The High Court of the Hong Kong Special Administrative Region – Court of Appealnoted as follows:
· Even after submitting an affidavit asking the court to treat the Notice of Abandonment of Application for Leave to Appeal (Notice of Abandonment) as a nullity, a defendant may not appeal without first obtaining the leave of the competent court to treat the Notice of Abandonment as a nullity. In the instant case, the requirements to reach such nullity have not been met. However, even if the Notice of Abandonment were to be treated as a nullity, the motion for appeal would have still been denied, as explained infra.
· The defendant lodged an appeal only against his conviction for migrant smuggling. Section 37D(1)(a) of the Immigration Ordinance reads as follows:
“(1) Subject to subsection (2), any person who, on his own behalf or on behalf of any other person, whether or not such other person is in Hong Kong ―
(a) arranges or assists the passage to, or within, Hong Kong;
(b) offers to arrange or assist the passage to, or within, Hong Kong; or
(c) does or offers to do an act preparatory to or for the purpose of arranging or assisting the passage to, or within, Hong Kong,
of a person who is, or of a conveyance which carries, an unauthorized entrant, commits an offence and is liable ―
i) on conviction on indictment to a fine of $5,000,000 and to imprisonment for 14 years; (Amended 82 of 1993 s.8)
ii) on summary conviction to a fine of $350,000 and to imprisonment for 3 years. (Amended L.N. 25 of 1996)”.
· As per Section 37A of the Immigration Ordinance, an unauthorised entrant is “a person belonging to a class or description of persons who, by an order made under section 37B, are declared to be unauthorized entrants, other than a person who under subsection (2) of that section is excepted from the declaration in such order”.
· Furthermore, Section 37B of the Immigration Ordinance states that:
“(1) The Governor in Council may by order declare any class or description of persons, other than persons who enjoy the right of abode in Hong Kong, or have the right to land in Hong Kong by virtue of section 2AAA, to be unauthorized entrants.
(2) A declaration under subsection (1) may be made subject to such exceptions as are specified in the order”.
· The ‘Governor’ to which the section 37B(1) refers is the Hong Kong Governor prior to 1 July 1997. The ‘relevant order’ is the Immigration (Unauthorized Entrants) Order of 7 August 1979 (Immigration Order). The Immigration Order, which is a subsidiary legislation, provides as follows:
“2. Declaration of unauthorized entrants
(1) Subject to the exceptions specified in sub-paragraph (2), the following persons are declared to be unauthorized entrants ―
(a) all persons resident or formerly resident in Vietnam;
(aa) all persons who leave, or seek to leave, the People’s Republic of China when not in possession of documents issued in thatcountry permitting them to do so in accordance with its laws;
(b) all persons resident or formerly resident in Macau;
(c) all persons who are or have been in Macau, whether in transit or in any other circumstances whatsoever.
(2) The following persons are excepted from the declaration in subparagraph (1) ―
(a) any person holding a travel document ―
(i) in relation to which an exemption has been granted under section 61(2) of the Ordinance; or
(ii) which bears an unexpired visa issued by or on behalf of the Director of Immigration; and
(b) any person who has been granted permission to land by an immigration officer or immigration assistant”.
· The Defence’s argument in the instant appeal is, in essence, that since after 1997, Hong Kong is and integral part of China, a person assisting someone in leaving mainland China to Hong Kong or vice versa cannot incur into the offence of migrant smuggling (i.e. facilitating the passage of an ‘unauthorised entrant’). In support of this argument – and the fact that the passenger in the vessel was not an irregular migrant – the Defence invokes the following provisions
Article 1 of the Basic Law
“The Hong Kong Special Administrative Region is an inalienable part of the People’s Republic of China”.
Article 8 of the Basic Law
“The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region”.
Section 24 Interpretation and General Clauses Ordinance Laws of Hong Kong (IGCO)
(1) All laws previously in force shall be construed with such modifications, adaptations, limitations and exceptions as may be necessary so as not to contravene the Basic Law and to bring them into conformity with the status of Hong Kong as a Special Administrative Region of the People’s Republic of China.
(…)
(3) In all laws previously in force words and expressions listed in Schedule 8 shall be construed according to that Schedule”.
(…)
The relevant provision in Schedule 8 to the IGCO is: Construction on and after 1 July 1997 of words and expressions in laws previously in force.
(…)
17. Any reference to the People’s Republic of China or to China (or to similar names, terms or expressions) shall be construed as a reference to the People’s Republic of China as including Taiwan, the Hong Kong Special Administrative Region and Macau”.
· Hong Kong is a small but densely populated region. It is necessary for the Government to control the entry into Hong Kong of people from other territories in order to maintain a reasonable allocation of social resources such as employment, education and medical services. The legislative intent of the Immigration Ordinance and the Immigration Order is to control the entry into Hong Kong of people from other territories. People subject to such control include those to whom paragraph 2(1)(aa) of the Immigration Order refers, namely those who leave, or seek to leave, mainland China when not in possession of documents issued in that country permitting them to do so, in accordance with its laws.
· When interpreting the telos of the Immigration Order, the Court cannot merely look at the literal meaning thereof. Rather, it shall read in conjunction with Section 37D(1) of the Immigration Ordinance. The focus of these provisions is plainly on territorial distinction, i.e. the distinction between Hong Kong and places outside its territory. This purpose remains unaffected by the reunification of Hong Kong with China on 1 July 1997. Article 22 Basic Law supports this view: “For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval. Among them, the number of persons who enter the Region […] shall be determined by the competent authorities of the Central People’s Government after consulting the government of the Region”.
· The Interpretation by the Standing Committee of the National People’s Congress of Articles 22(4) and24(2)(3) of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China is clear on the point: “’For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval’ mean as follows: People from all provinces, autonomous regions, or municipalities directly under the Central Government, including those persons of Chinese nationality born outside Hong Kong of Hong Kong permanent residents, who wish to enter the Hong Kong Special Administrative Region for whatever reason, must apply to the relevant authorities of their residential districts for approval in accordance with the relevant national laws and administrative regulations, and must hold valid documents issued by the relevant authorities before they can enter the Hong Kong Special Administrative Region. It is unlawful for people from all provinces, autonomous regions, or municipalities directly under the Central Government, including persons of Chinese nationality born outside Hong Kong of Hong Kong permanent residents, to enter the Hong Kong Special Administrative Region without complying with the appropriate approval procedure prescribed by the relevant national laws and administrative regulations”.
· Likewise, paragraph 165 of the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong states that “Entry into the Hong Kong Special Administrative Region of person from other parts of China shall continue to be regulated in accordance with the present practice”.
· Paragraph 17 of Schedule 8 to the IGCO recalled by the Defence is not applicable to the Immigration Order. Paragraph 22 of Schedule 8 states that “This Schedule applies unless the context otherwise requires”.
· A fundamental axiom of statutory interpretation is that a statute cannot be interpreted in such a way as to render the statute absurd. The reading of the Defence leads to incoherent results. It would render Section 37D(1) Immigration Ordinance meaningless. Nor would Hong Kong need such a provision because it would not have any legal effect on those facilitating the entry into Hong Kong of irregular migrants from China.
Against this background, the High Court of the Hong Kong Special Administrative Region – Court of Appeal dismissed the appeal.
The High Court of the Hong Kong Special Administrative Region – Court of Appealnoted as follows:
· Even after submitting an affidavit asking the court to treat the Notice of Abandonment of Application for Leave to Appeal (Notice of Abandonment) as a nullity, a defendant may not appeal without first obtaining the leave of the competent court to treat the Notice of Abandonment as a nullity. In the instant case, the requirements to reach such nullity have not been met. However, even if the Notice of Abandonment were to be treated as a nullity, the motion for appeal would have still been denied, as explained infra.
· The defendant lodged an appeal only against his conviction for migrant smuggling. Section 37D(1)(a) of the Immigration Ordinance reads as follows:
“(1) Subject to subsection (2), any person who, on his own behalf or on behalf of any other person, whether or not such other person is in Hong Kong ―
(a) arranges or assists the passage to, or within, Hong Kong;
(b) offers to arrange or assist the passage to, or within, Hong Kong; or
(c) does or offers to do an act preparatory to or for the purpose of arranging or assisting the passage to, or within, Hong Kong,
of a person who is, or of a conveyance which carries, an unauthorized entrant, commits an offence and is liable ―
i) on conviction on indictment to a fine of $5,000,000 and to imprisonment for 14 years; (Amended 82 of 1993 s.8)
ii) on summary conviction to a fine of $350,000 and to imprisonment for 3 years. (Amended L.N. 25 of 1996)”.
· As per Section 37A of the Immigration Ordinance, an unauthorised entrant is “a person belonging to a class or description of persons who, by an order made under section 37B, are declared to be unauthorized entrants, other than a person who under subsection (2) of that section is excepted from the declaration in such order”.
· Furthermore, Section 37B of the Immigration Ordinance states that:
“(1) The Governor in Council may by order declare any class or description of persons, other than persons who enjoy the right of abode in Hong Kong, or have the right to land in Hong Kong by virtue of section 2AAA, to be unauthorized entrants.
(2) A declaration under subsection (1) may be made subject to such exceptions as are specified in the order”.
· The ‘Governor’ to which the section 37B(1) refers is the Hong Kong Governor prior to 1 July 1997. The ‘relevant order’ is the Immigration (Unauthorized Entrants) Order of 7 August 1979 (Immigration Order). The Immigration Order, which is a subsidiary legislation, provides as follows:
“2. Declaration of unauthorized entrants
(1) Subject to the exceptions specified in sub-paragraph (2), the following persons are declared to be unauthorized entrants ―
(a) all persons resident or formerly resident in Vietnam;
(aa) all persons who leave, or seek to leave, the People’s Republic of China when not in possession of documents issued in thatcountry permitting them to do so in accordance with its laws;
(b) all persons resident or formerly resident in Macau;
(c) all persons who are or have been in Macau, whether in transit or in any other circumstances whatsoever.
(2) The following persons are excepted from the declaration in subparagraph (1) ―
(a) any person holding a travel document ―
(i) in relation to which an exemption has been granted under section 61(2) of the Ordinance; or
(ii) which bears an unexpired visa issued by or on behalf of the Director of Immigration; and
(b) any person who has been granted permission to land by an immigration officer or immigration assistant”.
· The Defence’s argument in the instant appeal is, in essence, that since after 1997, Hong Kong is and integral part of China, a person assisting someone in leaving mainland China to Hong Kong or vice versa cannot incur into the offence of migrant smuggling (i.e. facilitating the passage of an ‘unauthorised entrant’). In support of this argument – and the fact that the passenger in the vessel was not an irregular migrant – the Defence invokes the following provisions
Article 1 of the Basic Law
“The Hong Kong Special Administrative Region is an inalienable part of the People’s Republic of China”.
Article 8 of the Basic Law
“The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region”.
Section 24 Interpretation and General Clauses Ordinance Laws of Hong Kong (IGCO)
(1) All laws previously in force shall be construed with such modifications, adaptations, limitations and exceptions as may be necessary so as not to contravene the Basic Law and to bring them into conformity with the status of Hong Kong as a Special Administrative Region of the People’s Republic of China.
(…)
(3) In all laws previously in force words and expressions listed in Schedule 8 shall be construed according to that Schedule”.
(…)
The relevant provision in Schedule 8 to the IGCO is: Construction on and after 1 July 1997 of words and expressions in laws previously in force.
(…)
17. Any reference to the People’s Republic of China or to China (or to similar names, terms or expressions) shall be construed as a reference to the People’s Republic of China as including Taiwan, the Hong Kong Special Administrative Region and Macau”.
· Hong Kong is a small but densely populated region. It is necessary for the Government to control the entry into Hong Kong of people from other territories in order to maintain a reasonable allocation of social resources such as employment, education and medical services. The legislative intent of the Immigration Ordinance and the Immigration Order is to control the entry into Hong Kong of people from other territories. People subject to such control include those to whom paragraph 2(1)(aa) of the Immigration Order refers, namely those who leave, or seek to leave, mainland China when not in possession of documents issued in that country permitting them to do so, in accordance with its laws.
· When interpreting the telos of the Immigration Order, the Court cannot merely look at the literal meaning thereof. Rather, it shall read in conjunction with Section 37D(1) of the Immigration Ordinance. The focus of these provisions is plainly on territorial distinction, i.e. the distinction between Hong Kong and places outside its territory. This purpose remains unaffected by the reunification of Hong Kong with China on 1 July 1997. Article 22 Basic Law supports this view: “For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval. Among them, the number of persons who enter the Region […] shall be determined by the competent authorities of the Central People’s Government after consulting the government of the Region”.
· The Interpretation by the Standing Committee of the National People’s Congress of Articles 22(4) and24(2)(3) of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China is clear on the point: “’For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval’ mean as follows: People from all provinces, autonomous regions, or municipalities directly under the Central Government, including those persons of Chinese nationality born outside Hong Kong of Hong Kong permanent residents, who wish to enter the Hong Kong Special Administrative Region for whatever reason, must apply to the relevant authorities of their residential districts for approval in accordance with the relevant national laws and administrative regulations, and must hold valid documents issued by the relevant authorities before they can enter the Hong Kong Special Administrative Region. It is unlawful for people from all provinces, autonomous regions, or municipalities directly under the Central Government, including persons of Chinese nationality born outside Hong Kong of Hong Kong permanent residents, to enter the Hong Kong Special Administrative Region without complying with the appropriate approval procedure prescribed by the relevant national laws and administrative regulations”.
· Likewise, paragraph 165 of the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong states that “Entry into the Hong Kong Special Administrative Region of person from other parts of China shall continue to be regulated in accordance with the present practice”.
· Paragraph 17 of Schedule 8 to the IGCO recalled by the Defence is not applicable to the Immigration Order. Paragraph 22 of Schedule 8 states that “This Schedule applies unless the context otherwise requires”.
· A fundamental axiom of statutory interpretation is that a statute cannot be interpreted in such a way as to render the statute absurd. The reading of the Defence leads to incoherent results. It would render Section 37D(1) Immigration Ordinance meaningless. Nor would Hong Kong need such a provision because it would not have any legal effect on those facilitating the entry into Hong Kong of irregular migrants from China.
Against this background, the High Court of the Hong Kong Special Administrative Region – Court of Appeal dismissed the appeal.
The High Court of the Hong Kong Special Administrative Region – Court of Appealnoted as follows:
· Even after submitting an affidavit asking the court to treat the Notice of Abandonment of Application for Leave to Appeal (Notice of Abandonment) as a nullity, a defendant may not appeal without first obtaining the leave of the competent court to treat the Notice of Abandonment as a nullity. In the instant case, the requirements to reach such nullity have not been met. However, even if the Notice of Abandonment were to be treated as a nullity, the motion for appeal would have still been denied, as explained infra.
· The defendant lodged an appeal only against his conviction for migrant smuggling. Section 37D(1)(a) of the Immigration Ordinance reads as follows:
“(1) Subject to subsection (2), any person who, on his own behalf or on behalf of any other person, whether or not such other person is in Hong Kong ―
(a) arranges or assists the passage to, or within, Hong Kong;
(b) offers to arrange or assist the passage to, or within, Hong Kong; or
(c) does or offers to do an act preparatory to or for the purpose of arranging or assisting the passage to, or within, Hong Kong,
of a person who is, or of a conveyance which carries, an unauthorized entrant, commits an offence and is liable ―
i) on conviction on indictment to a fine of $5,000,000 and to imprisonment for 14 years; (Amended 82 of 1993 s.8)
ii) on summary conviction to a fine of $350,000 and to imprisonment for 3 years. (Amended L.N. 25 of 1996)”.
· As per Section 37A of the Immigration Ordinance, an unauthorised entrant is “a person belonging to a class or description of persons who, by an order made under section 37B, are declared to be unauthorized entrants, other than a person who under subsection (2) of that section is excepted from the declaration in such order”.
· Furthermore, Section 37B of the Immigration Ordinance states that:
“(1) The Governor in Council may by order declare any class or description of persons, other than persons who enjoy the right of abode in Hong Kong, or have the right to land in Hong Kong by virtue of section 2AAA, to be unauthorized entrants.
(2) A declaration under subsection (1) may be made subject to such exceptions as are specified in the order”.
· The ‘Governor’ to which the section 37B(1) refers is the Hong Kong Governor prior to 1 July 1997. The ‘relevant order’ is the Immigration (Unauthorized Entrants) Order of 7 August 1979 (Immigration Order). The Immigration Order, which is a subsidiary legislation, provides as follows:
“2. Declaration of unauthorized entrants
(1) Subject to the exceptions specified in sub-paragraph (2), the following persons are declared to be unauthorized entrants ―
(a) all persons resident or formerly resident in Vietnam;
(aa) all persons who leave, or seek to leave, the People’s Republic of China when not in possession of documents issued in thatcountry permitting them to do so in accordance with its laws;
(b) all persons resident or formerly resident in Macau;
(c) all persons who are or have been in Macau, whether in transit or in any other circumstances whatsoever.
(2) The following persons are excepted from the declaration in subparagraph (1) ―
(a) any person holding a travel document ―
(i) in relation to which an exemption has been granted under section 61(2) of the Ordinance; or
(ii) which bears an unexpired visa issued by or on behalf of the Director of Immigration; and
(b) any person who has been granted permission to land by an immigration officer or immigration assistant”.
· The Defence’s argument in the instant appeal is, in essence, that since after 1997, Hong Kong is and integral part of China, a person assisting someone in leaving mainland China to Hong Kong or vice versa cannot incur into the offence of migrant smuggling (i.e. facilitating the passage of an ‘unauthorised entrant’). In support of this argument – and the fact that the passenger in the vessel was not an irregular migrant – the Defence invokes the following provisions
Article 1 of the Basic Law
“The Hong Kong Special Administrative Region is an inalienable part of the People’s Republic of China”.
Article 8 of the Basic Law
“The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region”.
Section 24 Interpretation and General Clauses Ordinance Laws of Hong Kong (IGCO)
(1) All laws previously in force shall be construed with such modifications, adaptations, limitations and exceptions as may be necessary so as not to contravene the Basic Law and to bring them into conformity with the status of Hong Kong as a Special Administrative Region of the People’s Republic of China.
(…)
(3) In all laws previously in force words and expressions listed in Schedule 8 shall be construed according to that Schedule”.
(…)
The relevant provision in Schedule 8 to the IGCO is: Construction on and after 1 July 1997 of words and expressions in laws previously in force.
(…)
17. Any reference to the People’s Republic of China or to China (or to similar names, terms or expressions) shall be construed as a reference to the People’s Republic of China as including Taiwan, the Hong Kong Special Administrative Region and Macau”.
· Hong Kong is a small but densely populated region. It is necessary for the Government to control the entry into Hong Kong of people from other territories in order to maintain a reasonable allocation of social resources such as employment, education and medical services. The legislative intent of the Immigration Ordinance and the Immigration Order is to control the entry into Hong Kong of people from other territories. People subject to such control include those to whom paragraph 2(1)(aa) of the Immigration Order refers, namely those who leave, or seek to leave, mainland China when not in possession of documents issued in that country permitting them to do so, in accordance with its laws.
· When interpreting the telos of the Immigration Order, the Court cannot merely look at the literal meaning thereof. Rather, it shall read in conjunction with Section 37D(1) of the Immigration Ordinance. The focus of these provisions is plainly on territorial distinction, i.e. the distinction between Hong Kong and places outside its territory. This purpose remains unaffected by the reunification of Hong Kong with China on 1 July 1997. Article 22 Basic Law supports this view: “For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval. Among them, the number of persons who enter the Region […] shall be determined by the competent authorities of the Central People’s Government after consulting the government of the Region”.
· The Interpretation by the Standing Committee of the National People’s Congress of Articles 22(4) and24(2)(3) of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China is clear on the point: “’For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval’ mean as follows: People from all provinces, autonomous regions, or municipalities directly under the Central Government, including those persons of Chinese nationality born outside Hong Kong of Hong Kong permanent residents, who wish to enter the Hong Kong Special Administrative Region for whatever reason, must apply to the relevant authorities of their residential districts for approval in accordance with the relevant national laws and administrative regulations, and must hold valid documents issued by the relevant authorities before they can enter the Hong Kong Special Administrative Region. It is unlawful for people from all provinces, autonomous regions, or municipalities directly under the Central Government, including persons of Chinese nationality born outside Hong Kong of Hong Kong permanent residents, to enter the Hong Kong Special Administrative Region without complying with the appropriate approval procedure prescribed by the relevant national laws and administrative regulations”.
· Likewise, paragraph 165 of the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong states that “Entry into the Hong Kong Special Administrative Region of person from other parts of China shall continue to be regulated in accordance with the present practice”.
· Paragraph 17 of Schedule 8 to the IGCO recalled by the Defence is not applicable to the Immigration Order. Paragraph 22 of Schedule 8 states that “This Schedule applies unless the context otherwise requires”.
· A fundamental axiom of statutory interpretation is that a statute cannot be interpreted in such a way as to render the statute absurd. The reading of the Defence leads to incoherent results. It would render Section 37D(1) Immigration Ordinance meaningless. Nor would Hong Kong need such a provision because it would not have any legal effect on those facilitating the entry into Hong Kong of irregular migrants from China.
Against this background, the High Court of the Hong Kong Special Administrative Region – Court of Appeal dismissed the appeal.The High Court of the Hong Kong Special Administrative Region – Court of Appealnoted as follows:
· Even after submitting an affidavit asking the court to treat the Notice of Abandonment of Application for Leave to Appeal (Notice of Abandonment) as a nullity, a defendant may not appeal without first obtaining the leave of the competent court to treat the Notice of Abandonment as a nullity. In the instant case, the requirements to reach such nullity have not been met. However, even if the Notice of Abandonment were to be treated as a nullity, the motion for appeal would have still been denied, as explained infra.
· The defendant lodged an appeal only against his conviction for migrant smuggling. Section 37D(1)(a) of the Immigration Ordinance reads as follows:
“(1) Subject to subsection (2), any person who, on his own behalf or on behalf of any other person, whether or not such other person is in Hong Kong ―
(a) arranges or assists the passage to, or within, Hong Kong;
(b) offers to arrange or assist the passage to, or within, Hong Kong; or
(c) does or offers to do an act preparatory to or for the purpose of arranging or assisting the passage to, or within, Hong Kong,
of a person who is, or of a conveyance which carries, an unauthorized entrant, commits an offence and is liable ―
i) on conviction on indictment to a fine of $5,000,000 and to imprisonment for 14 years; (Amended 82 of 1993 s.8)
ii) on summary conviction to a fine of $350,000 and to imprisonment for 3 years. (Amended L.N. 25 of 1996)”.
· As per Section 37A of the Immigration Ordinance, an unauthorised entrant is “a person belonging to a class or description of persons who, by an order made under section 37B, are declared to be unauthorized entrants, other than a person who under subsection (2) of that section is excepted from the declaration in such order”.
· Furthermore, Section 37B of the Immigration Ordinance states that:
“(1) The Governor in Council may by order declare any class or description of persons, other than persons who enjoy the right of abode in Hong Kong, or have the right to land in Hong Kong by virtue of section 2AAA, to be unauthorized entrants.
(2) A declaration under subsection (1) may be made subject to such exceptions as are specified in the order”.
· The ‘Governor’ to which the section 37B(1) refers is the Hong Kong Governor prior to 1 July 1997. The ‘relevant order’ is the Immigration (Unauthorized Entrants) Order of 7 August 1979 (Immigration Order). The Immigration Order, which is a subsidiary legislation, provides as follows:
“2. Declaration of unauthorized entrants
(1) Subject to the exceptions specified in sub-paragraph (2), the following persons are declared to be unauthorized entrants ―
(a) all persons resident or formerly resident in Vietnam;
(aa) all persons who leave, or seek to leave, the People’s Republic of China when not in possession of documents issued in thatcountry permitting them to do so in accordance with its laws;
(b) all persons resident or formerly resident in Macau;
(c) all persons who are or have been in Macau, whether in transit or in any other circumstances whatsoever.
(2) The following persons are excepted from the declaration in subparagraph (1) ―
(a) any person holding a travel document ―
(i) in relation to which an exemption has been granted under section 61(2) of the Ordinance; or
(ii) which bears an unexpired visa issued by or on behalf of the Director of Immigration; and
(b) any person who has been granted permission to land by an immigration officer or immigration assistant”.
· The Defence’s argument in the instant appeal is, in essence, that since after 1997, Hong Kong is and integral part of China, a person assisting someone in leaving mainland China to Hong Kong or vice versa cannot incur into the offence of migrant smuggling (i.e. facilitating the passage of an ‘unauthorised entrant’). In support of this argument – and the fact that the passenger in the vessel was not an irregular migrant – the Defence invokes the following provisions
Article 1 of the Basic Law
“The Hong Kong Special Administrative Region is an inalienable part of the People’s Republic of China”.
Article 8 of the Basic Law
“The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region”.
Section 24 Interpretation and General Clauses Ordinance Laws of Hong Kong (IGCO)
(1) All laws previously in force shall be construed with such modifications, adaptations, limitations and exceptions as may be necessary so as not to contravene the Basic Law and to bring them into conformity with the status of Hong Kong as a Special Administrative Region of the People’s Republic of China.
(…)
(3) In all laws previously in force words and expressions listed in Schedule 8 shall be construed according to that Schedule”.
(…)
The relevant provision in Schedule 8 to the IGCO is: Construction on and after 1 July 1997 of words and expressions in laws previously in force.
(…)
17. Any reference to the People’s Republic of China or to China (or to similar names, terms or expressions) shall be construed as a reference to the People’s Republic of China as including Taiwan, the Hong Kong Special Administrative Region and Macau”.
· Hong Kong is a small but densely populated region. It is necessary for the Government to control the entry into Hong Kong of people from other territories in order to maintain a reasonable allocation of social resources such as employment, education and medical services. The legislative intent of the Immigration Ordinance and the Immigration Order is to control the entry into Hong Kong of people from other territories. People subject to such control include those to whom paragraph 2(1)(aa) of the Immigration Order refers, namely those who leave, or seek to leave, mainland China when not in possession of documents issued in that country permitting them to do so, in accordance with its laws.
· When interpreting the telos of the Immigration Order, the Court cannot merely look at the literal meaning thereof. Rather, it shall read in conjunction with Section 37D(1) of the Immigration Ordinance. The focus of these provisions is plainly on territorial distinction, i.e. the distinction between Hong Kong and places outside its territory. This purpose remains unaffected by the reunification of Hong Kong with China on 1 July 1997. Article 22 Basic Law supports this view: “For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval. Among them, the number of persons who enter the Region […] shall be determined by the competent authorities of the Central People’s Government after consulting the government of the Region”.
· The Interpretation by the Standing Committee of the National People’s Congress of Articles 22(4) and24(2)(3) of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China is clear on the point: “’For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval’ mean as follows: People from all provinces, autonomous regions, or municipalities directly under the Central Government, including those persons of Chinese nationality born outside Hong Kong of Hong Kong permanent residents, who wish to enter the Hong Kong Special Administrative Region for whatever reason, must apply to the relevant authorities of their residential districts for approval in accordance with the relevant national laws and administrative regulations, and must hold valid documents issued by the relevant authorities before they can enter the Hong Kong Special Administrative Region. It is unlawful for people from all provinces, autonomous regions, or municipalities directly under the Central Government, including persons of Chinese nationality born outside Hong Kong of Hong Kong permanent residents, to enter the Hong Kong Special Administrative Region without complying with the appropriate approval procedure prescribed by the relevant national laws and administrative regulations”.
· Likewise, paragraph 165 of the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong states that “Entry into the Hong Kong Special Administrative Region of person from other parts of China shall continue to be regulated in accordance with the present practice”.
· Paragraph 17 of Schedule 8 to the IGCO recalled by the Defence is not applicable to the Immigration Order. Paragraph 22 of Schedule 8 states that “This Schedule applies unless the context otherwise requires”.
· A fundamental axiom of statutory interpretation is that a statute cannot be interpreted in such a way as to render the statute absurd. The reading of the Defence leads to incoherent results. It would render Section 37D(1) Immigration Ordinance meaningless. Nor would Hong Kong need such a provision because it would not have any legal effect on those facilitating the entry into Hong Kong of irregular migrants from China.
Against this background, the High Court of the Hong Kong Special Administrative Region – Court of Appeal dismissed the appeal.