How Hong Kong residents living in mainland China could have the right to vote in city elections
Many have queried why Hong Kong residents cannot vote outside Hong Kong on polling day. Legislator Starry Lee Wai-king put this question to Patrick Nip Tak-kuen, the secretary for Constitutional and Mainland Affairs, in the Legislative Council on June 6 (“Call to give Hongkongers living overseas the right to vote”).
Hong Kong residents cannot vote outside Hong Kong in the same way that Australian or American nationals can, mainly because, under our laws, eligible voters must be permanent residents who are “ordinarily resident” in Hong Kong.
This means that even permanent residents who have the right of abode in Hong Kong might not qualify as voters if they have left Hong Kong and can no longer claim that the city is their ordinary place of residence.
As many distinguished lawyers have explained, “ordinary residence” is not a term of art in English law. There is no clear-cut statutory definition, but plenty of jurisprudence on this subject, going back to the leading judgments of Lord Denning and Lord Scarman in landmark cases.
Even so, as David Lock, QC, explained in a talk on this subject in 2015, in most cases it should be relatively straightforward to determine whether a person is ordinarily resident in a specific place.
Many Hong Kong permanent residents working in mainland China shuttle between Hong Kong and the mainland and maintain a home in Hong Kong. As such, they are more likely to qualify as voters than Hong Kong permanent residents who have emigrated and seldom come back to the city.
Officials have balked at introducing arrangements for Hong Kong residents working in the mainland to vote at government offices there, mainly because of the difficulty in determining whether they qualify as “permanent residents who are ordinarily resident” in Hong Kong.
However, this problem can be resolved by requiring voters to declare that they are “ordinarily resident” in Hong Kong under the Oaths and Declarations Ordinance, based on legal guidelines provided by the government.
Their travel pattern can be easily ascertained by checking against the Immigration Department database.
The government should implement such arrangements in the mainland as a first step. Depending on the outcome, the government could introduce similar arrangements for Hong Kong permanent residents living in overseas countries.
The legal and administrative difficulties can be overcome if there is a will to do it.
Regina Ip, member, Legislative Council