Tse Partick Yiu Hon v. Hong Kong Special Adminstrative Region Passports Appeal Board and Another

HCAL001240X/2000

[English translation - 英譯本]

HCAL 1240/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 1240 OF 2000

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Coram: Hon Mr Justice Yeung in Court

Date of Hearing: 21-22 December 2000

Date of Judgement: 17 January 2001

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JUDGMENT

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1. The Applicant TSE Yiu Hon (Yiu Hon) was born in Germany on 15th October 1985. At the time of his birth, Yiu Hon had British Dependent Territories citizenship. He was issued a British National (Overseas) passport on 1 August 1986, and it was indicated therein that he had the right of abode in Hong Kong.

2. Both parents of Yiu Hon were born in Hong Kong and have had the right of abode in Hong Kong. Previously they had British Dependent Territories Citizenship passports, but they are currently holding Hong Kong Special Administrative Region (HKSAR) passports.

3. In June 1976, the father of Yiu Hon left Hong Kong for employment in Germany. His mother also went to Germany to join her husband in July 1981.

4. The elder brother of Yiu Hon, whose name is Yiu Chuen, was also born in Germany. He was born in 1981.

5. In 1990, the parents of Yiu Hon renounced their British Dependent Territories Citizenships and applied for German nationality. Both applications were approved and they were issued with German passports in January 1991. When they applied for German nationality, they included Yiu Hon in their applications. Though Yiu Hon was naturalized as a German national, he did not have to renounce his British Dependent Territories Citizenship, the reason being, as provided in section 12(1) of the British Nationality Act 1981, that only a British citizen of full age and capacity can effectively renounce his citizenship.

6. According to the information provided by the Consulate General of the Federal Republic of Germany in Hong Kong to the Immigration Department, a person who applies for naturalization into German nationality has to renounce his original nationality, exemptions from this requirement being possible in exceptional cases. One exceptional case is that a minor, according to his respective national law, has no right to give up his original nationality. Having been granted German nationality, the minor may retain his original nationality.

7. That explains why Yiu Hon, upon his naturalization as a German national, did not have to follow his parents in their renunciations of their British Dependent Territories citizenships.

8. On 11 July 1998, after the government of the People's Republic of China (China) had resumed its sovereignty over Hong Kong, Yiu Hon's mother Madam Cheng Oi Kwan applied on his behalf for the issue of a Hong Kong Special Administrative Region (HKSAR) passport. The passport was issued on 6 August 1998.

9. Yiu Hon's passport was cancelled on 26 June 1999 by the Immigration Department (the Director). Subsequently, Yiu Hon lodged an appeal to the Appeal Board pursuant to section 10 of the Hong Kong Special Administrative Passports Ordinance. However the appeal was dismissed on 29 March 2000.

10. Yiu Hon applied to this Court on 22 June 2000 for leave to apply for judicial review, seeking relief to quash the decision of the Director of Immigration to cancel his HKSAR passport and to order the Director to return his HKSAR passport.

11. I allowed Yiu Hon's application and leave was granted for him to apply for judicial review in respect of the decision of the Director to cancel his HKSAR passport.

12. Section 3 of the Hong Kong Special Administrative Region Passports Ordinance Cap 539 provides that:

'(1) Subject to this Ordinance, the Director may upon an application for a passport issue a passport to the applicant.

(2) The Director shall not issue a passport to the applicant unless the applicant has satisfied all of the following conditions:-

(a) he is a Chinese citizen;

(b) he is a permanent resident of the Hong Kong Special Administrative Region; and

(c) he is a holder of a valid permanent identity card as defined in section 1A of the Registration of Persons Ordinance (Cap 177).

13. When Madam Cheng Oi Kwan applied for a HKSAR passport on behalf of Yiu Hon, she made the following declaration:-

"The child (Yiu Hon) is a Chinese national and no declaration of change of nationality has been made to the Immigration Department in respect of him."

14. The record shows that Yiu Hon was naturalized as a German national on 13 December 1990 with his parents and has settled in German for a long period of time.

15. According to the information supplied to the Immigration Department by the Consulate General of the Federal Republic of Germany in Hong Kong, a person who applies for naturalization into the German nationality, in general has to renounce his original nationality. Exemptions are possible in exceptional cases. Naturalization is only granted upon a personal application and according to the respective person's own free wish and will. If the applicant is under 16 years of age, his application will be pronounced by his legal guardian (in general both parents). Any declaration given by the legal guardian in the course of the application is considered binding on the applicant.

16. On the grounds that Yiu Hon was born in Germany and naturalized as a German national, and that he has settled in Germany, the Director decided that he had lost his Chinese nationality under the Chinese Nationality Law. Therefore he was not a Chinese national and was not entitled to the issue of a HKSAR passport

17. The declaration made by Madam Cheng Oi Kwan that Yiu Hon was a Chinese national when she applied on behalf of Yiu Hon for the issue of a HKSAR passport is a false declaration. Therefore, the Director is entitled to cancel the HKSAR passport of Yiu Hon.

18. In this judicial review application, this Court has to decide whether the stance of the Director is lawful and correct.

19. According to Article 154 of the Basic Law, the Central People's Government shall authorize the Government of the Hong Kong Special Administrative Region to issue, in accordance with law, passports of the Hong Kong Special Administrative Region of the People's Republic of China to all Chinese citizens who hold permanent identity cards of the Region. A holder of the Hong Kong Special Administrative Region passport must be a Chinese citizen holding a permanent identity card of the Region.

20. The Hong Kong Special Administrative Region Passports Ordinance was also enacted on the basis of the Basic Law.

21. The Nationality Law of the People's Republic of China (Chinese Nationality Law) stipulates that:

"Article 3: The People's Republic of China does not recognize dual nationality for any Chinese national.

Article 9: Any Chinese national who has settled abroad and who has been naturalized as a foreign national or has acquired foreign nationality of his own free will shall automatically lose Chinese nationality."

22. Article 3 and Article 9 of the Chinese Nationality Law are in clear and unambiguous terms. The basic principles listed out therein are straightforward and obvious.

23. However Hong Kong has a set of circumstances unique to herself. For some 150 years before 1 July 1997 when China resumed its exercise of sovereignty over Hong Kong, Hong Kong was a British 'colony'. People born in Hong Kong or had been naturalized as British nationals all had British nationality.

24. In the early 90's of the twentieth century, the British Government also amended its nationality laws to allow a small number of Hong Kong residents to acquire British citizenship through 'British Nationality Selection Scheme' and they would also be entitled to the issue of British passports.

25. If Hong Kong is regarded as a foreign place and the relevant clauses of the Chinese Nationality Law are applied to the above people, they may automatically lose their Chinese nationality because of the British nationality that they have acquired.

26. The stance of China in respect of Hong Kong is clear. She does not recognize the unfair treaties signed by the Qing Government under coercion by Britain when she invaded China in the 19th century. Those treaties included the Treaty of Nanking signed on 29 August 1842 which ceded the Island of Hong Kong perpetually, the Convention of Peking signed on 24 October 1860 which ceded perpetually the part of Chinese territory from the south of the Boundary Street on the Kowloon Peninsular, and the Convention respecting an Extension of Hong Kong Territory signed at Peking on 9 June 1898 which 'leased' the territory from the south of Shenzhen river to the north of Boundary Street and the surrounding islands, large and small, for a period ending on 30 June 1997.

27. The standpoint of the Chinese government in respect of Hong Kong has all along been that Hong Kong has never ceased to be part of the territory of China and the concept of colonial territory is not applicable to Hong Kong.

28. Shortly after China had regained its seat in the United Nations, Mr. Huang Hua, the then Chinese Permanent Representative to the United Nations, on 8 March 1972 sent a letter to the Chairman of the United Nations Special Committee on De-colonization declaring specifically that, "the questions of Hong Kong and Macau belong to the category of questions resulting from the series of unequal treaties left over by history, treaties which the imperialists imposed on China. Hong Kong and Macau are part of Chinese territory occupied by the British and Portuguese authorities. The settlement of the questions Hong Kong and Macau is entirely within China's sovereign right and do not at all fall under the ordinary category of colonial territories."

29. The position of the Chinese government in respect of the question of Hong Kong won international support. In the United Nations Assembly in November 1972, the United Nations passed a resolution to remove the names of Hong Kong and Macau from the list of colonies by a vote of 99 to 5.

30. The government of China has never recognized the British nationality possessed by people born in Hong Kong by virtue of their place of birth, nor the British nationality acquired by any other people through naturalization in Hong Kong, still less the British nationality acquired through the above 'British Nationality Selection Scheme'.

31. Similarly, the government of China does not recognize the 'British Dependent Territories Citizens passport' or 'British Nationals (Overseas) passport' issued to the Hong Kong residents by the British Government as the valid identity document of one's nationality, and 'British passport' issued through the 'British Nationality Selection Scheme' is not recognized either.

32. All Hong Kong Chinese compatriots holding such passports are nonetheless Chinese nationals. The Chinese government does not oppose to the above-mentioned people using the passports as valid travel documents for the purpose of travelling to other countries or territories outside China. However, they shall not be entitled to British consular protection in the Hong Kong Special Administrative Region or any other parts of the People's Republic of China.

33. When Britain and China discussed the way to handle the status of those Hong Kong people with British nationality during the meeting on the settlement of the question of Hong Kong, it was obvious to all that they could not reach any consensus.

34. In the Joint Declaration signed by the two countries on 19 December 1984, there is no agreement at all on the way to handle those Hong Kong people having British nationality. The two countries only stated their stances by an exchange of memoranda.

35. The contents of the United Kingdom Memorandum are as follows:-

"In connection with the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the question of Hong Kong to be signed this day, the Government of the United Kingdom declares that, subject to the completion of the necessary amendments to the relevant United Kingdom legislation:

(a) All persons who on 30 June 1997 are, by virtue of a connection with Hong Kong, British Dependent Territories citizens (BDTCs) under the law in force in the United Kingdom will cease to be BDTCs with effect from 1 July 1997, but will be eligible to retain an appropriate status which, without conferring the right of abode in the United Kingdom, will entitle them to continue to use passports issued by the Government of the United Kingdom. This status will be acquired by such persons only if they hold or are included in such a British passport issued before 1 July 1997, except that eligible persons born on or after 1 January 1997 but before 1 July 1997 may obtain or be included in such a passport up to 31 December 1997.

(b) No person will acquire BDTC status on or after 1 July 1997 by virtue of a connection with Hong Kong. No person born on or after 1 July 1997 will acquire the status referred to as being appropriate in sub-paragraph (a).

(c) United Kingdom consular officials in the Hong Kong Special Administrative Region and elsewhere may renew and replace passports of persons mentioned in sub-paragraph (a) and may also issue them to persons, born before 1 July 1997 of such persons, who had previously been included in the passport of their parent.

(d) Those who have obtained or been included in passports issued by the Government of the United Kingdom under sub-paragraphs (a) and (c) will be entitled to receive, upon request, British consular services and protection when in third countries.

Beijing, 19 December 1984."

And the Chinese Memorandum states:-

"The Government of the People's Republic of China has received the memorandum from the Government of the United Kingdom of Great Britain and Northern Ireland dated 19 December 1984.

Under the Nationality Law of the People's Republic of China, all Hong Kong Chinese compatriots, whether they are holders of the "British Dependent Territories citizens' Passport" or not, are Chinese nationals.

Taking account of the historical background of Hong Kong and its realities, the competent authorities of the Government of the People's Republic of China will, with effect from 1 July 1997, permit Chinese nationals in Hong Kong who were previously called "British Dependent Territories citizens" to use travel documents issued by the Government of the United Kingdom for the purpose of travelling to other states and regions.

The above Chinese nationals will not be entitled to British consular protection in the Hong Kong Special Administrative Region and other parts of the People's Republic of China on account of their holding the above-mentioned British travel documents.

Beijing, 19 December 1984."

36. With a view to resolve any possible misunderstanding arising from the above Memoranda and the Chinese Nationality Law, and to settle any questions springing up in the wake of the 'British Nationality Selection Scheme', the Nineteenth Session of the Standing Committee of the Eighth National People's Congress on 15 May 1996 adopted the Explanations on some questions concerning the implementation of the Chinese Nationality Law (hereinafter as 'the Explanations'). 'The Explanations' are as follows:

"EXPLANATIONS OF SOME QUESTIONS BY THE
STANDING COMMITTEE OF THE NATIONAL
PEOPLE'S CONGRESS CONCERNING THE
IMPLEMENTATION OF THE NATIONALITY LAW OF THE PEOPLE'S
REPUBLIC OF CHINA IN THE HONG
KONG SPECIAL ADMINISTRATIVE REGION

(Adopted at the Nineteenth Session of the Standing Committee of the
Eighth National People's Congress on 15 May 1996)

According to Article 18 of and Annex III to the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, the Nationality Law of the People's Republic of China shall be applied in the Hong Kong Special Administrative Region from 1 July 1997. Taking account of the historical background and the existing circumstances of Hong Kong, the Standing Committee gives the following explanations concerning the implementation in the Hong Kong Special Administrative Region of the Nationality Law of the People's Republic of China-

1. Where a Hong Kong resident is of Chinese descent and was born in the Chinese territories (including Hong Kong), or where a person satisfies the criteria laid down in the Nationality Law of the People's Republic of China for having Chinese nationality, he is a Chinese national.

2. All Hong Kong Chinese compatriots are Chinese nationals, whether or not they are holders of the "British Dependent Territories Citizens passport" or "British Nationals (Overseas) passport". With effect from 1 July 1997, Chinese nationals mentioned above may, for the purpose of travelling to other countries and territories, continue to use the valid travel documents issued by the Government of the United Kingdom. However, they shall not be entitled to British consular protection in the Hong Kong Special Administrative Region and other parts of the People's Republic of China on account of their holding the above mentioned British travel documents.

3. According to the Nationality Law of the People's Republic of China, the British Citizenship acquired by Chinese nationals in Hong Kong through the "British Nationality Selection Scheme" will not be recognized. They are still Chinese nationals and will not be entitled to British consular protection in the Hong Kong Special Administrative Region and other parts of the People's Republic of China.

4. Chinese nationals of the Hong Kong Special Administrative Region with right of abode in foreign countries may, for the purpose of travelling to other countries and territories, use the relevant documents issued by the foreign governments. However, they will not be entitled to consular protection in the Hong Kong Special Administrative Region and other parts of the People's Republic of China on account of their holding the abovementioned documents.

5. If there is a change in the nationality of a Chinese national of the Hong Kong Special Administrative Region, he may, with valid documents in support, make a declaration at the authority of the Hong Kong Special Administrative Region responsible for nationality applications.

6. The Government of the Hong Kong Special Administrative Region is authorized to designate its Immigration Department as the authority of the Hong Kong Special Administrative Region responsible for nationality applications. The Immigration Department of the Hong Kong Special Administrative Region shall handle all nationality applications in accordance with the Nationality Law of the People's Republic of China and the foregoing provisions."

37. Mr. Pun, Counsel for Yiu Hon says in his submission that according to Article 67 of the Constitution of the People's Republic of China, the Standing Committee of the National People's Congress not only has the power to interpret the law, but also the power to partially supplement and amend, when the National People's Congress is not in session, laws enacted by the National People's Congress.

38. He argues that 'the Explanations' have in fact amended Article 9 of the Chinese Nationality Law and caused the Article to lose its effect.

39. He also points out that Section 2 of the Hong Kong Special Administrative Region Passports Ordinance clearly sets out that " 'Chinese citizen' means a person of Chinese nationality under the Nationality Law of the People's Republic of China, as implemented in the Hong Kong Special Administrative Region in accordance with the Explanations of Some Questions by the Standing Committee of the National People's Congress Concerning the Implementation of the Nationality Law of the People's Republic of China in the Hong Kong Special Administrative Region adopted at the 19th meeting of the Standing Committee of the National People's Congress at the 8th National People's Congress on 15 may 1996."

40. Mr. Pun, the Counsel, says that Clause 2 of 'the Explanations' states that:

"All Hong Kong Chinese compatriots are Chinese nationals, whether or not they are holders of the 'British Dependent Territories Citizens passport' or 'British Nationals (Overseas) passport'.

41. Mr. Pun, emphasizes that Yiu Hon is of Chinese descent. He is a holder of Hong Kong permanent identity card and China Re-entry Permit, and has the right of abode in Hong Kong. His parents are also permanent Hong Kong residents. Therefore Yiu Hon is a 'Hong Kong Chinese compatriot'. According to Clause 2 of 'the Explanations', Yiu Hon is a Chinese national and is therefore entitled to a Hong Kong Special Administrative Region passport.

'Compatriots' is a general term which refers to people of the same consanguinity (see 'Fa Xue Ci Hai' edited by Li Wei Min) or the same country (see 'Ci Hai - 1' 1989 edition). Therefore all people of Chinese descent may be collectively called Chinese compatriots.

42. But does the Hong Kong Chinese compatriots in 'the Explanations' refer to anyone in general who is or was related to Hong Kong in some way and of Chinese descent, or does the term refer specifically to a particular class of people?

43. The key issue to be addressed in this matter is: who should fall within the category of 'Hong Kong Chinese compatriots'.

'The Explanations' does not give any interpretation to the term 'Hong Kong Chinese compatriots'. There are no persuasive authorities or writings to help the Court to decide which category of people are 'Hong Kong Chinese compatriots'.

44. Miss Kwok, Counsel for the Director of Immigration Department, asserts that 'Hong Kong Chinese compatriots' refers to 'Hong Kong Chinese nationals'. It would be nondescript from a rhetoric or grammatical point of view to say that all 'Hong Kong Chinese nationals' are 'Chinese nationals', so it is written in the Explanations that all 'Hong Kong Chinese compatriots' are 'Chinese nationals'.

45. The above argument is far from convincing, it also renders 'the Explanations' meaningless. The Court is of the view that to address the key issue in this case, no ruling is required in respect of this argument.

46. Article 67 of the Constitution of the People's Republic of China vests power on the Standing Committee of the National People's Congress to interpret the laws and to partially supplement and amend laws when the National People's Congress is not in session. However such supplement and amendment is allowed 'provided that the basic principles of these laws are not contravened.'

47. This must be borne in mind when one is deliberating over the correct meaning of the term.

48. Article 8 of the Basic Law stipulates that:

"The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region."

49. The Chinese Nationality Law is national law and has been implemented in the Hong Kong Special Administrative Region with effect from 1 July 1997 by virtue of Annex III of the Basic Law.

50. When deliberating the legal issues arising from the Chinese Nationality Law, of course the Court should employ common law concepts and principles. But the questions concerning the Chinese Nationality Law are unique, there will be no precedents and few authorities on the questions of Chinese Nationality Law in other common law jurisdictions. Under these circumstances, to refer to the authorities and writings on Chinese Nationality law published in China with a view to determine the underlying principles and the legislative intent of the National People's Congress is only proper and beyond reproach. The Court is also entitled to do so. Of course the approach to be taken should not contravene the legal principles of the common law.

51. It has already been mentioned above that Article 9 of the Chinese Nationality Law is clear and unambiguous and the basic principles are explicit: Any Chinese national who has settled abroad and who has been naturalized as a foreign national or has acquired foreign nationality of his own free will automatically lose Chinese nationality.

52. Before the promulgation of the Chinese Nationality Law in 1980, the approach of the Chinese Government to the question of overseas Chinese having dual nationality was consistent with the basic principles stated above.

53. In Modern Nationality Law (Editors-in chief: Li Shuang Yuan and Jiang Xin Qu, Hu Nan People's Publisher), the question of the dual nationality of overseas Chinese is discussed in page 128:

"As mentioned before, the doctrine of determining nationality by descent has been the traditional concept governing the question of nationality in China. There are more than millions and millions of overseas Chinese all over the world, and most of them live in the southeast Asian area. According to the doctrine of determining nationality by descent, children born of overseas Chinese will acquire Chinese nationality automatically, regardless of their places of birth and the fact that their parents may be the descendents of Chinese who have lived overseas for several generations. For the overseas Chinese who have settled in certain European countries and Japan which adopt the same doctrine of determining nationality by descent, they generally only have Chinese nationality. The clash of nationality will not arise in those countries. However in countries such as America and England and countries which were once American or British colonies, examples being southeast Asian countries, the question of dual nationality inevitably arises as they determine the nationality of a person by his place of birth. It is because children born of overseas Chinese in those countries will be given, on one hand, Chinese nationality by the Chinese government according to its doctrine of determining the nationality by descent, and on the other hand, the nationality of the place of birth by the country where they are born."

54. The principle adopted by the Chinese government in dealing with the problem of dual nationality of overseas Chinese can be seen in the treaties it signed with countries such as Indonesia, Malaysia and Thailand, etc.

55. China signed 'Treaty on the Question of Dual Nationality' with Indonesia on 22 April 1955. It is stipulated that:

'Clause 1. The two signatories agree that a person who has both the nationalities of the People's Republic of China and the Republic of Indonesia must choose, on a voluntary basis, either the nationality of the People's Republic of China or the nationality of the Republic of Indonesia.......

Clause 2. Any person who has the above two nationalities and intends to retain the nationality of the People's Republic of China must make a declaration of renunciation of the nationality of the Republic of Indonesia to the relevant authority of the People's Republic of China. He is deemed to have chosen the nationality of the People's Republic of China of his free will after the declaration. Any person who has the above two nationalities and intends to retain the nationality of the Republic of Indonesia must make a declaration of renunciation of the nationality of the People's Republic of China to the relevant authority of the Republic of Indonesia. He is deemed to have chosen the nationality of the Republic of Indonesia of his free will after the declaration. ......

Clause 4. The signatories agree that any person who has both nationalities as described in Clause 1 and who has chosen the nationality of the People's Republic of China as provided in this Treaty has automatically lost the nationality of the Republic of Indonesia. Any person who has both nationalities as described in Clause 1 and who has chosen the nationality of the Republic of Indonesia as provided in this Treaty has automatically lost the nationality of the People's Republic of China. ......'

56. The Joint Communiques signed by China with Malaysia and Thailand respectively on 31 May 1974 and 1 July 1975 have similar provisions.

57. Article 5 of the Joint Communique signed between China and Malaysia states as follows:

" It is noted by the Government of the People's Republic of China that Malaysia is a multi-ethnic nation comprising of people of Malay or Chinese decent or otherwise. Both the Government of People's Republic of China and the Government of Malaysia declare that neither of them recognizes dual nationality. According to this principle, the Chinese Government considers that any person of Chinese decent who has been naturalized as a Malaysian national or has acquired Malaysian nationality of his own free will shall automatically lose Chinese nationality. As regards the overseas Chinese who of their own free will retain Chinese nationality, the Chinese Government, in accordance with its established policy, requests them to abide by the laws of Malaysia, respect local customs and live together amicably with the local people ......."

58. Article 8 of the Joint Communique signed between China and Thailand also has similar provision as follows:

" It is noted by the Government of the People's Republic of China that overseas Chinese in Thailand have over the past few centuries abided by the laws and customs of Thailand and lived together amicably with the people of Thailand. The Government of the People's Republic of China declares that it does not recognize dual nationality. Both governments consider that any person of Chinese nationality or of Chinese decent who has acquired Thai nationality shall automatically lose Chinese nationality. As regards overseas Chinese in Thailand who have chosen to retain Chinese nationality of their own free will, the Chinese Government, in accordance with its established policy, requests them to abide by the laws of Thailand, respect the customs of the people of Thailand and live together amicably with them ......"

59. The editor of Modern Nationality Law mentioned above has also stated China's policy on nationality at p.136: -

"....... there are also detailed provisions regarding the loss of Chinese nationality in our Nationality Law. Under Articles 9 and 10 of the Nationality Law, Chinese nationality will be lost through two different means:"

1. Automatic loss. Article 9 of the Nationality Law stipulates: " Any Chinese national who has settled abroad and who has been naturalized as a foreign national or has acquired foreign nationality of his own free will shall automatically lose Chinese nationality." This provision reflects the established policy of our government on nationality. It is the consistent policy of our government not to recognize dual nationality and it approves and encourages overseas Chinese to choose of their own free will the nationality of the country in which they reside. Overseas Chinese who have of their own free will acquired the nationality of the country in which they reside shall automatically lose Chinese nationality and become a national of that country. They will cease to have the status as a Chinese national and should owe their allegiance to the people and the country in which they reside."

60. The Chinese Nationality Law promulgated in 1980 is enacted in accordance with the basic principles stated above: (1) it does not recognize dual nationality of Chinese national; (2) Chinese national who has settled abroad and who has been naturalized as a foreign national or has acquired foreign nationality of his own free will automatically lose Chinese nationality. However, a Chinese national must satisfy these two conditions before he shall automatically lose Chinese nationality under Article 9 of the Chinese Nationality Law. Either one cannot do. The two conditions are as follows:

(1) Has settled abroad;

(2) Has been naturalized as a foreign national or has acquired foreign nationality of his own free will.

61. Accordingly, a Chinese national who has of his own free will been naturalized as a foreign national or has acquired foreign nationality will not lose Chinese nationality as long as he is still settled in China. Even for those Chinese nationals who have lost Chinese nationality by reason of having settled abroad and having been naturalized as a foreign national or acquired foreign nationality, they may have their Chinese nationality restored after they have returned and settled in China.

62. It is the consistent position of the Chinese Government that Hong Kong is a part of the territory of China, that China has never recognized the three unequal treaties forced upon her by Britain, and that people in Hong Kong are settled in Chinese territories instead of abroad and thus their status is different from that of the overseas Chinese who have settled abroad.

63. In Course of Study on the Hong Kong and Macao Basic Law (Editor-in chief: Xue Chong de, The People's University of China Press, p.272), the following comments are made:

"Owing to the particular historical background of Hong Kong and Macao, there exist some complications in ascertaining the nationality of their residents. Our government has always considered that the Chinese compatriots in Hong Kong and Macau are not overseas Chinese settled abroad and that they are Chinese nationals who have Chinese nationality. The Nationality Law of the People's Republic of China 1980 is an important document that provides the legal basis for the proper approach to the question on the nationality of Hong Kong and Macau residents. It provides in detail for the acquisition, loss and restoration of the People's Republic of China nationality. Annexes III to the two Basic Laws specify that the Law is one of the national laws to be applied in the Special Administrative Regions.

.........

(3) Loss of Chinese nationality

Article 9 of our Nationality Law stipulates that any Chinese national who has settled abroad and who has been naturalized as a foreign national or acquired foreign nationality of his own free will shall automatically lose Chinese nationality. As regards Chinese nationals who are not settled abroad, Article 10 of the Law stipulates that they may renounce Chinese nationality upon approval of their applications provided that they meet one of the following conditions: (1) they are near relatives of foreign nationals; or (2) they have settled abroad; or (3) they have other legitimate reasons. Article 11 stipulates that any person who applies for renunciation of Chinese nationality shall lose Chinese nationality upon approval of his application. Hong Kong and Macau are part of Chinese territories. Chinese nationals in Hong Kong and Macau are not overseas Chinese settled abroad and thus their Chinese nationality could only be lost upon application and approval."

64. Similar views were also expressed in General Principles of the Basic Law of the Hong Kong Special Administrative Region (Fu Xi Min, the Procurator of China Press, p.100)

" Since the establishment of the People's Republic of China in 1949, our government has repeatedly stated that Hong Kong is an inalienable part of the Chinese territories. Although it had not been placed under the effective governance of China over the past hundred years or so, Hong Kong compatriots have not, as a result, automatically lost Chinese nationality. On 12 February 1958, the Supreme People's Court of China specifically stated in the Review and Reply on the Question that Hong Kong and Macau Compatriots Cannot be Treated as Overseas Chinese that Chinese compatriots in Hong Kong and Macau are not overseas Chinese settled abroad; they cannot be treated as overseas Chinese and they are Chinese nationals and have Chinese nationality. On 10 September 1980, the Nationality Law of the People's Republic of China was adopted at the Third Session of the Fifth National People's Congress. Pursuant to Annex III to the Basic Law, the Nationality Law of the People's Republic of China shall be applied in Hong Kong with effect from 1 July 1997 and it thereby provides the legal basis for the proper approach to the question on nationality of Hong Kong residents."

65. It can be seen from the aforesaid that the status of nationality of Chinese compatriots settled in Hong Kong is clearly different from that of the overseas Chinese who are settled abroad. Compatriots who are settled in Hong Kong cannot be regarded as having settled abroad and they therefore would not lose Chinese nationality.

66. As the provisions of the Chinese Nationality Law applies in Hong Kong, the nationality of Hong Kong residents shall be dealt with in accordance with the Chinese Nationality Law. That being so, 'the Explanations' must be compatible with the provisions of the Chinese Nationality Law and they must not contradict or conflict with each other.

67. Having taken account of the particular historical background of Hong Kong and the established position of the Chinese Government on Hong Kong; and having considered the basic principles of the Chinese Nationality Law and that any approach to the Explanation shall not be inconsistent with such basic principles, the 'Hong Kong Chinese compatriots' referred to in Clause 2 of 'the Explanation' is 'the Chinese compatriots settled in Hong Kong', that is, the Hong Kong compatriots who have Chinese nationality. A permanent resident of Hong Kong who has settled abroad and who has been naturalized as a foreign national or has acquired foreign nationality of his own free will is not one of them.

68. To hold that a person is a 'Hong Kong Chinese compatriot' only because he is a Hong Kong permanent resident of Chinese decent, holding a permanent identity card with parents also being permanent residents of the Hong Kong Special Administrative Region, and to treat him as a Chinese national by reason of the above without paying regard to the fact that he has settled abroad and has acquired foreign nationality, is an approach which is inconsistent with the basic principles of the Chinese Nationality Law. Such approach fails to reflect the legislative intent of the National People's Congress and the intention of the Standing Committee when 'the Explanation' was made. Nor does it have regard to the Chinese Government's position in distinguishing Hong Kong and Macau compatriots from overseas Chinese.

69. Further, this approach is inconsistent with Section 3 of the Hong Kong Special Administrative Region Passports Ordinance, which provides that an applicant shall not be entitled to have a Hong Kong Special Administrative Region passport issued to him unless he has satisfied the three conditions: (a) he is a Chinese citizen; (b) he is a permanent resident of the Hong Kong Special Administrative Region; and (c) he is a holder of a valid permanent identity card.

70. I find that the 'Hong Kong Chinese compatriots' as referred to in line 1 of Clause 2 of 'the Explanations' are the Hong Kong compatriots who are settled in Hong Kong and have Chinese nationality. Otherwise, the Explanations will be inconsistent with the basic principles of the Chinese Nationality Law.

71. In order to be lawfully settled in Hong Kong, a Chinese national must, of course, be a permanent resident of Hong Kong under Article 24 of the Basic Law, and must come within the meaning of being 'settled in Hong Kong' as defined in Section 1(5) in Schedule 1of the Immigration Ordinance.

72. The speech made by Mr Qiao Xiao Yang, the Deputy Chairman of the Legislative Affairs Commission, at the Nineteenth Session of the Standing Committee of the Eighth National People's Congress clearly shows that the persons as referred to in Clause 2 of 'the Explanations' only include Hong Kong Chinese compatriots who are either holders of the 'British Dependent Territories Citizens passport' or 'British Nationals (Overseas) passport'. The following is the relevant part of the speech of Mr. Qiao:

"Due to historical reasons, the situation concerning the nationality of Hong Kong residents is exceptionally complicated. At present, apart from holding "British Dependent Territories Citizens passport" or "British National (Overseas) passports" issued by the British Government, a lot of Hong Kong residents of Chinese decent also hold other foreign passports. In 1990, the British Government, in breaking its promise, introduced the so-called "British Nationality Selection Scheme" and unilaterally decided to grant 225,000 Hong Kong Chinese compatriots British citizenship. The question on the nationality of Hong Kong residents thus becomes even more complicated. In what way can the status of Hong Kong residents as Chinese nationals be ascertained in accordance with the Chinese Nationality Law has become a major concern among different walks of life in Hong Kong as well as in international community. Hence, there is an urgent practical need to make clear certain questions concerning the Chinese Nationality Law when applied in the Hong Kong Special Administrative Region.

...........

(2) Questions concerning "British Dependent Territories Citizenship" and British Citizenship acquired through the "British Nationality Selection Scheme"

The question concerning the status of nationality of Hong Kong residents who are "British Dependent Territories Citizens" had already been resolved in the Memoranda exchanged by both Chinese and British Governments when they signed the Joint Declaration. As regards the "British Nationality Selection Scheme", we have long ago made it clear that we do not recognize the British Citizenship acquired by Chinese nationals in Hong Kong through the Scheme. Articles 2 and 3 of the Draft resolve the two questions in the form of law ........"

73. But as a matter of fact, looking at the wording of Clause 2 of 'the Explanation', it can still be arguable as to whether it is only applicable to Hong Kong Chinese compatriots holding 'British Dependent Territories Citizens passports' or 'British Nationals (Overseas) passports', and exclude Hong Kong Chinese compatriots holding other foreign passports.

74. Where a Hong Kong Chinese compatriot has been of his own free will naturalized as a foreign national or acquired foreign nationality other than British Dependent Territories citizenship or British citizenship, and is settled in Hong Kong holding a foreign passport other than British passport, can he continue to have or restore the status as a Chinese national under Clause 2 of 'the Explanation'? Is he required to make a declaration to the authority of the Hong Kong Special Administrative Region responsible for nationality applications under Clause 5 of 'the Explanation' before he can effectively change his nationality? The answers to the above questions are not clear. However, appropriate approach in dealing with them can be gleaned from the Notes for Guidance for Application for Hong Kong Special Administrative Region Passport printed by the Immigration Department.

75. In the column headed 'Who is eligible for a Hong Kong Special Administrative Region passport' in the Notes, it is stated as follows:

" 1. Who is eligible for a Hong Kong Special Administrative Region passport

A child is eligible to apply for a Hong Kong Special Administrative Region (HKSAR) passport if he/she is a Chinese citizen holding a permanent identity card of the Region and has the right of abode in the HKSAR. The application should be made by the child's parent or legal guardian.

Chinese nationality

A Chinese citizen is a person who has Chinese nationality under the Chinese Nationality Law. Under the 'Interpretation of Chinese Nationality Law when applied in the HKSAR' passed by the Standing Committee of the National people's Congress on 15 May 1996, all Hong Kong residents of Chinese decent who were born in Hong Kong or other parts of China, and others who fulfill the criteria for Chinese nationality laid down in the Chinese Nationality Law, are Chinese citizens. In respect of Hong Kong residents of Chinese decent who are also holding foreign passports, their position in the HKSAR will be as follows:

For persons settled in the HKSAR

For Hong Kong residents and former residents who are of Chinese decent and born in Hong Kong or other parts of China will be regarded as Chinese citizens notwithstanding that they hold or have held Hong Kong British Dependent Territories Citizen passports, British National (Overseas) passports; or any other foreign passports.

Those citizens holding foreign passports will have the option to declare a change of nationality with valid documentation to the HKSAR Immigration Department. Upon approval, they will no longer be regarded as Chinese citizens and can enjoy consular protection from the country of their declared nationality in the HKSAR. They will not be eligible for the HKSAR passports.

For persons settled abroad

Hong Kong residents (including former residents) who are of Chinese decent and born in Hong Kong or other parts of China and who have settled abroad and acquired foreign passports will be regarded as Chinese citizens if they return to Hong Kong to settle, unless they make a declaration of change of nationality to the HKSAR Immigration Department and the declaration has been approved.

(Note: 'Settled', in relation to a person's claim to the right of abode, means ordinarily resident in Hong Kong and not subject to any restriction on the period of stay in Hong Kong.)"

76. The above approach is consistent with the speech of Mr. Qiao Xiao Yang and properly reflects the true meaning of 'the Explanation'.

77. All the above clearly show that Clause 2 of 'the Explanation' is only applicable to 'Chinese compatriots settled in Hong Kong'.

78. Miss Kwok has expressed to me that she has reservations about the Hong Kong permanent resident status of Yiu Hon. Whether or not Yiu Hon can lawfully settle in Hong Kong is not a question that I have to resolve. Nor am I prepared to deal with the question as to whether Yiu Hon can return to settle in Hong Kong, and in accordance with 'the Explanation' to restore his status as a Chinese national. When necessary, the court would certainly make a decision according to all relevant information provided.

79. However, Yiu Hon was born and is settled in Germany. During the 10 years from March 1991 to January 2000, he returned to Hong Kong every year except for the years 1994, 1995 and 1997. But each time he stayed for a brief period and there is no evidence to show that he is prepared to settle in Hong Kong.

80. At present, Yiu Hon may be regarded as 'overseas Chinese' or 'overseas Chinese compatriot' or 'German Chinese compatriot'. But he is not a 'Hong Kong Chinese compatriot'. He is not settled in Hong Kong, 'the Explanation' is, therefore, not applicable to him. He is still subject to Article 9 of the Chinese Nationality Law.

81. Mr. Pun has also emphasized that the fact that Yiu Hon holds a Home Visit Permit shows that the Chinese Government recognizes Yiu Hon has the status as a Chinese national. I do not understand the principle on which the Chinese Government issued Yiu Hon a Home Visit Permit. However, under the principle of one county, two systems, the Government of the Hong Kong Special Administrative Region will not be subject to the decision of the Chinese Government on the above question. The Court shall decide whether or not Yiu Hon is still a 'Chinese national' in accordance with the Chinese Nationality Law and related provisions. The fact that Yiu Hon holds a Home Visit Permit has no direct bearing or significance on the matter in question.

82. Mr. Pun has also put forward another argument to support Yiu Hon's application. He argues that under Article 9 of the Chinese Nationality Law, a Chinese national shall lose Chinese nationality only when he 'has been naturalized as a foreign national or has acquired foreign nationality of his own free will'. As the decision for Yiu Hon to be naturalized and to acquire German nationality was made by his parents, it cannot be regarded as a decision made of his own free will. Accordingly, Yiu Hon has not lost his Chinese nationality.

83. I do not find this argument persuasive at all.

84. All matters relating to a minor, in particular, matters involving nationality and application of important documents would naturally be dealt with by his parents or legal guardian. This is internationally recognized and is only natural.

85. The minor must be bound by the decisions of his parents or legal guardian made on his behalf. Otherwise, none of the rules and regulations made under the nationality law or other laws can be enforced.

86. Article 14 of the Chinese Nationality Law has the following stipulation:

"Person who wish to acquire, renounce or restore Chinese nationality, with the exception of the cases provided for in Article 9, shall go through the formalities of application. Applications of persons under the age of 18 may be filed on their behalf by their parents or other legal representatives."

87. Naturalization as a foreign national or acquiring foreign nationality under the Chinese Nationality Law is something that happens in a foreign country. The Chinese Nationality Law certainly cannot expressly provide that the application of a minor may be made on his behalf by his parents or agent. Nevertheless, it clearly permits and recognizes application relating to nationality to be made on behalf of a minor by his parents or legal representative.

88. Miss Kwok has also relied on a number of authoritative Chinese writings to support the argument that the decision of the parents or legal representative in respect of nationality application on behalf of a minor is also binding on the minor.

89. In Compendium on Interpretation of the Laws of the People's Republic of China (China Yen Xi Press, 1996 Ed., p.138), there is an analysis on 'Naturalized and acquired of one's own free will' which says as follows:

"In accordance with the spirit of our nationality law and the principle that nationality of individual members of a family is independent of each other, the effect of automatic loss of nationality should only extend to the individual losing nationality and not to his family members. In respect of a minor child, his nationality will only be lost when and upon he acquires foreign nationality following his parents. ......"

90. Similar views on the Chinese Nationality Law are also shared in General Explanation of the Laws of the People's Republic of China (Jilin People's Press, 1993 Ed., p.841):

"The effect of automatic loss of Chinese nationality as prescribed under this Article (Article 9 of the Chinese Nationality Law) only extends to the individual losing nationality and not to the grown-up members of his family. As to its effect on the minor child, it is dependent on whether or not he has acquired foreign nationality following his parents. Where they have acquired foreign nationality following their parents, they will also automatically lose Chinese nationality. Otherwise, the state of their nationality will not be affected."

91. In Course of Study on Entry- Exit Administration compiled by the Political Department of the Public Security Bureau, the following views on the acquisition of foreign nationality of one's own free will are expressed at p.44: -

" ....... the so-called being naturalized as a foreign national of his own free will refers to the application by an individual. Where in the case of an individual acquiring foreign nationality in the ordinary course of events under the nationality law of the country where he is in (by reason of marriage, adoption, birth) and no objections having been raised by the individual or his guardian, it can be taken that the individual acquires the foreign nationality voluntarily. ......"

92. The above information shows that under the Chinese Nationality Law, parents or guardians have the right to deal with nationality matters on behalf of minors. Where a minor, having followed his parents or through arrangement of his parents, has acquired foreign nationality, he shall be deemed to have been naturalized as a foreign national or acquired foreign nationality of his own free will.

93. According to information provided by the Consulate General of the Federal Republic of Germany in Hong Kong, a child will not automatically acquire German nationality by reason of his parents' naturalization. Application for naturalization must be made by an applicant of his own free wish and will. Where an applicant is under 16, the application must be made by his legal guardian (in general, his parents), and the declaration made by his parents in application is binding on the applicant.

94. Mr. Pun has criticized the Director and the Appeal Board for having relied on the information provided by the Consulate General of the Federal Republic of Germany in determining whether or not Yiu Hon has been naturalized or acquired German nationality of his own free will. He strongly argues that this issue should be determined according to the Chinese Nationality Law.

95. I do not agree with his argument. Whether or not Yiu Hon has been naturalized as a German or acquired German nationality of his own free will is one of the facts of the case and that took place in Germany. Whether or not the case of Yiu Hon constitutes naturalization into and acquisition of German nationality under German law and regulations is certainly something relevant to the matter in question. It is reasonable and proper for the Director to have consulted the opinion of the relevant authority and taken account of the opinion in making the decision.

96. Besides, the Director is certainly entitled to make enquiries with relevant authorities so as to assist him in making a proper decision. In the course of making enquiries, the general rules of evidence do not apply since the Director is not dealing with a trial in court.

97. Unless the approach taken by the Director in making the decision is totally unreasonable, absurd or no reasonable administration would have taken such an approach, the court has no power to interfere with the decision of the Director in the proceedings of judicial review.

98. In the present case, the Director had already taken account of all relevant factors, including the Chinese Nationality Law and the information provided by the Consulate General of the Federal Republic of Germany in Hong Kong.

99. The Director had decided that the case of Yiu Hon constituted naturalization into or acquisition of foreign nationality under the Chinese Nationality Law. The decision is reasonable and was carefully made having taken account of all relevant circumstances. The Director is entitled to come to the decision and the Appeal Board should not be subject to criticism in affirming it.

100. Mr. Pun has further pointed out that the Director should not have recognized the status of the parents of Yiu Hon as Chinese nationals whilst denying the same to Yiu Hon.

101. I am not prepared to decide whether or not the parents of Yiu Hon have fulfilled the conditions required of a Chinese national as it has no direct relevance to the matter that I have to decide.

102. The parents of Yiu Hon have already been naturalized as Germans and have acquired German nationality of their own free will. That being the case, they have already lost their Chinese nationality and ceased to be Chinese nationals under the Chinese Nationality Law if they choose to settle in Germany.

103. Whether or not they have returned to Hong Kong and restored their Chinese nationality by reason of not having made declaration to the Immigration Department for change of nationality and not having been approved of it is, indeed, not a matter that I have to decide. When necessary, the court would certainly make an appropriate decision according to the relevant information provided.

104. Yiu Hon, however, cannot rely on the case of his parents to strengthen his application so as to enable him to obtain the rights not conferred on him by law.

105. I have carefully considered the case of Yiu Hon. He was born in Germany and is throughout settled in Germany without any breaks. He has also acquired German nationality. In the circumstances, Yiu Hon ceases to have Chinese nationality under the Chinese Nationality Law and is not a Chinese national. Accordingly, he is not entitled to have a Hong Kong Special Administrative Region passport issued to him. Nor does the Director have the power to lawfully issue to him a Hong Kong Special Administrative Region passport.

106. When Madam Cheng Oi Kwan made the application for a Hong Kong Special Administrative Region passport for Yiu Hon, she declared that Yiu Hon is a Chinese citizen. The declaration is neither true nor correct.

107. The decision of the Director to cancel the Hong Kong Special Administrative Region passport of Yiu Hon for the above reasons is correct and lawful.

108. The decision of the Appeal Board to affirm the Director's decision is also proper and reasonable.

109. There is no basis for me to overturn their decisions.

110. The application for judicial review by the applicant must be dismissed.

111. I also make an order that the applicant is to pay the Director costs of the proceedings, to be taxed if not agreed.

112. The above costs order nisi shall become absolute 14 days after the judgment is handed down. Should either party be dissatisfied with the order, application shall be made to court for a review within 14 days of the handing down of the judgment.

Representation:

Mr. Hectar Pun, instructed by Patrick Chan & Co, (assigned by DLA) for the applicant

The 1st Respondent, in person (absent)

Miss Nancy Kwok, Senior Government Counsel, for the 2nd Respondent

Remarks:
Appeal by the Applicant to the Court of Appeal. Appeal allowed. Please refer to the Appeal Judgment CACV000351X/2001.