Commissioner of Registration v. Registration of Persons Tribunal and Another
Read the full judgment text of CACV 272/1999 on BabelCite. This Court of Appeal judgment was delivered on 19 April 2000.
1. This is an appeal from a judgment of Keith JA when he was sitting as an additional Judge of the Court of First Instance in a judicial review . The Commissioner of Registration ("the Commissioner") was seeking an order of certiorari quashing a determination made by the Registration of Persons Tribunal ("the Tribunal") in which it allowed the appeal of the 2nd respondent (Mr Muhammad) and held that a Hong Kong permanent identity card should be issued to him. A declaration was also sought that M
Cited by 9 cases · Cites 3 cases
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CACV000272/1999 CACV 272/99 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 272 OF 1999 (ON APPEAL FROM HCAL 40/1999) ________________________________
_____________________________________ Coram: Hon Mayo VP, Rogers JA and Ribeiro JA in Court Date of Hearing: 28 - 30 March 2000 Date of Judgment: 19 April 2000 ______________ J U D G M E N T ______________ Hon Mayo VP: 1. This is an appeal from a judgment of Keith JA when he was sitting as an additional Judge of the Court of First Instance in a judicial review. The Commissioner of Registration ("the Commissioner") was seeking an order of certiorari quashing a determination made by the Registration of Persons Tribunal ("the Tribunal") in which it allowed the appeal of the 2nd respondent (Mr Muhammad) and held that a Hong Kong permanent identity card should be issued to him. A declaration was also sought that Mr Muhammad was not a permanent resident of Hong Kong within Article 24(2)(4) of the Basic Law and did not have a right of abode in Hong Kong. The Judge granted the relief sought. 2. The background facts are conveniently encapsulated on pages 4 and 5 of the Judge's judgment:
3. The main issue on this appeal is whether Mr Muhammad is entitled to be a permanent resident of HKSAR. 4. The relevant legislative provisions which have to be considered in this connection are Article 24 of the Basic Law and Schedule 1 to the Immigration Ordinance, Cap. 115. Somewhat surprisingly when the Tribunal heard the appeal they held that the relevant provisions in the Schedule had to be struck down as they were contrary to the Basic Law. I say "surprisingly" as their function is to determine questions of fact not legal issues. 5. Article 24 reads:
6. Article 24(2)(4) is the Article Mr Muhammad relies upon. 7. Schedule 1 para. 2(d) of the Immigration Ordinance, purports to take cognisance of Article 24(2)(4):
8. It is the Commissioner's contention that in interpreting the Article 24(2)(4) he must have regard to: 9. Schedule 1 para. 1(4)(b) of the Immigration Ordinance:
10. Schedule 1 para. 1(5) of the Immigration Ordinance:
11. Schedule 1 para. 3(1) and (2) of the Immigration Ordinance:
and s. 2(4)(b) of the Immigration Ordinance:
12. Mr Chang SC for Mr Muhammad submitted that it was manifest from a plain reading of Article 24(2)(4) that the qualifying period of 7 years and the required taking of Hong Kong as one's place of permanent residence could all occur before the transfer of sovereignty on 1 July 1997. This was also apparent from the Joint Declaration. This being the case anything in the Immigration Ordinance which has the effect in practical terms of detracting from or negating the rights conferred by the Article was unconstitutional. 13. Mr Chang contended that the provisions referred to in Schedule 1 were unconstitutional for this reason. He did however accept that it was open to the legislature to enact legislation which laid down reasonable requirements and procedures to prove the facts upon which a claim to be a permanent resident was based. What the legislature could not do was to add additional requirements not mandated by the Basic Law. 14. A good example of this was the requirement in Schedule 1 para. 1(4)(b) that for calculating the 7 years period it must run immediately prior to the time when the application for status as a permanent resident is made. Mr Chang argued that this clearly contravened the Article. This was because it was evident from the wording of Article 24(2)(4) that the status could be required either before or after the Basic Law came into effect. No application could have been made prior to 1 July 1997 as Schedule 1 was not enacted until that date and accordingly the residential requirement could not have been complied with. 15. This had important implications in this case as it was Mr Chang's contention that on any reasonable criteria Mr Muhammad was ordinarily resident in Hong Kong prior to 1 July 1997. Mr Chang called in aid the reasoning of Lord Scarman at pages 341 and 342 of R v Barnet LBC, ex parte Shah [1983] 2 AC 309:
16. This was also in conformity with the findings of the Tribunal. 17. According to Mr Chang the crucial error which had been made by the Judge was to seek a temporal linkage between the fact of ordinary residence and the taking of Hong Kong as a place of permanent residence. The Judge put it this way at pages 10 and 11 of his judgment:
18. Mr Chang submitted that what the Judge should have done was to consider the residential requirement separately from the question of taking Hong Kong as his place of permanent residence. 19. Mr Chang also submitted that assistance could be derived from the terms of Article 24(2)(2) which related to Chinese nationals. A seven years residence requirement was laid down for them. However there was no requirement for them to take Hong Kong as their place of residence. He suggested that this was discriminatory and that there was no reason to suppose that it had been the intention of the drafters of the Basic Law to be discriminatory. I do not think that any question of discrimination arises. It is perfectly understandable that Chinese nationals should be treated in a different manner to non-Chinese nationals. No assistance can be derived from this in resolving this issue. 20. Mr Fok SC who represented the Commissioner's answer to all of this was that it was question of the construction of the Article as to whether it was legitimate to add words which would provide that the 7 years period must immediately proceed taking Hong Kong as a place of permanent residence. 21. The proper approach to the construction of the Basic Law was set out in some detail in the judgment of the Chief Justice at p. 28 and p. 29 of NG Ka-ling & Others v Direction of Immigration [1999] 2 HKCFAR 4:
22. The points particularly to be borne in mind were that the interpretation of the Basic Law should not be rigid. It had to be considered in the overall context of the problem which was being addressed. This also meant that a purposive construction must be adopted. 23. In considering the overall context of the present litigation the first point to be considered was that prior to 1 July 1997 the rights of foreign nationals were severely circumscribed. It could not be said that Mr Muhammad had an accrued right of abode. 24. Any right that he may have had was subject to verification. This was clear from a passage appearing later from the judgment of the Chief Justice in NG Ka-ling at p. 36:
25. There was also support for this proposition in the judgments delivered in LAU Kong-yung & Others v Director of Immigration [1999] 3 HKLRD 778. 26. I am satisfied that Mr Muhammad's claim to be a permanent resident did have to be established and this being the case he did not have the status on 1 July 1997. 27. I am also satisfied that it is necessary to apply a purposive construction to the Article. 28. It is necessary to stand back and ask the question what the drafters of the Article were attempting to provide for when the Article was drafted. One of the critical factors to consider in this case is whether Mr Chang was right in his contention that each of the three requirements contained in Article 24(2)(4) should be considered separately and discreetly. In other words whether you could take each of the requirements separately and say each in turn had been complied and that therefore Mr Muhammad was entitled to be a permanent resident subject to reasonable verification requirements. 29. I do not think that this is correct. One way of testing this is to consider the sort of anomalies which could arise if Mr Chang's argument is valid. If each of the requirements could be considered separately it would be possible for a person not of Chinese nationality to have entered Hong Kong with valid travel documents many years ago and then satisfy the residential requirement of 7 years continuous residence. They could then leave the Territory for many years and return as an illegal immigrant. If Mr Chang is right they could then be eligible for the status of being permanent residents. Their connection with Hong Kong may, by the time they make their application, be nebulous in the extreme. I do not believe that it could have been the intention of the drafters of Basic Law to confer such a right on someone whose connection with Hong Kong was so remote. If a purposive construction is applied to the Article it is necessary to have regard to all of the requirements together in the manner outlined by the Judge in the extract from his judgment previously cited. If such an approach is adopted it becomes clear that what was intended by the Article was that the 7 years continuous residence must immediately proceed the applicant's taking Hong Kong as his place of permanent residence. 30. The consequence of this is that Schedule 1 para. 1(4)(b) is not contrary to the Basic Law and accordingly it is necessary for Mr Muhammad to prove that he was ordinarily resident in Hong Kong for a continuous period of 7 years immediately proceeding his application to become a permanent resident. 31. At the hearing of the appeal Mr Fok made lengthy and most helpful submissions to us on the subject of the admissibility of extrinsic evidence as an additional interpretative tool to the construction of Article 24(2)(4). This material was contained in "Opinions on the Implementation of Article 24(2) of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China" adopted at the 4th Plenary Meeting of the Preparatory Committee for the Hong Kong Special Administrative Region on 10 August 1996. Mr Chang opposed the admission of these opinions as an interpretative tool. In my view it is not necessary for us to make an adjudication on this issue as I am satisfied for the reasons I have given that adopting a purposive construction to Article 24(2)(4) it is possible to reach a conclusion that Schedule 1 para. 1(4)(b) is not contrary to the Basic Law. 32. That then leads to the question of Mr Muhammad's imprisonment during the 7 years and s. 2(4)(b) of the Ordinance. 33. Mr Chang submitted that the section only related to imprisonment for immigration offences. Even if that was not accepted Mr Muhammad could still be regarded as being ordinarily resident in Hong Kong. Finally he submitted that if this was not the case the penalty was arbitrary disproportionate and unconstitutional. His authority for this was Australian Capital Television Party Ltd and Others v The Commonwealth of Australia [1992] 177 CLR 106. 34. There is nothing in the section to justify the limitation suggested by Mr Chang. In addition to this ex parte Shah would appear to be good authority that time spent in custody is not "ordinary" residence. I do not think that there can be any basis for arguing that the section is disproportionate or unconstitutional. In this connection it has to be observed that the section has not been declared to be inconsistent with the Basic Law under Article 160. Nor do I see any reason why it should be. As pointed out by Mr Fok it does not appear to be unreasonable for a non-Chinese national to be required to have "clean slate" for 7 years before qualifying as a permanent resident. 35. This would seem to be decisive of this appeal. In my view the appeal should be dismissed. Hon Rogers JA: 36. Introduction In this appeal, a number of questions both as to the construction and the validity of various provisions in Schedule 1 of the Immigration Ordinance, Cap. 115 have been raised. The fact that this court was informed by counsel for the Commissioner of Registration that the 2nd respondent would be permitted to remain in Hong Kong, following the removal of the deportation order in February 1999, as recorded in the judgment below, goes some way to alleviating the immediate cause for anxiety on the part of the 2nd respondent but in no way diminishes the importance and difficulty of the issues to be decided. The 2nd respondent 37. Mr Fateh Muhammad, the 2nd respondent, came to Hong Kong in 1962. He has stated that he arrived on 6 October and certainly on the 22 October, he applied for registration of an identity card. It appears that he took up employment with Cable & Wireless Limited. In 1967, he left for Pakistan for one month where he was married. There is a passport record of his returning to Hong Kong in December of that year. In 1970, his son was born in Hong Kong and in 1971, a daughter was born in Hong Kong. 38. In 1976, the 2nd respondent married again. This time, the marriage took place in India and his second wife was a Hong Kong permanent resident. She subsequently gave birth in Hong Kong to their son in 1980 and their daughter in 1987. 39. In May 1984, the 2nd respondent acknowledged receipt of a warning letter, declaring that he understood its contents. That letter made reference to a conviction for assault occasioning actual bodily harm on 22 November 1979 and a conviction for evasion of liability by deception on 31 January 1983. The letter warned the 2nd respondent that should he be convicted again of a criminal offence or otherwise come to "adverse attention", his application to continue his stay in Hong Kong would have to be re-assessed. It appears that a number of extensions to the 2nd respondent's employment visa were granted and in January 1989, the 2nd respondent was allowed to stay in Hong Kong until January 1990 as a dependent of his second wife. There were subsequent extensions of his stay as a dependent. 40. On 22 October 1990, the 2nd respondent made a further application for extension of stay in which he stated "Please I want to change my I/D card for Permanent stay." It might be noted that this was within a few months of the promulgation of the Basic Law. Five months later, the 2nd respondent's application for unconditional stay was refused but his permission to stay was extended to December 1993. 41. In February 1993, the 2nd respondent was arrested and in April 1994, he was convicted on two charges of conspiracy in relation to forged bank-notes. He was sentenced to periods of imprisonment of six years concurrently on each count. 42. In February 1997, three days before he was due to be released from prison, he was served with a deportation order under section 20(1)(a) of the Immigration Ordinance. The 2nd respondent indicated that he wished to apply for a permanent identity card and he was released on recognizance in February 1998. On 9 May 1998, as part of his application for a permanent identity card, he signed a declaration of having taken the Hong Kong Special Administrative Region as his place of permanent residence. The application was filed on 13 May. On 2 July, the Commissioner refused the application for a permanent identity card on the basis that the 2nd respondent had not shown sufficient evidence that he had a right of abode in Hong Kong. 43. Following that, on 4 August 1998, the 2nd respondent appealed to the Registration of Persons Tribunal in respect of the refusal to grant a permanent identity card. The matter was heard before the Tribunal on 14 January 1999 and a determination was issued by the Tribunal on 29 January. The two members of the Tribunal came to different conclusions and as a result, the 2nd respondent became entitled to a permanent identity card. It was against that decision that the applicant applied for judicial review. 44. Whether the 2nd respondent remained in Hong Kong illegally in the periods prior to 1990 seems to me to be irrelevant. In view of the subsequent extensions of stay, I am satisfied that any illegal stay in Hong Kong prior to 1990 is a matter which was waived. The 2nd respondent has apparently not only been employed in Hong Kong but has, from time to time, run businesses and has purchased flats in Hong Kong. The longest period for which he has been out of Hong Kong was a period of six months in 1985 at the time of the death of his father when he left Hong Kong to arrange the funeral of his father and to be with his mother. 45. Whereas one of the members of the Registration of Persons Tribunal was not satisfied in respect of the 2nd respondent's employment nor that the 2nd respondent stayed in Hong Kong between 1963 and 1978, it is clear that the other member of the Tribunal did accept that. Furthermore, there was no evidence whatever from the Commissioner to indicate that the 2nd respondent had not been in Hong Kong effectively since 1962. Any suggestion that the 2nd respondent had not been in Hong Kong was speculation without foundation. The member of the Tribunal who held in the 2nd respondent's favour said, amongst other things :-
46. These are powerful considerations. 47. Article 24(3) provides that permanent residents shall have the right of abode in the HKSAR. Section 2A of the Immigration Ordinance specifies that the right of abode includes the right to land in Hong Kong, the right not to have imposed any condition of stay in Hong Kong, the right not to have a deportation order made against the person holding the right and the right not to have a removal order made. Thus, the fact is that a permanent resident who commits a serious crime and is imprisoned for a number of years cannot be deported. 48. It can be observed that almost all the issues in this case turn upon the fact that the 2nd respondent was convicted of a serious crime in 1993 and was sentenced to a lengthy period of imprisonment followed by the making of a deportation order. Had the 2nd respondent established that he was a permanent resident and acquired a permanent identity card after the 30 June 1997 and prior to conviction, no deportation order could be made and the status as a permanent resident could not be forfeited. 49. Whilst, therefore, the 2nd respondent might, and on the finding of the Registration of Persons Tribunal court did, establish that, as of possibly the 22 October 1990, he had fulfilled the criteria laid down in Article 24(2)(4) of the Basic Law, the question that arises is whether, by reason of his conviction and imprisonment, he no longer fulfilled that criteria in 1998 at the time when he applied for a permanent identity card. Article 24(2)(4) of the Basic Law 50. Under Article 24(2) of the Basic Law, the permanent residents of the HKSAR are defined as including :-
It is evident both from the use of the different expressions of Hong Kong and Hong Kong Special Administrative Region and from the position of the words "before or after the establishment of the Hong Kong Special Administrative Region" that the criteria, which must be satisfied to bring a person within this category of permanent residents, could be satisfied before the establishment of the HKSAR. 51. There was much discussion as to whether those criteria could be established severally, at different times, or whether they must be satisfied at the same time. I was initially attracted by the suggestion that there was nothing in the wording of the Article which required that the conditions should be established at the same time and that, provided the person claiming to be a permanent resident could satisfy the criteria, namely that he had entered Hong Kong with a valid travel document, that he had been ordinarily resident in Hong Kong for a continuous period of not less than 7 years and that he had taken Hong Kong as his place of permanent residence, it did not affect the situation if those matters had been satisfied at different times. I was not heavily swayed by arguments based on unlikely hypothetical situations of persons who had left Hong Kong many years before allegedly taking Hong Kong as their place of permanent residence. Improbable, and perhaps unfair, hypothetical examples can be drawn either way. 52. However, reading Article 24(2)(4) in the context of the rest of the Article and, specifically, the other definitions of categories of permanent resident, it seems to me that in broad terms what it is defining is the sort of person who should be allowed to stay because, despite not being a Chinese national, he or she has become "part of" Hong Kong. Viewed in that light, it seems to me that the various criteria have to be fulfilled together. Obviously, the presence in Hong Kong must be initially legal. The date at which Hong Kong is taken as the place of permanent residence could be at any time during the time of ordinary residence, but it is the position or standing of the person when looked at as a whole which is of relevance. Establishing the right of permanent residence 53. The status of permanent resident is not simply a valuable status but it is one which underlies the Basic Law. The holder of that status acquires considerable rights. It is understandable, therefore, that the exercise of the rights of a permanent resident should be carefully safeguarded and only those who have established their status should enjoy the rights. 54. The requirement of establishing the status of permanent resident was considered in the case of Lau Kong Yung and others v. Director of Immigration [1999] 3 HKLRD 778. In that case, consideration was being given to the provisions of section 2AA of the Immigration Ordinance. Those provisions are, of course, not applicable in this case. Nevertheless, there was no question that provisions regulating the manner in which the status of permanent resident could be established were upheld. Reference could be made, for example, to the Chief Justice's judgment at p.794B-D and 804D-805C. A clear distinction is drawn between establishing the status and enjoying the rights which that status gives. 55. As pointed out above, the provisions of section 2AA of the Immigration Ordinance are inapplicable in relation to persons claiming to be permanent residents under Article 24(2)(4) of the Basic Law (which is mirrored in paragraph 2(d) of Schedule 1 of the Ordinance). The mechanism for establishing a right under paragraph 2(d) is set out in paragraph 3 of Schedule 1. Paragraph 3(2) provides that a person does not have the status of a permanent resident under paragraph 2(d) until his application has been approved by the Director of Immigration. 56. Whilst upholding the law insofar as it lays down a procedure for establishing a status, it is right to say that the procedures laid down for establishing the status cannot be used to alter the criteria required to be fulfilled to enjoy that status. The reason is simply that if a right is laid down in a constitutional document, it cannot be denied by subsidiary legislation. Paragraph 1(4) of Schedule 1 57. On behalf of the Commissioner, strong reliance was placed on paragraph 1(4)(b) of Schedule 1 of the Ordinance. That reads :-
58. This provision is important in this case because section 2(4)(b) of the Immigration Ordinance provides that a person shall not be treated as ordinarily resident in Hong Kong during any period of imprisonment or detention pursuant to a sentence or order of any court. 59. The short argument on behalf of the Commissioner is that because the 2nd respondent was imprisoned between 1993 and 1997, he did not have a continuous period of 7 years ordinary residence immediately prior to his application. 60. At first, it seemed that the words "immediately before the date when he applies ..." added a gloss to Article 24(2)(4) which was not in that provision. However, applying the purposive construction to Article 24(2)(4) to which I have referred, it can be envisaged that a person might at some stage fulfill the criteria of Article 24(2)(4) but later cease to fulfill it. Leaving aside the question of whether the word "immediately" should, in the context, be given a liberal or a strictly literal meaning, paragraph 1(4)(b) is directed to the requirement that at the time of the application the person must still fulfill the criteria. 61. Arguments were raised, comparing Article 24(2)(2) with Article 24(2)(4). I consider that such comparisons are not productive. The provisions relate, on the one hand, to persons of Chinese nationality and on the other hand, to persons not of Chinese nationality. The composite requirement of section 24(2)(4) is not present in Article 24(2)(2). Hence the fact that the period of 7 years residence need not be "immediately before" any application date as regards qualification under Article 24(2)(2) is irrelevant. 62. The question then arises as to whether there can be a break in the period of permanent residence provided that at some stage, the person has continuously resided in Hong Kong for 7 years. Again, for the same reason, based on the construction of Article 24(2)(4), I consider that this is not possible. The question that must be asked is whether the person is one who is currently so affiliated to Hong Kong according to the criteria that he is accorded the status of permanent resident. 63. The definition section of the Immigration Ordinance does not define "ordinarily resident", as such, but sets out in subsection (4) circumstances in which a person shall be treated as not being ordinarily resident. Section 2(4)(b) provides that a person shall not be treated as ordinarily resident in Hong Kong :
64. This exclusion of the period of imprisonment is not out of keeping with the commonly understood meaning of ordinary residence; see, for example, Lord Scarman in Akbarali v. Brent London Borough Council [1983] 2 AC 309 at page 344. Certainly, statutory provisions in relation to what does and does not constitute ordinary residence occur in relation to other matters e.g. Television Ordinance, Cap. 52 and Telecommunication Ordinance, Cap. 106. The exclusion of the period of imprisonment from being a period of ordinary residence is a long standing statutory exclusion and I regret I see no valid basis for denying its validity. 65. Neither do I consider that the provisions of section 2(4)(b) can be limited to offences relating to breaches of the immigration laws. On the plain wording of the Ordinance, the meaning is clear. The provisions of Pepper v. Hart [1993] AC 593, are therefore inapplicable. As such, there is, in my view, no ground for considering such matters as the statements made upon the introduction of the bill in the Legislative Council. Nor do I see anything disproportionate or unconstitutional in those provisions. They lie alongside provisions which empower deportation of a person who has been imprisoned for not less than two years: see section 20(1)(a). 66. In my view, the word "immediately" has to be read in the light of the construction of Article 24(2)(4) (or paragraph 2(d)). In other words, periods which would not affect the nature of the person's status of being lawfully resident, continuously present and intending to remain will not constitute gaps sufficient to render the period of seven years residence not "immediately" before. 67. In conclusion, I consider that paragraph 1(4), when properly construed is valid, and that the period of imprisonment following arrest in 1993 was a break in the 2nd respondent's period of ordinary residence such that in 1998 he could not be considered as fulfilling the criteria laid down in Article 24(2)(4) of the Basic Law and paragraph 2(d) of Schedule 1 of the Immigration Ordinance. Further material for consideration of Article 24(2)(4) 68. Mr Fok, SC, on behalf of the Commissioner sought to introduce further material, in particular, a resolution of the Preparatory Committee of the HKSAR made at its Fourth Plenary Session on 10 August 1996, the Working Report of the Preparatory Committee presented by Deputy Premier Qian Qichen to the Fifth Session of the Eighth NPC on 10 March 1997 and a resolution of the National People's Congress to approve the said Working Report of the Preparatory Committee on 14 March 1997. These materials were not put forward as interpretations of the Basic Law in accordance with Article 67(4) of the constitution of the People's Republic of China nor as interpretations in accordance with Article 158 of the Basic Law itself. Reference to them, however, was made in the interpretation given by the Standing Committee of the NPC of Articles 22(4) and 24(2)(3) of the Basic Law given on 26 June 1999. It seems to me that these might fall into a category where it might be considered that they should be treated as persuasive obiter dicta, but, as with any obiter dicta, as opposed to direct authoritative interpretation, care needs to be taken to ascertain the precise statements and the context in which the specific statements were made. This would appear to be true in the present case. Mr Chang SC argued that there appear to be a number of instances where the Provisional Legislature did not follow what was contained in the working papers of the Preparatory Committee. Whether that would be attributable to the fact that all or some of the statements were proposals for implementation as opposed to statements of legislative intent would need to be examined with more care. For the purposes of the present case, it is unnecessary to decide these issues. Indeed, it is undesirable since I do not consider that the matter was fully argued. "Settled in Hong Kong" 69. There was one further ground upon which Mr Fok relied in support of his case. 70. A person claiming the status of permanent resident under paragraph 2(d) of Schedule 1 is required under paragraph 3(1)(a) to furnish information in relation to a number of matters including his habitual residence and whether principal members of his family are in Hong Kong. To this, no exception could be taken. Neither could exception be taken to the requirement that the person seeking to establish his status must make a declaration that he has taken Hong Kong as his place of permanent residence in the form required by the Director of Immigration. That is laid down in paragraph 3(1)(b). It is to be noted that the declaration form, at any rate that used by the 2nd respondent in this case, makes no reference to any date on which that event is claimed to have happened. 71. There is a further stipulation that when the person claiming the status makes his declaration, he must, in accordance with paragraph 3(1)(c), be settled in Hong Kong. Again, giving Article 24(2)(4) what I have outlined above to be its purposive construction, no exception could be taken to a provision which stipulates that a person who has once fulfilled the criteria, should continue to fulfill the criteria at the time of his application. 72. If the person has come to Hong Kong legally, remained in Hong Kong for at least 7 continuous years and taken Hong Kong as his place of permanent residence, it is difficult to see how, in common parlance, he would not be settled in Hong Kong because he could not have taken Hong Kong as his place of permanent residence if he were not settled in Hong Kong. Although taking Hong Kong as a place of permanent residence obviously could be a past event, it must be reflected by a continuing state. 73. But consideration then needs to be given to paragraph 1(5) of Schedule 1 of the Ordinance which states that :-
74. Taking sub-paragraph (a) first, it was not argued that because the 2nd respondent had been served with a deportation order, he was not ordinarily resident. It is not clear why the point was not taken. It may be because at the time of the 2nd respondent's application, the deportation order was under challenge. It had been removed by the time of the hearing below. 75. Reliance was, however, placed by Mr Fok, on behalf of the Commissioner, on paragraph 1(5)(b) of Schedule 1 of the Ordinance. I do not base my decision in this case upon that provision. I note that Keith JA expressed disquiet in relation to this provision. For the same reasons that he said it was undesirable to reach a conclusion in respect of this provision, I intend to say no more than to draw attention to what he said about it. Hon Ribeiro JA: 76. The 2nd respondent arrived in Hong Kong on a valid Pakistani passport in 1962 and may uncontroversially be taken for present purposes to have been ordinarily resident here until 25 February 1993. On that date, he was arrested and detained by the ICAC. He was subsequently convicted on charges of conspiracy to utter forged banknotes and conspiracy to deliver counterfeit banknotes, receiving a six year sentence of imprisonment on each offence, running concurrently. With remission, his term of imprisonment came to an end on 27 February 1997. 77. On 24 February 1997, the Secretary for Security ordered that he be deported and, after completion of his sentence, he was held in detention pending deportation until 7 February 1998. Since that date, however, he has been released on recognizances to enable him to proceed with his application for judicial review against the deportation decision. A. These proceedings 78. As provided by section 2A of the Immigration Ordinance (Cap 115) ("the Ordinance"), a Hong Kong permanent resident enjoys the right of abode in Hong Kong with the right, inter alia, not to be deported. The 2nd respondent's case is that he is entitled to such right and that, accordingly, no valid deportation order can be made against him. 79. With a view to establishing his right of abode, the 2nd respondent applied on 9 May 1998 to the Immigration Department for verification of his eligibility to be issued with a Hong Kong Permanent Identity Card. Since only permanent residents who enjoy a right of abode are entitled to such identity cards, verification requires recognition of an applicant's status as a Hong Kong permanent resident. As part of this application and also on 9 May 1998, the 2nd respondent made a declaration in standard form stating that he had taken the HKSAR as his place of permanent residence. 80. On 17 June 1998, the Director of Immigration refused to verify the 2nd respondent's status as a permanent resident on two grounds, namely :-
81. Notwithstanding the Director's refusal, on 29 June 1998, the 2nd respondent formally applied to the Commissioner to be issued with a permanent identity card. This was refused. The 2nd respondent then appealed to the Registration of Persons Tribunal. After a contested hearing, one of its two members decided that the appeal should be allowed. By virtue of Schd 4, para 3(2) of the Registration of Persons Regulations (Cap 177), this meant that the appeal was allowed. 82. On the Commissioner's application for judicial review, Keith JA, sitting as an additional judge of the Court of First Instance, quashed the tribunal's decision, holding that on the true construction of the relevant provisions of the Basic Law and of the Ordinance, the 2nd respondent is not a permanent resident and does not enjoy the right of abode in Hong Kong. The 2nd respondent now appeals to this court. B. The issues 83. Article 24(2)(4) of the Basic Law ("BL24(2)(4)") materially provides as follows, namely :-
84. Mr Denis Chang SC, appearing with Mr Maurice K F Ng for the 2nd respondent, contended that by virtue of BL24(2)(4), the provisions of the Ordinance relied upon by the Commissioner as the basis for refusing the 2nd respondent's application are unconstitutional. In particular :-
The 2nd respondent's case was that these provisions are incompatible with the plain words of BL24(2)(4) and so must be struck down. 85. Additionally, Mr Chang contended that even if his argument on the "immediately before" issue fails, section 2(4)(b) should not be construed as breaking, or otherwise permitted to break, the continuity of the 2nd respondent's long period of ordinary residence in Hong Kong which he had accrued before his imprisonment (the "imprisonment" issue). 86. The Commissioner, represented by Mr Joseph Fok SC, appearing with Mr Jat Sew-tong, argued that when BL24(2)(4) receives a sensible purposive construction, no incompatibility arises with the relevant provisions of the Ordinance. He also rejects Mr Chang's submissions in respect of section 2(4)(b). 87. As a fall-back position, to be reached only if his primary argument on the construction of BL24(2)(4) should fail, the Commissioner submitted that the court should treat as a new class of extrinsic aid to construction of the Basic Law, the "Opinions on the Implementation of Article 24(2) of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China" adopted at the Fourth Plenary Meeting of the Preparatory Committee on 10 August 1996 ("the Preparatory Committee's Opinions"), with a view to ascertaining the legislative intent of BL24(2)(4). It was submitted that the court was required to take this course because the Preparatory Committee's Opinions are expressly referred to in the Interpretation by the Standing Committee of the National People's Congress of Articles 22(4) and 24(2)(3) of the Basic Law, adopted on 26 June 1999. C. The fundamental difference between the parties 88. As appears from the terms of BL24(2)(4), non-Chinese nationals must satisfy three conditions before they qualify as permanent residents. They must :-
Of great importance to the arguments on the construction of BL24(2)(4) is the fact that after the three conditions are set out, one finds the words :-
Where a non-Chinese national satisfies the abovementioned conditions, Article 24 ("BL24") deems him a person "qualified to obtain, in accordance with the laws of the Region, permanent identity cards which state their right of abode." 89. The fundamental difference between the parties is as to whether BL24(2)(4) should be construed so that:-
D. The relevant provisions of the Ordinance 90. The Ordinance seeks to implement BL24(2)(4) in ways material to the present appeal, first, by re-enacting that provision in Schd 1, para 2(d) in the following terms :-
91. Secondly, in Schd 1, para 1(4)(b) the Ordinance elaborates upon the ordinary residence requirement as follows :-
This is, of course, at the crux of the "immediately before" issue. The qualifying period of 7 years or more must fall immediately before the date of the application to the Director. Any earlier continuous 7 year period of ordinary residence will not do. However, the Ordinance makes it clear that the facts relied on as constituting the qualifying period of ordinary residence may occur before or after establishment of the HKSAR. 92. In enacting Schd 1, para 1(4)(b) the legislature drew a deliberate distinction between Chinese and non-Chinese nationals in this regard. Under Schd 1, para 1(4)(a), a Chinese national who seeks to establish Hong Kong permanent resident status by virtue of completing a continuous period of not less than 7 years ordinary residence is expressly permitted to rely on such a period completed "at any time" before or after the establishment of the HKSAR. There is no need for him to rely on a qualifying period completed immediately before the date of his application. 93. Thirdly, the Ordinance elaborates upon the ordinary residence requirement by providing in section 2(4)(b) as follows :-
This applies equally to Chinese and non-Chinese nationals and is of obvious importance on the facts of the present case. 94. Fourthly, the Ordinance contains provisions, mainly in Schd 1, para 3, aimed at implementing the "taking Hong Kong" requirement as follows :-
95. Fifthly, Schd 1, para 1(5) elaborates upon the meaning of "settled" as follows :-
96. As mentioned above, the inability to meet the "taking Hong Kong" requirement because of the limit of stay applicable to the 2nd respondent by virtue of the deportation order formed the second basis upon which the Commissioner rejected his application for permanent resident status. E. The "immediately before" issue E.(i) Mr Chang's arguments 97. Mr Chang argued that on its plain words, BL24(2)(4) allows the ordinary residence requirement to be satisfied independently of the other conditions and at any time before or after the HKSAR's establishment. The words "at any time" do not appear in BL24(2)(4). However, Mr Chang contended that this was clearly its effect: Not only are there no words in BL24(2)(4) requiring any of the three conditions to be established as at any particular moment in time, BL24(2)(4) expressly states that they can be satisfied "before or after" 1 July 1997, showing that it is deliberately permissive and not restrictive so far as the time for satisfying each condition is concerned. 98. Moreover, it must be borne in mind that BL24(2)(4) is concerned only with applications for permanent resident status made after the establishment of the HKSAR on 1 July 1997. Accordingly, so the argument ran, to make it a requirement that the requisite 7 year period fall "immediately before" the date of the post-transition application, would in all but the most theoretical of cases, amount to the imposition of a requirement necessarily implying that the requisite period must fall at least partially after 1 July 1997. Such a result is incompatible with the words of BL24(2)(4) which permit the requirement to be satisfied "before or after" the establishment of the HKSAR, thereby permitting the applicant to prove that he satisfied the ordinary residence requirement in its entirety before 1 July 1997. 99. Furthermore, Mr Chang pointed to the difference of approach adopted by the Ordinance as to how Chinese and non-Chinese nationals can satisfy the ordinary residence requirement respectively. He contended that the approach in Schd 1, para 1(4)(a), which expressly permits Chinese nationals to satisfy the requirement by proving a continuous 7 year period of ordinary residence completed "at any time" before or after establishment of the HKSAR, was obviously the correct way to give effect to BL24(2)(4) and that this demonstrated the error of importing the "immediately before" restriction when dealing with non-Chinese nationals in this context. 100. Accordingly, Mr Chang submitted, there was no valid basis on which the Ordinance could justify grafting onto BL24(2)(4)'s ordinary residence requirement the restriction that the requisite 7 year period must fall "immediately before" the application. E.(ii) The need for a purposive construction 101. Despite the skill and cogency with which the abovementioned arguments were advanced by Mr Chang, I have, with respect, come to the conclusion that the contrary arguments put forward by Mr Fok and accepted by Keith JA in relation to the "immediately before" issue are correct. 102. Mr Chang's argument may be said to involve a literal construction of BL24(2)(4) in asserting that its conditions may be satisfied in isolation and at any time before or after the HKSAR was established. However, as the Court of Final Appeal stated in a well-known passage in Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4 at 28-29, when interpreting the Basic Law, one must recognize that one is construing a constitutional instrument which is necessarily couched in ample and general language that will often demand a purposive rather than "a literal, technical, narrow or rigid approach". As the Chief Justice stated :-
103. In relation to the Basic Law's provisions defining the classes of persons qualifying for Hong Kong permanent resident status, the Court stated that the approach required was to "consider the language in the light of any ascertainable purpose and the context". In my view, when one has regard to the context and purpose of BL24(2)(4), one is compelled to conclude that the construction advanced by Mr Chang is not what was intended. 104. The context in which BL24 was promulgated was the impending resumption of sovereignty by the People's Republic of China over Hong Kong. It became necessary to consider which classes of persons would be accepted as having permanent resident status in the HKSAR after the transition. The post-transition rights of abode for British and other non-Chinese nationals formed part of the negotiations between the British and Chinese governments in the Joint Liaison Group. While the United Kingdom and Hong Kong governments might have been expected to give UK nationals preference in their immigration policy for Hong Kong, it obviously did not follow that the categories of persons previously given such preference would remain unchanged after the establishment of the HKSAR. 105. The purpose of BL24 was to establish the categories of persons who would enjoy the right of abode after the transition and to prescribe the requirements to be met in each category. BL24(2)(4) sets out the requirements for non-Chinese nationals to qualify. BL24 declares that those who meet the prescribed criteria become "qualified to obtain, in accordance with the laws of the Region, permanent identity cards which state their right of abode." The BL24(2)(4) requirements (like those set out in the other BL24 categories) are therefore intended to apply after 1 July 1997 in the processing of applications by non-Chinese nationals for permanent identity cards seeking confirmation of their right of abode in the HKSAR. 106. Placing BL24(2)(4) in this context, it becomes exceedingly difficult to accept Mr Chang's construction of the ordinary residence condition as an isolated requirement capable of being met by a non-Chinese national regardless of when the requisite period of ordinary residence relied on was achieved, prior to 1 July 1997. As Mr Fok pointed out, on that approach, BL24(2)(4) must be held to have intended to grant the right of abode to non-Chinese nationals including those having no current, or even faintly recent, connection with Hong Kong but who are able to point to a 7 year period of ordinary residence completed in the distant past, under the previous immigration regime. For example, the construction contended for by Mr Chang would bring within the entitlement a non-Chinese national who came to Hong Kong say, as a young person in 1960, resided here as a student continuously for 10 years before leaving in 1970, thereafter having had no connection whatsoever with Hong Kong, before returning 30 years later, in 2000, and declaring that he had now taken Hong Kong as his place of permanent residence. 107. I fail to see how, when viewed purposively, one can attribute to the Basic Law an intention to confer a permanent right of abode on a person with such a tenuous connection with Hong Kong. The implausibility of such an intention suggests that a literal construction, divorced from the purpose and context of BL24 cannot be correct. E.(iii) BL24 as a matter of language 108. Before pursuing the purposive construction further, a word may be said about the language of BL24(2)(4). Mr Chang pressed the submission that his construction was supported by "the plain words" of that provision. However, even without reference to a purposive construction, I do not think that the meaning contended for is quite as plain in the 2nd respondent's favour as was submitted. 109. As pointed out above, BL24(2)(4) does not expressly state that the ordinary residence requirement may be satisfied "at any time" before or after the establishment of the HKSAR. It is in my view quite legitimate to view BL24(2)(4) as being in fact silent as to whether the required period has to accrue at any particular time and the words "before or after the establishment of the HKSAR" as referring only to the conduct and other matters relied on as constituting the fact of ordinary residence, so as to make it clear that these will count towards the requisite period, whether they took place before or after 1 July 1997. 110. So construed, BL24(2)(4) has not condescended to particulars as to when the period of continuous ordinary residence must occur and has left gaps which may legitimately be filled by the Ordinance. This the Ordinance did by requiring the period of 7 or more years of ordinary residence to fall immediately before the application for a Hong Kong permanent identity card. 111. I have not overlooked Mr Chang's contention (set out above) that such a construction would in practice eliminate the possibility of an applicant satisfying the requirement by relying on ordinary residence which took place in its entirety before the establishment of the HKSAR. His contention was that such a result demonstrated the incompatibility of Schd 1, para 1(4)(b) with BL24(2)(4) which expressly permits as one possibility, the completion of the whole of the requisite period before 1 July 1997. In my view, that argument does not succeed. 112. It would be most surprising if the provisions of the Basic Law were not formulated so as to provide in principle for its provisions to be capable of being applied as from the first moment of the establishment of the HKSAR, that is, from midnight on 1 July 1997. It is therefore proper to approach any construction of BL24(2)(4) on the assumption that it admits of the possibility, however theoretical, of that provision being operated on the first day of the HKSAR's establishment. The fact that in practice, it may never be invoked in such circumstances is neither here nor there so far as the question of construction is concerned. 113. So approached, the language of BL24(2)(4) is capable of being construed to accommodate cases where the accrual of the requisite period of 7 or more years of ordinary residence occurred in its entirety before 1 July 1997, to be relied upon in an application for permanent resident status hypothetically made on the first day of the HKSAR's establishment. I therefore do not consider there to be any necessary incompatibility between the "before or after" provision in BL24(2)(4) and the "immediately before" requirement in Schd 1, para 1(4)(b). 114. I am also unable to accept Mr Chang's argument (referred to above) based on the difference of approach to the requisite period in the case of Chinese nationals. It is true that the same words are used to lay down the ordinary residence requirement for both Chinese and non-Chinese nationals in BL24(2)(2) and BL24(2)(4) respectively. However, they are obviously different categories in terms of immigration policy, so that a difference in treatment of the persons in each category does not suggest any logical or linguistic difficulty. A relatively stringent policy, requiring demonstration of not only a substantial, but also a current, period of commitment to Hong Kong, was adopted in the case of non-Chinese nationals seeking permanent resident status. If, as suggested above, BL24(2)(2) and BL24(2)(4) may validly be construed as being silent on the question as to the time when the requisite period of ordinary residence must have been completed, it is legitimate for the Ordinance to fill in the gap in a different way in relation to each of the two substantively different categories. E.(iv) The lawful entry requirement 115. To return to the purposive construction of BL24(2)(4), the necessity for such an approach may be tested by considering the lawful entry requirement. On its plain language BL24(2)(4) merely requires a non-Chinese national to :-
By parity of reasoning with his argument on the ordinary residence requirement, Mr Chang was driven to contend that this too was a requirement that could be satisfied at any time in isolation and without any requirement that the validity of the "valid travel documents" supporting entry into Hong Kong be current at the time of applying for a permanent identity card. 116. With respect, I find it impossible to accept that such a construction of the lawful entry requirement was intended. One may take the hypothetical case of a non-Chinese national who came to Hong Kong for employment under a valid travel document in say, 1975 and built up a continuous period of 10 years ordinary residence before leaving Hong Kong in 1985. In my view, it could not seriously be argued that if he subsequently returned in the year 2000, entering Hong Kong on a forged travel document, he could nevertheless contend that he had, for BL24(2)(4)'s purposes, already complied with its first two requirements (as to lawful entry and ordinary residence) in 1985 so that the fact that his latest entry was under a forged document should be ignored. 117. The obvious unacceptability of such a literal construction provides another reason why BL24(2)(4), to my mind, demands a purposive approach. Notwithstanding the apparent permissiveness of the words "before or after" 1 July 1997, the lawful entry condition can only sensibly be construed as requiring the applicant's travel document to have been valid on his latest entry relative to his application for a permanent resident status. The Ordinance reflects this by Schd 1, para 3(c) and Schd 1, para 1(5) providing, in combination, that a non-Chinese national must be ordinarily resident in Hong Kong (and so must not be here illegally) at the time of making his application. No such requirement is expressly mentioned in BL24(2)(4) but, viewed purposively, the Ordinance's requirements are, in my view, in no way incompatible. F. The "imprisonment" issue 118. As indicated above, this was an argument raised by Mr Chang in conjunction with his arguments on the "immediately before" issue. He contended that even if the "immediately before" provision in Schd 1, para 1(4)(b) was not struck down as unconstitutional, section 2(4)(b) should not be construed as depriving the 2nd respondent of the needed continuity of ordinary residence over the requisite period. 119. It was stressed that what section 2(4)(b) provides is that "a person shall not be treated as ordinarily resident in Hong Kong" during any period of imprisonment. The court was invited to contrast this language with a hypothetical provision saying that a person "shall be treated as not being ordinarily resident in Hong Kong." The argument therefore was that section 2(4)(b) was merely intended to make the period of imprisonment ineligible for building up an as yet unattained seven year period of ordinary residence, but not intended to create any discontinuity interrupting a previously established period of ordinary residence exceeding 7 years. 120. Mr Chang argued that to favour a contrary, literal construction of section 2(4)(b) would mean that even the briefest period of detention ordered by the court would lead to loss of continuity of ordinary residence, constituting a disproportionate and unreasonable result. As I understood the argument, it was not advanced as a separate basis for striking down section 2(4)(b) but as a policy argument supporting the purposive construction of section 2(4)(b) contended for. 121. In my judgment, this is an argument without substance. The requirement is that there must be a "continuous" 7 year period of ordinary residence before one can claim permanent resident status. Since section 2(4)(b) prescribes that a period of imprisonment does not count as a period of ordinary residence, it follows that someone may be able to point to periods of ordinary residence occurring before and after the period spent in prison. However, I find it impossible to see how, in such a case, those two separated periods of ordinary residence can nevertheless be said to be in any sense "continuous". The 2nd respondent is simply unable to meet Schd 1, para 1(4)(b)'s requirement of proving that he was ordinarily resident over the required continuous period immediately before the date of his application. The semantic differences, if any, between construing section 2(4)(b) to mean "shall not be treated as ordinarily resident in Hong Kong" as opposed to "shall be treated as not being ordinarily resident in Hong Kong", do not seem to me to bear at all on this result. 122. The words of section 2(4)(b) are not displaced by any purposive interpretation. The Basic Law adopts the concept of "ordinary residence" in several places. The drafters may fairly be taken to have adopted that term knowing that it was well established in Hong Kong's immigration legislation and common law principles. There is no indication that the Basic Law intended to give it a different meaning. Accordingly, there is every reason for thinking that the statutory exclusion of certain periods of stay in Hong Kong from qualifying as periods of ordinary residence were intended to operate equally in the construction of the Basic Law. 123. Section 2(4)(b) contains one such statutory exclusion. Where continuity of ordinary residence (required by Schd 1, para 1(4)(b)) is broken, however briefly, the evident intention of the Basic Law is that the non-Chinese national must establish such continuity afresh. I can see no objection as a matter of legal principle to such a requirement and certainly no basis for striking down section 2(4)(b) as unconstitutional or for any other reason. G. The "limit of stay" requirement 124. The relevant condition laid down by BL24(2)(4) is that non-Chinese nationals must have :-
125. The 2nd respondent's argument is that, as with the ordinary residence requirement, the words are permissive regarding the time when this "taking Hong Kong" requirement has to be satisfied. Accordingly, he contends that having (as the tribunal found) already taken Hong Kong as his place of permanent residence for many years prior to his imprisonment, he cannot now be excluded on the basis of the deportation order made against him. Put another way, no basis exists for grafting a condition requiring the absence of a "limit of stay" condition at the time of making the declaration, onto the plain words set out above. 126. I am unable to accept that argument. In the first place, it contains the premise that an applicant for permanent resident status is able to satisfy the "taking Hong Kong" requirement purely on the basis of his subjective intention to take Hong Kong as his permanent place of residence, without regard to any legal restrictions which may be placed on his doing so. Such a premise is not justified. It is in my view, implicit in the "taking Hong Kong" condition that the applicant must not only declare his own intention to reside here indefinitely, but must also not to be subject to a lawful restriction against his so doing. It must, in other words, be open to him to take Hong Kong as his place of permanent residence. 127. Secondly, as with the 2nd respondent's argument on the ordinary residence requirement, his contentions ignore the context and purpose of the "taking Hong Kong" requirement within BL24. We are concerned once again with a condition which BL24(2)(4) intends to be applied when processing applications by non-Chinese nationals who claim to be qualified to obtain permanent identity cards after 1 July 1997 and, in my view, lays down the criteria which must be met at that point in time. 128. Such a construction is suggested not only by the purpose of BL24(2)(4) but also by the language of the "taking Hong Kong" requirement itself. Applicants must establish that they "have taken Hong Kong as their place of permanent residence". The claimed "permanence" of the applicant's situation necessarily implies a constancy and continuity in his commitment to Hong Kong as his place of permanent residence. In other words, however long ago it may have been that an applicant claims first to have taken Hong Kong as his place of permanent residence, the element of permanence means that such commitment must project forwards from that time and be seen to persist at the time of the application for a permanent identity card. It could hardly be otherwise if Hong Kong had genuinely been taken as the applicant's place of permanent residence. 129. Mr Chang advanced two subsidiary arguments in support of his main position on the limit of stay requirement. First, he argued that since BL24(2)(4) expressly imposes a "lawful entry" requirement, it should be construed as indicating that this was all that was required so far as immigration control was concerned, making it impermissible to add a "limit of stay" condition. With respect, the argument is a non sequitur. The fact that BL24(2)(4) raises a requirement that entry must be pursuant to a valid travel document gives no ground for supposing that any further condition should be excluded, especially where it relates to quite a different area of concern, namely, the absence of any legal restriction on stay which would impinge upon the "taking Hong Kong" requirement. 130. The second subsidiary argument involved Mr Chang's reliance on R v Barnet LBC, ex p Shah [1983] 2 AC 390, in which the House of Lords held that certain earlier tax cases had authoritatively determined what the natural and ordinary meaning of "ordinary residence" was and that (at p 348) the terms of a person's leave to enter the United Kingdom as stamped upon his passport may or may not be a guide to a person's intention in establishing a residence there, but could not be decisive of the question. Mr Chang submitted that the Shah case demonstrated that the courts should regard a "limit of stay" condition as "right of abode sensitive", which I understood to mean, as subservient to the substantive right of the permanent resident. 131. While I have no difficulty in accepting that if a person is a permanent resident with an established right of abode, any purported imposition of conditions limiting his stay in Hong Kong must give way to his substantive right (this being the effect of section 2A(1)(b) of the Ordinance), I do not see how the foregoing proposition or how the decision in the Shah case in any way advances the argument in the present appeal. 132. In the first place, in this aspect of the appeal, we are concerned with BL24(2)(4)'s requirement that the applicant has taken Hong Kong as his place of permanent residence. This involves language and concepts going some way beyond the notion of "ordinary residence", which was the concept addressed in the Shah case. 133. Secondly, the House of Lords was dealing with the meaning of the term in the absence of any statutory delineation of its meaning. Thus, Lord Scarman, with whom the other Law Lords agreed, expressly stated that the meaning of "ordinary residence" adopted would apply :-
134. The statutory framework of the Ordinance in the present case includes Schd 1, para 1(5) and para 3(c) in respect of the "taking Hong Kong" requirement. Even if the natural and ordinary meaning of the concept of "ordinary residence" as discussed in the Shah case were relevant in our context (which it is not), such general meaning cannot override an express definitional provision of the Ordinance. H. Conclusion 135. For the reasons given above, I have arrived at the conclusion that, as a matter of construction, there is no incompatibility between the abovementioned provisions of the Ordinance and BL24(2)(4). I have had the benefit of reading in draft the judgment of Mayo VP and respectfully agree with his conclusion that the appeal must be dismissed. 136. It is in the circumstances unnecessary to deal in this judgment with Mr Fok's submissions on the admissibility of the Preparatory Committee's Opinions as a potential new class of extrinsic aid to construction of the Basic Law. Hon Mayo VP: 137. Accordingly this appeal is dismissed. There will be an order nisi that the applicant will have his costs. The 2nd respondent's costs will be taxed in accordance with the Legal Aid Regulations.
Representation: Mr Joseph Fok SC & Mr Jat Sew-tong, instructed by Secretary for Justice for the applicant Mr Denis Chang, SC & Mr Maurice Ng, instructed by Messrs Barnes & Daly for the 2nd respondent
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