SHOVE SHERPA v. THE DIRECTOR OF IMMIGRATION

CACV 221/2018

[2019] HKCA 947

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 221 OF 2018

(ON APPEAL FROM HCAL 6 OF 2014)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

A.  INTRODUCTION

1.  This is the applicant’s appeal against the judgment (“the Judgment”) dated 31 May 2018 of Zervos J (as he then was) (“the Judge”) dismissing his application for judicial review.

2.  The applicant is a Nepalese national born in Hong Kong in 1981, whose application for Verification of Eligibility for Permanent Identity Card (“VEPIC Application”) was rejected by a decision (“the VEPIC Decision”) of the Director of Immigration (“the Director”) dated 1 December 2000.  He also had a deportation order (“the Deportation Order”) made against him on 28 July 2005.

3.  The Director made the VEPIC Decision on the basis that the applicant did not satisfy the transitional provisions under paragraph 6(1) of Schedule 1 (“Schedule 1”) to the Immigration Ordinance, Cap 115 (“the IO”) which were enacted to provide for how a non-Chinese national who used to be a permanent resident in Hong Kong before the reversion of sovereignty of Hong Kong to China on 1 July 1997 could continue to be regarded as a permanent resident in Hong Kong after 1 July 1997.

4.  By way of the judicial review application made in 2014, the applicant sought to challenge essentially the VEPIC Decision as unlawful.  In gist, it was the applicant’s case that, as a matter of law, he should be regarded as a Hong Kong permanent resident (“HKPR”) after 1 July 1997, as he had acquired a “dual right of abode” in Hong Kong before 1 July 1997 under the various previously applicable editions of the IO, which right of abode was carried forward thereafter through the various provisions of the Basic Law (“BL”), the Interpretation and General Clauses Ordinance, Cap 1 (“the IGCO”) and the IO.  He also contended that paragraphs 6 and 7 of Schedule 1 were in any event inapplicable to his case and/or unconstitutional.

5.  The Judge in the detailed Judgment considered and rejected all the grounds and dismissed the judicial review.

6.  By way of Notice of Appeal filed on 12 June 2018, the applicant appeals against the Judgment.

B.  BACKGROUND

B1.    The transitional provisions

7.  Paragraph 6 of Schedule 1 (“the Transitional Provisions”) provides for when a person who was a HKPR before 1 July 1997 can continue to be regarded as a HKPR after 1 July 1997 as follows:

“6. Transitional

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

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

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

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

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

8.  Thus, relevant to the applicant and for the present purposes, under the IO:

(1)  A foreign national is a HKPR if he has entered Hong Kong with a valid travel document[1], has ordinarily resided in Hong Kong for a continuous period of not less than seven years and has taken Hong Kong as his place of permanent residence before or after [1 July 1997] (paragraph 2(d) of Schedule 1);

(2)  A foreign national who was a HKPR before 1 July 1997 is taken to be a HKPR after 1 July 1997 under paragraph 2(d) of Schedule 1 (and exempt from the requirements under paragraph 3 of Schedule 1[2]) if, among others, after he ceased to be settled in Hong Kong immediately before 1 July 1997,

(a)  he returns to settle in Hong Kong within the period of 18 months commencing on 1 July 1997 (paragraph 6(1)(b) of Schedule 1); or

(b)  he returns to settle in Hong Kong after the period of 18 months commencing on 1 July 1997 but only if he has not been absent from Hong Kong for a continuous period of not less than 36 months (Paragraph 6(1)(c) of Schedule 1).

9.  Further, under paragraph 7(a) of Schedule 1, a HKPR after 1 July 1997 loses the status of such resident if being a person falling within Paragraph 2(d) of Schedule 1 has been absent from Hong Kong for a continuous period of not less than 36 months since he ceased to have ordinarily resident in Hong Kong.

B2.    The relevant facts

10.  The unchallenged background facts leading to this appeal were set out in detail by the Judge at [7] - [36] of the Judgment.  It is unnecessary for us to repeat them here, save for the following.

11.  The applicant was born in Hong Kong in 1981 and is a national of Nepal where he has a right of abode.  He moved back to Nepal in 1985 and only applied to assess his right of abode status in Hong Kong in 1999.

12.  In April 2000, the Right of Abode Section (“ROA Section”) of the Immigration Department determined that the applicant might have a claim to the right of abode or right to land because he was a holder of Hong Kong birth certificate and was a HKPR immediately before 1 July 1997.

13.  The applicant was therefore issued a visitor’s visa to enter Hong Kong on 29 August 2000 to facilitate his making of the VEPIC Application.  A Permanent Identity Card can only be issued to a person who is a HKPR.

14.  On 1 December 2000, by way of the VEPIC Decision, the Director rejected the applicant’s VEPIC Application on the basis that the applicant failed to return to settle in Hong Kong on or before 31 December 1998 (ie, he did not return to Hong Kong within 18 months after 1 July 1997, thus not falling with paragraph 6(1)(b)) and had been absent from Hong Kong for a continuous period of 36 months or more (thus not falling within paragraph 6(1)(c)).  In other words, the applicant failed to satisfy any of the relevant Transitional Provisions.

15.  In light of the VEPIC Decision, upon the applicant’s application, on 27 December 2000, the Commissioner of Registration issued to the applicant a Hong Kong Identity Card with a right to land but not a HKPR Identity Card on the basis that he was not a HKPR (“the Commissioner’s Decision”).  The applicant therefore continued to stay in Hong Kong.

16.  Thereafter, the applicant had been repeatedly convicted of various criminal offences over the years.  Eventually, on 28 July 2005, the Director issued the Deportation Order against him[3].  In the course of challenging the Deportation Order, the applicant enquired again about the refusal of his HKPR status.  The responses of the ROA Section on 11 January 2006 and on 28 April 2006 respectively were the same as the VEPIC Decision, that the applicant was not a HKPR as he failed to satisfy the Transitional Provisions.

17.  On 15 January 2014, the applicant commenced the present judicial review proceedings.  In the application, he sought declarations to the effect that (a) his right of abode status acquired before 1 July 1997 continued thereafter; (b) paragraphs 6 and 7 of Schedule 1 do not apply to him to extinguish his right of abode status and in any event are unconstitutional; (c) the VEPIC Decision, the Commissioner’s Decision and the Deportation Order are hence all unlawful or unconstitutional; and (d) all the various detentions made against him pending deportation are similarly unlawful or unconstitutional.

18.  The applicant’s grounds of judicial review were in summary that[4] (a) the applicant acquired “dual rights of abode”, both as a “Hong Kong belonger” under the relevant editions of the IO applicable respectively in 1971 and the 1982 (respectively the “1971 IO” and “1982 IO”) and as a “HKPR” in 1987 (“the 1987 IO”); (b) such “dual rights of abode” were carried forward by virtue of BL8[5], BL160[6] and section 23 of the IGCO[7]; (c) he is also conferred a right of abode separately by section 2A of the IO[8]; and (d) paragraphs 6 and 7 of Schedule 1 are in any event inapplicable and/or unconstitutional.

19.  As developed by the applicant’s then leading counsel at the substantive hearing before the Judge, the applicant’s case primarily rested on the interpretation of BL24 as to whether that provision exhaustively defined all the categories of HKPR after 1 July 1997[9].

C.  THE JUDGMENT

20.  The Judge made the following undisputed findings in relation to the applicant’s status prior to 1 July 1997 after considering the evolution of the concept of “HKPR”[10]:

(1)  Since the applicant was born in 1981, as a “British subject who was born in Hong Kong”, he was a “Hong Kong belonger” under section 2 of the 1971 IO.  Under which, he enjoyed the right to land in Hong Kong, was free from condition of stay, and no removal order or deportation order could be made against him.

(2)  After the enactment of the 1982 IO, the applicant continued to be a “Hong Kong belonger” under section 2(1)(a)(i) of the 1982 IO because of his status as a British subject who was born in Hong Kong before 1 January 1983.  Under which, he enjoyed the right to land in Hong Kong, and was free from immigration restrictions.

(3)  Although the 1987 IO replaced the concept “Hong Kong belonger” in the 1982 IO with HKPR and also introduced the term “right of abode”, the applicant qualified as the HKPR as a “British Dependent Territories citizen” pursuant to section 2(1) and paragraph 2(a) of the First Schedule of the 1987 IO.  Under which, he enjoyed the right of abode in Hong Kong.

21.  However, after 1 July 1997, it is indisputable that the applicant could not satisfy the conditions to be a HKPR under BL24(2), which provides the list of categories of HKPR as follows[11]:

“The permanent residents of the Hong Kong Special Administrative Region shall be:

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

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

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

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

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

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

22.  In the premises, the Judge identified at [86] of the Judgment that the applicant’s case centred primarily on establishing that BL24(2) was not exhaustive of the categories of HKPR after 1 July 1997.  In other words, the central issue before the Judge was whether the applicant was entitled to the right of abode through sources other than qualifying as a HKPR under BL24(2) as contended.  The Judge ruled against the applicant for the following reasons.

23.  First, the Judge rejected the applicant’s submissions[12] that BL24(1)[13] enabled the right of abode to be granted to other residents outside the defined categories under BL24(2).  He held that, on a proper interpretation of BL24 as a whole and against its enactment background with reference to the relevant enactment materials, BL24(3)[14] only granted the right of abode to the exhaustive list of HKPR under BL24(2): see [109] - [135] of the Judgment.

24.  Second, the Judge also rejected the concept of “dual rights of abode” and its alleged continuity after 1 July 1997 because:

(1)  Prior to 1 July 1997, the applicant only had one status as HKPR under the 1987 IO.  His previous status as “Hong Kong belonger” was removed and the rights attached were subsumed under his right of abode as a HKPR pursuant to the 1987 IO: see [136] - [140] of the Judgment.

(2)  BL160 and section 23 of the IGCO were inapplicable.  The Standing Committee of the National People’s Congress by a decision dated 23 February 1997 (“NPCSC Decision”) declared the definition of “Hong Kong permanent resident” in section 2, provisions relating to the “Hong Kong permanent residents” in Schedule 1 to the 1987 IO, and any provision giving effect to the British Nationality Act as applied in Hong Kong, to be invalid and should not be adopted as the laws of Hong Kong.

(3)  As a result, the legal basis for the applicant to qualify as a HKPR under the 1987 IO was found to be invalidated and shall not be adopted under BL160(2).  Further, the NPCSC Decision indicated a contrary intention under section 2(1) of the IGCO and excluded the application of section 23 of the IGCO in this circumstance: see [141] - [157] of the Judgment.

25.  Third, the Judge found the applicant’s submissions in relation to section 2A of the 1987 IO to be fallacious and were which ignored the exhaustive list of HKPR identified by Schedule 1 of the IO, reflecting BL24(2): see [158] - [160] of the Judgment.

26.  Fourth, in relation to the challenge that paragraphs 6 and 7 of Schedule 1 did not apply to the applicant as he had already acquired the right of abode before 1 July 1997 which was purportedly continued thereafter, the Judge said in light of his conclusion of the exhaustive nature of BL24(2) in defining the categories of HKPR after 1 July 1997, the applicant’s challenge raised a hypothetical issue which would not be appropriate for the court to address in this case.  See [161] - [164] of the Judgment.

27.  Finally, the Judge concluded that the applicant’s judicial review application should also be dismissed on a separate ground of substantial delay because the applicant should have mounted the argument on the interpretation of BL24 after the VEPIC Decision in 2000 or after the issue of the Deportation Order in 2005 without inordinate delay: see [168] - [171] of the Judgment.

D.  THIS APPEAL

D1.    Grounds of appeal

28.  The applicant was represented before the Judge but now appeared in person in this appeal.  In his Notice of Appeal, the applicant stated seven grounds of appeal.  They are as follows:

(1)  The Judge erred in law in deciding that in BL24(2) exhaustively defined all the categories of HKPR (“Ground 1”);

(2)  The Judge erred in law in deciding that BL24(2) should limit the effect of BL24(1) (“Ground 2”);

(3)  The Judge erred in law in deciding that the applicant did not have a dual right of abode in Hong Kong prior to 1 July 1997 (“Ground 3”);

(4)  The Judge erred in law in deciding that the applicant’s dual right of abode did not carry over into the HKSAR by BL160 and section 23 of the IGCO (“Ground 4”);

(5)  The Judge erred in law in deciding that the applicant’s right of abode acquired under section 2A of the 1987 IO was not adopted by BL160 into the laws of HKSAR (“Ground 5”);

(6)  The Judge erred in law not to apply the principle of generous interpretation of constitutional rights (“Ground 6”);

(7)  The applicant’s judicial review application was based on challenging constitutional matters, ie, the Judge erred in law in relying on “delay” as a good reason to dismiss the judicial review application (“Ground 7”).

29.  Pursuant to the directions[15] of the court, the applicant had until 26 June 2019 to lodge his skeleton submissions.  On 26 June 2019, the applicant wrote to the court stating that he would adopt the written submissions dated 16 May 2016 made by his legal representative before the Judge.

30.  At the hearing, the applicant again confirmed that he had nothing else to add save to rely on all the submissions made by his counsel before the Judge.

D2.    Discussion

31.  Before we address the merits of the appeal, we shall first reiterate some general principles applicable to the appellate process in Hong Kong.

32.  As repeatedly emphasized by this court, in the determination of an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.[16]

33.  An appeal is thus not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  It is incumbent for the applicant to point out with sufficient particularity the errors allegedly committed by the Judge.

34.  Bearing these principles in mind, we now turn to consider the merits of this appeal.

35.  It can be immediately seen from the above stated grounds of appeal that the applicant has not identified with any particularity specific errors in the reasoning of the Judge.  All that the applicant seeks to do in this appeal is to effectively regurgitate all the grounds of challenge and arguments his leading counsel had advanced unsuccessfully before the Judge.  General disagreement without pinpointing any specific mistakes in the reasoning of the lower court cannot be effective grounds of appeal.  On this basis alone, we will dismiss this appeal.

36.  Further, and in any event, we have looked at the Judge’s reasons in light of the uncontroversial evidence available before the court.  We do not find any errors of law or that his conclusion is plainly wrong.

37.  First, it is plainly right for the Judge to find that BL24(2) provided an exhaustive list of HKPR who has the right of abode in Hong Kong.  The Judge applied the correct statutory interpretation principles by considering the ordinary meaning of BL24 with regard to its context, purpose and the relevant legislative materials.  He did not commit any errors of law in arriving at his conclusion on the construction of BL24(2).  We agree that, properly construed, the right of abode under BL24(3) is only granted to the exhaustive list of HKPR provided under BL24(2), which are in turn enacted in the IO under Schedule 1.

38.  In the premises, the Judge is also entirely correct to conclude that there are no other routes for the applicant to acquire or retain the right of abode other than qualifying as a HKPR under BL24(2).  Thus, Grounds 1 and 2 must fail.

39.  Second, as the right of abode is only given to a person who qualifies to be HKPR under BL24(2) after 1 July 1997, and it is indisputable that the applicant could not fall within any of those categories of HKPR, his claim that the alleged “dual right of abode” continued after 1 July 1997 must similarly fail.

40.  In any event, the Judge is also plainly right in rejecting the concept of “dual rights of abode”.  It is clear from the legislative history and context as analysed by the Judge in detail that the applicant’s contended concept of “dual rights of abode” never existed and, in any event, the right of abode could not have continued after 1 July 1997 other than qualifying as a HKPR under BL24(2).  Grounds 3, 4, 5 and 6 are also without any merits and should be dismissed.

41.  Third, in relation to Ground 7, we have reviewed the Judge’s reasons given at [168] - [171] of the Judgment in exercising his discretion to also dismiss the judicial review on the basis of substantial delay.  He had applied the correct legal principles to the indisputable facts concerning the applicant’s long delay in taking out the judicial review application to effectively challenge the VEPIC Decision.  We do not see any errors in law committed by the Judge nor do we find his conclusion to be plainly wrong.  Quite to the opposite, we find his conclusion to be plainly right.  Ground 7 must similarly fail.

42.  Finally, insofar as the Transitional Provisions (ie, paragraph 6 of Schedule 1) are concerned, it is indisputable that the applicant could not satisfy its conditions.  He therefore could not benefit from it to have his HKPR status previously acquired before 1 July 1997 to be “taken” as falling within paragraph 2(d) of Schedule 1 without the need to prove it (ie, having ordinarily resided in Hong Kong continuously for not less than seven years and taken Hong Kong as his place of permanent residence).  Thus, he also did not come within any of the exhaustive list of HKPR under BL24(2) through the route of the Transitional Provisions.  In relation to paragraph 7 of Schedule 1, it simply does not concern the applicant at all as it is a provision providing for how a non-Chinese national, having acquired HKPR status after 1 July 1997, could lose that status.  In the premises, any challenge by the applicant against paragraphs 6 and 7 of Schedule 1 on the purported basis that they unconstitutionally denied his right of abode is clearly misplaced.

E.  CONCLUSION

43.  For all the above reasons, this appeal is entirely without merit.  We dismiss the applicant’s appeal with costs on an indemnity basis to the respondent and the 1^st and 2^nd interested parties, to be taxed if not agreed.