Vallejos Evangeline Banao also known as Vallejos Evangeline B. v. Commissioner of Registration and Another
Read the full judgment text of HCAL 124/2010 on BabelCite. This High Court CFI judgment was delivered on 30 September 2011.
1. Article 24(2)(4) of the Basic Law provides that persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence shall be permanent residents of Hong Kong. The question to be decided in this case is whether a foreign domestic helper [“FDH”] can acquire right of abode in Hong Kong pursuant to this article. Though this
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HCAL 124/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 124 OF 2010 ____________
Before: Hon Lam J in Court Dates of Hearing: 22, 23 and 24 August 2011 Date of Judgment: 30 September 2011 ______________ J U D G M E N T ______________ 1.Article 24(2)(4) of the Basic Law provides that persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence shall be permanent residents of Hong Kong. The question to be decided in this case is whether a foreign domestic helper [“FDH”] can acquire right of abode in Hong Kong pursuant to this article. Though this case focuses on the position of the FDH, in the light of the legal submissions advanced before the court, it may also have implications as to other categories of persons specified in Section 2(4)(a) of the Immigration Ordinance. 2.Cases on right of abode often bring about debates amongst members of the public. Since the resumption of sovereignty over Hong Kong in 1997, there have been several cases of this nature. A decision in a right of abode case would inevitably have social, economic and political impact on the society. It is not surprising that people in Hong Kong are concerned as to the possible outcome. Neither is it surprising that the Government has to prepare for different contingencies based on its assessment of the potential impact. 3.The court respects the freedom of expression of our citizens. At the same time, public discussions on the case often go beyond the legal issues which the court can properly resolve in the litigation. Again this is not surprising since the socio-economic and political implications of a particular outcome necessarily transcend the legal analysis of the issues before the court. 4.But it is important that such public discussions should not be allowed to confuse the proper remit of the adjudicative function of the court in the case itself. In the performance of his judicial duty, a judge should always focus on, and only focus on, the legal merits of the issues which he or she has to determine. In this case, what is in issue before me is the constitutionality of Section 2(4)(a)(vi) of the Immigration Ordinance. The submissions of the parties revolve around the proper construction of Article 24(2)(4), in particular, the expression “ordinarily resided”. The proper construction of the expression is a question of law which has to be decided by way of legal analysis. My duty is to apply the law in resolving this question without regard to any other arguments based on politics or socio-economic considerations. 5.In the light of the public attention drawn to this case and the intensity with which the question of right of abode for foreign domestic helpers have been addressed at various quarters in the public arena, it is right that I should state clearly the nature of the judicial process at the outset. As mentioned, I can quite understand why this case generates so much public interest. I have no intention of stopping people from having discussion on the topic based on their own perspectives. However, what I should not allow to happen is to let such discussion influence this court in the process of judicial adjudication. Unlike the political process, the judicial process is not subject to any lobbying. It is important that judges are able to perform their judicial function independently, impartially and fearlessly. Our judicial oath requires judges to serve the Hong Kong Special Administrative Region conscientiously, dutifully, in full accordance with the law, honestly and with integrity, safeguard the law and administer justice without fear or favour, self-interest or deceit. 6.I say these not because I feel any pressure in the present case. As far as I am aware, the public discussions so far represent different views on the topic held by different persons and none of them seek to influence this court in the judicial process. But I believe it is opportune that this court should reiterate what I said in the preceding paragraphs as the independence of the Judiciary is fundamental to the confidence in our administration of justice. Therefore, it is important for the general public to understand that this judgment is concerned exclusively with the legal merits of the Applicant’s arguments. It is NOT a judgment on whether as a matter of social policy FDHs should be given the right of abode. Nor does this court have any power to rewrite Article 24(2)(4). This court’s duty is to construe the Article and apply it in accordance with its true meaning. The two systems of interpretation and the 1999 Interpretation 7.In respect of the proper approach to the construction of the Basic Law, the Court of Final Appeal has laid down the relevant principles in several cases. Though the courts in Hong Kong are authorized by Article 158(2) and (3) to interpret the provisions of the Basic Law in adjudicating cases, the Standing Committee of the National People’s Congress [“the Standing Committee”] also has the power of interpretation of the Basic Law: Article 158(1) and (3) of the Basic Law and Article 67(4) of the Constitution of the People’s Republic of China. In Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300, the Court of Final Appeal acknowledged the power of the Standing Committee to interpret the Basic Law and the binding effect of such an interpretation. This was reiterated by Li CJ in Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211 at p.222G,
At p.222H, it was further accepted that,
8.In Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211, Li CJ referred to the difference between the mainland system for interpretation of the Basic Law and the common law approach in Hong Kong. Subject to any interpretation already made by the Standing Committee, the Court of Final Appeal held that the courts in Hong Kong are bound to apply the common law in exercising their power of interpretation, see p.222C to E. 9.Thus, there are two different approaches to the interpretation of the Basic Law,
Since these are different approaches, there could be occasions where different conclusions may be reached under the two approaches. Though the Basic Law was enacted as a mini-constitution for Hong Kong, it is also a piece of legislation by the National people’s Congress of the People’s Republic of China. Given that most of the drafters of the Basic Law did not come from a common law background and judges in Hong Kong are not trained under the mainland system, it was deemed necessary for the Basic Law to provide for two systems of interpretation. As decided in Lau Kong Yung and reiterated again in Chong Fung Yuen, in the event of different answers provided by the two systems, the courts in Hong Kong are obliged to follow the interpretations by the Standing Committee. 10.In 1999, the Standing Committee interpreted Articles 22(4) and 24(2)(3) of the Basic Law [“the 1999 Interpretation”] and arrived at a different interpretation from the one adopted by the Court of Final Appeal in Ng Ka Ling. In the 1999 Interpretation, apart from dealing with those two articles, the following was also stated,
11.The effect of these parts of the 1999 Interpretation was considered in Chong Fung Yuen. At first instance, Stock J (as he then was) held that the only mechanism by which the mainland method of interpretation could have binding impact in Hong Kong is Article 158. Since the Standing Committee had not made an interpretation under that article in respect of Article 24(2)(1), these parts were an addendum of the interpretation on article 22(4) and 24(2)(3). For further reasons set out in [2000] 1 HKC 359 at p.383, His Lordship concluded that he was not bound by those paragraphs. 12.In the Court of Appeal, counsel for the Director accepted that there had not been any interpretation of article 24(2)(1) and no interpretation of that limb of article 24(2) had been sought (see [2000] 3 HKLRD 661 at p.670C; 675A; 685I) and these parts were relied upon as indicating the legislative intent for article 24(2)(1). In the light of that, the Court of Appeal refused to act upon those parts as if they were a binding interpretation by the Standing Committee on article 24(2)(1). 13.When the case reached the Court of Final Appeal, as stated above, the Chief Justice referred to the binding effect of an interpretation of the Standing Committee under Article 67(4) as well as Article 158. However, because of the concession by the Director that these paragraphs did not amount to a binding interpretation (see (2001) 4 HKCFAR 211 at p.223D to E), the court did not act on the same. 14.In the present case, Lord Pannick QC (who appeared for the Commissioner together with Mr Chow SC and Ms Sit) reserved the right to re-open the argument on the effect of the 1999 Interpretation when this case reaches a higher level. At first instance, counsel accepted that this court was bound by the decision of the Court of Appeal in Chong Fung Yuen that the 1999 Interpretation cannot be prayed in aid as a binding interpretation for Article 24(2)(4). In the light of this, I shall consider the issues in the present case on that basis. In accordance with the guidance given by the Court of Final Appeal in Chong Fung Yuen, in the absence of any binding interpretation by the Standing Committee, this court shall apply the common law approach to interpret Article 24(2)(4). Permanent residents and right of abode 15.Chapter III of the Basic Law sets out the fundamental rights and duties of the residents of the Hong Kong Special Administrative Region. However, the rights and duties of different categories of persons are not exactly the same. The Basic Law classifies the persons in Hong Kong into three different categories,
16.Some fundamental rights are only enjoyed by permanent residents: the right to vote and the right to stand for election under Article 26. Other fundamental rights are enjoyed by all residents and, by reason of Article 41, also by non-residents in accordance with law. 17.The major distinction between permanent and non-permanent resident is, however, the right of abode in Hong Kong. This is provided for under Article 24 of the Basic Law. Permanent residents are entitled to obtain permanent identity cards which state their right of abode. Non-permanent residents (and also non-residents) have no right of abode. 18.The distinction between non-permanent resident and non-resident depends on the qualification to obtain the Hong Kong identity card. Article 24(4) provides that non-permanent residents shall be persons who are qualified to obtain Hong Kong identity cards in accordance with the laws of the region but have no right of abode. The reference here is to identity cards, not permanent identity cards. 19.Who can obtain the identity card? This is not set out in the Basic Law. Rather, Article 24(4) refers to the laws of Hong Kong for determining who would qualify. The answer is to be found in the Registration of Persons Ordinance [“RPO”] Cap.177 and Registration of Persons Regulations [“RPR”]. Section 3 of the RPO requires every person in Hong Kong, unless exempted or excluded, to be registered in accordance with the RPR. Regulation 3 of the RPR requires every person in Hong Kong, unless exempted or excluded, to apply to be registered and apply for an identity card within 30 days of his entering Hong Kong. 20.Exempted persons are those exempted under regulation 25[1]. However, these people can still apply for identity cards if they so desire and if the Commissioner allows, see the proviso to regulation 25. 21.Hence, the only persons not qualified to obtain identity cards are the excluded persons specified under regulation 25A. These are, broadly speaking, the Vietnamese refugees and children of Chinese permanent residents of Hong Kong born out of Hong Kong and residing in the meantime in the mainland. 22.Right of abode is not defined in the Basic Law. In Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4 at p.34G, Chief Justice Li characterized this right as a core right. The substance of that right is spelt out in Section 2A of the Immigration Ordinance Cap.115 [“IO”]. It includes the right to land in Hong Kong, the right not to have imposed upon him any condition of stay, and the right not to be deported or removed. 23.In other words, a permanent resident would not be subject to any restriction in respect of his or her employment, place of residence and duration of stay in Hong Kong. 24.Article 24 provides for 6 different categories of persons who shall have the status of permanent residents. At issue in the present case is Article 24(2)(4),
25.There are four elements in Article 24(2)(4):
Further, it was held by the Court of Final Appeal in Fateh Muhammad v Commissioner of Registration (2001) 4 HKCFAR 278 that requirement (c) must be satisfied immediately before requirement (d). As regards requirement (d), the Court of Final Appeal held in Prem Singh v Director of Immigration (2003) 6 HKCFAR 26 that an applicant has to satisfy the Director that he intends to establish his permanent home in Hong Kong and that he has taken concrete steps to make Hong Kong, and Hong Kong alone, his place of permanent residence[2]. 26.The Applicant in the present case applied for a permanent identity card on the ground that she had satisfied these requirements. However, her application was rejected on the basis of Section 2(4)(a)(vi) of the IO. That sub-section laid down a rule that a person shall not be treated as ordinarily resident in Hong Kong for the purpose of the IO during any period in which he remains in Hong Kong in the specified circumstances. One of those circumstances being,
27.The Applicant came from the Philippines and she has been employed as a domestic helper in Hong Kong since 1986. After her application was rejected by the Commissioner of Registration in November 2008, she appealed to the Registration of Persons Tribunal. Her appeal was dismissed by the Tribunal in June 2010. The Tribunal found that but for Section 2(4)(a)(vi), the Applicant would have satisfied the four criteria. 28.By this judicial review application, the Applicant seeks to overturn the decisions of the Tribunal and the Commissioner. She challenges the constitutionality of Section 2(4)(a)(vi) and asks the court to rule that this provision in the IO is unconstitutional and has no effect. The Applicant 29.The Applicant was born in the Philippines in 1952. She is a Philippines national. She married a Philippines national in 1974 and they have five children. Her husband and four of her children are still residing in the Philippines. The youngest of her children was born in 1984. Her eldest son resides in Ireland. She and her husband jointly owned a property in the Philippines. She had also owned a mini store and a purified water business in the Philippines. 30.She first came to work in Hong Kong as a FDH in August 1986. She was granted permission to remain in Hong Kong until February 1987 to work as a FDH for a designated employer. Soon after she arrived, she registered for and was issued with a Hong Kong Identity Card. However, her contract with the designated employer was terminated within one month of her arrival. 31.In January 1987, the Applicant applied for an extension of stay in order to process an application for change of employer. The condition of stay was varied accordingly. She signed a new FDH contract with a new employer in February 1987. Her application for change of employer was approved on 30 March 1987 and she was issued with a re-entry visa for FDH employment with the new employer for six months. She continued to work as FDH for this employer in subsequent years under several contracts and the permission of stay granted to her was extended accordingly. 32.At the time when she applied for a permanent identity card, she was working for the same employer under a contract which ran up to 2009 and her permission to stay was extended to 17 April 2009 or two weeks after the termination of her employment contract, whichever was earlier. 33.During her employment as FDH in Hong Kong, she stayed and resided in her employers’ respective residences. By the time she applied for a permanent identity card, she had resided in Hong Kong for more than 22 years though she had returned to the Philippines upon the expiry of each of her FDH contracts (as required by the condition of renewal of her contracts). 34.The Tribunal further found as follows:
35.Her employer supported her application for the change of her status as he wanted to employ her to look after his store. He indicated to the Immigration Department that he would continue to provide accommodation to her upon the change of her status. The FDH policy 36.Since the 1970s, with the inadequate supply of local domestic helpers to meet the demand in Hong Kong, there has been substantial need for recruiting domestic helpers from other countries. These domestic helpers come from the Philippines, Indonesia, Thailand, Nepal, India, Pakistan and Sri Lanka. They came to be known as foreign domestic helpers and the Director of Immigration has established policy in permitting FDH to enter and work in Hong Kong. The policy includes the mandatory use of standard form FDH employment contract (the terms of which have been changed over the years). 37.According to the figures set out in the evidence of the Commissioner, in 1974 there were only 881 FDHs in Hong Kong. By 1986, the number of FDHs was increased to 28,951. By the end of 1990, there were 70,335 FDHs. As at 31 December 2010, there were 285,681 FDHs here. Amongst those 285,681 FDHs, 117,000 have been continuously working in Hong Kong for more than 7 years. 38.Under the FDH policy, permission for them to enter and stay in Hong Kong is tied in with their employment to a specified employer. The standard FDH employment contract is for a duration of two years. If a FDH’s employment was terminated prematurely, she is required to leave Hong Kong within 2 weeks after the termination. If a FDH renews her employment, she has to sign a new two-year FDH contract and applied for permission from the Director of Immigration for her re-entry and stay in Hong Kong after she has taken her mandatory prescribed period of vacation. The vacation should generally be taken before she started her new contract though, with the consent of her employer, a FDH can apply to the Director to defer the vacation. Even if deferral is granted, the vacation normally has to be taken within one year after the expiry of the old contract. 39.The policy was summarized in the Explanatory Notes issued by the Immigration Department in 1990 as follows,
40.In the Affidavit of Mr Yeung, the Acting Principal Immigration Officer in charge of the Visa Control (Policies) Division, he contrasted the different features of the visa control regime for FDHs and persons admitted under the General Employment Policy as follows at para.15,
41.I shall come back to some specific features of the FDH policy when I deal with the submissions of the parties. A brief historical survey 42.In the 1970’s, the expression “permanent resident” did not appear in our statute book. Instead, the IO had a definition of “Hong Kong belonger”. But there were already references to “ordinarily resident in Hong Kong”, e.g. in the definitions for “Chinese resident” and “resident United Kingdom belonger”[3]. Further, Section 2(4) of the IO already existed though at that time only those remained in Hong Kong unlawfully, in breach of a limit of stay and those imprisoned or detained were excluded from being “ordinarily resident in Hong Kong”. See Ordinance No.55 of 1971. 43.On 19 December 1984, the Chinese Government and the British Government signed the Sino-British Joint Declaration on the Question of Hong Kong [“the Joint Declaration”]. The Chinese Government declared its basic policies regarding Hong Kong in Article 3 and elaborated the same in Annex I. In Article 3(12), it was declared that the basic policies of the People’s Republic of China regarding Hong Kong would be stipulated in a Basic Law and they would remain unchanged for 50 years. 44.Section XIV of Annex I set out the categories of persons who shall have the right of abode in Hong Kong. For present purposes, the relevant category is stated as follows,
Though there was no reference to the expression “permanent resident”, Section XIV stipulated that these persons (together with other specified categories of persons) shall be qualified to obtain Hong Kong permanent identity cards in accordance with the law of Hong Kong. 45.Section XIV of Annex I also stipulated,
46.In order to ensure a smooth transfer of government in 1997 and with a view to the effective implementation of the Joint Declaration, pursuant to its Article 5 a Sino-British Joint Liaison Group [“JLG”] was set up. Annex II of the Joint Declaration provides for the establishment and function of the JLG. Paragraph 3 of Annex II defines the functions of JLG,
47.There was no reference to “right of abode” and “permanent resident” in the pre-1987 IO. In order to pave the way for the implementation of the basic policy in Section XIV, the IO was amended in 1987 to provide the statutory underpinning for these concepts. In moving for the Second Reading of the 1987 amendments, the Secretary for Security said the following,
48.The need to have such changes effected at that stage was explained in terms of facilitation of endorsement of travel documents and the implementation of the Joint Declaration. The Secretary said,
49.The Secretary then explained the changes introduced by the 1987 amendments. One important change highlighted was the extension of the right not to be deported to Chinese residents whilst previously such right was only enjoyed by Hong Kong belongers. 50.The Secretary further stated that the 1987 amendments would not be the final position. He said,
51.By the 1987 amendments, Section 2A which defines the right of abode in Hong Kong was added to the IO. A new First Schedule was introduced to replace the old one. The new First Schedule defined who shall be Hong Kong permanent residents who can enjoy the right of abode under Section 2A. Those people are,
52.The Basic Law was promulgated on 4 April 1990. The definition of permanent residents in Article 24 mirrored section XIV of Annex I to the Joint Declaration. The reference to the Hong Kong Government to apply immigration controls became Article 154(2). 53.I pause here to mention the submission of Ms Li that under the common law approach, post-enactment materials should not be relevant for the construction of the provisions of the Basic Law. On the other hand, Lord Pannick contended that the Court of Final Appeal did not completely rule out the relevance of post-enactment materials though the court should proceed cautiously. I shall discuss their competing submissions later. For the time being, I would just set out as a matter of fact as to what had happened after the promulgation of the Basic Law. The admissibility and relevance of these events for the purpose of construction will be dealt with later. 54.In a Note on Conditions of Stay for Foreign Domestic Helpers presented by the Government to the Executive Council, it was stated that despite the 1987 amendments of the IO, “the policy that foreign domestic helpers will not be eligible for unconditional stay remains unchanged”. Four reasons were given for this policy,
55.At the same time when the Basic Law was promulgated, the National People’s Congress decided that in 1996 a Preparatory Committee would be established and it would be responsible for preparing the establishment of the Hong Kong Special Administrative Region. On 9 August 1996, the Legislative Sub-group of the Preparatory Committee reported on its work on the implementation of Article 24(2). Opinions were drawn up “proposing an appropriate resolution to be made after scrutiny by the plenary session of the Preparatory Committee to provide a reference for the Hong Kong Special Administrative Region in mapping out the details of implementation.” 56.The report alluded to the definition of “ordinary residence” in the context of Article 24(2)(2) and (4) and said[4],
57.In respect of the FDHs, it was stated in the report,
58.The Opinions of the Legislative Sub-group was adopted by the Preparatory Committee on 10 August 1996 at its Fourth Plenary Meeting. For the purpose of implementing Article 24(2), the Opinions were provided “for the HKSAR to formulate the details of the implementation rules”. Paragraph 2 of the Opinions refer to people ordinarily resided in Hong Kong[5],
59.Reading the Opinions together with the Report, the specific government policies under (5) included government policy on FDHs. The Opinions were referred to in the 1999 Interpretation. 60.In April 1997, in a statement made by the Director of Immigration to the Legislative Council Security Panel, it was reported that agreement on the interpretation of Article 24 had been reached between the British and Chinese Governments. With regard to Article 24(2)(4), the agreement was, inter alias, that
61.These developments were summed up by the Secretary for Justice designated when she moved for the Second Reading of the1997 amendments of the IO (which added the section 2(4)(a)(vi), the subject of the current litigation) before the Provisional Legislative Council on 7 June 1997. She said,
Submissions of the Applicant 62.The main contention of Ms Li, as I understand it, can be summarized in terms of the following propositions,
63.She also made the following points in dealing with the submissions of Lord Pannick.
64.Counsel also relied on Article 25 of the Basic Law and Article 22 of the Hong Kong Bills of Right and contended that the Impugned Provision should be struck down as being discriminatory. Submissions of the Respondent 65.Lord Pannick advanced two principal arguments to uphold the constitutionality of the Impugned Provision. In addition, counsel also made submissions in respect of the admissibility of extrinsic materials to aid the construction of Article 24(2)(4) of the Basic Law. Lord Pannick emphasized in his oral submissions that the extrinsic materials are not to be considered independently. Rather, the materials are relied upon as contextual matters which support the two principal arguments. 66.The first principal argument of Lord Pannick is that the expression “ordinarily resided in Hong Kong” in Article 24(2)(4) is to be contrasted with those whose residence in Hong Kong is “out of ordinary”. Counsel submitted that this was the construction adopted by the Court of Final Appeal in Fateh Muhammad v Commissioner of Registration (2001) 4 HKCFAR 278. In the context of this article, which conferred a valuable status on a foreigner, a stricter meaning should be adopted for this expression (as compared with the same expression in the context of a tax statue). 67.Counsel said by reference to some features in the restrictions imposed upon a FDH her residence in Hong Kong is out of ordinary in the context of Article 24(2)(4) and the Impugned Provision merely set out specifically what would in any event be the position. Hence, like the statutory exclusion of a person serving a prison sentence from the scope of “ordinary resided in Hong Kong” under Section 2(4)(b) of the IO (upheld by the Court of Final Appeal in Fateh Muhammad), there is no inconsistency between the Impugned Provision and Article 24(2)(4). 68.The features relied upon are as follows,
69.Counsel said these restrictions were designed to ensure that FDHs would maintain genuine links in their own country and reflected the clear policy of the Government that FDHs are not admitted for settlement and do not form part of Hong Kong’s permanent population. 70.The second principal argument of the Respondent is that Article 24(2)(4) should be construed in the light of the power given under Article 154(2) to the Government of Hong Kong to apply immigration controls on entry into, stay in and departure from Hong Kong by persons from foreign states and regions. Given the purpose of immigration controls as expounded by A Cheung J (as he then was) in MA v Director of Immigration HCAL 10 of 2010, 6 January 2011, para.97 and the theme of continuity, bearing in mind the pre-1997 position of the FDHs, a purposive construction of the Basic Law leads to the conclusion that Article 154(2) authorizes the Government of Hong Kong to introduce and maintain the Impugned Provision to regulate the entry of FDHs into Hong Kong and their stay here is permitted on condition that they do not acquire any right of abode. 71.At paragraph 64 of his written submissions, Lord Pannick put his case on the second principal argument as follows,
72.In his oral submissions, Lord Pannick emphasized he did not argue that the Hong Kong legislature has unlimited power to define “ordinary residence”. Counsel accepted that ultimately the construction the Basic Law is a matter for the court. However, counsel submitted that construing Article 24(2)(4) in context, in particular having regard to Article 154(2), the Hong Kong legislature is authorized to define and clarify what are the exceptional cases where a foreigner’s residence in Hong Kong falls outside the scope of “ordinary residence”. Insofar as the resulting legislation is not unreasonable in the public law sense, the court would not rule the same as unconstitutional. Counsel also contended that in the context of immigration control, the legislature enjoys a wide margin of discretion. 73.As regards the admissibility of extrinsic materials, Lord Pannick submitted that there were at least ambiguities in the meaning of “ordinarily resided” in Article 24(2)(4) and whether power had been conferred upon the Hong Kong legislature to enact the Impugned Provision under Article 154(2). Extrinsic materials are therefore admissible to show the legislative intent for these articles. Counsel said there was a clear consensus between the Chinese and British governments on the interpretation of the corresponding provision identifying the permanent residents of Hong Kong in the Joint Declaration and, unless precluded by clear wordings in the Basic Law, such interpretation should be adopted in the light of the relationship between the Joint Declaration and the Basic Law. By reason of the status of the Joint Declaration as a treaty, counsel invited the court to have regard to some post-1990 materials on the basis of Article 31(2) and (3) of the Vienna Convention on the Law of Treaties 1969. Counsel also submitted that the Joint Declaration and other developments evidenced by the extrinsic materials must have been present in the mind of the draftsman of the Basic Law and they are therefore relevant in ascertaining the purpose and context of Article 24(2)(4)[6]. 74.Counsel said, having regard to the relevant history up to 1997, there was harmony between the British and Chinese governments in holding the common view that specific class of persons can be excluded by the IO from the scope of ordinary residence and that FDHs form one of the excluded category. 75.Lord Pannick also made submissions on the challenge based on discrimination. The common law approach to construction of the Basic Law and its application in earlier Court of Final Appeal cases on other limbs of Article 24(2) 76.In the light of the competing submissions advanced before this court, the ultimate issue is the proper construction of Article 24(2)(4) of the Basic Law, in particular the meaning of the phrase “ordinarily resided in Hong Kong”. As I understand, Lord Pannick did not suggest that any provisions in the IO can override the true meaning given to that phrase in the Basic Law. Instead, he sought to persuade this court that the Impugned Provision is perfectly consistent with the correct interpretation of Article 24(2)(4). He did so by his two principal arguments. 77.Neither did Lord Pannick dispute that, subject to any potential interpretation by the Standing Committee (and also arguments as to the effect of the 1999 Interpretation), interpretation of the Basic Law is a matter for the courts. Chief Justice Li emphasized the role of the court in this regard in Ng Ka Ling at p.25H to J,
78.Counsel have reminded this court on the proper approach in the interpretation of the Basic Law. A useful starting point is the judgment of the Chief Justice in Ng Ka Ling at p.28 to 29. Though it has been quoted many times, the following paragraphs are worth repeating,
79.The Chief Justice then referred to the provisions in Chapter III of the Basic Law. It is noteworthy that a distinction was drawn between the generous interpretation of the constitutional guarantees for fundamental freedoms and rights in Chapter III and the definition of Hong Kong residents. As to the latter, His Lordship said at p.29B to C,
80.Ng Ka Ling is primarily a case about the fundamental right, viz. the right of abode, instead of the definition of permanent residents. This is apparent from the judgment at p.34C,
81.But this is subject to an exception. Amongst the cases dealt with in that judgment, there was a case of Miss Cheung in which her status of permanent resident was disputed because she was born out of wedlock. This particular issue was dealt with at p.40-43. Chief Justice Li said at p.41B,
82.At p.41H to I, His Lordship considered the argument based on the reservations made by the United Kingdom in the ratification of the ICCPR in respect of immigration matters in relation to Hong Kong. He said,
83.He then turned to consider the argument based on the agreement reached by the JLG as evidenced by the booklet published by the Immigration Department in April 1997, the same booklet now relied upon by Lord Pannick. Counsel for the Director in Ng Ka Ling also relied upon Article 31 of the Vienna Convention. The court rejected the argument at p.42F to J in the following terms,
84.In respect of the main dispute in Ng Ka Ling, the question was whether art.22(4) of the Basic Law qualifies the right of abode in art.24(3). In that context, counsel for the Director placed reliance on the Joint Declaration and Annex I, Part XIV, in particular on the reference to the continuation of prevalent practice in 1984-85 of requiring exit permit for Mainland residents to come to Hong Kong. Chief Justice Li rejected the argument at p.35I,
85.The decision of the Court of Final Appeal in Ng Ka Ling on this main question was reversed by the Standing Committee in the 1999 Interpretation. As mentioned earlier in this judgment, this was the result of different answers being arrived at through two different systems of interpretation. 86.On the same day when the Court of Final Appeal delivered the judgment in Ng Ka Ling, it also delivered another judgment in relation to Article 24(2) in Chan Kam Nga v Director of Immigration (1999) 2 HKCFAR 82. That case concerned the question whether there is a “time of birth limitation” in Article 24(2)(3), see p.87D. Thus, it is a case on the definition of permanent residents. An argument was also advanced on behalf of the Director based on the agreement reached by the JLG. It was rejected by the court on, inter alias, the same grounds as set out in Ng Ka Ling, see p.91G to H. 87.The Court of Final Appeal returned to the construction of Article 24(2) again in Chong Fung Yuen. The question in that case was whether a Chinese citizen born in Hong Kong can become a permanent resident under Article 24(2)(1) notwithstanding that neither of his parents have settled nor have right of abode in Hong Kong. It was a case on the interpretation as to the definition of permanent residents. As mentioned earlier, it was accepted by the Director in the Court of Final Appeal that the 1999 Interpretation was not an interpretation on Article 24(2)(1). I have also alluded to the Court of Final Appeal’s endorsement of the common position of the parties in that case that in the absence of an interpretation by the Standing Committee the courts in Hong Kong should apply the common law in exercising their power of interpretation of the Basic Law. 88.On the common law approach, Chief Justice Li gave further guidance in Chong Fung Yuen in Section 6.3 of the judgment. The following paragraphs are often cited in subsequent cases,
89.The Chief Justice discussed about the materials that the court can refer to in the process of interpretation. At p.224D to G,
90.Despite any reference to extrinsic materials, the Chief Justice reiterated the primacy of the language used in the relevant provision to be construed. At p.224I to 225B,
91.This theme was picked up again when the court addressed an argument based on the Opinions of the Preparatory Committee in 1996 atp.233D to H. 92.The Chief Justice addressed on the use of materials other than pre-enactment materials relating to context and purpose at p.225B to E,
93.Though the court accepted that the context of Article 24(2)(1) includes the Joint Declaration and the background to it as far as immigration law was concerned (see p.231H), the reliance on the absence of immigration rights by birth in Hong Kong since 1983 was rejected. At p.232 F to H,
94.The Court of Final Appeal concluded that the meaning of the language of Article 24(2)(1), considered in its context and purpose, was clear and unambiguous and not reasonably capable of sustaining competing alternative interpretations. 95.On the same day when the judgment of Chong Fung Yuen was delivered, the Court of Final Appeal also decided Tam Nga Yin v Director of Immigration (2001) 4 HKCFAR 251. In that case, the question before the Court of Final Appeal was whether adopted children come within Article 24(2)(3) of the Basic Law. Hence, it was also a case on the definition of permanent residents. At p.258D to F, the court reiterated the common law approach,
96.The court identified the purpose of Article 24(2) in the next paragraph, at p.258G to H,
97.The court then turned to the context of Article 24(2)(3). In respect of the ICCPR, the Director relied on the reservation in respect of immigration matters to exclude its provision as part of the relevant context. The court rejected this submission. At p.261B to C,
98.The court concluded that the ICCPR and the domestic law relating to adopted children were part of the context and were of assistance, see p.262B to C. If the language of Article 24(2)(3) were ambiguous, the court would, by reason of such context, have to choose an interpretation that adopted children are included since that would be conducive towards achieving some measure of family union. But the majority of the court held that the language was not ambiguous. Thus, despite the context, the majority held that adopted children are not included in Article 24(2)(3). The two Court of Final Appeal decisions on Article 24(2)(4) 99.On the same day when the Court of Final Appeal delivered the judgments in Chong Fung Yuen and Tam Nga Yin, it also delivered the judgment in respect of a case on Article 24(2)(4). The case is Fateh Muhammad v Commissioner of Registration (2001) 4 HKCFAR 278. I have already referred to parts of this judgment in the above introduction on the requirements to be satisfied under Article 24(2)(4). 100.The case concerned a foreigner who had been in Hong Kong since the 1960s. He applied for permanent identity card in 1998 and was refused because he had served a prison sentence between 1994 and 1997. By reason of Section 2(4)(b) of the IO, he was not regarded as ordinary residence in Hong Kong during such period. Thus, the Commissioner took the view that he had not ordinarily resided in Hong Kong for a continuous period of not less than seven years immediately before he made his application. He challenged the constitutionality of Section 2(4)(b) unsuccessfully in the Court of First Instance and the Court of Appeal. His appeal was further dismissed by the Court of Final Appeal on the ground that Section 2(4)(b) is consistent with Article 24(2)(4). 101.As the general approach on interpretation of the Basic Law was fully canvassed in the judgments of Chong Fung Yuen and Tam Nga Yin delivered on the same day, the judgment in Fateh Muhammad focused on the interpretation of Article 24(2)(4). The challenge mount against Section 2(4)(b) was premised on its potentially width,
102.The submission was rejected by Bokhary PJ at p.283D to G. After disposing of the unlikely example of one day’s imprisonment, His Lordship continued,
103.Thus, a very narrow interpretation was given to Section 2(4)(b) and it was on this basis that the court eventually concluded that the section is constitutional. This aspect of the decision was highlighted again by Ribeiro PJ in the subsequent decision of Prem Singh at para.68 and by the Court of Appeal in the recent decision of Asif Ali v Director of Immigration CACV 87 of 2010, see the judgment of Fok JA. 104.Coming back to Fateh Muhammad, Bokhary PJ considered the meaning of “ordinarily resident” at p.283G to p.284F. The following paragraphs are of particular importance for present purposes,
105.His Lordship then adverted to the possibility of different meanings given to the expression in different contexts. After alluding to the situation in taxation, he returned to the context under Article 24(2)(4),
106.His Lordship went on to consider the “immediately before” requirement and concluded that it is constitutional through a purposive construction of Article 24(2)(4). At p.285B to D,
107.Bokhary PJ also held that arguments based on discrimination did not take the matter further. At p.285H,
108.The second case on Article 24(2)(4) was Prem Singh. As it shall be shown below, the decision has immense significance in testing the validity of Lord Pannick’s principal arguments. The case was about the constitutionality of the requirement under the then Schedule 1 para.3(1)(c) of the IO that an applicant for permanent residence has to be settled in Hong Kong, meaning that he was not subject to any limit of stay when the application was made. Thus, an applicant had to apply to the Director of Immigration for unconditional stay status first. Whether such application would be granted was a matter of discretion for the Director. Only when unconditional stay was granted could an applicant make an application for permanent residence. The Director sought to justify the requirement as part of the second limb of Article 24(2)(4), viz. having taken Hong Kong as his place of permanent residence [“the permanence requirement”]. The argument was rejected by the Court of Final Appeal. 109.Ribeiro PJ gave the majority judgment. His Lordship arrived at the conclusion that the unconditional stay requirement was unconstitutional by reference to the language and structure of Article 24(2)(4) at paras.55 to 66. The following points are of great importance for present purposes. 110.First, Ribeiro PJ affirmed that a fair and reasonable statutory scheme for the proper verification of a person’s claim to right of abode is constitutional and that until such claim is verified the applicant does not enjoy the rights of a permanent resident, see para.56. The unconditional stay requirement was held to be an additional requirement of substance and as such unconstitutional. The necessary implication is that it falls outside the purview of a fair and reasonable measure for verification. 111.In this respect, Bokhary PJ (who dissented on the de minimis issue) expressed similar sentiment at para.4,
And then at para.8,
112.Second, Ribeiro PJ identified the limit to the discretion of the Director of Immigration at para.63,
113.On the discretion of the Director, Bokhary PJ had this to say at para.3,
114.Third, Ribeiro PJ considered the permanence requirement by contrasting it with the ordinary residence requirement at paras.64 to 66. In the course of so doing, His Lordship had to construe the meaning of ordinary residence. At para.65, His Lordship adopted the Shah test (set out above when I referred to the submissions of Ms Li) and Lord Scarman’s elaboration on the term “settled purpose” in the test,
115.Then at para.66, Ribeiro PJ identified two respects demanded by the permanence requirement which are not to be found in the concept of ordinary residence,
In this connection, it should be noted that though paragraph 3(1) of Schedule 1 to the IO sets out certain information which an applicant for permanent resident status must provide, that paragraph has to be read as being subject to the Court of Final Appeal’s interpretation of the permanence requirement under Article 24(2)(4). Thus, although an applicant is required to furnish information as to whether the principal members of family are in Hong Kong, whether he has reasonable means to support himself and his family and whether he has paid any taxes, and these would be relevant information to be taken into account in applying the criteria laid down by Ribeiro PJ, it does not follow that an applicant’s application must fail if his family is not in Hong Kong or if he does not have adequate means to support himself. 116.Further light was shed on the concept of ordinary residence at para.75 when His Lordship discussed the de minimis rule.
117.In the judgment of Bokhary PJ, the purpose of Article 24(2)(4) was identified at para.24,
Extrinsic materials 118.I have referred to the judgments of the Court of Final Appeal in these cases extensively not only because they are binding on this court, but also because on proper analysis the principles derived from them have fully addressed the able and forceful arguments of Lord Pannick. I shall start by explaining why the extrinsic materials relied upon by the Commissioner could not offer much assistance under the common law approach. 119.Even though the Court of Final Appeal in Chong Fung Yuen did not rule out reference to post-enactment materials completely, it did say generally the relevant extrinsic materials are pre-enactment materials because the relevant purpose and context were established at the time of enactment. The Chief Justice gave a further reason for proceeding cautiously in respect of post-enactment materials: under the common law system, once enacted, interpretation of the Basic Law is a matter for the courts[8]. This approach stems from the cardinal principle as to the primacy of language in the common law approach to construction as emphasized by the Chief Justice in Chong Fung Yuen and Tam Nga Yin. 120.Therefore there has to be very cogent justification before the courts, applying the common law approach, can have regard to post-enactment materials. In the present case, Lord Pannick invited the court to have regard to the post-1990 materials on the basis that there were ambiguities in (a) the meaning of the expression “ordinarily resided”; and (b) whether the Basic Law authorizes the Hong Kong legislature to provide for the meaning of this expression. And the justification for admission of post-1990 materials was the Joint Declaration (it being part of the context for the Basic Law) and Article 31 of the Vienna Convention. 121.As regards the submission based on the Joint Declaration and Article 31 of the Vienna Convention, it has been rejected by the Court of Final Appeal in Ng Ka Ling and Chan Kam Nga. Even though those cases were not about the case of FDHs, the rationale and the materials referred to are the same insofar as admission of post-enactment materials is concerned. It is not open to this court to depart from the decision of the Court of Final Appeal. 122.In respect of the use of the 1996 Opinions to assist in the interpretation of the Basic Law, this court is bound by the decision of the Court of Final Appeal in Chong Fung Yuen, a decision made after the 1999 Interpretation. This must of course be subject to any arguments on the effect of the 1999 Interpretation which can only be canvassed at a higher level. 123.The submissions as to the ambiguities are in substance the two principal arguments which I shall analyse below. At this juncture, I would mention that the natures of the two alleged ambiguities are different and there is a tension between them. The alleged ambiguity as regards the Hong Kong legislature’s power and authority to define or clarify the meaning of ordinary residence in Article 24(2)(4) is not an ambiguity on the meaning of this expression in Article 24(2)(4) per se (though it has to be premised on the existence of such an ambiguity as otherwise there is no need for any definition or clarification). It is put forward as an ambiguity as to the authority of the Hong Kong legislature to provide such definition or clarification by way of legislation in the form of the Impugned Provision by reason of reading Article 24(2)(4) together with Article 154. The necessary implication of this argument is that before the IO was amended by the Hong Kong legislature in 1997 to define or clarify the meaning of “ordinarily resided”, the meaning of that expression had not yet been crystallized. On the other hand, as regards the first principal argument of Lord Pannick, the meaning of these words can be ascertained by reference to the extrinsic materials even before the enactment of the Impugned Provision. 124.If one examines the admissible extrinsic materials prior to the enactment of the Basic Law, there was no clear indication in the relevant context and purpose that Article 24(2)(4) would necessarily have a meaning encompassing a deeming provision in respect of the FDHs like the Impugned Provision. In this connection, in accordance with the guidance set out in Chong Fung Yuen,I accept the pre-enactment materials that I have referred to in my above brief survey of history as part of the admissible evidence of the context. 125.However, I am unable to accept the newspaper report of the comments of the convenor of the Sub-Group on Basic Rights and Duties of the Hong Kong residents under the Basic Law Drafting Committee [“the Sub-group”] in August 1986 and the views of the consultees regarding FDHs as relevant evidence on the context. The views of the consultees can hardly be of assistance. 126.With great respect to the convenor, I do not regard his reported view (even assuming that they were accurately reported by the newspaper) as expressing the finalized position of the drafters of the Basic Law so as to render his view to be of assistance. According to the newspaper report, the convenor himself indicated that,
127.The same observation can be made in respect of the views of the Basic Law drafters in 1988 that “the definition of residents” was “based on the legal system currently in force in Hong Kong”. Article 24(2)(4) was not an adoption of the current legal system as far as foreigner’s acquisition of the permanent resident status is concerned. Prior to 1997, only British or Commonwealth citizens can become permanent residents in Hong Kong[9]. After the resumption of sovereignty, Article 24(2)(4) extends such right to all foreigners. Though some views had been expressed by some individuals, the evidence did not establish that at that stage a fixed policy had been formulated collectively by either the drafters of the Basic Law or the National People’s Congress with regard to the FDHs. 128.The admissible extrinsic materials relied upon by the Commissioner suggested that at the time when the Basic Law was enacted, the implementation of the Joint Declaration on the question of permanent resident was a subject of discussion for the JLG. The 1987 amendments to the IO were agreed between the two governments as a transitional measure in the overall step-by-step approach towards the full implementation of the provisions in the Joint Declaration. There was no suggestion that by 1990 when the Basic Law was enacted there was agreement between the two governments on the having a provision in the IO to deal with the FDHs. 129.In respect of the relevance of the JLG materials, I note that in Chong Fung Yuen similar reliance was placed on them by the Director. Stock J considered the utility of such materials at p.376-377 of the report [2000] 1 HKC 359. At p.376G to I, His Lordship pinpointed the crucial issue by spelling out two different scenarios,
130.Then at p.377B to D, Stock J continued,
131.I have already referred to the judgment of the Chief Justice in Chong Fung Yuen. His emphasis on the legislative intent as expressed in the language was founded on a proposition: it is the text of the enactment which is the law and it is important both that the law should be certain and that it should be ascertainable by the citizen. Thus, though the courts must not adopt a literal, technical, narrow or rigid approach in the interpretation of the Basic Law without regard to its purpose and context, they cannot give the language a meaning which it is not capable of bearing. In my respectful opinion, Stock J’s above observations are logical extensions from this basic premise. Article 154 and immigration control cannot be the basis for the Impugned Provision 132.I now turn to the principal arguments. Since I have been discussing the approach Stock J in Chong Fung Yuen as to the role of the Hong Kong legislature, it would be convenient at this juncture to deal with the second principal argument of Lord Pannick. That argument requires the reading of Article 24(2)(4) in the light of Article 154(2) of the Basic Law. Article 154(2) states,
133.Lord Pannick referred to the special situation of Hong Kong in terms of the need for tight immigration control as established policy recognized by our laws prior to 1990 and submitted that the Impugned Provision should be regarded as part of the immigration controls exercised by the Hong Kong Government authorized by Article 154(2), and Article 24(2)(4) should be construed and applied in that light. Counsel argued powerfully that if Article 154(2) were construed as not being wide enough to authorize the enactment of the Impugned Provision by the local legislature, it would deny Hong Kong Government the power to authorize entry into Hong Kong for a group of foreign nationals on a limited basis: viz. their stay in Hong Kong, no matter how long, would not entitle them to apply for permanent resident status. That would also be contrary to the principle of continuity, contrary to the belief of all the stakeholders prior to 1997. 134.Free from authorities, I can see the force of the submission that Article 154(2) should be part of the relevant context in the interpretation of Article 24(2)(4). As mentioned above, both articles can be traced back to Section XIV of Annex I to the Joint Declaration. In terms of the implementation of the Joint Declaration regarding the provisions for permanent resident status, as evidenced by the speech of the Secretary of Security in the Second Reading of the 1987 amendments of the IO, the JLG apparently discussed the matter on the basis of implementing the same through, inter alias, the IO. 135.The purpose of Article 24(2)(4), as identified by Bokhary PJ in Fateh Muhammad and Prem Singh, is to provide a means by which persons other than Chinese nationals can acquire Hong Kong permanent resident status and through doing so the right of abode. To the same effect is the judgment of the majority in Tam Nga Yin at p.258H: “the purpose of art.24(2) is to limit the persons who are permanent residents of the HKSAR and hence its population”. Admission of foreigners for entry into Hong Kong and setting the condition of their stay in Hong Kong are clearly matters of immigration control, as such within the scope of Article 154(2). 136.Article 24(2)(4) aside, I cannot see any reason why the immigration authority should not have the authority to exercise immigration control by having a policy of admitting certain categories of people to Hong Kong on condition that they would not be able to become permanent resident of Hong Kong simply by reason of the duration of their residence irrespective of the length of that duration. That had actually been the position prior to the resumption of sovereignty in 1997. 137.As Bokhary PJ observed in Fateh Muhammad, it can fairly be said that the right of abode is conceded to foreign nationals. But the issue in the present context is: by which instrument? The Applicant’s case is that the right is conceded by Article 24(2)(4) and that article alone, as such the right cannot be taken away by the Impugned Provision. On the other hand, the Commissioner contends that the right is conceded by Article 24(2)(4) reading together with the Impugned Provision as an immigration control authorized by Article 154(2). 138.Put in another way, the issue is: taking the purpose and the context of Article 24(2)(4) into account, should its reference to ordinarily residence be construed as subject to the authority given to the Hong Kong legislature to enact provisions like the Impugned Provision excluding certain categories of persons from its scope by way of immigration control pursuant to Article 154(2)? To a common lawyer applying the common law approach of interpretation, I can readily see the attraction in the judgment of Stock J in Chong Fung Yuen, viz. the Basic Law is not merely some generalization to the local legislature as to the path that might be taken; instead it defines who shall have the status of permanent resident and there cannot be any derogation of it by local legislation. 139.There is no indication in the express wordings of Article 24(2)(4) that it should be construed with such qualification. Unlike other parts of the same article, Article 24(2)(4) does not refer to “ordinarily resided in accordance with law”. I accept this is not conclusive. As pointed out by Lord Pannick, the Court of Final Appeal concluded in Fateh Muhammad that the ordinary residence requirement should be satisfied immediately before the permanence requirement even though this is not explicitly provided for. 140.More importantly, even though no reference was made to Article 154(2), the Court of Final Appeal in Prem Singh drew a clear line of demarcation between immigration controls and the verification of permanent resident status upon satisfaction of the requirements under Article 24(2)(4). The latter was held to be the legitimate limits of the power of the Director and the local legislature once the requirements of Article 24(2)(4) had been satisfied. The necessary implication is that immigration controls cannot be relied upon to trump the right acquired under Article 24(2)(4). 141.Indeed, if Lord Pannick’s argument were correct, Chong Fung Yuen and Prem Singh should have been decided differently. Like the Impugned Provision, the relevant provisions in the IO which the Court of Final Appeal held to be invalid in those cases could equally be justified as immigration control under Article 154(2). 142.Whilst the Court of Final Appeal did uphold the validity of Section 2(4)(b) of the IO in Fateh Muhammad, the decision was based on a narrow construction of that section and the conclusion that it does not go beyond the true meaning of ordinary residence in Article 24(2)(4) construed independently from the provisions in the IO. Such reasoning would not be necessary if the Court of Final Appeal were of the view that the section could be justified as immigration control within the power of the local legislature. This view is reinforced by the dictum of Bokhary PJ (who delivered the leading judgment in Fateh Muhammad) in Prem Singh cited above[11] and the emphasis placed on the narrow construction of section 2(4)(b) at para.68 in the judgment of Ribeiro PJ in that case. 143.It is therefore not open to this court to accept the contention of Lord Pannick based on Article 154(2). 144.Can the Impugned Provision be justified as falling within the category of local legislation for the purpose of particularization or clarification of Article 24(2)(4) which Stock J would accept as constitutional in Chong Fung Yuen? That would depend on the meaning of the expression “ordinary residence” and I shall now turn to this issue. Ordinary residence 145.As held by Bokhary PJ in Fateh Muhammad, the expression “ordinary residence” may carry different meanings in different contexts. The Court of Final Appeal considered the meaning of this expression in the context of Article 24(2)(4) in the two cases mentioned above. The following guidance can be derived from these judgments of the Court of Final Appeal,
146.Lord Pannick submitted that the Court of Final Appeal only assumed the Shah test to be applicable in Prem Singh. Whilst it does not appear from the law report that the applicability of Ex parte Shah had been the subject of any submissions by counsel, I do not believe Ribeiro PJ would refer to the criteria in Ex parte Shah in explaining the majority decision on the de minimis issue[12] if His Lordship had any doubt as to its applicability in the context of Article 24(2)(4). Further, in contrasting between the ordinary residence requirement and the permanence requirement, if I may respectfully say so, Ribeiro PJ highlighted why in the context of this Article the ordinary residence requirement should be interpreted according to the Shah test: the additional matters that the permanence requirement set in the Article over and above the ordinary residence requirement are essentially aspects of domicile which Lord Scarman excluded from the natural and ordinary meaning of “ordinary residence”. Ribeiro PJ’s reference to Ex parte Shah, in my view, forms part of the rationale of the majority in Prem Singh. 147.Existing usage of an expression is part of the context that the court can have regard to in the common law approach to interpretation. The test for ordinary residence in Ex parte Shah had been applied in Hong Kong in numerous cases, including cases in immigration context: see Director of Immigration v Ng Shun Loi [1987] HKLR 798. It has also been applied in the election context: see Lau San Ching v Apollonis Liu (1995) 5 HKPLR 23. In this connection, one of the unique rights given to permanent residents under the Basic Law is the right to participate in election. Viewed against such background, I have no doubt that the Court of Final Appeal in Prem Singh was familiar with the use of the Shah test in similar context in Hong Kong and endorsed its use in the context of Article 24(2)(4). 148.Given the Court of Final Appeal’s endorsement of the Shah test, and in the light of counsel’s submissions based on this case, it is necessary to examine at greater length the speech of Lord Scarman in that case. The case was reported as Reg v Barnet London Borough Council Ex parte Shah [1983] 2 AC 309. The House of Lords held that the meaning of the expression “ordinary residence” in the statute in that case should be construed according to its natural and ordinary meaning. Such meaning was to be derived from two earlier tax cases. Before Lord Scarman set out his famous statement on the meaning of the expression, he stated that he agreed with the meaning given to that expression by Lord Denning MR in the judgment of the Court of Appeal, see p.342D to E. Then Lord Scarman referred specifically to the case of In re Norris (1888) 4 TLR 452 for this proposition,
149.After referring to the two aspects in which the mind of the propositus is relevant: viz. (a) resident must be voluntarily adopted; and (b) there must be a degree of settled purpose, Lord Scarman adverted to the proof of ordinary residence at p.344F,
150.At p.345, Lord Scarman set out the submissions of the two councils: the “real home test” and its variant: where the person lives as a member of the general community and not merely for a specific or limited purpose. These tests imply that a man can have only one ordinary residence at any one time. These submissions were rejected, at p.345D,
151.At p.346B to 348F, Lord Scarman considered the judgments of the Divisional Court and the Court of Appeal. As to the latter, Lord Scarman noted at p.346H to 347A,
152.At p.347 H to 348B, Lord Scarman identified the error of law in the judgments below,
153.His Lordship cautioned specifically against attaching too much significance on immigration status when deciding whether a person is ordinarily resident at a place. At p.348D to E,
154.On settled purpose, Lord Scarman held that the lower courts committed the following error,
155.Given the established usage of the Shah test in Hong Kong under similar context as exemplified by the decision of the Court of Appeal in Director of Immigration v Ng Shun Loi [1987] HKLR 798[13], this court must in any event take this into account in ascertaining the meaning of “ordinarily resident” in Article 24(2)(4). 156.Lord Pannick submitted that the test in Ex parte Shah is only applicable in the absence of any particular statutory framework or legal context. I have already dealt with counsel’s submissions on the authority given to the Hong Kong Government to apply immigration controls at the previous section of this judgment. I am now dealing with his first principal argument: the Impugned Provision, like Section 2(4)(b) of the IO in Fateh Muhammad, does not go beyond the scope of Article 24(2)(4). In respect of the first principal argument, the meaning of “ordinary residence” has to be ascertained in the context prior to the enactment of the Basic Law in 1990. 157.What is the context which Lord Pannick relied upon to contend that the expression should be given a meaning different from the natural and ordinary meaning prescribed by the Shah test? Counsel said as there is no definition for ordinary residence in the Basic Law, there is an ambiguity in ascertaining whether a person’s residence is so out of ordinary that it would not come within the expression “ordinary residence”. In the context of the grant of a valuable right and status upon those who satisfied the requirement in Article 24(2)(4), a more stringent test is called for. It is therefore open to the local legislature, counsel said, to clarify or refine the meaning of that expression by enacting the Impugned Provision. 158.Counsel did qualify the last proposition by accepting that ultimately the construction of the Basic Law is a matter for the court and there are limits beyond which the local legislature cannot tread in the guise of clarification or refining the expression “ordinarily resident”. Two alternative tests were suggested by Lord Pannick: (1) reasonableness in the public law sense; or (2) proportionality test (which I understood to be the same as the justification test laid down in Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335) with a wide margin of discretion. 159.With respect, I do not think this is correct under the common law approach of interpretation. In my judgment, as we are dealing with clarification or refinement as envisaged by Stock J in Chong Fung Yuen, the court must test the Impugned Provision against the proper meaning of the expression in the context of Article 24(2)(4). It is not open for the court to say: simply because the language in the Basic Law is ambiguous there could be room for clarification by the IO; and so long as the provision in the IO is reasonable in the public law sense or proportionate, the court would not intervene. That would in substance be delegated legislation. In the absence of proper delegation of such authority to the local legislature under the Basic Law, the court must construe the relevant provision in the Basic Law to ascertain its meaning before it proceeds to test the constitutionality of the local legislation under challenge. 160.Though there is no definition for “ordinarily resident” in the Basic Law, it does not necessarily mean that there is any ambiguity in the application of the Shah test in the context of Article 24(2)(4). Lord Pannick pinpointed the ambiguity as the ambiguity as to what is out of ordinary. Counsel focused on what is out of ordinary by referring to the judgment of Bokhary PJ in Fateh Muhammad. 161.With respect, I do not read the judgment of Fateh Muhammad as laying down that the test is simply whether a person’s residence is out of ordinary. Whilst Bokhary PJ did refer to the contrast between ordinary and out of ordinary as a starting point and uphold the constitutionality of Section 2(4)(b) of the IO by reference to the extraordinary nature of imprisonment, I do not believe that the Court of Final Appeal in Fateh Muhammad intended to reduce the Shah test into the single question of whether the residence is out of ordinary. Bearing in mind that Bokhary PJ did make reference to the two tax cases and Ex parte Shah in his judgment, if His Lordship were departing from such well established test for ordinary residence it would be most surprising if there was no discussion as to the reasons why he considered that to be necessary in the context of Article 24(2)(4). Further, Bokhary PJ actually started his discussion on the meaning of ordinary residence at p.283G by stating that the expression should be given its natural and ordinary meaning. The Shah test, as discussed above, was based on the natural and ordinary meaning of this expression. 162.This reading of Fateh Muhammad is reinforced by the judgment of Ribeiro PJ in Prem Singh. As explained earlier, His Lordship endorsed the applicability of the Shah test in the context of Article 24(2)(4) in respect of the ordinary residence requirement. If there were any reason to believe that Fateh Muhammad had in any way modified that test, bearing in mind that Chief Justice Li, Bokhary PJ, Chan PJ and Mason NPJ were members of the Court of Final Appeal hearing both Fateh Muhammad and Prem Singh, it would be most remarkable if none of their Lordships qualified the use of the Shah test by Ribeiro PJ in the latter case. 163.The narrow construction given to the word “detention”, as explained by Bokhary PJ in Fateh Muhammad and reiterated by Riberio PJ subsequently in Prem Singh further indicates that it could not have been the intention of Bokhary PJ to adopt a simple test of “out of ordinary” in place of the well established Shah test. Detention was construed as being restricted to the kind of detention having the same nature as imprisonment pursuant to criminal conviction. As illustrated by the Court of Appeal’s decision in Asif Ali, the criminal conviction makes a world of difference for the purpose of Article 24(2)(4) as regards the character of the subsequent detention and imprisonment in respect of the ordinary residence requirement. The explanation for the exclusion of imprisonment was given by Ribeiro PJ in Prem Singh at para.75,
164.The following points emerge from this part of the judgment in Prem Singh. First, it was emphasized that the incarceration was due to the conviction for serious criminal conduct which warranted immediate custodial sentence. Thus, the exclusion does not extend to other form of loss of liberty. Second, the significance of such incarceration does not lie in the fact that the person’s remaining in Hong Kong is involuntary. Rather, its significance lies in the other aspect of the Shah test: the inability to satisfy the criterion of settled purposes. And this is because of the criminal conviction. Third, the continuity of the meaning of ‘ordinary residence’ in the Basic Law with earlier statutory schemes is highlighted. In this connection, I have already alluded to the use of Shah test in pre-1997 cases in similar context. 165.The clear implication from the narrow construction given to the word “detention” is that those instances identified by Mr Dykes SC in Fateh Muhammad would not be excluded from the reckoning of ordinary residence for the purpose of Article 24(2)(4). A simple test of exclusion of residence which is “out of ordinary” cannot provide a principled basis for arriving at such conclusion. In my respectful view, it is better to understand what Bokhary PJ said in Fateh Muhammad as building upon the foundation already laid down in the common law as to the natural and ordinary meaning of “ordinary residence” as explained in Ex parte Shah. 166.Thus, instead of exploring whether there is any ambiguity as to what kind of residence is “out of ordinary” in the context of Article 24(2)(4), the issue should be whether the Impugned Provision serves the legitimate function of clarifying some ambiguity as to the natural and ordinary meaning of “ordinary residence” in the context of that Article, bearing in mind the well-established use of the Shah test in Hong Kong. 167.Ms Li made the point that there is no definition for “domestic helper” in the Impugned Provision and it could cover cases outside the scope of the FDH policy. Adopting a purposive construction, bearing in mind that the Impugned Provision referred to domestic helpers from outside Hong Kong, subject to the inherent requirement that the law must be certain and accessible and insofar as it refers to policy in its operation, such policy must also bear the same quality in addition to being legal in the sense that it must not contravene any provisions in the Basic Law or domestic legislation including the Hong Kong Bill of Rights, I am prepared to construe the Impugned Provision as referring exclusively to domestic helpers who obtained permission of the Director of Immigration to come and work here under the FDH policy. 168.Counsel also submitted that since the FDH policy, not being law in its nature, can be changed by the executive arm of the Government. That may be so. However, any change in policy will be subject to two levels of check. First, the adoption of the policy as a criterion under the Impugned Provision has to be legal. In the present context, if the policy is out with the proper scope of Article 24(2)(4) (as I shall conclude below), the Impugned Provision would be rendered unconstitutional for failing to satisfy the legality test. Second, the legislature can monitor any change in the FDH policy and conduct debate thereon. If necessary consideration could be given to the amendments of the Impugned Provision. 169.Counsel further submitted that the FDH policy is implemented through a scheme of standard forms FDH contract and such contractual provisions should not be read as having the same effect as condition of stay. For present purposes, I do not think it is necessary to examine at length whether a particular provisions in the standard form contract can be regarded as forming part of the condition of stay granted by the Director to the Applicant. In any event, as observed by Lord Scarman in Ex parte Shah, immigration status cannot and should not be conclusive on determining a person’s “ordinary residence”. 170.On the evidence before this court, I think it is proper to proceed on the basis that the features of the FDH policy identified by Lord Pannick in his submissions are salient features in all FDH cases after 1997. Examining these features (which Lord Pannick contended to be features rendering the residence of the FDHs in Hong Kong out of ordinary) against the Shah test, even bearing in mind that Article 24(2)(4) confers valuable right and status on foreign nationals, I cannot accede to the submission that the Impugned Provision simply clarify or refine what is already provided for in general term under that Article. I shall explain by going through the list of features. 171.First, the permission to entry and remain granted to a FDH is subject to the requirement that the FDH can only work as a domestic helper under a specified employment contract. An FDH is not allowed to change her employer in Hong Kong even though her contract is terminated prematurely. This can be considered together with the requirement that a FDH is required to leave Hong Kong within 2 weeks after the termination of the contract of employment if it is terminated before its expiry. In my judgment, these limits cannot alter the character of a FDH’s residence in Hong Kong during the time she is permitted to stay. She resides here for a settled purpose, viz. employment, and she comes and stays here voluntarily. She is confined to a particular employer and has to leave after her contract ends. But it does not detract from the primary position: whilst she is here, she is here as part of the regular order of her life for the time being. 172.Second, whilst in Hong Kong the FDH has to work and reside in the employer’s residence. The significance, Lord Pannick submitted, is that a FDH cannot establish a household or independent lifestyle of her own. I do not accept that a FDH cannot have a lifestyle of her own during her residence in Hong Kong. Much less am I persuaded that such a conclusion follows simply because of the requirement that a FDH has to work and reside at the specified residence of the employer. FDH, like other employees in Hong Kong, are protected by the Employment Ordinance and they are entitled to rest day every week and statutory holidays in the same manner as other employees in Hong Kong. During their rest days and holidays, they are free to do whatever they like in terms of recreation, religious or social activities or other pursuit of life. It is a matter of private agreement between a FDH and her employer as to the spare time she could have during a working day. As demonstrated in the case of the Applicant, if her employer gives her sufficient spare time, she could pursue some part-time education. Alternatively, if she has the necessary spare time, there is no reason why she could not enjoy other aspects of life which other Hong Kong residents could enjoy during their spare time. Admittedly, there are activities which a FDH may have difficulties in pursuing due to her lack of access to an exclusive spacious residence. But the same constraint is experienced by many Hong Kong residents who do not have the resource to acquire such accommodation. Actually, it is not a foregone conclusion that the accommodation provided by an employer to a FDH is so limited that she could not enjoy the lifestyle of an average Hong Kong resident. There are certainly some FDHs in Hong Kong who worked for wealthy families and I would not be surprised that they enjoyed better living condition and have more spare time to themselves than some of our locals who have to work long hours to make ends meet. I stress I am not suggesting that this is a typical comparison. However, the reference to such atypical cases still serves the purpose in terms of demonstrating the fallacy in counsel’s argument in this respect. 173.As regards the establishment of a separate household, this can be considered together with the last feature relied upon by Lord Pannick, viz. that FDHs are not allowed to bring dependants to Hong Kong. I do not think these features have any real bearing on the question of ordinary residence. It has never been an element of the Shah test that one has to have the capacity to establish a separate household or to bring his dependants along to a place before he could be regarded as ordinarily resident there. As recognized by Lord Scarman, education or employment can be the relevant settled purpose for staying at a place. I appreciate that the pursuit of such purposes is not mutually exclusive with the establishment of household or bringing along dependants to the place of residence. However, the point is that the inability to do the latter does not prevent one from pursuing the former as a settled purpose. 174.Third, Lord Pannick referred to the fact that an employer of a FDH is required to pay for her passage to and from her place of origin and make corresponding arrangement in case of the death of the FDH. Further, counsel also referred to the prescribed home leave upon the completion of a contract. These measures are aimed at fostering and maintaining the FDH’s link with her home country. Again, bearing in mind that the Shah test is the proper test to be applied instead of asking in a general sense whether a FDH’s residence in Hong Kong has features which could be regarded as out of ordinary, I do not think these features have much significance. The fostering of the link with the home country will have a bearing on the intention as to permanent residence. But that would only be relevant to the permanence requirement instead of the ordinary residence requirement. Using these features to support the Impugned Provision is equivalent to the confusion of the concept of ordinary residence with domicile, an error emphatically rejected by Lord Scarman in Ex parte Shah. In the context of Article 24(2)(4), it would be a confusion of the ordinary residence requirement with the permanence requirement. As pointed out by Lord Scarman, giving the expression its natural and ordinary meaning, a person can have ordinary residence at two different places at the same time. Thus, the mere maintenance of link with her country of origin does not mean that she is not ordinarily resident in Hong Kong. 175.Though I have condensed Lord Pannick’s list, I believe I have covered every items in the list of special features. On final anaylsis, these features whether taken individually or collectively cannot take a FDH’s residence out of the concept of ordinary residence within the context of Article 24(2)(4). It follows that the Impugned Provision, by excluding the FDHs as a class from the benefit of Article 24(2)(4), derogates instead of clarifies the meaning of that Article. 176.I therefore reject the first principal argument of Lord Pannick despite his skilful effort in that regard. 177.Having rejected both principal arguments advanced by Lord Pannick to defend the constitutionality of the Impugned Provision, my conclusion is that on the common law interpretation approach the Impugned Provision is inconsistent with Article 24(2)(4). Discrimination 178.My conclusion above is sufficient to dispose of the matter before the court. As regards the alternative argument of Ms Li based on Article 25, I can deal with it shortly. In my judgment, this is not a case about discrimination and Article 25 is not engaged. This point has been adequately addressed by Bokhary PJ in Fateh Muhammad at p.285H when His Lordship rejected a similar argument advanced in the context of a challenge to Section 2(4)(b) of the IO. 179.It has to be borne in mind that Article 24(2)(4) confers the status of permanent residents on foreign nationals. It must be up to the sovereign authority to decide the extent to which such a concession is to be granted. As observed by Lord Bingham in Januzi v Home Secretary [2006] 2 AC 426 at p.439G, a fundamental principle in international law is that a sovereign state has the power to admit, exclude and expel aliens. Therefore there cannot be any complaint that Article 24(2)(4) confers such status on certain people but not others. 180.The relevant line is drawn by Article 24(2)(4) and the present case falls to be decided by asking whether the Applicant comes within the requirements laid down in that Article. Consequential directions 181.Parties agreed that this court should hand down its judgment on the main issues debated at the hearing and reserve a date for argument as to the relief that should be granted in the light of it. 182.I now direct that the case be listed for such purpose on 26 October. To facilitate the efficient disposal of the matter, I also direct,
183.I would also take this opportunity to thank counsel for their valuable assistance in this matter.
Ms Gladys Li, SC, Mr Kwok Sui Hay and Ms Jocelyn S L Leung, instructed by Messrs Barnes & Daly (D.L.A.), for the Applicant Mr Lord Pannick, QC, Mr Anderson Chow, SC and Ms Eva Y W Sit, instructed by Department of Justice, for the 1st Respondent [1] The main category is those coming within regulation 25(d): those who are bona fide travellers in transit or those who does not intend to stay for more than 180 days and in possession of valid travel document. Another major category is children under 11, see regulation 25(g). [2] Para.64 of the judgment in Prem Singh, see also para.66. [3] The concept of Hong Kong belonger can be traced back to the Deportation (British Subjects) Ordinance 1936. Under section 2 of that ordinance, a British subject would be deemed to belong to Hong Kong under certain circumstances. The tests in several limbs adopted the concept of ordinarily resident in Hong Kong continuously for 7 years. A Hong Kong belonger could not be deported, see section 3 of the ordinance. [4] The original report was in Chinese . [5] The original Opinions are in Chinese. [6] See Minister of Home Affairs v Fisher [1980] AC 319, applied by Bokhary PJ in Chan Kam Nga v Director of Immigration (1999) 2 HKCFAR 82 at p.90B to C [7] The relevant part of the judgment of Stock J started at p.374B. [8] Though this must be subject to the right and authority of the Standing Committee to interpret the Basic Law, it would be extraneous to the common law system and is therefore outside the scope of this judgment. [9] Chinese residents can also become permanent residents under the 1987 amendments to the IO. After 1997, they are no longer foreigners and fall outside the scope of Article 24(2)(4). [10] The relevant sentence in the affirmation before Stock J was quoted at p.376E to F and was as follows, “There was a mutual understanding between the Chinese and British sides of the JLG that the BL only provided a framework for defining who would be permanent residents of the HKSAR, but the Immigration Ordinance, when amended to bring it into line with the provisions of the BL, would need to set out the definitions with more precision in the manner agreed between both sides.” [11] At paras.111 and 113 [12] Prem Singh para.75 [13] That was a case decided prior to the 1987 amendments to the IO. Under the previous law, “Chinese resident” means an immigrant who “has at any time been ordinarily resident in Hong Kong for a continuous period of not less than seven years”. Please refer to CACV204/2011 for the relevant appeal(s) to the Court of Appeal. | |||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCAL 124/2010