong belongers under s. 2(1)(b) and the First Schedule of the Immigration Ordinance as amended by the Immigration (Amendment) (No. 2) Ordinance 1982.

57. Section 2(1)(b) defines "Hong Kong belonger" to mean, inter alia, "a person who, on or after 1 January 1983 belongs to a class or description of persons mentioned in the First Schedule". Under paragraph 2(a) of the First Schedule, a person who is or becomes a British Dependent Territories Citizen under s. 15(1)(b) of the British Nationality Act 1981 is a person within the meaning of "Hong Kong belonger".

58. Section 15(1)(b) of British Nationality Act 1981 provides as follows:

"s.15(1) A person born in a dependent territory after commencement shall be a British Dependent Territories citizen if at the time of the birth his father or mother is -

(b) settled in a dependent territory"

59. Section 50(2) of the British Nationality Act 1981 defines the meaning of "Settled" in this way:

"... references in this Act to a person being settled in ... a dependent territory are references to his being ordinarily resident in ... that territory without being subject under the immigration laws to any restriction on the period for which he may remain."

60. The Registrar refused to amend the applicants' birth certificates on the ground that their father was not settled in Hong Kong at the time of their births.

61. The applicants applied for judicial review of the Registrar's refusal to amend. The application was dismissed.

62. The applicants appealed. The Registrar also put in a cross appeal on the ground that the applicants' application for judicial review had not been within the 3 months time limit laid down by order 53 r4(1) and also he had no jurisdiction to correct an error of the nature sought by the applicants.

63. The crucial question for determination in the appeal is whether the father was "settled" in Hong Kong within the meaning of s. 50(2) of the British Nationality Act 1981 at the time of the applicants' birth i.e. whether he was ordinarily resident in Hong Kong without being subject to any restriction as to his period of stay in Hong Kong.

64. The father was born in Pakistan and was a British subject under the British Nationality Act 1948. He came to Hong Kong in 1951 and was permitted to enter Hong Kong unconditionally although at the time, under the Immigrants Control Ordinance 1949, the immigration authority could have imposed conditions limiting his stay. He remained continuously in Hong Kong for 7 years from 1951 to 1958 without interruption. From 1958 to 1969, he travelled in and out of Hong Kong but was never away for 7 or more years and on each return to Hong Kong he was permitted to enter Hong Kong unconditionally. On 10 September 1969, he was granted a Class A Re-Entry Permit for multiple journeys valid for presentation before 10 September 1970. On his return to Hong Kong on 19 June 1971, he was only permitted to stay for 3 months. This limit was later lifted when the father protested. He was afterwards permitted to stay until one month before his passport expired in October 1975. When he renewed his passport for 5 years in November, 1980 permission was granted to him to stay until October 1985, one month before his passport expired.

65. The Registrar case is the father's stay at the time of the applicants' births was subject to restrictions and he was not settled in Hong Kong.

66. The applicants' contention is this:

67. The father was ordinarily resident in Hong Kong for 7 years from 1951 to 1958 and since then had not been ordinarily resident in the UK or other British Dependent territories. Under s. 3 of the Deportation (British Subjects) Ordinance, 1936, he was deemed to belong to Hong Kong and was not subject to deportation from Hong Kong. He had acquired a right which protects him from being ejected from Hong Kong against his will and a right which he held through out and at the time of the applicants' births. Any limit imposed on his stay would not be effective and enforceable against him since he could not be removed. That right survived despite changes in policy regarding immigrants to Hong Kong and changes in immigration control legislation. Ordinary residence subject to unenforceable limit of stay is residence not subject to restrictions and that satisfies the test under s. 50(2) of the British Nationality Act 1981.

68. The Registrar's argument, put simply, is this:

69. The father could have acquired a right under the Deportation (British Subjects) Ordinance 1936 that he could not be deported from Hong Kong, but he is not immune from immigration control. Immigration control legislation since the Passport Ordinance 1923 leading up to the Immigration Ordinance 1971 have always empowered the immigration authority to examine persons seeking entry into Hong Kong and to impose conditions as to stay when giving permission to enter. Such legislation also enable removal against their will, of immigrants who had no permission to enter or who had been in breach of the conditions of stay. Policy dictates the categories of persons who are free from restrictions on stay and these categories may be changed from time to time with change in policy. When the father returned to Hong Kong in June 1971, the position of immigrant British subjects in respect of immigration control had been reduced to the same less favourable position as applied to aliens. The father became as liable to deportation as an alien. The immigration officer at the point of entry was entitled to impose restrictions on the father's stay. The father's stay was subject to restrictions which were valid and justified. At the time of the applicants' births, the father could not be regarded as "settled" in Hong Kong.

70. A brief examination of the laws on deportation and immigration shows that before the Immigration Ordinance 1971, deportation and removal or expulsion of persons from Hong Kong were governed by different legislation. Deportation and removal were two separate legal processes with the same primary object i.e. to eject from Hong Kong against their will, persons not belonging to Hong Kong and not welcome in Hong Kong. British subjects were liable to deportation under the Deportation (British Subjects) Ordinance 1936 if they did not belong to Hong Kong and were persons within one of the categories of persons liable to deportation as specified in s. 3 of that Ordinance, namely, convicted persons; undesirable persons; destitute persons; prohibited immigrants. But a British subject was deemed to belong to Hong Kong if he had been ordinarily resident in Hong Kong continuously for 7 years and had not been resident in other British territories continuously for 7 years or more. By reason of his continuous ordinary residence in Hong Kong between 1951 and 1958 the father qualified under the 1936 Ordinance to belong to Hong Kong. Section 3 thus would not apply to him. Deportation of aliens was different and it was governed under the Deportation of Aliens Ordinance 1935. This legal position remained unchanged up to 1971.

71. Immigration legislation since the Passport Ordinance 1923, have always required a person seeking entry into Hong Kong to have a valid passport or other valid travel document and to have permission to land before he can enter Hong Kong. In earlier legislation, certain persons were excepted from this requirement, for example, under the Immigration and Passports Ordinance 1934, persons under 15 years of age, persons of Chinese race and persons in transit did not require passport or travel documents to enter Hong Kong. The immigration officer is empowered to control entries by prohibiting entry of undesirable persons and by imposing limits as to stay on those who are given permission to land. In earlier legislation, this was applicable to aliens and those in transit only but later legislation made this applicable to all immigrants, aliens or otherwise. Persons entering Hong Kong without permission or without a valid passport or travel document or staying over the limited period of stay commit an immigration offence and may be removed or expelled from Hong Kong.

72. In 1971, the legislature recognised that the immigration and deportation laws were in fact dealing with the same subject. The Immigration Ordinance 1971 was enacted and it consolidated and revised the immigration and deportation laws, replacing the Immigration (Control and Offences) Ordinance, the Deportation (British Subjects) Ordinance 1936 and the Deportation of Aliens Ordinance 1935. Under the 1971 Ordinance the two legal processes of deportation and removal are brought under one roof in separate provisions of the 1971 Ordinance (s. 20 and s. 19). Though the powers to deport and the powers to remove are invoked under different circumstances in these provisions and may be exercised independently of each other, the 1971 Ordinance is silent on whether a British subject such as the father who is deemed to belong to Hong Kong and therefore not subject to deportation under the 1936 Ordinance would nevertheless subject to deportation under s. 20 or removal under s. 18 of the 1971 Ordinance. But section 23 of the Interpretation and General Clauses Ordinance has made it clear that repeal of an ordinance would not affect a right accrued under the repealed ordinance and there is a similar common law rule of construction of statute in Yew Bon Tew v Kenderaan Bas Mara [1982] 3 WLR 1026. By virtue of these rules the 1971 Ordinance would not affect the father's right under the 1936 Ordinance and the father still held that right at the time when the applicants were born.

73. Between 1934 and 1971, immigration legislation had gradually tightened control on immigration, for example, the Immigration Control Ordinance 1949 gave the immigration officer discretion at all times to limit the stay of any immigrant entering Hong Kong and the Immigration (Control and Offences) (Amendment) Ordinance 1969 required all persons, British subject or otherwise, seeking to enter Hong Kong to have a valid visa on their passports whereas previously, this requirement only applied to aliens.

74. But the intention was that the tighter control should not affect those who were already in Hong Kong.

75. The Colonial Secretary Sir Hugh Norman-Walker when he moved the 2nd reading of the 1969 Amendment Bill he stated clearly that the change was to "control entry" and there was "no intention to control or limit those who have already in Hong Kong". He said categorically:

"In my previous statement I said that the position of Common-wealth citizens already in Hong Kong would be safeguarded. It is I think desirable that I should develop this. To those Commonwealth citizens who wish to come here in future the criteria applicable to their first entry will be those applicable at present to aliens. In considering the question of Commonwealth citizens already here these criteria will not be applied, and re-entry permits will be available to them on request and on payment of the necessary free, ... I should however make it clear that although the criteria applicable to new entrants will not be applied to Commonwealth citizens already here, a further criterion - that of good behaviour - will apply. Those who demonstrate that their presence in the Colony is undesirable because of ill behaviour will not get re-entry permits."

76. The Attorney General Sir Denys Roberts in his address to the Legislative Council when he introduced amendments to the Immigration Bill 1971 on the resumption of debate on the Bill, said this:

"These amendments seek to give a greater feeling of security to people who belong to Hong Kong yet to retain in the executive sufficient powers to get rid of those who abuse the welcome which Hong Kong has traditionally extended to those who have come here to contribute to, and to share in, our progress and prosperity.

I should perhaps make it clear that, on balance, no category of persons will be worse off as a result of these amendments except those citizens of the United Kingdom and Colonies who are neither Hong Kong belongers nor of United Kingdom origin, and that most categories of persons will be better off, so far as the right to enter Hong Kong and safeguards with regard to deportation from the Colony are concerned."

77. What was said by Sir Hugh Norman clearly reflected the policy that before the 1969 Ordinance, Commonwealth and British immigrants required no visas to enter Hong Kong and would not be subject to restrictions as to stay. That before the 1969 Ordinance, the father was permitted to enter Hong Kong unconditionally without a visa on a number of occasions demonstrates that that was the existing policy. The fact that after the 1969 Ordinance came into effect, the father obtained a Class A re-entry permit for multiple journey with no condition attached to it also demonstrates that the policy after the 1969 Ordinance was, as pronounced by the Colonial Secretary, that the new control would not apply to a Commonwealth or British immigrant already in Hong Kong. On his return to Hong Kong in June 1971 after the commencement of the 1971 Ordinance, his re-entry permit had expired but he was permitted to enter Hong Kong without a visa. It is not denied that by that time he had been ordinarily resident since 1951 and had not since then been ordinarily resident else where. His absence from Hong Kong was purely for his studies abroad. This further demonstrates the intention was that the tighter control would not apply to returning Commonwealth resident who had been here before the commencement of the tighter control. For a returning resident, the only criterion at the time that would prevent him from entry to Hong Kong would be he was an undesirable person in respect of whom no permission to enter would be granted. Obviously the father was never regarded as such by the immigration officer.

78. The father has never claimed he was a Hong Kong belonger under the 1971 Ordinance on his return in June 1971. He only claimed the status returning resident with an accrued right not to be deported, a right that had survived the change in legislation and had not been taken away expressly or by necessary implication by the 1971 Ordinance. His status as such was never changed by the 1971 Ordinance. It was unreasonable for the immigration officer to exercise his discretion to impose the limits as to stay on the father on his return in June 1971 and thereafter when his passport was renewed, regardless of the fact that the new policy had been pronounced by the Government as not applicable to him.

79. My conclusion is that the limits on the father's stay at the time of the applicants' births should not have any effect. I cannot agree with the Registrar that the father was not "settled" at the time of the applicants' births.

80. As to the Registrar's cross appeal. Suffice it to say, the application was for judicial review of the Registrar's decision not to amend the applicants' birth certificate and it was made within a reasonable time after the Registrar's refusal. There was no delay. Under the Registration of Births and Deaths Ordinance, an application to amend a birth certificate may be made at any time. The applicants were entitled to apply for amendment even though it was some 14 - 15 years after their birth certificates were issued. The amendment which they had sought was one which the Registrar could have made under the Ordinance.

81. For these reasons, I would allow the appeal and grant the orders sought by the applicants in this appeal. The cross appeal should be dismissed.

Hon Keith JA:

Introduction

82. The Applicants' father was born in Pakistan. He came to Hong Kong with his parents in September 1951 when he was 3. Although he spent some time overseas, he has lived in Hong Kong ever since. Despite that, Chung J held that until 1988 he had not become "settled" in Hong Kong within the meaning of section 50(2) of the British Nationality Act 1981 ("the 1981 Act"). That surprising conclusion has been challenged on this appeal.

83. The status of the Applicants' father is important for this reason. Section 15(1)(b) of the 1981 Act provides:

"A person born in a dependent territory ... shall be a British Dependent Territories citizen if at the time of the birth his father or mother is ... settled in a dependent territory."

Thus, if the Applicants' father is regarded as having been settled in a dependent territory at the time of the Applicants' birth, the Applicants were themselves British Dependent Territories citizens when they were born in Hong Kong in 1984 and 1985. That would have meant that when they were born they were Hong Kong belongers as well: see para. 2(a) of the First Schedule to the Immigration Ordinance 1971 ("the 1971 Ordinance") (as added by section 2(e) of the Immigration (Amendment) (No. 2) Ordinance 1982 ("the 1982 Ordinance")). In consequence, their status would have been wrongly described in the births register kept by the Registrar of Births and Deaths ("the Registrar") pursuant to the Births and Deaths Registration Ordinance (Cap. 174) ("the BDRO"): their status as Hong Kong belongers should have been described in the register as "established" rather than "not established".

The status of the Applicants' father

84. Section 50(2) of the 1981 Act provides (so far as is material):

"... references in this Act to a person being settled ... in a dependent territory are references to his being ordinarily resident... in that territory without being subject under the immigration laws to any restriction on the period for which he may remain."

At the time of the Applicants' birth, Hong Kong was a dependent territory: see section 50(1) of, and Schedule 6 to, the 1981 Act. It has always been accepted that, by the time of the Applicants' birth, their father was ordinarily resident in Hong Kong. Accordingly, the crucial question is whether, at the time of their birth, he was "subject under the immigration laws to any restriction on the period for which he may remain".

85. The words "under the immigration laws" are important. It is accepted that, at the time of the Applicants' birth, his passport had been indorsed with a restriction on the period for which he could remain in Hong Kong, namely until 21 November 1985. However, for that restriction to prevent him from being regarded as settled in Hong Kong, that restriction had to have been one which "the immigration laws" of Hong Kong permitted. Mr William Marshall SC for the Registrar contended that the restriction was permitted. Mr Gerard McCoy SC for the Applicants contended that it was not. That is the critical issue in the case.

86. The relevant immigration laws. The legal regime relating to immigration which was in place in Hong Kong at the time of the Applicants' birth was the 1971 Ordinance as amended by the 1982 Ordinance. Section 8(1) of the 1971 Ordinance conferred the right to land in Hong Kong on three categories of persons: Hong Kong belongers, resident United Kingdom belongers and Chinese residents. A fourth category - resident British citizens - was added by the 1982 Ordinance. There was no possibility of the Applicants' father being regarded as either a Chinese resident, a resident United Kingdom belonger or a resident British citizen. As for whether he was a Hong Kong belonger, the phrase "Hong Kong belonger" was defined in section 2(1) of the 1971 Ordinance as meaning four categories of British subjects. Although the Applicants' father had been a British subject on 1 April 1972 when the 1971 Ordinance came into force, it has at all times been conceded that he did not come within any of those categories. Nor did he come within any of the categories of Hong Kong belonger added by the 1982 Ordinance. He was therefore not a Hong Kong belonger within the meaning of the 1971 Ordinance, and he did not come within any of the categories of persons upon whom the 1971 Ordinance conferred the right to land in Hong Kong.

87. The position of those persons, like the Applicants' father, upon whom the 1971 Ordinance had not conferred the right to land in Hong Kong was governed by sections 7 and 11 of the 1971 Ordinance. By section 7, such a person could "not land in Hong Kong without the permission of an immigration officer". Section 11(1) conferred on an immigration officer the power to "give such person permission to land in Hong Kong or refuse him such permission". And section 11(2)(a) provided that "[w]here permission is given to a person to land in Hong Kong, an immigration officer may impose a limit of stay", defined in section 2(1) as meaning "a condition of stay limiting the period during which a person may remain in Hong Kong".

88. Thus, the argument advanced on behalf of the Registrar is that the immigration laws of Hong Kong permitted immigration officers to limit the Applicants' father's stay in Hong Kong whenever he landed in Hong Kong after 1 April 1972 following temporary trips abroad. Accordingly, the restrictions which had regularly been indorsed on his passport since then were lawful, and the Applicants' father could not be regarded as having been "settled" in Hong Kong at the time of the Applicants' birth.

89. What is the argument against that? Mr McCoy contended that the power conferred on immigration officers to impose a limit of stay upon persons landing in Hong Kong but upon whom the 1971 Ordinance did not confer the right to land in Hong Kong did not apply to persons who had already acquired the "right to remain" in Hong Kong. Analytically, this argument requires three questions to be answered:

(i) Had the Applicants' father acquired the "right to remain" in Hong Kong before the 1971 Ordinance took effect?

(ii) If so, did his right to remain in Hong Kong mean that he had the right to land in Hong Kong without a limit of stay before the 1971 Ordinance took effect?

(iii) Alternatively, did his right to remain in Hong Kong mean that he had the right to land in Hong Kong without a limit of stay after the 1971 Ordinance took effect?

I propose to deal with each of these questions in turn.

(i) The right to remain in Hong Kong. The argument that the Applicants' father had acquired the right to remain in Hong Kong before the 1971 Ordinance took effect derives from the fact that it is common ground that, as a result of his birth in Pakistan, he had always been a British subject. As a British subject, he was covered by the Deportation (British Subjects) Ordinance 1936 ("the 1936 Ordinance"). Section 3 of the 1936 Ordinance empowered the Governor in Council to

"... make a deportation order in respect of an immigrant British subject who does not belong to the Colony..."

Since there was no power to make a deportation order in respect of an immigrant British subject who belonged to the Colony, it is said that such British subjects could not be deported from Hong Kong. Section 2(2) of the 1936 Ordinance identified which British subjects were "deemed to belong to the Colony" for the purpose of the Ordinance. They included, in section 2(2)(b), a British subject who

"... has been ordinarily resident in the Colony continuously for a period of seven years or more and since the completion of such period of residence has not been ordinarily resident in any other part of His Majesty's dominions or any territory under His Majesty's protection continuously for a period of seven years or more..."

The Applicants' father came within this provision in September 1958 because by then he had been ordinarily resident in Hong Kong for a continuous period of 7 years and had neither before nor since then been ordinarily resident anywhere else for a continuous period of 7 years. Thus, by September 1958, he was deemed to "belong" to Hong Kong, and could not be deported from Hong Kong. Accordingly, from then on, he had the right to remain in Hong Kong.

90. I cannot accept this argument. The law on deportation had previously been included in the Deportation Ordinance 1917. That had conferred on the Governor in Council limited powers to deport British subjects. It was repealed in 1935, and the Governor in Council's powers of deportation in respect of British subjects were subsequently included in the 1936 Ordinance. Two significant changes in the Governor in Council's powers to deport British subjects were effected by the 1936 Ordinance. First, the 1936 Ordinance increased the circumstances in which British subjects could be deported. But secondly, it was thought inappropriate for the Governor in Council to have the power to deport British subjects who had a close connection with Hong Kong. That was achieved by excluding from the Governor in Council's powers of deportation immigrant British subjects who were deemed to "belong" to Hong Kong.

91. What this analysis shows is that the 1936 Ordinance concerned the deportation powers of the Governor in Council, rather than the right of immigrant British subjects who were deemed to "belong" to Hong Kong to remain in Hong Kong. In other words, the power to deport only immigrant British subjects who were not deemed to "belong" to Hong Kong did not have the effect of conferring on immigrant British subjects who were deemed to "belong" to Hong Kong the right not to be deported from Hong Kong. In practical terms, such British subjects could not be deported from Hong Kong while they were in Hong Kong. But that could not be regarded as a right not to be deported from Hong Kong. It was merely the practical consequence of the absence of a power to deport them. Accordingly, the premise on which Mr McCoy's elaborate argument is based - namely, that the Applicant's father acquired the right to remain in Hong Kong in September 1958 - is incorrect. However, since Rogers V-P and Leong JA take a different view of the effect of the 1936 Ordinance, I propose to address the remaining issues on the assumption that the Applicant's father had acquired the right not to be deported from Hong Kong in September 1958.

(ii) The right to land in Hong Kong without restrictions. Having said that, the right not to be deported from Hong Kong can only be a meaningful one while one is in Hong Kong. Any right not to be deported from Hong Kong is meaningless if one is outside Hong Kong - unless the right not to be deported from Hong Kong is equivalent to a right to return to Hong Kong whenever one wants to, i.e. a right equivalent to what is now referred to as a right of abode in Hong Kong. But even if it can be said that the 1936 Ordinance conferred rights on immigrant British subjects who were deemed to "belong" to Hong Kong, the right was only a right not to be deported from Hong Kong, not a right to return to Hong Kong whenever one wanted to. Thus, if a British subject with the right not to be deported from Hong Kong left Hong Kong voluntarily, even if only for a day or two, the right not to be deported from Hong Kong could not be invoked to justify the right to land in Hong Kong without restrictions. Whether a person who had the right not to be deported from Hong Kong had the right to return to Hong Kong and to land without restrictions if he left Hong Kong even for a short time depended on the regime of immigration control in force at the time.

92. The regime of immigration control which was in force when the Applicants' father acquired the right not to be deported from Hong Kong depends upon the precise date of his arrival in Hong Kong. There is no evidence as to when in September 1951 he arrived, although Mr McCoy's written submissions in reply assumed that he had arrived on 9 September 1951. If that is based on the indorsement on page 6 of his passport, I am afraid that I cannot read the photocopy of it. But since it is common ground that his right not to be deported from Hong Kong crystallised some time in September 1958, the regime of immigration control in force at the time was the Immigrants Control Ordinance 1949 ("the 1949 Ordinance"), even though that regime was superseded on 28 November 1958 when the Immigration (Control and Offences) Ordinance 1958 ("the 1958 Ordinance") came into force. Having said that, though, although the 1958 Ordinance expressly provided that nothing in the relevant section was to derogate from the law relating to deportation then in force, there is, in my opinion, no material difference between the relevant sections in the two Ordinances relating to immigration control, and it is therefore necessary for me to consider only the regime of immigration control created by the 1949 Ordinance.

93. The relevant provisions in the 1949 Ordinance are sections 15 and 22. Section 15 provided:

"The Immigration Officer may by order, notice or otherwise impose such conditions either general or special in or upon the occasion of or subsequent to any permit granted to an immigrant to enter, whether for the purpose of residence, sojourn or transient visit or for transhipment at a port in the Colony and may at any time vary or add to these conditions as he thinks fit."

Section 22 provided:

"The Immigration Officer shall, at all times, have discretion to limit the stay of any immigrant entering the Colony."

These provisions applied to the Applicants' father because the term "immigrant" in these sections is defined by section 2(1)(d) as meaning "any person other than a person born in the Colony and in possession of documentary proof of such birth".

94. I am inclined to the view that conditions in general (section 15) and a limit of stay in particular (section 22) could only be imposed when a person not born in Hong Kong sought to enter Hong Kong. In other words, I doubt whether sections 15 and 22 sanctioned the imposition of conditions or a limit of stay in respect of someone already in Hong Kong. But if someone already in Hong Kong chose to leave Hong Kong and then to return, he was thrown back to the regime of immigration control which applied to anyone not born in Hong Kong. There was no express saving from the regime of immigration control created by the 1949 Ordinance for persons who had acquired the right under the 1936 Ordinance not to be deported from Hong Kong. Nor is there any basis for inferring such a saving. The fact that a British subject had so close a connection with Hong Kong that he could not be deported from Hong Kong does not mean that if he left Hong Kong it should necessarily follow that he could automatically return to Hong Kong and land without restrictions. If the legislature had intended those who had acquired the right not to be deported from Hong Kong under the 1936 Ordinance to be immune from immigration control, it could have added to the definition of "immigrant" in section 2(1)(d) of the 1949 Ordinance words such as "or any immigrant British subject who is deemed to belong to the Colony within the meaning of the Deportation (British Subjects) Ordinance 1936".

95. Thus, when the Applicants' father acquired in September 1958 the right not to be deported from Hong Kong, that right continued so long as he remained in Hong Kong. But once he left Hong Kong, even for a short overseas trip, he became subject to the regime of immigration control created by the 1949 Ordinance and continued by the 1958 Ordinance. I do not think it possible to read sections 15 and 22 of the 1949 Ordinance, or their successors in the 1958 Ordinance, as not applying to someone who had not been born in Hong Kong but who had ordinarily resided in Hong Kong for long enough to be deemed, for the purpose of the 1936 Ordinance, as a person who belonged to Hong Kong. That would be to read words into the sections which simply are not there. Nor do I think that the intention of the legislature was so obvious as to justify their implication.

96. Accordingly, when the Applicants' father sought to return to Hong Kong, an immigration officer had the power to impose a limit on his stay in Hong Kong. It may be that his right not to be deported meant that any limit on his stay could not be enforced, but that did not prevent a limit on his stay being imposed. Again, no limit on his stay was in fact imposed until the policy of the Immigration Department changed in 1969, but that did not mean that a limit on his stay could not lawfully have been imposed. He may well have had an expectation that, absent a change of policy, no limit on his stay would be imposed, but he had no grounds for believing that the policy of the Immigration Department was cast in stone, and therefore no legitimate expectation that the policy would never be changed.

(iii) The effect of the 1971 Ordinance. Although the 1971 Ordinance expressly repealed the 1936 Ordinance, it did not provide that the right not to be deported from Hong Kong created by the 1936 Ordinance would no longer be available to British subjects who had already acquired that right. The Ordinance was silent on the matter. Did the repeal of the 1936 Ordinance in those circumstances result in the loss of that right by British subjects who had already acquired it? The answer has to be that it did not. Section 23(c) of the Interpretation and General Clauses Ordinance (Cap. 1) provides (so far as is material):

"Where an Ordinance repeals in whole or in part any other Ordinance, the repeal shall not ... affect any right... acquired ...under any Ordinance so repealed..."

The common law is to the same effect. As Lord Brightman said in Yew Bon Tew v. Kenderaan Bas Mara [1983] 1 AC 553 at p. 558 E-F:

"Apart from the provisions of the interpretations statutes, there is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already passed."

Thus, the repeal of the 1936 Ordinance did not affect the Applicants' father's right not to be deported from Hong Kong.

97. But the question still remains whether the Applicants' father's right not to be deported from Hong Kong rendered him immune from the new regime of immigration control created by the 1971 Ordinance. Like the 1949 and 1958 Ordinances, there was no express saving in the 1971 Ordinance from the regime of immigration control which it created for persons who had acquired the right under the 1936 Ordinance not to be deported from Hong Kong. As with the earlier Ordinances, the fact that a person continued to have the right not to be deported from Hong Kong did not remove him from the regime of immigration control created by the 1971 Ordinance if he chose to leave Hong Kong and then sought to return to Hong Kong. I do not think it possible to read section 8(1) of the 1971 Ordinance as conferring the right to land in Hong Kong on a new category of persons not referred to in it, namely those British subjects who had resided in Hong Kong for long enough to have been deemed, for the purpose of the 1936 Ordinance, as having belonged to Hong Kong.

98. But even if such British subjects did not come within the categories of persons who had the right to land in Hong Kong, to what extent did the regime of immigration control created by the 1971 Ordinance as amended apply to them? Plainly, they needed permission to land in Hong Kong: see section 11(1). But Mr McCoy argued that once they had been given permission to land under section 11(1), that permission to land could not be made the subject of a limit of stay because that limit of stay (which in effect permitted them to remain in Hong Kong for a definite period only) was inconsistent with their right (once they had returned to Hong Kong) not to be deported from Hong Kong, which was equivalent to a right to remain in Hong Kong for an indefinite period.

99. I cannot accept this argument. First, it puts the cart before the horse. Their right not to be deported from Hong Kong only arose once they had returned to Hong Kong. Whether they could return to Hong Kong was subject to the regime of immigration control created by the 1971 Ordinance. Secondly, the argument assumes that whether permission to enter should be granted and whether a limit of stay should be imposed are separate questions, the latter question to be considered only if permission to enter is granted. I do not read sections 11(1) and 11(2) of the 1971 Ordinance in that way. In my opinion, the two questions are to be decided together. If Mr McCoy's argument is correct, the opening words of section 11(2) should have read:

"Where permission has been given to a person to land in Hong Kong, an immigration officer may then impose ..."

The language of the section suggests that the issues are to be decided at the same time. Indeed, that makes commonsense. An immigration officer's decision to permit a person to land in Hong Kong may itself depend on whether, if permission is granted, the person's stay in Hong Kong should be limited. It is completely artificial to divorce the two questions from each other and keep them in different compartments.

100. Finally, Mr McCoy made the point about the 1971 Ordinance which could equally have been made about the earlier Ordinances, namely that a person's right not to be deported from Hong Kong meant that any limit on his stay could not have been enforced. I cannot accept that. It may be that it would have prevented the Governor in Council from making a deportation order under section 20 of the 1971 Ordinance. But section 19 of the 1971 Ordinance permitted the Governor in Council to make a removal order against someone who, inter alia, committed an offence under section 41 of the 1971 Ordinance. Section 41 made it an offence to contravene a condition of stay in Hong Kong, and a limit of stay was one form of condition of stay. Thus, a limit on the stay in Hong Kong of a person who had the right not to be deported from Hong Kong could nevertheless be enforced by the operation of section 19 of the 1971 Ordinance.

101. Conclusion. For these reasons, I conclude that the power conferred on immigration officers to impose a limit of stay upon persons landing in Hong Kong but upon whom the 1971 Ordinance did not confer the right to land in Hong Kong applied to persons such as the Applicants' father - whether or not they had already acquired what can properly be described as a right not to be deported from Hong Kong. Accordingly, the restrictions which had regularly been indorsed upon his passport since the enactment of the 1971 Ordinance, and which were included in his passport when the Applicants were born, were lawful. It follows that he had not been "settled" in Hong Kong within the meaning of section 50(2) of the 1981 Act when the Applicants were born. The consequence of that was that the Applicants were not British Dependent Territories citizens at the time of their birth. Thus, they were not Hong Kong belongers either, and the Registrar was correct to confirm that that status had not been established. Accordingly, the appeal from Chung J's dismissal of their application for judicial review should, in my opinion, be dismissed.

102. However, I should make two final comments on this aspect of the case. First, I reach this conclusion with no great enthusiasm. The idea that the Applicants' father had not become "settled" in Hong Kong by the time that his sons were born more than 30 years after he had first come to live in Hong Kong offends both elementary concepts of justice and commonsense. The Applicants' father has had the misfortune to fall foul of an unusually restrictive definition of the word "settled". Secondly, I have not found it necessary to resort to the debates in the Legislative Council for the purpose of discerning the reasons for the change of immigration policy in 1969 or as an aid to the construction of the relevant provisions of the 1971 Ordinance. The reasons for the change of immigration policy in 1969 seem to me to be irrelevant to the question of statutory construction which the case raises, and the conditions laid down in Pepper v. Hart for the admission into evidence of ministerial statements have, in my opinion, not been satisfied.

103. However, in case it is held elsewhere that those conditions have been satisfied, it is pertinent to note what the Acting Attorney General said when moving the second reading of the Bill which became the 1971 Ordinance:

"In speaking of the right of a belonger to come in and to stay here as long as he likes I said, Sir, that this was as it had always been. I would like to emphasize that the same is true of the restrictions on entry applicable to immigrants, and it follows from what I have just been saying that I am speaking here not only of aliens but also of British subjects who cannot claim to be belongers. There is no change in the law in this respect; no right to enter Hong Kong is being taken away: no such right exists in the law today except for the belonger. In practice, of course, Sir, British subjects daily enter Hong Kong without any visa or with one which is granted automatically on their arrival. But such entry is by permission not as of right." (Hong Kong Legislative Council, Reports of Debates, 21 July 1971.)

Thus, it was never intended that a British subject who was not a Hong Kong belonger within the meaning of the 1971 Ordinance should have the right to land in Hong Kong without restrictions. It may be that it had not occurred to anyone that there was a group of British subjects, who were not Hong Kong belongers, but who could not be deported from Hong Kong. But since the intention was to accord to British subjects who were not Hong Kong belongers rights no greater than those accorded to aliens, it can be inferred that, if it had been appreciated that there were British subjects who were not Hong Kong belongers but who could not be deported from Hong Kong, the intention would likewise have been not to make them immune from the new regime of immigration control created by the 1971 Ordinance.

The Registrar's alternative arguments

104. In addition to arguing that the Applicants' father could not be said to have been settled in Hong Kong at the time of the Applicants' birth, Mr Marshall advanced a number of other arguments relating to the Applicants' entitlement to the relief sought on their behalf. It is not necessary for me to address these arguments in the light of my conclusion on the status of the Applicants' father, but since Mr Marshall's arguments raised procedural and substantive questions of some importance, I propose to deal with them.

105. Delay. The decision challenged in the present case was the decision of the Registrar to refuse to correct the entries in the births register that the status of the Applicants as Hong Kong belongers had not been established. Mr Marshall did not contend that there had been any delay in challenging that decision. The application for leave to apply for judicial review of it had been made promptly and well within the three-month time limit laid down by Ord. 53 r. 4(1). Moreover, since there is no time limit on the exercise by the Registrar of his power to correct an entry in the births register, there is no corresponding time limit on anyone who wishes to have the register corrected to apply for such a correction to be made.

106. Accordingly, Mr Marshall's argument on delay was based on the proposition that in reality the decision which was being challenged was not the Registrar's decision in 1999 to refuse to correct the entries in the register, but the Registrar's decisions made in 1984 and 1985, when the Applicants' births were registered, that their status as Hong Kong belongers had not been established. If these decisions are regarded as the decisions which are being challenged, the challenge is years too late.

107. I cannot accept this argument. Although the decision made in 1999 had the effect of confirming the earlier decisions made in 1984 and 1985, the decision made in 1999 can properly be said to have superseded and replaced them. That is because the decision made in 1999 followed a reconsideration of the issue by the Registrar. As the Court of First Instance said in Hong Kong and China Gas Co. Ltd. v. Director of Lands (1997) 7 HKPLR 510 at p. 514A-B:

"If a public officer decides to reconsider an earlier decision made by him or his subordinate, the decision made following that reconsideration is amenable to judicial review even if it amounts to the confirmation of the earlier decision. That was accepted as being correct in relation to the reconsideration of issues of policy in McCarthy & Stone (Developments) Ltd. v. Richmond-upon-Thames London Borough Council [1992] 2 AC 48."

Accordingly, the decision made in 1999 was amenable to judicial review - and thus no question of delay arises - even though its effect was to confirm the earlier decisions made in 1984 and 1985.

108. I should add that Mr McCoy questioned whether it had ever been open to the Registrar to take this point. When Yeung J considered the Applicants' application for leave to apply for judicial review, he did so, in accordance with the usual practice, ex parte without a hearing. When he granted leave, he was understandably unaware of the argument which was going to be mounted in due course. Accordingly, he did not consider whether the Applicants' time for applying for leave to apply for judicial review needed to be extended, and if so whether it should be extended. That placed the Registrar in a dilemma. Should he do nothing at that stage, but ask the judge at the substantive hearing either

(a) to rule that the Applicants' failure to obtain an extension of time for applying for leave to apply for judicial review meant that their substantive application for judicial review had to be dismissed, or

(b) to decline to give relief on the ground that the delay "would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration": see section 21K(6) of the High Court Ordinance (Cap. 4).

Or should he apply for the leave which had been granted to be set aside. The practice in Hong Kong has been to leave the matter to the substantive hearing: see para. 1. 4 of the Practice Direction issued by the judge in charge of the Constitutional and Administrative Law List. But following the guidance recently given by the House of Lords in R. v. Criminal Injuries Compensation Board ex parte A. [1999] 2 AC 330 (see in particular the speech of Lord Slynn of Hadley at p. 341A-F), the Registrar took the latter course and applied by summons for the leave which had been granted to be set aside. The parties agreed that the hearing of the summons should be deferred until the hearing of the substantive application.

109. Chung J decided the substantive application on its merits, and since he found in favour of the Registrar, it was unnecessary for him to address the issue of delay. However, he may not have appreciated that the issue of delay was relevant to whether the grant of leave should have been set aside, because although he did not decide the issue of delay he nevertheless dismissed the summons to have the grant of leave set aside. Thus, the correct way to have resurrected the issue in the Court of Appeal would have been for the Registrar to have filed a notice of cross-appeal, appealing against the judge's refusal to set aside the grant of leave. Mr McCoy contended that the Registrar had done no such thing. I cannot agree. Part II of the Respondent's Notice of 21 March 2000 contained the statement that the Registrar would be cross-appealing for an order that Yeung J's order granting the Applicants leave to apply for judicial review be set aside. It is true that the Respondent's Notice did not refer in terms to that part of Chung J's order in which he dismissed the Registrar's summons, but there can be no doubt that the cross-appeal was from that order. I would therefore hold that it is open to the Registrar to take the point that the challenge here is too late, though for the reasons I have given I would dismiss the argument on delay on its merits.

110. Jurisdiction. The second point taken by Mr Marshall related to the jurisdiction of the Registrar to correct an entry in the births register relating to the status of the person registered. The request for the births register to be corrected was made pursuant to section 27(1)(c) of the BDRO, which provides (so far as is material):

"... an error of fact or substance in [the births] register may be corrected by entry in the margin (without any alteration of the original entry) by a registrar on payment of the fee of $425 and on production to him by the person requiring such error to be corrected of a declaration in the prescribed form setting forth the nature of the error and the true facts of the case, and made by 2 persons required by this Ordinance to give information concerning the birth... with reference to which the error has been made, or, in default of such persons, then by 2 credible persons to the satisfaction of the registrar having knowledge of the truth of the case, and the registrar shall initial such marginal entry and shall add thereto the day and month and year when such correction is made...."

Mr Marshall argued that this provision gave the Registrar the power to correct errors relating to matters of fact, such as the place and date of birth, the names of the father and mother, and the sex of the child, but not whether the status of the child as a Hong Kong belonger had been established - presumably because that requires a judgment to be made as to the effect in law of such facts as the informant gave.

111. The limited scope of the jurisdiction to correct errors is borne out, claimed Mr Marshall, by the provision limiting the persons who can make the statutory declaration identifying the error, namely "2 persons required by this Ordinance to give information concerning the birth ... with reference to which the error has been made, or, in default of such persons, then by 2 credible persons ... having knowledge of the truth of the case". The persons who fall into the first category are identified in section 7 of the BDRO as being the father, the mother, the occupier of the house where the child was born and any person present at the birth. Since only the facts relating to the child's birth, and not necessarily the facts relating to the child's status, will be known to these persons, the inference to be drawn is that the only errors which can be corrected under section 27(1)(c) are errors relating to the child's birth.

112. I see the force of this ingenious argument, but I am not persuaded by it. The jurisdiction to correct errors is not limited to errors of fact. It also includes errors of substance. Moreover, the obligation of informants under section 7 is to give information "of the several particulars required to be registered". Although we were not told what particulars were required to be registered in 1984 and 1985, we do know that the birth certificates which purported to certify what particulars had been registered stated whether the status of Hong Kong belonger had been established. If, therefore, an informant was required to give particulars of facts from which a judgment could be made by the Registrar as to whether the status of Hong Kong belonger had been established, it would be absurd to contend that his jurisdiction to correct errors did not extend to errors as to whether that status had been established.

113. I should add two comments about Mr Marshall's argument on the Registrar's jurisdiction. First, Mr Marshall relied on the argument in the context of delay. For my part, I do not follow that at all. The argument, so it seems to me, goes to whether the Registrar had had the jurisdiction to do what the Applicants were asking him to do. That is the basis on which I have considered the argument. Secondly, if Mr Marshall's argument was correct, it would simply mean that the entries in the register would have to go uncorrected. It would not have prevented the Applicants from applying to the court for a declaration as to what their true status was. I appreciate that the respondent to such an application would have had to have been the Director of Immigration rather than the Registrar, but since the arguments relied upon by the Registrar would presumably have been the same as those relied on by the Director of Immigration, a suitable procedural device could have been adopted to overcome that problem.

Conclusion

114. I have already said that I would dismiss the Applicants' appeal from the order of Chung J. However, since Rogers V-P and Leong JA are in favour of allowing the appeal, I should address the question of the appropriate orders to be made on the footing that the Applicants' father should be regarded as having been settled in Hong Kong at the time of their birth. We were not addressed on the precise orders which we should make, but for my part I would have declared that the Applicants acquired the status of Hong Kong belonger when they were born on 8 March 1984 and 13 March 1985 respectively. Since this case has only been about whether that status had been established, I would have not made any declarations as to whether

(a) the Applicants acquired the status of Hong Kong permanent resident on 1 July 1987 when the Immigration (Amendment) (No. 2) Ordinance 1987 came into force, or

(b) the Applicants acquired the status of permanent resident of the Hong Kong Special Administrative Region on 1 July 1997 when the Immigration (Amendment) (No. 2) Ordinance 1997 came into force.

Finally, it is important to remember that birth certificates merely certify the particulars recorded in the births register. The Registrar has no power to amend birth certificates if to do so would render them inconsistent with the particulars recorded in the births register. Accordingly, the orders of mandamus which I would have made would have been orders requiring the Registrar

(a) to correct the entries relating to the Applicants in the births register so as to state that their status as Hong Kong belongers at the time of their birth had been established, and

(b) to issue to the Applicants free of charge, pursuant to section 9(4) of the BDRO, a certificate of the registration of their birth recording that their status as Hong Kong belongers at the time of their birth had been established.

Hon Rogers VP:

115. The appeal will therefore be allowed and the cross-appeal dismissed with an order nisi that costs be to the applicants.