Gurung Kesh Bahadur v. Director of Immigration
Read the full judgment text of CACV 216/2000 on BabelCite. This Court of Appeal judgment was delivered on 29 June 2001.
1. This is an appeal from a judgment of Hartmann J given on 30 May 2000. The judgment was in respect of an application by way of judicial review by the applicant, Gurung Kesh Bahadur. The applicant sought an order to quash both a refusal of permission to land and an order for his removal from Hong Kong. The application was dismissed. This appeal is against that dismissal.
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CACV000216/2000 CACV 216/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 216 OF 2000 (ON APPEAL FROM HCAL NO. 11 OF 2000) ____________________
____________________ Coram: Hon Rogers VP, Le Pichon JA and Yuen J in Court Dates of Hearing: 11 and 12 May 2001 Date of Handing Down of Judgment: 29 June 2001 ____________________ J U D G M E N T ____________________ Hon Rogers VP: 1.This is an appeal from a judgment of Hartmann J given on 30 May 2000. The judgment was in respect of an application by way of judicial review by the applicant, Gurung Kesh Bahadur. The applicant sought an order to quash both a refusal of permission to land and an order for his removal from Hong Kong. The application was dismissed. This appeal is against that dismissal. The background 2.The applicant is a citizen of Nepal. He was born and raised there. He joined the British Army as a member of the Gurkha Regiment. He was posted to Hong Kong in about 1981. He served in Hong Kong for some considerable time. At the beginning of 1994, he retired from the army in honourable circumstances. 3.In February 1994 the applicant returned to Hong Kong and was allowed to stay as a visitor until 1 March 1994. He was carrying a Nepalese passport. His name in that passport was Pun Tej Prakash. The date of birth given in the passport was 2 October 1961. He applied for a change of status for investment in Hong Kong on 16 February 1994 but failed to supply the necessary supporting documents. His application was therefore unsuccessful. He left Hong Kong in March 1994. 4.The applicant married Madam Radhika Gurung on 14 October 1994 in Nepal. It was a polygamous marriage. However, there is nothing illegal about that. Madam Radhika Gurung was also Nepalese. It is not disputed that polygamy is a lawful institution in Nepal. 5.The applicant returned to Hong Kong on 18 October 1994. He then had a new Nepalese passport. His name in the new passport was also Pun Tej Prakash. This time the date of birth was given as 26 December 1961. In December 1994, he sought leave to start a business in Hong Kong. In January 1995, his application was refused. 6.On 21 March 1995, the applicant again arrived in Hong Kong with his wife, Madam Radhika Gurung. This time he had another Nepalese passport. His name in this passport was Gurung Kesh Bahadur. The date of birth was simply the year only: 1961. The applicant applied for a change of status. This time he sought permission to remain in Hong Kong as a dependent of his wife, Madam Radhika Gurung. She had been born in Hong Kong and she had the right of residence here. 7.On 8 June 1995 the applicant was granted dependent status. He was permitted by the Director of Immigration to remain in Hong Kong for 12 months. Extensions of this period were later granted. The last extension was given on 2 July 1996 to expire on 9 January 1999. 8.From June 1995 until late October 1997 the applicant was ordinarily resident in Hong Kong. During that time he opened an employment agency and he set up a construction business. Both businesses are still in operation. Indeed, the construction business, in particular, has, as the judge recorded, flourished. 9.On 28 October 1997, the applicant went to Nepal by air. He spent a short time in Nepal and returned to Hong Kong via Bangkok on 4 November 1997. When he returned to Hong Kong, he was in the company of a Nepalese woman named Ms. Ghimire Pabitra. Immigration officials questioned both Ms. Pabitra and the applicant. Both were then refused permission to land. The decision in respect of the applicant was made on 5 November 1997. This was the first decision in respect of which judicial review was sought. 10.The applicant was, nonetheless, not deported. He was kept in Hong Kong so that he could be prosecuted. He was prosecuted for 2 alleged offences contrary to section 42(1)(a) of the Immigration Ordinance ("the Ordinance"). The particulars of the offences related to 2 occasions. The first was in April 1992, when presumably he was still in the army. The second was in February 1994. The particulars of the offences were similar in both charges. It was said that the applicant had made false representations to immigration officers by misrepresenting his date of birth as 2 October 1961. The trial took place in February 1998. The applicant proved to the court's satisfaction that the passports which he had used were in all respects valid. The applicant proved that they contained the wrong date of birth because of a mistake made by the Nepalese authorities. He also proved that he had tried to have the errors corrected but that the authorities had refused to make the necessary corrections on the basis that it was not necessary. In light of these findings, the applicant was found not guilty. 11.On 10 December 1998, the Deputy Director of Immigration made a removal order against the applicant. That was an order made under section 19(1)(b) of the Ordinance. That section empowers the Director of Immigration to order the removal from Hong Kong of a person who might have been removed under section 18(1)(a) following a refusal of permission to land. That power under section 18(1)(a) to order removal of a person denied entry under section 11 is given to an immigration officer or a chief immigration assistant. But it may not be exercised after the expiry of 2 months beginning with the date on which the person concerned had landed. After that time the power must be exercised by the Director. The order was served on 14 December. This was the second decision in respect of which judicial review was sought. 12.In accordance with the requirement in section 19(5) of the Ordinance the Director served a notice dated 27 January 1999. Section 19(5)(a) requires that the notice must inform the person against whom the removal order has been made of the ground on which the order was made. The only ground stated in the notice was "that you have been refused permission to land in Hong Kong under Section 11(1) of the Immigration Ordinance". It might be observed that, despite the fact that the Ordinance requires the notice to be served as soon as practicable, the notice was dated and served some 7 weeks after the removal order had been made. The time scale is perhaps relevant in that, if the person served wishes to appeal, he is required to give written notice of his grounds of appeal and the facts upon which he relies within 24 hours of being served with the notice. 13.The applicant did exercise his right of appeal against the removal order. His notice of appeal reflected the fact that he was somewhat at a loss to know the reason for the removal order. It commenced by referring to his prosecution and subsequent acquittal. It then referred to his career, dealing, amongst other matters, with his time in the army and the period thereafter. The notice concluded with the following paragraph:
14.Paragraph 8(1)(a) of Schedule 3 of the Immigration Regulations stipulates that, after a notice of appeal is given, the Director must prepare a written summary of the facts of the case and the reasons for the removal order. These have to be referred to the Tribunal. The second paragraph of the Summary of and Reasons for Removal, which were provided to the appellant in accordance with paragraph 8(1)(b), read as follows:
15.The Tribunal treated the appeal as having been brought on the grounds that when the removal order was made the applicant had the permission of the Director to remain in Hong Kong. The Tribunal allowed the applicant's appeal on that basis. 16.The Director of Immigration then sought an order to quash that decision by applying for judicial review. The hearing of that application came before Hartmann J in November 1999. In a judgment dated 26 November 1999 (HCAL 83/1999), the judge quashed the decision and issued an order of mandamus obliging the Immigration Tribunal to reconsider its decision in accordance with law. There was then, apparently, a further hearing of the Immigration Tribunal on 11 January 2000 at which the Tribunal dismissed the applicant's appeal. 17.The present proceedings were issued in January 2000. The application was for orders of certiorari to quash both the refusal of permission to land and the later order for removal. 18.2 affidavits were filed on behalf of the Director in March 2000. One was filed in respect of the refusal of permission to land. That was sworn by Tam Hong Chung, a Senior Immigration Officer. He said that he was the officer who made the decision that the applicant should be refused permission to land. He gave 3 reasons for his decision:
The only affidavit in relation to the removal order was made by Mr Chun Yiu, an Assistant Principal Immigration Officer. His evidence was that in December 1998 he had reviewed the applicant's case. He listed 3 things which he said that he had considered. The first was the allegation that the applicant was a dubious immigration consultant, the second was the applicant's acquittal in the magistrates' court, where the burden of proof on the prosecution was high, and the last was his non-disclosure of his first wife when he applied to join his second wife in Hong Kong. He then went on to say that he had recommended that a removal order should be issued against the applicant because:
19.In the affidavit Mr Chun had recited the facts relating to the applicant's different passports which I have set out above. Whilst acknowledging the acquittal, the Assistant Principal Immigration Officer's reference to the high burden of proof seems to have overlooked the fact that the acquittal was not on the basis that the prosecution had failed to prove their case. The applicant had been acquitted because he had proved that the Nepalese authorities had given him his passports and that his efforts to have them changed were refused as being unnecessary. The circumstances of his acquittal were therefore, if anything, something in his favour. 20.The affidavit also said that enquiries had been conducted regarding the authenticity of the documents showing different dates of birth. The impression given was that this was done after his acquittal. Again, this was something about which the magistrate had already expressed himself to be satisfied. There was also reference to enquiries about a bigamous marriage; it is now accepted that the second marriage was not bigamous. 21.Most significantly as regards the further progress of the case, was the reference in the affidavit to caution statements and interviews with 4 other Nepalese. The record of interview with Ms Pabitra, the lady with whom the applicant had travelled in November 1997, was one of these documents. There were 3 caution statements made by 3 other Nepalese persons the purport of which was that the applicant had assisted in their attempts to obtain permission to remain in Hong Kong by deceiving the immigration authorities, primarily by means of forged documents. 22.The judge refused the application for judicial review. In brief his reasons were as follows. In respect of the refusal of permission to land in November 1997 the judge held that the previous permission to remain in Hong Kong had expired, under section 11(10) of the Ordinance, when the applicant left in Hong Kong on 28 October. Section 11(10) of the Ordinance provides that:
23.The judge dismissed the challenge to the validity of that section. 24.In the light of that holding, the judge then went on to hold that there was no ground to challenge the decision to impose a removal order. The judge appeared to accept the argument that the immigration authorities had been labouring under a mistake of fact in suspecting the applicant of having contracted a bigamous union with his second wife in order to acquire dependent status in Hong Kong. He also appears to have accepted that, without further clarification, the reason expressed to be a doubt as to the applicant's true intent and purpose for staying in Hong Kong was too vague. But he said that from the outset the immigration authorities were in possession of detailed evidence suggesting that the applicant had conspired with others to undermine Hong Kong's immigration laws and that it defied logic to suggest that "this detailed evidence was not at all material times a major reason for seeking the applicant's physical removal from Hong Kong". The position of the applicant immediately prior to 28 October 1997 25.It seems to me that the starting point in the consideration of this case must be the applicant's position immediately prior to his departure from Hong Kong on 28 October 1997. At that stage he was an alien. However, on any footing he had rights. He had been granted permission to remain in Hong Kong until 9 January 1999. That permission had been granted pursuant to section 11(1A) of the Ordinance. It is to be noted that an immigration assistant may give a person permission to remain in Hong Kong but only an immigration officer may refuse him such permission. It is also interesting to note that once a limit of stay has been imposed, an immigration officer or a chief immigration assistant may enlarge the period during which the relevant person may remain in Hong Kong. [see section 11(5A)(c)]. The power to vary any limit of stay in force in respect of any person by curtailing the period during which such person may remain in Hong Kong is reserved to the Chief Executive. [see section 11(6)]. On the face of it, this would confirm the natural assumption that the power to curtail a right to remain that had already been given was a serious matter and only to be exercised after full consideration. 26.Since the applicant had been in Hong Kong for more than 180 days he was not merely qualified to obtain a Hong Kong identity card but was required, under section 3 of the Registration of Persons Ordinance Cap. 177 and the Regulations made thereunder, to have a Hong Kong identity card. Chapter III of the Basic Law 27.Because the applicant was not merely entitled to, but was required to have an identity card he was a non-permanent resident of the Hong Kong Special Administrative Region. Article 24 of the Basic Law stipulates that:
28.Prior to the promulgation of the Basic Law there had been no reference in Hong Kong Laws to the term non-permanent resident. Fundamental Rights and Duties stipulated in Chapter III 29.Chapter III of the Basic Law is entitled Fundamental Rights and Duties of the Residents. As was said by Li CJ in Ng Ka-ling and others v Director of Immigration [1999] 2 HKCFAR 4 at page 29, Chapter III contains constitutional guarantees for freedoms in relation to Hong Kong's separate system. The basic policies of the People's Republic of China were stipulated in the Basic Law (see paragraph 3(12) of the Joint Declaration). As the preamble of the Joint Declaration makes clear, those policies were directed to the maintenance of the prosperity and stability of Hong Kong. Article 31 the freedom to travel 30.Chapter III sets out a number of rights. Amongst those are the rights and freedoms in article 31. 31.Article 31 of the Basic Law reads:
32.The second sentence of article 31 relates to three freedoms, the freedom to travel, the freedom to enter and the freedom to leave the HKSAR. Each one of those freedoms was considered important at the time of the drafting of the Basic Law to ensure the confidence of Hong Kong residents. The freedom of travel was stipulated in both article 3(5) and Chapter XIII of annex 1 of the Joint Declaration. 33.Whilst an overly analytical interpretation of statutory wording can be misleading, it is clear that three different aspects are being dealt with in this sentence in article 31. First is the freedom to enter the region, then there is the freedom to leave the region. The word "travel" when used in the context of article 31 clearly does not relate to moving around within the HKSAR. It must relate to making journeys from and returning to Hong Kong. The freedom to travel as far as concerns Hong Kong residents, must include the freedom to enter and leave the Region. 34.I see no grounds for giving a restricted meaning to the word "travel". It is not merely that a generous or liberal interpretation should be given to the rights and freedoms specified in Chapter III of the Basic Law. As has already been mentioned, the Joint Declaration identifies the freedom to travel both in the body and in annex 1. It was a basic policy of the People's Republic of China. There can be no doubt about its meaning in that context. It meant that residents of Hong Kong should be able to travel and still remain residents. That must mean that they should be able to leave and complete their travels by returning. Otherwise they would not remain residents and they would not have that freedom to travel. 35.When the Basic Law was promulgated by the National People's Congress its purpose was to stipulate the basic policies which had been laid down. This freedom to travel is an important aspect of Hong Kong life. International business and commerce has always played a crucial role in Hong Kong life. Hong Kong's prosperity is a consequence of its international commerce and business. Without the ability to travel Hong Kong businessmen would be severely hampered. 36.The stability of Hong Kong was also intertwined with the continued confidence of the population to remain in Hong Kong, particularly of those who had the ability to move outside. The reassurance that the residents of Hong Kong would be able to travel freely by being able to leave Hong Kong and to return was, and is, highly important. Article 31 relates both to permanent residents and to non-permanent residents. If residents of Hong Kong are not permitted to return to Hong Kong when they leave, for however short a period, they do not have a freedom to travel. 37.It was appreciated at the time of the drafting of the Basis Law that the provisions regarding the freedom to travel and to enter or leave the region were probably wider than those contained in any other constitutional document. For example, the constitution of the United States and the 1977 Constitution of the Soviet Union did not contain provisions relating to the freedom to travel. This freedom contained in article 31 was clearly broad and, in particular, broader than what is contained in the constitution of the People's Republic of China. 38.I have also had the advantage of reading the judgment in draft of Le Pichon JA and agree with it. Section 11(10) 39.In short, it was the submission on behalf of the respondent that any non-permanent resident who left Hong Kong, even for a period of a few hours, would automatically suffer the expiry of his permission to remain in Hong Kong. The argument proceeded that once the person had lost his permission to remain he ceased to be a non-permanent resident. He thus would become an alien with no rights. This would be so whether the person went to Shenzhen for the afternoon to shop or to play golf or whether he went away on business. 40.Mr Marshall SC, who appeared on behalf of the respondent, acknowledged that the construction of section 11(10) for which he contended would affect all non-permanent residents. In the course of argument, Mr Dykes SC, who appeared on behalf of the applicant, referred to the fact that the unofficial estimate of non-permanent residents of Hong Kong, given by the Immigration Department was approximately a million. Almost by definition, all non-permanent residents of Hong Kong would be subject to limitations in the length of time for which they were permitted to remain in Hong Kong. 41.Mr Marshall was at pains to point out, as one of the major planks of the respondent's argument, that there is a prerogative right to refuse entry to aliens who do not have the right to land or the right to remain in Hong Kong. It was stressed that the courts will not interfere with the exercise of a discretion in respect of an alien who has no right of entry or right to remain. Some of the cases had extreme statements to the effect that the rules of natural justice did not apply to aliens. It is unnecessary to consider whether that is still good law to-day, but I have to say that I find the notion that it is the law that anybody may be treated unfairly, disquieting, to say the least. 42.The judge rejected the argument, on behalf of the applicant, that the application of the provisions of section 11 of the Ordinance, and in particular section 11(10), in respect of the applicant was contrary to article 31. He did so on the basis of what was considered to be the overriding provision of article 39. Article 39 reads as follows:
43.The judge below held, in effect, that the freedoms contained in articles 24 to 38 of the Basic Law were only protected if they were contained in the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the international labour conventions as they had been applied to Hong Kong. There was no dispute that the freedom to travel was not a right or freedom that was referred in the international covenants and instruments. The judge, therefore, considered that article 39 empowered the making of any domestic law which would affect the freedom to travel and the freedom to enter Hong Kong as provided for in article 31. In doing so he relied upon one paragraph in the judgment of the Court of Appeal in Secretary for Justice v The Oriental Press Group Ltd & Others [1998] 2 HKLRD 123. The judge then went on to hold that the December 1998 removal order was properly made. In part, the reasoning was on the basis that the applicant had no right to return to Hong Kong because of the expiry of his right to remain. The judge, however, also went on to say that what had operated on the minds of the immigration authorities and officials, both in 1997 and in 1998, was the view that had been formed in relation to the applicant's immigration business. 44.In my view,
Can the laws of the HKSAR deny residents the right to travel? 45.This question is approached on the basis that the first sentence of the second paragraph of article 39 empowers the making of restrictions, by law, on the right to travel which is enacted under article 31. The important distinction is between a restriction on a right and the denial or abrogation of the right altogether whether to all residents, a class of residents or some residents. 46.The enactment and interpretation of laws is a practical matter. There are theories as to the types or concepts of human rights. Whether the rights are considered to be inherent human rights or natural rights on the one hand or rights derived from the fact that people are living in communities on the other hand, is sometimes significant in considering whether a right or freedom can be subject to restrictions. 47.Some rights and freedoms are regarded as absolute, in the sense that they can never be restricted. The freedom from torture and arbitrary arrest would be instances of such rights. 48.In respect of other rights, what is important is the possibility that in the course of exercising his or her rights or freedoms, an individual may come into conflict with the rights and freedoms of another individual or the community as a whole. It is therefore necessary to be able to resolve any conflict between rights of individuals and any incompatibility between the rights of individuals and those of the community. This can be done either by an interpretation of the respective rights which reduces the risk of conflict or by restrictions. 49.An analysis of a large number of rights, could lead to the conclusion that either the right has to be interpreted in a way that there is no conflict with other rights and obligations or there has to be some restriction. 50.An example of this is the freedom of speech. The freedom of speech is one of the freedoms specifically provided for in article 27 of the Basic Law and in article 16 of the Bill of Rights. On one analysis, the freedoms of speech, of the press and of publication are not, and have never been, regarded as absolute in the sense that any person can say, write or publish without any restraint. The laws of defamation and official secrecy, of contempt and confidential information, to name but a few at random, have long since been in existence. The expression freedom of speech does not encompass the right by word of mouth or pen to contravene the law in these respects. Indeed, this was the conclusion to which Chan CJHC and Keith J (as they then were) were disposed to come in the Oriental Press Group case, see page 160. 51.But the argument in that case was not put on that basis. Hence, the court went on to consider whether article 16 of the Bill of Rights, given its relation to the International Covenant on Civil and Political Rights, was sufficient to permit the persons concerned to commit what would otherwise be a contempt of court in the supposed exercise of the right of free speech. They came to the conclusion that the Bill of Rights did not assist those who would otherwise have committed contempt. 52.Hence whilst the court would have been prepared to decide the case on the meaning of the term freedom of speech it actually decided it by arriving at the same conclusion on the basis of a restriction of the right. 53.It was only after coming to that conclusion that brief reference was made to the Basic Law. At page 164J the court said:
54.This short paragraph came at the end of a particularly long passage dealing with the matters to which I have just referred. It is important to note that when the court referred to restrictions, it was in the context of resolving the conflict between the right of freedom of speech and the law of contempt of court. The passage from the Oriental Press Group case was concerned with the argument that the freedom of speech entailed the right to override the proper administration of the law. The right of the community to have the law duly administered is the ultimate object of the rights in article 35. 55.But it is important to note that the reference to article 39 in the Oriental Press Group case was to restrictions and not to abrogation or denial of the right of freedom of speech. 56.The first sentence of the second paragraph of article 39 does not confer a power to abrogate or deny the rights and freedoms provided in articles 24 to 38 either generally or to a class of persons. The provisions of the second paragraph do not permit, in my view, the enactment of laws which would deny to residents one of the freedoms which was enacted by the Basic Law itself. This is particularly so in the context of article 31 since prior to the coming into force of the Basic Law there was no enactment which specified a freedom to travel as such, neither was there a class of persons constituted by non-permanent residents. These are all concepts that became part of the law upon the coming into force of the Basic Law. Section 2(5) of the Bill of Rights 57.Mr Dykes also drew attention to section 2(5) of the Hong Kong Bill of Rights Ordinance which replicates article 5(2) of the International Covenant on Civil and Political Rights. That provides that:
58.Whereas I would agree that the fact that the international covenant does not refer to the freedom of travel cannot lead to the conclusion that article 39 permits a restriction of that freedom, it would appear that the provision of the Bill of Rights and the international covenant would strengthen the view that domestic legislation should not be used to take away a freedom specifically provided to a class of persons by the Basic Law. 59.Turning to the freedom of travel, that in itself cannot be said to be an absolute and unqualified right. As an example, those serving a term of imprisonment or on bail are clearly not free to travel and it could not be suggested that they should be. There are no doubt other circumstances in respect of which it could be said that either the right did not extend or that there was a restriction. (It might be noted that whatever restrictions there were in this regard would not extend to the person concerned returning to Hong Kong). 60.But those circumstances are very different from those in which it is said that a class of persons, such as non-permanent residents, have been denied the right to travel freely. 61.Therefore, if it is said that the effect of domestic legislation has been to take away from, or to deny to, a class of persons such as non-permanent residents the freedom to travel, that, in my view, would go well beyond a restriction within the meaning of the first sentence of the second paragraph of article 39. Has there been a "restriction" of the right of the freedom to travel contained in article 31 of the Basic Law? 62.The answer to the question posed is, to my mind, clear, whatever meaning is given to the word "restriction". On the footing that the freedom to travel contained in article 31 can be restricted by law, it is necessary to look to see whether there is a law which so restricts the right. The only law put forward has been section 11(10) of Ordinance. That, however, does not mention the freedom to travel. Still less does it say that there is to be a restriction on the right to travel. Nor does any other sub-section of section 11 mention the freedom to travel. The denial of the freedom to travel occurs when an executive decision is taken not to permit the return to Hong Kong of someone who had been given a right to remain in Hong Kong and who had thus become a non-permanent resident and who has done nothing more than leave Hong Kong as part of the exercise of his right to travel. When such a person is denied re-entry into Hong Kong, he cannot complete his travel. At that point his freedom or right in this respect is denied to him. 63.In approaching this aspect of the case, it is necessary to bear in mind that the freedom to travel is one of the fundamental rights provided in Hong Kong's constitutional document. As already explained, it is an important right. It is here that sight must not be lost of the principle of legality. The principle of legality 64.The principle of legality has been referred to in a number of recent cases, particularly in the House of Lords. It is a principle of statutory construction referred to by that name in Halsbury's Laws of England, 4th ed. reissue, vol. 8(2) (1996), p. 13, para. 6. Cross, Statutory Interpretation, 3rd ed., pp. 165-166, explains that statutes are drafted with certain fundamental matters in mind. For example, the question of mens rea may not be mentioned in a statute but a statute will be readily interpreted as requiring it. The presumption of the requirement for mens rea is only one of the presumptions which are of general application in the interpretation of statutes. The passage goes on:
65.In the recent case of R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 at 131E, Lord Hoffmann took the application of the principle to mean:
66.In my view, the same principle applies in the present case in relation to whether section 11 of the Ordinance has restricted the right of the freedom to travel. Even discounting the fact that section 11 had been enacted in 1984, I can see no justification for saying that the intention of the section should be taken as being that the freedom of travel enacted in the Basic Law was restricted as suggested in argument. What is contended is that there has been what is, in effect, an abrogation or denial of the freedom to travel to non-permanent residents. The argument on behalf of the Director is that non-permanent residents have no right of return to Hong Kong once they have left Hong Kong for whatever reason and for however short a period. On that construction of the non-permanent residents' rights there would be no freedom to travel. That would not constitute a restriction it would constitute a denial of a right to a class of persons who under the Basic Law were supposed to have that right. It is a fundamental right which could only be restricted, if at all, by clear wording. It is a right which cannot simply cease to exist. As a matter of construction Section 11 can be operated perfectly well, even though the right of the freedom of travel is given its full effect. This would entail, however, the Director, and others applying the Ordinance, recognising the rights of non-permanent residents. The foreseeability requirement 67.The matter may be considered on the principle of legality as just discussed or on the basis of what has been termed the foreseeability requirement. The result is the same. If the immigration officers have a discretion to deny the freedom to travel by denying re-entry to someone, who but for his departure would have been a non-permanent resident, the scope and manner of exercise of that discretion have not been incorporated either into the law or anywhere else, and certainly not with reasonable certainty. The interference with the freedom to travel is thus arbitrary and not in accordance with law: see for example Malone v The Government of the United Kingdom, European Court of Human Rights Judgment 2 August 1984 A.82 (1984), paras. 66-68 and the discussion in Theory and Practice of the European Convention on Human Rights by Van Dijk and Van Hoof 581-3. 68.In the Malone case it was said, following earlier authority, that if there was to be a valid restriction by law on a right by the exercise of a discretion, "the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference." 69.In my judgment, therefore, as a pure matter of construction this case should be approached on the basis that there has been no restriction on the fundamental right contained in the Basic Law in its application to non-permanent residents. Is it permissible to restrict the freedom of travel by means of executive decisions? 70.The ultimate question on this aspect of the case arises because, in my view, the denial of the freedom of travel in the present case came about because of the executive decision not to permit the applicant to return to Hong Kong in November 1997. It was a combination of the application of section 11(10) and the exercise of the power to refuse permission to land under section 11(1) and the subsequent exercise of the power to order removal under section 19 of the Ordinance that denied the applicant the freedom to travel. He had been allowed to leave Hong Kong. But he had not been allowed to return. On the basis that the applicant had been refused entry under section 11, it was supposed that the powers under sections 18 and 19 became exercisable. It was the exercise of the executive power to permit the applicant to depart but refuse permission to land which has resulted in what became the denial of the freedom to travel. It was thus not, in any event, a restriction imposed by law. It was a restriction imposed by an administrative act. 71.This exercise of the power was, in my view, in breach of the right of the freedom to travel. As I have already explained, that right, enshrined in the Basic Law, still remained intact. 72.It suffices to cite 2 passages from the speech of Lord Browne-Wilkinson in R v Secretary of State for the Home Department, ex parte Pierson [1998] AC 539. 73.At page 574B:
I see no reason why the same principle does not apply in relation to fundamental rights contained in a constitutional document. 74.Indeed, a little later on, at page 575D, Lord Browne-Wilkinson said:
75.The application of the principle to this case is clear. The fundamental right of the freedom to travel, enacted in the Basic Law still remains in existence. An executive decision must not be taken which denies that right. In the present case the central event which denied the applicant his right of the freedom to travel was the denial of the permission to land and to remain in Hong Kong. That was a denial of part of the applicant's right of freedom to travel under article 31. In summary, if the provisions of section 11 of the Ordinance are to survive the coming into force of the Basic Law then their implementation must be in accordance therewith and not in derogation therefrom. The removal order 76.The removal order was clearly made on the footing of the view adopted by the Director that the applicant, having been refused permission to land in Hong Kong in November 1997, had no right to remain in Hong Kong. Clearly, if the applicant had no legal claim on the HKSAR, the Director would have been well within his powers to make a removal order. That this was the basis on which the Director operated can be seen both from the ground contained in the notice under section 19(5) and from the Summary of Reasons for Removal, the material part of which has already been quoted. 77.If the applicant's right to travel, which would entail him returning to Hong Kong, no longer existed, there could be no possible objection to an immigration officer refusing entry to a person who was suspected of being an immigration consultant of dubious methods. 78.That however was not the case. The applicant's right to return to Hong Kong remained intact since he was exercising his right of freedom to travel. No executive decision should have been taken the effect of which was to deny that right. 79.In relation to the removal order which was made in December 1998, the Notice and the Summary of Reasons for Removal clearly contained the reasons for the making of the order. Those reasons have also been set out above. It is clear that they are predicated upon the fact that the applicant's permission to stay had expired. On the basis that it had expired, he had been refused permission to land. No other reason was put forward. It was not until more than two years later that the Assistant Principal Immigration Officer set out other reasons as to why he made his recommendation that there should be a removal order. Since no other documentation or evidence is available, it is only to be presumed that it is upon the officer's recommendation and reasons that the order was made. In that respect, he refers to the fact that on a review of the applicant's case he considered the allegation that the applicant was a dubious immigration consultant. Nevertheless, his reasons for making the recommendation were on the basis that the applicant had no legal claim to remain in Hong Kong. 80.The judge discounted two of the reasons given by Mr Tam, namely that the applicant was suspected of having contracted a bogus marriage in order to obtain the dependence status and the applicant's purpose of staying in Hong Kong was in doubt. In respect of the first, the judge approached the matter on the basis that the factual basis was wrong and in respect of the second he considered the matter too nebulous. 81.The judge said that he considered that the allegations which had been made against the applicant in respect of his immigration consultancy were sufficient in themselves and did, in fact, operate on the officer in making the decision. In my view there are two difficulties in that. In the first place, the reasons put forward for the decision came two years after the Director was obliged by statutory instrument to state his reasons. The Director should, in my view, be bound by his reasons which he gave at the time, albeit after he had had seven weeks to think about it. If the reason given was clearly erroneous, that, in my view, should be an end of the matter. 82.In the second place, because the allegations relating to the applicant's immigration consultancy were not put forward as a reason for the decision at the time the applicant never had a proper opportunity of dealing with them. 83.But even if the reasons put forward more than two years later are to be those which the court regards as being the effective reasons the decision, in my view, is still erroneous. It is predicated upon the basis that the applicant had no legal claim to remain in Hong Kong. If that is so, the other matters would fall into place. It is not for the court to rewrite the reasons which have been put forward for the decision. 84.In my view, if the Director wished that a removal order be made on the basis that the applicant had connived to secure the entry into Hong Kong of those who were not otherwise entitled, by the use of fake documents, that is what should have been done. Had the Director considered that there were good grounds for denying the applicant's ability to remain in Hong Kong because he was operating an immigration agency that used illegal methods and forged documents, the period of stay could have been curtailed by the Chief Executive under section 11(6) of the Ordinance. There are also extensive powers to make a removal order under section 19 of the Ordinance. This may be done either by the Chief Executive where the person is considered an undesirable immigrant or by the Director under subsection(1)(b)(ii) and (iia) which would, seemingly, be applicable in such circumstances. But the procedure of a removal order against a person who had the right to remain had not been invoked. Nor had the Chief Executive made an order either under section 11(6) or section 20(1)(b). 85.The appropriate order to be made on such a basis was never made. In so saying, I make no comment on the credibility of the contents of the caution statements and interviews. As already mentioned, the applicant did not have a chance to test the truth either of the contents or of his identification as the party responsible. 86.I would therefore allow this appeal, set aside the judgment below and grant the orders sought in the application. Hon Le Pichon JA: 87.I have had the advantage of reading in draft the judgments of Rogers VP and Yuen J. I agree that the appeal should be allowed for the reasons stated by the Vice-President. I would only add a few observations of my own on the meaning of article 31 of the Basic Law. 88.It is relevant to bear in mind that the provisions of the Basic Law were intended to give substance to the basic policies of the People's Republic of China regarding Hong Kong as set out in Clause 3 of the Joint Declaration which came into force on 27 May 1985. One of the basic policies was to ensure that the social and economic systems in Hong Kong at the time of the Joint Declaration would remain unchanged and so would the life style. The rights and freedoms so ensured included that 'of travel'. See clause 3(5) of the Joint Declaration. 89.Part XIII of Annex 1 to the Joint Declaration referred to maintaining "the rights and freedoms as provided for by the laws previously in force in Hong Kong, including freedom ... of travel ...". There were no laws previously in force that related to the freedom of travel as such although immigration controls were in place. Certainly, Hong Kong permanent residents enjoyed the right of abode in Hong Kong and could come and go as they wished. They were no constraints. But what article 31 did was to confer the freedom of travel on a 'new' composite class of persons ("Hong Kong residents") comprising not only permanent residents but also non-permanent residents. The freedoms or rights thus conferred on Hong Kong residents by article 31 could, in this sense, be said to be new. So, in construing article 31, it would not be correct to approach the question on the basis that all it did was to replicate the laws previously in force. 90.Article 31 reads:
The first sentence of article 31 deals with two matters, namely, the freedom of Hong Kong residents to move within the Region itself and their freedom to emigrate to other countries. The second sentence has two limbs: the first confers the freedom to travel and the second the freedom to enter or leave Hong Kong. Then the third sentence makes it clear that no special authorisation is required before a Hong Kong resident can leave the Region and he may do so unless restrained by law. 91.The freedom to travel conferred by article 31 is not a freedom that is to be enjoyed in the abstract. As I see it, part and parcel of this freedom is, first, the ability to leave the Region; and second, the ability to return. For otherwise, the freedom of travel is but an illusory right. This accords with common sense since travel involves journeying from and returning to the place of residence. In this regard, the second limb appears both to complement and reinforce the freedom to travel. 92.The second limb of the second sentence of article 31 deals specifically with the freedom "to enter or leave" the Region. The meaning and ambit of this freedom merit closer consideration. 93.The freedom to leave the Region is an easily understandable concept. But what does the freedom 'to enter' mean? Is it synonymous with the word 'land' as used in the Immigration Ordinance ("the Ordinance") or does it mean something different? 94.In order to determine what is meant by the freedom to enter the Region, a useful starting point is the meaning of the right to land under the Ordinance. The right 'to land' is a concept that pervades the Ordinance. The word 'land' is defined in section 2(1) and the right to land is an important component of the right of abode enjoyed by Hong Kong permanent residents. See section 2A(1)(a) of the Ordinance. Former permanent residents also enjoy a right to land. Whilst they do not have the right of abode, such former permanent residents not only enjoy the right to land in Hong Kong but also have the right not to have conditions of stay imposed or removal orders made against them. See section 2AAA(1). By way of contrast, the right to enter is not a notion or concept to be found in the Ordinance and, not surprisingly, the word 'enter' is not defined in section 2. 95.From the perspective of immigration control, a person who is not within the excepted categories in section 7(1) of the Ordinance may not land in Hong Kong without the permission of an immigration officer or immigration assistant. Further, under section 7(2), if a person does not enjoy the right of abode in Hong Kong and is not a former permanent resident within section 2AAA, he may not remain in Hong Kong without permission. Seemingly, two different permissions are required: permission to land and permission to remain. However, on closer analysis, that is not the case. 96.It is necessary first of all to consider section 4 which deals with examinations of persons. Under section 4(1)(a), immigration officers may examine any person on his arrival or landing in Hong Kong or prior to his departure from Hong Kong, or if the immigration officer has reasonable cause for believing that such person landed in Hong Kong unlawfully, at any time. Section 4(1)(b) examinations take place if the officer has reasonable cause for believing that a person is contravening or has contravened a condition of stay or remains in Hong Kong without permission in contravention of section 7(2). 97.Section 11 bears the heading "Permission to land and conditions of stay". Sub-section (1) deals with the discretion to give or refuse a person permission to land in Hong Kong on an examination under section 4(1)(a). Sub-section (1A) deals with the discretion to give or refuse permission to such a person to remain in Hong Kong on an examination under section 4(1)(b). Sub-section (2) authorises the imposition of a limit of stay and other conditions of stay "where permission is given to a person to land or remain in Hong Kong". 98.Thus, when a person lands in Hong Kong, he is examined on his arrival under section 4(1)(a). If that person is given permission to land pursuant to section 11(1), a limit of stay would be imposed pursuant to section 11(2) as part of the permission to land unless he is a person who has a right to land such as a Hong Kong permanent resident or a former permanent resident within section 2AAA. That has to be the case given that "limit of stay" is defined to mean "a condition of stay limiting the period during which a person may remain in Hong Kong". It would follow that if no limit of stay were imposed, the person who is given permission to land could remain indefinitely. Implicit in the limit of stay is permission to remain until its expiration. Section 11(1A) would not come into play since the relevant examination at that point would be under section 4(1)(a) rather than section 4(1)(b) and there is no question of any section 11(1A) discretion being engaged or having to be exercised. Indeed, it is only upon the expiration of any limit of stay granted that the person would need to apply for an extension of stay. That analysis is borne out by the two different categories of examinations under section 4. Section 4(1)(b) examinations may not take place unless the immigration officer has reasonable cause for believing that that person is contravening or has contravened conditions of stay, or remains in Hong Kong without permission in contravention of section 7(2). Those requirements are predicated on the person concerned having already been in Hong Kong for a period of time as distinct from someone who has just landed in Hong Kong. 99.Plainly, sub-sections (1) and (1A) of section 11, reflecting the two categories of examinations under section 4, are directed at two different stages or time-frames and do not overlap: one relates to landing in Hong Kong and the necessary permission to land and the other only arises subsequently, when any condition of stay (whether imposed as part of the permission to land or as a result of some subsequent extension of that permission) has been contravened. 100.Is the right to enter conferred on Hong Kong residents by article 31 synonymous with a right to land under the Ordinance? As noted above, a right to enter is not an expression that appears to have been used in the Ordinance. In my judgment, there is nothing in the Ordinance that warrants the conclusion that the expressions 'to land' and 'to enter' are synonymous. It would have been simple enough for article 31 to have used the term 'to land' had the drafters of the Basic Law meant nothing more than the right to land. By using a different term, the drafters clearly meant to refer to something different from the right to land. Whilst a right to enter must necessarily encompass within it a right to land, in my view, it is a broader right. The right to enter or leave connotes the ability to come or go at pleasure though, in the case of a non-permanent resident, only so long as the limit of stay (including any extensions thereto) has not expired through effluxion of time. 101.The rights or freedoms contained in the second sentence of article 31 are conferred on Hong Kong residents, comprising both permanent and non-permanent residents. So far as non-permanent residents are concerned, at the time they seek to exercise those freedoms, they would be persons who were already subject to conditions of stay including a limit of stay. When such a person returns to Hong Kong from a trip abroad, he would be exercising his undoubted right to enter under article 31. I am unable to agree with the suggestion that when a Hong Kong resident who is a non-permanent resident and whose limit of stay has not expired by effluxion of time exercises his right to enter, he may 'land' but must, nevertheless, seek permission (which may be refused) to remain under section 11(1A). First, it is not a question of seeking permission to remain. Unless the person concerned can be subjected to a section 4(1)(b) examination, the section 11(1A) discretion is not engaged. Second, section 11(1A) is not triggered since the person returning would be 'landing' and the only type of examination that could be conducted would be under section 4(1)(a). But as such a person has the right to enter which must, at a minimum, include the right to land, there is no question of any permission to land being required. In these circumstances, it would follow that no question of fresh conditions being imposed would arise. Third, a right to enter without the ability to remain is an empty right, at least so long as a previously granted limit of stay has not expired through effluxion of time. It is therefore not a construction that I would be disposed to adopt unless constrained to do so. I can identify no such compelling circumstance. 102.It is suggested that a right to enter means a right to land and that it is an important right. The advantages identified are that the person cannot be removed under section 18 but only under section 19 under which he has certain safeguards. But the supposed advantages are those that a non-permanent resident already possesses on my reading of article 31. As the Vice-President has explained at some length, the Government has a full array of powers that could be invoked (viz. sections 11(6), 19(1)(b)(ii) and (iia) and 20(1)(b)) against the applicant if good reasons exist that he should not be allowed to remain in Hong Kong. These powers can be exercised at any time yet they have not been invoked. So viewed from the other end, the Government is in no wise worse off if the right to enter has the meaning attributed to it in [100] above, namely that it is a right to return and remain in Hong Kong until the permission to stay (already in place before the exercise of the freedoms under article 31) were to expire through effluxion of time. Hon Yuen J: 103.I respectfully agree that the appeal should be allowed. My reasons, which are different in respect of the aspect of freedom to travel, appear as follows. 104.As I see it, the issues are:-
a) Rights and freedoms under Article 31 105.The relevant part of Article 31 refers to three freedoms enjoyed by Hong Kong residents:- (i) the freedom to travel; (ii) the freedom to enter Hong Kong and (iii) the freedom to leave Hong Kong. These are freedoms enjoyed by both permanent residents (i.e. those with right of abode) and non-permanent residents. 106.Freedom to travel means freedom to go to places outside Hong Kong, without being subjected to constraints. Thus, a Hong Kong resident is free to visit, say Taiwan or Tibet, without first having to ask the permission of the authorities in Hong Kong, and without fear of punishment or retribution upon his return. This is an important and valuable freedom. However there is no ground for extending the meaning of the freedom to "travel" to anything more. It does not imply freedom to leave Hong Kong or the freedom to enter Hong Kong, as otherwise it would not have been necessary to refer to the "freedom to leave" and the "freedom to enter" separately in Article 31. 107.Freedom to leave means that no exit permit would be required for a Hong Kong resident to leave the Region. In recognition of pre-existing criminal and civil laws prohibiting persons from leaving in specific circumstances, Article 31 goes on to say that "unless restrained by law, holders of valid travel documents shall be free to leave the Region without special authorization". 108.Freedom to enter the Region means, as a corollary to the freedom to leave, that no entry permit would be required for a Hong Kong resident. In the language employed in the Immigration Ordinance, it is a right to "land", by whatever means of transport. (See s.2 which defines "land" as "enter by land or disembark from a ship or aircraft" and see paragraphs 117-122 below). 109.The right to land (or enter) is an important right. In my view, a Hong Kong resident, since he does not need permission to land (as to which see paragraphs 123-132), cannot be removed under s.18. He can only be removed under s.19, which requires the Director of Immigration to give written notice informing him of (i) the ground on which the order is made and (ii) his right to appeal. Neither of these safeguards is available to persons who are not Hong Kong residents. b) Fresh permission to remain or stay required on re-entry 110.The Appellant, being a Hong Kong resident, could not have been denied permission to land as that is his right and freedom under Article 31 (see paragraphs 123-132). 111.However that is not to say that Article 31 exempts him from having to obtain permission to remain in Hong Kong upon re-entry because he had previously been granted a limit of stay the period of which had not expired by effluxion of time. "Limit of stay" is defined in s.2 as "a condition of stay limiting the period during which a person may remain in Hong Kong". It allows his continuous physical presence in Hong Kong. Since he could not both have left and have "remained in Hong Kong" at the same time, the stay permitted under that condition must lapse upon his departure. 112.I can see no ground for finding that Article 31 exempts him from having to obtain fresh permission on re-entry. Article 31 contains no express reference to freedom to "remain" or "stay". 113.As for the question whether a Hong Kong resident's freedom to travel is affected because he cannot stay in Hong Kong under his previous limit of stay, the matter can be tested in this way. Say X and Y (both Hong Kong residents with no right of abode and not former permanent residents) were denied permission to stay upon re-entering Hong Kong and were removed. Reasons have to be given under s.19. 114.If the reason for X's removal was because he had visited, say Tibet, then that would be a curtailment of his freedom to travel. That removal would be in breach of Article 31 because his freedom to travel to whatever place he wished has been infringed. He would then be able to challenge the denial of permission and his removal for breach of Article 31. 115.However, if the reason for Y's removal was that he was suspected of being "a dubious immigration consultant" (as in this case), then his removal has nothing to do with freedom of travel. The authorities had not stopped him going to Nepal, nor had they punished him for doing so. His freedom to travel was not curtailed. Rather, by travelling, he stopped "remaining" in Hong Kong. When re-entering, he had provided a new opportunity for the authorities to consider his conditions of stay afresh. 116.Accordingly, I take the view that the Appellant's rights and freedoms under Article 31 did not exempt him from having to subject himself to being considered for the imposition of fresh conditions of stay upon his re-entry, even though he had previously been granted a limit of stay the period of which had not expired by effluxion of time. Section 11(10) is merely an articulation of the fact that having left, he could no longer claim to be covered by the previous condition of stay limiting the period under which he may "remain in Hong Kong". 117.As for the matters raised in paragraphs 96-102 of Le Pichon JA's judgment (which I have had the benefit of reading in draft), it has not been suggested that a Hong Kong resident such as the Appellant, without the right of abode and who is not a former permanent resident, can stay in Hong Kong unconditionally. It is a matter of mechanics at what stage conditions are imposed. 118.It is the case that under the present scheme of the Ordinance, conditions of stay are imposed at the time when permission to land is given under s.11(1), or in the particular circumstances of persons covered by s.7(2), when permission to remain is given under s.11(1A). 119.This is because s.11 is based on the assumption that s.7(1) is effective in requiring non-permanent residents to obtain permission to land. It is clear from a reading of the Ordinance that it is predicated upon the premise that non-permanent residents need to have permission to land. 120.In my view as discussed below, s.7(1) is not effective to deny a non-permanent resident's right to land. However, it does not follow that he can also have a right of unconditional stay. He would still need permission to remain in Hong Kong because neither the Basic Law nor the Immigration Ordinance has given him that right. 121.Put another way, a limit of stay and other conditions of stay can still be imposed on a non-permanent resident not because he needs permission to land but because he has no right of unconditional stay either under the Basic Law or the Ordinance. 122.At what stage conditions of stay may be imposed on non-permanent residents, when s.7(1) is ineffective in its application to them, does not fall for examination here. In the Appellant's case, the conditions were imposed when he was given permission to land before the status of Hong Kong resident was created in 1997 and the conditions of stay were thus validly imposed on him under s.11(1)(a) and s.11(2). c) Sections 7(1) and 11(1) cannot affect right to land 123.It only remains to examine why in my view the Appellant's right to land cannot be affected by s.7(1) and s.11(1). 124.Section 11(1) states:
125.Section 11(1) by itself does not affect a person's right to land in (or enter) Hong Kong. The section that is pertinent is s.7(1), which states:
126.Section 2AAA applies to former permanent residents only. Section 9(1) applies to crew and s.10(1) applies to servicemen. 127.Therefore, the effect of s.7(1) is that a Hong Kong resident who has the right to enter (or land in) Hong Kong under Article 31 (although he does not enjoy the right of abode) would still require the permission of an immigration officer or immigration assistant to land. 128.The Respondent has relied upon Article 39 which states: "The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article." 129.The Respondent has contended that s.7(1) is a restriction on the freedom to enter, which is permissible because it does not contravene the provisions of the ICCPR, the ICESCR or the labour conventions. 130.However the language of s.7(1) makes the restriction unjustifiably wide. In HKSAR v Ng Kung Siu [1999] 3 HKLRD 907, 921 the Court of Final Appeal held that the wider the restriction of a constitutional freedom, the more difficult it would be to justify. The restriction under s.7(1) is undeniably wide. A non-permanent resident may not land in Hong Kong until he is given permission to land by an immigration officer or assistant. If an immigration officer denies him permission, he is not entitled to reasons and there is no statutory appeal. The width of the restriction is such that he cannot exercise his freedom in any other way (in contrast to a situation say, where freedom of expression may be exercised in other unrestricted ways). 131.The burden on the Respondent to justify such a wide restriction has not been discharged. Under s. 4(1)(a) all persons have to submit themselves to examination on landing in any event, and as discussed above, non-permanent residents have no right to unconditional stay. Therefore it is not necessary to have such a wide-ranging restriction as s.7(1) to deny non-permanent residents even the right to land. If a procedure is needed at which the immigration authority may impose conditions of stay on them, there may be appropriate legislation which could provide for this, but to restrict even the right to land is disproportionate to this aim. 132.Consequently, s.7(1) and 11(1) could not in my view affect the Appellant's freedom to enter Hong Kong under Article 31. As the judgment below was predicated upon this basis, the appeal should be allowed. Hon Rogers VP: 133.The appeal will be allowed accordingly. There will be an order in the terms indicated, with liberty to apply for the purpose of working out the order. There will be an order nisi as to costs in favour of the applicant.
Representation: Mr Philip Dykes SC and Mr Paul Harris, instructed by Messrs Jal N Karbhari & Co., for the applicant Mr William Marshall SC and Ms Michelle Chan, instructed by Secretary for Justice, for the Respondent Remarks |
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