Read the full judgment text of FACV 000017/2001 on BabelCite. This FACV judgment was delivered on 30 July 2002 before Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ.
Constitutional law – Hong Kong Basic Law – interpretation of Chapter III – rights and freedoms of residents – art.31 freedom to travel and to enter – art.39 restrictions on rights and freedoms – International Covenant on Civil and Political Rights as applied to Hong Kong – Hong Kong Bill of Rights Ordinance, Cap.383, s.11 – Immigration Ordinance, Cap.115, s.11(10) – whether art.39(2) permits restrictions on rights conferred by the Basic Law additional to and not found in the ICCPR – whether s.11(10) is unconstitutional as applied to a non-permanent resident whose limit of stay has not expired – non-permanent resident defined under art.24 by reference to domestic legislation – respondent Nepalese former Gurkha with permission to remain until 9 January 1999 as dependant of permanent resident wife – refused permission to land on 5 November 1997 after short trip to Nepal – removal order made on 10 December 1998 – application of s.11(10) would expire permission immediately after departure, requiring fresh application for permission to land on return and effectively destroying non-permanent resident status – Director's primary submission that art.39(2) permits any restriction prescribed by law on Basic Law rights not in ICCPR rejected – generous interpretation of art.31 rights and narrow interpretation of art.39(2) restrictions required – rights in Basic Law additional to ICCPR are constitutionally entrenched and cannot be swept away by domestic legislation – Director's supplementary submission based on proportionality also rejected because 'prescribed by law' requires statutory scheme with sufficient precision and not merely general discretionary immigration powers – s.11(10) itself not unconstitutional but its application to non-permanent residents with unexpired limit of stay is invalid as it would abrogate rather than merely restrict art.31 rights – s.7(1) of the Ordinance construed consistently with art.31 to mean such non-permanent resident does not need a fresh grant of permission to land – appeal dismissed with costs nisi.
Legal issues: Effect of art.39(2) on rights conferred by Basic Law additional to ICCPR · Proportionality test for restricting art.31 rights · Constitutionality of s.11(10) of the Immigration Ordinance as applied to non-permanent residents
Outcome: Appeal unanimously dismissed. The Director's appeal is dismissed; the application of s.11(10) of the Immigration Ordinance to a non-permanent resident with an unexpired limit of stay is unconstitutional. The respondent is entitled to land on the basis of his previously granted permission with an unexpired limit of stay.
Cited by 1 case