IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 351 OF 2001

(ON APPEAL FROM HCAL 1240 OF 2000)

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BETWEEN
TSE PATRICK YIU HON (an infant suing by his uncle and next friend TSE YEE PING) Applicant

AND

HONG KONG SPECIAL ADMINISTRATIVE REGION PASSPORTS APPEAL BOARD 1st Respondent
DIRECTOR OF IMMIGRATION 2nd Respondent

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Coram: Hon Leong CJHC, Woo and Cheung JJA in Court

Date of Hearing: 16 January 2002

Date of Handing Down of Judgment: 28 January 2002

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J U D G M E N T

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Hon Leong CJHC (giving the judgment of the Court):

1. The Applicant's parents were born in Hong Kong. They are permanent residents of Hong Kong. In 1981, they settled in Germany. The Applicant was born in Germany in October 1985. The British consulate in Duesseldorf registered his birth and later issued a British Dependent Territories Citizen Passport to the Applicant, confirming his Hong Kong permanent resident status. In 1990, the Applicant's parents were naturalized as German nationals. They had also applied for the Applicant, who was then five years old, to be naturalized as a German national. Following his parents, he also became a German national. Thus, the Applicant has not acquired his German nationality by virtue of his birth in Germany.

2. The Director of Immigration ("the Director") has issued Hong Kong Special Administrative Region ("HKSAR") passports to the Applicant's parents, notwithstanding their German nationality. They still are holders of HKSAR passports. The Applicant also obtained his HKSAR passport on 6 August 1998.

3. On 16 April 1999 the Director of Immigration notified Madam Cheng Oi Kwan, the Applicant's mother, that the HKSAR passport held by the Applicant was to be cancelled, the reason being that at the time the Applicant applied for his HKSAR passport, he had already acquired his German nationality. Under the Chinese Nationality Law, the Applicant had automatically lost his Chinese Nationality. He ceased to be a Chinese national and therefore was not entitled to the issue of a HKSAR passport.

4. The Applicant's legal representative on 13 May 1999 filed an objection to the cancellation of the Applicant's passport with the Director of Immigration, stating the reason that the Applicant was still a Chinese national. On 26 June 1999, the Director furnished a reply, affirming the reason for the cancellation as follows:

"Clause 1 of the Explanations of Some Questions by the Standing Committee of the National People's Congress Concerning the Implementation of the Nationality Law of the People's Republic of China in the Hong Kong Special Administrative Region applies to Hong Kong residents who are of Chinese descent and were born in the Chinese territories (including Hong Kong). Owing to the fact that the Applicant was born in Germany ... and has lost his Chinese nationality, under Section 3(2) of the Hong Kong Special Administrative Region Passports Ordinance, he is not qualified for a Hong Kong Special Administrative Region passport."

The Applicant appealed to the Passports Appeal Board but his appeal was dismissed and the Director's decision upheld.

5. The Applicant then applied for judicial review of the Director's decision, but his application was dismissed by Yeung J on 17 January 2001. The judge said in his judgment:

"I have carefully considered the case of Yiu Hon. He was born in Germany and is throughout settled in Germany without any breaks. He has also acquired German nationality. In the circumstances, Yiu Hon ceases to have Chinese nationality under the Chinese Nationality Law and is not a Chinese national. Accordingly, he is not entitled to have a Hong Kong Special Administrative Region passport issued to him. Nor does the Director have the power to lawfully issue to him a Hong Kong Special Administrative Region passport."

6. The judge in his judgment was of the view that the Applicant was naturalized as a German national of his own free will and had lost his Chinese nationality in accordance with Article 9 of the Chinese Nationality Law. He therefore ceased to be a Chinese national and could not hold a HKSAR passport. The judge ruled that the Director was acting lawfully in making his decision to cancel the Applicant's passport.

7. Mr Hectar Pun, counsel for the Applicant, submits in his grounds of appeal that the Applicant is a Hong Kong resident and a Chinese national, and that he has not been naturalized as a German national or acquired German nationality of his own free will. Article 9 of the Chinese Nationality Law, therefore, does not apply to the Applicant. Mr Pun continues that the Explanations of Some Questions by the Standing Committee of the National People's Congress Concerning the Implementation of the Nationality Law of the People's Republic of China in the Hong Kong Special Administrative Region (hereinafter as "the NPC Explanations") are applicable to Chinese nationals among Hong Kong residents. The Explanations provide that Chinese nationals among Hong Kong residents holding foreign passports will not be entitled to consular protection in Hong Kong and in other parts of China. That is to say their foreign nationality is not recognized. Chinese nationals among Hong Kong residents who have been naturalized as foreign nationals, do not lose Chinese nationality and do not cease to be Chinese nationals. For this reason, the Applicant's German nationality, however he acquires it, is not to affect his status as a Chinese national. Counsel for the Applicant further submits that the Director of Immigration has admitted that Article 9 of the Chinese Nationality Law does not apply in the case of the Applicant's parents. Despite their naturalization as German nationals, they are still recognized as Chinese nationals, and passports have been issued to them and not been cancelled. Mr Pun does not see the reason why the Director wants to argue instead that the article applies to the Applicant.

8. Mr Pun agrees that if he were to succeed in the above argument, the judgment of Yeung J and the decision of the Director of Immigration would be overturned.

9. Miss Nancy Kwok, counsel for the 2nd Respondent, submits: "Under the Chinese Nationality Law, all Hong Kong compatriots are Chinese nationals. Due to the fact that the great majority of Hong Kong residents are of Chinese descent and were born in the Chinese territories, they are entitled to Chinese nationality. Chinese compatriots, therefore, are equivalent to Chinese nationals (i.e. people having Chinese nationality). The essential ingredients of Chinese compatriots are: being of Chinese descent, born in the Chinese territories and having satisfied the requirements for a Chinese national laid down in the Chinese Nationality Law."

10. Miss Kwok further submits that upon the stipulation and implementation of Article 9 of the Chinese Nationality Law, the Chinese nationality that the Applicant acquired has been lost due to his naturalization of his own free will as a German national. The implementation of the Chinese Nationality Law in Hong Kong is in accordance with the NPC Explanations. Chinese nationals are limited to persons within the meaning of Clause 1 of the Explanations. The Applicant neither satisfies the Chinese Nationality Law, nor was he born in the Chinese territories as set down in Clause 1 of the NPC Explanations. Thus, he is not a Chinese national. Although the Applicant is of Chinese descent, and has the right of abode in Hong Kong and permanent resident status, all these are not sufficient to enable him to satisfy the requirements for a Chinese national. The Applicant thus is not entitled to a HKSAR passport.

11. Without a doubt, in order to obtain a HKSAR passport, an applicant for the passport must satisfy the conditions laid down in Section 3 of the Hong Kong Special Administrative Region Passports Ordinance, i.e. he is a Chinese citizen, an HKSAR permanent resident and a holder of a valid permanent identity card. Section 2 of the Ordinance reads: " 'Chinese citizen'(中國公民) means a person of Chinese nationality under the Nationality Law of the People's Republic of China, as implemented in the Hong Kong Special Administrative Region in accordance with the Explanations of Some Questions by the Standing Committee of the National People's Congress Concerning the Implementation of the Nationality Law of the People's Republic of China in the Hong Kong Special Administrative Region adopted at the 19th meeting of the Standing Committee of the National People's Congress at the 8th National People's Congress on 15 May 1996." Both parents of the Applicant are Chinese citizens having Chinese nationality, and hence have been issued HKSAR passports. The Applicant in this appeal has satisfied the two conditions of being a permanent resident and a holder of a permanent identity card. If he is a Chinese citizen, he would undoubtedly also be entitled to a HKSAR passport. Consequently the issue in this appeal is whether the Applicant is a Chinese citizen. This Court is of the view that the key to this question lies in how the Chinese Nationality Law, especially Article 5 and 9, and the NPC Explanations, in particular Clause 1, 4 and 5, apply to the Applicant. Article 5 of the Chinese Nationality Law provides that:

"Any person born abroad whose parents are both Chinese nationals or one of whose parents is a Chinese national shall have Chinese nationality. But a person whose parents are both Chinese nationals and have both settled abroad, or one of whose parents is a Chinese national and has settled abroad, and who has acquired foreign nationality at birth shall not have Chinese nationality."

Fu Siming in his book General Principles of the Basic Law of the Hong Kong Special Administrative Region points out that in accordance with Chinese Nationality Law, "after 1 July 1997, any descendant of a Chinese national in the Hong Kong Special Administrative Region or any person born in the Hong Kong Special Administrative Region, acquires the Chinese nationality according to law, provided that he or she does not contravene other provisions of the Nationality Law of our country. Moreover, even their children born in foreign countries also have Chinese nationality, except that the children have acquired foreign nationality at birth."

12. For this reason, since the Applicant's parents are Chinese nationals and he has not acquired any foreign nationality at birth, by virtue of the above provision, the Applicant is a person who satisfies the requirements in Article 5 of the Chinese Nationality Law and shall have Chinese nationality.

13. If the Applicant is not a HKSAR permanent resident and he has been naturalized as a German national of his own free will, he will automatically lose Chinese nationality due to the implementation of Article 9 of the Chinese Nationality Law. Article 9 provides that:

"Any Chinese national who has settled abroad and who has been naturalized as a foreign national or has acquired foreign nationality of his own free will shall automatically lose Chinese nationality."

However, the Applicant is a HKSAR permanent resident. Clause 4 of the NPC Explanations provides that: "Chinese nationals of the Hong Kong Special Administrative Region with right of abode in foreign countries may, for the purpose of travelling to other countries and territories, use the relevant documents issued by the foreign governments. However, they will not be entitled to consular protection in the Hong Kong Special Administrative Region and other parts of the People's Republic of China on account of their holding the abovementioned documents." This is a special favour shown to Chinese nationals among Hong Kong residents, so that the question about their nationalities can be resolved allowing a certain degree of latitude, and persons having foreign nationality will not lose this Chinese nationality as a result of the implementation of Article 9 of the Chinese Nationality Law. Clause 1 of the NPC Explanations defines clearly who are Chinese nationals among Hong Kong residents.

14. Mr Qiao Xiaoyang, Deputy Chairman of the Legislative Affairs Commission of the Standing Committee of the National People's Congress, while speaking on the Draft NPC Explanations at the Nineteenth Session of the Standing Committee, said that Clause 1 of the NPC Explanations "offers a clearer explanation on top of the relevant provisions in the Chinese Nationality Law." At a symposium held on 4 April 1997, Mr Wang Fengchao, Deputy Director of the Hong Kong and Macao Office of the State Council also gave the background to the NPC Explanations as follows:

"Taking into consideration the special circumstances existing in the realities of Hong Kong, and for the sake of smooth transition, the Standing Committee of the National People's Congress adopted in May last year the suggestions by the HKSAR Preparatory Committee, and gave legally binding explanations of questions concerning the implementation of the Chinese Nationality Law in Hong Kong. It is provided that where a person was born in the Chinese territories and is of Chinese descent, he has Chinese nationality. Foreign passports held by him will be treated as travel documents and he can continue to use them when travelling abroad. If foreign passport holders wish to reside in Hong Kong using foreign citizen status, they may, with valid supporting documents, make a declaration at the HKSAR Immigration Department of a change in nationality. The above provisions have made clear that all Hong Kong Chinese compatriots are Chinese nationals, and at the same time given them a chance to choose voluntarily which status they would like to use when residing in Hong Kong."

15. In Modern Nationality Law (edited by Li Shuangyuan and Jiang Xinmiao), it is opined, when dwelling on the NPC Explanations, that such explanations represent the NPC Standing Committee's adaptive explanation of the Chinese Nationality Law, so as to get around the operation of the Chinese nationality requirement, under the special circumstances prevailing in the HKSAR, on Chinese nationals among Hong Kong residents. The following view is expressed by the two editors:

"It is widely known that for the sake of convenience when travelling abroad it is not uncommon for Hong Kong residents to have relevant documents issued by foreign governments. On the premise that the Chinese nationality and consular protection enjoyed by Chinese nationals among Hong Kong residents can be preserved, the NPC Standing Committee's Explanations permit them to use their foreign passports as travelling documents when they travel to other countries or areas. That does not violate the principle enshrined in the Nationality Law of our country that dual nationality is not recognized. Besides, it also complies with the relevant provisions in the Basic Law and facilitates the travel by Hong Kong residents to other countries."

16. Zhang Yong and Chen Yutian in Nationality of Hong Kong Residents indicate that the Chinese Nationality Law Explanations are part of the Chinese Nationality Law and have the same effect as the Chinese Nationality Law. In ascertaining the nationality of Hong Kong residents, authorities in the mainland ought to apply those Explanations first. One of the characteristics of those Explanations, in the authors' view, is to "depeg" foreign passports from Chinese nationality, thereby saving the authorities having to investigate the passports held by Hong Kong residents. They state on page 71:

"If a Hong Kong resident satisfies the requirements laid down in Clause 1 of the Nationality Law Explanations, then he is a Chinese national, regardless of the fact that he is the holder of a foreign passport or several passports, and whether or not he has made a declaration to renounce his Chinese nationality in accordance with foreign nationality laws. That is valid as far as jurisprudence is concerned. In fact, many Hong Kong residents who are foreign passport holders do not want to give up their foreign passports because of various reasons. At the same time, they also want to be Chinese and enjoy the treatment to which a Chinese national is entitled. Clause 1 of the Nationality Law Explanations clears their worries and is conducive to their staying and working in Hong Kong with peace of mind ... ."

On page 75, they further state:

"That clause (Clause 4) mainly concerns foreign passports held by Chinese nationals among Hong Kong residents. As mentioned above, whether or not a Hong Kong resident has Chinese nationality turns on whether he satisfies the requirements set down in Clause 1 of the Nationality Law Explanations, no matter if he holds a foreign passport or not. ... Hence, in view of the special circumstances that Chinese nationals among Hong Kong residents hold foreign passports, 'depegging' the nature of a passport as the proof of nationality from the function of a passport as a document that facilitates travelling and residency, after all, is a flexible and pragmatic policy. ... The Nationality Law Explanations follow that 'depegging' policy and treat the foreign passports held by Chinese nationals among Hong Kong residents as 'relevant documents' issued by foreign governments, allowing Chinese nationals to use these documents when travelling abroad. In that sense, the Nationality Law Explanations have adopted a policy that allows a certain degree of latitude towards Chinese nationals among Hong Kong residents holding foreign passports, rather than employing the comparable procedures followed by public security authorities in the mainland when dealing with Chinese nationals holding foreign passports."

17. The two authors explain that Clause 5 of the NPC Explanations has also expounded the loss of Chinese nationality as provided for in Article 9 of the Chinese Nationality Law. And "[a]s regards the loss of Chinese nationality, the Chinese Nationality Law provides for two situations; one being the automatic loss of Chinese nationality, the other being abandonment of nationality. The loss of Chinese nationality in either situation does not apply to Hong Kong Chinese nationals holding foreign passports who also wish to be foreigners ... ." "Chinese national who has settled abroad" as appears in that Article mainly refers to overseas Chinese living in foreign countries and their descendents who have Chinese nationality.

18. As can be seen from the above, the favour granted in the NPC Explanations allowing a certain degree of latitude is applicable exclusively to the categories of Chinese nationals as specified in Clause 1 of the NPC Explanations. Clause 1 provides that:

"Where a Hong Kong resident is of Chinese descent and was born in the Chinese territories (including Hong Kong), or where a person satisfies the criteria laid down in the Nationality Law of the People's Republic of China for having Chinese nationality, he is a Chinese national."

19. That Clause in the Explanations clearly specifies two categories of Hong Kong residents who are of Chinese descent to be Chinese nationals. The first category is a person born in the Chinese territories (including Hong Kong); the second is a person who satisfies the criteria for Chinese nationality laid down in the Chinese Nationality Law.

20. Miss Kwok agrees that such categories are specified in Clause 1 of the NPC Explanations. However, she considers the Explanations were given with those residents born in Hong Kong and of Chinese descent in mind. The nationality question of Hong Kong residents born outside China (including Hong Kong), and the question whether or not they are Chinese nationals, are to be dealt with in accordance with the Chinese Nationality Law. Therefore, only those Hong Kong residents falling within the first category will benefit from such a favour. Notwithstanding the Applicant is of Chinese descent and also a Hong Kong resident, he was born overseas and hence not a Hong Kong resident in the first category. Further, Miss Kwok is of the opinion that even if Hong Kong residents in the second category can also benefit, the Applicant does not belong to the second category because he has been naturalized as a German national, and has lost his Chinese nationality and he no longer satisfies the criteria for Chinese nationality.

21. This Court finds such arguments unacceptable. The criteria for first category entitlement, in our view, correspond with those in Article 4 of the Chinese Nationality Law, and the second category is really meant for children who were born overseas to Hong Kong residents of Chinese descent, and who satisfy the criteria in Article 5 of the Chinese Nationality Law. Persons in both categories are Chinese nationals among Hong Kong residents. The favour granted by the NPC Explanations to foreign passport holders is clearly applicable to all Chinese nationals among Hong Kong residents, irrespective of where they were born, whether in China or elsewhere. If persons in the second category (i.e. those who satisfy the Chinese Nationality Law only) were to be excluded, it would not have been necessary for the NPC Standing Committee to specify this category in Clause 1 of the Explanations and state "where a Hong Kong resident is of Chinese descent and [falls within the first category], or where a person [falls within the second category], he is a Chinese national."

22. Mr Qiao Xiaoyang, while explicating Clause 5 of the Draft NPC Explanations, had this to say:

"In order to cater for and to facilitate the actual need and wish of Hong Kong Chinese nationals for the change of nationality, Clause 5 of the Draft gives an adaptive explanation regarding the provision in the Nationality Law for nationality change, and provides that if a Hong Kong resident of Chinese descent has been naturalized as a foreign national of his own free will and wishes to reside in Hong Kong using foreign citizen status, he can at any time, with valid documents in support, make a declaration at the authority of the Special Administrative Region responsible for nationality applications requesting a change of nationality. Such a provision simplifies the legal procedures for the change of nationality."

"As regards applications made by non-Chinese nationals among Hong Kong residents for naturalization as Chinese nationals, there are clear provisions in the Nationality Law already. The authority of the Hong Kong Special Administrative Region responsible for nationality applications may deal with such applications in accordance with relevant provisions in the Nationality Law and these Explanations."

23. As may be seen from the above, in light of the special circumstances in Hong Kong, the NPC Explanations have devised rules for nationality change which are different from the Chinese Nationality Law and applicable in Hong Kong only, with a view to avoiding the automatic loss of Chinese nationality by Hong Kong Chinese nationals having foreign passports, as a result of the implementation of Article 9 of the Chinese Nationality Law. Under the new rules, a Hong Kong Chinese national will only cease to have Chinese nationality when his application to the Immigration Department for the change of nationality is granted.

24. The Applicant has never made an application for a change of his Chinese nationality. On the basis of the NPC Explanations, he may continue to have his German nationality without affecting his Chinese nationality. He is still a Chinese national among Hong Kong residents. He has satisfied fully the requirements laid down in Clause 1 of the Explanations, as well as the conditions set forth in the Hong Kong Special Administrative Region Passports Ordinance for a Chinese citizen.

25. For the reasons given the Director of Immigration cannot cancel the Hong Kong Special Administrative Region Passport of the Applicant. The appeal must be allowed. The judgment of the trial judge is set aside and the decision of the Director of Immigration quashed.

26. We would also make an order nisi that costs be to the Applicant at the trial as well as in this appeal.

(Arthur Leong) (K H Woo) (Peter Cheung)
Chief Judge, High Court Justice of Appeal Justice of Appeal

Representation:

Mr Hectar Pun, instructed by Patrick Chan & Co., for Applicant

1st Respondent, in person (absent)

Miss Nancy Kwok, Senior Government Counsel of the Department of Justice, for 2nd Respondent