VALLEJOS EVANGELINE BANAO, also known as VALLEJOS EVANGELINE B v. COMMISSIONER OF REGISTRATION AND ANOTHER

CACV 204/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 204 OF 2011

(ON APPEAL FROM HCAL 124/2010)

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J U D G M E N T

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Hon Cheung CJHC:

The issue

1.  This is an appeal from Lam J’s judgment dated 30 September 2011.  In his judgment, the learned judge decided in the affirmative a single, important point of law, that is, whether section 2(4)(a)(vi) of the Immigration Ordinance (Cap 115) is inconsistent with article 24(2)(4) of the Basic Law and is therefore unconstitutional.  The Commissioner of Registration, who is the only active respondent in the proceedings below and in this appeal, challenges that conclusion of law in this appeal.  The applicant, a foreign domestic helper who has been working in Hong Kong as such since 1986, supports the judge’s decision.

The facts

2.  By the nature of the issue before the court, the underlying facts pertaining to the applicant’s case assume secondary significance.  The point of law decided by the judge affects not only the position of the applicant, but also that of other foreign domestic helpers working in Hong Kong, who are said to have been residing continuously in Hong Kong by reason of their employments for continuous periods of not less than 7 years.  Indeed, there are pending cases before the Court of First Instance raising, amongst other issues, the same point of law.  The court’s decision in this appeal will bind these other proceedings.

3.  In those circumstances, it is unnecessary to go into the facts pertaining to the applicant’s case in any detail, save to mention that according to the Registration of Persons Tribunal:

(1) the applicant is not of Chinese nationality;

(2) the applicant has entered Hong Kong with a valid travel document;

(3) the applicant has ordinarily resided in Hong Kong for a continuous period of not less than 7 years – however, because of section 2(4)(a)(vi) of the Immigration Ordinance, she shall not, as a matter of law, be treated as ordinarily resident in Hong Kong;

(4) she has taken Hong Kong as her place of permanent residence.

4.  Indeed, according to the Tribunal, but for the exclusionary provisions in section 2(4)(a)(vi) of the Ordinance relating to ordinarily residing in Hong Kong, the applicant would have satisfied the requirements for becoming a permanent resident of the Hong Kong Special Administrative Region (“HKSAR”) set out in article 24(2)(4) of the Basic Law.

Article 24 of the Basic Law and permanent residents

5.  Article 24, appearing at the beginning of Chapter III of the Basic Law which governs the fundamental rights and duties of the residents of the HKSAR, classifies residents into permanent residents and non‑permanent residents: article 24(1).  Permanent residents have the right of abode in the HKSAR and are qualified to obtain, in accordance with laws, permanent identity cards which state their right of abode: article 24(3).  The right of abode means, in practical terms, that a permanent resident cannot be refused entry into Hong Kong, his stay in Hong Kong cannot be subjected to any conditions, and he cannot be deported or removed from Hong Kong.

6.  On the other hand, non‑permanent residents are persons who are qualified to obtain Hong Kong identity cards in accordance with laws, but have no right of abode: article 24(4).  Unlike a permanent resident, a non-permanent resident does not have the right to vote or the right to stand for election in accordance with law: article 26.

7.  Article 24(2) defines the permanent residents of the HKSAR:

“ 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.”

8.  Article 24(2)(4) is directly in issue in the present case.  More specifically, the parties’ arguments focus on one of the several requirements for becoming a permanent resident pursuant to article 24(2)(4), that is, “have ordinarily resided in Hong Kong”.  This requirement is also found in article 24(2)(2) dealing with Chinese citizens.

“Ordinarily resident” and section 2(4) of the Immigration Ordinance

9.  What constitutes “ordinarily residing” or “ordinarily resident” is not defined in article 24 or in any other parts of the Basic Law.  Section 2(4) of the Immigration Ordinance gives (or purports to give) “ordinarily resident” a partial definition.  Earlier, the Ordinance has, in section 2(1), defined “Hong Kong permanent resident” by reference to various classes or descriptions of persons specified in Schedule 1 to the Ordinance – paragraph 2 of which simply copies the six categories in article 24(2) of the Basic Law to define Hong Kong permanent residents.  The partial definition of “ordinarily resident” given in section 2(4) of the Ordinance reads:

“(4) For the purposes of this Ordinance, a person shall not be treated as ordinarily resident in Hong Kong ‑

(a) during any period in which he remains in Hong Kong ‑

(i) with or without the authority of the Director, after landing unlawfully; or

(ii) in contravention of any condition of stay; or

(iii) as a refugee under section 13A; or

(iv) while detained in Hong Kong under section 13D; or

(v) while employed as a contract worker, who is from outside Hong Kong, under a Government importation of labour scheme; or

(vi) while employed as a domestic helper who is from outside Hong Kong; or

(vii) as a member of a consular post within the meaning of the Consular Relations Ordinance (Cap 557); or

(viii) as a member of the Hong Kong Garrison; or

(ix) as a holder of a prescribed Central People's Government travel document; or

(b)   during any period, whether before or after the commencement of this Ordinance, of imprisonment or detention pursuant to the sentence or order of any court.”

Lam J’s decision

10.  Specifically for our present purposes, it should be noted that a person shall not be treated as ordinarily resident in Hong Kong during any period in which he or she remains in Hong Kong “while employed as a domestic helper who is from outside Hong Kong”: section 2(4)(a)(vi).  As mentioned, Lam J held that this exclusionary provision is inconsistent with article 24(2)(4) of the Basic Law which does not contain any such exclusion vis-à-vis foreign domestic helpers.  The exclusionary provision is therefore unconstitutional and has to be struck down.  The judgerecognised that his determination of law has potential read‑across implications for other exclusionary provisions found in section 2(4).

11.  Lam J held that “ordinarily resident” has a fixed common law meaning, that is, the meaning given to the expression by the House of Lords in R v Barnet London Borough Council, Ex p Shah [1983] 2 AC 309.  The natural and ordinary meaning of “ordinarily resident”, according to the House of Lords, refers to a man’s abode in a particular place or country “which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration” (emphasis added): p 343G/H, per Lord Scarman. 

12.  Lam J pointed out that that definition given in Shah had been applied by the Hong Kong courts in immigration cases and, more specifically, by the Court of Final Appeal in Fateh Muhammad v Commissioner of Registration (2001) 4 HKCFAR 278 and in Prem Singh v Director of Immigration (2003) 6 HKCFAR 26 in relation to article 24(2)(4) of the Basic Law and section 2(4)(b) of the Immigration Ordinance.  The judge concluded that it is therefore the correct test to apply in the present case.  Needless to say, both the Court of First Instance as well as this court are bound by any relevant decisions of the Court of Final Appeal.

13.  The judge took the view that whether a foreign domestic helper, including the applicant, can satisfy the voluntariness/settled purposes test propounded by the House of Lords in Shah is a question of fact to be determined in accordance with the facts and circumstances pertaining to each individual case.  There is no “one‑size‑fits‑all” answer.  Therefore, reasoned the judge, the blanket exclusion of the periods of time spent by foreign domestic helpers in Hong Kong whilst working as such from the definition of “ordinarily resident” in section 2(4)(a)(vi) of the Immigration Ordinance is simply inconsistent with the proper meaning of “ordinarily resident” as used in article 24(2)(4) of the Basic Law.  The former amounts to a more stringent or restrictive requirement for qualification as a permanent resident than that laid down in article 24(2)(4) of the Basic Law.  It amounts to an additional requirement for qualification which is not found in the Basic Law itself.  The legislature has no constitutional power to change the constitutional definition of permanent resident given in the Basic Law.  Section 2(4)(a)(vi) is therefore unconstitutional and has to be struck down.

14.  The judge did not think that the legislature has any power under article 154(2) of the Basic Law to impose the additional exclusionary provision.  Article 154(2) permits the Government to apply immigration controls on entry into, stay in and departure from the HKSAR by persons from foreign states and regions.

15.  The judge considered that no immigration controls can be used to trump the definition of permanent resident given in article 24(2) of the Basic Law.  In this regard, he considered himself as bound by the Court of Final Appeal’s decision in Prem Singh.

16.  The judge also rejected a fallback argument of the Commissioner based on the Shah test.  The Commissioner had argued that under the government scheme by which foreign domestic helpers are permitted to come to Hong Kong and work, a foreign domestic helper’s abode in Hong Kong can never be classified, under the Shah test, as “ordinarily”, as opposed to “extraordinarily”, “out of the ordinary” or “far from regular”.

17.  The judge recognised that the government scheme imposes various restrictions on a helper’s stay here in terms of her terms of contract of employment, term of employment, limit of stay, compulsory home leave, change of employment, departure from Hong Kong upon expiry of her term of employment or early termination thereof and prohibition on bringing in dependants to Hong Kong.  However, the judge was of the view that in the absence of a detailed examination of the facts pertaining to each individual case, these matters were not by themselves sufficient for the court, applying the Shah test, to conclude generally and without any exception, that no helpers could ever be regarded as “ordinarily resident” in Hong Kong.

18.  Lam J did not find the extrinsic materials which were put in evidence before the court particularly helpful in shedding light on the true meaning of the expression “ordinarily resident” used in article 24(2)(4).

The parties’ arguments

19.  In this appeal, Ms Gladys Li SC (Mr PY Lo and Mr Benson Tsoi with her) supported the judge’s decision on essentially the same grounds.

20.  On the other hand, Lord Pannick QC (with him Mr Anderson Chow SC and Ms Eva Sit) contended that the judge was in error in relation to his reasoning and his conclusion.

21.  In essence, Lord Pannick submitted that the judge failed to recognise that the Basic Law implicitly confers power on the legislature to exclude from the scope of “ordinarily resident” those persons who the legislature reasonably considers, having regard to relevant policy considerations, including considerations of immigration policy, are living in Hong Kong in circumstances which do not amount to ordinary residence, such as foreign domestic helpers admitted here under severely restricted conditions. 

22.  As a fallback position, Lord Pannick argued that even if article 24(2)(4) of the Basic Law does not confer a “discretionary area of judgment” for the legislature to define what is and what is not “ordinarily resident”, the judge erred in law by failing torecognise that section 2(4)(a)(vi) correctlyrecognises that a foreign domestic helper is excluded from the scope of “ordinarily resident” under article 24(2)(4) because the circumstances of her residence in Hong Kong are “out of the ordinary” or exceptional, and far from regular.

23.  Lord Pannick also invited the court, as he did before the judge below, to look at extrinsic materials which pre‑date and post‑date 1990, the year the Basic Law was promulgated, in case the court is of the view that the true meaning of article 24(2)(4) is ambiguous.  Leading counsel submitted that the materials demonstrate the intention of the Chinese and British Governments, as a matter of interpretation or application of paragraph 159 in Part XIV of Annex I to the Joint Declaration signed on 19 December 1984 (which corresponds to article 24(2)(4) of the Basic Law), to authorize the local legislature to explain and implement the concept of “ordinarily resident”.  According to the materials, counsel submitted, by the time section 2(4)(a)(vi) was enacted, the two Governments had reached agreement in the Joint Liaison Group (“JLG”) that foreign domestic helpers should be excluded by legislation from the scope of “ordinarily resident” in Hong Kong for the purposes of article 24(2)(4) of the Basic Law.

The principles of interpretation

24.  The principles of interpretation of the Basic Law are not in doubt.  They have been authoritatively laid down by the Court of Final Appeal in Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4 and in Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211.  They are well known and need not be repeated in detail.  All I wish to emphasise here is that in the interpretation of a constitution such as the Basic Law a purposive approach is to be applied.  This is because a constitution states general principles and expresses purposes without condescending to particularity and definition of terms.  Gaps and ambiguity are bound to arise and, “in resolving them, the courts are bound to give effect to the principles and purposes declared in, and to be ascertained from, the constitution and relevant extrinsic materials”: Ng Ka Ling at p 28E/F.  The purpose of a particular provision may be ascertainable from its nature or other provisions of the Basic Law or relevant extrinsic materials including the Joint Declaration.  The state of domestic legislation at the time of the Basic Law’s enactment and the time of the Joint Declaration will often also serve as an aid to the interpretation of the Basic law.  As to the language of its text, the courts must avoid a literal, technical, narrow or rigid approach.  They must consider the context.  Assistance can also be gained from any traditions and usages that may have given meaning to the language used.  On the other hand, the courts will not on the basis of any extrinsic materials depart from the clear meaning and give the language of the text (when construed in the light of its context and purposes) a meaning which the language cannot bear.

25.  In ascertaining the context and purpose of the Basic Law and of the provisions thereof in issue, it is right and proper to look at pre‑enactment materials, that is materials brought into existence prior to or contemporaneous with the enactment of the Basic Law in 1990 although it only came into effect on 1 July 1997.  However, as regards post‑enactment materials, the use of them relating to context and purpose must be approached “cautiously”.

26.  As the Court of Final Appeal emphasised in Chong Fung Yuen, at p 224I‑J, extrinsic materials, whatever their nature and whether pre or post‑enactment, cannot affect interpretation where the courts conclude that the meaning of the language, when construed in the light of its context and purpose is clear.  The meaning of the language is clear, the court explained, “if it is free from ambiguity, that is, it is not reasonably capable of sustaining competing alternative interpretations”.

Article 24(2)(4) raises a prior question

27.  Article 24(2)(4) of the Basic Law is a natural starting point to tackle the task of interpretation faced by the court.  As mentioned, “ordinarily resident” is used both in article 24(2)(2) concerning Chinese citizens and in article 24(2)(4) in respect of non‑Chinese nationals.  The first important point to note is that the term, important as it is, is nowhere defined in article 24 itself or in any part of the Basic Law.

28.  The natural question thus arises is: what is the meaning of “ordinarily resident”?  But before one even attempts to supply a definition, a prior question arises : Does the term have one definite meaning, or put more specifically, is the term intended to have one and only one definite and unchanging meaning throughout the intended life of the Basic Law (50 years from 1997)?  That this is a prior question is self‑evident and affects how one would answer the definitional question about the term.  Its significance lies not only in whether one should give one definition or more than one definition in answer to the ultimate question.  Its significance lies also in its opening up of a distinct interpretative possibility that the legislature is intended by the Basic Law to have a (limited) say on what the term means at any given point of time.  That, in my view, essentially captures the gist of Lord Pannick’s primary argument.

29.  This requires some elaboration.  The fact that the expression “ordinarily resident” is undefined in the Basic Law does not mean as a matter of logic or of necessity, that on its proper interpretation, the Basic Law intends that the definition is to be solely supplied by the court, or that its meaning is to remain unchanged and unchangeable for 50 years starting from 1997 (short of an amendment of the Basic Law).

30.  Having one court‑supplied meaning which is to hold good for 50 years is, of course, an interpretative possibility that must be seriously considered.  However, that is not the only possible interpretative option.  The other option, persuasively advocated by Lord Pannick, is that the framers of the Basic Law actually intended to leave it to the legislature to define, within bounds (if I may put it loosely for the time being), what “ordinarily resident” means according to its best judgment, which would no doubt be dependent on, amongst other things, policy considerations and the ever‑changing political, economic and social conditions prevailing for the time being.

31.  It is only after this prior question has been properly answered can one move on to define the expression “ordinarily resident” in the Basic Law or, as the case may be, to consider whether the legislature has acted outwith its power to define, refine, elaborate or adapt the meaning of “ordinarily resident” by enacting section 2(4)(a)(vi) of the Immigration Ordinance.

Genesis of article 24(2)

32.  To better answer the prior question, several important matters should be borne in mind.

33.  First, article 24(2) (including article 24(2)(4)) is not a new invention under the Basic Law.  Its genesis can be traced to paragraphs 157 to 160 in Part XIV of Annex I to the Joint Declaration signed in late 1984.  Article 24(2)(4) copies almost verbatim what has been set out in paragraph 159.  Like the Basic Law, neither paragraph 159 nor the rest of Annex I, nor indeed any part of the Joint Declaration, defines the meaning of “ordinarily resident”.

“Ordinarily resident” – pre-existing use and importance of context

34.  Secondly, the term “ordinarily resident” was not a novel term whether back in 1990 or 1984, and whether in Hong Kong or in the UK in those days.  Rather, it was an expression used in a variety of contexts in law, including immigration laws.  As the judge pointed out in paragraph 42 of his judgment, in the 1970s, the expression “permanent resident” did not appear in our statute book.  Instead, the Immigration Ordinance had a definition of “Hong Kong belonger”.  But there were already references to “ordinarily resident in Hong Kong”, for instance, in the definitions of “Chinese resident” and “resident United Kingdom belonger”. Further, section 2(4) of the Immigration Ordinance already existed although at that time only those who remained in Hong Kong unlawfully or in breach of a limit of stay, and those who were imprisoned or detained, were excluded from being “ordinarily resident in Hong Kong”.  See Ordinance No 55 of 1971.

35.  Moreover, as the actual decision in Shah demonstrates, the term or concept is also commonly used in other areas of law.  In Shah, the concept was crucial to whether overseas students in the United Kingdom were entitled to receive educational awards under the Education Act 1962 and Education Act 1980.  As mentioned, Lord Scarman, who delivered the leading judgment, described the natural and ordinary meaning of the expression in terms of voluntariness and settled purposes.  This, it should be noted, was not a new test; it was a test borrowed from two House of Lords cases which also dealt with the expression but in a different context, namely: Levene v Inland Revenue Commissioners [1928] AC 217 and Inland Revenue Commissioners v Lysaght [1928] AC 234.  Both were tax cases.  When his Lordship adopted the same test for the purposes of deciding the case before the House, Lord Scarman said at p 343G‑H :

“Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that ‘ordinarily resident’ refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.” (emphasis added)

36.  Indeed, Lord Scarman went on to acknowledge that in different contexts, the same set of facts may give rise to different answers in terms of “ordinarily resident”.  He referred to the situation where the person’s stay in a country was unlawful (eg in breach of the immigration laws).  He pointed out that in that case, the person would not be regarded as ordinarily resident in the UK for the purposes of the Education Acts that he had to deal with (indeed there was an express exception to that effect in the Immigration Act 1971), but in the context of tax, his Lordship recognised, the same person, on the same facts, may well be regarded differently: pp 343H‑344B.  In Fateh Muhammad, a case which I will presently turn to, Bokhary PJ, in giving the leading judgment of the Court of Final Appeal, made a similar point at p 284B‑C.

The meaning of “ordinarily resident” was not free from controversies

37.  Thirdly, even in a given context, the meaning of “ordinarily resident” has not been necessarily clear.  Again, taking Shah as an illustration, the decision of the House of Lords on this crucial point reversed both the decision of the Divisional Court (Ormrod LJ, Kilner Brown and McNeill JJ) and that of the Court of Appeal (Lord Denning MR, Eveleigh and Templeman LJJ).  All the judges below took a narrower and more restrictive view on the meaning of “ordinarily resident” and placed great emphasis on the immigration status of the students and the limited purposes for which they were permitted to reside in the UK in determining whether they were “ordinarily resident” there – matters which, in the view of the House of Lords, were irrelevant to the proper meaning of the expression.

38.  We now know, with the benefit of hindsight, that the test favoured by Lord Scarman, though regarded as too wide by equally eminent judges including Lord Denning and Templeman LJ (as Lord Templeman then was), has since been accepted and adopted by many courts including the courts in Hong Kong as representing good law in many different contexts where the term is found.  However, the Joint Declaration was signed in 1984, and the Shah test was barely two years old then.  That was the background that one should bear in mind in seeking to answer the prior question.

Common law meaning is always subject to statutory modification

39.  Fourthly and more importantly, the undeniable fact is that common law (in the sense of case law) has never had an exclusive say on the meaning of “ordinarily resident”.  Lord Scarman recognised as much in Shah.  In the passage quoted above, he said that the meaning he favoured was subject to “the statutory framework or the legal context in which the words are used”.  Very often, when the term is used in a statute, the statute itself provides either a complete or at least a partial definition of the term.  For instance, when “ordinarily resident” was used in the original Immigration Ordinance when enacted in 1971, it already contained the several exceptions mentioned above.  Therefore, when a court is called upon to interpret the statutory term, it must bear those statutory exceptions in mind and read the relevant provisions in the statute as a whole, in deciding what meaning should be ascribed to the term.  Where necessary, the common law meaning of the expression must be adjusted and adapted to suit the statutory text.

40.  But not only that.  The very history of the litigation in Shah demonstrates one further matter of great significance, that is, the common law meaning of “ordinarily resident” is always subject to subsequent statutory intervention.  The actual decision in Shah, which was favourable to overseas students, was duly reversed by Parliament: see R v Hereford and Worcester County Council, Ex parte Wimbourne, The Times, 12 November 1983.  And that was even before the Joint Declaration was signed in December 1984.

Pre‑existing power to legislate on “ordinarily resident”

41.  This leads me to my fifth point, which is of equal importance.  Before 1997 and indeed before 1990 or 1984, the legislature has always enjoyed and indeed exercised the power to legislate on the meaning of “ordinarily resident”, typically by adding exceptions to what might otherwise have been regarded as within the meaning of the expression. 

42.  As mentioned, when the Immigration Ordinance was first enacted in 1971, it already contained exceptions in section 2(4) as it then was.  For instance, the exclusion of those imprisoned or detained from the expression was there from day one: section 2(4)(b).  The exclusion relating to Vietnamese refugees permitted to remain in Hong Kong as refugees pending resettlement elsewhere pursuant to section 13A of the Ordinance was added in 1982: section 2(4)(a)(iii).  A further exception relating to detained Vietnamese refugees pending decision as to permission to remain or pending removal under section 13D of the Ordinance was added in 1989, after the signing of the Joint Declaration in 1984 but before the promulgation of the Basic Law in 1990.

43.  The impugned exception relating to foreign domestic helpers was added by the Provisional Legislative Council in 1997, together with other exceptions relating to contract workers under a government importation of labour scheme, members of a consular post and members of the Hong Kong garrison.  The latest addition to the list of exclusions was made in 2002 in relation to a holder of a prescribed Central People’s Government travel document.

44.  Putting aside whether the provisions in the Basic Law are sufficiently wide to enable the legislature to add to the list of exclusions to the meaning of “ordinarily resident” in the Immigration Ordinance after the coming into effect of the Basic Law in 1997, the undeniable fact is that whether before or after 1984, 1990 and 1997, both the executive arm of government and the legislature have always proceeded on the assumption that the legislature is entitled to define, refine, elaborate or adapt, by means of ordinary legislation, the meaning of “ordinarily resident” to suit prevailing circumstances.

Immigration controls

45.  This leads me to my sixth point.  Article 154(2) of the Basic Law, which has its origin also in Part XIV of Annex I to the Joint Declaration, para 166, specifically provides:

“The Government of the Hong Kong Special Administrative Region may apply immigration controls on entry into, stay in and departure from the Region by persons from foreign states and regions.”

46.  This is not at all surprising given the great importance of immigration controls in the context of Hong Kong, something which I sought to highlight in MA v Director of Immigration, HCAL 10/2010, 6 January 2011, para 97 (where other relevant cases were referred to).

47.  Needless to say, political, economic and social conditions are not static.  They do change.  Almost by definition, they have a great bearing on the question of immigration and immigration controls. And the need to be able to respond, timeously and effectively, to changing circumstances in terms of immigration controls is self‑evident, particularly in a geographically small yet highly sophisticated, populous city like Hong Kong. That need has never diminished or otherwise changed, whether before or after 1984, 1990 or 1997.  Rightly or wrongly, the Government and the legislature have proceeded on the basis, post 1997, that they may, just as before 1997, legislate on the definition of “ordinarily resident” to effect immigration controls.

The theme of continuity

48.  Are they wrong to proceed in this way? One important theme of the Basic Law is the theme of continuity.  It is simply a manifestation of one of the guiding principles underlying the Joint Declaration and the Basic Law, that is, the previous capitalist system and way of life in Hong Kong shall remain unchanged for 50 years: article 5 of the Basic Law.  Immigration controls and the question of who can and who cannot become permanent residents of the Special Administrative Region must be matters that have an impact, and conceivably a material impact, on the way of life in Hong Kong.  In different contexts, the courts have referred to the theme of continuity in interpreting various provisions of the Basic Law: HKSAR v Ma Wai Kwan David [1997] HKLRD 761; Secretary for Justice v Lau Kwok Fai (2005) 8 HKCFAR 304, para 35; Luk Ka Cheung v Market Misconduct Tribunal [2009] 1 HKLRD 114, paras 32 and 36.

49.  Certainly, the theme of continuity cannot be carried too far.  Where a new regime is introduced by the Basic Law, the theme of continuity has no or little role to play.  By definition, the old is replaced by the new.  Our new Court of Final Appeal and the new office of the Chief Justice of the Court of Final Appeal are just two amongst many examples that can be given to illustrate the limitations of the theme of continuity under the new constitutional order.  Ms Li, in the present context, argued that this is such a case in relation to article 24(2) of the Basic Law which provides a brand new definition of permanent resident of the Special Administrative Region.  She also reminded the court of the non‑adoption of the previous statutory definition of the term (permanent resident) in the Immigration Ordinance pursuant to article 160 of the Basic Law as from 1 July 1997.

50.  I accept all this so far as it goes. However, whilst we have a new definition of permanent resident, this new definition uses, relevantly, familiar terms, that is, “ordinarily resident” in Hong Kong for a continuous period of not less than 7 years.  Therefore, to this extent, one asks, did the framers of the Basic Law intend a clean break from the former practice, or did they intend some form of continuity with the past?  The absence of a definition for “ordinarily resident” and the presence of article 154(2) in the Basic Law would tend to support the latter answer.  The fact that article 154(2) is contained in Chapter VII of the Basic Law covering “External Affairs” should not mask its proximity to the provisions governing the definition of permanent resident in the Joint Declaration.  To be exact, it is only seven paragraphs away from the crucial definition of permanent resident in question.  The intervening paragraphs in Part XIV of Annex I deal with passports, travelling documents and people coming to Hong Kong from other parts of the country.

51.  A further point that can be made in relation to article 154(2) and immigration controls in general, under the present context (the theme of continuity), is that putting the case law aside (which I will return to), controlling and regulating who can and who cannot become a permanent resident must be one of the core businesses and purposes of immigration controls.  Put another way, one of the main aims and purposes of having immigration controls in the first place is to enable society to control and regulate who can, and who cannot, immediately or in due course, become a national, citizen or, as the case may be, permanent resident with the right of abode, of that society.

A valuable status and right

52.  This brings me to my last observation. For Hong Kong, the permanent resident status is a highly valuable status and right: Fateh Muhammad, p 284D/E.  It makes the present context a very different context from one concerning educational award or taxation.  Naturally one expects the Basic Law to intend a more cautious if not different approach to be adopted in determining what amounts to “ordinarily resident” as a condition for the concession by society of the valuable status and right.

53.  This is all the more so, in the context of the impugned provisions, given the number of foreign domestic helpers already working in Hong Kong back in the 1980s – by 1986, there were 28,951 working in Hong Kong; that figure increased to 70,335 by 1990 when the Basic Law was promulgated.  All this happened against the background that most if not all of them were not qualified to become Hong Kong permanent residents according to the then immigration laws, a fact which was made well known to the foreign domestic helpers even before their first arrival in Hong Kong.  It is true that also excluded from potential permanent resident status were many other classes of people staying in Hong Kong under the then immigration laws.  However, this does not detract from the fact that, for all practical purposes, at no time before 1997 were foreign domestic helpers entitled to the valuable status and right of a permanent resident.  Nor does it detract from the fact that article 24(2)(4) of the Basic law is now said to have opened a real possibility for the acquisition of the valuable status and right by such a potentially large group of people (I use the word “potentially” advisedly as I am aware of the controversy on the implications, real or projected, of the present issue in terms of numbers and figures.)

One definite, immutable meaning?

54.  I would now look at the position from a slightly different perspective.  What are the implications of the Basic Law intending (for the sake of argument) that there should be a fixed meaning of “ordinarily resident” in article 24(2)(4), so that the court’s only task is to discover that meaning by applying the normal canons of construction of the Basic Law?  In that event, the legislature would have no or very limited role to play in shaping the meaning of the term.  Indeed, that represents Ms Li’s position.  According to leading counsel, “ordinarily resident” has one definite and immutable meaning, good for all time, subject to any amendment of the Basic Law.  That meaning has been fixed since 1990 (or 1984 when the Joint Declaration was signed?)  Furthermore, she contended that that single, immutable meaning of the term is that given by the House of Lords in Shah.  In other words, article 24(2)(4) has, on its proper interpretation, codified or constitutionally entrenched Shah.

55.  Ms Li’s position is best illustrated by her answer given to a hypothetical question posed to counsel during submission: what if the Supreme Court in the United Kingdom were to depart from Shah tomorrow and give the term a different meaning; what should the courts in Hong Kong do then?  Counsel answered that the courts, in interpreting article 24(2)(4), should nonetheless follow the meaning given by Shah to the term.  Although it was not posed to counsel during submission, I suppose counsel would have given the same answer if she had been asked what the position would have been if the Privy Council had, between 1990 and 1997, refused to follow Shah but instead adopted a different meaning for the term.  For the sake of completeness, I also suppose the answer that counsel would have given would still be the same if she were asked whether the Court of Final Appeal would be at liberty to say that Shah was wrongly decided and “ordinary resident” in article 24(2)(4) should be given a different meaning in a post 1997 case.

56.  I have difficulties with this approach.  Not only does it represent a significant departure from the previous practice whereby the legislature is free to define, refine, elaborate or adapt the meaning of “ordinarily resident” to suit the needs of society for the time being, but this approach – whereby a single common law decision, albeit one by the House of Lords, is elevated to the status of an immutable, constitutional definition, which cannot be changed either by ordinary legislation or by normal development of case law – also represents a considerable departure from the traditions of common law.  That is a very drastic position to take.

57.  All this change is said to have taken place even though the Basic Law contains no definition of the term “ordinarily resident”, and nowhere can we find in the Basic Law any references to the crucial elements of the Shah test, namely, voluntariness and settled purposes.

Pre‑existing exceptions relating to imprisoned persons and Vietnamese refugees

58.  Ms Li’s contention has significant practical implications. Take the pre‑existing exceptions to the definition of “ordinarily resident” in the Immigration Ordinance as examples.  As mentioned, section 2(4)(b) excludes all periods of imprisonment or detention from the reckoning of ordinary residence.  There can be no doubt that this exclusion is constitutional: Fateh Muhammad and Prem Singh.

59.  Nor can it be doubted that the exclusion of Vietnamese refugees in section 2(4)(a)(iii) is constitutionally valid.  Back in the 1980s, the presence of a very significant number of Vietnamese refugees stranded in Hong Kong awaiting resettlement was a real political, economic and social problem not only for Hong Kong, but also internationally.  The exception was added to the Immigration Ordinance in 1982 under those circumstances.  In the ensuing years, it became increasingly plain that the chances of many of these stranded refugees securing resettlement elsewhere were slim and short of repatriation to Vietnam, a great many of them would remain in Hong Kong indefinitely.  Plainly this was an unacceptable situation given Hong Kong’s small geographical size and huge population. Indeed the United Nations Refugees Convention 1951 was (and still is) never extended to Hong Kong and Hong Kong’s “reached base” policy for Mainland illegal immigrants had been discontinued by 1980: Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, 633F to 634B.  It therefore came as no surprise that many thousands of those stranded here were eventually repatriated to Vietnam.  In those circumstances, it would be most startling a proposition to suggest that the framers had, in the latter part of the 1980s when the Vietnamese refugee problem was at its height, actually intended to confer permanent resident status on those who had been stranded in Hong Kong for long enough.  On a purposive interpretation of the Basic Law, therefore, bearing in mind the pre‑enactment position, there can be little doubt that the exclusion relating to Vietnamese refugees is constitutionally valid.  Ms Li has not sought to argue otherwise.

60.  Yet, importantly, a strict and mechanical application of the Shah test, as enunciated by the House of Lords in 1982, would have yielded a very different result. Depending on the facts, and the right facts are not difficult to imagine, such a Vietnamese refugee, or for that purpose, an imprisoned or detained person, may well be able to satisfy the Shah test in terms of voluntariness and settled purposes even though one is a stranded refugee, and the other has been imprisoned or detained.  It all depends on the facts.

61.  It should not be forgotten that in Fateh Muhammad, the applicant who unsuccessfully applied for a permanent identity card in 1998 because he had been imprisoned for 3 years during the requisite 7 year period, had lived in Hong Kong since the 1960s.  And in the subsequent case of Prem Singh, the applicant had been in Hong Kong since 1988, and the period of imprisonment in issue was only 2 weeks.  One can easily think of more extreme facts to bring out the point here.  And the point is: depending on the facts, such a person may well be able to satisfy the voluntariness/settled purposes test propounded by the House of Lords in Shah, if that test is indeed the proper test to apply for the purposes of article 24(2)(4).  One only needs to compare the situation of such a person with that of a local person who has, for one reason for another, been imprisoned or detained for a period of time, and ask whether such a local person was still ordinarily resident in Hong Kong under the Shah test during his period of imprisonment or detention, in order to see that depending on the facts, the answer could well be “yes”.  In terms of analysis, again depending on the facts, there could be little difference between such a foreign national and a local person.

62.  Likewise, a stranded Vietnamese refugee in Hong Kong with little or no realistic prospect of resettlement elsewhere in the near future may well regard his presence in Hong Kong as something he has adopted for settled purposes as part of the regular order of his life for the time being.  And regardless of where he ultimately wants to go, his presence in Hong Kong may, in many cases, be regarded as voluntary under the Shah test.  Yet, as analysed above, there can be no doubt about the constitutional validity of the exception relating to Vietnamese refugees.

63.  These are real exclusions.  They are sweeping exclusions which do not permit the individual from asking the authorities to examine the facts pertaining to his or her case individually.  Yet they are constitutional.

64.  The wholesale adoption of the Shah test as the correct, immutable definition of “ordinarily resident” in article 24(2)(4) cannot accommodate these two blanket exceptions.  Certainly one cannot find any grandfather clause in the Basic Law to preserve them.  In my view, the very presence of these admittedly valid statutory exceptions casts a serious doubt on the primary premise on which Ms Li’s argument is founded, namely, that article 24(2)(4) has, in essence, constitutionally entrenched the Shah test, forever and ever.

Can new exceptions be created?

65.  The practical implications of Ms Li’s contention do not stop there.  For it is counsel’s primary contention, building on the Shah test, that no further exceptions can be created by the legislature after 1990 which are inconsistent with the immutable Shah test.  That this is a startling proposition can best be brought out by illustrations.  According to this argument, the legislature has since 1997 or even 1990 lost the power to add exceptions to “ordinarily resident” which are inconsistent with the Shah test regardless of changing political, economic and social circumstances.  (I say 1990 because any such new exceptions added after the promulgation of the Basic Law in 1990 would not have survived the coming into effect of the Basic Law in 1997.)  Not forgetting that the exclusion of refugees in section 2(2)(a)(iii) relates only to Vietnamese refugees, the legislature has no power to legislate against any refugees coming from elsewhere, or for that matter, economic migrants or torture claimants (whether screened in or otherwise), even if it wants to.  As illustrated by the facts in MA, the possibility of mandated refugees and screened in torture claimants being stranded in Hong Kong for a prolonged period of time is not unreal at all.  Yet, according to Ms Li’s contention, the Government has no power to legislate on these matters in any way that is inconsistent with the Shah test; the only remedy lies with the amendment of the Basic Law.

66.  Why should this be so, if one may ask rhetorically? Ms Li relied on the theme of continuity.  But she relied on it to justify the continued adoption of the Shah test which had been adopted in some local cases prior to 1990.

67.  For my part, I do not believe this is a correct way of understanding the theme of continuity or of applying it to the present case.  It represents too narrow a view of what constituted the pre-Basic Law or pre-1997 position which is continued in the post‑1997 era.  As mentioned, the legislature, as recognised by common law, has always possessed and exercised the power to define, refine, elaborate or adapt the concept of “ordinarily resident” for the purposes of immigration controls, so as to meet ever-changing circumstances.  The need to do so and to be able to do so has never changed whether before or after 1997.  I do not believe it was the intention of the framers of the Basic Law to put an end to this power altogether.  That would be counterproductive and it would amount to imposing a straitjacket on the Government of the Special Administrative Region.

68.  What the framers intended, in my view, is that, on the one hand, article 24(2)(4) of the Basic Law defines relevantly the requirements for obtaining the status of permanent resident by reference to, amongst other things, “ordinarily resident”, and on the other, it leaves it to the legislature to define, refine, elaborate or adapt the expression to meet the ever-changing needs of society. In that way, a balance is struck.  By using the term “ordinarily resident”, a certain degree of certainty is obtained and the legislature’s freedom is curtailed.  No further or other requirement can be added: Prem Singh. Furthermore, whatever refinement, elaboration or adaptation the legislature might wish to make to the term “ordinarily resident”, it cannot go outside the core meaning of the term.  As was remarked during submission, the legislature cannot call a swimming pool a lighthouse: cf Australian Communist Party v The Commonwealth (1951) 83 CLR 1, 249; Singhv The Commonwealth (2004) 222 CLR 322, para 153.  However, within bounds, the legislature is given a free rein.

Inherent flexibility of the expression “ordinarily resident”

69.  This approach accords well with the common law position, which, as explained, always assumes Parliament’s power to modify or even change a common law rule.  Even Lord Scarman pointed out that his test of “ordinarily resident” is always subject to the relevant statutory framework or the legal context in which the words are used which may require or indicate a different meaning.

70.  As Lord Pannick submitted, it would be a very strange thing to say that our Basic Law has, for some unknown reasons, chosen to adopt a particular meaning given to the expression “ordinarily resident” in an educational allowance case in the United Kingdom by way of statutory interpretation of some Education Acts there, as the immutable meaning for the same expression found in our article 24(2)(4).  This is particularly so, when the common law definition so supposedly adopted is itself not free from controversies amongst eminent jurists, and when the expression is notorious for being capable of bearing different meanings in different contexts.

71.  That the term “ordinarily resident” may reasonably bear different meanings is illustrated not only by the more restrictive meanings ascribed to the expression by the Divisional Court and by the Court of Appeal in Shah, but also by, for instance, the statutory definition given under the latest Australian Citizenship Act 2007 which reads:

“… a person is taken to be ordinarily resident in a country if and only if:

(a) he or she has his or her home in that country; or

(b) that country is the country of his or her permanent abode even if he or she is temporarily absent from that country.

However, the person is taken not to be so resident if he or she resides in that country for a special or temporary purpose only.”

72.  As Bokhary PJ recognised in Fateh Muhammad, at p 283G/H‑284B:

“ The expression ‘ordinarily resident’ is to be given its natural and ordinary meaning. What that meaning is depends on the context in which the expression appears. The courts have often had to grapple with the expression's natural and ordinary meaning in legislation eg as in Levene v IRC [1928] AC 217 and IRC v Lysaght [1928] AC 234 (where liability to tax was concerned) and as in R v Barnet LBC, ex p Shah [1983] 2 AC 309 (where entitlement to educational allowance was concerned). Although residence and its nature can be highly relevant to the common law concept of domicil, it was pointed out by Lord Carson in Gout v Cimitian [1922] 1 AC 105 at p110 that the expression ‘ordinarily resident’ (found in that case in an order‑in‑council) could not be interpreted by the considerations which apply when determining domicil, and must be given its usual and ordinary meaning.

No single judicial pronouncement or combination of such pronouncements in regard to the meaning of the expression ‘ordinarily resident’ can be conclusive for the purposes of every context in which that expression appears.  But as a starting point at least, Viscount Sumner's observation in IRC v Lysaght [1928] AC 234 at p 243 that ‘the converse to ‘ordinarily’ is ‘extraordinarily’’is, I think, of wide utility.  Serving a term of imprisonment, at least when it is not of trivial duration, is something out of the ordinary.”

Singh – the Australian approach

73.  In this regard, our situation is not wholly unlike the one faced by the Australian High Court in Singh.  Section 51(xix) of the Australian Constitution confers upon the Parliament the power to make laws with respect to “naturalization and aliens”.  Section 10(2) of the Australian Citizenship Act 1948 (Cth), as amended by the Australian Citizenship Amendment Act 1986 (Cth), provided that a person born in Australia after 20 August 1986 shall be an Australian citizen by virtue of that birth only if a parent of the person was, at the time of the birth, an Australian citizen or a permanent resident, or if the person has been ordinarily resident in Australia throughout a period of 10 years commencing on the day the person was born.  The plaintiff was born in Australia in February 1998.  Her parents were citizens of India and were not Australian citizens or permanent residents.  By virtue of her parents’ citizenship of India, the plaintiff took Indian citizenship at birth.  In 2003 she commenced proceedings to resist removal under the Migration Act 1958 (Cth) as an “unlawful non-citizen”.  At issue was whether the applicant was an “alien” within the meaning of section 51(xix) of the Constitution and therefore whether the Parliament had the constitutional power to make the relevant statutory provisions empowering her removal from Australia.  The plaintiff contended that by virtue of her birthright in Australia, she was not an alien as the word was understood properly at the time the Constitution was made.

74.  By a majority, her contention was rejected.  Although different judges gave different reasons for their decisions, I find the judgment of Kirby J, one of the majority judges, most relevant for our present purposes, whilst bearing firmly in mind that the facts and contexts of the two cases are quite different.

75.  Having pointed out in paragraph 250 of the judgment that even in 1901, there were two major legal theories concerning the legal status of aliens, in the sense of “belonging to” another place or person, Kirby J said in paragraph 251 that it was unconvincing to suggest that the federal Parliament in Australia was “forever to be limited to the approach of birthright”, the approach favoured by the English courts (subject to statutory exceptions) at the time of confederation. Starting from paragraph 252, the learned judge asked a number of highly illuminating rhetorical questions:

“252. Why could the Parliament not adopt, wholly or in part, elements of the alternative legal approach to the issue of alienage accepted by many legal systems of the world? After all, each approach was an endeavour to identify the feature of a relationship between the individual and a nation on the basis of which loyalty and membership could generally be imputed and demanded. Further, the common law rule of birthright had already admitted its own exceptions, namely for the children of a foreign monarch, diplomats and enemy aliens. Why, of its nature, could more exceptions never develop around the notion of ‘aliens’? From medieval times, the English Parliament provided particular derogations from birthright in favour of the principle of descent. Why, as a matter of constitutional principle, should further exceptions be forbidden to the Australian Parliament? Why should it be forbidden in the absence of a clear indication that such was the purpose of those who made the Constitution and designed its basic notions?

              253. In the nineteenth century, in the United Kingdom, inquiries had been launched relating to the need to modify the birthright rule.  If this was in the contemplation of the generation that adopted the Constitution, why did the use of the word ‘aliens’ forbid any further movement if later generations were convinced that movement was warranted?  Within limits set by the unchanging, essential elements of the word ‘aliens’, it has been conventional in our constitutional law to acknowledge a large power on the part of the Parliament to give meaning to the language of the Constitution, subject always to consideration by the courts, which, in this respect, have the last say.”

76.  Drawing the threads together, Kirby J said:

“256. Because the Constitution, of its function and character, adapts to such changes, there is no reason why the word ‘aliens’ should not be capable of responding to such new circumstances. There is every reason why it should.

......

266. The recognition of this change in the notion of alienage is only consistent with an acceptance of the fact that the ambit of the word ‘aliens’ was not closed at the time of Federation. It was not a word devoid of meaning. But neither was its meaning fixed by what the word would have meant to lawyers, or the laity, in 1901 or even 1980. Addressing as it does a status, defined by reference to the relationship between the Australian people and each other as well as with the people of the rest of the world, it is inevitable that geo‑political, technological and other developments will have an impact on the contemporary understanding of the meaning of ‘aliens’ and that appreciation of the meaning of that word will change over time.

…..

269. Should some future Parliament attempt to push the ‘aliens’ power into extreme instances, so as to deem a person born in Australia an ‘alien’ despite parental or grand‑parental links of descent and residence, this Court can be trusted to draw the necessary constitutional line.  Doing so is inherent in the task of constitutional interpretation.  To avoid such dangers, it is not necessary to embrace a rigid, and now outmoded, meaning of a contested constitutional word.”

77.  As I have emphasised, the context and indeed the issues faced by the High Court in Singh are quite different from that in the present case.  There are of course distinctions between the two cases.  However, I do not think the fact that the Parliament in Singh is given an express power to make law with respect to “naturalization and aliens” provides a valid distinction.  The simple reason is that no one contended in Singh that that express authorization by itself allows the Parliament to define who is or who is not an alien.  On that point, the Australian Parliament is no different from the legislature in Hong Kong.  It is permitted to legislate on the definition of alienage not because of the express power given to legislate with respect to “aliens”, but only because of the fact that “the ambit of the word ‘aliens’ was not closed at the time of Federation” (para 266) and the Parliament is thus entitled to adapt the meaning of the word “aliens” to respond to changing circumstances over time.

Unchanging, essential elements or central characteristic of “ordinarily resident”

78.  As Lord Pannick emphasised, the Commissioner is not advocating for a free‑for‑all position in respect of the power of the legislature to legislate on the meaning of “ordinarily resident”. In Singh, the majority recognised that the word “aliens” is not devoid of meaning but has some unchanging, “essential elements” (para 253) or a “central characteristic” (para 200), that is, “owing obligations (allegiance)” (ibid). Likewise, the expression “ordinarily resident”, when used in the Basic Law, is not devoid of meaning but has some unchanging, essential elements or a central characteristic. But subject to these unchanging, essential elements or the central characteristic, the legislature may, as before, define, refine, elaborate or adapt the expression to meet the changing needs of society.

79.  The unchanging, essential elements or central characteristic means that once the essential elements or central characteristic is met, the person cannot be labelled by the Parliament in Singh as an alien, or in our present case, the foreigner cannot be regarded by the legislature as not “ordinarily resident” here.  In other words, the unchanging, essential elements or central characteristic demarcates the outer limit of the word “aliens” in Singh or, of the expression “ordinarily resident” in our case.  Beyond the outer limit, the legislature cannot go.  Within the outer limit, however, the legislature has a free hand.  In other words, if it so wishes, the legislature may choose to give the word/expression a more generous and liberal meaning than that required by its unchanging, essential elements or central characteristic.  Thus, there is nothing to stop the Australian Parliament, if it so wishes, to adopt, even now, the place of birth as the sole criterion for determining alienage.  Nor is there anything to stop the local legislature from giving the expression “ordinarily resident” a more liberal and generous meaning than that required by its unchanging, essential elements or central characteristic.

80.  For reasons that I will continue to develop, the Shah test is indeed such a more liberal and generous test, which the legislature has not, however, chosen to adopt in the Immigration Ordinance.  Rather it has chosen to add one exception after another to the expression “ordinarily resident” and make the door narrower and narrower.  The present case raises the all-important question of whether the exception found in section 2(4)(a)(vi) has made the door narrower than is permitted by the unchanging, essential elements or central characteristic of the expression “ordinarily resident”.

81.  What then are those unchanging, essential elements or central characteristics of the expression “ordinarily resident” when used in article 24(2) of the Basic Law?  In my view, they are not represented by the Shah test, which, as mentioned, is in fact a more liberal and generous test.  In this regard, contrary to the view of the judge below, I do not understand the two Court of Final Appeal cases in Fateh Muhammad and Prem Singh as binding the court to come to a different conclusion.  Rather, in my view, the two cases demonstrate precisely that the unchanging, essential elements or central characteristic of the term “ordinarily resident”, when used in the Basic Law, is not limited to the two requirements of voluntariness and settled purposes or, put another way, the essential elements or central characteristic is only properly reflected by a more stringent or restrictive way of applying the two requirements than in other contexts.

Fateh Muhammad

82.  In Fateh Muhammad, the applicant applied for a permanent identity card in 1998, claiming that he was a permanent resident under article 24(2)(4) of the Basic Law.  He had lived in Hong Kong since the 1960s, but between 1994 and 1997, he had been imprisoned for non‑immigration offences.  Seven years therefore had not elapsed since his release from prison at the time he applied for a permanent identity card.  The issue therefore arose as to whether section 2(4)(b) of the Immigration Ordinance, which has the effect of excluding the period of imprisonment from counting toward the requisite 7 year continuous ordinary residence immediately before the application for a permanent identity card was made, was constitutional.  The meaning of the term “ordinarily resident” in article 24(2)(4) was therefore at the forefront of the court’s consideration.

83.  The court unanimously held that section 2(4)(b) of the Immigration Ordinance is constitutional.  Leaving aside those rare cases where the de minimis principle applies, the provisions are constitutionally effective in excluding any period of imprisonment or detention pursuant to a court sentence or order from the definition of “ordinarily resident”.  The constitutional challenge therefore failed.

84.  It is important to note that in the judgment of Bokhary PJ, with whose judgment the other members of the court all agreed, the Shah test was not adopted as such.  It was referred to only in the context of the judge’s pointing out that the courts had had on many occasions to grapple with the natural and ordinary meaning of the expression “ordinarily resident” in legislation in different contexts, and Shah was given as an example of the context involving educational allowance: p 283H.  The twin test of voluntariness/settled purposes was not referred to as such.  Rather, the judgeemphasised in the passage already extracted that there is no single judicial pronouncement or combination of such pronouncements in regard to the meaning of the expression “ordinarily resident” that can be conclusive for the purposes of every context in which that expression appears.  Bokhary PJ thenemphasised that as a “starting point” at least, the observation of Viscount Sumner in IRC v Lysaght (a tax case) that “the converse to ‘ordinarily’ is ‘extraordinarily’” is of wide utility.  In regard to the case in question, the judge then said that serving a term of imprisonment, at least when it is not of trivial duration, is “something out of the ordinary”: p 283J‑284B.  Yet Bokhary PJ cautioned that he should not be taken to say that the fact of being imprisoned somewhere would of itself render a person not ordinarily resident there necessarily for all purposes and he gave the example of tax to illustrate his point.  In other words, for tax purposes as opposed to the purposes of article 24(2)(4) of the Basic Law, the prisoner may well be treated, as a matter of law, to be ordinarily resident in the place where he was imprisoned.  Yet, pausing here, it should not be forgotten that the Shah test, propounded by Lord Scarman, was borrowed from two tax cases.

85.  It should also be remembered that the full quotation of Viscount Sumner’s observation in Lysaght (at p 243) reads:

“I think the converse to ‘ordinarily’ is ‘extraordinarily’ and that part of the regular order of a man’s life, adopted voluntarily and for settled purposes, is not ‘extraordinary’.”

Ms Li submitted that, therefore, when he referred to the converse of “ordinarily” is “extraordinarily”, Bokhary PJ was not suggesting any new test apart from the twin test of voluntariness/settled purposes, ie the Shah test.

86.  I do not agree.  In my view, the Court of Final Appeal was very careful in only singling out the first part of Viscount Sumner’s observation as “a starting point” for discovering the true meaning of the expression “ordinarily resident” as used in our Basic Law.  This is illustrated by the actual decision there.  As already alluded to, depending on the facts, it is quite possible for a person who has been imprisoned for a substantial period of time in Hong Kong to be able to satisfy the twin test of voluntariness/settled purposes (if it is applied at face value).  Thus, the very applicant in Fateh Muhammad has been in Hong Kong since the 1960s.  There was no suggestion on the facts that between 1994 and 1997 when he was imprisoned, but for his imprisonment, he would have wanted to reside elsewhere.

87.  In fact, his position, according to the facts, was no different from a local person (a permanent resident) who, for one reason or another, was sent to jail for a substantial period of time.  To illustrate my point better, let us imagine that this local person is a hardened criminal, who has been imprisoned on many occasions.  Can it be seriously suggested that he is not “ordinarily resident” in Hong Kong every time he is sent to jail, applying the Shah test at its face value?  In my view, in every case, if one really were to apply the Shah test at its face value, the answer must depend on the facts.  One simply cannot say, as a blanket statement, that no period of imprisonment can ever satisfy the Shah test or the “settled purposes” requirement.

88.  By the same token, it is difficult to see how the applicant in Fateh Muhammad should be treated as not ordinarily resident in Hong Kong according to the Shah test (voluntariness/settled purposes), just because he was imprisoned during the relevant period of time, without any investigation of the underlying facts.  In any event, one need not be bogged down by the facts in Fateh Muhammad.  It is not difficult to imagine realistic examples of people still satisfying the twin test of voluntariness/settled purposes according to Shah even though he or she was imprisoned in Hong Kong for a substantial period of time.

89.  Yet, the Court of Final Appeal had no difficulty in concluding that section 2(4)(b), which applies in a blanket way to exclude all periods of imprisonment or detention from the expression “ordinarily resident” regardless of the facts of individual cases, is constitutional.

90.  This can only be explained by the fact that the Court of Final Appeal was applying a more stringent or restrictive test of “ordinarily resident” for article 24(2)(4) of the Basic Law than the twin test of voluntariness/settled purposes expounded in Shah (or, put another way, the court was applying the twin test in a more stringent or restrictive way than in an ordinary case involving a non‑constitutional or different context).

91.  Thus analysed, I do not think Fateh Muhammad stands in the way of the analysis put forward in this judgment.  Rather, it supports the analysis.

Prem Singh

92.  As for Prem Singh, one of the issues raised there was whether the applicant’s 2 week imprisonment in May 1999 broke his continuous ordinary residence in Hong Kong.  He came to Hong Kong in 1988 and the application for verification of his permanent resident status was (formally) made in May 2000. The question therefore arose as to whether the short period of imprisonment broke the period of ordinary residence by reason of section 2(4)(b) of the Immigration Ordinance.

93.  Four of the judges took the view that the 2 week imprisonment was not trivial and the de minimis rule did not apply; whereas Bokhary PJ was more doubtful on this point.  However, the actual decision did not turn on this as the court held that the applicant’s application for the permanent resident status had been made earlier than May 2000; rather, on the facts, it was made back in October 1998 when he applied for an extension of stay based on a new employment.  The May 1999 imprisonment was therefore irrelevant.

94.  For our present purposes, it is important to note what the court has, nonetheless, said, obiter, about the 2 week imprisonment.  All the judges thought that section 2(4)(b) of the Immigration Ordinance was constitutionally effective to exclude the 2 week imprisonment from “ordinarily resident” (subject to Bokhary PJ’s doubt regarding the application of the de minimis principle).  Indeed, the majority (per Ribeiro PJ) explained why the de minimis rule did not apply in these terms:

“75. In my judgment, the two week period of imprisonment in this case was not de minimis. Ms Eu sought to argue that the sentence brought about a trivial interruption because the period of two weeks represents a small fraction of the seven year qualifying period. However, the exclusion of periods of imprisonment from the ordinary and natural meaning of the words ‘ordinary residence’ in BL art 24(2)(4) does not depend on the duration of such periods being substantial or on their amounting to a substantial fraction of the seven year qualifying period. The exclusion is qualitative. The incarceration, reflecting sufficiently serious criminal conduct to warrant an immediate custodial sentence, falls outside what could qualify as ‘the settled purposes’ underlying a person’s ordinary residence in the ordinary and natural sense of those words, referred to by Lord Scarman in Akbarali v Brent London Borough Council, ex p Shah[1983] 2 AC 309 at p 344. It is this qualitative aspect of time spent in prison that has led to such periods being excluded from the concept of ‘ordinary residence’ in successive statutory schemes and in the Basic Law.”

95.  It is true that in the above passage, the court referred to “settled purposes” in Shah.  However, one must look carefully at how the court applied the “settled purposes” requirement.  In the court’s view, even though the applicant had been ordinarily residing in Hong Kong since 1988, yet during the 2 week imprisonment, he was not “ordinarily resident” in Hong Kong because the incarceration “falls outside what could qualify as ‘the settled purposes’ underlying a person’s ordinary residence” for the purposes of the Basic Law.  For by definition, the incarceration reflected “sufficiently serious criminal conduct to warrant an immediate custodial sentence”.

96.  Pausing here, it must be noted that this is a sweeping exclusion of any period of imprisonment, without any investigation into the underlying facts, from the ambit of “ordinarily resident”. A person may be imprisoned for a variety of reasons.  Contempt of court, non‑payment of fines and unsuitability for non‑custodial alternatives (such as community service order in the case of a young offender) and so forth, may all result in an offender being sent to jail rather than being given a non‑custodial sentence.  In a wholly different context, I have examined this aspect of imprisonment and the various factors at play: Chan Kin Sum v Secretary for Justice [2009] 2 HKLRD 166, paras 112‑120.

97.  In particular, in the case of a short sentence like the one faced by the applicant in Prem Singh, it is difficult to see how, without examining the relevant facts in the individual case concerned, one can safely conclude that the person’s imprisonment must be outwith the “settled purposes” of his or her abode in Hong Kong during the period of imprisonment according to the Shah test.  Certainly, all things would depend on the facts.

98.  Yet I am not, for one moment, suggesting that the Court of Final Appeal has wrongly understood the “settled purposes” test in Shah or has incorrectly held that the 2 week imprisonment did not qualify for ordinary residence when the underlying facts have not been examined.  Far from it – my point is precisely the opposite.  My point is that the Court of Final Appeal has rejected the 2 week imprisonment regardless of the underlying facts precisely because the court was applying a more stringent or restrictive test than the ordinary Shah test, or put another way, it was applying the Shah test in a more stringent or restrictive way.  That their Lordships have chosen to say that the incarceration falls outside what could qualify as “the settled purposes” underlying the applicant’s ordinary residence in Hong Kong during the 2 week imprisonment is just another way of saying that for the purposes and in the constitutional context of article 24(2)(4) (as opposed to other purposes and contexts), the requirement of “settled purposes” assumes a different and indeed more stringent or restrictive meaning.

99.  Therefore, as mentioned, my view is that the two Court of Final Appeal cases do not support Ms Li’s contention that the Shah test as such has been adopted by the Court of Final Appeal in Hong Kong in interpreting article 24(2)(4).  Rather, the two cases suggest that something more stringent or restrictive than the ordinary Shah test is applied, which results in the exclusion of all periods of imprisonment from counting towards ordinary residence regardless of the underlying facts.

Central characteristic of “ordinarily resident”

100.  What then does “ordinarily resident” mean for the purposes of article 24(2)(4) of the Basic Law?  Some clues can be gleaned from the approach of the Court of Final Appeal in the two cases, the imprisonment/detention exception upheld by the court as constitutional in those two cases, and also from the other pre‑existing exceptions which formed part of the pre-existing background against which the Basic Law was enacted in the first place, in order to discover the relevant “central characteristic” (or “essential elements”) of the expression “ordinarily resident”.

101.  This was indeed the approach of the majority in Singh.  They discovered the central characteristic of the word “alien” by reference not to who was and who was not considered as an alien under British law in 1901, but rather by identifying the characteristics of the legal status to which the word referred back in 1901: paras 199‑200.

102.  In my view, underlying the pre-existing statutory exceptions, including the imprisonment/detention exception upheld by the Court of Final Appeal in the two cases, is the idea of being out of the ordinary, that is “extraordinarily”, particularly in terms of the purpose for which the person resides or stays in Hong Kong when viewed from the perspective of society – this being a more important consideration than the person’s own subjective purpose or intention. 

103.  This requires some elaboration.  A refugee may well be staying in Hong Kong for a very settled purpose, that is, to seek refuge and await resettlement or even to await permission to remain in Hong Kong permanently.  His residence in Hong Kong is, from his own point of view, something which he has adopted for a settled purpose as part of the regular order of his life for the time being.  Yet, the blanket statutory exception relating to Vietnamese refugees is regardless of their subjective settled purposes.  This is because their stay in Hong Kong is, when viewed from Hong Kong’s perspective, “out of the ordinary” in the sense that their stay in Hong Kong is for a special, limited purpose.

104.  Take the case of a prisoner.  Regardless of the subjective intent or purpose of the prisoner, and regardless of how settled his purpose is to stay in Hong Kong as part of his regular order of his life for the time being irrespective of his imprisonment, from an objective point of view, his stay in Hong Kong during the period of imprisonment is to serve a specific, limited purpose, that is, the need to punish him for his crime, regardless of whether, but for the imprisonment, he would have stayed or left Hong Kong or would have wanted to do so.

105.  Having so described what is “out of the ordinary” or “extraordinarily”, one arrives at, albeit from the other end, the central characteristic of “ordinarily resident” as used in article 24(2)(4) of the Basic Law.  As Bokhary PJ said in Fateh Muhammad at p 284B, the converse to “ordinarily” is “extraordinarily”.   

106.  So long as a statutory exclusion does not go against this central characteristic, it cannot be regarded as unconstitutional.  This is, as mentioned, the approach in Singh.  As Kirby J said in paragraph 253, within limits set by the unchanging, essential elements of the word “aliens” as used in the Constitution, it has been conventional in Australian constitutional law to acknowledge a large power on the part of the Parliament to give the meaning to the language of the Constitution, subject always to consideration by the courts, which, in this respect, have the last say.  Should some future Parliament attempt to push the “aliens” power into extreme instances, the judge continued in paragraph 269, the court can be trusted to draw the necessary constitutional line.  Doing so is inherent in the task of constitutional interpretation.  To avoid such dangers, it is not necessary to embrace a rigid, and now outmoded, meaning of a contested constitutional word.

107.  By way of contrast, the case of Cheatle v The Queen [1993] 177 CLR 541 illustrates how the Parliament cannot encroach upon the essential feature of a constitutional guarantee.  At issue was the constitutional guarantee of trial by jury in criminal cases.  The High Court of Australia identified, by reference to the law existing in 1900, as one of the essential features of the institution of trial by jury in criminal cases the requirement of unanimity. The court was able to distil from the law then many restrictions and qualifications, including the exclusion of women and unpropertied persons from serving as jurors, as non‑essential features of the institution as at the turn of the century.  It concluded that the relevant essential feature of the institution was the requirement of unanimity.  The court also distinguished civil trials by jury which permitted the return of a majority verdict on the basis that the constitutional guarantee only extends to criminal trials.  The offending statutory provision which allowed the return of a majority verdict in a criminal trial was read down by the High Court accordingly.

What the legislature is permitted to do

108.  I believe the same approach applies with equal force in our present case, although as I have emphasised, the contexts are quite different.  In the Hong Kong context, having so identified the central characteristic of the expression “ordinarily resident”, so long as the legislature acts within the outer limit set by this central characteristic, the legislature has a free hand in defining, refining, elaborating and adapting the expression to meet changing political, economic and social needs.  Existing statutory exceptions may be deleted, whereas new exceptions may be added.  I believe this represents the correct interpretation of article 24(2)(4).

109.  Adopting such an interpretation, it is not difficult to understand the various statutory exceptions now found in section 2(4) relating to the different types of people concerned.  Putting aside those exceptions dealing with unlawful stays which are justified separately by the maxim ex turpi causa non oritur actio (an action does not arise from a base cause): Shah, at pp 343H to 344B), one common theme underlying all other statutory exceptions is that regardless of their own subjective purposes for staying here (whether settled or not), the stays of those covered, when viewed objectively from the perspective of society, are all for very specific, limited purposes; and they are far from “ordinary”.

110.  Admittedly, this interpretation would entitle the legislature to legislate against others who are otherwise not caught by the ordinary Shah test, such as a tourist who is visiting Hong Kong for a prolonged period of time.  But that is precisely the point that I am trying to make, that is, when construing the expression “ordinarily resident” in the Basic Law, one does not apply the Shah test in an ordinary way.  It is up to the legislative to decide, in accordance with prevailing political, economic and social conditions, whether to exclude others from the ambit of “ordinarily resident”, so long as the central characteristic of the concept is not infringed. 

111.  In case of dispute, the courts will have the last say on whether the outer limit has been crossed: Singh, at para 253.  They will draw the necessary constitutional line: ibid, at para 269.

112.  Thus analysed, there is in fact no conflict between article 24(2)(4) and article 154(2). Nor does the decision of the Court of Final Appeal in Prem Singh stand in the way of this interpretation.  It should be remembered that in Prem Singh, another issue in contention was whether an additional requirement that at the time of an application for verification of status, the applicant must have been permitted by the Director of Immigration to stay in Hong Kong unconditionally, was constitutional.  The Court of Final Appeal held that the requirement of unconditional stay was an additional requirement alien to the requirements for acquiring permanent resident status laid down in article 24(2)(4).  It could not be justified by article 154(2) as a means of immigration controls.  It was therefore unconstitutional.

113.  However, as analysed above, the present case concerns not the imposition of an additional requirement as a means of immigration controls.  Rather, the expression “ordinarily resident” used by article 24(2)(4) itself invites and permits the legislature to legislate on the matter by way of definition, refinement, elaboration or adaptation in the implementation of the Basic Law, so long as the central characteristic of the term is not encroached upon.

Section 2(4)(a)(vi) is constitutional

114.  Foreign domestic helpers as a class are excluded under section 2(4)(a)(vi).  Ms Li argued that there is no reference to foreign domestic helpers imported under the Government’s Foreign Domestic Helper Scheme detailed in the evidence.  The scheme implements the Government’s policy on foreign domestic helpers, described in detail in paragraphs 36‑41 of the judgment below.  According to the figures provided by the Commissioner, there were only 881 foreign domestic helpers in Hong Kong in 1974.  As mentioned, by 1986 the number increased to 28,951.  By the end of 1990, there were 70,335 foreign domestic helpers.  As at 31 December 2010, there were 285,681 foreign domestic helpers here.  Amongst them, according to the Commissioner, 117,000 are estimated to have been continuously working in Hong Kong for more than 7 years – this estimate is not admitted by the applicant.  All of them have been admitted to Hong Kong under the Foreign Domestic Helper Scheme, which includes the mandatory use of standard‑form employment contracts.

115.  In my view, there is no uncertainty as to the scope of application of section 2(4)(a)(vi).  Given its known background and purpose, the exclusionary provision applies obviously to those who have been admitted to work in Hong Kong under the Government’s Foreign Domestic Helper Scheme (for the time being).  It is true that there have been changes in the details of the Scheme.  However, for our present purposes, there is no suggestion that the answer to the constitutional issue raised turns on any of these minor changes.

116.  In my view, the exclusion of foreign domestic helpers under section 2(4)(a)(vi) does not encroach upon the central characteristic of the term “ordinarily resident”.  It is a category of exclusion not different in kind, but only in degree, from the pre‑existing categories of excluded persons, for instance, Vietnamese refugees and imprisoned or detained persons.  Regardless of her own subjective intention or purposes, a foreign domestic helper’s stay in Hong Kong is for a very special, limited purpose from society’s point of view – to meet society’s acute demand for domestic helpers which cannot be satisfactorily met by the local labour market.  Hence, their stays in Hong Kong are highly regulated so as to ensure that they are here to fulfil the special, limited purpose for which they have been allowed to come here in the first place, and no more. 

117.  This is of course not to say that they enjoy no rights or freedom whilst working here.  But that is not the point.  From society’s perspective, their stays here are all directed toward one objective and purpose – the purpose for which they have been allowed to come to Hong Kong in the first place.  Whether compared with the abode of a local person or with the residence of a foreigner who has been given a work visa to come and take up employment here, a foreign domestic helper’s stay is highly regulated, “out of the ordinary”, exceptional or “far from regular”, particularly from society’s perspective.  The central characteristic of the expression “ordinarily resident” as used in article 24(2)(4) of the Basic Law is therefore not infringed by the exclusion in section 2(4)(a)(vi).

118.  For these reasons, I conclude that section 2(4)(a)(vi) of the Immigration Ordinance does not infringe article 24(2)(4) of the Basic Law.  It is constitutionally valid.

Commissioner’s fallback argument

119.  It is therefore unnecessary to deal with Lord Pannick’s fallback position, that is, even under the Shah test (applied in an ordinary way), as a class, foreign domestic helpers must be regarded as not being ordinarily resident in Hong Kong.  For my part, I do not think one can draw such a sweeping conclusion without first having regard to the facts in individual cases.  In this respect, I would simply indicate my agreement with the judge below on this fallback position.  The judge’s conclusion was essentially that despite the many restrictions on a foreign domestic helper’s employment and activities in Hong Kong whilst staying here, on the ordinary Shah test, she should still be capable of being regarded as ordinarily residing in Hong Kong, depending on the facts.  Therefore, a blanket exclusion of foreign domestic helpers from the expression would be too wide.

120.  However, this does not affect the outcome of the case because I have concluded that the ordinary Shah test is not the test to apply, nor does it precisely represent the central characteristic of the term “ordinarily resident” as used in article 24(2)(4) of the Basic Law.

Extrinsic materials

121.  This also renders academic Lord Pannick’s further argument that in case of ambiguity, one may resort to pre as well as post‑enactment extrinsic materials. 

122.  I have already summarized the applicable principles of interpretation.  It should be remembered that so far as pre‑enactment materials are concerned, regardless of whether there are ambiguities, where relevant, they should be looked at for the purposes of ascertaining the purpose and context of the relevant provisions in the Basic Law under interpretation. However, the proviso is that where the meaning of the text as understood against the purpose and context so ascertained is clear, the extrinsic materials cannot give the text a meaning that it cannot bear.  For post‑enactment materials, their use even for the purposes of ascertaining the purpose and context of the provisions under interpretation is much more limited and the court must approach them with caution.

123.  The relevant extrinsic materials include (chronologically):

(1) the comments of the convenor of the Special Sub‑Group on Basic Rights and Duties of Hong Kong Residents under the Basic Law Drafting Committee in August 1986;

(2) the Secretary for Security’s explanation to Legislative Council on 8 April 1987 on the amendments to the Immigration Ordinance and on further legislative proposals to be introduced before 1 July 1997 so as to comply with section XIV of Annex I to the Joint Declaration;

(3) an information note dated 3 January 1994 (paragraph 8) prepared by the Security Branch for the Legislative Council on the presentation by the British side of the JLG to the Chinese side proposals to set out precise definitions of foreign nationals who might acquire the right of abode in the HKSAR;

(4) the report of the Legal Sub‑group of the Preparatory Committee dated 9 August 1996 which specifically stated that foreign domestic helpers would not be regarded as ordinarily resident in Hong Kong regardless of the length of their stay here;

(5) the Opinion of the Preparatory Committee dated 10 August 1996 (paragraph 2) to the effect that persons permitted to stay in Hong Kong under specific Government policies would not be regarded as ordinarily resident in Hong Kong;

(6) the approval by the National People’s Congress on 14 March 1997 of the Working Report and the Opinions of the Preparatory Committee presented on 10 March 1997;

(7) the Immigration (Amendment) (No 3) Bill passed by the Provisional Legislative Council on 7 June 1997 which added to the Immigration Ordinance an exception relating to, amongst others, imported domestic helpers, from the definition of “ordinarily resident”.  The amendment, according to the Secretary for Justice elect, was to implement the Basic Law by making detailed provisions in the local laws.  The Secretary for Justice elect also referred to the decision of the Preparatory Committee, “the consensus arrived at by the JLG” and “the Right of Abode” booklet issued by the Immigration Department, which again excluded foreign domestic helpers from being regarded as “ordinarily resident” in Hong Kong, in explaining why the Bill was presented to the Provisional Legislative Council;

(8) the approval of the 1996 Opinion of the Preparatory Committee described above by the Standing Committee of the National People’s Congress (“NPCSC”) in paragraph 2 of its Interpretation on articles 22(4) and 24(2)(3) of the Basic Law given on 26 June 1999.

124.  Given my above conclusion, it is not necessary to go into these materials, particularly those post‑enactment materials relied on by Lord Pannick.  Suffice it to say, these materials, when read as a whole, would tend to suggest that foreign domestic helpers were not intended to be given the status of permanent resident in the HKSAR regardless of how long they had been here.  But in the light of my conclusion, it is not necessary to rely on the controversial post‑enactment extrinsic materials, and I do not do so.

The 1999 NPCSC Interpretation

125.  Equally academic is the question of whether the 1999 Interpretation given by the NPCSC, insofar as it refers to, with approval, the 1996 Opinion, which excludes foreign domestic helpers from those who are to be regarded as “ordinarily resident” in Hong Kong irrespective of their length of stay here, amounts to an interpretation of article 24(2)(4) of the Basic Law, binding on the local courts.  On this important question which has significant implications for the proper interpretation of all other categories of people included in article 24(2) of the Basic Law as well, several observations need to be made.

126.  First, the same issue arose but was conceded by the Director of Immigration in Chong Fung Yuen before the Court of Final Appeal.  Having lost the same point twice in the courts below ([2000] 1 HKC 359 and [2000] 3 HKLRD 661), the Director conceded that the 1999 NPCSC Interpretation had only made a binding interpretation on articles 22(4) and 24(2)(3) of the Basic Law, despite its reference (with approval) to the 1996 Opinion.  The Court of Final Appeal accepted the concession and proceeded to deal with the case, which concerned article 24(2)(1), on that footing: p 223C/D‑E.

127.  Secondly, this court has heard no argument on whether as a result, Chong Fung Yuen should be taken as a binding authority on the question of whether the 1999 Interpretation contains a binding interpretation of article 24(2)(4) in terms of the 1996 Opinion, given that the point was actually conceded before the Court of Final Appeal, which simply proceeded on that concession without commenting on whether the concession had been correctly made or whether the courts below had reached the correct conclusion on the point.  (Absent a binding interpretation by the NPCSC, Chong Fung Yuen is of course a binding authority on the proper interpretation of article 24(2)(1).)

128.  Thirdly, the Court of Appeal’s decision on the point in Chong Fung Yuen is binding on this court but only to the extent explained by the Court of Final Appeal in Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117.  The court has likewise heard no argument on whether it should follow or depart from its own previous decision that the 1999 NPCSC Interpretation had only made a binding interpretation on articles 22(4) and 24(2)(3) of the Basic Law, despite its reference (with approval) to the 1996 Opinion .

129.  Fourthly, the lack of argument before this court was due to the fact that the Commissioner, for reasons of his own, did not wish to rely on the 1999 Interpretation insofar as it may have made such a binding interpretation.  The Commissioner was simply content to reserve his position on the issue in case there should be a further appeal to the Court of Final Appeal, and to prosecute the present appeal on the grounds already described.

130.  Fifthly, as the Commissioner is successful on his primary argument in this appeal, this court therefore does not deal with the question of whether it is bound to accept the Commissioner’s position (or concession) – bearing in mind that unlike a private action, this is a public law litigation, the result of which binds not only the instant parties but affects, potentially, many others.

131.  Finally, so far as this court is concerned, all these questions are left open.

Discrimination and article 25 of the Basic Law

132.  As regards the applicant’s argument based on discrimination and article 25 of the Basic Law (equality before the law), I agree with Lam J that this is not a case about discrimination and article 25 is simply not engaged.  As was pointed out below, it must be up to the sovereign authority to decide the extent to which the status of permanent resident should be conceded to foreign nationals.  It is a fundamental principle in international law that a sovereign state has the power to admit, exclude and expel aliens: Januzi v Secretary of State for the Home Department [2006] 2 AC 426, 439G.  As Bokhary PJ said in Fateh Muhammad (at p 285I‑J), different treatment of citizens and non‑citizens in regard to the right of abode is a common if not invariable feature of the laws of countries throughout the world, including those with constitutions which prohibit discrimination.  That difference of treatment flows inevitably from the fact of the political boundaries which are drawn across the globe.  The question of who can and who cannot qualify for permanent resident status is governed by the same principles.  There simply cannot be any complaint that article 24(2)(4) confers the permanent resident status on some people but not others.

Outcome

133.  For these reasons, I would allow the appeal and set aside the order made below and, instead, dismiss the application for judicial review.  On an order nisi basis, I would award the costs of this appeal, as well as the costs of the proceedings below, including all costs previously reserved, to the Commissioner, with a certificate for three counsel.

134.  I would like to thank counsel and their supporting teams for their very helpful submissions.

Hon Tang VP:

135.  I have had the advantage of reading the judgments of the Chief Judge and Stock VP in draft.  I am in respectful and complete agreement with them.  There is nothing which I can usefully add.

Hon Stock VP:

136.  I respectfully agree with the judgment of the Chief Judge.

137.  There is a single premise upon which the validity of the case postulated on behalf of the foreign domestic helpers rests.  If the premise is sound, the case succeeds; if it is flawed, the case fails.

138.  The premise is that the phrase “ordinarily resident” in article 24(2)(4) of the Basic Law is hard-edged in that at the date of its promulgation it allowed for no meaning other than the common law meaning attributed by Lord Scarman in 1982 in Shah[1].  It must follow that for the helpers’ case to succeed, they would have to show that at that point in time, the concept “ordinarily resident” was vested with a fixed legal meaning and, further, that it was intended for that meaning to remain fixed for the life of the constitution, for one can be confident that constitutions are not promulgated with a view to regular amendment whenever societal needs change.

139.  In my opinion, the case falls at the first hurdle.  It cannot seriously be denied that in the world of the common law, there then existed – and still exist – acceptable alternative interpretations of the phrase by distinguished jurists.  Similarly it is not an issue that the concept’s reach has in common law jurisdictions always been amenable to legislative definition and exception.  This was expressly acknowledged by Lord Scarman himself in Shah[2]. Statutory definition or adjustment of the phrase has for long been recognised as a necessary and sensible tool by which to cater for issue-specific exigencies.  And so it has been in this jurisdiction, especially though not exclusively in the sphere of immigration control.

140.  It is said that all that is required is an application of the natural and ordinary meaning of the words.  But that is to presuppose that the ascertainment of the natural and ordinary meaning allows of no reasonable debate; a supposition self-evidently laid to rest by the diverging views at the various curial levels at which the case of Shah itself rested from time to time and by the statement of Ormrod LJ in the Divisional Court that:

“We have experienced considerable difficulty in ascertaining the “natural and ordinary” meaning of the words in question. To determine the “ordinary” meaning of “ordinarily” is something of a linguistic feat in itself. Nor is the word “resident” at all easy. It is not much used in ordinary speech, and then without precision.”[3]

141.  And in Hong Kong, we find the acknowledgment in Fateh Mohammed v Commissioner of Registration and another[4] that:

“No single judicial pronouncement or combination of such pronouncements in regard to the meaning of the expression “ordinarily resident” can be conclusive for the purposes of every context in which the expression appears.”[5]

142.  This illustrates the first difficulty with the applicant’s case; that it presupposes a single and exclusive definition or understanding of a phrase which, by its nature, does not lend itself to precision or to exclusive definition.

143.  The second difficulty is that the argument for the applicant is based on a non-binding, albeit highly persuasive, judgment of another jurisdiction in the context of domestic legislation – not, be it noted, a constitutional instrument – of that jurisdiction, and which argument seeks to fix the definition encapsulated by that judgment as applicable for all time to a constitutional instrument governing this different jurisdiction.  This, with respect, is an unrealistic and non-contextual approach.

144.  Insofar as Fateh Mohammed reminds us of the importance of context, it echoes Lord Scarman’s statement in Shah that his common law definition must necessarily give way to such alternatives and qualifications as are demanded by context.  So it must be in any exercise of statutory and constitutional interpretation: context is all-important.

145.  The context with which we are concerned is, first, a constitution; a law with its own function and character, different from that of ordinary statutes.[6] Essential to that character is its applicability to changing needs over time.  That is not to say that black may be read as white whenever it appears convenient to do so, or that core fundamental freedoms may be undermined; but it is to say that where an interpretation is, in the context of the subject matter, inimical to reasonable responses to changing societal demands, the suggested interpretation is likely to be incorrect.  And that is the problem with the interpretation which is advanced by the applicant: it is stultifying in its effect.

146.  Further, the context is not merely article 24 (2)(4); nor is the context merely article 24.  And the context is not a routine item of local legislation.  Rather, the context is an article of a constitution and when interpreting a constitution, it is to the matrix of the entire constitution and its historical setting to which one looks to ascertain the purpose and then the meaning of a particular provision.

147.  The context of this constitution, the Basic Law, includes its themes.  As the Chief Judge emphasises, a central theme of the Basic Law is continuity: a smooth transition whereby the essence of societal structures and systems are intended to be preserved beyond resumption of the exercise of sovereignty subject only to such changes to the law as are necessarily incidental to that resumption.  The Basic Law is replete with indicia of continuity, for example: the maintenance of the way of life (article 5); preservation of such laws previously in force as are consistent with the Basic Law (articles 8 and 18); maintenance of the judicial and other systems (articles 81; 124; 129; 136; 141; 142; 144; and 145); and the Preamble itself with its reference to the maintenance of the “prosperity and stability of Hong Kong.”

148.  Since it is common ground that an interpretation of a constitution and of its individual provisions must, if it is to be a valid interpretation, be purposive, any suggested interpretation of an article which clearly runs contrary to that central theme of continuity is a suspect interpretation and – unless the language used is unambiguous and allows of no clarification – it is an interpretation which is likely to be incorrect.  In such a situation it is incumbent on the court to see whether there exists a viable alternative interpretation which does not offend the language of the provision, and which is consistent with the provisions and purposes of the constitution as a whole.

149.  The interpretation of article 24(2)(4) of the Basic Law for which the applicant contends is not purposive for, rather than supporting a theme of continuity, it stands starkly against one:

(1) It abjures entirely the previous role of the legislature in adjusting the scope of ordinary residence in the immigration context, and it does so not just for a given point in time, but for all time;

(2) It brushes aside the previous provisions of the law by which certain categories of persons are deemed not to be ordinarily resident in the territory, leaving it open therefore to swathes of persons within those groups to become permanent residents or, at least, to challenge any post-resumption renewal of local legislation which excludes them;

(3) It imposes on the immigration authorities the burden of creating facts on the ground by which those who are allowed into the Region for specific purposes cannot become ordinarily resident within Lord Scarman’s definition; in the case of domestic helpers, by ensuring that no series of contracts ever reaches the seven-year mark, the impact of which on individuals might well be viewed as unjust.  In this regard, the proposed interpretation also assumes that the framers were content to leave to chance, or to the creation of facts on the ground, the question of ordinary residence of members of the Hong Kong Garrison and members of consular posts, an unlikely intention; and

(4) It attributes to the framers of the Constitution a blindness to the history of immigration pressures upon the confined space that is Hong Kong; for in denying the legislature the power to say that refugees, for example, are admitted for a special reason and that such a special reason falls outwith the concept of ordinary residence, it assumes bizarre confidence in a future absence of unusual immigration pressures or in the ability of the authorities to resolve such problems as do arise without the powers which previously they possessed.

150.  These are the consequences which flow from the assertion, if correct, that Lord Scarman’s definition was intended by the framers of the Basic Law as sacrosanct for the purpose of article 24 (2)(4), amenable to no qualification or narrowing.  They are serious consequences and they are, viewed in the round, consequences that sit ill with any concept of continuity or historical reality and with the Constitution’s objective of ensuring stability.  That is not to diminish the valuable contribution to society made by groups permitted to enter the Region for special reasons: it is rather to recognize the ramifications of the wholly inflexible and wide interpretation which is that propounded by the applicant.  In short, that interpretation is contrary to a purposive interpretation and for that reason it is an interpretation which in my opinion is incorrect.

151.  It is not as if there are unacceptable alternative definitions.  The Chief Judge has alluded to a provision of the Citizenship Act, Australia as an example: it excludes from the concept “ordinarily resident” those who reside in a country for a special or temporary purpose.  It may well be – we have not researched it – that other jurisdictions have similar qualifications; but the point is that that narrowing of the scope does not offend the sense of the concept and the present provisions of s 2(4)(a) of the Immigration Ordinance fall within it and accord with the like approach of the Divisional Court and Court of Appeal in Shah.

152.  As against the emphasis on continuity, Ms Li SC points to the fact that article 24(2) itself marks a major change for its intent was to create a new status, namely, that of permanent resident and to redefine the category of persons upon whom would be conferred the right of abode.  That is true as far as broad categorisation goes, for the categories are fixed.  But it does not flow logically from that fact that it was intended to impose a new and inflexible method by which to determine or delineate who was and who was not deemed to be ordinarily resident.

153.  Ms Li further contends that it is misleading to say in opposition to her arguments that the framers of the Basic Law are unlikely to have intended adherence to the definition of a court of another jurisdiction, for that ignores the fact that prior to the promulgation of the Basic Law Shah had been followed in Hong Kong, for which proposition she cites Director of Immigration v Ng Shun-loi[7] which, as the name of the case suggests, was an immigration case.  The gravamen of this argument is or must be that at or by the date of that decision (1987), Lord Scarman’s test was adopted in Hong Kong and the drafters of the Basic Law must be taken to have recognised that fact.

154.  There are several difficulties in the way of this argument.  The first difficulty is that at that time, the phrase “ordinarily resident” was not confined to a common law definition; the Scarman test was subject to legislative refinement so that there is no logic in presuming that if the Basic Law drafters had the Shah definition in mind, they did not equally have in mind the availability of legislative adjustment.

155.  The second difficulty is that this approach ignores the fact that article 24(2)(4) tracks the terms of and was no doubt intended to give effect to the Joint Declaration.[8]  In this very particular, the Basic Law has been said to “[follow] the Joint Declaration faithfully.”[9]  Paragraphs 157 to 159 of the Joint Declaration, signed in December 1984 – before Shah was followed here in Ng Shun-loi – stated that amongst those who would have the right of abode in the Region were all Chinese nationals born or who had ordinarily resided in Hong Kong before or after the establishment of the Region for seven years or more as well as persons of Chinese nationality born outside Hong Kong of such Chinese nationals and:

“ – all other persons who have ordinarily resided in Hong Kong before or after the establishment of the [Region] for a continuous period of seven years or more and to have taken Hong Kong as their place of permanent residence before or after the establishment of the [Region].”

156.  Not only were these provisions agreed before, as far as I am aware, the adoption of Shah by any Hong Kong court, but it is in my opinion singularly unlikely that the Shah definition had embedded itself in the mind of either signatory party and entirely unlikely that either party contemplated that test as the sole future standard to the complete exclusion of legislative adjustment, no matter how sensible, how consonant with previous practice, and how attuned to reasonable appreciation of the phrase, such adjustment might be.

157.  Finally, an analogy has been drawn between the issues this case and that of Chong Fung Yuen[10].  The analogy is not apt.  That was a case in which the courts were asked to say that ‘born in Hong Kong’ carried a qualification which was simply not there.  Nothing in the wording of the provision there at issue or in its context permitted of a different meaning or adjustment.  The analogy is not apt because it does not compare like with like.

158.  Accordingly, I too would allow the appeal and make the orders proposed by the Chief Judge.

Hon Cheung CJHC:

159.  The appeal is therefore allowed and the order made below is set aside.  We further order that the application for judicial review be dismissed.  There will be a costs order nisi in the terms proposed in paragraph 133 above.

Ms Gladys Li SC, Mr P Y Lo and Mr Benson Tsoi, instructed by Barnes & Daly, for the applicant

Lord Pannick QC, Mr Anderson Chow SC and Ms Eva Sit, instructed by the Department of Justice, for the 1^st respondent

Attendance of the 2^nd respondent was excused