Re Lee Ka Ming

CACV000163/1990

Immigration - statutory interpretation - Immigration Ordinance, Cap. 115 - child of Chinese race born in Hony Kong who requires permission to remain under s.7(2) and who remains here without such permission - whether child is to be treated as "ordinarily resident" here during that period for the purposes of paragraph 1 of schedule 1 to the Ordinance - whether time spent by the child (a) en ventre sa mere (b) while lawfully detained under s.32 (2A) or (c) after a removal order is validly made under s. 19 (1) (b) (iii) is reckonable for the 7 year period of ordinary residence required by paragraph 1 or Schedule 1 to make him a "Hong Kong permanent resident" as defined and give him a right of abode here under s.2A.

IN THE COURT OF APPEAL

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Coram: Fuad, V:-P., Clough, J. A & Liu, J.

Dates of hearing: 12 and 13 March 1991

Date of handing down judgment: 22 March 1991

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JUDGMENT

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Fuad, v.- p.:

1. These are appeals by the Superintendent of Victoria Prison and the Director of Immigration from orders made on 24th August 1990 by Bokhary, J. in concurrent habeas corpus and judicial review proceedings brought against them respectively by a 7 year old boy, Lee Ka Ming (whom I will call "the applicant", or the boy" for convenience). The order made against the Superintendent in the habeas corpus proceedings directed the release of the boy who had been held in the Superintendent's custody under a removal order made by the Director under s.19 (1)(b) (iii) of the Immigration Ordinance, Cap. 115 ("the Ordinance"). The contemporaneous order made against tree Director in the judicial review proceedings (1) quashed a decision of the Immigration Tribunal under s.53D of the Ordinance dismissing the boy's appeal against the validity of the removal order and (2) declared that the boy enjoyed the right of abode in Hong Kong  under s.2A of the Ordinance. We heard the appeals together.

2. When the hearing of the appeals began, we were informed by Mr. William Marshall, Q.C, for the appellants (he did not appear in the court below) that the Director had resolved that regardless of the outcome of these appeals, he would not order the removal of the boy to China, in view of the "unique and exceptional aspects in respect of the course of litigation and consequently the welfare of the child." Mr. McCoy who has represented the boy throughout the court proceedings was only told of this decision as he entered our court.

3. When we enquired, we were told by Mr. Marshall that the Director's decision did not mean that he had accepted that the boy had acquired a right of abode under the Ordinance. This issue crucial to the appeals is still alive. They are not, therefore, "academic" and the litigation can properly be continued (see e. g Ainsbury v. Millington [1987] 1 WLR 379 (HL)).

4. It is common ground that the applicant was born in Hong Kong on 18th April 1983, that he is "wholly of Chinese race" and that he has lived here with his parents all his life. It was also common ground that the applicant's mother entered Hong Kong illegally in late September 1980 and cohabited with the applicant's father from December that year. It had been conceded by Mr. McCoy that another Woman had successfully personated the boy's mother so that a birth certificate was obtained for him (on 4th May 1983).

5. On 18th January 1990, the applicant's mother surrendered herself voluntarily to the police, with her son, and they were both arrested. To bring about their removal to China, the Director of Immigration made removal orders against both mother and child on 13th March 1990. The notice (in respect of the boy) served on 16th March stated that the order had been made under s. 19 (1) (b) (iii) of the Ordinance, and the following "Reasons for Removal" were annexed to the notice:

"Master Lee, though born in Hong Kong, does not enjoy the right of abode in Hong Kong, does not have the right to land in Hong Kong and has remained in Hong Kong without permission."

6. I mention here that the applicant's father, who also entered Hong Kong illegally when the boy's mother did, managed to legalise his presence here on 2nd November 1981. We were told that the mother would probably have been able to do the same had she not been (so she said) under some form of restraint imposed by a "snake-head" so that she could not meet the "touch base" policy deadline. She was repatriated to China under the Director's removal order on 16th November 1990.

7. To return to the boy's case, on 17th March 1990, in exercise of the right given by s.53A of the Ordinance, an appeal was filed on his behalf against the Director's removal order to the Immigration Tribunal established by s.53F. The ground of appeal, based upon s. 53A(1)(aa) of the Ordinance, was that the boy enjoyed a right of abode in Hong Kong under s.2A. After a full hearing over several days, during which the applicant was represented by counsel (not Mr. McCoy), on 1st May 1990, the Tribunal dismissed the appeal and the following reasons appear in the document which gave notice of the determination of the appeal:

I would observe here that we are no longer concerned with any rights the boy may have had under the immigration law which depend on his natural father's status.

8. On 19th June 1990, an application for leave to apply for judicial review was filed on behalf of the boy. The notice required by RSC 0.53, r.3(2) set out the relief sought, and the grounds upon which it was sought, as follows.

"Relief sought

[5. - 7. no longer relevant]

"Grounds

9. The affirmation in support of the application for judicial review was made by the boy's father, Mr. Lee Kam Hung. He confirmed the essential background facts that are not in dispute. The rest of his affirmation set out the reasons why he maintained, on advice given him, that his son was entitled to the relief being sought on his behalf.

10. Duffy, J. gave leave, ex parte, to apply for judicial review on 15th June 1990. Oh the same day, in the parallel habeas corpus proceedings, he ordered the release of the boy from custody.

11. Bokhary, J. heard the two sets of proceedings together on 22nd to 24th August 1990 and gave an extempore judgment at the conclusion of the hearing in favour of the applicant.

12. I will now set out those provisions of the Ordinance to which the judge made reference in his judgment. The power of the Director of Immigration to order removal is to be found in s.19(1)(b)(iii):

"19.(1) A removal order may be made against a person requiring him to leave Hong' Kong-

13. The marginal note to s.7 is "General provision as to immigration control" and s. 7(2) is in these terms:

"7.(2) A person who was born in Hong Kong but who does not enjoy the right of abode in Hong Kong, or does not have the right to land in Hong Kong by virtue of section 8(1), may not remain in Hong Kong without the permission of an immigration officer or immigration assistant."

14. Section 2A, with the marginal note "Hong Kong permanent residents enjoy right of abode in Hong Kong" is as follows:

"2A. (1) A Hong Kong permanent resident enjoys the right of abode in Hong Kong, that is to say he has the right -

15. Section 2(1) includes the following among the words and expressions defined:

" 'Hong Kong permanent resident' means a person who belongs to a class or description of persons specified in Schedule 1;"

16. Paragraph 1 of Schedule 1 designates as Hong Kong permanent residents, inter alia :

"1.    Any person who is wholly or partly of Chinese race and has at any time been ordinarily resident in Hong Kong for a continuous period of not less than 7 years."

17. Also in the interpretation section of the Ordinance is a subsection in the following terms:

"2. (4) For the purposes of this Ordinance, a person shall not be treated as ordinarily resident in Hong Kong -

18. I now summarise the way the learned judge dealt with the issues before him. In his judgment he set out the background facts, and after citing from Lord Scarman's speech in R. v. Barnet London Borough Council, ex parte Shah [1983] 2 AC 309 at pp.343G - 344B, he observed that the question of unlawfulness apart, there could be no real doubt that the applicant's residence in Hong Kong had been ordinary. When turning to an examination of the question of unlawfulness, he said he would begin by noting that in the passage from the speech he had quoted, Lora scarman had concluded with a reference to the settled principle that no man could benefit by his own wrong. That principle, he, said, was to be seen in operation throughout the illegal entry and overstaying cases in Britain, cases which he had found of assistance. He discussed R. v. Home Secretary, ex parte Puttick [1981] 1 QB 787 and R. v. Home Secretary, ex parte Margueritte [1983] 1 QB 180 and then remarked that the applicant had committed no offence.What he had done would not amount to a crime even in the case of an adult. In any event, he had not reached the minimum age of criminal responsibility until he had turned 7. The judge referred to s.3 of the Juvenile Offenders Ordinance, Cap. 226 which provides: "It shall be conclusively presumed that no child under the age of 7 years can be guilty of an offence."

19. After referring to R. v Home secretary, ex parte Khan [1977] 1 WLR 1406 and R. v. Home Secretary, ex parte Ibrahim, The Times, 29th March 1980 ,the judge rioted that in R. v. Home secretary, ex parte Khawaja [1984] 1 Ac 74 Lord Bridge had, at p.119F-G, expressed doubts about the correctness of the decision in Khan in these words:

"I am not convinced that [that case], where it was decided that the innocent wife who obtained leave to enter on a false passport procured for her by her husband was an illegal entrant, was rightly decided. In such cases the proper conclusion may depend on a variety of circumstances and I think it safer to express no present view but to leave such cases to be decided as they arise."

In this context, the judge also noted what is said in Macdonald, Immigration Law and Practice in the United Kingdom, 2nd ed. p.389: "Taxing their cue from Lord Bridge's doubts the Home Office do not seek to remove as illegal entrants by deception those who were not party to the deception." I notice that sentence concludes: "although they reserve the right to argue to the contrary".

20. The judge then made a reference to s.2(4) of the Ordinance and noted that the applicant was not caught by that subsection.

21. The judge next said that he had reached the conclusion that the term "ordinary residence" in paragraph 1 of Schedule 1 to the Ordinary was not to be construed so as to exclude from its compass residence in Hong Kong on the part of a child like the applicant who had been born here and who had remained here "without having himself practised any deception on the immigration authorities let alone having himself committed any offence against our immigration laws."

22. In the circumstances, he continued, his state of being ordinarily resident here was not terminated by his arrest on 18th January 1990 (when he was 6 years and 9 months of age) or by the service upon him of the removal order on 16th March 1990 (when he was 6 years and 11 months of age). The learned  judge went on to say:

"The making and service of a removal order is accompanied by a right of appeal. It is on such appeal that the person against whom the order is directed has an opportunity to be heard, and it is such right of appeal which brings about compliance with the rules of natural justice. Whether or not Ka Ming's state of being ordinarily resident here was terminated by the Immigration Tribunal's dismissal of his appeal on May 1, 1990, is of no consequence. By then he had already attained the age 7, having turned 7 on the 18th of the previous month."

23. In the light of these conclusions, the judge said, it was unnecessary for the boy to rely on the submission that the word "person" in paragraph 1 of Schedule l includes a child in the womb, however he indicated that had it been necessary to decide treat point, he would have decided it in his favour. For this proposition he relied upon the passages he cited from the judgments in three cases: Villar v. Gilbey [1907] AC 139; Williams v. Ocean Coal Co. Ltd. [1907] 2 KB 422; Caller v. Caller [1968] p.39.

24. The result of adopting this line of authority was, the judge explained, that even if one were to take away, from the qualifying period running from the time of the boy's birth to his 7th birthday, the 3 months between his arrest and that birthday, the boy had satified the requisite 7 year period because for at least 3 months before his birth he was a person within the meaning of paragraph 1 of Schedule l, albeit a person waiting to be born. The boy "had the physical benefit of his mother's womb; but that benefit carried no legal burden." His residence here was, in the judge's view, ordinary residence within the meaning of paragraph 1 of Schedule l even when it was residence en ventre sa mere.

25. The judge held that the Immigration Tribunal's decision that the boy was not a Hong Kong permanent resident consitituted an error of law on the face of the record and, as we have seen, granted the reliefs prayed for.

26. I think it will be convenient here to say something briefly about the legislative history of the statutory framework into which the issues raised by this appeal fall. The Ordinance in its present form derives from the Immigration Ordinance 1971 (No.55 of 1971). Under that Ordinance as originally enacted, persons wholly or partly of Chinese race who were not born in Hong Kong and ordinarily resident in Hong Kong for a continuous period of not less than 7 years, and who were not otherwise British subjects were, for immigration purposes, treated no differently from aliens and were thus subject to immigration control. The 1971 Ordinance freed from immigration control, inter alia, "Hong Kong belonger[s]" as defined, and persons wholly or  partly of Chinese race ordinarily resident in Hong Kong for a continuous period of not less than 7 years ("Chinese resident [s]"). By the Immigration (Amendment) (No.2) Ordinance (No. 78 of 1982) which came into force on 1st January 1983, the 1971 Ordinance was amended to cater for the distinction between British citizens and British Dependent Territories citizens introduced by the British Nationality Act 1981. The category of "Hong Kong belonger[s]" was preserved. By the Immigration (Amendment) (No.2) Ordinance (No. 31 of 1987), which came into force on 1st July 1987, the definition of "Chinese resident" was deleted, but this category together with "Hong Kong belonger [s]" was grouped under a new category of "Hong Kong permanent resident[s]" as defined in Schedule 1 of the  Ordinance, with a right or abode.

27. The position about children, however, was that even the children of illegal immigrants, if they were born here before 1st January 1983, were not subject to immigration control. All- this changed as a result of the enactment of the Immigration (Amendment) (No.3) Ordinance 1982 (No. 79 of 1982) which came into operation on that date. A new subsection (2) was added to s.7 which provided that a person worn in Hong Kong but who did not have the right to land in Hong Kong under s.8(1) could not remain without the permission of an immigration official. There were other consequential amendments in the right of this change of policy, including a power given to the Director to examine and order the removal of any person subject to the new s.7(2) who remained in Hong Kong without the necessary permission. I remark in passing that had the boy in our case been born some 3 1/2 months earlier he would, in any case, not have been caught by s.7(2) in its original or present form.

28. The new provisions followed the lead given by the enactment in the U.K. of the British Nationality Act 1981. No doubt, too, the legislature here did not wish an already overcrowded Hong Kong to be burdened with the offspring of women with no right to be in Hong Kong, who came here so that their children could be born here and acquire immigration rights simply by the fact and place of birth.

29. I now turn to discuss the judge's obiter conclusion that the time during which the applicant was en ventre sa mere could count as ordinary residence for the purpose of the qualifying period mentioned in paragraph 1 of Schedule 1 to the Ordinance. Counsel took us through many authorities from Commonwealth jurisdictions which deal with the rights of a person under that doctrine. Many of the leading cases have to do with the law of succession and are referred to in the footnotes paragraph 539 of vol.50 of Halsbury's Laws of England, 4th ed. The paragraph itself, which I will set out, conveniently summarises the effect of those authorities:

30. As regards the question whether there is a common law duty of care towards an unborn child, we were referred to the Canadian case of Duval v. seguin (1973) 40 DLR (3d) 666 where the Ontario Court or Appeal approved the decision of the Supreme Court of Victoria in Watt v. Rama [1972] VR 353 and held, in effect, that the pre-natal injuries suffered by the infant plaintiff were not to be regarded as too remote since it was foreseeable that other highway users might include pregnant women and that an unborn baby might be injured as well as its mother. Legislatures have stepped into this area of the law (e. g. the U. K. Congenital Disabilities (Civil Liability) Act 1976).

31. In the field of employee's compensation there are cases such as Williams v. Ocean Coal Co. Ltd. "[1907] 2 KB 422 where it was held that a posthumous child was a dependant for the purposes of the compensation statute then in force. This case was followed in Schofield v. Orrell Colliery Co. Ltd. [1909] 1 KB 178 in relation to the rights of a posthumous illegitimate child under a later statute.

32. In my respectful judgment the following passage from the judgment of Fletcher Moulton, L.J. at p.182 is particularly helpful in pointing to the underlying principles involved:

"[Counsel] has skilfully argued hat the unborn child, if born [being illegitimate], would not have any legal right to support from his father, and that therefore he cannot be said at the present moment to be a dependant in the sense that he is partly dependent on the wages of the deceased. In my opinion the fallacy of that argument is this. The, House of Lords in Villar v. Gilbey [1907] AC 139 decided that, where it is for the benefit of the child, a child en ventre sa mere is taken to be born. Of course an unborn child is not born - it is not an existing person in the ordinary sense of the word. All our statutes are, of course, framed in language suitable to the case of existing parsons, and thus the peculiar fiction of law by which a non-existent person his to be taken as existing is not provided for in their language, therefore you can always shew that the language of a statute does not fit the case or the unborn. But that is not the way to consider the language of statues when you are dealing with cases in which the law has given the same rights to a non-existent child as to an existing child. The true way of interpreting the language of a statute in such a case is to assume that the child is born, and then to draw deductions in the same way as we should in the case or an existing person."

33. I also think that the observations of Lord Russell of Killowen in Elliot v. Joicey [1935]AC 209, at pp.233-234 assist to define the true principle:

"The law as settled by Villar v. Gilbey may (but subject to any special context in the document to be constructed) be summed up thus: First, words referring to children or issue 'born' before, or 'living' at, or (as I think we must add) 'surviving,' a particular point of time or event, will not in their ordinary or natural meaning include a child en ventre sa mere at the relevant date. Secondly, the ordinary or natural meaning of the words may be departed from, and a fictional construction applied to them so as to include therein a child en ventre sa mere at the relevant date and subsequently born alive if, but only if, that fictional construction will secure to the child a benefit to which it would have been entitled if it had been actually born at the relevant date. Thirdly, the only reason and the only justification for applying such a fictional construction is that where a person makes a gift to a class of children or issue described as 'born' before or 'living' at or 'surviving' a particular point of time or event, a child en ventre sa mere must necessarily be within the reason and motive of the gift."

34. I now turn to one of the leading cases on the subject, constantly referred to and followed, in later cases, and relied upon by Bokhary, J. In Villar v. Gilbey [1907] AC 139, the House of Lords had before it on appeal, a decision or the Court of Appeal which had held, for the purposes of interpreting the terms of a will, that there was a fixed rule of construction which compelled the court to hold that a child was born in the lifetime of the deceased because at that time he was en ventre sa mere. At pp.144-145 Lord Loreburn, L.G. said:

A little later, at p.146, Lord Loreburn added:

"I agree with [counsel] that it may be difficult at times to say when a particular construction is for the benefit of a child. But I am not on that account to extend to all cases a construction which has throughout been applied only to a particular class. Authority may compel us to do violence to the English language, and to say that in some cases a child is born weeks or months before it is brought forth. But in my opinion we ought not to say so, knowing that it is not the fact, unless we are constrained by authority. And we are so constrained, except where it is for the child's benefit."

35. With very great respect to the judge in our case, I think he was stating the principle the Lord Chancellor was discussing far too broadly when he said, at p.9 of the transcript of his judgment:

"And his Lordship concluded by stating in effect that the doctrine is to be applied whenever its application would benefit a child even if applying it does violence to the English language."

36. From what he said, it seems to me likely that the learned judge took the view that the authorities justified a rule that when a statute falls to be interpreted, then, regardless of its context, if it would benefit a child to construe the word "person" as including a child in the womb, then this construction should be given to the word. If this was indeed the judge's approach, the authorities certainly do not so hold.

37. I do not say that the category of situations in which the courts will apply the doctrine I am examining is closed, but so far, it seems to me, an unborn child has benefited in the following class of case (and I do not say that my list is exhaustive): succession; where property or propriety interests are involved; where damages or compensation are claimed either as a principal claimant or a dependant. No authority justifies the judge's decision, unless, of course, the principle is' one of general application. It is one thing for a child to have certain rights from the time of conception in the circumstances reviewed in the cases, (by "a straining of language", to use Lord Loreburn's expression in Villar's case) but it is surely quite another thing to hold that in relation to a statute according rights depending on the duration of "ordinary residence", and conferring upon the Director and his officers a power to examine and remove that person before he acquires a right of abode, that the legislature must have intended, by using the word "person", to include a person yet unborn. The context in which the provision being construed is used cannot, of course, be ignored just because it will benefit the child. In my judgment it becomes clear, when regard is had to the motive and reason of the Ordinance, that it is quite impossible to hold, however extravagant a fiction one is willing to countenance, that an unborn baby (from the moment of conception if Mr. McCoy is right) is ordinarily resident anywhere for the purposes of the Ordinance. In my respectful judgment, if it be relevant to the outcome of this appeal, any period of time before a child is actually born cannot be taken into account when reckoning the period of 7 years for the purposes of paragraph 1 of Schedule 1 to the Ordinance.

38. Nor, with all due respect, do I find it possible to accept that if the boy could be said to have been ordinarily resident in Hong  Kong for the purposes of paragraph 1 of Schedule l, from the date of his birth, that neither his arrest on 18th January 1990, nor the making of the removal order on 13th March 1990 stopped time running, so to speak, so that the requisite period of 7 years had elapsed on 18th April 1990, the boy's seventh birthday while he was still in Hong Kong. If the detention of the boy and the subsequent removal order were not authorised by the law, then, of course, the position would be different, but if they were lawful in the light of s. 7 (2), then the detention pending removal would have been lawful under s. 32 (2A)and the removal order would have been lawful under s. 19 (1) (b) (iii).

39. If the view taken by the judge is right, in unusual circumstances such as the present, it would mean that if for any reason (for example, the time taken by the hearing of the appeal, or on account of health or humanitarian considerations) the actual removal was delayed with the result that the person concerned was able to satisfy the statutory period, the removal order which had been valid when made, would become invalid and ineffectual. That cannot be right. In my respectful view the Ordinance cannot properly be read to have this effect. Mr. McCoy did not seek to support this aspect of the learned judge's decision.

40. I will now consider the reliance placed by the judge for his decision on the fact (a) that s.7(2) of the Ordinance does not create an offence (b) that the boy, being under 7 years of age lacked capacity to commit a crime by virtue of s.3 of the Juvenile Offenders Ordinance, and (c) that the boy, by remaining here after his birth, had himself not practised any deception on the authorities. Mr. McCoy submitted to us that s 7(2) can apply only to adults who could be held responsible for their acts - the boy, himself, had no duty to comply with 7(2); he was an innocent party who could not be liable for the acts or omission of his parents; the fault of others could not render his residence in Hong Kong unlawful.

41. With very great respect to Mr. McCoy, and to the learned judge who accepted these submissions, I find the contention wholly misconceived. The fact that s 7(2) does not create an offence is neither here nor there. A person born in Hong Kong who does not have the right of abode or the right to land may not remain here without permission. That is no more than the section says. And if permission is not granted, a removal order may be made under s. 19 (1) (b) (iii). These very plain provisions do not really allow much competitive discussion. The relevant sections are not, of course, concerned with concepts of blameworthiness, criminal or moral. Nobody was seeking to make the boy responsible for the default of any other person.

42. In my judgment the cases cited by the judge are simply not in point. They dealt with "illegal entrants" and deceptions practised to obtain entry by the use of a false document or by practising some other fraud or making a misrepresentation. In these circumstances, with respect, Lord Bridge's reservations are understandable, because it might reasonably be argued that a person who is entirely innocent of taking any part in the deception used to gain his entry should not himself be regarded as an "illegal entrant". Here, as we have seen, a person who falls within the ambit of s.7 (2) may not remain here without permission. He either has permission or he does hot. I have no doubt that the propositions urged upon us by Mr. McCoy, which found favour with the judge, have no substance and that in deciding whether or not the boy had acquired a right of abode by having been ordinarily resident in Hong Kong for 7 years within the meaning of paragraph 1 of Schedule 1 to the Ordinance, the boy's obvious innocence in every respect is not relevant.

43. Finally, I address what is perhaps the most substantial issue which arises in these appeals: whether the applicant has established that he was "ordinarily resident" in Hong Kong from the date of his birth within the meaning of that expression in paragraph 1 of Schedule I to the Ordinance. Strictly speaking, for the appeals to succeed, if the views I have earlier expressed are sound, this question does not need to be answered because the boy had not lived here for the full 7 years before he was detained with a view to removal and a removal order in respect of him made. However, in deference to the extensive arguments addressed to us by counsel, and since the issue is important, I think it desirable to express an opinion on this aspect of the law.

44. It is, in my judgement, necessary to emphasise that this is simply a question of statutory interpretation. I respectfully adopt, and adapt to the Hong Kong context, Lord Scarman's formulation in R. v. Barnet London Borough Council, ex parte Shah [1983] 2 AC 309, at p.340:

"Two questions of statutory interpretation, therefore, arise. The first is: what is the natural and ordinary meaning of 'ordinary residence in [Hong Kong]? ... The second is: does the statute in the context of the relevant law against the background of which it was enacted, or in the circumstances of today, including in particular the impact of [Ordinance 79 of 1982 which introduced what is now s.7 (2), compel one to substitute a special, and, if so, what, meaning to the words 'ordinarily resident in [Hong Kong]'?"

45. In his speech, at pp. 343-344, Lord Scarman had this to say:

46. This is what Lord Denning, M.R. said in Manan's case, at p.861:

"The point turns on the meaning of 'ordinarily resident' in these statutes. If this were an income tax case he would, I expect, be held to be ordinarily resident here. But it is not an income tax case. It is an immigration case. In these statutes 'ordinarily resident' means lawfully ordinarily resident here. The word 'lawfully' is often read into a statute: see, for instance, Adlam v. Law Society [1968] 1 WLR 6. It should be read into these statutes."

47. But it is said on behalf of the boy that this principle as formulated by Lord Scarman and Lord Denning does not correctly state the law in the light of other conflicting authority. Mr. McCoy contends that once there was undisputed evidence that the boy had resided here all his life no more heeded to be shown. The concept of being "ordinarily resident" had nothing to do with the legality or otherwise of his presence here. There is powerful support for this submission in two speeches in R. v. Governor of Pentonville, ex parte Azam [1974] AC l8. At p.62D-E Lord Wilberforce made this observation:

And at p. 72E-F Lord Salmon stated:

"Whether a person is ordinarily resident in a country is a question of fact. No one suggests other than that, according to the natural meaning or those words, the undisputed evidence shows that both the appellants Azam and Khera were ordinarily resident here on January 1. 1973, and had been so resident for some years. This would seem to resolve the appeal in favour of the appellants Azam and Khera. And so it clearly would but for subsection (2) of section 33 which, so far as material, reads:

' It is hereby declared that, except as otherwise provided in this Act, a person is not to be treated for the purposes of any provision of this Act. as ordinarily resident in the United Kingdom... at a time when he is there in breach of the immigration laws.'"

48. Mr. McCoy therefore argues that since the boy was undoubtedly resident in Hong Kong, and since the appellants can point to no legislative provision which declares that he cannot be treated as having been ordinarily resident here during the period when he remained without the permission required by s. 7(2), he was, for the purposes of paragraph 1 of Schedule 1 "ordinarily resident" throughout the time following his birth. Mr. McCoy submits that s. 2(4) must be regarded as exhaustive, and he points out that when new situations arose due to a change in the substantive law, s 2(4) was consequentially amended: subparagraph (iii) of paragraph (a) of subsection (4) was added by Ordinance 42 of 1982 and subparagraph (iv) by Ordinance 23 of 1989. And yet, when s.7(2) was added in 1982 no amendment was made to s. 2(4) as one would have expected; and right up to the present day the subsection is silent about the s.7(2) situation.

49. The dicta of Lord Wilberforce and Lord Salmon in Azam's case are addressed in all three judgments in Margueritte's case: [1983] QB 180. In that case the Court of Appeal was asked to say that the judge in the court below had been wrong when he held that the words "ordinarily resident" in s. 5A of the British Nationality Act 1948 meant, in effect, "ordinarily and lawfully resident". I do not think it is necessary to set out what Lord benning, M.R. said about the dicta at p.184C-F; Oliver, L.J. (as he then Was) at pp.185G-186B; and Kerr, L.J. at p. 190E-H. I say this, because it seems to me, with respect, that the task before us is, mutatis mutandis, as described:

50. Transposing Kerr, L.J.'s formulation to our case, the question we have to resolve on this aspect of the case is this:

"on the true construction of the words 'ordinarily resident' in paragraph 1 of Schedule 1, viewed in the context of the Ordinance as a whole, did the legislature intend that a period should count towards the qualifying period of 7 years if the person in question was then in Hong Kong unlawfully?"

51. By "unlawfully", I simply mean contrary to law or prohibited by law. As mentioned earlier, I do not regard the fact that no offence is created by s.7 (2) as relevant. There can be no doubt that a person who is caught by that provision, and who remains in Hong Kong without permission, is unlawfully here.

52. Since that prohibition has been so plainly stated by true legislature, could it possibly have been intended, having regard to the whole purpose for which s. 7(2) was inserted into the law, that any period during which a person remains in Hong Kong in contravention of its provisions can be prayed in aid for the purposes of paragraph 1 of Schedule 1? To the extent that the intention of the legislature falls to be considered, there can surely be only one answer. Otherwise, a child born here could be hidden from the authorities for 7 years and his birthday present on his seventh birthday would be a right of abode in HongKong. If permission were sought on behalf of a child under s.7 (2), and refused, it the child were successfully concealed for the necessary period, he would acquire a right of abode. This would hardly be fair to those children who are refused permission to remain (and go away or are removed) and could not have been intended.

53. However, despite the obvious intention of the legislature, can it be said that it has clearly not succeeded in enacting what must have been intended? It is here that s. 2(4) assumes particular importance. Does the presence and content of that subsection mean that any period of actual residence not covered in paragraphs (a) or (b) must be treated as ordinary residence? My reading of the subsection in the context of the Ordinance as a whole does not compel the inference (and it can be no more) that the references to specific periods in paragraphs (a) and(b) exclude any other period from being treated as not reckonable. I entertain no doubt that the true interpretation of paragraph 1 of Schedule 1 of the Ordinance requires the ordinary residence relied upon to be lawful. I do not think that the point is capable of much further elaboration.

54. For these reasons. I would allow the appeal in Civil Appeal No. 162 of 1990 (the judicial review) and set aside the whole of the judge's order dated 24th August 1990; and restore the decision of the Immigration Tribunal dated 1st May 1990. Since the boy is being allowed to stay I do not think it is necessary to make any order in respect of Civil Appeal No. 163 of 1990 (the habeas corpus proceedings) except to set aside the order for costs made by the judge against the Superintendent of Victoria Prison.

Clough, J.A.:

55. I have had the opportunity of reading in draft the judgment of Fuad V.-P. I agree with it and would allow the appeals for the reasons he has given.

Liu, J.:

56. I have had the advantage of reading in draft the judgment of the Vice-President. For the reasons he gives I would also dispose of the appeals in the manner he has proposed.

Fuad, V. -P.:

57. In handing down these judgments allowing the appeals we make an order nisi that the appellants have their costs here as well as in the court below. The respondent's own costs to be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr. William Marshall, Q.C. and Mr. Y.M. Liu (Crown Solicitor) for the Appellants

Mr. Gerard McCoy (Cheung, Tong & Rosa) for the Respondent