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FACV000019_2012

FACV000019_2012

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Published by Rappler Philippines
FINAL APPEAL NO. 19 OF 2012 (CIVIL)
(ON APPEAL FROM CACV NO. 204 OF 2011)
Between :

VALLEJOS EVANGELINE BANAO, ALSO KNOWN AS
VALLEJOS EVANGELINE B. Applicant (Appellant)

- and -

COMMISSIONER OF REGISTRATION 1st Respondent (1st Respondent)
REGISTRATION OF PERSONS TRIBUNAL 2nd Respondent (2nd Respondent)

====

FINAL APPEAL NO. 20 OF 2012 (CIVIL)
(ON APPEAL FROM CACV NO. 261 OF 2011)
Between :

DOMINGO DANIEL L. Applicant (Appellant)

- and -

COMMISSIONER OF REGISTRATION 1st Respondent (1st Respondent)
REGISTRATION OF PERSONS TRIBUNAL 2nd Respondent (2nd Respondent)

Before :
Chief Justice Ma, Mr Justice Chan PJ,
Mr Justice Ribeiro PJ, Mr Justice Hartmann NPJ and Sir Anthony Mason NPJ

Dates of Hearing: 26-28 February 2013
Date of Judgment: 25 March 2013
FINAL APPEAL NO. 19 OF 2012 (CIVIL)
(ON APPEAL FROM CACV NO. 204 OF 2011)
Between :

VALLEJOS EVANGELINE BANAO, ALSO KNOWN AS
VALLEJOS EVANGELINE B. Applicant (Appellant)

- and -

COMMISSIONER OF REGISTRATION 1st Respondent (1st Respondent)
REGISTRATION OF PERSONS TRIBUNAL 2nd Respondent (2nd Respondent)

====

FINAL APPEAL NO. 20 OF 2012 (CIVIL)
(ON APPEAL FROM CACV NO. 261 OF 2011)
Between :

DOMINGO DANIEL L. Applicant (Appellant)

- and -

COMMISSIONER OF REGISTRATION 1st Respondent (1st Respondent)
REGISTRATION OF PERSONS TRIBUNAL 2nd Respondent (2nd Respondent)

Before :
Chief Justice Ma, Mr Justice Chan PJ,
Mr Justice Ribeiro PJ, Mr Justice Hartmann NPJ and Sir Anthony Mason NPJ

Dates of Hearing: 26-28 February 2013
Date of Judgment: 25 March 2013

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Published by: Rappler Philippines on Mar 25, 2013
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75.

A more general criticism may, with respect, be made of Lord
Scarman’s approach. Although as noted above,57

his Lordship qualified his
formulation by acknowledging the importance of context, it will be recalled that
Lord Scarman framed the issues as follows:

“Two questions of statutory interpretation, therefore, arise. The first is: what is the natural
and ordinary meaning of ‘ordinary residence in the United Kingdom’...? The second is:
does the statute in the context of the relevant law against the background of which it was

54

(2001) 4 HKCFAR 278 at 285.

55

Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4 at 36; Lau Kong Yung v Director
of Immigration
(1999) 2 HKCFAR 300 at 312; Prem Singh v Director of Immigration (2003)
6 HKCFAR 26 at §§56-57.

56

(2003) 6 HKCFAR 26.

57

Section E1.

-32-

enacted, or in the circumstances of today, including in particular the impact of the Act of
1971, compel one to substitute a special, and, if so, what, meaning to the words
‘ordinarily resident in the United Kingdom’?”58

76.

Such an approach (adopted by Mr Fordham in the present case)
relegates context and purpose into second place, to be consulted after a “natural
and ordinary meaning” has been identified. It does not accord with more modern
approaches to statutory (and constitutional) interpretation. It involves asserting
that the words in question bear a certain “natural and ordinary meaning” and then
placing the onus on anyone seeking to advance a different meaning to establish
some ground which compels acceptance of that different meaning to be adopted as
a “special” meaning in substitution for the “natural and ordinary meaning”
previously identified.

77.

The Hong Kong courts do not nowadays accept such an approach. As
Sir Anthony Mason NPJ pointed out in HKSAR v Lam Kwong Wai:59

“The modern approach to statutory interpretation insists that context and purpose be
considered in the first instance, especially in the case of general words, and not merely at
some later stage when ambiguity may be thought to arise (Medical Council of Hong Kong
v Chow Siu Shek
(2000) 3 HKCFAR 144 at 154B-C; K & S Lake City Freighters Pty Ltd
v Gordon & Gotch Ltd
(1985) 157 CLR 309 at 315 per Mason J (dissenting, but not on
this point); CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384).”

78.

Lord Scarman’s natural and ordinary meaning approach is particularly
unhelpful when interpreting words which have some flexibility of meaning. If one
approaches the words “ordinarily resident” without trying to assign to them a
priori
some “natural and ordinary meaning”, but recognizing that they take their
meaning from their context, it immediately becomes clear – as illustrated by the

58

[1983] 2 AC 309 at 340.

59

(2006) 9 HKCFAR 574 at §63. Reiterated by Li CJ in HKSAR v Cheung Kwun Yin (2009) 12
HKCFAR 568 at§§12-13.

-33-

various examples discussed in Sections E2 and E3 – that the expression “ordinary
residence” is open-textured as a matter of language and inherently capable of
assuming different meanings in different contexts.

79.

The open-textured and flexible nature of that expression may be
contrasted, for instance, with the word “born” used in two of the other categories
of entitlement to permanent resident status in Article 24(2): “Chinese citizens born
in Hong Kong...”;60

and “Persons of Chinese nationality born outside Hong Kong
of those residents listed in categories (1) and (2)”.61

The central triggering
requirement in each of those categories is the event of birth – a concept which is
much more closed and which admits of much less flexibility than the requirement
of a continuous seven year period of ordinary residence under Article 24(2)(4).
This was indeed the conclusion that the Court reached in Director of Immigration v
Chong Fung Yuen
.62

Incidentally, we should point out that we do not necessarily
accept all that the Chief Judge stated in relation to Chong Fung Yuen in
paragraphs 125 to 131 of the Court of Appeal’s judgment below.63

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