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HCAL 124_2010

By Frank Morgan,2014-02-28 08:56
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HCAL 124_2010

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    A A B B HCAL 124/2010 C C IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION

    D D COURT OF FIRST INSTANCE E E CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 124 OF 2010 F F ____________ G G BETWEEN H H VALLEJOS EVANGELINE BANAO also known as VALLEJOS EVANGELINE B. Applicant I I and J J st COMMISSIONER OF REGISTRATION 1Respondent K K REGISTRATION OF PERSONS nd TRIBUNAL 2Respondent L L ____________ M M N N Before: Hon Lam J in Court O O Dates of Hearing: 22, 23 and 24 August 2011 Date of Judgment: 30 September 2011 P P ______________ Q Q J U D G M E N T ______________ R R S S 1. Article 24(2)(4) of the Basic Law provides that persons not of T T Chinese nationality who have entered Hong Kong with valid travel U U V V

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- 2 - A A B B 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 C C permanent residence shall be permanent residents of Hong Kong. The D D 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. E E Though this case focuses on the position of the FDH, in the light of the F F 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 G G Immigration Ordinance. H H 2. Cases on right of abode often bring about debates amongst I I members of the public. Since the resumption of sovereignty over Hong J J 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 K K impact on the society. It is not surprising that people in Hong Kong are L L concerned as to the possible outcome. Neither is it surprising that the Government has to prepare for different contingencies based on its M M assessment of the potential impact. N N 3. The court respects the freedom of expression of our citizens. O O At the same time, public discussions on the case often go beyond the legal P P issues which the court can properly resolve in the litigation. Again this is not surprising since the socio-economic and political implications of a Q Q particular outcome necessarily transcend the legal analysis of the issues R R before the court. S S 4. But it is important that such public discussions should not be T T allowed to confuse the proper remit of the adjudicative function of the U U V V

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- 3 - A A B B 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 C C which he or she has to determine. In this case, what is in issue before me is D D the constitutionality of Section 2(4)(a)(vi) of the Immigration Ordinance. The submissions of the parties revolve around the proper construction of E E Article 24(2)(4), in particular, the expression ordinarily resided. The F F 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 G G this question without regard to any other arguments based on politics or H H socio-economic considerations. I I 5. In the light of the public attention drawn to this case and the J J 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 K K right that I should state clearly the nature of the judicial process at the L L outset. As mentioned, I can quite understand why this case generates so much public interest. I have no intention of stopping people from having M M discussion on the topic based on their own perspectives. However, what I N N should not allow to happen is to let such discussion influence this court in the process of judicial adjudication. Unlike the political process, the O O judicial process is not subject to any lobbying. It is important that judges P P are able to perform their judicial function independently, impartially and fearlessly. Our judicial oath requires judges to serve the Hong Kong Q Q Special Administrative Region conscientiously, dutifully, in full R R accordance with the law, honestly and with integrity, safeguard the law and administer justice without fear or favour, self-interest or deceit. S S T T U U V V

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- 4 - A A B B 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 C C views on the topic held by different persons and none of them seek to D D 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 E E independence of the Judiciary is fundamental to the confidence in our F F administration of justice. Therefore, it is important for the general public to understand that this judgment is concerned exclusively with the legal G G merits of the Applicant‟s arguments. It is NOT a judgment on whether as a H H 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 I I to construe the Article and apply it in accordance with its true meaning. J J K The two systems of interpretation and the 1999 Interpretation K 7. In respect of the proper approach to the construction of the L L Basic Law, the Court of Final Appeal has laid down the relevant principles M M 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 N N adjudicating cases, the Standing Committee of the National Peoples O O 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) P P of the Constitution of the Peoples Republic of China. In Lau Kong Yung v Q Q Director of Immigration (1999) 2 HKCFAR 300, the Court of Final Appeal acknowledged the power of the Standing Committee to interpret R R the Basic Law and the binding effect of such an interpretation. This was S S reiterated by Li CJ in Director of Immigration v Chong Fung Yuen (2001) T 4 HKCFAR 211 at p.222G, T U U V V

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- 5 - A A B “…where the Standing Committee has made an interpretation of B the Basic Law pursuant to its power under art.67(4) of the Chinese Constitution and art.158 of the Basic Law, the courts in C C Hong Kong are under a duty to follow it. D D At p.222H, it was further accepted that, that power of the Standing Committee extends to every E E provision in the Basic Law and is not limited to the excluded provisions referred to in art.158(3). F F 8. In Director of Immigration v Chong Fung Yuen (2001) 4 G G HKCFAR 211, Li CJ referred to the difference between the mainland H H system for interpretation of the Basic Law and the common law approach in Hong Kong. Subject to any interpretation already made by the Standing I I Committee, the Court of Final Appeal held that the courts in Hong Kong J J are bound to apply the common law in exercising their power of K interpretation, see p.222C to E. K L L 9. Thus, there are two different approaches to the interpretation M M of the Basic Law, (a) The mainland system by the exercise of the power of N N interpretation by the Standing Committee; O O (b) The common law approach applied by the courts in Hong P P Kong. Q Q Since these are different approaches, there could be occasions where different conclusions may be reached under the two approaches. Though R R the Basic Law was enacted as a mini-constitution for Hong Kong, it is also S S a piece of legislation by the National peoples Congress of the Peoples Republic of China. Given that most of the drafters of the Basic Law did T T U U V V

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- 6 - A A B B 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 C C Basic Law to provide for two systems of interpretation. As decided in Lau D D 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 E E are obliged to follow the interpretations by the Standing Committee. F F 10. In 1999, the Standing Committee interpreted Articles 22(4) G G and 24(2)(3) of the Basic Law [the 1999 Interpretation] and arrived at a H H 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 I I two articles, the following was also stated, J J The legislative intent as stated by this Interpretation, together with the legislative intent of all other categories of Article 24(2) K K of the Basic Law have been reflected in the Opinions on the Implementation of Article 24(2) of the Basic Law of the Hong Kong Special Administrative Region of the Peoples Republic of L L China adopted at the Fourth Plenary Meeting of the Preparatory Committee for the Hong Kong Special Administrative Region of M the National Peoples Congress on 10 August 1996. M As from the promulgation of this Interpretation, the courts of the N N Hong Kong Special Administrative Region, when referring to the relevant provisions of the Basic Law of the Hong Kong Special Administrative Region of the Peoples Republic of China, shall O O adhere to this Interpretation. …” P P 11. The effect of these parts of the 1999 Interpretation was Q Q 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 R R interpretation could have binding impact in Hong Kong is Article 158. S S 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 T T U U V V

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- 7 - A A B B 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 C C by those paragraphs. D D 12. In the Court of Appeal, counsel for the Director accepted that E E there had not been any interpretation of article 24(2)(1) and no F F 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 G G indicating the legislative intent for article 24(2)(1). In the light of that, the H H 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). I I J J 13. When the case reached the Court of Final Appeal, as stated above, the Chief Justice referred to the binding effect of an interpretation K K of the Standing Committee under Article 67(4) as well as Article 158. L L However, because of the concession by the Director that these paragraphs did not amount to a binding interpretation (see (2001) 4 HKCFAR 211 at M M p.223D to E), the court did not act on the same. N N 14. In the present case, Lord Pannick QC (who appeared for the O O Commissioner together with Mr Chow SC and Ms Sit) reserved the right to P P 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 Q Q court was bound by the decision of the Court of Appeal in Chong Fung R R 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 S S issues in the present case on that basis. In accordance with the guidance T T given by the Court of Final Appeal in Chong Fung Yuen, in the absence of U U V V

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- 8 - A A B B any binding interpretation by the Standing Committee, this court shall apply the common law approach to interpret Article 24(2)(4). C C D D Permanent residents and right of abode E E 15. Chapter III of the Basic Law sets out the fundamental rights and duties of the residents of the Hong Kong Special Administrative F F Region. However, the rights and duties of different categories of persons G G are not exactly the same. The Basic Law classifies the persons in Hong Kong into three different categories, H H (a) Permanent residents; I I (b) Non-permanent residents; J J (c) Persons who are not residents, or in short, non-residents. K K 16. Some fundamental rights are only enjoyed by permanent L L residents: the right to vote and the right to stand for election under Article M M 26. Other fundamental rights are enjoyed by all residents and, by reason of Article 41, also by non-residents in accordance with law. N N O O 17. The major distinction between permanent and non-permanent resident is, however, the right of abode in Hong Kong. This is provided for P P under Article 24 of the Basic Law. Permanent residents are entitled to Q Q obtain permanent identity cards which state their right of abode. Non- permanent residents (and also non-residents) have no right of abode. R R S S 18. The distinction between non-permanent resident and non- resident depends on the qualification to obtain the Hong Kong identity T T U U V V

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- 9 - A A B B card. Article 24(4) provides that non-permanent residents shall be persons who are qualified to obtain Hong Kong identity cards in accordance with C C the laws of the region but have no right of abode. The reference here is to D D identity cards, not permanent identity cards. E E 19. Who can obtain the identity card? This is not set out in the F F 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 G G Registration of Persons Ordinance [RPO] Cap.177 and Registration of H H Persons Regulations [RPR]. Section 3 of the RPO requires every person in Hong Kong, unless exempted or excluded, to be registered in I I accordance with the RPR. Regulation 3 of the RPR requires every person J J 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. K K L 1L 20. Exempted persons are those exempted under regulation 25. However, these people can still apply for identity cards if they so desire M M and if the Commissioner allows, see the proviso to regulation 25. N N 21. Hence, the only persons not qualified to obtain identity cards O O are the excluded persons specified under regulation 25A. These are, P P broadly speaking, the Vietnamese refugees and children of Chinese permanent residents of Hong Kong born out of Hong Kong and residing in Q Q the meantime in the mainland. R R S S 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. T T Another major category is children under 11, see regulation 25(g). U U V V

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- 10 - A A B B 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 C C characterized this right as a core right. The substance of that right is spelt D D 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 E E upon him any condition of stay, and the right not to be deported or F F removed. G G 23. In other words, a permanent resident would not be subject to H H any restriction in respect of his or her employment, place of residence and duration of stay in Hong Kong. I I J J 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 K K Article 24(2)(4), L L Persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in M M Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special N N Administrative Region. O O 25. There are four elements in Article 24(2)(4): P P (a) Persons not of Chinese nationality; Q Q (b) Entered Hong Kong with valid travel documents; R R (c) Ordinarily resided in Hong Kong for a continuous period of not less than seven years; S S (d) Having taken Hong Kong as his or her place of permanent T T residence. U U V V

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