TAM NGA YIN AND OTHERS v. THE DIRECTOR OF IMMIGRATION

FACV000020/2000

FACV Nos. 20 & 21of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NOS. 20 & 21 OF 2000 (CIVIL)

(ON APPEAL FROM CACV NO. 301 OF 1999)

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J U D G M E N T

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Chief Justice Li, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ :

1. Article 24 of the Basic Law prescribes the six categories of persons who are permanent residents of the Hong Kong Special Administrative Region (the "HKSAR" or "the Region" or "Hong Kong") and confers on them the right of abode in the Region. The first three categories in art. 24(2) are :

2. The question in this appeal is whether adopted children are within art. 24(2)(3) . Are Chinese citizens born outside Hong Kong who have been adopted by Hong Kong permanent residents within it?

The facts

3. The adopted children concerned, the appellants, are Tam Nga Yin, Chan Wai Wah and Xie Xiaoyi ("the appellants"). They are all minors and were applicants in the judicial review proceedings against the Director of Immigration, the respondent, ("the Director"). The detailed facts are not material for present purposes and the essential facts can be simply stated as follows :

Effect of Mainland adoptions

4. The effect in Hong Kong of the adoption of the appellants under Mainland law is not in dispute. It is common ground that :

The Judge and the Court of Appeal

5. The appellants maintain that they are permanent residents with the right of abode within art. 24(2)(3). This is disputed by the Director. The appellants succeeded at first instance before the Judge, Keith J. as he then was : [1999] 2 HKLRD 505, [1999] 3 HKC 148. The Court of Appeal (Mayo VP, Leung and Rogers JJA as they then were) held in favour of the Director and allowed the Director's appeal : [2000] 2 HKLRD 161.

Chong Fung Yuen

6. In the judgment delivered on the same day as this judgment in Director of Immigration v. Chong Fung Yuen ("Chong Fung Yuen"), the Court considered the proper interpretation of art. 24(2)(1) of the Basic Law. In that judgment, the Court set out the history of recent events, including the Interpretation by the Standing Committee ("the Standing Committee") of the National People's Congress ("the NPC") of arts 22(4) and 24(2)(3) of the Basic Law adopted on 26 June 1999 ("the Interpretation"). And the Court considered a number of questions which are relevant to this appeal. These include the approach to the interpretation of the Basic Law and the art. 158(3) issue, namely whether an article (art. 24(2)(1) in that case) is an excluded provision within art. 158(3).

7. It is unnecessary to burden this judgment by repeating what is set out inChong Fung Yuen on the same subjects. Reference will therefore be made to the relevant section in that judgment.

The issues

8. The issues which arise in this appeal are :

The 1st issue

9. As was held in Lau Kong Yung v. Director of Immigration (1999) 2 HKCFAR 300 ("Lau Kong Yung") and as discussed in Chong Fung Yuen (see sec. 6) : (1) The Standing Committee has the power to interpret the Basic Law under Article 67(4) of the Chinese Constitution and art. 158 of the Basic Law. (2) The courts in Hong Kong have been authorized under arts 158(2) and 158(3) to interpret the Basic Law in adjudicating cases. (3) But the power of the Hong Kong courts to interpret the Basic Law as so authorized is : (a) subject to the limit on the jurisdiction of the Court, that is the Court of Final Appeal, imposed by art. 158(3) in relation to the excluded provisions which must be referred to the Standing Committee for interpretation on a judicial reference (the excluded provisions being provisions "concerning affairs which are the responsibility of the Central People's Government or concerning the relationship between the Central Authorities and the Region"); and (b) subject to being bound by any interpretation by the Standing Committee under art. 158. (4) Where the Standing Committee has made an interpretation of the Basic Law, whether under art. 158(1) or on a judicial reference under art. 158(3), the courts in Hong Kong are under a duty to follow it.

10. As set out in Chong Fung Yuen (sec. 5), according to the Interpretation : (1) the provisions of art. 22(4) mean that people from other parts of China, including those persons of Chinese nationality born outside Hong Kong of Hong Kong permanent residents, who wish to enter the HKSAR for whatever reason, must obtain approval from the Mainland authorities before they can enter the HKSAR; and (2) the provisions of art. 24(2)(3) mean, that to qualify as a permanent resident within it, both parents or either parent of the person concerned must be a permanent resident within art. 24(2)(1) or 24(2)(2) at the time of birth of the person concerned. This requirement relating to the parent's status at the time of birth of the person concerned will be referred to as "the time of birth requirement".

11. The question here is whether the Interpretation contains an interpretation of art. 24(2)(3) in relation to adopted children. If it did, the courts in Hong Kong would be under a duty to follow it.

12. Mr Joseph Fok SC for the Director accepts that the Standing Committee was not requested to address and the Interpretation did not address the issue of adopted children. But he submits that the Interpretation, in interpreting art. 24(2)(3) to contain the time of birth requirement, has by implication dealt with adopted children.

13. This submission cannot be accepted. In our view, nothing in the Interpretation carries any implication as to the status of adopted children under art. 24(2)(3). Accordingly, there is no interpretation by the Standing Committee of art. 24(2)(3) in relation to adopted children.

14. However, the Court is bound by the Interpretation which interpreted art. 24(2)(3) to contain the time of birth requirement. Whether art. 24(2)(3) is an excluded provision will now be considered. If it is not, then the Court in approaching the proper interpretation of the article in relation to adopted children will have to consider what assistance (if any) can be derived from the existence of this requirement.

The 2nd issue

15. As was held in Ng Ka Ling & others v. Director of Immigration (1999) 2 HKCFAR 4 ("Ng Ka Ling") and as discussed in Chong Fung Yuen (sec. 7), the Court is required to make a judicial reference to the Standing Committee under art. 158(3) where both the classification and necessity conditions are satisfied. Here, the necessity condition is satisfied. The Court in adjudicating this case needs to interpret art. 24(2)(3) and such interpretation will affect the judgment on this case. The issue is whether the classification condition is satisfied. Is art. 24(2)(3) an excluded provision?

16. Mr Fok SC for the Director makes submissions as follows which are similar to those advanced in Chong Fung Yuen.

17. In Chong Fung Yuen (sec. 7.3), the Court concluded that the Preamble to the Interpretation cannot be read as expressing a clear view that art. 24(2)(3) is an excluded provision and held as follows (sec. 7.4): The use of the test suggested by the Director for classifying whether a provision is an excluded provision is not justified on the language of art. 158(3) when interpreted in the light of its context and purpose. And that article cannot be interpreted to prescribe as the test for classification the factual determination of the substantive effect of the implementation of the article in question.

18. As the Court stated in Chong Fung Yuen (sec. 7.4), art. 158(3) in focusing on the provision in question requires the Court to consider the character of the provision. The character of art. 24(2)(3) is that of a provision prescribing one category of permanent residents who are entitled to the right of abode namely, persons of Chinese nationality born outside Hong Kong of those permanent residents listed in the categories in arts 24(2)(1) and 24(2)(2). Having regard to its character, the article in question does not concern affairs which are the responsibility of the Central People's Government or the relationship between the Central Authorities and the Region. It is a provision within the Region's autonomy and is not an excluded provision. Accordingly, a judicial reference to the Standing Committee is not required.

The 3rd issue

19. Having regard to the conclusions reached on the first and second issues, the proper interpretation of art. 24(2)(3) in relation to adopted children falls to be considered.

20. In the absence of a binding interpretation by the Standing Committee of art. 24(2)(3) in relation to adopted children, the courts in Hong Kong apply the common law in interpreting the Basic Law. This was discussed in Chong Fung Yuen (secs 6.1 and 6.2). That the common law should apply was common ground in that case, as it is in this case. In Ng Ka Ling and Chong Fung Yuen (sec. 6.3), the Court discussed the common law approach to the interpretation of the Basic Law and it is that approach that should be applied here.

21. In essence, the courts' role is to construe the language used in the text of the Basic Law in order to ascertain the legislative intent as expressed in the language. The language of the article in question must be considered in the light of its context and purpose. Whilst the courts must avoid a literal, technical, narrow or rigid approach, the language cannot be given a meaning which it cannot bear. Once the courts conclude that the meaning of the text when construed in the light of its context and purpose is clear, the courts are bound to give effect to the clear meaning of the language. The meaning of the language is clear if it is free from ambiguity, that is, it is not reasonably capable of sustaining competing alternative interpretations.

Purpose

22. As pointed out in Chong Fung Yuen (sec. 8.2), the purpose of art. 24(2) taken together with art. 24(3) is to confer the right of abode on the persons defined to be the permanent residents of the HKSAR. Certain persons are included and this necessarily means that those not included are excluded. In this sense, it can be said that the purpose of art. 24(2) is to limit the persons who are permanent residents of the HKSAR and hence its population.

Context

23. The Court must interpret art. 24(2)(3) in the light not only of its purpose, but also its context. As part of context, the appellants rely on (1) the International Covenant on Civil and Political Rights ("ICCPR") which has been incorporated into the law of Hong Kong by the Hong Kong Bill of Rights Ordinance, Cap. 383, which contains the Hong Kong Bill of Rights ("the Bill of Rights"); and (2) the state of domestic law prior to enactment of the Basic Law.

ICCPR and Bill of Rights

24. Article 39 of the Basic Law provides :

25. As has been noted, the ICCPR was implemented in Hong Kong through the Bill of Rights. Article 19(1) incorporating art. 23(1) of the ICCPR provides :

This article will be referred to as "art. 19(1) of the Bill of Rights".

26. Ms Gladys Li SC for the two appellants, Tam Nga Yin and Chan Wai Wah, whose submissions are adopted by Mr Patrick Szeto for the appellant, Xie Xiaoyi, points out that adoption is a beneficial institution. (This is not disputed by the Director.) She submits that great weight must be paid to art. 19(1) of the Bill of Rights when approaching interpretation. She also refers to arts 10 and 11 of the International Covenant on Economic, Social and Cultural Rights and arts 20 and 21 of the Convention on the Rights of the Child. But she accepts that these articles do not add materially to art. 19(1) of the Bill of Rights for the purposes of her argument. Ms Li SC contends that interpreting art. 24(2)(3) as covering adopted children would promote family union and would be consistent with art. 19(1) of the Bill of Rights whereas the contrary interpretation would split the family and would be inconsistent with it. She points out that in Ng Ka Ling (at 41), the Court, applying this approach, held that children born out of wedlock are within art. 24(2)(3) and the Standing Committee was not asked to interpret the article in relation to that question. Ms Li SC went so far as to submit that the weight which should be given to promoting family union consistently with art. 19(1) of the Bill of Rights is so great that art. 24(2)(3) should be construed as covering adopted children unless the article contains express words excluding them.

27. On the other hand, Mr Fok SC for the Director, submits that, although art. 19(1) of the Bill of Rights is part of the context, little or no assistance can be gained from it in interpreting art. 24(2)(3) in relation to adopted children. Two grounds are advanced in support of this submission. First, it is argued that prohibition of entry of an adopted child from outside the HKSAR does not amount to a breach of the Government's obligations under the ICCPR if family life has not yet been firmly established in Hong Kong by lawful presence and in the absence of legislation providing for a right of entry for Mainland children for the purpose of undergoing adoption. See AS v. Canada, Communication No. 68/1980 (31 March 1981) UNHRC; X and Y v. The United Kingdom, Application No. 7229/75 (15.12.77) EHRC. That argument may well be right. But, as submitted by Ms Li SC, it has not been suggested in this case that the Government is in breach of art. 19(1) of the Bill of Rights and this argument, directed to the question of breach, does not assist the Director's submission.

28. The second ground relied on by the Director for his submission that art. 19(1) of the Bill of Rights is of little or no weight in this interpretation exercise is that the ICCPR as applied to Hong Kong is subject to a reservation concerning immigration matters. And it is the ICCPR as applied to Hong Kong, that is, subject to the reservation, which under art. 39 of the Basic Law, shall remain in force and shall be implemented through the laws of the HKSAR . The ICCPR was first applied to Hong Kong when it was a dependent territory of the United Kingdom which had made the reservation in the following terms ("the reservation") :

This reservation was reflected in s.11 of the Hong Kong Bill of Rights Ordinance ("s.11"). That section provides :

The effect of the reservation and s.11 is that the ICCPR and the Bill of Rights do not apply to and do not affect immigration legislation regarding persons not having the right to enter and remain in Hong Kong.

29. Mr Fok SC for the Director submits that one is concerned with immigration matters that fall within the reservation and s.11 and accordingly art. 19(1) of the Bill of Rights cannot be considered in the interpretation exercise here.

30. That submission cannot be accepted. What we are concerned with in this case is whether, on a proper interpretation of art. 24(2)(3), adopted children are permanent residents with the right of abode. We are not concerned with immigration legislation relating to persons who do not have this right. Accordingly, the reservation and s.11, which have the effect of rendering the ICCPR and the Bill of Rights inapplicable to immigration legislation in relation to persons who do not have the right of abode in Hong Kong, cannot affect the matter. So, art. 19(1) of the Bill of Rights is legitimately part of the context for the proper interpretation of art. 24(2)(3) in relation to adopted children.

Domestic law

31. Ms Li SC relies on the state of domestic law prior to the enactment of the Basic Law in two areas. First, in the immigration area. Secondly, in relation to adopted children.

32. As to immigration law, Ms Li SC took the Court through the maze of Hong Kong and United Kingdom immigration legislation which applied to Hong Kong at various times before 1 July 1997 to make the point that the position of adopted children was recognised in relation to the acquisition of certain immigration rights. It is unnecessary to burden this judgment with tracing a pathway through the maze of immigration legislation. As pointed out in Chong Fung Yuen (sec. 8.2) the immigration legislation before 1997 had its own history arising from the perceived threat of large scale immigration into the United Kingdom from British Commonwealth countries. And in any event, even if previous immigration legislation were relevant to the interpretation exercise here, it is difficult to gain any assistance from the fact that the position of adopted children was recognised in such legislation. It could be argued that such recognition points to an interpretation of art. 24(2)(3) that adopted children are within it. But on the other hand, it could equally be argued that, since recognition was given in the previous immigration legislation in express terms, the absence of an express reference to them in art. 24(2)(3) of the Basic Law should be regarded as a significant pointer against the interpretation that they are within it. Ultimately, the reference to previous immigration legislation is of no assistance in the present case.

33. In contrast, the state of domestic law in relation to the position of adopted children relied on by the appellants as part of the context is plainly of assistance. The institution of adoption is recognised to be a beneficial one in society. It is unnecessary to go into the provisions of the Adoption Ordinance and the case law since, as pointed out above, it is common ground that the effect of a valid adoption order under the Ordinance (both a Hong Kong adoption as well as an overseas adoption as defined in the Ordinance) is that in relation to the adopted child, "the adopting parents stand for all purposes in the position of the true parents". See J v. C at 719 D-F quoted above.

34. To summarise, art. 19(1) of the Bill of Rights and the domestic law relating to adopted children are part of the context and are of assistance. Accordingly, they should inform the Court when it approaches the interpretation of art. 24(2)(3). So, when interpreting the article, the Court must take account of the principles : first, that the family being the natural and fundamental group unit of society is entitled to protection; and, second, that the adopted child is as much a part of the family of the adoptive parents as a natural child would be .

Interpretation of art. 24(2)(3) in the light of purpose and context

35. The Court should interpret the text of the language of art. 24(2)(3) in the light of its purpose and context as discussed above. Article 24(2)(3) reads :

As a result of the Interpretation by the Standing Committee, the article contains the time of birth requirement, that is, both parents or either parent of the person concerned must be a permanent resident within art. 24(2)(1) or 24(2)(2) at the time of birth of the person concerned.

36. To qualify as a permanent resident under art. 24(2)(3), the person concerned must satisfy three requirements. First, the person concerned must be a Chinese citizen. Secondly, the person concerned must have been born outside Hong Kong. Thirdly, at least one of the parents of the person concerned must have been a permanent resident within art. 24(2)(1) or 24(2)(2) at the time of birth of the person concerned.

37. The question in this appeal concerns the nature of the parent and child relationship in the third requirement. It of course covers a natural parent and child relationship. The question is whether it also covers the relationship arising from adoption between an adoptive parent and an adopted child.

38. Ms Li SC submits that the article in referring to "born" looks to the parental relationship and the status of the parents as one of the essential criteria for qualification as a permanent resident in this category. Informed by the purpose and context, particularly the principles that the family is entitled to protection and that an adopted child is as much a part of the family as a natural child would be, the Court should interpret art. 24(2)(3) to include not only children from the natural parent and child relationship but also children from the adoptive parent and child relationship. Indeed, as has already been noted, Ms Li SC went so far as to suggest that adopted children should be interpreted as being within the article unless there are express words excluding them, although it is unnecessary for her to pitch the appellants' case so high. As to the application of the time of birth requirement to an adopted child, she accepts that one should look to the adoptive parents. Her primary argument is that it is the time of adoption that is relevant, that is, one of the adoptive parents must be a permanent resident within art. 24(2)(1) or 24(2)(2) at that time. She also advances the alternative argument that the time of birth is the relevant time, that is, one of the adoptive parents must be a permanent resident at the time of birth of the person concerned. (On the facts, the appellants would satisfy the requirement on either argument.) Since the Court is engaged in interpretation, Ms Li SC suggests that it is not a fruitful exercise to re-formulate the wording of the article differently so as to better reflect the result, which on her contention, the Court should arrive at as a matter of interpretation.

39. If the language of art. 24(2)(3) were ambiguous, that is, it is reasonably capable of sustaining competing alternative interpretations, the principles that the Court must have regard to, namely the right of the family to protection under art. 19(1) of the Bill of Rights and that an adopted child is as much a part of the family as a natural child would be, would require the Court to lean in favour of an interpretation that adopted children are included since that would be conducive towards achieving some measure of family union. Although as pointed out in Ng Ka Ling (at 41E), the categories of permanent residents in art. 24(2) cannot achieve complete family union since spouses, for example, are excluded, an interpretation that helps to achieve some measure of family union should be favoured, if the language of the text can sustain such an interpretation.

40. But is the language of art. 24(2)(3), with the phrase "born ... of", when considered in the light of its purpose and context, ambiguous? It is plain that the language refers only to natural children. The language is simply incapable of sustaining an interpretation that adopted children are included. To hold otherwise would involve reading "born" as relating only to the place of birth, that is, outside Hong Kong, and treating the word "of" in "born of" as virtually meaningless .

41. This interpretation is supported by the time of birth requirement, that is, the requirement that one of the parents of the person concerned must be a permanent resident within art. 24(2)(1) or 24(2)(2) at the time of his or her birth. This requirement, in focusing on the time of birth, suggests that the parental relationship is the natural parent and child relationship and does not include the relationship between adoptive parent and adopted children. To apply the time of adoption, instead of the time of birth, in accordance with the appellants' primary argument, would be to substitute what in substance is a different requirement. And if on the appellants' alternative argument, one takes the time of birth of the person concerned but looks to the adoptive parents, that cannot be appropriate since at that time, there was no relationship with the adoptive parents. The only relationship at that time was with the natural parents.

42. In Lui Sheung Kwan & Another v. Director of Immigration [1998] 1 HKLRD 265, the father was a permanent resident but the mother was not yet a permanent resident. A child of the mother from a previous marriage, that is, the father's stepchild, claimed to be a permanent resident within art. 24(2)(3). Chan CJHC (as he then was) held that the child was not within the article since he was not "born of" the stepfather. Since adopted children are in a different position from stepchildren, the appellants did not find it necessary to challenge the correctness of that decision. That decision in relation to stepchildren is correct and is consistent with the conclusion reached in this judgment in relation to adopted children.

Paragraph 1(2)(c) in Schedule 1 of the Immigration Ordinance

43. Schedule 1 of the Immigration Ordinance, Cap.115 sets out the categories of permanent residents of the HKSAR. The definition in para.1(2)(c) in Schedule 1 provides : "The relationship of parent and child is taken to exist as follows : (c) of a parent and adopted child, between a parent and a child adopted only in Hong Kong under an order made by a Court under the Adoption Ordinance".

44. Paragraph 1(2)(c) thus recognises only Hong Kong adoptions for the purposes of Schedule 1. Having regard to the conclusion reached in this judgment that adopted children are not within art. 24(2)(3), it goes beyond what is required by the Basic Law. The Court has not had the benefit of full arguments on the question of the validity of para.1(2)(c) and no view is expressed on it.

Result

45. Accordingly, the appeals are dismissed with no order as to costs. An order is made for the taxation of the appellants' costs in accordance with the Legal Aid Ordinance and Regulations.

Mr Justice Bokhary PJ :

46. In my judgment, art. 24(2)(3) of the Basic Law includes adopted children. Accordingly I would allow these appeals so as to restore the declarations and orders made at first instance in favour of these adopted children.

47. Although I have ultimately reached a result opposite to the one reached by the other members of the Court, I respectfully agree with everything they say on the first and second issues and almost everything they say on the third issue. The point of departure for me comes at the end. Unlike the other members of the Court, I think that art. 24(2)(3)'s wording permits a reading which includes adopted children.

48. My reasons for so thinking are as follow. Such a reading might not have been possible if art. 24(2)(3) spoke simply of persons of Chinese nationality born of those residents listed in categories (1) and (2). But in fact art. 24(2)(3) speaks of persons of Chinese nationality born outside Hong Kong of those residents. So the word "born" can be read as pertaining only to place of birth, and the word "of" can be read as merely connoting the parent and child relationship. The relationship between an adoptive parent and an adopted child is certainly a parent and child relationship.

49. If, as I think, that reading is permissible, then I have no doubt that it is the reading which art. 24(2)(3) ought to receive. For that is the reading which promotes family unity, which is valued at every level in our society including the constitutional level.

50. As to the time by which at least one adoptive parent must have Hong Kong permanent resident status in order for an adopted child to come within art. 24(2)(3), there is something to be said for regarding it as sufficient if at least one adoptive parent had such status at the time when the adoption became effective in law. After all, that is the point in time when the parent and child relationship comes into existence where adoption is concerned. Ultimately, however, I feel driven to an interpretation of art. 24(2)(3) which requires that at least one adoptive parent had Hong Kong permanent resident status both at the time of the eventually adopted child's birth and at the time when the adoption became effective in law. This dual requirement is, I think, dictated by the necessity for uniformity across the board, encompassing birth children and adopted children alike. As it happens, each of these adopted children meet this dual requirement.

51. Finally I should address the risk of abuse raised by counsel for the Director of Immigration. The fear, as I understand it, is of adoptions which are not really meant to make a child a member of a new family but are meant only to get a child into Hong Kong while its birth family remains elsewhere. That is not the case with any of the children in the present appeals. And I do not preclude the argument in any future case that such artificial adoptions, which subvert rather than promote family unity, are simply not the kind covered by art. 24(2)(3).

Chief Justice Li :

52. The Court, by majority, Mr Justice Bokhary PJ dissenting, dismisses the appeals with no order as to costs. An order is made for the taxation of the appellants' costs in accordance with the Legal Aid Ordinance and Regulations.

Representation: