LI MENGZHI v. COMMISSIONER OF REGISTRATION AND ANOTHER

CACV 430/2023, [2026] HKCA 246

On Appeal From [2023] HKCFI 2933

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 430 OF 2023

(ON APPEAL FROM HCAL NO 1513 OF 2023)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  This is the Applicant’s appeal against the order of Coleman J dated 14 December 2023 refusing to grant leave to apply for judicial review of the decision of the Registration of Persons Tribunal dated 21 June 2023 upholding the decision of the Commissioner of Registration to declare the Applicant’s permanent identity card to be invalid.

BASIC FACTS

2.  The relevant background facts of this case have been set out at §2 of the written judgment of the Judge dated 14 December 2023 (“the Judgment”), which we gratefully adopt:

“(1) The Applicant is a Chinese national born in the Mainland in 1966. On 27 November 2008, she was issued with a one-way permit (‘OWP’) by the Mainland authority, based on her marriage on 21 July 2003 in Hong Kong (‘2003 Marriage’) to a Mr Chan, who is a Hong Kong permanent resident (‘HKPR’).

(2) On 13 December 2008, she arrived in Hong Kong on the strength of that OWP and was permitted to stay in Hong Kong for many years.

(3) On the face of it, the Applicant was ordinarily resident in Hong Kong for more than 7 years.

(4) Indeed, the Applicant has lived and worked in Hong Kong, and almost single-handedly raised her daughter (now aged 19), paying Hong Kong taxes and into an MPF fund.

(5) On 15 December 2015, the Applicant submitted an application for Verification of Eligibility of Permanent Identity (‘VEPIC’) to the Immigration Department (‘ImmD’).

(6) VEPIC was subsequently recognized, and the Applicant was granted a permanent identity card (‘PIC’) in 2020, as well as a HKSAR passport.

(7) However, prior to that, the Applicant had in 2011 petitioned for divorce from Mr Chan in Fuzhou, PRC.

(8) During those proceedings, it was discovered that – wholly unbeknownst to the Applicant – Mr Chan had previously been married and that marriage had not been dissolved. Hence, the Applicant was an innocent victim of Mr Chan’s bigamy.

(9) The Fuzhou Court gave a judgment on 2 November 2012 (‘Fuzhou Court Judgment’), declaring the 2003 Marriage to be invalid – a nullity – as Mr Chan already had a subsisting marriage at that time.

(10) In December 2020, the Bureau of Entry and Exit Administration, Fujian Provincial Public Security Department (‘FJPSD’) informed the ImmD that the OWP of the Applicant was invalid. In FJPSD’s letter, it is stated that, as the Fuzhou Court Judgment had invalidated the 2003 Marriage, the Applicant did not satisfy the requirements to apply to settle in Hong Kong under the laws of the Mainland.

(11) As a result, the ImmD informed the Applicant that all the permissions to enter and stay in Hong Kong granted to her on the basis of her OWP had been vitiated, so that the Applicant is to be regarded as having entered or remained in Hong Kong without the permission of an immigration officer, and thus had never resided ordinarily in Hong Kong for a continuous period of not less than 7 years and has never been entitled to the right of abode under §2(b) of Schedule 1 to the Immigration Ordinance Cap 115 (‘IO’)[1].

(12) The PIC of the Applicant was declared invalid by the Commissioner of Registration (‘Commissioner’)[2].

(13) The Applicant appealed to the Registration of Persons Tribunal (‘Tribunal’) against the decision of the Commissioner invalidating her PIC. By its decision dated 21 June 2023, the Tribunal determined that the Applicant does not have the right of abode in Hong Kong, and dismissed the appeal (‘Tribunal’s Decision’).”

3.  There is one other matter referred to by Mr Wong in his oral submissions that we should mention. Mr Wong points out that, at the time when the ImmD approved the Applicant’s VEPIC application in 2020, the ImmD was already aware of the Fuzhou Court Judgment declaring the Applicant’s marriage with Mr Chan to be invalid. However, this fact should not be looked at in isolation. It is also necessary to understand the basis on which the ImmD approved the Applicant’s VEPIC application. The relevant chronology has been set out by the Judge at §§26-33 of the Judgment:

(1)  At the time when the Applicant submitted her VEPIC application to the ImmD on 15 December 2015, the Fuzhou Court Judgment declaring the Applicant’s marriage with Mr Chan to be invalid had already been given, and the Applicant submitted to the ImmD the Fuzhou Court Judgment on 4 January 2016.

(2)  By a letter dated 10 August 2017, the ImmD sought the comments of the Entry and Exit Administration Office of the Ministry of Public Security on the validity and lawfulness of the Applicant’s OWP.

(3)  In the ImmD’s letter to the Applicant dated 17 September 2020, the ImmD stated that (i) it intended to approve the Applicant’s VEPIC application and establish her status as a HKPR under §2(b) of Schedule 1 to the IO, (ii) in case of any evidence showing the Applicant’s OWP (obtained on the basis of her marriage with an HKPR) was invalid, the decision to approve her VEPIC application would be revoked, and (iii) the PIC issued to the Applicant might be declared to be invalid and ordered to be surrendered under r 3D of the Registration of Persons Regulations, Cap 177A.

(4)  On 17 September 2020, the Applicant applied for and was issued with a PIC.

(5)  On 18 December 2020, the FJPSD informed the ImmD that the Applicant’s OWP was invalid (“the FJPSD Letter”).

(6)  By letter dated 1 March 2021, the ImmD informed the Applicant, after re-assessment of her HKPR status, that (i) the 2003 Marriage and OWP were invalid, (ii) the Applicant was not qualified for proceeding to Hong Kong for settlement, and (iii) the ImmD intended to declare the Applicant’s PIC to be invalid.

In short, the ImmD’s approval of the Applicant’s VEPIC application was subject to the express understanding that it would be revoked should it later transpire that the Applicant’s OWP was invalid.

THE TRIBUNAL’S DECISION

4.  The Tribunal identified the issue which it was tasked to decide on the Applicant’s appeal to be whether, on the facts of her case, she enjoyed the right of abode in Hong Kong, and stated that the heart of the issue was whether the OWP, upon which the Applicant relied when she landed in and entered Hong Kong in December 2008, was valid[3].

5.  The Tribunal proceeded to find as follows:

(1)  The starting point on the validity of the OWP was the FJPSD Letter. In that letter, the FJPSD, after referring to the finding in the Fuzhou Court Judgment that the 2003 Marriage was invalid and hence the Applicant was not qualified for settlement in Hong Kong, declared the OWP to be invalid under the laws of the Mainland.

(2)  It was clear from the unequivocal wordings of the FJPSD Letter that the OWP issued to the Applicant was invalid. The Tribunal saw no justification to “look behind” the conclusion in that letter other than by giving full weight to it.

(3)  The Applicant arrived in Hong Kong on the strength of the OWP. Since the OWP was invalid, it could hardly be challenged that her landing in Hong Kong was unlawful. The fact that the Applicant was innocent or had no knowledge of Mr Chan’s bigamy was irrelevant to the issue of whether the Applicant had landed in Hong Kong unlawfully.

(4)  The Tribunal considered other arguments raised on behalf of the Applicant, including (i) the revocation of the OWP should not be regarded as having retrospective effect in vitiating the permission of the Director of Immigration (“the Director”) for the Applicant to land in Hong Kong, (ii) her legitimate expectation that she would not be deprived of her HKPR status even if there was evidence showing that the OWP was invalid, (iii) compassionate reasons, and (iv) undue delay on the part of the ImmD in declaring the Applicant’s PIC to be invalid. The Tribunal was not, however, persuaded by those arguments.

(5)  The Tribunal held that the Director was correct in invalidating the permissions granted to the Applicant to land and stay in Hong Kong by virtue of the OWP. Following the invalidation of her permissions to land and stay, the Applicant was a person who had landed in Hong Kong unlawfully. She should not, therefore, be treated as having been ordinarily resident in Hong Kong for the purpose of the IO. The Applicant was not a HKPR under paragraph 2(b) of Schedule 1 to the IO, and did not have the right of abode in Hong Kong.

(6)  Hence, her appeal under s 3D(4) of the RPO must be dismissed.

THE APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

6.  On 25 August 2023, the Applicant applied for leave to apply for judicial review of the Tribunal’s Decision. In the application, the Applicant raised 5 intended grounds of judicial review:

(1)  The Commissioner made an error of law in finding that the Applicant had landed in Hong Kong unlawfully under s 2(4)(a)(i) of the IO.

(2)  The Commissioner failed to take into account relevant considerations in revoking the Applicant’s permanent resident status.

(3)  The Applicant had a legitimate expectation that her permanent resident status would not be revoked by the Commissioner.

(4)  The Commissioner committed an unlawful fettering of discretion against the Applicant in revoking the Applicant’s permanent residence status.

(5)  The Commissioner’s decision in revoking the Applicant’s permanent resident status was irrational and/or Wednesbury unreasonable.

THE JUDGMENT

7.  The Judge held an oral hearing of the Applicant’s application for leave to apply for judicial review on 15 November 2023, and gave the Judgment on 14 December 2023. In the Judgment, the Judge rejected all 5 intended grounds of judicial review advanced by the Applicant, and dismissed her application for leave to apply for judicial review. For the reasons mentioned at §§13-15 below, it is necessary to refer only to how the 1^st intended ground of judicial review was argued on behalf of the Applicant and dealt with by the Judge.

8.  In respect of the 1^st intended ground of judicial review, Mr Wong argued that the Applicant should not be considered as having landed in Hong Kong unlawfully because (1) she did not contravene any provisions of the IO when landing in or entering Hong Kong on 13 December 2008, (2) she was completely innocent of the circumstances used to gain her entry into Hong Kong, and (3) the cancellation / revocation of the Applicant’s OWP by the Mainland authority should not be regarded as having retrospective effect in revoking / vitiating the Director’s permission for her to land in Hong Kong.

9.  With a view to distinguishing various previous cases in which an applicant was held to have landed in Hong Kong unlawfully where the relevant OWP had been obtained by some form of fraud or misrepresentation (although not necessarily by the applicant himself/herself), Mr Wong argued that those were cases where the OWP in each instance was invalid at the time when the applicant entered Hong Kong. However, said Mr Wong, there was a temporal distinction in this case because the Applicant did not enter illegally at the time of her “landing” in 2008. There was also the distinction that nothing done by the Applicant could have “tainted” her landing, and the bigamous marriage – of which the Applicant could have had no knowledge – was not something which should taint the landing. Lastly, Mr Wong submitted that the fact of the bigamous marriage was not directly connected to the obtaining of the OWP and the Applicant’s entry to Hong Kong.

10.  The Judge’s reasons for rejecting the 1^st intended ground of judicial review are encapsulated in §§60-64 of the Judgment:

“[60] It is noteworthy that, as the starting point of its analysis of the validity of the OWP issued to the Applicant, the Tribunal considered the FJPSD’s Letter, which refers to the finding in the Fuzhou Court Judgment that the 2003 Marriage was invalid, states that the Applicant was not qualified for settlement in Hong Kong, and declares that the OWP issued to the Applicant was invalid under the laws of the Mainland. The Tribunal took account of the relevant principles on how the correspondence by the Mainland authorities should be approached, as summarised by Poon J (as the CJHC then was) in Ng Man Yin v Commissioner of Registration [2014] 5 HKC 1 (see §§16-17 of the Tribunal’s Decision). Having considered all the evidence available, the Tribunal concluded that the OWP issued to the Applicant was invalid.

[61] Indeed, it seems to me to be a matter of inescapable logic that the OWP issued upon the basis that there was a valid marriage must itself become invalid once it is recognised that the marriage was invalid. As is apparently in accordance with both PRC law and Hong Kong law, the 2003 Marriage was void ab initio, meaning that there was never any actual state of matrimony between the Applicant and Mr Chan. It is correct that, when she presented her OWP upon landing in Hong Kong, and for many years thereafter, the Applicant could not have known that it had been granted on a fundamentally mistaken and empty basis. It is also correct that the Applicant was wholly innocent of contributing to that mistaken basis. But the fact remains that the essence of the OWP and the permission to land in Hong Kong were to permit the Applicant to join her husband in Hong Kong, when in reality – even though through no fault on her part – she had no husband in Hong Kong.

[62] I have considered carefully Mr Wong’s submissions, including the three factors which he says might distinguish this case from previously decided cases, namely (1) the temporal distinction, (2) the lack of fault or taint on the part of the Applicant herself, and (3) the lack of direct connection between the fault and the obtaining of the entry to Hong Kong by the Applicant. I have also considered that for some purposes a marriage which is a nullity can be given some effect – for example, as regards ancillary relief, or the legitimacy of a child.

[63] However, I do not think that the Tribunal has committed any error of law in its analysis and in reaching the conclusion that the Applicant’s landing in Hong Kong in 2008 was unlawful and that the Commissioner could not be said to be wrong in not considering the innocence of the Applicant as to the bigamy of Mr Chan.

[64] Ground 1 therefore fails.”

THE NOTICE OF APPEAL AND SUPPLEMENTAL NOTICE OF APPEAL

11.  In the Applicant’s Notice of Appeal dated 27 December 2023, the Applicant advances 5 grounds of appeal (“Ground 1” to “Ground 5” respectively), corresponding to the 5 intended grounds of judicial review raised before the Judge.

12.  In the Applicant’s Supplementary Notice of Appeal dated 3 September 2024, the Applicant raises a new intended ground of judicial review which was not argued before the Judge, namely, “proportionality” (“Ground 6”).

13.  At the hearing of the present appeal on 3 February 2026, Mr Wong confirmed on behalf of the Applicant that she would not be relying on Grounds 2 to 5 in the Notice of Appeal.

14.  Those grounds are, in any event, plainly unarguable, because they are all predicated on the basis that the Tribunal’s Decision was a discretionary decision. However, the Tribunal’s Decision was a decision of mixed fact and law, not a discretionary decision. By virtue of s 3D(1) of the Registration of Persons Ordinance, Cap 177 (“RPO”), the Tribunal shall have jurisdiction to hear and decide any appeal by a person who is aggrieved by a decision of a registration officer not to issue a permanent identity card to that person, or to declare a permanent identity card issued to him to be invalid. Further, under s 3D(4) of the RPO, an appeal under subsection (1) may only be brought by a person on the ground that on the facts of his case he enjoys the right of abode in Hong Kong and shall succeed if, and only if, the Tribunal determines that he has that right.

15.  In the present case, there is no dispute on the facts of the Applicant’s case as found by the Tribunal. The critical question is whether the Tribunal was correct as a matter of law to rule that the Applicant did not enjoy the right of abode in Hong Kong. There was only one correct answer to that question. The Tribunal had no power or discretion to confer the right of abode in Hong Kong on the Applicant if she could not satisfy the statutory criteria for the HKPR status. Inquiries such as whether (i) the Tribunal failed to take into account relevant considerations, or committed an unlawful fettering of discretion, (ii) its decision was irrational/Wednesbury unreasonable, or (iii) the Applicant had a legitimate expectation that her permanent resident status would not be revoked, are simply inapt. Further, the contention that the Applicant had a legitimate expectation that her permanent resident status would not be revoked is plainly unsustainable, having regard to the express basis on which the Director approved her VEPIC application (see §3 above).

16.  In what follows, we shall first consider Ground 6, which has become the principal ground of appeal relied upon by the Applicant in Mr Wong’s written submissions and reply submissions, before we turn to Ground 1.

GROUND 6: PROPORTIONALITY

17.  Under Ground 6, the Applicant argues that:

(1)  The Judge should have held that the Tribunal’s Decision is unduly oppressive and out of proportion because it would subject the Applicant to an excessive hardship or amount to an unnecessarily onerous infringement of her interest.

(2)  The impact of the decision upon the Applicant is “altogether excessive and out of proportion to the occasion” when the offence of the Applicant (assuming it is established) was committed through completely no fault (or even knowledge) on her part.

(3)  The Applicant relies on the following matters mentioned at §7 of the Notice of Appeal to show the manifest unfairness and the extremely oppressive and disproportionate nature of the Tribunal’s Decision against the Applicant (including the well-being of her daughter) –

(a)  The Applicant has all along acted in good faith and has had full intention to live and settle in Hong Kong and take Hong Kong as her permanent home since landing in Hong Kong on 13 December 2008. She gave birth to a daughter in December 2008 during the marriage now declared void, and is living in Hong Kong with the daughter who is now aged 20 and studying in Hong Kong.

(b)  The Applicant was completely innocent and had no knowledge of Mr Chan’s bigamy at all until the divorce proceedings in the PRC in around 2011 or 2012. In fact, she herself was a victim of the bigamy committed by Mr Chan.

(c)  The Applicant has in good faith lived and settled in Hong Kong for more than 7 years on the legitimate expectation that she would be granted permanent residence status in Hong Kong.

(d)  The Applicant lives with her daughter in Hong Kong and takes care of her daughter on a daily basis. Before her HKPR status was stripped, she had previously worked hard to support both herself and her daughter in order to make ends meet. If she were to be removed from Hong Kong, it would result in severe hardship to both her and her daughter.

(e)  The Applicant worked and contributed to Mandatory Provident Fund since coming to Hong Kong and working here. She has not committed any offence whilst in Hong Kong and is just an ordinary hard-working single mother striving to provide for her daughter.

(f)  The Applicant’s household registration and PRC identity card have already been cancelled, meaning that she possibly has nowhere to be deported to if she were to be deported by the ImmD (which would be the consequence of revoking her residence status in Hong Kong).

(g)  There was undue delay by the Director in informing the Applicant of his decision to vitiate the permission for her to land or remain in Hong Kong.

18.  On behalf of the Applicant, Mr Wong advocates the recognition of proportionality as an independent ground of judicial review in Hong Kong. According to Mr Wong, it involves balancing the purpose of a law and the effect of its application in any given case, but accords a significant margin of appreciation/discretion to the relevant administrative decision-maker. He submits that the fundamental basis of the doctrine of proportionality is that the court can interfere by certiorari if a punishment is altogether excessive and out of proportion to the occasion. He refers to and relies on a number of English authorities in support of his submission that proportionality ought to be recognized as an independent ground of judicial review: (i) Rex v Northumberland Compensation Appeal Tribunal, Ex parte Shaw [1952] 1 KB 338, (ii) Regina v Barnsley Metropolitan Borough Council, Ex parte Hook [1976] 1 WLR 1052, (iii) Regina v Admiralty Board of the Defence Council, ex parte Coupland (unreported, QBD, No. CO-2683-94, 18 July 1995), (iv) R (Alconbury Developments Ltd and Others) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, and (v) Pham v Secretary of State for the Home Department [2015] 1 WLR 1591.

19.  Mr Wong also refers to Chu Ping Tak Tim v Commissioner of Police [2002] 3 HKLRD 679, where DHCJ Andrew Cheung (as the Chief Justice then was) did not exclude the possibility of the doctrine of proportionality as an independent ground of judicial review but found it unnecessary to decide on the matter given the facts of that case.

20.  We are not persuaded that proportionality ought to be recognised as an independent ground of judicial review outside the three traditional grounds of judicial review, namely, illegality, irrationality and procedural unfairness, in Hong Kong. In any event, even if proportionality is recognised as an independent ground of judicial review in this jurisdiction, we do not see how it can have application where the decision under challenge is not a discretionary decision. We shall first deal with the authorities relied on by Mr Wong, before we consider the question of whether Hong Kong ought to recognise proportionality as an independent ground of judicial review as a matter of principle.

21.  The 4-step proportionality analysis is now well established in this jurisdiction in the context of consideration of the allowable limits of derogation from constitutional or fundamental rights which are not absolute. However, outside that context, there has not, so far as we are aware, been any previous case law in Hong Kong where proportionality has been recognised and applied as an independent ground of judicial review of an administrative decision. On the other hand, the courts in this jurisdiction have consistently adopted and applied the three traditional grounds of judicial review as expounded in the speech of Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, at 410, in applications for judicial review of administrative decisions which do not concern restrictions or limitations of constitutional or fundamental rights.

22.  In respect of the authorities referred to and relied upon by Mr Wong:

(1)  Ex parte Shaw, decided in 1951, was a case where the applicant lost his employment as a clerk to a hospital board as a result of the passing of the National Health Services Act 1946, but was denied his lawful compensation. The issue before the English Court of Appeal was whether the court had jurisdiction to quash a decision of an inferior court or tribunal on the ground of error of law on the face of the record. We do not see this decision as authority for any proposition that proportionality is an independent ground of judicial review of an administrative decision.

(2)  Ex parte Hook, decided in 1976, concerned a decision by a local council to terminate a stallholder’s licence to trade in a town market after he was found to have urinated in a side street. The decision was successfully challenged on the ground of breach of the rules of natural justice (including the fact that the market manager/prosecutor gave evidence privately to the relevant committee, and was present when the committee discussed the case and came to their decision, while the applicant was not). Lord Denning MR also mentioned that the punishment was too severe, in that there had been other cases where men had urinated in a side street near the market and no such punishment had been inflicted, and held that the court could interfere by certiorari if a punishment was altogether excessive and out of proportion to the occasion. The authority that Lord Denning MR relied upon for this proposition appeared to be a case that his Lordship mentioned in Ex parte Shaw, ante, at p 350, where an “excessive” fine imposed by the Commissioners of Sewers was quashed by the Court of King’s Bench apparently on the ground that in law their fines ought to be reasonable. It is highly unlikely that the case mentioned by Lord Denning MR was decided on the ground of proportionality, and not on the basis of an error of law on the face of the record (that being the context of the discussion at p 350 of Ex parte Shaw) or Wednesbury unreasonableness. It is also of note that the other members of the Court of Appeal (Scarman LJ and Sir John Pennycuick) did not rest their decision on the excessiveness or disproportionality of the penalty.

(3)  Ex parte Coupland concerned a complaint by an applicant who was dismissed from the navy by a court martial, and whose petition against the severity of his punishment on the ground that the court martial had given insufficient weight to the mitigation and insufficient credit for his guilty plea was rejected by the Admiralty Board. The Divisional Court applied the principle established in R v St Albans Crown Court, ex parte Cinnamond [1981] QB 480, which concerned an application by way of judicial review in relation to a sentence passed by the Crown Court to quash a sentence, that the court had power to intervene where the decision was unreasonable in the Wednesbury sense. In deciding to allow the application, Stuart Smith LJ said that “this is a case which falls within the doctrine laid down by this court in ex parte Cinnamond and that the penalty was out of proportion to the gravity of the crime”, while Butterfield J said that “the sentence was wholly disproportionate to the gravity of the offence bearing in mind the mitigation available and, as such, was so unreasonable that this court should, in these circumstances, interfere”. Properly understood, Ex parte Coupland was a decision based on the traditional Wednesbury principle, not on any principle of proportionality.

(4)  Alconbury Developments Ltd concerned the question of whether the decision making process of the Secretary of State in planning matters was compatible with Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which guaranteed to everyone a fair and public hearing by an independent and impartial tribunal established by law in the determination of his civil rights and obligations. Mr Wong relies on the following passage by Lord Slynn of Hadley at §51 of the judgment of the House of Lords:

“The European Court of Justice does of course apply the principle of proportionality when examining such acts and national judges must apply the same principle when dealing with Community law issues. There is a difference between that principle and the approach of the English courts in Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223. But the difference in practice is not as great as is sometimes supposed. The cautious approach of the European Court of Justice in applying the principle is shown inter alia by the margin of appreciation it accords to the institutions of the Community in making economic assessments. I consider that even without reference to the Human Rights Act 1998 the time has come to recognise that this principle is part of English administrative law, not only when judges are dealing with Community acts but also when they are dealing with acts subject to domestic law. Trying to keep the Wednesbury principle and proportionality in separate compartments seems to me to be unnecessary and confusing. Reference to the Human Rights Act 1998 however makes it necessary that the court should ask whether what is done is compatible with Convention rights. That will often require that the question should be asked whether the principle of proportionality has been satisfied: see R v Secretary of State for the Home Department, Ex p Turgut [2001] 1 All ER 719; R (Mahmood) v Secretary of State for the Home Department [2000] 1 WLR 840.”

Two things may be said about this passage. First, Lord Slynn plainly recognised that the Wednesbury principle, not the principle of proportionality, was the prevailing, applicable principle in English administrative law, while pointing out that the practical difference between the two might not be as great as was sometimes supposed. Second, it does not appear that any of the other members of the House of Lords endorsed Lord Slynn’s suggestion that English law should adopt the principle of proportionality as part of its domestic administrative law.

(5)  Hook, Coupland and Alconbury Developments Ltd were considered by the Chief Justice (then as Deputy High Court Judge Andrew Cheung) in Chu Ping Tak Tim v Commissioner of Police [2002] 3 HKLRD 679, and the conclusion reached was that it was not essential to determine whether the doctrine of proportionality existed as an independent ground of judicial review under English and Hong Kong law, or should be subsumed under the traditional headings, because in either case the same judicial restraint must be exercised (§§49-50).

(6)  Pham concerned a challenge by a Vietnamese national who acquired British nationality after arriving and settling in the UK. He subsequently went to Yemen and received terrorist training there. That led to the Secretary of State making an order under s 40(2) of the British Nationality Act 1981 to deprive the applicant of his British nationality on the ground that it was conducive to the public good so to do. The applicant applied for judicial review of the Secretary of State’s decision on, inter alia, the ground that he had lost his Vietnamese citizenship when he became a British citizen, and the effect of the decision would be to make him stateless. As explained by Lord Carnwath JSC, at §31, one of the issues which arose for consideration in that case was “when considering if it would be lawful to deprive a person of his British citizenship when that deprivation would entail loss by him of citizenship of the European Union (‘EU’), whether such consideration falls within the ambit of EU law and whether any (and if so what) consideration must be given to the question of proportionality”. In that case, the consequence of the deprivation of the applicant’s British citizenship on his EU citizenship provided an important backdrop to the Supreme Court’s consideration of the applicability of the doctrine of proportionality. The Supreme Court considered that it was “improbable that the nature, strictness or outcome of such a review would differ according to whether it was conducted under domestic principles or whether it was also required to be conducted by reference to a principle of proportionality derived from Union law”, in view of the fact that “[t]he common law no longer insists on the uniform application of the rigid test of irrationality once thought applicable under the so-called Wednesbury principle: see Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223. The nature of judicial review in every case depends on the context” (see §§59-60, 94, 98). As explained by Lord Sumption JSC, at §105, “although English law has not adopted the principle of proportionality generally, it has for many years stumbled towards a concept which is in significant respects similar, and over the last three decades has been influenced by European jurisprudence even in areas of law lying beyond the domains of EU and international human rights law. Starting with the decision of the House of Lords in R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514 it has recognised the need, even in the context of rights arising wholly from domestic law, to differentiate between rights of greater or lesser importance and interference with them of greater or lesser degree. This is essentially the same problem as the one to which proportionality analysis is directed. The solution adopted, albeit sometimes without acknowledgment, was to expand the scope of rationality review so as to incorporate at common law significant elements of the principle of proportionality”.

23.  In our view, none of the authorities relied upon by Mr Wong can be regarded as providing a solid foundation for the recognition of a doctrine of proportionality as an independent ground of judicial review in Hong Kong.

24.  From the point of view of principle, we consider that the Hong Kong court should proceed cautiously in expanding the scope of judicial review to encompass an independent doctrine of proportionality, because it could potentially lead the court towards conducting merits reviews of administrative decisions under the guise of exercising its supervisory jurisdiction in judicial review. It is apparent that the readiness of the courts in the UK to endorse, or at least accepts some elements, of the principle of proportionality as part of its domestic administrative law was much influenced by the fact that the UK was formerly a member of the EEC/EU and the resultant interaction between Community/EU laws and domestic laws. Such consideration has no relevance in this jurisdiction. Moreover, the standard set by the test of Wednesbury unreasonableness is not a fixed or strict standard. The test of Wednesbury unreasonableness is inherently elastic, and enables the court to take into account the nature of the decision under challenge and its surrounding circumstances when called upon to review the rationality (or reasonableness in the public law sense) of the decision. The test can best be viewed as a spectrum, with a lower intensity of review being applied to cases involving issues with a large element of political judgment, a higher intensity of review being applied to cases affecting fundamental rights, and cases concerning pecuniary or economic rights occupying the middle of the spectrum. These are not, of course, fixed categories. Much depends on the nature and circumstances of the decision in question, the degree or extent of interference of the applicant’s rights or interests by the decision, as well as the context in which the reasonableness of the decision comes to be examined by the court. The development of the common law on the width and flexibility of the concept of Wednesbury unreasonableness was explained by Lord Mance JSC (with whom Lord Neuberger of Abbotsbury PSC and Lord Clarke of Stone-cum-Ebony JSC agreed) in Kennedy v Charity Commission [2014] 2 WLR 808:

“[51] … The nature of judicial review in every case depends on the context. The change in this respect was heralded by Lord Bridge of Harwich in R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514, 531 where he indicated that, subject to the weight to be given to a primary decision-maker’s findings of fact and exercise of discretion,

‘the court must … be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines’.

[52] This was taken up by Court of Appeal in R v Ministry of Defence, Ex p Smith [1996] QB 517, 554, a pre-Human Rights Act case, where Sir Thomas Bingham MR accepted counsel’s proposition that

‘The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above’

… The common law has however continued to evolve. As Lord Phillips of Worth Matravers MR said in R (Q) v Secretary of State for the Home Department [2004] QB 36, para 112:

‘The common law of judicial review in England and Wales has not stood still in recent years. Starting from the received checklist of justiciable errors set out by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, the courts, as Lord Diplock himself anticipated they would, have developed an issue-sensitive scale of intervention to enable them to perform their constitutional function in an increasingly complex polity. They continue to abstain from merits review - in effect, retaking the decision on the facts - but in appropriate classes of case they will today look very closely at the process by which facts have been ascertained and at the logic of the inferences drawn from them.’

[53] In IBA Healthcare Ltd v Office of Fair Trading [2004] ICR 1364, in a judgment with which I agreed, Carnwath LJ said, at paras 90-92:

‘90. … Their instinctive wish for a more flexible approach than Wednesbury would have found more solid support in the textbook discussions of the subject, which emphasise the flexibility of the legal concept of “reasonableness” dependent on the statutory context …

91. Thus, at one end of the spectrum, a “low intensity” of review is applied to cases involving issues ‘depending essentially on political judgment’… At the other end of the spectrum are decisions infringing fundamental rights where unreasonableness is not equated with “absurdity” or “perversity”, and a “lower” threshold of unreasonableness is used: ‘Review is stricter and the courts ask the question posed by the majority in Brind, namely, “whether a reasonable Secretary of State, on the material before him, could conclude that the interference with freedom of expression was justifiable.” (de Smith para 13-060, citing Ex p Brind [1991] 1 AC 696, 751, per Lord Ackner).

…’

[54] More recently, the same process was carried further by emphasising that the remedy of judicial review is in appropriate cases apt to cover issues of fact as well as law - see the cases referred to in para 38 above. As Professor Paul Craig has shown (see eg ‘The Nature of Reasonableness’ (2013) 66 CLP 131), both reasonableness review and proportionality involve considerations of weight and balance, with the intensity of the scrutiny and the weight to be given to any primary decision maker’s view depending on the context …”

25.  In all, we do not consider it to be either appropriate, or necessary, for proportionality to be recognised as an independent ground of judicial review. The test of Wednesbury unreasonableness is sufficiently flexible for the principle of proportionality to be assimilated or accommodated as an aspect or part of that concept.

26.  In any event, even if proportionality is recognised as an independent ground of judicial review, and regardless of whether the matter is viewed through the prism of proportionality or Wednesbury unreasonableness, there can be no scope for intervention under either basis in relation to a determination made by the Tribunal under s 3D(4) of the RPO. As earlier mentioned, the Tribunal’s power to allow an appeal brought under s 3D(1) thereof is expressly limited to the situation where the Tribunal determines that, on the facts of an applicant’s case, he enjoys the right of abode in Hong Kong. Under Article 24(3) of the Basic Law/s 2A of the IO, only Hong Kong permanent residents enjoy the right of abode in Hong Kong. The categories of persons who may qualify for the Hong Kong permanent resident status are exhaustively defined in Article 24(2) of the Basic Law/paragraph 2 of Schedule 1 to the IO. The Tribunal has no discretion to treat a person who does not qualify for the Hong Kong permanent resident status as a Hong Kong permanent resident, or confer the right of abode on a person who does not enjoy such right (see Cheung Kin Ho v Registration of Persons Tribunal [2014] 3 HKLRD 526, at §§30-34 per Au J (as he then was)). In reaching its decision on whether a person enjoys the right of abode in Hong Kong, the Tribunal should not be affected by considerations such as whether the consequence of its decision will be unreasonable, or harsh, or unjust, or out of proportion. These are all irrelevant considerations. The legal framework for the exercise of the Tribunal’s jurisdiction simply does not admit any scope for the application of the principle of proportionality to its decision. Equally, there can be no scope for the court, in the exercise of its supervisory jurisdiction, to review the decision of the Tribunal based on considerations of proportionality.

27.  There is one other matter that we should briefly deal with. On behalf of the Commissioner, Ms Cheung objects to the Applicant’s attempt to introduce Ground 6 as a potential ground of judicial review of the Tribunal’s Decision, it being a new ground that was not raised in the proceedings below. Ms Cheung points out that Ground 6 was only raised some 14 months after the Tribunal’s Decision, which was grossly out of time for mounting a challenge by way of judicial review. To permit the Applicant to rely on Ground 6 would defeat the general requirement that leave to apply for judicial review must be made promptly and in any event within 3 months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made. Ms Cheung points out that the Applicant has offered no explanation for the delay in raising Ground 6. Ms Cheung also informs the Court that, had the issue of proportionality been raised before the Judge, the Commissioner could or would have adduced evidence on various matters to counter the alleged unfairness to the Applicant arising out of the impugned decision, eg the Applicant will not be “deported”[4] from Hong Kong after the revocation of her HKPR status; instead she will be “repatriated” back to the Mainland[5], and the Applicant will be able to re-apply for her household registration and PRC identity upon repatriation back to the Mainland.

28.  Since we have come to the conclusion that Ground 6 should be rejected on its substantive merits, it makes no difference to the outcome of this appeal whether the Applicant is permitted to rely on Ground 6. It suffices for us to say that we find considerable force in Ms Cheung’s objection.

GROUND 1: UNLAWFUL LANDING IN HONG KONG

29.  Under Ground 1, the Applicant contends that the Judge erred in upholding the Tribunal’s finding that the Applicant had landed unlawfully under s 2(4)(a)(i) of the IO by failing to distinguish the present case from the previously decided cases.

30.  The cases that the Judge relied upon were (i) Tsui Siu Wai v Director of Immigration, HCMP 1665/1994 (unreported, 6 December 1994), (ii) Kong Sau Mei v Director of Immigration [1999] 1 HKC 174, and (iii) Ahmed v Registration of Persons Tribunal [2012] 2 HKLRD 583. Mr Wong argues that the above cases can be distinguished on 3 grounds:

(1)  the “temporal” ground, in that, unlike the previous cases where the entry was illegal at the time of entry, the “illegality” in the present case was not discovered, and could not have been discovered, by the Applicant at the time of entry, and yet the Commissioner and the Judge relied on the “retrospective effect of the invalid 2003 Marriage”;

(2)  the lack of fault or “taint” on the part of the Applicant; and

(3)  the lack of any direct connection or causal link between the fault/taint and the obtaining of entry by the Applicant.

31.  In Tsui Siu Wai, the applicant was permitted to enter Hong Kong on the strength of an OWP, and he was later issued a Hong Kong Identity Card. His OWP was subsequently found to be false (in that it had in fact not been lawfully issued). On the applicant’s return to Hong Kong after a visit to China, he was refused permission to land, and was detained by an immigration officer. He applied for judicial review of the decisions to refuse permission to land and to detain him. One of the grounds of challenge was that the Director had failed to prove that the applicant knew that the OWP was forged or unlawfully issued. Patrick Chan J (as Mr Justice Chan NPJ then was) held that the applicant’s knowledge (or lack of knowledge) of the forgery or falsity of his OWP was not relevant to the question of whether he had landed unlawfully. In coming to that view, the learned judge took into account the effect of s 2(2) of the IO, which provides, among other things, that no person shall be held not to have landed unlawfully on the ground only that he is not guilty of an offence under s 38(1), ie landing without permission (see further §§34 to 35 below).

32.  In Kong Sau Mei, the applicants came to Hong Kong on the strength of their Thai passports. Subsequently, the applicant’s passports were found to have been obtained illegally. They were considered invalid and cancelled by the Royal Thai Consulate-General. Keith J (as he then was) held that the child-applicants had landed in Hong Kong unlawfully even though they had no knowledge of, and were innocent, of the illegality:

“[25] The real issue on the legality of the removal orders relating to Kar Ling and Kar Man is a question of law: if permission to land in Hong Kong is given on the basis of an unlawfully obtained passport, does that mean that the entrant landed in Hong Kong without permission at all? At first blush, the answer is obvious. Kar Ling’s and Kar Man’s permission to land in Hong Kong was vitiated by the deception which was practised on the immigration officer who granted that permission. He granted permission to them to land in Hong Kong because he had no reason to suspect that their passports might have been unlawfully obtained.

[26] Mr. Dykes addressed that in two ways. First, he contended that no deception had been practised by Kar Ling and Kar Man. They had had nothing to do with the obtaining of their passports, and Kar Ling had not even produced her passport to the immigration officer. In view of her age, it was her mother who had produced it as required by section 5(5)(a)(i) of the Ordinance. I cannot accept this argument. The fact of the matter is that permission to land was given as a result of the deception which was being practised. Simply because Kar Ling and Kar Man had had nothing to do with the deception themselves does not affect the fact that it was the deception which resulted in them being given the permission to land in Hong Kong which they would otherwise not have obtained.

…

[28] … If it was unlawfully obtained, and if permission to land in Hong Kong would have been refused if the facts relating to the circumstances in which it had been obtained had been known, permission to land in Hong Kong would have been obtained by deception, even if the document used to perpetrate that deception, though unlawfully obtained, was valid…

…

[30] Since the unchallenged evidence is that permission to land in Hong Kong would have been denied if it had been known that the passports had been unlawfully obtained, it follows that the Deputy Director of Immigration was reasonably entitled to conclude that the permission granted to Kar Ling and Kar Man to land in Hong Kong was vitiated by the deception which had been practised on the immigration officer who admitted them. That permission was to be treated as never having been given, and the Deputy Director of Immigration was reasonably entitled to conclude that Kar Ling and Kar Man had therefore landed in Hong Kong without permission, and therefore unlawfully, so as to trigger his power to make removal orders against them under section 19(1)(b)(ii).”

33.  Ahmed concerned a bigamous marriage between the applicant and a Hong Kong permanent resident, on the strength of which the Director granted to the applicant a dependant visa. Subsequently, the Director became aware of the bigamy, and decided that the previous permissions given to the applicant to stay in Hong Kong were obtained by a false representation and/or deception, namely, that there was a valid and lawful marriage. The Director considered that the permissions granted to the applicant were therefore vitiated, and refused the applicant’s VEPIC application. In the ensuing application for judicial review launched by the applicant, the central issue was whether s 2(4)(a)(ii) of the IO, on its proper construction, required that a person be “culpable” as to any contravention of his condition of stay in Hong Kong for such stay to be discounted as ordinary residence. Au J (as he then was) answered that question in the negative.

34.  In order to properly understand Au J’s reasoning for his conclusion, we shall first set out s 2(2)(b) of the IO, which, so far as relevant, states as follows:

“References in this Ordinance to landing in Hong Kong unlawfully are references to landing in or entering Hong Kong in contravention of this Ordinance …, and for the avoidance of doubt it is hereby declared that no person shall be held not to have landed unlawfully –

(a) …

(b) on the ground only that he is not guilty of an offence under subsection (1) of section 38 in respect of paragraph (a) of that subsection.”

35.  Au J’s reasoning for his conclusion is set out at §§36-51 of his judgment in Ahmed:

“[36] Mr Ross for the applicant submits that the Tribunal committed an error of law in concluding that, under s 2(4)(a)(i) of the Ordinance, it is not necessary for the Department to show knowledge on part of the applicant of the breach of the condition of stay. Mr Ross contends that, on a proper construction of s 2(4)(a)(i), it would only operate if the applicant is ‘culpable’ in the contravention of the condition of stay.

[37] This ground involves therefore the question of the proper construction of s 2(4)(a)(ii). To understand Mr Ross’ arguments, it is necessary to set out the relevant parts of 2(4)(a)(i) and (ii) as follows …

[38] Mr Ross submits that on a proper construction of s 2(4)(a)(ii) (together with some other provisions of the Ordinance), it is objectively clear that the section should be read to require the proof of a knowledge element …

[40] With respect, I am not persuaded by these arguments. My reasons are as follows.

[41] First, in my view, the purpose of s 2(4)(a) of the Ordinance is clear from its words. This is a provision simply to provide for the various situations and scenarios the existence of which would disentitle someone’s relevant period of stay in Hong Kong to be regarded as ordinary residence in Hong Kong. The existence or not of such a situation or scenario is an objective fact itself. This is not a provision to establish the underlying scenario or situation. Thus, the examples cited by Mr Ross to say that the breaches per se of the conditions would require the knowledge of the person in breach of them are in my view inappropriate for and irrelevant to the construction of this section.

[46] All s 2(2)(b) of the Ordinance says is therefore simply that, for the purposes of the Ordinance, whether someone is to be regarded as ‘landing in Hong Kong unlawfully’ does not require the proof of the offence under s 38(1)(a). In other words, the references in the Ordinance (including by way of s 2(4)(a)(i) to ‘landing in Hong Kong unlawfully’) has a wider meaning than committing an offence under s 38(1)(a) of the Ordinance.

[47] Read as such, quite to the contrary to Mr Ross’ submissions, this fortifies my above view that the references to the various scenarios and situations under s 2(4)(a) of the Ordinance are references to the objective fact of the existence of those scenarios but not the underlying proof of the breaches or offences themselves.

[51] For these reasons, I conclude that the meaning of s 2(4)(a)(ii) of the Ordinance is clear and its application does not require the proof of culpability or knowledge of the person whose ordinary residence is in question.”

36.  In our view, the Judge’s rejection of Ground 1 is well supported by the above authorities. None of the grounds of distinction raised by Mr Wong has merit. In respect of Mr Wong’s first ground mentioned at §30(1) above, Ms Cheung argues that the temporal argument “is misconceived as it conflates delayed discovery with non-existence. The delayed discovery of the nullity of the marriage cannot alter the objective fact and legal reality that she was never legally married to Mr. Chan and was never entitled to the OWP, leading to the vitiation of the permission to land given on the basis of the invalid OWP. Once that permission was vitiated, her entry must be treated as lacking permission. Landing without permission is unlawful landing contrary to IO s.7(1)”. We agree with Ms Cheung’s submissions. We also do not accept Mr Wong’s argument that the Commissioner (or more relevantly, the Tribunal) and the Judge relied on the “retrospective” effect of the invalid 2003 Marriage. The 2003 Marriage was void, or invalid, ab initio[6]. It did not become invalid only as from the time when the Fuzhou Court gave its judgment on 2 November 2012. Similarly, the Applicant’s OWP was invalid not because it was so stated by the FJPSD in its letter dated 18 December 2020, but because it was issued upon the basis of a fundamentally false premise, which falsity existed at the time of its issue on 27 November 2008.

37.  In respect of Mr Wong’s second and third grounds mentioned at §§30(2) and (3) above, while the fact that the Applicant had no knowledge that her OWP was invalid, and was innocent of any wrongdoing which led to the invalidity of the OWP, may be relevant to the question of whether she was guilty of any offence of landing in Hong Kong without permission contrary to s 38(1)(a) of the IO, it has no impact on the question of whether the Applicant landed in Hong Kong unlawfully, as consistently held by the Hong Kong courts (see Tsui Siu Wai, Kong Sau Mei, and Ahmed, ante).

38.  As we see it, the critical issue in the present case is whether the Applicant’s landing in Hong Kong on the strength of her OWP was unlawful. This is because, under s 2(4)(a)(i) of the IO, a person shall not be treated as ordinarily resident in Hong Kong during any period in which he remains in Hong Kong, with or without the authority of the Director, after landing unlawfully. Hence, if the Applicant’s landing in Hong Kong was unlawful, her residence in Hong Kong would not be treated as ordinary residence, and she would not be able to satisfy the 7-year ordinary residence requirement under Article 24(2)(2)/paragraph 2(b) of Schedule 1 to the IO for the purpose of establishing her HKPR status.

39.  It is not seriously in dispute that the Applicant’s OWP was invalid. This was declared to be the case by the appropriate Mainland authority (ie FJPSD), and followed inexorably from the fact that, as found by the Judge, the 2003 Marriage was void ab initio, meaning that the Applicant was never the wife of Mr Chan. Since the OWP was issued to the Applicant based on the underlying premise that she was the lawful wife of Mr Chan, once that premise was falsified, there would be no leg on which the validity of the OWP could stand. Given that the OWP was the basis on which the Director granted permission to the Applicant to land in Hong Kong, once the OWP was shown to be invalid, the permission to land was also vitiated. Without valid permission to land, the Applicant’s landing in Hong Kong would be unlawful, by virtue of s 7(1) of the IO.

40.  For the above reasons, we agree with the Judge’s view in relation to Ground 1.

41.  There is one final matter that we should briefly deal with. Mr Wong invites the Court to adopt a “remedial interpretation” of the relevant provisions of the IO (including s 2(2) and/or s 2(4)(a)(ii)) such that a person in the position of the Applicant would not be treated as having landed unlawfully in Hong Kong. We fail to see any basis for this invitation. Mr Wong has not identified any relevant parts of those provisions which would require a remedial interpretation to be given, or how those parts ought to be interpreted or understood. His reliance on s 19 of the Interpretation and General Clauses Ordinance, Cap 1, is also misplaced. That section merely reflects the modern purposive approach in statutory interpretation adopted by the court. The meaning and effect of the above provisions are clear. The court has no power to twist the meaning of a statute merely because its application to the facts of a particular case may be thought to give rise to a harsh result.

42.  In conclusion, we do not consider either Ground 1 or Ground 6 to be reasonably arguable or has any realistic prospect of success. It follows that leave to apply for judicial review was correctly refused by the Judge.

DISPOSITION

43.  The Applicant’s Notice of Appeal and Supplementary Notice of Appeal are dismissed. We have considered Mr Wong’s submission on costs, but see no reason why the costs of the appeal should not follow the event. Accordingly, we make an order that the Applicant shall pay the 1^st Putative Respondent’s costs of the appeal, to be taxed if not agreed.

44.  Finally, we are grateful to Mr Wong and Miss Tang for acting on behalf of the Applicant in this appeal on a pro bono basis, and to Ms Cheung and Ms Hui for their clear and cogent submissions to the Court.