Commissioner of Registration v Registration of Persons Tribunal
Court of First Instance
Constitutional and Administrative Law List No. 11 of 2013
Thomas Au J
Immigration
4 March 2015

Permanent residency – right of abode after July 1997 – relevance of HKID card issued before July 1997 – applicability of Art. 5 of Chinese Nationality Law

X’s parents were permanent residents of Hong Kong. They arrived in the United Kingdom in 1968 and 1971 respectively as British subjects. X was born in the UK in 1974. X arrived in Hong Kong in 1995 and left after he was granted an old HK permanent identity card (the “Old HKPIC”) based on the relevant law at that time. X returned to Hong Kong in 2010 and applied for a new smart HK identity card. The Commissioner of Registration (the “Commissioner”) refused X’s application based on the prevailing law enacted after 1 July 1997. X appealed to the Registration of Persons Tribunal (“Tribunal”) which allowed his appeal (the “Decision”). The Commissioner sought to judicially review the Decision.

Held, quashing the Decision and remitting the case to a differently constituted Tribunal for reconsideration, that:

The Old HKPIC was not prima facie evidence of right of abode

  • The statutory criteria governing whether a person was a permanent resident of Hong Kong were different before and after July 1997. After 1July 1997 and pertaining to Art.24 of the Basic Law (para. 2(c) of Sch.1), X needed to show that he was of Chinese nationality born outside Hong Kong of parents who were born in Hong Kong, and were of Chinese Nationals at the time of his birth. The Old HKPIC was not evidence as to whether that was so, particularly when the Old HKPIC was issued to X for his right of abode entitlement before July 1997 under the old law. There was therefore no relevant “status quo ante” for the Commissioner to upset.

Retrospective effect of Art.5 of Chinese Nationality Law (“CNL”)

  • Article 5 of CNL provided a complete code for when a person born abroad to Chinese national parents shall or shall not be regarded as a Chinese national. There was no sound basis for the Tribunal to disapply Art. 5 for the reason that it could not be applied retrospectively to cases where the subject person had already acquired Chinese nationality before 1980. There was nothing to show that, as a matter of PRC law, X had already acquired Chinese nationality when he was born in 1974. In any event, the Tribunal had also erred in law in concluding that X had proved his right of abode by relying on the Old HKPIC as prima facie evidence without investigating the underlying basis for X’s said entitlement.

Thomson Reuters – Sweet & Maxwell are the publishers of the Authorised Hong Kong Law Reports & Digest ("HKLRD") and the Authorised Hong Kong Court of Final Appeal Reports ("HKCFAR"), and providers of Westlaw HK (www.sweetandmaxwell.com.hk / www.westlaw.com.hk).