申領高齡津貼(俗稱「生果金」)的長者，在申請前必須連續居港1年，其間不得離港超過56 天-林和倫

73歲長者林和倫認為，俗稱「生果金」的長者高齡津貼規定，申請人提出申請前一年必須連續居港一年，屬歧視及違反《基本法》，提出司法覆核，高等法院今日裁定政府勝訴。

法官林文瀚在判詞中說，綜援和「生果金」制度屬不同概念，若長者在生活上要有保障，可透過綜援，而並非一定要領取「生果金」，政府要求市民申請生果金前，須居港一年的限制是合理做法，以確保公眾利益和生果金發放制度，可以長遠維持運作。

目前已領「生果金」的長者，1年內不可以離開香港超過56日，否則會被取消

 香港文匯報訊　(記者 文森) 高等法院昨日就「生果金」設離港限制，裁定有關限制並沒有違反《基本法》，特區政府先勝一仗。法官在判詞中指出，設立「生果金」的原意並非為長者提供生活 保障，加上申領時毋須通過資產審查，為確保公眾利益和「生果金」發放制度的可持續性，港府設離港限制合憲。勞工及福利局局長張建宗歡迎判決，當局會繼續維 持申領「生果金」的離港限制。協助是次司法覆核申請人的團體表示，會研究判詞，再決定會否提出上訴。

　社署要求申領高齡津貼(俗稱「生果金」)的長者，在申請前必須連續居港1年，其間不得離港超過56 天。從內地回流的香港長者林和倫(現年73歲)2008年申請「生果金」時，因未符合連續居港1年的規定而被拒，林和倫認為此限制違反《基本法》及《人權 法》，在2010年向高等法院申請司法覆核。高院昨日裁定，港府就「生果金」設離港限制並無違反《基本法》。

　雖然上訴庭今年2月裁定綜援設離港限制違憲，但法官林文瀚在判詞中表示，「生果金」與綜援屬於不同 概念，綜援為有需要市民提供生活上的保障，而「生果金」是為特定年齡的長者提供特別需要而設，加上「生果金」不設入息或資產審查，而且「生果金」批出後， 亦未必會終止發放，有需要為申請者設限制。要求申請人必須留港1年，是計劃下最低程度的限制，以確保公眾利益和令「生果金」制度持續運作。法官又指，見不 到任何原因，讓不在港居住的長者申領「生果金」，他舉例如果長者經常不在香港，例如到外出旅遊或移居外國，他們需要「生果金」援助的程度，不及長期居於香 港的長者。

　法官又引述港府呈交法庭的誓章指出，一旦取消離港限制，並假設所有居於內地並符合年齡資格的長者均申領「生果金」，當局每年需額外增加2.7億元開支。

　法官表示，明白部分「生果金」申請人選擇居住在內地，因內地消費較低，但港府設立「生果金」的目的，不是讓長者維持基本生活需要，因此港府為申領「生果金」設離港限制符合《基本法》，法官又指如長者有需要，可轉移申請已撤銷居港或離境限制的綜援。

　林文瀚表示，申請人在申請司法覆核期間已合資格申請「生果金」，明白他繼續入稟並不是為私利，而且案件對公眾有重要性，故裁定申請人及港府各自承擔自己的訟費。

 HCAL 133/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 133 OF 2010

____________

BETWEEN

      LAM WO LUN Applicant

      and

      DIRECTOR OF SOCIAL WELFARE     Respondent

      and

      THE SOCIETY FOR COMMUNITY

      ORGANISATION   Interested Party

____________

Before:  Hon Lam J in Court

Date of Hearing:  12 December 2011

Date of Last Written Submission by Respondent:  2 March 2012

Date of Judgment:  14 May 2012

_______________

J U D G M E N T

_______________

The Applicant is a Hong Kong permanent resident.  Though he was not born in Hong Kong, he came from the mainland in 1949 and has been residing here since then.  He was then 11 years old in 1949.  He received education in Hong Kong, and was gainfully employed in Hong Kong up to 2004 when he retired.  His is married and he has 3 sons, 1 daughter and 7 grandchildren.  Apart from the family of his eldest son, they all live in Hong Kong.  He bought a flat in Wong Tai Sin in 1989 and he is living there.

After his retirement, the Applicant travelled frequently to the mainland to visit his friends and relatives.  When he visited them, he stayed at their homes and each visit would last 8 to 10 days.  In his Form 86, it is said that he spends about two thirds of his time in mainland China.  But he is not a resident there.  He does not have any resident status in the mainland and he is not entitled to public social and medical benefits there.

In Hong Kong, subject to eligibility, elderly persons are entitled to apply for Old Age Allowance [“OAA”] once they reach 65.  For those who are above 70, there is no need to subject to any means test .  The residence eligibility criteria are, similar to those for the Comprehensive Social Security Assistance [“CSSA”], two-folded,

(a)  Seven-year residence in Hong Kong;

(b)  One-year continuous residence in Hong Kong immediately prior to the application [“the OYCR rule”].

Under the OYCR rule, an applicant has to reside in Hong Kong continuously in the year immediately preceding the date of application.  For the purpose of the rule, absence from Hong Kong up to a maximum of 56 days during that one-year period would still be treated as residence in Hong Kong.  However, if an applicant has been out of Hong Kong for more than 56 days, he would be regarded as failing to meet the OYCR rule.  He has to wait until he accumulates sufficient continuous period of stay in Hong Kong to meet the rule before he can apply.  The time he has to wait depends on how long ago he has been away during the preceding year and for each period of absence how much time he stayed out of Hong Kong.

The OYCR rule only applies for the purpose of meeting the eligibility criteria.  It ceases to apply once an application has been approved.  There is a separate post-qualification residence requirement.  That requirement, for OAA, is much less stringent: prior to 2010, a person receiving OAA is required to spend at least 125 days in Hong Kong each year (viz he or she can stay elsewhere for up to 240 days); after 2010, the requirement was changed to 60 days, viz he or she could stay elsewhere for up to 305 days.  In this respect, the post-qualification rule for CSSA is more stringent: a recipient of CSSA below 60 years old, not certified to be disabled, must be in Hong Kong for 305 days and for those above 60 or disabled, the requirement is 185 days.

There are exemptions for the OYCR rule and I shall come back to those exemptions later.  The exemptions for OAA are again more liberal as compared with CSSA.

The residence eligibility criteria have been challenged in the context of CSSA.  The seven-year requirement was considered in Kong Yun Ming v Director of Social Welfare HCAL 127 of 2008.  The challenge failed at first instance.  The OYCR rule was challenged in Yao Man Fai George v Director of Social Welfare HCAL 69 of 2009.  That challenge succeeded.  Both cases went on appeal and they were heard by the Court of Appeal at the same time.  In a judgment handed down on 17 February 2012, the Court of Appeal upheld the decisions of the Court of First Instance.

Coming back to the facts of the present case, the Applicant applied for OAA on 17 March 2008.  By then he was 70 and, subject to his satisfying the eligibility criteria, he would be entitled to OAA without regard to his means.  There is no doubt that he satisfied the seven-year rule.  The only problem was the OYCR rule.  Due to his absence from Hong Kong in the preceding period before his application, his application was refused.  On 13 May 2008, he was notified by the Social Welfare Department that he would be eligible to apply on 1 October 2008 if he did not leave Hong Kong after 29 March 2008 until then.

The net effect of the refusal was that the Applicant had to wait until 1 October 2008 and he had to stay in Hong Kong in the meantime if he wished to apply for OAA.  Alternatively, he would have to wait for a longer period (depending on the period of his absence in the interim) if he left Hong Kong in between 29 March and 1 October 2008.

The Applicant did not re-apply until 23 April 2010.  Neither did he observe the OYCR rule.  In the one year prior to 23 April 2010, he had been away for 227 days.  On 23 April 2010, he was told that the earliest date he could re-apply was 11 October 2010 in order to comply with the OYCR rule.

With the assistance of the Society for Community Organisation [“SOCO”], he lodged an appeal to the Social Security Appeal Board against the rejection of his OAA application.  The appeal was heard on 31 August 2010.  On 20 September 2010, the Appeal Board confirmed the decision to reject his application based on the OYCR rule.

The Applicant spent more time in Hong Kong after his unsuccessful application on 23 April 2010.  On 12 October 2010, he re-applied.  This time he satisfied the OYCR rule and he was granted OAA as from 12 October 2010.  This decision was notified to him on 15 November 2010.  He is currently receiving OAA.

Thus, like the applicant in Yao Man Fai George v Director of Social Welfare, the Applicant had obtained the social security he sought by the time when his Form 86 was lodged (20 December 2010).  However, because of the general importance of the points raised, the court would entertain the judicial review, see the judgment of the Court of Appeal in Yao Man Fai George v Director of Social Welfare CACV 153 of 2010, at para 140.

The challenge by the Applicant

In the Form 86, the Applicant challenges the OYCR rule on the following grounds,

(a)  It infringes his right to social welfare under Article 36 of the Basic Law and/or Article 9 of the International Covenant on Economic, Social and Cultural Rights [“ICESCR”];

(b)  It, being a retrogressive step as compared with the system in place prior to 1997, contravenes Article 145 of the Basic Law and/or Article 9 of the ICESCR;

(c)  It imposes a penalty on the Applicant’s exercise of his right to travel, as such infringes his right under Article 31 of the Basic Law and Article 8(2) of the Hong Kong Bill of Rights;

(d)  It infringes his right to equal treatment under Article 25 of the Basic Law and Article 22 of the Hong Kong Bill of Rights.

Subsumed under the first and third heads of challenge, the Applicant also contended that the OYCR rule is not prescribed by law on the basis that the order of the Chief-Executive in Council and the pamphlet issued by the Social Welfare Department do not constitute “law” for the purpose of Articles 36 and 39 of the Basic Law.  It is also contended that the policy which embodied the OYCR rule lacks foreseeability and accessibility.

As mentioned, similar challenges were considered by the court in the context of CSSA.  Counsel and Mr Tsoi (who appeared on behalf of the SOCO as Interested Party) were familiar with the CSSA cases as they also appeared at the hearing of such appeals.  Though the judgment of the Court of Appeal had not been handed down when this application was heard in December 2011, this court made known to the parties that it would take account of that judgment and direction was given to the parties to file further written submissions (if they so wish) after the delivery of the Court of Appeal judgment.  After the Court of Appeal handed down the judgment on 17 February 2012, Lord Pannick QC filed further submissions on 2 March 2012.  The other parties did not do so.

Issues determined by the Court of Appeal in CACV 18/2009 & 153/2010

Most of the arguments advanced in this case had been deployed in the appeal.  In the judgment of 17 February 2012, the Court of Appeal held that,

(a)  Articles 36 and 145 of the Basic Law should be read together.  The essence of these articles was spelt out by Stock V-P at para 72 as follows,

“With the previous social welfare system as a base, they envisage the continuous formation and promulgation of policy in the realm of social welfare for the benefit of Hong Kong residents – as opposed to visitors – in the light of such economic conditions and social needs as prevail from time to time, with the objective of developing and improving the system, it being manifestly implicit that that objective can only be met if the system be nurtured and sustained for the meaningful benefit of future generations as well as the present.  In order to meet these requirements and in any event inherent in any such system, the right to social welfare carries with it qualifying conditions.  Hong Kong residents are to enjoy that right, so long as they meet the qualifying conditions, for the right itself includes the conditions.  The conditions must be lawful, so that conditions that are discriminatory are not permissible.”

(b)  The argument of retrogressive nature of the restrictions (including the OYCR rule) must be rejected as “development and improvement” of the system should be viewed, as required under Article 145, “in the light of economic conditions and social needs”.  Article 145 does not say that whenever there is a change to the criteria for eligibility to any one form of social welfare, the criteria must be less onerous than previously.  See paras 65 to 67 of the judgment.

(c)  Properly construed, qualifying conditions are inherent in the right to social welfare in Article 36 and they should not be regarded as restrictions to rights as contemplated by Article 39.  In any event, the qualifying conditions are authorized by Article 145 and are accessible, established (thus, foreseeable) and not arbitrary, as such can be said to be “prescribed by law”.

(d)  Article 9 of the ICESCR is, like Article 145 of the Basic Law, resource-sensitive and it recognized that the system for social security should be sustainable.  Viewed in light of the background leading to the implementation of these restrictions, there is no violation of Article 9.

(e)  The central issue in the case was discrimination.  The court applied the test laid down in Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335.  At paras 88 and 89 of the judgment, Stock V-P came to the conclusion that, in the context of CSSA, the aim of differentiation is legitimate and the measure adopted is rationally connected to that aim.  It is worth repeating what His Lordship perceived to be the legitimate aim,

“The aim of the differentiation seems self-evidently to me to be legitimate.  It was stated by the judge to be a differentiation designed in the context of finite public resources and rising social expenditure, to ensure the long-term sustainability of the provision of social security benefits in the light of the government’s constitutional obligation under Article 145 to develop and improve the social welfare system.”

      Also at para 108

“That a tightening of the belt was necessary is amply demonstrated; by which I mean that ample justification has been provided for the contention that in order to sustain the viability of the social welfare system, the eligibility criteria required amendment.  That was the result of anticipated problems posed by an ageing population, a low birth rate, by the fiscal deficit at the time of the decision, the continuing flow of OWP holders with a concomitant absence of control of immigration intake from that direction, decreasing emigration and the fact that the scheme was a non-contributory one.”

(f)   In the realm of social and economic policy, the court recognizes that the executive arm of the government is often better equipped in the making of policy decisions.  However, such recognition does not mean that the court would abdicate its constitutional duty to scrutinize the justification offered by the government.  It only carries out its duty with proper regard to the advantages enjoyed by the executive and the limitations of the court.

(g)  The mere suggestion that there could be alternative solutions to achieve the legitimate aim does not mean that the justification test is not satisfied.

(h)  The standard of review differs as between differentiation based upon inherent personal characteristics (the suspect grounds) and other grounds.  Differentiation based on residence requirement falls into the second category.

(i)   In the context of a residence requirement for social welfare benefits, the appropriate standard to apply is whether the line drawn is manifestly without reasonable foundation (which can also be phased as self-evidently unreasonable). 

(j)   Applying these principles, the seven-year rule is justified and the appeal of Kong Yun Ming was dismissed.

The judgment of the Court of Appeal effectively disposed of Mr Pun’s challenges in the instant case based on the same arguments revolving around Articles 36 and 145 of the Basic Law and Article 9 of the ICESCR.  As for the challenge based on the right to travel, the crucial question is also one of proportionality and justification.  I will therefore focus first on the question of discrimination or unequal treatment in the following discussion.

The Court of Appeal also held that the OYCR rule is not justified in the context of CSSA.  In that connection, the Court of Appeal came to different conclusions from that of A Cheung J (as he then was) as to the first two elements of the justification test: legitimate aim and rational connection.  Stock V-P identified the legitimate aim of the OYRC rule at para 161 as follows,

“… the aim was the restriction of public expenditure in order to sustain the welfare system as a whole …”

In other words, the aim was the same as that for the seven-year rule.

The approach and the standard of review is the same for the seven-year rule, see para 164.

The Court of Appeal came to the view that the OYRC rule failed to satisfy the third element in the justification test.  Paras 165 to 167 of the judgment set out the reasons,

“165.  I do not say that it is unreasonable for the appellant Secretary, in the circumstances with which we are concerned, to have decided to restrict public expenditure on social welfare by adopting a measure designed to exclude from entitlement, at least for a while after they return, those who have lived outside Hong Kong ‘for a long time’ on the basis that such people may be taken to have contributed less to and to have a weaker connection with or commitment to Hong Kong than others.  But that is not the measure which has been adopted.

166.      The measure which has been adopted is one that catches within its net those who, palpably, have not been absent from Hong Kong for ‘a long time’ within any sensible meaning of that phrase in the context of this issue. …

167.      … The point is this, that the policymakers and the decision-makers took the view that there was a sound basis for excluding from entitlement those who had lived away from Hong Kong for a long time and for giving them notice that upon their return, they should not expect immediate entitlement to welfare benefits.  That view and that approach can hardly be said to have been unreasonable.  No one suggests that it is.  And no one could cogently suggest that the drawing of a line which excluded that category of person was unreasonable and or that there was only one point, one particular period of years, which could reflect the time at which a person had lived elsewhere for a long time or had cut or reduced his commitment or contribution to Hong Kong.  But what one can do, sensibly and reasonably, is recognize a line which has been drawn at a point that simply does not reflect the rationale offered.  And that, in my judgment, is what has happened in this instance.”

Can the same be said in respect of the OYCR rule in the context of OAA?  I shall come back to this question later.

Fok Chun Wa v Hospital Authority

Before I address the justification for the OYCR rule in the context of OAA, I should briefly mention the recent decision of the Court of Final Appeal in Fok Chun Wa v Hospital Authority FACV 10 of 2011, 2 April 2012.  Though the subject matter in that case was the level of fees for obstetric services in public hospitals instead of social security benefits, the core issue was discrimination in the context of allocation of public resources.

In Section E1 of the judgment, the Chief Justice discussed the proper approach in law in dealing with a challenge under Article 25 of the Basic Law and Article 22 of the Bill of Rights.  At para 58, His Lordship emphasized that the key question in dealing with issues of equality is: “is there enough of a relevant difference between X and Y to justify differential treatment?” Whilst traditionally a two-stage test is posed, very often there will be overlap in its application.

At para 62 onwards, the Chief Justice referred to different roles played by the court and the executive arm of the government in respect of socio-economic policy.  For present purposes, it is relevant to pay particular attention to these parts of the judgment,

“71.    In this area where limited public funds are involved, the courts have recognized that lines have had to be drawn by the executive or the legislature.  On the whole, save where the line has been drawn in contravention of core values … or where it is shown to be manifestly without reasonable foundation, the courts have left it to the authorities to identify the relevant line to be drawn ….

72. In the area of qualification for social benefits or social welfare, the courts have consistently upheld legislation or acts which have drawn the line at residence status …  The point I would make is that where governments have at their disposal only finite resources with which to devise an economic or social strategy, they should be left to decide (1) whether to have any social or welfare scheme in the first place, (2) the extent of such a scheme and (3) where such a scheme is devised, to choose who is to benefit under it.

73. I am also of the view that when a line is drawn between those who are entitled to a benefit and those who are not, the court can legitimately take into account the clarity of the line and the administrative convenience of the implementing the policy or scheme thereunder.  Naturally, this factor must be weighed against other factors, but where, for instance, the line is drawn so vaguely or ambiguously that the underlying policy or scheme may effectively be undermined, if not frustrated, this is a factor that can be considered by the courts …  Drawing the line at resident status is a clear line and also convenient to administer.”

The Chief Justice examined the argument that a better solution can be put forward to deal with the problem at paras 74 to 76 and dealt with it in relation to the third limb of the justification test.  I only need to refer to some of the comments in those paragraphs,

“75(3) Where a number of alternative, but reasonable solutions to a problem exist, the court will not put itself in a place of the executive or legislature or other authority to decide which is the best option.  That is not its role.  The court will only interfere where the option chosen is clearly beyond the spectrum of reasonable options; in other words, the option has clearly gone too far (or further than necessary) to deal with the problem.  In this situation, the court will not have been satisfied under the third limb of the justification test.”

“75(6) … But in the area of socio-economic or other general policy matters, attempts to search for more and more alternatives to the solution that was adopted in any one case, should be discouraged.  This, I reiterate, is not the role of the court. …”

“76.    To summarise, unless the solution or alternative in question is manifestly beyond the spectrum of reasonableness (or manifestly without reasonable foundation) the court will not interfere.”

Then, at paras 77 to 78, the Chief Justice referred to the different approaches between cases involving core-values relating to personal or human characteristics and those involving other characteristics or status.  Residence status falls within the latter category.  At paras 79 to 80, His Lordship explained the difference between cases involving fundamental concepts (which go to the heart of a society) and rights associated with purely social and economic policies.  The entitlement to social welfare falls within the latter category.  The differences in approaches were summed up at para 81,

“…There is of course, no question of a court taking a laxer or less vigilant approach whenever any questions of constitutionality arise.  Each case is of course approached seriously, only that the legal approach will inevitably differ depending on the circumstances of the case.  Where core values or fundamental concepts are involved, these are areas where the courts have (for want of better terms) expertise and experience, and it is part of their constitutional duty to protect these values or concepts.  In policy matters not involving these matters, the courts do not have this expertise or experience and, more important, it is not within its constitutional remit to determine matters of government or legislative policy, save where questions of legality arise. …”

If I may respectfully say so, this judgment confirmed the validity of the approach adopted by the Court of Appeal in Kong Yun Ming in dealing with claims of unequal treatment in the distribution of welfare benefits.  Since the court has already given parties an opportunity to file written submissions after the judgment of Court of Appeal, I do not deem it necessary to invite further submissions on the judgment of Fok Chun Wa. 

Differences between OAA and CSSA

Like CSSA, OAA is a non-contributory social security scheme, funded entirely by the general revenue.  Unlike CSSA, an applicant for OAA (or more precisely, Higher OAA for those above 70 years old, which is the form of OAA we are concerned in these proceedings),  is not subject to any means test.  As long as an applicant satisfies the residence requirements and the age requirement, he or she would be entitled to a monthly sum (currently set at $1,090).

According to the evidence filed by the Director , OAA was not designed to meet the need for subsistence.  Those who need financial assistance for subsistence, even though they reach 70, should apply for CSSA.  This explains the difference in the rates of the two allowances: OAA is $1,090 as compared with CSSA: $2,820 for single able-bodied person over 60 or $2,660 for such person living with a family.  A person cannot apply for both CSSA and OAA.  The aim of OAA is to help elderly people to meet special needs arising from their old age.  These special needs were explained in the papers placed before the Executive Council and Legislative Council when the scheme was set up and revised.  I shall refer to some of them below.

In the Legislative Council Brief of 3 June 2003 prepared by the Health, Wealth and Food Bureau  explaining the order of Chief Executive adopting, inter alias, the OYCR rule for OAA as from 1 January 2004, the following was said at paras 27 to 29,

“27.    The number of SSA  recipients who are new arrivals is relatively small. … However, as the SSA Scheme is broadly non-means-tested and is not meant to provide assistance needed for subsistence, the residence requirements for OAA and DA should be no less stringent than that for CSSA.  By international standards, there is much room for tightening the existing requirements for these allowances, in particular that for DA. …  As for non-contributory old age benefit, most countries require the claimants to satisfy at least a ten-year residence requirement.  Thus although unlike CSSA there is much less public and fiscal concern about the current residence rules of OAA and DA, the opportunity should be taken to rationalize the arrangement based on the same principle of ‘seven-year’ residence rule as recommended by the Task Force on Population Policy.

28. In addition to the seven-year residence rule, we propose that a person applying for OAA or DA must have resided in Hong Kong continuously for one year immediately before the date of application.  [The OYCR rule is] necessary to tie in with the proposed arrangements for CSSA and DA. …

29. This additional requirement is to ensure that OAA and DA, which are intended as long-term support, are only granted to people who have a genuine, long-term connection with Hong Kong before claiming these allowances.  This is necessary to protect public funds.”

OAA is a long-term support because its targets are elderly people (mostly retired people) and applications for Higher OAA are not subject to any means test.  Once granted, it is unlikely that payments would be discontinued.  Although there is still a post-qualification residence requirement, as mentioned above it is a very lax requirement (the recipient can stay out of Hong Kong for 305 days in a year).  In this respect, the situation is quite different from CSSA except in respect of the Portable CSSA for elderly people .  Thus, Ms Polly Choy explained at para 37 of her affirmation,

“The OYCR rule serves the essential purpose of enabling the Government to avoid excessive expenditure as far as possible given its fiscal limitations and to ensure that the social welfare system is sustainable in the long term.  It does so by assisting with the rational differentiation of applicants based on their relative connections with Hong Kong, bearing in mind that OAA and DA are intended as a supportive measure for those with a long-term connection with Hong Kong.  In the context of an ageing population, the OYCR rule is necessary to ensure the sustainability of the SSA Scheme.  Should the OYCR rule be removed, the potential size of eligible applicants will increase substantially and will place additional burden on Government expenditure….”

In this respect, there is a much greater need to have a requirement of continuous residence (whether in the form of the OYCR rule as it stands or otherwise) to safeguard the sustainability of OAA as compared with CSSA.  Without such requirement, so long as an applicant has at some point in time in the past (and it can be very long ago in the past) resided in Hong Kong for 7 years, he or she would be entitled to OAA upon reaching 70  even though he or she had emigrated and has been living elsewhere for many years before the date of application.  Though there is a post-qualification residence requirement, that requirement is very lax.  Given Hong Kong’s liberal policy in granting permanent resident status to people coming from other territories and the relatively high mobility of our population, one can easily foresee that the abrogation of a continuous residence requirement as an eligibility criterion would substantially increase the burden on the general revenue for OAA payments.

Ms Choy gave an account of the genesis of OAA, tracing it back to the first introduction of a benefit of this nature in the form of Infirmity Allowance in 1973.  In those days, the age requirement was 75 and there was only one residence requirement of living continuously in Hong Kong for five years before 75.  The benefit was only $55 per month.  The purpose of setting up this form of social benefit and its role in the overall scheme for social security were explained in a Memorandum for Executive Council XCC (73)5.  I would highlight paras 6 and 7 of that paper,

“6 It is not practicable to provide sufficient help through changes in the public assistance scheme, since this is designed to provide an adequate income level for the family as a whole.  A family may have to meet considerable extra expense because of a disabled family member but still fall outside the public assistance scheme as the family income is above the level eligible for assistance.  In such cases, the family income may not be high enough to cover the extra expense without financial strain.  Frequently the disabled family member himself will not be able to contribute anything to the family ‘budget’ in return.

7    The value of a new scheme of financial aid for the severely disabled and over 75’s would thus be threefold:

      (a)  it would provide a new and effective means of giving some help to a family with the burden of caring for a family member;

      (b)  it would encourage families to continue coping with the burden and this would reduce the demand for institutional care which requires considerable financial and other community resources e.g. trained staff; and

      (c)  it would enable the beneficiary to make some contribution to the family ‘budget’ and so be less of a burden.”

Over the years, Infirmity Allowance evolved into OAA and the age requirement was lowered to 70 in 1978 and then further lowered to 65 in 1988 (with the distinction between Normal OAA, which was subject to declaration of means with a financial eligibility criterion, and Higher OAA, which was not).  In a memorandum for Executive Council XCC (87) 136  of 16 September 1987, discussing the then proposals for revision of the OAA scheme, one finds some statements explaining the purpose of the scheme at paras 7 to 17.  I would only quote some of the relevant passages,

“8.      The extent of financial assistance provided by the community should, however, take into account the ability of the elderly person’s family to share this responsibility. …  It would seem that most families are still quite prepared to help in supporting their elderly members and that the economic prosperity of Hong Kong has brought them the resources with which to do so …”

“11.    The first group to consider are those aged 65-69 who do not qualify for public assistance and may be looked after by their families but have insufficient means to cover their personal needs. …  It is known that many elderly people living in Hong Kong in low-income families do not receive any money from their children for their personal needs although they do generally receive sufficient food and clothing.”

“12.    It is not easy for any elderly person to both live with and be financially dependent upon the younger generation. …  Family support is worth encouraging but total dependence is best avoided.”

“13.    These considerations seem to justify an effort to ensure that the elderly in this position do not have to rely totally on younger family members to meet their personal needs. … [The extension of OAA to those in 65-69 with a simplified means test] would enable them to have some financial independence and act as an incentive for the family to continue to look after them.”

“17.    There are no grounds for predicting a fundamental shift in the community’s general acceptance of the elderly as an integral part of the family unit and normally to be supported out of the household’s own resources.  It is proposed, therefore, to maintain the concepts of helping those least able to help themselves and regarding the elderly as part of the family unit by further development of the existing arrangements with a view to giving elderly people who are not well off additional means in meeting their special needs, which will enable them to remain in the family circle without becoming too much of a burden to other family members.”

In the same paper, there was discussion as to the non-means tested nature of OAA.  At that time, the proposal was to change it to a means tested benefit.  The discussion at para 25 explained why hitherto it had been non-means tested,

“The Special Needs Allowance Scheme, comprising old age allowance and disability allowance, has been non-means tested since it was introduced 14 years ago.  The possibility of means testing was considered by the Executive Council at the time and rejected.  The main arguments for means testing were that the basis for payment should be need rather than condition and that there should be limits to the financial commitment.  The main arguments against means testing were that the physical criteria for eligibility were tightly defined, that few of those eligible would have the resources to cope without significant financial strain (assuming that those who did not need help probably would not apply) and that it would involve higher staff costs.”

Due to the high and increased take-up rate of OAA, the Financial Secretary expressed concern over sustainability and the administration had to consider imposing a simplified form of means testing for OAA, see paras 5 and 26 to 31 of the paper.  Eventually, it was adopted as a criterion for the Normal OAA for 65-69 but not for the Higher OAA for those over 70.

In 1993, the Public Assistance scheme was replaced by the CSSA scheme.  On the other hand, OAA was grouped under the Social Security Allowance scheme.  CSSA beneficiaries will not be eligible for OAA because the allowances payable to a CSSA recipient will take into account of old age.  Thus, it was said in a Finance Committee paper FCR (92-92) 150  at para 11 that the allowance available to a person for OAA has been subsumed into the standard rate under CSSA.

It is important to have regard to the design, the purpose and the role of OAA in the overall social security benefits because there is a perception that OAA has become a fundamental right of elderly persons in Hong Kong and the purpose of OAA is to show respect for the aged, see the submissions of Mr Tsoi of SOCO paras 10 to 12.  That perception partly stems from the non-means tested nature of Higher OAA and partly stems from the colloquial description of OAA as “生果金” (literally meaning fruit money).

I can understand why people have such perception.  Unfortunately, that does not accord with the original intent for the setting up of OAA.  Though Higher OAA is not subject to any means test, it is still part of the social security regime in Hong Kong aiming to assist those elderly people who requires financial assistance to meet their special needs.  The history as to the genesis of OAA and the policy documents identified the special needs as helping the elderly persons to have some financial independence from their family members with whom they are living.  The latest discussion papers and pamphlets on OAA issued by the administration still refer to the special needs of the elderly.  It has never been the intention of the administration to provide OAA as a modest form of publicly funded pension for all retired persons who are permanent residents of Hong Kong. 

Looking back, it may be said that the adoption of a simplified means test would convey a more accurate picture as to the real nature of OAA to the public.  I have no evidence before me as to why the attempt to introduce a simplified means test in 1987 to all OAA resulted in the means test being applied only to the Normal OAA (for 65-69) but not for the Higher OAA.  Of course, this court can only examine the matter from a legal perspective whereas in real life politics matters are always much more complicated.

Whether Hong Kong should have a publicly funded pension system can be a matter for political debate.  But this cannot be an issue in these proceedings.  For present purposes, I must take the objects and purposes of OAA as I find them based on the materials available to this court.  In this connection, the evidence overwhelmingly shows that OAA is not meant to be a publicly funded pension scheme.  Even though the way in which OAA is actually administered may confer benefits on recipients who do not have the special needs as identified in the policy discussion documents, I do not think this provide a legitimate basis for this court to convert OAA into a pension scheme.  It must be borne in mind that the administration set up OAA as a form of social security to meet some special needs and the legislature approved funding for OAA on that basis.  A publicly funded pension scheme for all retired persons would serve a different social function and have a much greater demand on the general revenue.  It should not be introduced without proper and mature public debate in a forum other than the instant judicial review.

In my judgment, whether the OYCR rule contravenes Article 25 of the Basic Law or Article 22 of the Hong Kong Bill of Rights fall to be determined in the context of OAA as a form of social security benefit to meet the special needs of our elderly citizens.

Another distinguishing feature in OAA (as compared with CSSA) is the exemptions granted to the following categories of persons in respect of the OYCR rule,

(a)  Absence from Hong Kong due to work outside Hong Kong;

(b)  Absence from Hong Kong for the purpose of medical treatments.

These exemptions answer some of the objections to the OYCR rule in the context of CSSA as canvassed in George Yao, see the judgment of A Cheung J in HCAL 69 of 2009, 21 June 2010 paras 85 to 90.

Justification in the context of OAA

It is not disputed that the burden is on the Government to justify the residence criteria including the OYCR rule.  This is well established: see Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335 para 21; Fok Chun Wa v Hospital Authority FACV 10 of 2011, para 60.

I have referred to the explanation in the Legislative Council Brief of 3 June 2003 advanced for the OYCR rule for OAA and the evidence of Polly Choy in that regard.  Mr Pun contended that the evidence of Choy should be read with caution because it is not contemporaneous record.  Counsel drew the court’s attention to Human Rights: Judicial Protection in the United Kingdom by Beatson and others (2008) p 249-251.  The relevant comment is at para 3-153,

“Thirdly, courts should also treat with caution witness evidence of the contemporary policy justification for primary legislation.  This is principally a matter for legal submissions based on the available background material.  The courts will be especially astute not to place weight on witness evidence purportedly directed at the contemporary social policy justification for statutory provisions but which in reality are a recitation in the present tense of the reasons held by the relevant Government department at the time of enactment.”

On the other hand, Lord Pannick submitted that the court is not confined by how the justification was put forward at the time of the introduction of the policy.  He referred to the following authorities: R(SB) v Governors of Denbigh High School [2007] 1 AC 100 at paras 29 to 31 and Belfast City Council v Miss Behavin’ Ltd [2007] 1 WLR 1420 at para 13.  For our purposes, the most pertinent dicta can be found in the Denbigh High School case at para 29 by Lord Bingham,

“ … But the focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant’s Convention rights have been violated.”

And at para 31,

“… But what matters in any case is the practical outcome, not the quality of the decision-making process that led to it.”

In principle, the submission of Lord Pannick must be correct.  When the court considers whether a policy is justified in the wake of constitutional challenges, the issue is whether the relevant constitutional rights have been violated.  A policy may be justified on its merits even though the way in which the policy was explained during its introduction did not fit into a structured analysis in terms of the justification test.  At the same time, the court will subject the reasons put forward as justification to scrutiny as in the case of George Yao.  If the evidence of a witness is at odds with the justification previously put forward in contemporaneous document, the court will weigh the same with caution.  But the court will not be pedantic in the reading of the evidence and contemporaneous documents should not be read as if they were statutes.

In the present case, I do not find any inconsistency between the evidence of Polly Choy and the explanation of the policy in the Legislative Council paper.  The ultimate aim of the OYCR rule, as stated in both documents, is to ensure the sustainability of OAA having regard to its non-means tested nature.  Though para 29 of the Legislative Council Brief referred to protection of public funds, in essence it is about sustainability.  In so holding, I reject Mr Pun’s submission that the only justification put forward in the Legislative Council Brief was that it was necessary to tie in with the proposed arrangements for CSSA .  That is an unduly selective reading of the paper.

In Kong Yun Ming, the Court of Appeal explained why this is a legitimate aim in the context of CSSA.  The overall financial picture with regard to the fiscal consideration for restricting expenses on CSSA applies equally to OAA.  In addition, Polly Choy set out at paras 39 to 43 of her affirmation some possible scenarios if the OYCR rule is abrogated.  Based on statistics of the Census and Statistics Department, assuming all Hong Kong permanent residents currently living in the mainland fulfilling the age criterion apply for OAA, she came up with an additional expenditure of $279 million a year.  Assuming a take-up rate of 7.1% (based on the current take-up rate in the overall Hong Kong population) for Hong Kong permanent residents emigrated elsewhere, the additional expenditure is $593 million a year.

I do not believe the last scenario to be realistic.  One must not forget that there is still a post-qualification residence requirement.  Though it is a relatively lax requirement, I do not think a very substantial percentage of those emigrated elsewhere would return to Hong Kong each year for 60 days for the sake of OAA.  But the same cannot be said for those living in the mainland.  Many of them maintains ties with Hong Kong and can travel back to live in Hong Kong without too much difficulties.

I accept that there is a legitimate aim for the OYCR rule and it has a rational connection with the aim.  The critical question is whether it can satisfy the third limb of the justification test, viz whether the difference in treatment is no more than necessary to accomplish the legitimate aim.

To answer this question, one must bear in mind the legal approach applied by the Court of Final Appeal in Fok Chun Wa and the Court of Appeal in Kong Yun Ming.  To recap, the following propositions are relevant in the present context,

(a)  In the area of socio-economic policy, in particular in dealing with the distribution of finite resources, the court would have regard to the difference in roles between the court and the executive or legislative arms of the government;

(b)  Even so, the court will intervene if the line has been drawn in contravention of core values or if it is manifestly without reasonable foundation;

(c)  In respect of criteria for entitlement to social benefits or social welfare, a residence requirement is not regarded as a difference in treatment by reference to the core personal characteristic of an applicant;

(d)  The mere possibility of having some other solutions to address the problem (which might be less intruding from the applicant’s point of view) does not mean that the policy in question does not satisfy the third limb of the justification test.  The court only intervenes when the policy is manifestly without reasonable foundation.

Mr Pun, relying on the South African case of Republic of South Africa v Grootboom (2001)(1) SA 46 submitted that one must have regard to the needs of the most desperate in assessing what is reasonable.  He said there are many elderly persons who do not have adequate means of support, amongst the most vulnerable, marginal and unprotected groups and the OYCR rule fails to address the needs of these people.  He said the OYRC rule impedes these vulnerable elderly persons’ access to Higher OAA.  He also criticized the OYRC rule for its operation without regard to the reasons of absence apart from work and medical treatment.

With respect, these submissions failed to have regard to the context in which the question of reasonableness was considered in the South African case.  That was a decision on Section 26 of the South African Constitution.  It reads as follows,

“(1)     Everyone has the right to have access to adequate housing.

(2) The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of this right.

(3)  …”

Mr Pun referred this court to para 44 of that judgment.  At that part of the judgment, the court was considering what constituted reasonable legislative and other measures for the purpose of s 26(2), see paras 39 to 44 of the judgment.  It has nothing to do with the justification test with which we are concerned.

Further, Mr Pun failed to have regard to the role of OAA.  His argument proceeded on the premise that OAA is the only form of social security for the elderly persons in need.  As explained above, this is not so.  For elderly person in need of financial assistance for his or her subsistence, he or she can apply for CSSA and if appropriate, Portable CSSA.  OAA is devised to serve another purpose.  Given the abrogation of the OYCR rule for CSSA as a result of the court’s decisions in George Yao, Mr Pun’s submission is erroneous on point of facts.

In this connection Mr Tsoi asked this court to bear in mind that CSSA has to be applied on a household basis and if an elderly person wishes to apply for CSSA, his children would have to make a declaration of not supporting them.  This requirement, he said, impedes many elderly persons from applying for CSSA and they have to resort to OAA.

As Lord Pannick pointed out, it is not within the scope this judicial review to examine the requirement of a declaration from the children in an elderly person’s application for CSSA.  There is no reference to this requirement in the Form 86 or in the evidence.  The evidence of Polly Choy as to the availability of CSSA to address the subsistence need of elderly person has been there since 1 March 2011 and neither the Applicant nor SOCO has filed any evidence to rebut her.  In such circumstances, this court cannot entertain this submission.

In the context of the justification test, the court also needs to bear in mind that hard cases are inevitable no matter where the line is drawn.  In R (Animal Defenders International) v Secretary of State [2008] AC 1312 para 13, Lord Bingham said,

“A general rule means that a line must be drawn, and it is for Parliament to decide where.  The drawing of a line inevitably means that hard cases will arise falling on the wrong side of it, but that should not be held to invalidate the rule if, judged in the round it is beneficial.”

In his oral submission, Mr Pun further submitted that the OYRC rule failed to identify those who have a genuine, long-term connection with Hong Kong, which was professed to be the objective under para 29 of the Legislative Council Brief.  At first blush, this submission is supported by the Court of Appeal’s decision in George Yao.

But as I said, the Legislative Council Brief should not be read as if it were statutes.  The expression “genuine, long-term connection” has a relative connotation.  Though I would not describe the Applicant as not having a genuine and long-term connection with Hong Kong in ordinary speech, in the context of OAA having regard to what I shall say below, I can see the rationality of saying that someone who fails to meet the OYCR rule (who would be absent from Hong Kong for more than 56 days) is relevantly different from one who meets the same.

Bearing in mind the target recipients of OAA, the exemptions for work and medical treatment, the role and primary purpose of OAA in providing for the special needs of the elderly as discussed above, the effect of non-compliance with OYCR rule on an applicant, I agree with Lord Pannick’s analysis in his written submissions in these paragraphs,

“43(2)(b)   Here the Government has, in order to produce a workable rule, chosen a defined period of time: residence for at least 309 days in Hong Kong in the previous year.  There will undoubtedly be hard cases.  But the rule will also achieve the objective of excluding from OAA many people who have less strong links with Hong Kong.  It is difficult to see how the objective could be achieved other than by a rule which refers to a defined period of time, unless each case were to be individually examined, which would be administratively impossible to achieve (at least without very substantial expenditure) and would be very uncertain in its application.”

“43(3)(b)   The discretionary provisions ensure that absence from Hong Kong for the reasons of work or medical treatment may be disregarded …While absence for study is not generally recognized in the OAA scheme, this is readily explicable in view of the age bracket of those who apply for OAA.  As to absence for the purposes of travel and visiting family, the 56 days allowance was established for this reason … A period of 56 days … is generous in this connection.”

“43(3)(d)   The discretionary provisions enable the Director to address whether there is an overriding reason for OAA in the cases otherwise excluded by [the OYCR rule] and to make provision in such cases.  The exercise of the power to exempt certain absences thus helps to ensure that OAA performs its function even in those cases [where absence was due to reasons other than work or medical treatment].”

As I said above in the discussion of the difference between OAA and CSSA, it is necessary to draw a distinction based on pre-application continuous residence in respect of OAA.  The only issue is whether the line drawn by the OYCR rule is manifestly without reasonable foundation (residence status not being a core personal characteristic).  Lord Pannick’s analysis demonstrated that it is impossible to say that this line falls foul of that test.

The matter may also be cross-checked by asking this question: is it manifestly without reasonable foundation to require an applicant for a long-term non-means tested social benefit aiming at helping the elderly to have some financial independence from his family members to wait and stay in Hong Kong (other than for work or medical treatment) to make up for the requisite period to satisfy the OYCR rule?  In George Yao, A Cheung J observed at para 93 of his judgment that the period of suspension “must be considered to be significant from the perspective of someone in need of financial assistance, whether in terms of the length of suspension or of the amount of financial assistance involved”.  That was said with respect to the OYCR rule in CSSA.

For someone who is able to travel or visit others frequently, his need for assistance under the OAA would probably be less than those who satisfy the OYCR rule.  Unlike CSSA, we are not concerned with subsistence.  As the Higher OAA is a non-means tested, long-term non-contributory social security benefit, I do not find the OYCR to be manifestly without reasonable foundation.

In coming to that conclusion, I have not lost sight of the submissions that some OAA applicants actually have to live across the border because they could not afford the cost of living in Hong Kong.  For such persons, as I have explained above, they should apply for Portable CSSA instead of OAA.  Whether the scope of Portable CSSA should be extended is not a matter within the purview of these proceedings.  OAA is not designed to meet the need of the elderly for subsistence.  Thus, their predicaments should not divert this court from the real issues in this judicial review.  In any event, this is not the situation of the Applicant.

Therefore, the challenge based on Article 25 of the Basic Law and Article 22 of the Hong Kong Bill of Rights [“HKBoR”] cannot succeed.

The right to travel: Article 31 of the Basic Law and Article 8(2) of the HKBoR

The OYCR rule is a restriction on the right to travel: see the judgment of A Cheung J in George Yao.  But restriction on such right can be imposed if it is prescribed by law and the justification test is satisfied.  The prescribed by law point has been addressed by the Court of Appeal in Kong Yun Ming.  In this connection, Mr Pun’s reliance on Gurung Kesh Bahadur v Director of Immigration (2002) 5 HKCFAR 480 is misconceived.  The OYCR rule is a published rule in the overall scheme for OAA that governs all OAA applications.  It is not the mere existence of general discretionary powers to grant or to refuse OAA on a case by case basis.

As regard the justification test, Mr Pun submitted that the standard of review must be stricter and the justification has to meet the requirements in Article 8(3) of the HKBoR.  Article 8(2) and (3) reads,

“(2)     Everyone shall be free to leave Hong Kong. 

(3)  The above-mentioned rights shall not be subject to any restrictions except those which are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognized in this Bill of Rights.”

This is compared with Article 31 of the Basic Law,

“Hong Kong residents … 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 is to read together with Article 39,

“The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions 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.”

I shall first dispose of Mr Pun’s submission on a stricter standard of review.  Subject to what I shall say in respect of the requirements of Article 8(3) of the HKBoR and the criteria to be applied in the justification test, I do not see any ground for suggesting that there should be stricter standard of review for a challenge based on the right of travel as opposed to the right to equal treatment.  I cannot find any suggestion that the standard of review would be different in the judgments of A Cheung J and the Court of Appeal in George Yao.  With respect, Mr Pun has read too much into Bokhary PJ’s references to the American authorities in Gurung Kesh Bahadur.  The constitutional right to equal treatment under Article 25 is no less important than the constitutional right to travel under Article 31.  Thus, in principle, it is difficult to see any reason why the standard of review should be stricter in a case under Article 31 as compared with a case under Article 25.

On the other hand, Mr Pun is correct in his submission that since we are dealing with a right protected by the Basic Law as well as the HKBoR, the criteria in the HKBoR have to be satisfied in addition to the requirements under the Basic Law, see Gurung Kesh Bahadur.  In Official Receiver v Chan Wing Hing (2006) 9 HKCFAR 545, the Court of Final Appeal accepted, in the context of the challenges in that case, that the right to travel must be rationally connected to the protection of the rights of others.  The justification test was summarized by Ribeiro PJ at para 81  as follows,

(a)  The restriction must be rationally connected with one or more of the legitimate purposes ;

(b)  The means used to impair the freedom of travel must be no more than is necessary to accomplish the legitimate purposes in question.

Given my above conclusion on the application of the justification test in the context of Article 25, the crucial issue in the context of Article 8(3) is whether the long term sustainability of OAA falls within any one of the prescribed purposes in that Article.  If it does, the OYCR rule would pass the justification test laid down in Article 8(3).  If it does not, the OYCR rule would infringe Article 8(2) notwithstanding its compliance with the Basic Law.

Lord Pannick referred to McDonald v Kensington and Chelsea LBC [2011] 4 All ER 881 paras 15 and 16 to illustrate the wide margin of discretion given to the government in terms of resource allocation.  At para 16, Lord Brown said,

“… the clear and consistent jurisprudence of the Strasbourg Court establishes ‘the wide margin of appreciation enjoyed by the states’ in striking ‘the fair balance … between the competing interests of the individual and of the community as a whole’ and ‘in determining the steps to be taken to ensure compliance with the Convention’, and indeed that ‘this margin of appreciation is even wider when … the issues involve an assessment of the priorities in the context of the allocation of limited State resources …”

That was a case in which the right to respect for private life under Article 8 of the European Convention on Human Rights was considered.  There is a provision for exception in Article 8(2),

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

On the facts of that case, in the context of a debate as to whether a local health authority has infringed the appellant’s right in meeting her nighttime need for assistance to use the commode by providing incontinence pads or special sheeting instead of a night-time carer, Lord Brown said at para 19, 

“But I also share Rix LJ’s view that the appellant cannot establish an interference here by the respondents with her art 8 rights.  I add only that, even if such an interference were established, it would be clearly justified under art 8(2) … on the grounds that it is necessary for the economic well-being of the respondents and the interests of their other service-users and is a proportionate response to the appellant’s needs because it affords her the maximum protection from injury, greater privacy and independence, and results in a substantial costs saving.”

We are not dealing with the right to respect for private life.  However, I have to consider whether a similar approach should be adopted for Article 8(3) of the HKBoR in the light of the similarity in some of the phrases in the exceptions in Article 8(2) of the European Convention.  There are of course differences as well.  Article 8(2) of that Convention refers to “the economic well-being of the country” which does not appear in Article 8(3) of the HKBoR.  But apart from the economic well-being of the respondents in that case, Lord Brown also referred to the interests of the other service-users.

It is interesting to note that there is no reference to “ordre public” in Article 8(2) of the European Convention.  In contrast, in respect of the article on freedom of movement, Article 2(3) of the Fourth Protocol under the European Convention refer to the maintenance of ‘ordre public’ as one of the legitimate purposes for the restriction of such freedom.

Article 8(3) of the HKBoR also includes “public order ‘ordre public’ ” as one of the prescribed purposes.  It is well established that the meaning of ‘ordre public’ is wider than public order in terms of law and order.  In the context of public law, the following explanation by Kiss, Permissible Limitations on Rights has repeatedly been cited in this jurisdiction,

“ordre public includes the existence and the functioning of the state organization, which not only allows it to maintain peace and order in the country but ensures the common welfare by satisfying collective needs and protecting human rights.”

“In sum: [‘public order (ordre public)’] may be understood as a basis for restricting some specified rights and freedoms in the interest of the adequate functioning of the public institutions necessary to the collectivity when other conditions, discussed below, are met.”

To the same effect is the Siracusa Principles,

“22.    The expression ‘public order (ordre public)’ as used in the Covenant may be defined as the sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded.  Respect for human rights is part of public order (ordre public).

23. Public order (ordre public) shall be interpreted in the context of the purpose of the particular human right which is limited on this ground.”

See Secretary for Justice v Oriental Press Group [1998] 2 HKLRD 123 at p 161; HKSAR v Ng Kung Siu (1999) 2 HKCFAR 442 at p 457-460; Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229 at p 261-263.

In the context of the right to leave under the ICCPR, similar elaboration and citation of similar authorities can be found in Hurst Hannum, The Right to Leave and Return in International Law and Practice p 29-41.

In my judgment, the preservation of the sustainability of OAA comes within the umbrella of the “public order (ordre public)” purpose within the meaning of Article 8(3) of the HKBoR.  To maintain the economic sustainability of a non-contributory welfare scheme financed by public fund is part of the common welfare of our society.  It is essential to the proper functioning of our social welfare regime that its sustainability should be safeguarded.

Therefore, the OYCR rule also satisfies the justification test in the context of the constitutionality challenges based on the right to travel.

Result

The application for judicial review is dismissed.

Since the Applicant was already qualified for OAA by the time of his filing of the application for judicial review, he did not pursue this judicial review for his own private gain.  In light of the successful challenge of the OYCR rule in the context of CSSA in George Yao, these proceedings can properly be regarded as being pursued in furtherance of the interest of the society as a whole.  The legality of the OYCR rule in OAA is a matter of general public importance and it is hoped that this judgment would shed light on the future formulation of policy regarding OAA.  Applying the approach in Chu Hoi Dick v Secretary for Home Affairs (No 2) [2007] 4 HKC 428, I will make a costs order nisi that there be no order as to costs.  The Applicant’s own costs is to be taxed in accordance with Legal Aid Regulations.

Lastly, I wish to thank counsel for their assistance.

(M H Lam)

Judge of the Court of First Instance

High Court

Mr Hectar Pun, instructed by Tang, Wong & Chow, assigned by Legal Aid Department, for the Applicant

Mr Lord Pannick, QC and Mr Abraham Chan, assigned by the Department of Justice, for the Respondent

Mr Tsoi Yiu Cheong Richard, in person, for the Interested Party (present)