GURUNG KESH BAHADUR v. DIRECTOR OF IMMIGRATION

bjbj FACV No. 17 of 2001 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION FINAL APPEAL NO. 17 OF 2001 (CIVIL) (ON APPEAL FROM CACV NO. 216 OF 2000) _____________________ Between: GURUNG KESH BAHADUR Applicant (Respondent) - and - DIRECTOR OF IMMIGRATION Respondent (Appellant) _____________________ Court: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ Dates of Hearing: 10 and 11 July 2002 Date of Judgment: 30 July 2002 J U D G M E N T Chief Justice Li: Introduction The Basic Law provides that residents of the Hong Kong Special Administrative Region shall include permanent residents and non-permanent residents. Permanent residents have the right of abode in Hong Kong. Non-permanent residents are persons who are qualified to obtain Hong Kong identity cards in accordance with the laws of the Region but have no right of abode. Art.24. There are approximately one million non-permanent residents. They include Mainland Chinese who, not enjoying the right of abode in Hong Kong, have been permitted to come to Hong Kong on one-way permits for settlement and in many cases to reunite with their families. They do not become permanent residents until they have ordinarily resided for a continuous period of not less than seven years and they are, in the meanwhile, non-permanent residents. Non-permanent residents also include persons from many jurisdictions who have come to work in Hong Kong which is an international centre of business, finance and trade. Chapter III of the Basic Law provides for the rights and freedoms of residents. Apart from the right of abode (art.24) and the rights to vote and to stand for election (art.26) which are enjoyed only by permanent residents, Chapter III does not distinguish between permanent and non-permanent residents. The rights and freedoms provided for are enjoyed by all residents, both permanent and non-permanent. As the Court has emphasised in previous judgments, these rights and freedoms lie at the heart of Hong Kong s separate system. This appeal concerns the freedom to travel and to enter Hong Kong guaranteed by art.31 of the Basic Law in respect of a non-permanent resident who had been granted permission to stay with a limit of stay which had not expired. The essential question is whether the immigration authorities could lawfully refuse such a non-permanent resident permission to land, when he returns during the unexpired period of the limit of stay previously granted after travelling outside Hong Kong. The applicant in the judicial review proceedings is the respondent in this appeal and will be referred to as the respondent . The Director of Immigration, the respondent in the judicial review proceedings, is the appellant in this appeal and will be referred to as the Director . The Immigration Ordinance, Cap.115, will be referred to as the Ordinance . The facts The detailed facts are set out in the judgment of Rogers V-P in the Court of Appeal. It is unnecessary to set them out here. For the purposes of this appeal, the essential facts can be shortly stated. The respondent is a citizen of Nepal. He had served in Hong Kong for some years as a member of the Gurkha Regiment in the British Army before retiring in early 1994. During 1994, he visited Hong Kong on two occasions when he tried unsuccessfully to change his status from visitor to resident. In 1995, he visited again and was allowed to change his status from visitor to dependant of his wife who was a permanent resident of the HKSAR. He was given a limit of stay of twelve months. Subsequent extensions were granted. The last extension was given on 2 July 1996 to expire on 9 January 1999. Since June 1995, he has resided in Hong Kong operating two businesses, an employment agency and a construction business. On 28 October 1997, the respondent left Hong Kong for Nepal. On 4 November 1997, he returned and after questioning, was refused permission to land on 5 November 1997. The respondent was however kept in Hong Kong and was prosecuted for offences under the Ordinance. The charges related to alleged false declarations of his date of birth when he arrived in 1992 and 1994. He was acquitted. The magistrate accepted his evidence that he knew the declared dates of birth to be wrong but he had followed the dates on his passport at the time which had resulted from a mistake made by the Nepalese authorities and which he had unsuccessfully tried to persuade them to correct. On 10 December 1998, the Director made a removal order against the respondent under s.19(1)(b) of the Ordinance. The respondent appealed to the Immigration Tribunal which can only entertain and allow appeals on limited grounds. When he appealed, the Director gave reasons relevant to such limited grounds for the removal order pursuant to the Immigration Regulations. The Tribunal allowed his appeal. But on the Director s application for judicial review, the Tribunal s decision was quashed. In January 2000, the Tribunal, reconsidering the matter, dismissed the respondent s appeal. The respondent then brought the present judicial review proceedings challenging the Director s decision to refuse him permission to land on 5 November 1997 and his decision to make the removal order on 10 December 1998. In affidavits filed on behalf of the Director, immigration officials deposed to the reasons for refusing him permission to land and for the removal order. These reasons, which had not been given earlier, included the ground that the respondent was a person of dubious character having engaged in dubious activities as an immigration consultant. The judge and the Court of Appeal In May 2000, Hartmann J. dismissed the respondent s challenge. In June 2001, the Court of Appeal (Rogers V-P, Le Pichon JA and Yuen J) allowed his appeal, holding that his rights under art.31 of the Basic Law had been infringed. Non-permanent resident The respondent was a non-permanent resident. This was accepted by the Director. He had no right of abode but was qualified to obtain a Hong Kong identity card in accordance with the laws of Hong Kong. He has in fact held an identity card since 1995. Every person who is in Hong Kong is required to be registered and to apply for an identity card unless exempted or excluded by the Regulations. Section 3 of the Registration of Persons Ordinance, Cap.177 and s.3 of the Registration of Persons Regulations. The respondent was not within any exemption or exclusion. It should be noted that persons granted permission to remain in Hong Kong by the Director for a period of not more than 180 days are exempted. But the respondent was not within this exemption since he had been granted permission to remain for more than 180 days. It should be emphasised that when he was refused permission to land on 5 November 1997 and when the removal order was made against him on 10 December 1998, the permitted limit on his stay had not expired. It would only expire on 9 January 1999. The Immigration Ordinance The Ordinance provides for a scheme of immigration control. It is only necessary to refer to the provisions relevant to this appeal. An immigration officer or assistant has the power to examine any person on his arrival or landing in or prior to his departure from Hong Kong. Section 4(1)(a). He may not land without the permission of an immigration officer or assistant. Section 7(1). The definition of land includes enter by land . Section 2. Whilst either official has the power to give permission, only the more senior official, the immigration officer (as opposed to the immigration assistant) has the power to refuse permission. Section 11(1). Where a person is refused permission to land, an immigration officer or a chief immigration assistant has the power to remove him from Hong Kong. But the power vested in them is only exercisable within two months of the date on which the person landed. Sections 18(1) and (2). After two months, a removal order can be made against him but it must be made at a high level in the Immigration Department, namely, by the Director, defined for this purpose to include any Deputy Director or any assistant director of immigration, who has to be satisfied that the person might have been removed under s.18 if the two months time limit provided for therein had not expired. Sections 19(1)(b)(i) and 19(6). As has been mentioned, where the Director makes a removal order, there is a right of appeal to the Immigration Tribunal but only on limited grounds. Where permission to land is given to the person concerned, an immigration officer or assistant may impose a limit of stay and such other conditions of stay as he thinks fit. Section 11(2). Once permission has been given with a limit of stay, as in the case of the respondent, the position during the unexpired period of the limit of stay is as follows. First, only the Chief Executive has the power to curtail the permitted period of stay. Section 11(6). Secondly, the Chief Executive has the power to make a removal order if it appears to him that the person concerned is an undesirable immigrant who has not been ordinarily resident for three years or more. Section 19(1)(a). Immigrant is defined to mean a person who is not a Hong Kong permanent resident and would therefore include a non-permanent resident. Section 2. Thirdly, the Chief Executive has the power to make a deportation order against the person concerned if (a) he has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than two years; or (b) the Chief Executive deems it to be conducive to the public good. Section 20(1). In summary, during the unexpired period of the limit of stay imposed on the person concerned, only the Chief Executive can curtail the period or make a removal or deportation order against him. Section 11(10) is a crucial provision. It provides : Any permission given to a person to land or remain in Hong Kong shall, if in force on the day that person departs from Hong Kong, expire immediately after his departure. A central question in this appeal is whether its application to the respondent is inconsistent with his freedom to travel and to enter guaranteed by art.31 of the Basic Law. Articles 31 and 39 of the Basic Law Article 31 of the Basic Law provides : Hong Kong residents shall have freedom of movement within the Hong Kong Special Administrative Region and freedom of emigration to other countries and regions. They shall have freedom to travel and to enter or leave the Region. Unless restrained by law, holders of valid travel documents shall be free to leave the Region without special authorization. Article 31 confers on residents, permanent and non-permanent, a number of rights and freedoms. The second sentence guarantees the freedom to travel and to enter or leave the Region The freedom to travel on its own in relation to a jurisdiction would involve the freedom to depart from and return to that jurisdiction. In any event, this is expressly provided for by the words and to enter or leave the Region in the second sentence after the freedom to travel . This appeal concerns the freedom to travel and to enter the Region . Article 39 of the Basic Law provides : The provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article. The provisions of the International Covenant on Civil and Political Rights ( the ICCPR ) as applied to Hong Kong were implemented through the Hong Kong Bill of Rights Ordinance, Cap.383, which contains the Hong Kong Bill of Rights ( the Bill ). That Ordinance effects the incorporation of the ICCPR as applied to Hong Kong into our laws. See Shum Kwok Sher v. HKSAR FACC No.1 of 2002 (10 July 2002) para.53, HKSAR v. Ng Kung Siu (1999) 2 HKCFAR 442 at 455. The ICCPR as applied to Hong Kong was subject to the reservation, originally made by the United Kingdom, that immigration legislation as regards persons not having the right to enter and remain could continue to apply. It is unnecessary to set out the terms of the reservation in full since it is reflected in s.11 of the Hong Kong Bill of Rights Ordinance. This provides : As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation. A person with the right of abode and hence the right to enter and remain is provided for in art.8(4) of the Bill in these terms : No one who has the right of abode in Hong Kong shall be arbitrarily deprived of the right to enter Hong Kong. Non-permanent residents of course do not enjoy the right of abode and art.8(4) is inapplicable to them. Article 8(4) of the Bill is based on art.12(4) of the ICCPR which provides : No one shall be arbitrarily deprived of the right to enter his own country . The Director s primary submission The primary submission of Mr David Pannick QC for the Director is that the rights in art.31 are subject to art.39. He argues that on its plain language, art.39(2) permits the restriction of all rights and freedoms enjoyed by residents (whether contained in the Basic Law itself or in the Bill incorporating the ICCPR as applied to Hong Kong), provided the two requirements prescribed therein are satisfied, namely, (i) the restrictions must be prescribed by law and (ii) the restrictions must not contravene the ICCPR as applied to Hong Kong. In other words, the rights (or at any rate most rights excepting those which are by their nature absolute, such as the right not to be subjected to torture) are only prima facie rights, as he calls them, and can be restricted provided the two requirements are met. The second requirement is not relevant to the right to travel and the right to enter conferred on non-permanent residents by art.31. This is because those rights are not provided for in the ICCPR as applied to Hong Kong and their restriction would not therefore contravene the Covenant. It follows, so the argument runs, that only the first requirement is relevant to the rights in question which may therefore be restricted without any limitation so long as the restrictions are prescribed by law. Here, the restrictions are prescribed by law as contained in the Immigration Ordinance, including s.11(10). If this makes these rights of non-permanent residents precarious, Mr Pannick points out that the status of non-permanent residents is itself precarious as it is defined in the Basic Law by reference to domestic legislation which may be changed from time to time. Mr Pannick submits that there is nothing surprising in this arrangement, bearing in mind that the standards in the ICCPR as applied to Hong Kong already provide for a strong body of rights. In considering the Director s primary submission, the starting point must be the proper approach to the interpretation of Chapter III of the Basic Law in which arts.31 and 39 are contained. A generous approach should be adopted to the interpretation of the rights and freedoms whilst restrictions to them should be narrowly interpreted Ng Ka Ling v. Director of Immigration (1999) 2 HKCFAR 4 at 28I 29A and HKSAR v. Ng Kung Siu (1999) 2 HKCFAR 442 at 457B. (In this context, right and freedom are used interchangeably). So, art.31 providing for the right to travel and the right to enter should be generously interpreted. On the other hand, art.39(2), which deals with the question of restrictions to rights and freedoms, should be narrowly interpreted. Article 39(1) provides for the incorporation into the laws of Hong Kong of the ICCPR as applied to Hong Kong. As has been pointed out, the Hong Kong Bill of Rights Ordinance containing the Bill has effected such incorporation. The ICCPR as applied to Hong Kong as incorporated by the Bill only provides for minimum standards for rights which are internationally recognised. The Basic Law can provide for rights additional to such minimum standards. When art.39(2) proceeds to deal with the question of restrictions on rights and freedoms, it refers to the rights and freedoms enjoyed by Hong Kong residents . A right may be provided for (i) in both the Basic Law and the Bill; or (ii) only in the Basic Law and not in the Bill; or (iii) only in the Bill but not in the Basic Law. An example of (i) is the freedom of speech or the freedom of expression. It is to be found both in the Basic Law (art.27) and in the Bill (art.16). Here, one is concerned with the right to travel and the right to enter conferred on non-permanent residents. These rights are an example of (ii) above. They are not provided for and are additional to those in the Bill. They are created by the Basic Law and are only provided for therein. Article 39(2) is protective of the rights and freedoms of Hong Kong residents. Its provisions make it clear first, that such rights and freedoms may not be restricted unless as prescribed by law. Secondly, even if the restrictive measures are prescribed by law, art.39(2) provides that the restrictions shall not contravene provisions of the ICCPR as applied to Hong Kong, that is, as incorporated by the Bill. Thus, in the context of rights recognized by the ICCPR as applied to Hong Kong, (whether or not such rights are also enshrined in the Basic Law), art.39(2) spells out the two requirements which any purported restriction must satisfy. But where as in the present case, one is concerned with rights conferred by the Basic Law, which are not found in and are additional to those provided for by the ICCPR as applied to Hong Kong, art.39(2) does not imply that such rights may be freely qualified or limited simply by restrictions which are prescribed by law. In the context of rights contained only in the Basic Law, the second requirement in art.39(2), which any purported restriction must satisfy, has no application because the rights in question are conferred by the Basic Law and not by the ICCPR as applied to Hong Kong. But it does not follow that rights found only in the Basic Law can be restricted without limitation provided the restrictions are prescribed by law. The question of whether rights found only in the Basic Law can be restricted and if so the test for judging permissible restrictions would depend on the nature and subject matter of the rights in issue. This would turn on the proper interpretation of the Basic Law and is ultimately a matter for the courts. If it were otherwise and the Director s primary submission were correct, it would mean that where the Basic Law has chosen to confer rights additional to the minimum guarantees provided for in the ICCPR as applied to Hong Kong incorporated by the Bill, these additional rights could be swept away by domestic legislation and would therefore be much less secure than the rights in the Bill, whether or not they are also provided for in the Basic Law. This could not have been the intention of the Basic Law. The intention of the Basic Law was to entrench constitutionally the rights and freedoms in Chapter III, rights and freedoms which are essential to Hong Kong s separate system, and the courts have the duty of safeguarding and protecting them by adopting a generous approach to their interpretation. Two further points should be mentioned. First, it is of no assistance to the Director s case that the class of non-permanent residents is defined in the Basic Law by reference to domestic legislation governing those who are qualified to obtain Hong Kong identity cards and that such domestic legislation may expand or reduce the class from time to time. The fact is that the status of non-permanent residents is one that is recognised by the Basic Law and they enjoy rights and freedoms guaranteed by the Basic Law. Secondly, in support of the Director s primary submission, Mr Pannick relies on the following passage in the judgment of Chan, CJHC (as he then was) and Keith J in Secretary for Justice v. The Oriental Press Group Ltd [1998] 2 HKLRD 123 at 164J 165A. art.27 merely identifies a particular group of fundamental rights and freedoms which the Basic Law guarantees. It does not purport to prevent the enactment of restrictions on those rights. The effect of art.39 is to permit restrictions on the rights protected in Chap.III, provided that those restrictions are provided by law (for example, art.16(3) of the Bill of Rights) and are compatible with various international instruments, including the [ICCPR]. That case concerned the offence of contempt by scandalising the court and the freedom of expression. That freedom is guaranteed both by the Basic Law and the Bill incorporating the ICCPR as applied to Hong Kong and it was in the context of such a freedom that the passage referred to restrictions being permissible provided both requirements are satisfied. The passage was not discussing rights such as the right to travel and the right to enter which are guaranteed only in the Basic Law and not in the ICCPR as applied to Hong Kong. Accordingly, the Director s primary submission must be rejected. The Director s supplementary submission If his primary submission fails, Mr Pannick, in seeking to uphold the decisions to refuse the respondent permission to land and to remove him, advances in the alternative a supplementary submission which runs as follows : The principle of proportionality should apply to restrictions on the right to travel and the right to enter. This means that on the facts of a particular case the following questions must be asked (i) whether the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) whether the measures designed to meet the legislative objective are rationally connected to it; and (iii) whether the means used to impair the right or freedom are no more than is necessary to accomplish the objective. In the present context, such a test would mean that the immigration officer must ask himself whether there is a sufficiently strong State interest requiring the refusal of permission to enter even though the person concerned is a non-permanent resident who would be returning within the currency of an existing leave but for s.11(10) of the Ordinance, and having regard also to all the reasons why the individual is returning to Hong Kong (home, family, business etc). In dealing with the matter, a fair procedure would have to be adopted. The Director s supplementary submission can be disposed of shortly. Assuming (without deciding) that having regard to their nature and subject matter, the right to travel and the right to enter in art.31 of the Basic Law could be subject to restrictions and that the test of proportionality is the appropriate test for judging the extent of permissible restrictions, the restrictions must be prescribed by law . In the present context, this would have to involve the introduction of a statutory scheme specifically designed for the purpose of prescribing restrictions on the constitutional rights of non-permanent residents to travel and to enter together with such safeguards as may be thought appropriate. The expression prescribed by law was recently considered by this Court in Shum Kwok Sher v. HKSAR para.60-65. The expression signifies that a law must be formulated with a sufficient degree of precision just how much depends upon the nature and content of the subject matter in question so that the individual is given some indication as to how he may regulate his conduct. The requirement that restrictions must be prescribed by law could not be satisfied by the existence of general discretionary powers for immigration control vested in immigration officials under the Ordinance and by their undertaking administratively the exercise of considering the imposition of restrictions on such constitutional rights of non-permanent residents on a case by case basis at immigration counters at entry points. Accordingly, the Director s supplementary submission must also be rejected. The question of whether such a scheme needs to be introduced is of course not a matter for the courts, which ultimately have the task of determining the constitutional validity of any scheme. In this connection, it must be borne in mind that there already exists powers in the Ordinance for curtailing the stay of any non-permanent resident whose limit of stay has not expired. Article 31 and s.11(10) Having rejected both the Director s primary and supplementary submissions, the scope of the constitutional rights in question must now be examined. One is concerned with the right to travel and the right to enter guaranteed by art.31 of a non-permanent resident who has been granted permission to stay where the limit of stay has not expired. If s.11(10) of the Ordinance were to apply to such a non-permanent resident, the permission already granted to him would expire immediately after his departure. Upon his return, he would have to seek permission to land afresh. This would be the statutory consequence, notwithstanding that the original permitted limit of stay had not expired at the time of his re-entering, and irrespective of the purpose or duration of his travel outside Hong Kong. This would be the inevitable consequence if, for example, he departed just for a few hours to play golf on the Mainland. Indeed, as submitted by Mr Philip Dykes SC for the respondent, by departing for however short a time, he would lose his status as a non-permanent resident altogether. This is because on the automatic expiry of the permission previously granted immediately after departure, he would cease to be qualified to obtain an identity card under the relevant legislation. The rights to travel and to enter are constitutionally guaranteed by art.31 of the Basic Law and the courts must give them a generous interpretation. In the case of a non-permanent resident whose permitted limit of stay had not expired, his right to re-enter Hong Kong after travelling is an essential element of these rights. To deprive such a non-permanent resident of his right to re-enter Hong Kong by reason of his travelling outside Hong Kong is to contravene his rights to travel and to enter under art.31. Any application of s.11(10) to such a non-permanent resident would contravene these rights. This is because that provision fastens on the exercise of his right to travel, that is his departure, as the reason which triggers automatically the termination of the permission previously granted to him with a limit of stay which had not expired. Indeed, by effecting such termination, the application of s.11(10) to him would destroy his status as a non-permanent resident which is the foundation of the rights conferred by art.31. It is unnecessary to consider in this case whether the rights to travel and to enter under art.31 could be subject to restrictions and if so, the test for judging permissible restrictions. Even assuming the rights in question can be restricted, the application of s.11(10) to him as discussed above would not merely amount to restrictions on his rights to travel and to enter. Such application would be totally inconsistent with his rights and indeed would have the effect of abrogating the rights in question. Accordingly, the application of s.11(10) to him would infringe his constitutional rights to travel and to enter under art.31 and such application would be unconstitutional and invalid. After travelling outside Hong Kong, such a non-permanent resident has the right to re-enter Hong Kong on the basis of the permission previously granted with a limit of stay which had not expired. Since s.11(10) does not apply to him, the previous permission would not have expired by virtue of departure. The previous permission with the unexpired limit of stay would, notwithstanding his departure for travelling, continue to be effective. Section 7(1) of the Ordinance must be construed consistently with art.31. Accordingly, the word permission in s.7(1) must be construed to include permission previously given where a limit of stay is still current at the time of re entry. Since s.11(10) does not apply to him, a non-permanent resident with such previous permission is therefore entitled to land and does not need a further grant of permission to land under s.7(1). Section 11(10) itself is not unconstitutional. It is its application to a non-permanent resident, whose permitted limit of stay has not expired, which is inconsistent with his rights under art.31 of the Basic Law. Section 11(10) continues validly to apply to persons who are not non-permanent residents with an unexpired limit of stay, for example, to visitors. As with any person, including a permanent resident who enjoys the right of abode, a non-permanent resident with an unexpired permitted limit of stay may be examined by immigration officials under s.4 of the Ordinance. But he does not require permission to land under s.7 because the previous permission with the unexpired limit of stay remains effective. As pointed out by Mr Pannick, such a non-permanent resident in effect would enjoy an important element of the right of abode. See ss.2A(1)(a) and 7(1). But this is only one of the elements of the right of abode and is enjoyed by such a non-permanent resident during and only during the unexpired permitted limit of stay. There is nothing surprising in this result. It follows from his rights to travel and to enter guaranteed by art.31. These rights in the new order were created by the Basic Law. It must be emphasised that this judgment only concerns a non-permanent resident in a position like the respondent, whose permitted limit of stay has not expired. A person whose limit of stay has expired would cease to be a non-permanent resident and would be in a very different position. Further, as has been pointed out, as regards a non-permanent resident in the position of the respondent, the Ordinance contains powers for curtailing the period of his permitted limit of stay as well as for his removal and deportation. Having regard to the conclusion reached, it is unnecessary to deal with other arguments advanced by Mr Dykes in support of his contentions on art.31 or to deal with the separate issue concerning the reasons that should be given when an appeal is made to the Immigration Tribunal against a removal order. Result The Director s appeal must be dismissed. Costs There shall be an order nisi for costs in favour of the respondent. Any party challenging it should lodge written submissions within 21 days. If no written submissions are received, the order nisi shall become absolute. Mr Justice Bokhary PJ: Despite the arguments so ably presented by Mr David Pannick QC for the Director of Immigration, I respectfully agree with the Chief Justice s judgment dismissing this appeal with costs nisi. All that I would add is the following. This case concerns Hong Kong s non-permanent residents. In particular, it concerns their position when, after travelling outside Hong Kong, they return here within the period for which they have been given permission to be here. They do not have the right of abode. So they rely on their permission to remain. Permission to enter must be understood as an inherent antecedent of permission to remain. And permission to remain so understood is obviously an essential element of non-permanent residents status as residents. Axiomatically, therefore, their very status as residents is coterminous with their permission to remain. What if, as the Director contends, such permission expires merely because they travel out of Hong Kong? It would mean that exercising their constitutional freedom to travel (under art.31 of the Basic Law) would destroy their constitutional status as residents (under art.24 of the Basic Law). Such a consequence would be plainly unconstitutional. For it would so inhibit or penalise travel on the part of non-permanent residents as virtually to abrogate their freedom to travel. Section 11(10) of the Immigration Ordinance, Cap.115, provides that permission to remain expires immediately after departure. So s.11(10) would have to be struck down if it had to be read as applicable even to non-permanent residents within the period for which they have been given permission to be here. But s.11(10) can intelligibly ( and therefore should properly ( be given the limited reading referred to in the Chief Justice s judgment. Having said that the consequence of accepting the Director s contention in the present case would be the virtual abrogation of the freedom concerned, I should guard strongly against giving the impression that nothing is liable to be adjudged unconstitutional unless it goes so far as virtually to abrogate the right or freedom concerned. Let us assume that the right or freedom concerned is susceptible of some restriction. And let us assume also that the way in which the legislation in question touches upon such right or freedom stops well short of virtually abrogating the same. Even so, it does not mean that such legislation is immune from constitutional review by the courts. For there would still be the question of whether such legislation is unconstitutional on some other basis. It might, for example, be unconstitutional because it unreasonably burdens or restricts the right or freedom concerned. Having offered that example, I should present its credentials. In the course of the argument, I drew counsel s attention to certain decisions of the United States Supreme Court on the constitutional freedom of citizens of the United States to travel from one State to another. Shapiro v. Thompson 394 US 618 (1969) struck down Connecticut, District of Columbia and Pennsylvania requirements of one year s residence in those respective jurisdictions before receiving any welfare benefit there. Dunn v. Blumstein 405 US 330 (1972) struck down a Tennessee requirement of one year s residence in that State before being entitled to vote in State elections. Memorial Hospital v. Maricopa County 415 US 250 (1974) struck down an Arizona requirement of one year s residence in a county before being entitled to non-emergency hospitalisation or medical care at that county s expense. Saenz v. Roe 526 US 489 (1999) struck down a California limitation by which the welfare benefits payable to a family which had less than a year s residence in that State were limited to the amount payable by the State of the family s prior residence. As I understand the essentials of those decisions, their common starting point is this. Although the word travel does not appear in the text of the United States Constitution, it is nevertheless firmly embedded in American jurisprudence that citizens of the United States have a constitutional freedom to travel from one State to another. Beyond this common starting point, there appears to be room for debate as to which provision of the United States Constitution is most obviously engaged when a statute impinges upon this freedom. Two clauses of section one of the Fourteenth Amendment appear to be principal among the provisions which have been invoked in the relevant cases. One is the privileges or immunities clause which provides that No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . The other is the equal protection clause which provides that No State shall deny to any person within its jurisdiction the equal protection of the laws . In his book The Rehnquist Court and the Constitution (2000), Prof. Tinsley E. Yarbrough observes (at p.244) that in Saenz v. Roe Stevens J (who delivered the judgment of the majority) rested the interstate travel guarantee the statute was found to inhibit on what the Court apparently considered the more concrete foundation of the Fourteenth Amendment s long-neglected privileges or immunities clause rather than on the equal protection standard more traditionally invoked in travel cases . In their book Constitutional Law, 6th ed. (2000) Prof. John E. Nowak and Prof. Ronald D. Rotunda predict (at pp 989-990) that the analysis used in the equal protection right to travel cases will still be used by the Supreme Court, even if that analysis will be given the label of privileges or immunities clause analysis . However that may be, our constitutional arrangements are such that the American freedom to travel cases repay study. It is true that we do not have a provision like the privileges or immunities clause. But we find ourselves at the appropriate position without any such provision. This is because Hong Kong is a single jurisdiction rather than a union of jurisdictions. And all Hong Kong residents enjoy all Basic Law rights and freedoms apart from the three Basic Law rights reserved exclusively to permanent residents, namely the right of abode, the right to vote and the right to stand for election. As for equality, art.25 of the Basic Law provides that All Hong Kong residents shall be equal before the law . And art.31 of the Basic Law confers freedom to travel upon Hong Kong residents , not upon Hong Kong permanent residents only. The United States Supreme Court said in Shapiro v. Thompson (at p.629) and repeated in Saenz v. Roe (at p.499) that their Honours long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement. (Emphasis supplied) Whatever standard of constitutional review is applied, whether a right or freedom is unconstitutionally affected by any given piece of legislation will always depend in part on the scope of that right or freedom. And as to that, the principle by which Basic Law guarantees of rights and freedoms are interpreted is as so cogently and memorably stated by the Chief Justice in delivering the Court s judgment in Ng Ka Ling v. Director of Immigration (1999) 2 HKCFAR 4 at pp 28J 29A and repeated and applied in subsequent cases including by him in the present case. My Lord described them as the constitutional guarantees for the freedoms that lie at the heart of Hong Kong's separate system , and said that the courts should give them a generous interpretation in order to give to Hong Kong residents the full measure of fundamental rights and freedoms so constitutionally guaranteed . Mr Justice Chan PJ: I agree with the judgment of the Chief Justice. Mr Justice Ribeiro PJ: I also agree with the judgment of the Chief Justice. Sir Anthony Mason NPJ: I too agree with the judgment of the Chief Justice. Chief Justice Li: The Court unanimously dismisses the Director s appeal and makes the order nisi set out in the concluding paragraph of my judgment. (Andrew Li) (Kemal Bokhary) (Patrick Chan) Chief Justice Permanent Judge Permanent Judge (R.A.V. Ribeiro) (Sir Anthony Mason) Permanent Judge Non-Permanent Judge Mr David Pannick, QC, Mr William Marshall, SC, (instructed by Department of Justice, and Mr Tin Yan Lee, GC of that Department), for the appellant Mr Philip J. Dykes, SC and Mr Paul Harris (instructed by Messrs Jal N Karbhari & Co) for the respondent - PAGE - ,!B/ 7lS5 \oof ];hL :=z ,!B/ \oof 7lS5 & 6" FAMC No Judge Normal.dot setup Microsoft Word 9.0 FAMC No Title Microsoft Word Document MSWordDoc Word.Document.8