LI SHUK FAN v. THE DIRECTOR OF IMMIGRATION

HCAL81/1999, HCAL2/2000 and HCAL70/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.81 OF 1999

------------------

___________________________

JUDGMENT INDEX

___________________________

I. Introduction

II. These Cases

III. The Constitutional and Statutory Framework

IV. The Right of Abode Cases

V. Reaction to the Litigation

VI. The Interpretation, and After

VII. The Applicants' Cases

VIII. Interpreting the Interpretation

IX. The Common Law Approach applied to the CFA judgments

X. Legitimate Expectation

XI. The Concession

XII. The "So What" Question

XIII. Periods 1 and 2 Arrivals

XIV. Other Grounds

XV. Conclusion

-------------------------

J U D G M E N T

-------------------------

I. INTRODUCTION

1. On 29 January 1999, the Court of Final Appeal delivered judgments in two cases. By its judgment in Ng Ka Ling and Others v. Director of Immigration [1999] 2 HKCFAR 4, it was decided that the statutory scheme enacted on 10 July 1997 was unconstitutional to the extent that that scheme required permanent residents of the Hong Kong Special Administrative Region ("HKSAR") who were residing on the Mainland to hold a one-way permit issued by Mainland authorities before they could enjoy their right of abode in Hong Kong. The second judgment was Chan Kam Nga and Others v. Director of Immigration [1999] 2 HKCFAR 82, by which it was declared that a statutory provision which, in relation to those of Chinese nationality born outside Hong Kong, conferred the status of permanent resident upon those born to a parent who was a permanent resident of the HKSAR but only if the parent was a permanent resident at the time of the claimant's birth, was, to the extent of that time of birth limitation, unconstitutional; in other words, the Court held that those born before either parent became a permanent resident were also permanent residents.

2. There were many who, not surprisingly, thought that they would benefit from those judgments, even though they had not themselves joined in either proceedings. Those were people who assumed that, subject to proof of their claim, they would be entitled to exercise the right of abode without having first to secure a one-way permit on the Mainland and, amongst them, there were those who believed that the fact that they were born before their parents became permanent residents was, as a result of one of the judgments, not a bar to their own claim. The authorities represented that they would abide by the judgments of the Court of Final Appeal and that they would put in place a verification scheme, not linked to the one-way permit. But, in accordance with the decision in Ng Ka Ling, the Director of Immigration insisted that claims for right of abode which had, of course, to be verified, had, in the case of Mainland residents, to be made on the Mainland, and for this purpose Mainland residents included those who were in Hong Kong subject to conditions of stay or who had overstayed, and who immediately before coming to Hong Kong, either illegally or subject to conditions, had been residing on the Mainland. So the Director of Immigration, who is the respondent to these cases, made removal orders in respect of some such claimants, and that led to another application for judicial review which features in these proceedings, and came to be known as the Lau Kong Yung case.

3. The Government of the HKSAR assessed the practical implications of the two judgments, and said that those implications on resources and services were alarming. The Government decided to seek an Interpretation by the Standing Committee of the National People's Congress ("NPCSC") of arts. 22(4) and 24(3) of the Basic Law. Article 22(4) of the Basic Law provides that for entry into the HKSAR, people from other parts of China must apply for approval and that the numbers who entered Hong Kong from the Mainland for the purpose of settlement was to be determined by Mainland authorities; but the Court of Final Appeal had decided that that did not include permanent residents, and that art. 22(4) - which was deployed as the suggested justification for the statutory requirement enacted on 10 July 1997 - did not therefore inhibit the entitlement of those who were permanent residents from enjoying or exercising their right of abode. Article 24 itself defines who shall be permanent residents. The validity of the time of birth limitation with which the court was engaged in Chan Kam Nga depended upon a construction of art. 24(2)(3), and the Court held that the article, properly construed, disregarded the time of birth.

4. The Interpretation was adopted by the Standing Committee on 26 June 1999 and announced that day. It said that the interpretation by the Court of Final Appeal of both articles was not consistent with the legislative intent; that the requirement of art. 22(4) to obtain approval for entry into the HKSAR included persons of Chinese nationality born outside Hong Kong of permanent residents who wished to enter, for whatever reason; and that art. 24(2)(3) meant that at least one parent must have become a permanent resident at the time of the claimant's birth in order for that person himself or herself to be a permanent resident.

5. To give effect to the Interpretation, the Legislative Council passed a resolution (see section 59A Immigration Ordinance) on 16 July 1999, reinstating the time of birth limitation; and, by a procedure prescribed by the Ordinance, the Director of Immigration in effect reinstated a procedure for Mainland residents who claimed right of abode which procedure, as before, was linked to the one-way permit, which procedure, to the extent of that linkage, had been struck down by the Court of Final Appeal.

6. In October 1999, the Lau Kong Yung case was heard by the Court of Final Appeal. At issue was whether the Standing Committee had the power to make the Interpretation and, if so, its effect. The Court of Final Appeal decided that the Standing Committee did have the power in law to make the Interpretation; that the effect of that Interpretation was that permanent residents by descent (under art. 24) were within art. 22(4) and subject therefore to the one-way quota system and, further, that in order to qualify as a permanent resident under art. 24(2)(3), at least one parent had, at the time of birth of the person concerned, to be a permanent resident. The Court said that the Interpretation was applicable from 1 July 1997, and that the Interpretation declared what the law had always been.

7. The events thus described received very wide publicity and were of keen interest to the community at large, and in particular to those Mainland residents, whether at any given time in Hong Kong or not, who hoped to establish claims as permanent residents. There had been but four applicants in Ng Ka Ling, and 81 in Chan Kam Nga. There were others who took the benefit of the judgments because they had joined in other cases in respect of which those two cases were by court order made representative or test cases; and still others who were the subject of undertakings by the authorities. But the proceedings with which I am concerned are launched by several thousands of those who, for a variety of reasons, were not named parties to Ng Ka Ling and Chan Kam Nga and in respect of whom such undertakings were not given. They are all Chinese nationals with at least one parent who is a permanent resident. Some were born before that parent became a permanent resident, some after. The applicants arrived in Hong Kong at different stages - some before 1 July 1997, some since. Many have been to Hong Kong several times. In most cases their last visit to Hong Kong was on a two-way permit, but many overstayed (and are still here), although there are some whose arrival was unlawful. Some applicants are now back on the Mainland. The respondent has, in respect of the representative applicants chosen for these proceedings, made removal orders in most cases, and where removal orders have not been made, has rejected claims made in Hong Kong that they are entitled to right of abode. It is these decisions that are challenged in these judicial review proceedings.

8. At issue is the effect in law of the Interpretation upon these applicants. They say that the judgments of January 1999 still inure to their benefit. They say that the effect of the Basic Law, and of the Interpretation, and of the common law, is that the judgments of January 1999 are unaffected by the Interpretation. The argument is that the judgments were final judgments in public law, represented by the Government of the HKSAR to be determinative of issues not merely between the named parties, but as between the Government of the HKSAR and all persons who fell within the same categories as did the claimants in those cases; that, on that footing, these applicants were encouraged to abstain from joining in those proceedings and that as a matter of right, as well as of legitimate expectation, they are to be treated as parties to those judgments, and that since the Basic Law and the Interpretation themselves preserved the efficacy of judgments rendered prior to an Interpretation by the Standing Committee, the Interpretation of June 1999 has no bearing on the rights which these applicants accrued under those judgments.

9. They rely, in the alternative, on an announcement by the Chief Executive on 26 June 1999. In these proceedings, it has been called "the Concession". The Chief Executive announced, on the same day that the Standing Committee issued its Interpretation, that the Executive Council had met, and that a number of decisions had been made. Amongst them was a decision to allow persons who had arrived in Hong Kong between 1 July 1997 and 29 January 1999, and had claimed the right of abode, to have their status as permanent residents verified in accordance with the Court of Final Appeal decision. The proper interpretation of that undertaking is a matter of dispute in this case, but many of the applicants say that it gave rise to a legitimate expectation in their favour that they would be so treated, for they contend that they fall within the prescribed facts. The respondent has examined the claims of the representative applicants to fall within the Concession, but in each case has rejected it. Those rejections are also challenged in these proceedings.

II. THESE CASES

1. Broadly, this judgment covers three cases, which it has been convenient to hear together :

(1) Ng Siu Tung & Others v. Director of Immigration (HCAL No.81 of 1999)

10. There are 5,308 applicants for judicial review. 19 were selected as representative applicants; representative in the sense that they represent different times of arrival in Hong Kong, and other different factual contexts, such that their cases will cover the issues of law that have to be determined in relation to all the applicants in the case. The original application for leave to apply for judicial review in this case was made in July 1999. There were then about 4,400 applicants. The leave application was adjourned. That was because one of the issues then pleaded was the validity of the Interpretation, an issue which it was known was going to the Court of Final Appeal for determination in the Lau Kong Yung case. After that determination, in December 1999, the applicants have amended the application for judicial review and the amendment presents itself in a re-issued application. I gave leave, on 18 April 2000, to the applicants to apply for judicial review.

(2) Sin Hoi Chu & Others v. Director of Immigration (HCAL No.70 of 2000)

11. There are 43 applicants in this case. Seven had been chosen as representative. I gave leave on 19 April 2000 for them to apply for judicial review.

(3) Li Shuk Fan v. Director of Immigration (HCAL No.2 of 2000)

12. There is only one applicant. Although there were some questions whether Miss Li's case should be heard with the others, there are circumstances peculiar to her condition which suggested that an early determination was appropriate and, in the circumstances, I agreed to join her case with that of the others. Leave was given on 20 April 2000.

13. It will be seen that this hearing - the substantive hearing - has taken place within a very short time span of the granting of leave. I am most grateful to all those who have worked so hard to ensure that this case was ready for hearing in the time-frame that was allotted.

2. Time bands

14. There are issues in these cases that turn on the date upon which an applicant arrived in Hong Kong. For the purpose of those issues, there have been identified five bands or periods :

P1: This period is designed to deal with those who arrived before 1 July and stayed until 1 July 1997 itself, or beyond. 1 July 1997 is significant for that is the date upon which the Basic Law took effect. It is said that, regardless of the Interpretation, those who arrived before 1 July 1997 and stayed on beyond that date were entitled to claim right of abode without applying on the Mainland : they could make their claim in Hong Kong and the Director of Immigration was obliged to examine that claim while such an applicant was still in Hong Kong. Such a person, it is said, does not come within the scheme enacted on 10 July 1997, and is a person also unaffected by art. 22(4) of the Basic Law.

P2: Arrivals between 1 July and 10 July 1997. This period is significant because 10 July is the date of enactment of the Immigration (Amendment) (No.3) Ordinance 1997 ("the No.3 Ordinance"), which prescribed the manner in which right of abode was to be established, failing the establishment of which in that prescribed manner, a person was to be regarded as not enjoying the right of abode. That piece of legislation purported to bring that scheme into operation as from 1 July 1997, but it was held in Ng Ka Ling that that retrospective provision was unlawful, and that those here between 1 July and 10 July 1997 were, by their presence, exercising their right of abode and, upon proof that they fell within one of the categories that conferred that right, were entitled to permanent identity cards and to remain in Hong Kong.

P3: Arrivals between 10 July 1997 and 29 January 1999. This is the period during which the No.3 Ordinance scheme operated until, on 29 January 1999, the Court of Final Appeal by its judgment in Ng Ka Ling held that the scheme was unlawful to the extent that it required an applicant before entry to Hong Kong as a permanent resident to have a one-way permit. It is also the date upon which the Court of Final Appeal in Chan Kam Nga held that art. 24(2)(3) of the Basic Law conferred the status of permanent resident on those whose parents were permanent residents, or one parent was a permanent resident, regardless of the time of birth of the applicant. This period, P3, also covers almost all the time during which claims had to have been made in order to qualify for the Concession.

P4: Arrivals from 30 January to 26 June 1999. 26 June 1999 was the date upon which the Standing Committee issued its Interpretation of arts. 22(4) and 24(3); and is also the date of the Concession announcement. Those who made claims during this period or after would not benefit from the Concession. So much is common ground.

P5: Arrivals after 26 June 1999.

Histories vary, of course, from applicant to applicant. When we talk in this case of Period 1 or Period 2 or 3 arrivals, and so on, it does not always mean that the applicant has arrived in Hong Kong during that period and then stayed until now. In many representative cases, the applicant has arrived during that period but then returned to the Mainland and has come back to Hong Kong after, say, the January 1999 judgments or after the Interpretation, and has then, in many cases, overstayed, the overstaying leading to a removal order.

3. The challenge in each case

(1) Ng Siu Tung & Others (HCAL 81/1999)

15. Amongst the 5,308 applicants in this case, ages vary widely - a few, I note, born as long ago as the 1930s, a few now aged only two or three years, but most born in the 1960s and 1970s. Most were born before either parent had ordinarily resided in Hong Kong for seven years. We have called that group "Group B". Those born after a parent was already a permanent resident, we have called "Group A" applicants. There is a helpful table in the Notice of Application for each group and each time band :

Period	Born After (Group A)	Born Before (Group B)	Total
P1	41	439	480
P2	2	14	16
P3	251	2184	2435
P4	149	1516	1665
P5	72	640	712
Total :	515	4793	5308

Of the 5,308, a minority percentage has returned to the Mainland. I do not have the up to date figure; but earlier this year I was told that of about 3,700 who had then been identified as having at some stage surrendered to the Immigration Department, in the region of 300 had returned to the Mainland. That figure may have changed. They nonetheless remain claimants.

16. The 19 representative applicants have been so chosen so that arrivals within each time band are represented, so that both Group A and Group B claimants are represented, and also in the expectation that the facts behind each case will enable the court to deliver a judgment which will embrace a spectrum of facts cast by the various cases. As argument progressed, it became increasingly apparent that there were two representative applicants in respect of whom the facts were so much in dispute as to render them inappropriate to be representative and by agreement, I shall not therefore deal with their cases, namely, Mr Ng Kam Chi (RA2) and Miss Lin Li Pin (RA9). Their withdrawal, as it were, as representative applicants, does not dilute the representative nature of the remaining claims.

Decisions challenged

17. When the application for judicial review was first filed in this case, no (or few) removal orders had been made in respect of these applicants. The conduct attacked at that stage was the suggested failure of the respondent to implement key parts of the Court of Final Appeal judgments of January 1999. The decisions now attacked are different; and that is because decisions have since been made in relation to most of the representative applicants, to make removal orders. In the representative cases the pattern varies. Some have been here since 1997, having arrived on a two-way permit, and simply overstayed the period permitted for their stay. Others came, during one or more of the time bands, on such permits, and left in accordance with the condition of stay then imposed, but have returned at various stages in 1999 after the January 1999 judgments, have overstayed, and have subsequently surrendered and claimed right of abode. In one of these cases, the applicant did not surrender but was arrested by a police officer and then made a right of abode claim. In another representative case, the applicant was in Hong Kong lawfully during 1997 and left, and then entered Hong Kong illegally in July 1999 and then surrendered asking for a permanent identity card, which has been refused.

18. What has happened is that in March and April this year, the respondent has, through various of his officers, interviewed members of applicants to decide in particular whether each falls within the terms of the Chief Executive's Concession. Where there was, in the eyes of the Director of Immigration, no lawful authority for the applicant to remain in Hong Kong - for example, because the applicant has breached a condition of stay, and where in addition he has decided that the applicant does not fall within the terms of the Concession, he made a removal order. Save in the case of one representative applicant, removal orders were all made in March and April 2000. In one or two of the representative cases, there has simply been a decision to refuse an application for the right of abode.

19. In the case of Tang Kam Ching (RA18), a Group A representative applicant, he arrived lawfully in June 1999, did not overstay and has returned to the Mainland. Whilst here he made applications for a permanent identity card. He is considered to be outside the terms of the Concession.

20. The ground given in each case of a removal order is that the applicant has contravened his or her condition of stay, and that in the exercise of the power conferred upon the Director of Immigration by section 19(1)(b) of the Immigration Ordinance, a removal order has been made. I note that in those cases where an applicant has appealed against the removal order to the Immigration Tribunal, the Director of Immigration has filed a summary of facts and reasons for the removal order, citing such breach of condition of stay, and also stating that the applicant's status cannot be established in accordance with section 2AA of the Ordinance (in other words, in accordance with the linked certificate of entitlement scheme) and, in Group B cases, that, further, neither parent was a permanent resident at the time of the applicant's birth. The decision-maker has stated in evidence filed in these proceedings that he has considered whether there are any powerful or strong humanitarian or other exceptional circumstances which may justify the Director of Immigration's exercise of discretion to permit the applicant to remain, but finds none, and whether the applicant falls within the Concession. Where an applicant has overstayed, and does not fall within the Concession, a removal order has been made.

21. In relation to the representative applicants, removal orders have in three of the cases not been made; that is, in relation to -

i) Miss Ng Siu Tung (RA1)

Since the list of representative applicants was drawn and included in the Notice of Application, she has been accepted by the respondent as falling within the Concession. No relief is now sought in her case.

ii) Miss Ng Kam Chi (RA2)

She entered unlawfully. No removal order has been made but as I have explained, she is not to be treated as a representative applicant any longer.

iii) Mr Tang Kim Ching (RA18)

He was not an overstayer. He came to Hong Kong lawfully in July 1999 and left on time. He has made an application for verification of his status for a permanent identity card and says that he falls within the Concession. The respondent has refused his application for verification of status and says that he does not benefit from the Concession. Those decisions are challenged.

22. In the case of Lau Kong Yung, a removal order was made as long ago as February 1999. He was the lead applicant in the case that went to the Court of Final Appeal in late 1999. The respondent was asked to revoke the removal order, but has refused to do so.

23. The decisions under attack in HCAL 81/1999 (Ng Siu Tung) are therefore these :

(i) The removal orders made.

(ii) The decision not to classify Lau Kong Yung (RA7)as coming within the Concession. Originally it was the decision not to revoke the removal order that was under attack in this case, but since Master Lau has now obtained his one-way permit and certificate of entitlement, that, for practical purposes falls away. Nonetheless I am asked to consider the legality of the Concession decision in his case because it is said to affect other applicants.

(iii) A decision said to be contained in pro forma letters to various applicants that a person applying for verification of status would be treated as affected by the Interpretation unless he was (a) in Hong Kong between 1 - 10 July 1997 and made a right of abode claim to the Director of Immigration, or (b) in Hong Kong between 11 July 1997 and 29 January 1999 and had made a right of abode claim to the Director of Immigration.

Relief sought

24. The court is asked :

(1) To quash the removal orders made against the representative applicants.

(2) To grant declarations -

(i) that each of the representative applicants who arrived in periods 1 to 3 inclusive come within the Concession;

(ii) that those representative applicants who arrived in periods 1 and 2 are permanent residents;

(iii) that the decision of the Director of Immigration to treat any applicant who received a pro forma letter in the terms to which I have referred above as if affected by the Interpretation is unlawful;

(iv) that all representative applicants are unaffected by the Interpretation and that each is entitled to have his or her status verified in accordance with the two Court of Final Appeal judgments of January 1999; and

(v) in the case of Lau Kong Yung, that the facts relating to him fell within the terms of the Concession.

Grounds

25. The grounds of the application, distilled as much as one can for the purpose of a broad summary, are these :

(1) That those born after their parents became permanent residents and who were here before 1 July 1997 are permanent residents under art. 24(2)(3) and are not affected by art. 22(4) because art. 22(4) affects only those who came to Hong Kong after the Basic Law came into effect.

(2) That those born after their parents became permanent residents and who were in Hong Kong before 10 July 1997 are, by reason of the judgments in Ng Ka Ling and Lau Kong Yung, unaffected by the Interpretation.

(3) That the respondent in making removal orders against the applicants erred in law when he applied to them the Interpretation of the Standing Committee. The contention is that the declarations made by the Court of Final Appeal in the January 1999 cases determined the rights not just of the named parties to those proceedings but also of every person who, at the date of those judgments (or at the date of the Interpretation) was a Chinese national born outside Hong Kong and who had at least one parent who had completed seven years ordinary residence in Hong Kong and who, up to the date of the Interpretation could, or would, have brought proceedings but for the fact that there were test cases (namely, Ng Ka Ling and Chan Kam Nga) before the courts and that their rights, crystallized in January 1999, could not be removed by the Interpretation, because judgments rendered prior to the Interpretation were unaffected - a result demanded by common law principles as well as by the Basic Law and by the last paragraph of the Interpretation itself.

(4) Accordingly, the applicants have been and remained entitled, it is said, to have their status verified in accordance with the January judgments, so that those born before their parents became permanent residents, as well as those born after, are permanent residents, and are entitled to have their status verified without linkage to a one-way permit issued on the Mainland. Since removal orders were made in disregard of these rights, the orders were unlawful and must be quashed.

(5) Given that there is now in operation no scheme for verification which is not linked to the issue of a one-way permit, the only reasonable course is for the respondent to verify the applications without requiring the applicants to go back to the Mainland.

(6) That in any event there arose on the part of the applicants a legitimate expectation that as regards them and others in their position, they were to take the benefits of the January 1999 judgments. Such expectation arose by reason of the nature of those judgments and of the proceedings in respect of which the judgments were delivered and, further, by reason of statements by Government officials, before and after the judgments, that the judgments would be implemented and that a scheme would be put in place to give effect to them, not limited for the benefit of the named parties; and that persons in the position of the applicants were discouraged from themselves joining the Ng Ka Ling and Chan Kam Nga litigation on the footing that it was unnecessary for them so to do. These expectations gave rise to substantive rights ignored by the respondent in making the removal orders; and that it was also Wednesbury unreasonable, against that background, to make the orders.

(7) The announcement of the Chief Executive in January 1999 gave to those who arrived before 29 January 1999 and who claimed the right of abode before that date a legitimate expectation of having their status verified in accordance with the January 1999 judgments and without having to go back to the Mainland; but that the Director of Immigration has misinterpreted the Concession, has construed it too narrowly, and has wrongfully failed to treat the applicants as fulfilling the Concession conditions.

(2) Sin Hoi Chu (HCAL 70/2000)

26. In this case, all the applicants were born before a parent had completed seven years ordinary residence. Some - a total of nine of this group - came to Hong Kong for the first time after the Interpretation. Most of the remainder came to Hong Kong on two-way permits after the Interpretation, that is, in the latter half of 1999 or even early 2000, and have since stayed; but had also visited Hong Kong on earlier occasions for a short period at a time on two-way permits, in the main after 1 July 1997, although a few came before that date and stayed through and beyond July before later returning to the Mainland. Of these applicants, seven have been chosen as lead or representative applicants.

Decisions challenged

27. Removal orders had been made in the case of each representative applicant on different dates in December 1999, save in the case of Miss Sin Siu Yin, where the removal order was made in March 2000. In the case of these representative applicants, too, the reason for the removal order was, in each case, contravention of a condition of stay. Since all these claimants are Group B applicants, the Director of Immigration no doubt took the view (as I see is expressly stated in a summary of facts in the case of Sin Siu Yin) that they were in any event outwith the class of those entitled to permanent resident status. In each case he decided that they did not qualify as beneficiaries of the Concession. The applicants ask this court to quash the removal orders as well as such determinations as have been made that the applicants are not entitled to the right of abode in Hong Kong. They also seek declarations :

(1) that each is unaffected by the Interpretation of 26 June 1999 and is entitled to have his/her permanent resident status verified in accordance with the two Court of Final Appeal judgments, and without being removed from Hong Kong until such status is verified;

(2) that each comes within the Concession and is entitled to be treated accordingly, that is to say, to remain in Hong Kong whilst his or her status is verified in accordance with the Court of Final Appeal judgment; and

(3) that each is a permanent resident by virtue of art. 24(2)(3) of the Basic Law.

Grounds

28. The grounds in the Notice of Application cover the same terrain as that traversed in the case 81/1999, and to that extent need no repetition. These applicants, however, make two additional points :

(i) the first is an emphasis, perhaps, of a point touched upon in 81/1999, that unlike the situation immediately following the January 1999 judgments, there is now under contemplation by the Director of Immigration no status verification scheme as modified by the Court of Final Appeal in June 1999, that is, a scheme on the Mainland unlinked to the quota system which is evidenced by the one-way permit, so that it would be unfair to require return to the Mainland for verification there; and

(ii) that Group B claims have never been subject to the statutory provisions which required a certificate of entitlement, so that the Group B applicants, being previously entitled to the right of abode, are entitled to prove their status in Hong Kong in whatever manner suffices to establish the facts which constitute that status.

29. There is outstanding an application to re-amend the Notice of Application in this particular case, to plead procedural impropriety. The contention is that the procedure used by the respondent to determine whether an application fulfilled the Concession conditions was, in the case of these applicants, unfair. To this application I shall return in due course.

(3) Li Shuk Fan (HCAL 2/2000)

30. The applicant was born on the Mainland in 1980, the year her father came to Hong Kong, and he has been ordinarily resident here since then. Her mother has been here since 1996 on a one-way permit. The applicant arrived in Hong Kong on 19 February 1998 on a two-way permit. The respondent says that her permission to remain expired on 10 March 1998, and that she is an overstayer. It is said that she suffers from acute schizophrenia; and that in September 1998 she was brought by her father to the Director of Immigration for verification of her right of abode. She was, however, told to leave Hong Kong within a week. Before that date arrived, she was admitted to hospital where she remained an in-patient for some months. It is said that on 4 December 1998, the father wrote to the Director of Immigration stating why the applicant should not be forced to leave Hong Kong. She was discharged from hospital on 23 February 1999. It is claimed that there were subsequent visits to the Immigration Department for verification of her right of abode. In December 1999, she was detained for the purpose of removal. Just before the removal order was to be executed, the applicant's solicitors obtained an injunction preventing that step.

Decisions challenged :

(i) The removal order dated 17 December 1999;

(ii) A decision by the Director of Immigration on or about 28 December 1999 that the applicant is not entitled to the benefit of the Concession announced by the Chief Executive; and

(iii) A decision of the Director of Immigration on or about 28 December 1999 to execute the removal order. The order has, by reason of interim relief granted in December 1999 by Ribeiro J, as he then was, not been executed.

Relief claimed :

(i) An order to quash the removal order; and to quash the decision to execute it;

(ii) A declaration that the applicant is entitled to the benefit of the Concession by the Chief Executive on 26 June 1999; and

(iii) A declaration that the applicant is a Hong Kong permanent resident.

Grounds

31. This applicant, too, claims entitlement to the benefits, both procedural and substantive, of the January judgments, and prays in aid the same argument in support of those rights as are deployed in the other two cases, adding that she was in Hong Kong on the day those judgments were pronounced.

32. She relies also on the Concession, saying that she was in Hong Kong before 29 January 1999 and that she had made a claim : the claim upon which she relies is constituted by a letter written by her father to the Immigration Department on 4 December 1998. There were other assertions in the Notice of Application, namely, that a visit to the Immigration Department by the father in October 1998 included a claim on the applicant's behalf for the right of abode, and also an assertion that by overstaying, the applicant has claimed the right of abode. Both these contentions have formally been abandoned by Ms Li, SC, on behalf of the applicant, so that I have only to consider whether this applicant is unaffected by the Interpretation and, if necessary, whether the letter of 4 December 1998 constituted a claim within the terms of the Concession.

III. THE CONSTITUTIONAL AND STATUTORY FRAMEWORK

33. The issues raised by these applications require an examination of the relationship between the Basic Law, the No.2 and No.3 Ordinances; the judgments of January 1999 and their precursors in the lower courts; the Interpretation of June 1999; and the judgment of the Court of Final Appeal in Lau Kong Yung. Whilst the right of abode cases hitherto have extensively rehearsed the statutory and constitutional framework relevant to those cases and to these, some re-statement of the key constitutional and statutory provisions, and some rehearsal of the history of the earlier litigation, is unavoidable.

(1) The Basic Law

34. In so far as is relevant, art. 24 provides as follows :

"Article 24

Residents of the Hong Kong Special Administrative Region ('Hong Kong residents') shall include permanent residents and non-permanent residents.

The permanent residents of the Hong Kong Special Administrative Region shall be:

(1) Chinese citizens born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region;

(2) Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the Hong Kong Special administrative Region;

(3) Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2);

(4) ....;

(5) ....; and

(6) ....

The above-mentioned residents shall have the right of abode in the Hong Kong Special Administrative Region and shall be qualified to obtain, in accordance with the laws of the Region, permanent identity cards which state their right of abode.

...."

Article 22(4) provides that :

"For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval. Among them, the number of persons who enter the Region for the purpose of settlement shall be determined by the competent authorities of the Central People's Government after consulting the government of the Region."

Article 2 authorizes the HKSAR :

"... to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this Law."

Article 8 ensures the maintenance of the common law system; and art. 19 returns to the theme of final adjudication, by its provision that :

"The Hong Kong Special Administrative Region shall be vested with independent judicial power, including that of final adjudication";

an independence reaffirmed in art. 85; and a finality reasserted in art. 82 :

"The power of final adjudication of the Hong Kong Special Administrative Region shall be vested in the Court of Final Appeal of the Region ..."

Chapter VIII of the Basic Law has two articles in which are dealt the power of the Standing Committee to interpret the Basic Law, and the power of the National People's Congress to amend it. It was the power of interpretation that was invoked in June 1999, and is contained in art. 158 :

"Article 158

The power of interpretation of this Law shall be vested in the Standing Committee of the National People's Congress.

The Standing Committee of the National People's Congress shall authorize the courts of the Hong Kong Special Administrative Region to interpret on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region.

The courts of the Hong Kong Special Administrative Region may also interpret other provisions of this Law in adjudicating cases. However, if the courts of the Region, in adjudicating cases, need to interpret the provisions of this Law concerning affairs which are the responsibility of the Central People's Government, or concerning the relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the cases, the courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the Standing Committee of the National People's Congress through the Court of Final Appeal of the Region. When the Standing Committee makes an interpretation of the provisions concerned, the courts of the Region, in applying those provisions, shall follow the interpretation of the Standing Committee. However, judgments previously rendered shall not be affected.

The Standing Committee of the National People's Congress shall consult its Committee for the Basic Law of the Hong Kong Special Administrative Region before giving an interpretation of this Law."

(2) The Immigration Ordinance

35. The Basic Law came into effect on 1 July 1997. Section 2 of the Immigration Ordinance defines a Hong Kong permanent resident as "a person who belongs to a class or description of persons specified in Schedule 1".

36. On 1 July 1997, the Provisional Legislative Council enacted the No.2 Ordinance, which came into effect that day and repealed the existing Schedule 1 and replaced it by a schedule intended to give effect to the Basic Law and its definition of permanent resident. Paragraphs 2(a)-(c) of the Schedule provided as follows :

"A person who is within one of the following categories is a permanent resident of the Hong Kong Special Administrative Region -

(a) A Chinese citizen born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region if his father or mother was settled or had the right of abode in Hong Kong at the time of the birth of the person or at any later time.

(b) A Chinese citizen who has ordinarily resided in Hong Kong for a continuous period of not less than 7 years before or after the establishment of the Hong Kong Special Administrative Region.

(c) A person of Chinese nationality born outside Hong Kong to a parent who is a permanent resident of the Hong Kong Special Administrative Region in category (a) and (b) if the parent had the right of abode in Hong Kong at the time of the birth of the person.

...."

The time of birth limitation to which I have earlier referred is in paragraph 2(c).

37. On 10 July 1997, the No.3 Ordinance was enacted; and by section 1(2) was deemed to have come into operation on 1 July 1997. It made a number of amendments to the principal Ordinance. In particular, it provided that the rights of a permanent resident (the right to land, not to have any condition of stay imposed, and not to be subject to a deportation or removal order) could not be enjoyed or exercised unless the person first established his status as a permanent resident; that he could only establish his status by holding a valid travel document as well as a valid certificate of entitlement affixed to that document; and that an application for a certificate of entitlement had to be made in such manner as was specified by the Director of Immigration by notice in the Gazette (see section 2A, 2AA and 2AB of the Ordinance). There were other ways by which the status as permanent resident could be established, but so far as Mainland resident applicants were concerned, they are of no relevance. An application for a certificate of entitlement could be made on behalf of an applicant by his parent or other person acceptable to the Director of Immigration. Section 2AB(5) provided that the making of an application for a certificate of entitlement did not give the applicant the right of abode in Hong Kong.

38. On 11 July 1997, the Director of Immigration issued a Notice by which he specified the manner in which an application for a certificate of entitlement was to be made. The Notice was published in the Gazette on 16 July 1997. The resulting scheme in relation to a Mainland resident claiming the status of permanent resident under paragraph 2(c) of Schedule I to the Ordinance is fully described in Ng Ka Ling (at pages 19-20) :

"(1) He has to apply to the Director for a certificate of entitlement through the Mainland Exit-Entry Administration in the district where he is residing in the Mainland. His application to the Mainland Exit-Entry Administration for a one-way permit may be regarded as an application for a certificate of entitlement.

(2) After confirming the person's identity, nationality and the validity of his parents' marriage, the Mainland Exit-Entry Administration will send his application to the Director for processing. If the Director is satisfied, he will issue a certificate of entitlement. This will be sent to the Mainland Exit-Entry Administration.

(3) He is subject to the quota for one-way permits determined and operated by the Mainland authorities. Upon the grant of the one-way permit by the Mainland Exit-Entry Administration, his certificate of entitlement will be affixed by them to that permit. The one-way permit is the valid travel document for him contemplated by the scheme introduced by the No 3 Ordinance.

(4) His status can only be established by his holding the one-way permit affixed with the certificate of entitlement. Without this, he shall be regarded as not enjoying the right of abode. This is so notwithstanding that the Director is satisfied of his status as a permanent resident by descent and has issued the certificate of entitlement (which would be sent to the Mainland Exit-Entry Administration). Under the scheme, that certificate alone is insufficient to establish his status. It can only be established by holding a one-way permit affixed with the certificate.

(5) He cannot come to Hong Kong to make his application. It must be made to the Mainland Exit-Entry Administration in the district in the Mainland where he is residing. If he is physically in Hong Kong, he is treated as residing in the Mainland during his stay in Hong Kong for the purposes of the scheme's operation. He cannot resist a removal order made under the Immigration Ordinance (Cap.115) by producing evidence to establish his status. He can only establish that status by holding a one-way permit affixed with a certificate of entitlement."

I refer in section VI of this judgment (page 57 below) to the legislation introduced on 16 July 1999.

IV. THE RIGHT OF ABODE CASES

39. The history of the right of abode cases is the fabric of the applicants' central argument, for it is an argument that speaks of test cases, of the intense public interest in, and of official reaction to, the shifting prospects offered or denied claimants for the right of abode by decisions at first instance, on appeal, and upon final appeal; and of the expectations of these applicants, which expectations they say were founded on those decisions and upon undertakings of the HKSAR Government immediately before as well as after the final appeal. This emphasis on the history, status and treatment of these cases requires a relatively detailed account of that history. The account also reveals the repeated insistence of the courts regardless of such verification scheme as was or was not valid or in place, upon the need for applications for verification of status to be made on the Mainland.

The selection of representative cases

40. By early July 1997, a number of applications which engaged art. 24 of the Basic Law were already before Keith J, a fact drawn to the attention of the Department of Justice by that judge's clerk in a letter dated 7 July, which stated that there were three cases (Nos.9, 13 and 44 of the Administrative Law List) which each raised a question as to the circumstances in which a right of abode in Hong Kong can be acquired by virtue of art. 24 :

"Article 24 has attracted much attention recently. Mr Justice Keith regards it as important for there to be an authoritative determination as to its legal effect as soon as possible."

It was proposed that the three cases be heard together, expedited, and that such additional cases as might come in would be heard with the existing cases. A further case (No.56 of 1997) came before the court on 8 July. It was an application for leave to apply for judicial review - another art. 24 case. There was a lengthy reply from the Department of Justice and for reasons which are not now relevant, those cases fell away - in three of them the respondent was considering a settlement which involved rescission of the removal orders. By the time the court came to respond - and all this was happening apace, within a frame of a few days - leave had been given in another case : No.60/1997, and the court decided to hear that case urgently. As for new cases coming in, they would all be referred to Keith J, and if leave was granted, a hearing would not take place until after No.60/1997 was heard. No.60 also imported a question touching upon children born in Hong Kong, as well as those born outside Hong Kong. Then, on 17 July, the Department of Justice in the person of the Law Officer (Civil Law) wrote to the court about the emergence of a fresh issue - this was the time of birth limitation issue.

41. On 17 July Messrs Clarke & Kong (formerly Clarke & Liu) informed the court that they were assigned by the Director of Legal Aid to seek judicial review on behalf of 24 more persons with another 30 sets of papers on their way. The Director of Legal Aid wanted to keep costs to a minimum and it was the intention of the solicitors, once instructions were taken from all concerned, to select a few representative cases to be put forward for a single judicial review hearing at which the broad range of issues could be canvassed. This would be done in consultation with the Department of Justice.

42. On 21 July, they wrote to the Department of Justice saying that 36 cases had been assigned but 15 of these were unmeritorious :

"...it should be relatively easy to choose representative cases from that number."

43. On 21 July 1997, Keith J ordered that no further steps would be taken in Nos.9, 13, 44, 56 and 60 "until such representative cases as are to be identified and selected have been heard and determined ...". On 23 July, the Director of Immigration wrote that : "We confirm that for those children where legal aid has been granted, but legal proceedings have not been instituted we would not remove them from Hong Kong pending the outcome of the test cases."

44. The solicitors, Clark & Kong, had been assigned 36 cases. They provided the list of applicants to the Secretary for Justice saying that it did not include "a large number of cases which had been identified as hopeless. The Legal Aid Department is taking steps to discharge legal aid in the hopeless cases." On the advice of counsel, they, the solicitors, had selected five cases "to proceed as test cases". Each case was put forward to test a different point (for example, retrospectivity of No.3 Ordinance; art. 22 Basic Law, and so on). There was an exchange of correspondence about the most appropriate selection. The parties agreed upon four cases which could proceed as test cases. On 4 August, Clark & Kong sought an undertaking from the Director of Immigration - apparently the Director of Immigration had said that all those not granted legal aid would be removed - an undertaking that she (the Director) would "not remove persons reporting to the Director of Immigration and claiming right of abode, whether or not they had been granted legal aid" without first giving such a person time to lodge an application for judicial review. That proposal was rejected, and it was pointed out that of the 500 applications then before the Director of Legal Aid, almost half had been refused legal aid. The Director of Immigration did however undertake not to remove the five applicants in those four cases "pending conclusion of the proceedings".

45. It was against that background that the right of abode litigation commenced before Keith J. The four cases were : Cheung Lai Wah (68/1997); Ng Ka Ling and Ng Tan Tan (70/1997); Tsui Kuen Nang (71/1997); and Yeung Ni Ni (73/1997).

(i) October 1997 : Cheung Lai Wah (First Instance)

46. Ng Ka Ling started in the Court of First Instance as Cheung Lai Wah [1997] 3 HKC 64. It was heard in September 1997 and judgment was delivered by Keith J, as he then was, in October. The hearing was of the four selected cases. It was asserted on behalf of the applicants that whilst those claiming the right of abode in Hong Kong by descent must establish the facts which gave rise to their claim, they should be entitled to entry into Hong Kong pending the establishment of the facts; and that to require them to remain out of Hong Kong was to deny them the right of abode "to which he may be found to be entitled during the period of verification," (page 80), and that that was inconsistent with art. 24 of the Basic Law which was not expressed to be subject to limitation. Keith J rejected that argument saying that it was left open to the legislature to make art. 24 workable in practice, and that the logical consequence of the argument, if correct, would enable anyone who entered Hong Kong, lawfully or not, to remain pending verification, a consequence carrying serious implications for immigration control, one which could never have been intended.

47. The requirement in the No.3 Ordinance that a claimant could only establish his status as a permanent resident if he held a valid travel document - which in reality meant a one-way permit - as well as a certificate of entitlement, was said by the applicants to be incompatible with the exercise of the right of abode envisaged by art. 24, and that it was "not permissible to use immigration legislation as a means of correcting such social problems as were thought would arise as a result of the exercise by large numbers of Mainland children of their right of abode in Hong Kong by descent." This reference to social problems is interesting because the apprehended social problems became the rationale, 20 months later, for the request to the Standing Committee for the Interpretation. Keith J pointed out that one of the objectives of the No.3 Ordinance was to ensure that the arrival of persons who had acquired the right of abode in Hong Kong by descent would be staggered. In its Brief to the Provisional Legislative Council, the Security Bureau had said :

"If they all arrived at once the impact on the social support services would be extremely difficult to bear." (see page 82F)

The judge took the view that a purposive construction of art. 22(4) "requires it to be construed as applying to those persons who enjoyed the right of abode under art. 24 but who are living in Mainland China" (page 84E), and rejected the suggestion that that article was irrelevant to those already in Hong Kong - they could, he found, only establish their right by descent in accordance with the No.3 Ordinance (page 86C).

48. Also raised by Keith J was the retrospectivity issue : did the No.3 Ordinance operate from 1 July 1997 as it purported to do? He took the view that :

(1) It did not take away a right of abode from those who up to 10 July enjoyed that right because restriction on the exercise of the right was to be found in art. 24 which came into effect on 1 July. In so far as it was argued that the retrospective operation of the No.3 Ordinance conflicted with art. 15(1) of the International Covenant on Civil & Political Rights ("ICCPR"), as applied to Hong Kong, by which no one shall be held guilty of a criminal offence on account of any act which did not constitute a criminal offence under Hong Kong law at the day of its commission, he found against the claimants on his view that that article prohibited prosecution for such an offence, rather than legislation which exposed a person to the possibility of prosecution.

(2) There was a separate issue in relation to illegitimate children, for the No.2 Ordinance imported a provision which took out of the relationship of parent and child, a man and his child born out of wedlock, where the child was not subsequently legitimized by marriage of the parents. The judge held that that provision contravened art. 24(2)(3) of the Basic Law.

Agreements and Undertakings

49. Shortly before this judgment was handed down, there was correspondence which sought to ensure that clients of Clark & Kong would not be removed from the jurisdiction until any appeal procedure had, if the question arose, been instituted. The Department of Justice agreed that :

"The status quo should be preserved until the final determination of the issues in these proceedings or appeals thereof ... . It shall be taken to be such final determination if no appeal is lodged by either of the parties during the prescribed period for lodging an appeal... . Your clients will not be removed until the final determination of the issues.... . The above ... arrangement will apply to all your other clients who had been granted legal aid to bring similar proceedings and who are now granted recognizance by the Director of Immigration ... . However, our proposed arrangement will stop to apply to any of these cases as soon as a legal aid certificate granted is discharged."

That proposal was accepted. The evidence is that up to September 1997 legal aid had been granted to some 1,086 persons to bring proceedings similar to the representative cases.

50. However, after 22 September 1997, the Director of Legal Aid stopped issuing legal aid certificates even where the merits test was satisfied. This was done to save public funds. This fact was drawn to the attention of the respondent by the Director of Legal Aid by a memorandum dated 13 October 1997, and by that memorandum the respondent was asked to extend the undertaking not to remove claimants from Hong Kong to the "children covered by our remaining meritorious cases where legal aid [has] been withheld". A list with names was attached. Updated lists of meritorious cases would from time to time be served. The evidence is that the respondent accepted this proposal. 442 claimants were, up to 11 January 1999, covered by the "meritorious list" arrangement. After this judgment was delivered, orders were made by Yeung J on a number of cases adjourning applications for judicial review pending determination of the appeal in Cheung Lai Wah.

(ii) November 1997 to January 1998 : Chan Kam Nga (First Instance)

51. In November 1997, proceedings in Chan Kam Nga were lodged by Pam Baker & Co. on behalf of 81 applicants. In due course one applicant was chosen as a representative applicant. The Department of Justice suggested that to be a wise and cost-saving step since the sole issue was a legal one.

52. The respondent agreed not to remove the proposed applicants pending the outcome of the application for judicial review, but it was an agreement subject to a requirement that the applicants report to the respondent as required by the terms of their respective recognizances. The non-removal agreement was extended to a number of additional proposed applicants, all clients of Pam Baker & Co., on the understanding that those who had not previously reported to the respondent or who had breached reporting requirements would report within a week. Further lists, of additional applicants, were forwarded from time to time. The first instance hearing took place in January 1998, and judgment given one week later, on 26 January 1998 ([1998] 1 HKC 16). Keith J declared that the time of birth limitation contravened the Basic Law.

(iii) April 1998 : Cheung Lai Wah (Court of Appeal) [1998] 1 HKC 617

53. The appeal was referred to as arising from four test cases (page 627). The issues were said to include the constitutionality of the No.2 and No.3 Ordinances, and of the retrospective provision of the No.3 Ordinance, and the validity of that part of the No.2 Ordinance affecting illegitimate children. Recognition of the wide import of the issues under discussion is evident from the nature of the judgments. The Chief Judge said that it was universally accepted that an orderly settlement of the children in Hong Kong was necessary and that there had to be a procedure for verifying applications claiming permanent resident status. Whatever procedure was to be devised had to facilitate rather than restrict the right of abode, unless such restriction were permitted by the Basic Law. He also emphasized the serious social problems that would arise if all Group B persons came at once. The right of abode was, in the circumstances, not restricted by requiring a claimant to apply for it in Mainland China and to obtain a certificate of entitlement. He held that the requirement for a valid travel document to which the certificate of entitlement was affixed went beyond a mere procedure or proof. However, art. 24(2)(3) had, so far as was possible, to be read in conjunction with art. 22(4), and art. 22(4) was to be construed as applying to all persons seeking to leave the Mainland and enter Hong Kong, including those within art. 24(2)(3). The No.3 Ordinance was not unconstitutional.

54. On the question of retrospectivity, the Chief Judge drew a distinction between the establishment of the right of abode and its exercise, and held that "if before the enactment of the No.3 Ordinance [a claimant] was able to prove his permanent resident status under art. 24(2)(3), then he would have a right to remain in Hong Kong and could not be removed." As for two of the appellants who came before 1 July 1997, they would in any event not be affected by art. 22(4). He held that the retrospective provision was unconstitutional.

55. Nazareth VP agreed (page 653) that those who entered before 1 July were not affected by art. 22(4); that art. 22(4) applied to those who were permanent residents under art. 24(2)(3) (page 654). He held that art. 22(4) sanctioned the restriction on the right of abode conferred by art. 24(2)(3). The retrospective provision of the No.3 Ordinance was constitutional since it was a provision subsidiary to art. 22(4).

56. Mortimer VP concluded (page 663G) that even permanent residents with a right of abode under art. 24 from other parts of China must apply for approval for entry into the HKSAR and that the No.3 Ordinance, in making such provision, was not unconstitutional. As for retrospectivity, he held that since the exercise of the right of abode was restricted by art. 22(4), the argument that the No.3 Ordinance retrospectively deprived claimants of a right of abode fell away (page 664I).

(iv) May 1998 : Chan Kam Nga (Court of Appeal)

57. Keith J's decision that the time of birth limitation was unconstitutional was overturned : [1998] 1 HKLRD 752. The Chief Judge remarked on the practical consequences of such a finding, saying that that can never have been intended by the Basic Law drafters, and spoke of a family tree that would grow to "a number which is difficult to imagine". That practical effect was also referred to by Nazareth VP (page 760), and both he and Mortimer VP held that, upon a true construction of the words of art. 24(2)(3) themselves, there was imported a time of birth limitation.

(v) 29 January 1999 : Ng Ka Ling (Court of Final Appeal)

58. Li CJ said ([1999] 2 HKCFAR 4, 12) :

" Throughout history, residents in Hong Kong have had family ties in the rest of China. Since the Mainland began her open door policy, ... these family ties have very much grown. By 1 July 1997 ... a number of Chinese nationals born on the Mainland have at least one parent who is a Hong Kong permanent resident with the right of abode here.

We are concerned in this appeal with their status as permanent residents of and their right of abode in Hong Kong. Questions involving the proper interpretation of the Basic Law are before us for the first time. These are questions of momentous importance for both the future of the people involved as well as the development of constitutional jurisprudence in the new order."

59. He referred to the four cases as test cases. The issues were stated in broad terms, by which I mean that they were stated by reference to the constitutionality of specified legal provisions - whether the No.3 Ordinance in introducing the scheme was constitutional; whether section 1(2) of that Ordinance was, given its purported retrospective effect, constitutional; whether the out of wedlock provision in so far as it distinguished between the case of children whose mothers who were permanent residents and those whose fathers were, was constitutional. The points related to facts common to many thousands of people rather than facts peculiar to the applicants in those cases. The relief that the court granted was in wide terms, relief directed at the constitutionality of the legislative provisions, as well as relief specific to the applicants themselves.

(vi) 29 January 1999 : Chan Kam Nga (Court of Final Appeal)

60. In Chan Kam Nga [1999] 2 HKCFAR 82, 87, Bokhary PJ referred to the 81 applicants, adding this :

" How this question is answered will affect not only these 81 appellants but many other persons now and in the future.... . The question is now before this Court. And I approach it with a keen sense of its wide implications."

61. The relief granted in that case by the Court of Final Appeal were declarations as follows :

"(1) Each appellant can become a Hong Kong permanent resident under category (3) of art.24 of the Basic Law by virtue of a parent's Hong Kong permanent resident status under category (2) of that article whether such status of the parent's was acquired before or after the appellant's birth.

(2) The words 'if the parent had the right of abode at the time of the birth of the person' in para.2(c) Sched.1 of the Immigration Ordinance ... (which schedule was introduced by the Immigration (Amendment) (No.2) Ordinance 1997 ... contravene art.24 of the Basic Law and are therefore unconstitutional and null and void."

V. REACTION TO THE LITIGATION

1. The Government

62. The stance of, and suggested representations by, the authorities from and including 1997 through, to and including 1999, both to the public at large and to individuals who had a direct interest in the effect of immigration legislation and the effect of the on-going litigation, plays a central role in the argument advanced in this application. The flavour of that behaviour and of those representations requires to be described so that the argument of the applicants can better be appreciated. This is a convenient point at which to describe it. As to what was said to the public at large, much of it comes from press reports, and it is not suggested by the respondent that those reports reflected anything other than an accurate picture.

63. In early July 1997, in response to the challenges then launched in the courts, the Chief Executive said that people were of course free to challenge the Government in the courts. The Government would obviously uphold the law. The Government was sympathetic to what was happening but the problem was one for the community as a whole : education, housing, medicine, social welfare.

64. The Director of Immigration, then Mrs Regina Ip, said that if the Government lost in the courts, they would have to amend the legislation according to the judgment : in other words, as I understand it, to give legislative effect to the judgments.

65. In the same month, the Legal Aid Department was reported to have commented that the test cases would become a precedent for similar cases. In relation to the choice of representative cases, the same source was said to have commented that if a particular case lost, then other similar cases would be given the same judgment and then there would be no need to hear them individually ('Oriental Daily' report).

66. On 31 July 1997, the Chief Executive said in Hong Kong, in relation to a challenge in the courts to the legality of the Provisional Legislative Council, that the Government would argue its case in court and abide by the court's ruling. In October in a speech overseas, the Chief Executive repeated, in a general context, the point that the Government would argue its cases in court and continue to abide by the court's ruling.

67. On 19 February 1998, there was a Security Bureau Report to the Legislative Council Security Panel. It referred to the two First Instance judgments then under appeal, and in relation to Chan Kam Nga said :

"The serious implications of this judgment, which was recognized by the judge, is that it extends the right of abode to Chinese nationals of any age born outside Hong Kong, one of whose parents acquires the right of abode at any time subsequently. Provided however the certificate of entitlement provisions are upheld, it would still be necessary for such a person to obtain a one-way permit before entering Hong Kong for the purpose of settlement."

After the decisions of the Court of Appeal in the spring of 1998, the Government issued a press release welcoming the decisions.

68. A paper submitted by the Security Bureau to the Legislative Council Panel on Security in October 1998 reported the essence of the decision of the Court of Appeal in the two cases and the fact that appeals had been lodged by both sides against such decisions as had gone against them.

69. On 29 January 1999, the Secretary for Security said that the Hong Kong authorities would discuss with the Mainland authorities ways to facilitate the early entry of eligible persons, that is, those eligible under the judgments issued that day by the Court of Final Appeal. She stressed the fact that it remained necessary for claimants to have a certificate of entitlement before coming to Hong Kong to settle as permanent residents. Persons without certificates of entitlement would be sent back to the Mainland.

70. I have a transcript of a media question and answer session by the Chief Executive on 30 January 1999. Asked about the decision of the Court of Final Appeal, he said that :

"We respect that decision. ... This is a legal process - two sides present a case, one side will win, the other side will lose. And that is the way it is going to work."

He was asked how concerned he was about the practical implications of the judgments and he said that those implications were being evaluated. On the same day, the Acting Chief Executive, in Hong Kong, said that :

"We respect the court's decision and we will act accordingly."

She added that the decision would place pressure on services in Hong Kong. She stressed that any person without a certificate of entitlement illegally entering Hong Kong would be repatriated to the Mainland.

71. On the same day, 30 January, the Secretary for Security, Mrs Ip, summarized the effect of the Court of Final Appeal's judgments including that court's conclusion that it did not need to seek an interpretation, and also said that :

"We respect the court's judgment and will employ appropriate measures to implement the court's judgment."

There was no need, she said, to wait for agreement of the Chinese side before implementing the new certificate of entitlement scheme. She expressed serious concern about the practical ramifications of the time of birth judgment :

"Although at the moment we are not certain about the marked increase in numbers of people eligible for right of abode as a result of this judgment, we will be negotiating with Mainland departments to study just how many children are in this category."

She said that there would have to be an estimate of the pressure that would be put on social services. She urged those who believed that they had the right of abode not to come to Hong Kong illegally.

72. On 1 February 1999, the Immigration Department issued a statement saying that the effect of the Court of Final Appeal judgments was that those who claimed to have a right of abode should apply for the certificate of entitlement on the Mainland. Discussions would be necessary with the Mainland authorities about appropriate arrangements. Those who entered Hong Kong illegally would be immediately repatriated.

73. I do not, however, need to cite every governmental announcement made in those days. They all said much the same thing : that they would respect the Court of Final Appeal's judgments, expressed concern about the practical ramifications, and also said, again and again, that the judgments did not entitle people to come to Hong Kong for settlement other than with a certificate of entitlement, and that those who came on two-way permits and then claimed the right of abode without holding a certificate of entitlement would not have their applications processed in Hong Kong, and would have to leave at the expiry of their stay in Hong Kong.

74. On 5 February 1999, the Chief Secretary said that a task force had been established "to implement and to comply with the Court of Final Appeal's judgment as regard the certificate of entitlement scheme". There was to be a survey to assess the likely number of people eligible. There would be talks with the Mainland authorities about the new certificate of entitlement scheme.

75. On 11 February, it was announced that the Secretary for Justice would be visiting Beijing the next day to meet officials and with legal experts.

76. On 2 March 1999, there was a meeting of the House Committee of the Legislative Council. Some members asked officials present whether it was intended to amend the Basic Law. Mrs Ip said that the issue had not been discussed. She agreed that a new set of lawful and reasonable application procedures should be put in place as soon as possible. Details were being worked out, she said, but that this would take time.

2. Individuals and their families

77. It goes without saying that the right of abode litigation and the accompanying responses and reactions of the authorities was watched with keen interest by those affected : those living on the Mainland, those who came here on two-way permits, those who came here unlawfully, those who overstayed, and all their families. As one would expect, the conduct of such persons varied one from the other and at different stages from July 1997 until after the judgments of January 1999. According to the evidence filed, many applicants made claims from time to time for one-way permits whilst still on the Mainland. Quite a few say that they were told there that they were too old to be considered for such applications. Some, whilst in Hong Kong, made applications for legal aid. Others, or their families, made enquiries in Hong Kong from the Immigration Department. Some were told that they were not eligible. Quite what information they were given depended upon the state of the law as dictated by the stage at which the question or issue was raised; in other words, if after the Court of Appeal decision in the Spring of 1998, when the time of birth limitation had been held by the Court of Appeal to be constitutional, Group B applicants had no chance of a reply that was anything other than discouraging. Many say that they were told that they were not eligible or that they should make their application on the Mainland. Some applied for legal aid but were refused. Some people wrote frequently on behalf of their children. Some wrote to the authorities through concern groups. Some approached the authorities immediately after the Court of Final Appeal January judgments only to find themselves arrested. Some did nothing. They permitted their youngsters to return to the Mainland because they did not want them to risk trouble with the authorities for overstaying. Some did nothing in the sense that they overstayed in Hong Kong, but made no approach to any authoritative body, for fear of discovery and arrest. There were also those who say that they deliberately stayed in the Mainland before coming to Hong Kong at all, awaiting the decisions of the Court of Final Appeal.

3. Moving towards the Interpretation

78. The history I have related shows that in the immediate aftermath of the two judgments, the authorities in Hong Kong represented they intended to implement a scheme to give effect to the two Court of Final Appeal judgments. They said that they intended to respect those judgments. The evidence is that discussions were held with Mainland authorities about procedures for the collection and verification of certificate of entitlement applications. The idea was that the Exit and Entry Administrative Bureau of the Public Security Ministry would act as the respondent's agent on the Mainland in the application procedure for a certificate of entitlement.

79. Quite what these representations about implementing the judgments amounted to is an issue in the case, to which I shall return.

80. But upon one matter the authorities were firm, which was that applications had still to be made on the Mainland. And so overstayers were made the subject of removal orders, which orders eventually were challenged in the Lau Kong Yung proceedings. There were 18 applicants in that case. Evidence filed in those proceedings in March 1999 was to the effect that over 800 overstayers and illegal entrants had approached the immigration authorities claiming the same rights as did the 18 applicants, and that there were many others still on the Mainland waiting to apply for certificates of entitlement in accordance with such new procedures as might emerge.

81. The Government of the HKSAR then conducted a survey to ascertain the number of persons from the Mainland who would, under the Court of Final Appeal judgments, have the right of abode in Hong Kong. On 28 April 1999, a paper was placed before the Legislative Council with the Government's estimate of the number of Mainlanders with right of abode in Hong Kong. It catered for first and second generation eligibility, by which I mean that it estimated the number of Mainland children of Hong Kong residents as well as the number of children of those Mainland children who would be eligible for right of abode under the Court of Final Appeal ruling. The total was 1,675,000. It was thought that a high proportion of those eligible would seek to establish and exercise that right.

82. On 6 May 1999, the Government issued its assessment of the practical implications of the admission into Hong Kong of that number. It issued a paper which addressed the impact on housing, education, health care, welfare services, employment, transport and the environment, and the related costs. The Government took the view that to absorb the estimated additional numbers would create an unbearable burden upon the Region.

83. On 18 May, the Government announced that it would seek an Interpretation of the NPCSC under art. 158(1) of the Basic Law. Other options, such as amending the Basic Law, had, it said, been considered, but each was said to have signal disadvantages.

84. On 20 May 1999, the Chief Executive submitted to the State Council of the PRC a Report, seeking the assistance of the Central People's Government in resolving problems encountered in the implementation of the relevant provisions of the Basic Law. "The judgments," said the Report, "of the Court of Final Appeal ... have extended the eligibility for the right of abode of persons born in the Mainland of Hong Kong permanent residents beyond that previously provided for in the Immigration Ordinance," had ruled that such persons could enter Hong Kong without the prior approval of the Mainland authorities. That interpretation was different from the HKSAR Government's understanding of the relevant provisions of the Basic Law and "the effect of the Court of Final Appeal's interpretation would be to place unbearable pressure on the HKSAR." To support the Government's understanding, reference was made to the Joint Declaration and to an Opinion of the Preparatory Committee in 1996. Public opinion was said, in the Report, to be overwhelmingly in favour of an early resolution of the issue. The judgments of the Court of Final Appeal were annexed.

85. The State Council then approached the Standing Committee to interpret the two articles. The Standing Committee consulted the Basic Law Committee.

VI. THE INTERPRETATION, AND AFTER

1. The Interpretation

86. The Interpretation of the Standing Committee was issued on 26 June 1999. There is but one official version of the Interpretation and it is in Chinese. The English version before me is a translation prepared by the Department of Justice, a translation widely used, but about which, in one important aspect, there is an issue. The translation has no legislative effect. The translation, the accuracy of which is not in dispute save, as I say, for one phrase, runs as follows :

"THE INTERPRETATION BY THE STANDING
COMMITTEE OF THE NATIONAL PEOPLE'S
CONGRESS OF ARTICLES 22(4) AND 24(2)(3) OF THE
BASIC LAW OF THE HONG KONG SPECIAL
ADMINISTRATIVE REGION OF
THE PEOPLE'S REPUBLIC OF CHINA

(Adopted by the Standing Committee of the Ninth National People's Congress at its Tenth Session on 26 June 1999)

The Standing Committee of the Ninth National People's Congress examined at its Tenth session the 'Motion Regarding the Request for an Interpretation of Articles 22(4) and 24(2)(3) of the Basic Law of the [HKSAR] of the [PRC]' submitted by the State Council. The motion of the State Council was submitted upon the report furnished by the Chief Executive of the [hksar] under the relevant provisions of Articles 43 and 48(2) of the Basic Law of the [HKSAR] of the [PRC]. The issue raised in the Motion concerns the interpretation of the relevant provisions of the Basic Law of the [HKSAR] of the [PRC] by the Court of Final Appeal of the [HKSAR] in its judgment dated 29 January 1999. Those relevant provisions concern affairs which are the responsibility of the Central People's Government and concern the relationship between the Central Authorities and the [HKSAR]. Before making its judgment, the Court of Final Appeal had not sought an interpretation of the Standing Committee of the National People's Congress in compliance with the requirement of Article 158(3) of the Basic Law of the [HKSAR] of the [PRC]. Moreover, the interpretation of the Court of Final Appeal is not consistent with the legislative intent. Therefore, having consulted the Committee for the Basic Law of the [HKSAR] under the Standing Committee of the National People's Congress, the Standing Committee of the National People's Congress has decided to make, under the provisions of Article 67(4) of the Constitution of the [PRC] and Article 158(1) of the Basic Law of the [HKSAR] of the [PRC], an interpretation of the provisions of Articles 22(4) and 24(2)(3) of the Basic Law of the [HKSAR] of the [PRC] as follows:

1. The provisions of Article 22(4) of the Basic Law of the [HKSAR] of the [PRC] regarding 'For entry into the [HKSAR], people from other parts of China must apply for approval' mean as follows: People from all provinces, autonomous regions, or municipalities directly under the Central Government, 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 apply to the relevant authorities of their residential districts for approval in accordance with the relevant national laws and administrative regulations, and must hold valid documents issued by the relevant authorities before they can enter the [HKSAR]. It is unlawful for people from all provinces, autonomous regions, or municipalities directly under the Central Government, including persons of Chinese nationality born outside Hong Kong of Hong Kong permanent residents, to enter the [HKSAR] without complying with the appropriate approval procedure prescribed by the relevant national laws and administrative regulations.

2. It is stipulated in the first three categories of Article 24(2) of the Basic Law of the [HKSAR] of the [PRC] that the 'permanent residents of the [HKSAR] shall be:

(1) Chinese citizens born in Hong Kong before or after the establishment of the [HKSAR];

(2) Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the [HKSAR];

(3) Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2);'.

The provisions of category (3) regarding the 'persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2)' mean both parents of such persons, whether born before or after the establishment of the [HKSAR], or either of such parents must have fulfilled the condition prescribed by category (1) or (2) of Article 24(2) of the Basic Law of the [HKSAR] of the [PRC] at the time of their birth. The legislative intent as stated by this Interpretation, together with the legislative intent of all other categories of Article 24(2) of the Basic Law of the [HKSAR] of the [PRC], have been reflected in the 'Opinions on the Implementation of Article 24(2) of the Basic Law of the [HKSAR] of the [PRC]' adopted at the Fourth Plenary Meeting of the Preparatory Committee for the [HKSAR] of the National People's Congress on 10 August 1996.

As from the promulgation of this Interpretation, the courts of the [HKSAR], when referring to the relevant provisions of the Basic Law of the [HKSAR] of the [PRC], shall adhere to this Interpretation. This Interpretation does not affect the right of abode in the [HKSAR] which has been acquired under the judgment of the Court of Final Appeal on the relevant cases dated 29 January 1999 by the parties concerned in the relevant legal proceedings. Other than that, the question whether any other person fulfils the conditions prescribed by Article 24(2)(3) of the Basic Law of the [HKSAR] of the [PRC] shall be determined by reference to this Interpretation."

Particular points to be noted at this juncture are these :

(1) The Interpretation was expressly issued under art. 158(1) of the Basic Law : it was, in other words, a free-standing interpretation, and not an interpretation following a judicial reference under art. 158(3).

(2) The effect of the Interpretation was that -

(i) art. 22(4) qualified art. 24(3); in other words, even permanent residents had to apply to the Mainland authorities before they could enter Hong Kong to exercise their right of abode; and

(ii) art. 24(2)(3) was to be read as containing a time of birth limitation.

(3) The Interpretation made express reference to those who are not to be affected by the Interpretation.

The contentious translation is of the characters "當事人" ("dong sze yan") which are translated by the Department of Justice as "parties concerned" (in the relevant proceedings). To this issue I must return.

2. The Concession

87. It has been convenient to call the Chief Executive's statement of 26 June 1999, made in both Cantonese and English at a media session, "the Concession". In a sense, that is to beg one of the questions raised in this case, which is whether the steps then taken by the Government were steps which they were obliged in law in any event to take or whether, on the other hand, they were acting as a matter of grace or, as it has been termed, concession.

88. In its English version and in so far as is relevant to the issues in this case, this is what it said :

" After receiving the Interpretation of the Standing Committee of the National People's Congress, the Executive Council met earlier today. We have made the following decisions :

First, we will introduce a resolution to the legislature to amend Schedule 1 to the Immigration Ordinance :

a) to make it clear that children born outside Hong Kong will only be eligible for the right of abode if at least one of their parents has already acquired permanent resident status at the time of their birth; and

b) to provide for children born out of wedlock to apply for right of abode.

Secondly, to comply with the principle that judgments previously rendered by the Court of Final Appeal should not be affected by an Interpretation of the National People's Congress Standing Committee, we will allow persons who arrived in Hong Kong between July 1, 1997 and January 29, 1999 and had claimed the right of abode, to have their status as permanent residents verified in accordance with the Court of Final Appeal decision. It is estimated that there are about 3,700 in this category.

Thirdly, for those who arrived after January 29, 1999, or I could put it another way, thirdly, for any other persons, they will only be able to apply for the right of abode if they satisfy the terms of the Interpretation given by the Standing Committee of the National People's Congress."

3. The legislation in July 1999

89. In July 1999 legislative amendments were made, and a new Notice gazetted specifying the manner in which applications for certificate of entitlement schemes were to be made. The relevant changes were summarized by Li CJ in Lau Kong Yung [1999] 2 HKC FAR 300, 327-8, as follows :

"Following the Interpretation, on 16 July 1999, the Legislative Council passed a resolution under s.59A of the Ordinance to amend Sched.1. The relevant amendment for this appeal is that para.2(c) was repealed and substituted by:

(c) A person of Chinese nationality born outside Hong Kong before or after the establishment of the Hong Kong Special Administrative Region to a parent who, at the time of birth of that person, was a Chinese citizen falling within category (a) or (b).

.....

On 16 July 1999, the Director gazetted a new notice to replace the Notice (the new Notice). The new Notice is similar in substance to the former Notice. Paragraph A(i) is in the same terms. A Mainland resident shall apply for a certificate of entitlement through the Exit-Entry Administration of the Public Security Bureau in the district where he is residing. Paragraph B is similar in effect although the wording is different. It reads:

Where a person is at the time of application residing in the Mainland of China, an application for settlement in Hong Kong made to the offices or departments of the Exit-Entry Administration of the Public Security Bureau under the laws in force in the Mainland of China, whether before or after the gazetting of this notice, may be regarded as an application for a Certificate of Entitlement or certified duplicate.

The former Notice is similar : '... an application for an exit permit to Hong Kong and Macau made to the Exit-Entry Administration of the Public Security Bureau under the laws in force in the Mainland of China for settlement in Hong Kong, ... may be regarded as an application for a Certificate of Entitlement ...'"

4. Lau Kong Yung

90. The efficacy of the Interpretation was the key issue before the Court of Final Appeal in Lau Kong Yung - whether the Standing Committee had the power to make the Interpretation and, if so, what was its effect. The Court of Final Appeal in Lau Kong Yung [1999] 2 HKCFAR 300 held that the Standing Committee had the power to make the Interpretation under art. 158(1); that it was a valid and binding interpretation of arts. 22(4) and 24(2)(3) which the courts of the HKSAR were under a duty to follow; that under art. 22(4) all persons from the Mainland, including those within art. 24(2)(3), who wished to enter for whatever reason had to apply on the Mainland to relevant authorities of their district for approval, and were required to hold valid documents issued by those authorities before they could enter the SAR; that to qualify as a permanent resident under art. 24(2)(3), it was necessary for at least one parent to be a permanent resident at the time of birth of the person concerned; and that the Interpretation had effect from 1 July 1997. The resulting position was described by Li CJ, at page 327B :

"As a result of the Interpretation the original scheme is and has since 1 July 1997 been constitutional.

The time of birth limitation in the No.2 Ordinance is and has since 1 July 1997 been constitutional.

The provisions in the No.3 Ordinance and the notice declared by the court to be unconstitutional ... are and have since 1 July 1997 been constitutional."

I shall deal later with the findings of the Court as to the constitutionality of the retrospective provision of the No.3 Ordinance.

91. The Court also dealt with the position of the applicants in that case as it had been immediately after the January judgments, saying that whatever scheme for a certificate of entitlement was or was not in place, they had, as overstayers, no legal claim to remain in Hong Kong. To this aspect, I shall also return.

VII. THE APPLICANT'S CASE

92. Mr Chang, on behalf of the applicants, says that in the context of this history, the question to be asked, the central question, is who it is that is unaffected by the Interpretation. The answer, he says, is a question of mixed law and fact, to be examined against the complex and very public history to which I have referred; a history which has at its heart a practice in which it is taken as read that the authorities abide by judgments of final jurisdiction; a case assumed by the public, by those with an interest in the outcome, and by the courts, to affect the many persons outside the number of those who were named parties to the proceedings; where people were, he says, discouraged from joining in proceedings because it was simply not necessary to do so, and it was not necessary to do so because every one took it for granted that the January judgments of the Court of Final Appeal, whichever way they fell, would be applied to all and not just to the named parties. They were test cases; cases that were litigated in public law; deciding questions of status; and were in their essence in the nature of judgments in rem; cases which, by reason of tradition and express representation, it was assumed would flower into judgments of the courts that would be applied and implemented either for the benefit of, or against, a wide tranche of Mainland residents with family in Hong Kong. He states that the courts themselves encouraged the selective approach to the choice of cases; that it would be unthinkable so to approach the power of interpretation and the preservation of judgments previously rendered so that the only way one could be protected from the effect of an interpretation subsequent to a judgment would be by joining in, willy-nilly, to existing proceedings, regardless of the numbers already joined, regardless of the nature of the proceedings, and regardless of the open attitude of the authorities in saying that they will abide by whatever judgment emerges. These applicants and many like them, it is said, enjoyed an identity of interest with and in those cases which took their inexorable route to the Court of Final Appeal through 1999 and into early January 1999, and that they should for all these reasons be treated as parties to the judgments delivered at the end of that month, on 29 January 1999. All of this, it is said, is but a proper application of common law principles, preserved by the Basic Law, a reflection of those central aspects of the Basic Law that underscore Hong Kong's high degree of autonomy, and the power of final adjudication reposing in the courts; and none of it sits uncomfortably either with the Interpretation itself which, it is said, by its terms, properly read, contemplates that those with a direct and sufficient interest in the January 1999 judgments shall not be affected by the Interpretation; or with the sentiment of art. 158(3) which envisages that judgments previously rendered shall not be affected by a Standing Committee interpretation subsequently issued.

93. Who is it then, on this analysis, that should benefit from those judgments, apart from the named parties? The answer, so runs the contention in the Notice of Application, is everyone who at the date of the judgments, or alternatively at the date of the Interpretation, was a Chinese national born outside Hong Kong and had then at least one parent who had completed seven years ordinary residence in Hong Kong and who could or would, but for the fact that there were test cases, have brought proceedings for a declaration in relation to his or her status. In other words, those who would not benefit from the Interpretation, would be those not yet born as well as those whose parents had not by the date of the Interpretation yet acquired the status of permanent resident. As an alternative to this proposition, it is argued that the class of beneficiaries of the Interpretation might be limited to those who had before the January 1999 judgments in some way asserted their right of abode, that assertion manifesting itself either by presence in Hong Kong or by a claim to the right of abode other than by mere presence, including any form of oral claim made to the authorities.

94. Distilled into its separate compartments, the applicants' case is that :

(1) Despite the retrospective effect of the Interpretation, that they are entitled to the benefit of the judgments of January 1999; this because -

(i) The terms of the Interpretation itself are consistent with an intention to save the position of the applicants; the saving provision in the Interpretation is intended to inure to the benefit not only of the named parties but also for "persons concerned" in the litigation, meaning those whose personal interest was and is involved. This is consistent with the provision in art. 158(3) which requires that "judgments previously rendered shall not be affected."

(ii) The applicants are entitled as a matter of law to be treated as parties to the litigation which resulted in the January 1999 judgments. The Ng Ka Ling and Chan Kam Nga cases were test cases in public law intended to determine the status of those in the position of the applicants as well as that of the named parties, and that those judgments have the effect of judgments in rem.

(iii) That, alternatively, the applicants entertain a legitimate expectation that the judgments in Ng Ka Ling and Chan Kam Nga would be implemented for their benefit, by reason of which expectation a substantive right to that benefit accrues. That expectation is said to be the fruit of long established practice and, in this particular case, of representations by the authorities of the HKSAR that the judgments would be implemented - representations to the world at large, and some representations to specific applicants.

(2) The consequence of the right which is said thus to inure to the benefit of the applicants is that -

(i) The applicants who were born before their parents became permanent residents are entitled, upon proof of that parentage and the status of the parent(s), to the right of abode (as indeed are all applicants born after a parent acquired the status of a permanent resident);

(ii) The applicants are entitled to have their claims verified and established in a manner which does not depend upon acquisition of a one-way permit; and

(iii) The Director of Immigration is not (and was not) entitled to order the removal of the applicants, despite breaches of condition of stay, since the applicants are, in the absence of any prospect of a scheme unlinked to a quota, entitled to prove their claim whilst in Hong Kong in such manner as may establish the requisite facts.

(3) In the alternative, the representative applicants are entitled to the benefit of the Concession, which benefit has wrongfully been denied them.

(4) In any event, those of the applicants who arrived in Hong Kong before 1 July 1997 and stayed beyond that date are unaffected by the Interpretation in so far as art. 22(4), as interpreted, required claims to be made on the Mainland, since art. 22(4) applies only to those entering the HKSAR after the Basic Law came into effect.

(5) That those who arrived between 1 July 1997 and 10 July 1997 are unaffected by the Interpretation because there are judgments binding on this court stating that the retrospective provision of the No.3 Ordinance remains unconstitutional.

VIII. INTERPRETING THE INTERPRETATION

95. The English translation of part of the Interpretation states that :

"This Interpretation does not affect the right of abode which has been acquired under the judgment of the Court of Final Appeal on the relevant cases dated 29 January 1999 by the parties concerned in the relevant legal proceedings."

96. There is but one official version of the Interpretation, and it is the version in Chinese. The translation is, as I have said, a translation produced by the Department of Justice.

97. The point is made that this passage - which I shall call the saving provision of the Interpretation - makes clear, or at least suggests, that the Interpretation was not intended to impact upon those whose personal interests were affected by the Court of Final Appeal judgments; a category, in other words, considerably wider than the named parties. My attention is drawn to the fact that in Lau Kong Yung, the Court of Final Appeal did not deal, and took care to say that it was not dealing, with the effect of this last paragraph of the Interpretation (see Li CJ at page 321D-E). The Chinese characters which have been translated as "parties" are the three characters "當事人" ("dong sze yan"). These characters, it is suggested by Ms Ng, on behalf of the applicants, are used in different ways depending on context, but they more properly mean "persons concerned", rather than "parties" in the sense of named parties to proceedings. She contends that where "parties" in the narrow sense is intended, the characters likely to be used are "一方當事人" ("一方"; 'yat fong'- literally meaning one side). She takes me to Ordinances where the characters "當事人" are used to mean client, and to mean principal; and to section 59 of the Interpretation and General Clauses Ordinance, Cap.1, where "一方當事人" is used to mean party.

98. I am of course at a disadvantage in the sense that I am not versed in Chinese characters (save to an extremely limited degree). But that disadvantage has not precluded me from coming to a conclusion with which I am comfortable; and no one has suggested that the matter can fairly be determined only by a judge conversant with Chinese characters. I am, for a number of reasons, satisfied that the broad meaning or sense for which the applicants contend is not supportable :

(1) It can never have been intended. The justification put forward to the State Council and to the Standing Committee for the request for the Interpretation was the suggestion that the Court of Final Appeal judgments had not reflected legislative intent, and that the practical result was inimical to a manageable immigration regime. It was said (see the speech of Mr Qiao to the Standing Committee on 22 June 1999) that the true legislative intent of art. 22(4) was to affirm a long standing quota system, and that the true legislative intent of art. 24(2)(3) served to prevent a large influx of Mainland residents. That the Interpretation was drafted with great care can be assumed. The idea that those who drafted it intended it to allow through the net a wholly ill-defined mass of persons who were not named parties to the litigation which culminated in the January judgments defies, in my judgment, the history of the matter.

(2) The text of the Interpretation itself, in other words the very context in which the saving provision appears, suggests a phrase designed to cater for actual parties to litigation. The phrase "當事人" does not appear in some vacuum. It is in terms a reference to those who have acquired rights under a specific and identified judgment - in other words, the clear contextual sense is directed at obvious and identifiable beneficiaries of a judgment, rather than categories whose definition and limits were to be determined by some broad brush, expansive approach, whose numbers were almost anyone's guess.

(3) The characters "當事人" are found in the Basic Law itself, in art. 87. Article 87 is translated thus :

"In criminal or civil proceedings in the Hong Kong Special Administrative Region, the principles previously applied in Hong Kong and the rights previously enjoyed by parties to proceedings shall be maintained."

The characters "一方" do not appear, and there is no argument about the accuracy of the translation of art. 87. Of course that point is not conclusive, but it shows that the use of the characters "當事人" in the Interpretation, itself an instrument which engages itself with the Basic Law - the use of those characters to denote parties to proceedings is not inconsistent with their use in the same sense in the Basic Law itself.

(4) I am not assisted by the use of "當事人" or by "一方當事人" in the ordinances of Hong Kong. If anything, the use of "一方當事人" in section 59 of Cap.1 supports the impression that where those two characters (一方) are used, they are used to refer to but one side in a legal dispute, or one side to a contract.

(5) In the course of this hearing there arose questions about the correct translation of a number of passages in the Concession announcement and in a press release of the same day, and it was agreed that the court interpreter be requested to provide his interpretation. He kindly did so, and at my request, provided his interpretation of the saving provision in the Interpretation. His opinion is that, in context, the relevant phrase means "parties concerned in the relevant legal proceedings".

"Judgments previous rendered"

99. Article 158(3) which confers on the courts of the HKSAR the power to interpret those provisions of the Basic Law which are outwith the limits of the autonomy of the HKSAR and prescribes the circumstances in which the Court of Final Appeal shall seek an interpretation of relevant provisions from the Standing Committee, ends with the qualification :

"However, judgments previously rendered shall not be affected."

100. The Interpretation with which this judgment is concerned was not an interpretation upon a judicial reference under art. 158(3). It was an Interpretation rendered under the free standing power affirmed by art. 158(1), and the question which might arise is whether the phrase "judgments previously rendered shall not be affected" is restricted to interpretations made pursuant to judicial referrals. I am not asked to determine that issue in this case, and I do not think it necessary to do so, though it seems to me from the judgment of Mason NPJ in Lau Kong Yung, at page 346, that :

(1) he took the view that it was a phrase used deliberately in connection with art. 158(3) alone, but that

(2) the absence of the same phrase or a similar phrase at the end of art. 158(1) did not mean that the same principle was not to be respected after a free standing interpretation :

"As to the effect of a free standing interpretation by the Standing Committee, that is, an interpretation given otherwise than on a reference, judgments previously given are protected by the vesting of judicial power in the courts of the region and the vesting of the power of final adjudication in the Court of Final Appeal. Under the common law, a final judgment would not be reopened as between the parties to the litigation in which the judgment was delivered by reason of the subsequent adoption of a new interpretation of the relevant legal instrument."

In other words, it is evident from the terms of the Basic Law, the powers it confers on the courts of the Region, the preservation of the common law, that as between parties an Interpretation will provide no basis for the reopening of litigation. In my judgment, what is intended for art. 158(1) is intended also for art. 158(3), and there is no warrant for supposing in either case that the intention is to create an approach broader or narrower than the common law approach.

IX. THE COMMON LAW APPROACH APPLIED TO THE CFA JUDGMENTS

101. I am invited to say that, in the exceptional circumstances of this case, and of the cases which fell for final judicial determination in January 1999, the applicants are, in accordance with common law principles, to be treated as parties to the litigation which culminated in the two Court of Final Appeal judgments. That conclusion is said to be warranted by a singular combination of factors : the Ng Ka Ling and Chan Kam Nga cases were expressly acknowledged to be test cases on public law issues described as issues of great public importance, the answers to which were expressly acknowledged to have "wide implications", and to affect not only the named applicants whose numbers were relatively few "but many other persons now and in the future" (per Bokhary PJ in Chan Kam Nga, page 87); in respect of which issues judgments were delivered which were declaratory of the constitutional invalidity of legislative provisions affecting status, so that in essence the judgments were in the nature of judgments in rem; and that whilst it is recognized that the Interpretation had retrospective effect, retrospectivity, even for non-parties, is never absolute in its impact, but might exclude those from its grasp who had altered their position by reason of judgments rendered prior to the creation and operation of the instrument which had retrospective effect.

1. Test cases

102. A test case, properly so called, is "an action on the result of which liability in other actions depends" (Jowitt's Dictionary of English Law, 2nd Edition, page 1761, citing Healey v. A. Waddington & Sons [1954] 1 WLR 688). In practice they arise, as is demonstrated by the cases of Amos v. Chadwick (1878) 9 Ch D 459 and Perry v. Corydon Borough Council [1938] 3 All ER 670, where issues in a number of actions are identical and "where one case inevitably decides all the other cases," and where it is agreed by the parties to all the actions that they will be bound by the result in the one, or where the other actions are accordingly stayed to see what transpires with that one.

103. I have referred at some length (under "The Right of Abode Cases") to the history of proceedings before Cheung Lai Wah was heard at first instance in September 1998. The correspondence, and the court orders made, show that the four cases, involving five applicants, proceeded as test or representative actions in relation to other actions which had been assigned to Messrs Clarke & Kong; that there were specific actions stayed by Keith J pending determination of the Cheung Lai Wah proceedings; and particular undertakings given in relation to named parties in whose favour legal aid had been granted. So, too, we have seen that a limited number of claimants were the beneficiaries of undertakings by the respondent not to remove them from the jurisdiction even though legal aid was not granted - but, again, these were identified persons in respect of whom the Director of Legal Aid had made a favourable decision on the merits and whose identity was supplied to the Director of Immigration under the terms of a specific agreement hedged by certain stated conditions. I have noted, too, the refusal in August 1997 of a request that there be some blanket undertaking not to remove persons who reported to the Director of Immigration, claiming right of abode, even though not granted legal aid.

104. None of these facts supports the contention that Ng Ka Ling (or its predecessor Cheung Lai Wah) was a test case for all persons, named or unnamed, identified or not, who would subsequently prove themselves to fall within the same factual parameters as the named parties in those cases. They were test cases, properly so called, only in the sense that they were deliberately identified as appropriate to test issues which arose in relation to other clients of Clarke & Kong who had been identified. There were others identified by the legal aid authorities who were to benefit from such judgments as emerged, but that was a question of specific agreement.

105. In Chan Kam Nga, one applicant was chosen as a representative applicant - representative, however, of the named applicants in that case; not representative somehow of all prospective or potential right of abode applicants.

106. It cannot be gainsaid that the courts engaged in these right of abode cases from September 1997 to January 1999 made pronouncements in the course of the judgments suggesting that the cases were of great moment, affecting persons beyond those named as parties. In his judgment in Cheung Lai Wah, Keith J, as he then was, was obviously aware of the possible impact of the judgment on many others. He spoke in general terms of the children in Mainland China who wished to come to Hong Kong; of the system in general which had previously been in place for the entry of children and others from the Mainland - the quota system. He said in terms that the cases were test cases; he spoke in general of the impact upon immigration control if verification of status were to take place whilst a claimant remained in Hong Kong. He dismissed the application for judicial review adding that since this had been in the nature of a test case, he did not think that it would be right to make an adverse order as to costs. In Chan Kam Nga, Keith J said that the issue in that case affected very many people. In Ng Ka Ling, the Chief Justice stated that the issues raised questions of momentous importance; and in Chan Kam Nga, Bokhary PJ said that the answer to the questions raised in that case "will affect not only these 81 appellants but many other persons now and in the future ... and I approach it with a keen sense of its wide implications."

107. Comments of that nature made in cases, sometimes referred to as landmark cases, are of course accurate, and are not loosely made. They are accurate because of the precedent which the decision will create, and it is the difference between res judicata estoppel on the one hand, and, on the other, the doctrine of judicial precedent which, in my judgment, provides the entire answer to this aspect of the applicants' case.

108. Estoppel by res judicata is a rule of public policy, and the rule is this :

"Where a final judicial decision has been pronounced on the merits by a ... judicial tribunal with jurisdiction over the parties and the subject matter, any party to such litigation, as against any other party (and in a case of a decision in rem, any person whatsoever, as against any other person) is estopped in any subsequent litigation from disputing such decision on the merits whether it be used as the foundation of an action or as a bar to any claim indictment affirmative defence or allegation, provided the party entitled raises the point at the proper time."

(see "Res Judicata" Spencer Bower Turner and Handley, 3rd Ed., pages 9 and 10)

That rule in these right of abode cases operates only in relation to the named parties, and such other persons bound by express agreement or court order.

109. Expressions used by judges which underscore the wide effect of a judgment, wider, that is, than upon the named parties, are expressions founded not on some notion that there are other parties to the case, or other persons who are to be treated as parties, but which recognize, especially if it is a court of senior rank, that the issue of law resolved or affirmed by that decision will in other comparable cases be treated as the applicable law; and will continue to be so treated unless and until the law is changed either by legislation or by later decisions. But the effect of the Interpretation as explained by the Court of Final Appeal in Lau Kong Yung was not merely to state the law prospectively, but was to declare what the law had always been, an effect akin to the common law declaratory theory of judicial decisions by which it is said that judges' declare the law not only as it is at a given time but as it has been, their declarations operating retrospectively. It is this declaratory theory of law to which the Chief Justice referred in Lau Kong Yung, at page 326 :

"The Interpretation, being an interpretation of the relevant provisions, dates from 1 July 1997 when the Basic Law came into effect. It declared what the law has always been. Compared the Common Law declaratory theory of judicial decisions, see Kleinwort Benson Ltd v. Lincoln City Council [1998] 3 WLR 1095 at pages 1117 to 1119 and 1148."

110. It is suggested by Mr Chang that the retrospective effect of the declaratory theory allows for exceptions or defences such as where a person or body has, in reliance upon a judgment, changed his position, or where rights become vested. I do not think that the passages in Kleinwort Benson upon which he relies support such a general proposition. Defences of that kind to which the judgments in Kleinwort Benson referred were defences in the specific context of the law of restitution (see Lord Goff at page 382G; Lord Hoffmann at page 401D; and Lord Hope at page 417H), and I note that Lord Goff says in terms, at page 382H, that "the proposed 'settled understanding of the law' defence is not, overtly, such a defence".

111. Then it is contended that there are cases where non-parties to an action have been treated as parties, bound by earlier judgments, and in support of this proposition, the judgment of the Privy Council in Yat Tung Investment Co. Ltd v. Dao Heng Bank Ltd and Another [1973-1976] HKC 194 is cited. There, the Privy Council referred to the doctrine of res judicata in a sense wider than that normally employed. That case does not help these applicants. In that case, an action was brought against the bank and against the 2nd respondent claiming that a property sale to the 2nd respondent was void as fraudulent, in that the bank and the 2nd respondent were said to have been acting in concert with a design to extinguish the plaintiff's interest in the property. The plaintiff had brought an earlier action claiming that the sale of the property to it was a sham, and the bank had counterclaimed for loss suffered in the resale of property to the 2nd respondent. The bank had succeeded. The Statement of Claim in the second action was struck out. It had been open to the plaintiff in the first proceedings to raise the self same matter as the plaintiff now sought to raise, and it was that aspect that gave rise to the reference to "a wider sense in which the doctrine [of res judicata] may be appealed to." (per Lord Kilbrandon at page 200). It was the transaction impugned, or which ought to have been impugned, that was identical in both cases, and the fact that the 2nd respondent was not a party to the first action was wholly irrelevant to any issue that had to be determined in that case. It is not a judgment that helps in any exercise of deciding who should, for the purpose of the res judicata rule, be treated as a party to a case in which judgment has been delivered.

2. Judgments in rem

112. The further contention is that the judgments in Ng Ka Ling and Chan Kam Nga were public law judgments intended to operate in rem. If I understand the argument correctly, it is that the judgments determined the status of classes of Mainland residents, and that those determinations are in the nature of judgments in rem. I think that this is but a variation of the test case argument, and highlights the confusion in the applicants' case between a judgment inter partes, and the precedent which that judgment creates. Ng Ka Ling was a case in which the status of permanent resident was declared only in relation to particular named applicants; and otherwise declarations were made which established that certain steps prescribed by Ordinance for claiming permanent resident status were void. Chan Kam Nga resulted in a declaration in favour of the particular appellants, which declaration inured to the benefit of those appellants. Whether that declaration inured to their benefit as against the Director of Immigration or as against the whole world is not necessary to debate. The point, however, is that no declaration as to status was made in anyone else's favour. The determination in Chan Kam Nga that the time of birth limitation in the No.2 Ordinance was unconstitutional can hardly be called a judgment in rem.

113. The cases upon which Mr Chang relied for the "in rem" part of his case do not assist the applicants. They were Wakefield Corporation v. Cooke [1904] AC 31 and Armstrong v. Whitfield [1974] 1 QB 16. The question in Wakefield was whether Sludge Lane was a highway repairable by the inhabitants of the city at large, or a private street, the costs of works to which should be apportioned amongst owners of adjoining premises. The question had already been decided in 1898. The matter was res judicata and the earlier decision, a decision in rem, the "res" being the street; and it is noteworthy that the question raised the first time was as between the corporation "and the same owners as were concerned" on the later occasion, with very few exceptions. Armstrong concerned the status of a lane. The defendant applied for a declaration that there was no public right of way over the path. Quarter Sessions refused the declaration. When, subsequently, the defendant was prosecuted for obstructing the lane under the Highways Act 1959, it was held that he was estopped from calling evidence on the question whether there was a right of way over the lane. It was held by the Divisional Court, on a case stated, that the decision of Quarter Sessions was a decision in rem binding on the justices. The determinations in both these cases are far removed from the character of decisions in Ng Ka Ling and Chan Kam Nga and from the exercise in which the courts were then engaged. The two English cases were concerned with local authority issues where decisions as to the designation of a single identified res were, by reason of the statutory provisions in force, intended to bind all the world, and that is illustrated particularly in the Armstrong case by the terms of section 31(8) of the National Parks and Access to Countryside Act 1949, which provided that a declaration made by Quarter Sessions under the relevant section "shall be conclusive evidence of the matters stated in the declaration".

3. Conclusion

114. In the result, I am satisfied that there is nothing in art. 158, or in the terms of the Interpretation itself which enables these applicants to escape the retrospective impact of the Interpretation. Nor is there any principle of common law applicable to the facts of their cases by which they are to be treated as parties to the judgments of the Court of Final Appeal of January 1999. Whether they benefit as Period 1 or Period 2 arrivals, or whether representations gave to them a legitimate expectation from which they derive some substantial benefit which takes them outside the impact of the Interpretation, are issues to which I shall shortly turn. But those particular questions aside, those who are unaffected by the Interpretation are the named parties to the litigation, namely, to the Ng Ka Ling and Chan Kam Nga litigation, those named as parties to the cases in respect of which Ng Ka Ling and Chan Kam Nga were directed to be representative cases, and such others as the respondent directly undertook to treat as parties to that litigation.

X. LEGITIMATE EXPECTATION

115. The real issue in this case is an issue about expectation. There can be no escape from the fact that the Interpretation was lawful and that, as a matter of law, its statement of the meaning of arts. 22(4) and 24(3) of the Basic Law represents the law as it has been since 1 July 1997. Those who were parties to the Ng Ka Ling and Chan Kam Nga judgments benefit from the effect of those judgments because they were final judgment inter partes and, as Mason NPJ said in Lau Kong Yung, judgments previously given are, in the face of a free standing interpretation, nonetheless protected and will not be reopened as between the parties to the litigation by reason of the subsequent adoption of a new interpretation of the relevant legal instrument. If others are to be treated as parties, then that would not be because of some extended concept of res judicata or judgments in rem, or because the cases were important public law cases. As a matter of law, non-parties can only take the benefit of these judgments if they can point to an agreement that they would be treated as parties, or if they can rely upon a legitimate expectation that they would be so treated.

116. There was never a hint throughout the Cheung Lai Wah (Ng Ka Ling) and Chan Kam Nga litigation that were the Government to lose its arguments in the courts, it might resort to legislative amendment (in this case an amendment to the Basic Law) to give effect to its understanding or interpretation of the two articles under dispute, or that it might, in such an event, seek an interpretation from the Standing Committee. The question of referral to the Standing Committee was raised before the Court of Final Appeal in Ng Ka Ling but, as I read that judgment, whilst those acting for the Government submitted that the condition for a judicial reference to the Standing Committee under art. 158(3) was satisfied, the respondent did not actively seek a reference to the Standing Committee under that article. The applicants say that they, like the public at large, or as part of the public at large, were led to believe that the Government would give effect to whatever decision of the Court of Final Appeal emerged, whether for or against the parties in those cases, and would give effect to them not just in relation to the named parties but altogether, so that anyone whose circumstances fell within the law as that law was, by the Court of Final Appeal, determined to be, would be treated accordingly. As Mason NPJ recognized (see Lau Kong Yung, page 347J) no one could "reasonably be expected at that time to act on the possibility that such an interpretation would issue".

117. Counsel for the applicants has returned in the course of this long hearing, on quite a number of occasions, to stress the sense of grievance nurtured by these applicants, and I accept that they harbour a profound feeling of injustice. They feel that had they but suspected that the authorities would not in fact give effect at large to the Court of Final Appeal decisions, they would have brought proceedings themselves and would then be in the same position as the named parties to the Court of Final Appeal litigation, either because they would themselves have been named parties, or would at least have secured undertakings that their cases would be saved by the test case principle, properly so called.

118. It is in these circumstances that I formed the view early on, rightly or wrongly, that the area which required particular exploration was that of legitimate expectation, and it was because of comments which I made at an early stage of the hearing that the applicants expanded their case, with leave, to plead this issue with greater particularity.

The pleaded case

119. The expectation pleaded is that "declarations of public law rights made by the Court of Final Appeal will be given effect to by the Executive not only as a matter of procedure but also in substance". It is said that :

"Further and/or in the alternative the applicants who were in Hong Kong or who had made a claim before the Interpretation are entitled to benefit from Ng Ka Ling and Chan Kam Nga by reason of legitimate expectation arising from representations of the Government to the public at large and to specific individuals that these judgments would be followed and implemented."

"All the applicants not limited to those who arrived before 29 January 1999 have relied on a determination of their rights deemed to be final and on the determination to be given effect by the Director by reason of principles of the rule of law under which it was the unvaried practice of the Government in Hong Kong to follow the law as declared by the court until such time as the law is changed. Until the Interpretation was given by the NPCSC on 26 June 1999 and decided by the CFA in Lau Kong Yung on 3 December 1999 to take effect retrospectively from 1 July 1997, there was no indication that their rights already determined would be affected. Immediately after the judgments of the CFA on 29 January 1999 and on many occasions thereafter, the Government had reaffirmed the aforesaid practice and its intention to give effect to the judgments."

"But for the invariable practice of the Government in Hong Kong making it unnecessary for anyone to bring proceedings in his own behalf while test cases were being determined, or for fresh proceedings to be brought after issues were determined, each of the applicants would have done so. Applicants in P1, 2, 3 and 4 were in Hong Kong before the Interpretation. Applicants in P5 could either have come to Hong Kong earlier or bring proceedings through their parents."

"Moreover but for the Director refraining from processing their claims although in law it was within his power to do so, the applicants would have had their status verified. The Director's failure to do so when the Chief Executive took step to move a change in the law by way of the Interpretation amounts to special circumstances under which it is unfair to remove the applicants even if they are removable."

"The Director enjoys extensive discretionary powers under the Immigration Ordinance, including giving permission to stay and removing the condition of stay with the effect that a person can apply for a certificate of entitlement or identity card while remaining in Hong Kong. These discretionary powers are unchanged by the No.2 and No.3 Ordinances, and have been used by the Director of Immigration before and since these Ordinances came into effect. The Director of Immigration is duty bound to exercise his discretion reasonably. In the special circumstances of the applicants, it is Wednesbury unreasonable of the Director not to exercise his discretion to allow them to remain."

120. The applicants also rely on "the repeated statements made by senior officials of the Government of the HKSAR before and immediately after the Court of Final Appeal judgments were given, that the Government will accept the court's determination and respect and implement the CFA judgments."

The statements referred to are :

(1) On 23 July 1997 the Chief Secretary for Administration, in answer to a written question, in the Provisional Legislative Council, about legal aid applications for legal aid in right of abode cases, said :

"So far 73 cases had been granted legal aid. However with the agreement of the courts and both sides, a few cases will be selected as test cases to obtain rulings from the courts on points of law. It is therefore unnecessary to initiate separate proceedings for each and every legally aided person."

(2) In a speech to the Australian Chamber of Commerce on 31 July 1997, the Chief Executive said that "the Hong Kong SAR Government will argue its case in court, and abide by the court's ruling." This statement was made in the context of comments about the rule of law, a challenge in the courts to the legitimacy of the Provisional Legislative Council, and an expected challenge concerning Mainland born children with Hong Kong parents.

(3) On 26 January 1998, there was a press release announcing that the Government intended to lodge an appeal against the decision in Chan Kam Nga, that is, the decision of the Court of First Instance handed down that day. It was said that there were no statistics on persons affected by the decision, and that the Government would not pending appeal "remove these applicants".

(I note in passing that on 19 February 1998, the Security Bureau was saying to the Legislative Council Panel on Security that that judgment had serious implications.)

(4) On 20 May 1998, the day of the Court of Appeal judgment in Chan Kam Nga, which upheld the validity of the time of birth limitation, there was a press release by the Government welcoming the judgment, as well as the earlier Court of Appeal judgment which had upheld the constitutionality of the No.3 Ordinance.

121. Those are the statements made before the Court of Final Appeal judgments, relied upon in all three cases before me as giving rise to a legitimate expectation.

122. In the case of Ng Siu Tung and Others (HCAL 81/1999), there are expectations said to repose with individual applicants as a result of representations made to them, and I must deal with these later.

123. As for public representations made after the Court of Final Appeal judgments and before the Interpretation, the representations relied upon are :

(1) Statements made at a press conference on 30 January 1999, the day after the January judgments. The tenor of comments made by the Secretary for Security were that there would be discussions to give effect to the judgments. (I also note in passing that the validity of the certificate of entitlement scheme was emphasized at the press conference, and she said that persons without a certificate of entitlement would be sent back to the Mainland.)

(2) In Davos, Switzerland, on 30 January 1999, the Chief Executive, at a question and answer session ranging across the number of disparate topics was asked about the Court of Final Appeal rulings and said that : "We respect that decision ... you have been brought up by the common law. You have to understand this is the legal process - that two sides present a case, one side will win, the other side will lose. And that's the way it's going to work." He added that the implications of the decision were being evaluated in Hong Kong; that "We need to be concerned about whatever additional children might come in suddenly, the impact on education, on schools." (He also warned against "coming across illegally".)

(3) On the same day, the Acting Chief Executive said that the court rulings demonstrated that anyone was free to challenge the administration's decisions in the courts and that "We respect the court's decisions and we will act accordingly". (She spoke, too, of the pressure on Hong Kong services which laid in wake, and she then said "I want to stress that any person without a certificate of entitlement illegally entering Hong Kong will be repatriated to the Mainland.")

(4) On 30 January 1999, Mrs Ip was reported as saying that "We respect the court's judgments and will employ appropriate administrative measures to implement the court's judgments."

(5) On 8 February 1999, the Legal Aid Department issued a press statement in response to inquiries about legal aid by two-way permit holders. The inquiries were made by people who wanted assistance in relation to claims for right of abode, and the Department said that those who had already registered their details with the Department had no need to re-register or to inquire about their case unless a removal order were issued or the person concerned was detained. Those who wanted extensions of stay should apply to the relevant authority - that was not a matter for the Legal Aid Department.

Expectation of a substantive benefit

124. "There is a hot debate about the extent to which public law recognizes substantive legitimate expectations" (Fordham, Judicial Review Handbook, 2nd Ed, page 481). So, too : "There is a continuing uncertainty and difference of opinion as to whether the concept of legitimate expectations only has an impact on procedure, or whether it can also have a substantive impact, and if so, precisely what." (see Paul Craig "Legitimate Expectations : A Conceptual Analysis" (1992) 108 LQR 79).

125. But it is just such an expectation that the applicants say arise in this case, and they point to several cases (R. v. North and East Devon Health Authority, Ex parte Coughlan [2000] 2 WLR 622; R. v. Home Secretary, Ex parte Ruddock [1987] 1 WLR 1482; R. v. Home Secretary, Ex parte Asif Khan [1984] 1 WLR 1337) which show a willingness by the courts, in an appropriate case, to give effect to expectations of a substantive benefit; and the recent case of R. v. Secretary of State for Education and Employment, Ex parte Begbie [2000] 1 WLR 1115 provides further cement to the suggestion that it is now accepted that the rule operates in the sphere of substantive as well as of procedural rights.

126. In R. v. Devon County Council, Ex parte Baker and Another [1995] 1 All ER 73, 88, Simon Brown LJ identified the distinct senses in which the phrase "legitimate expectation" is now used, and of expectation of a substantive right, he put the position as follows :

" Sometimes the phrase is used to denote a substantive right: an entitlement that the claimant asserts cannot be denied him. It was used in this sense and the assertion upheld in cases such as R v Secretary of State for the Home Dept, ex p Khan [1985] 1 All ER 40, [1984] 1 WLR 1337 and R v Secretary of State for the Home Dept, ex p Ruddock [1987] 1 WLR 1482. It was used in the same sense but unsuccessfully in, for instance, R v Board of Inland Revenue, ex p MFK Underwriting Agencies Ltd [1990] 1 All ER 91, [1990] 1 WLR 1545 and R v Jockey Club, ex p RAM Racecourses Ltd (1990) [1993] 2 All ER 225. These various authorities show that the claimant's right will only be found established when there is a clear and unambiguous representation upon which it was reasonable for him to rely. Then the administrator or other public body will be held bound in fairness by the representation made unless only its promise or undertaking as to how its power would be exercised is inconsistent with the statutory duties imposed upon it. The doctrine employed in this sense is akin to an estoppel. In so far as the public body's representation is communicated by way of a stated policy, this type of legitimate expectation falls into two distinct sub-categories: cases in which the authority are held entitled to change their policy even so as to affect the claimant, and those in which they are not. An illustration of the former is R v Torbay BC, ex p Cleasby [1991] COD 142; of the latter, Ex p Khan. "

127. The argument before me in this case has not focused on the issue whether representations might give rise to an expectation of a substantive benefit, and I proceed on the footing that in appropriate cases they can.

Analysis

128. The questions in this case are these :

(1) What precisely is the representation that it is said was being made and was being made to the applicants, and precisely what expectation can legitimately be said to arise from that representation?

(2) If representations gave rise to an expectation on the part of the applicants that was legitimate, did the failure to fulfil that expectation constitute an abuse of power? Was the expectation one which the respondent was bound to honour by not making removal orders?

129. The representations alleged are that the judgments would be followed and implemented; and the legitimate expectation asserted is that the applicants were entitled to benefit from the judgments. There is, in this case's context, necessarily implicit the assertion of a legitimate expectation that they would benefit from the judgments regardless of any subsequent events and regardless of any change in the law.

130. I am not persuaded that that was the legitimate expectation. The representations were indeed that the judgments would be implemented, and there is implicit in those representations that the law stated by the judgments would be followed in the case not only of the litigants, but also in favour of those who would benefit by the law thus stated. The statements were, in essence, statements of the obvious - that the law would be implemented; that the authorities would do as the law declared by the courts required them to do.

131. What was not represented (and one notes that statements were made to the public at large, and not specifically to litigants or potential litigants as such) was that the applicants and those in their position would be treated as parties to the litigation regardless of events subsequent to such judgments as may emerge, or to the judgments which did emerge. I discern in these various statements no express representation, for example, before the Court of Final Appeal judgments, that if claimants did not institute proceedings, they would nonetheless be treated as parties to the litigation. The statement of 23 July 1997 that it was unnecessary to initiate separate proceedings was a statement that concerned only those cases in respect of which legal aid had been granted, making the point that it was quite unnecessary for any but the selected test cases, properly so called, to advance to full hearing. There is no warrant in my judgment in reading anything more into it than that.

132. I do not for a moment belittle the sense of frustration which the applicants must feel, since they could hardly have envisaged the turn of events which culminated in the June Interpretation, but it seems to me that in order to cull from the statements by the authorities a substantive benefit such as that now enjoyed by the parties to the Court of Final Appeal judgments, the applicants would have to establish a representation directed at them which went beyond the broad public statements upon which they rely. To point to the "unvaried practice of the Government ... to follow the law as declared by the court until such time as the law is changed" as establishing a legitimate expectation from which the applicants hope to benefit, is to point to the flaw in the argument, because the law itself permits interpretation by the Standing Committee, and the Court of Final Appeal has held that, before as well as after the Court of Final Appeal judgments, the law was not such as could benefit these applicants. Looked at from another angle, the named parties to the Court of Final Appeal judgments have benefitted from a judgment based on interpretations of the Basic Law held now (in effect) to have been erroneous, and the applicants seek to derive the same benefit. The invariable practice upon which the applicants rely is the invariable practice of following and applying the law as it is at any given time. It is not an invariable practice of conferring on everyone the benefit (or indeed of imposing the burden) of the law as determined by a judgment even in the face of, say, retrospective legislative amendment or of a declaration, operating retrospectively, which holds that the law was not that which was accepted law at the time of that judgment.

133. But if I am wrong about that, and if the representations are to be construed as representations to these applicants and to those Mainland residents, whether in Hong Kong or not, who fell within the categories of applicants covered by the two January judgments, that they would be treated as if they were parties to that litigation, come what may, and therefore be accorded all the advantages which had then to be accorded to those named parties, then the question is whether to deprive the applicants of that expectation constitutes an abuse of power; and it is in this realm that the applicants face, as a matter of law, real difficulty. I emphasize the words "as a matter of law" because the courts do not stand in the shoes of policy makers, because policy decisions and changes of approach which affect large sections of a community and which may give rise to perceptions, sometimes justified, sometimes not, of a breach of faith, often involve matters of general policy upon the complex reasoning behind which the courts are not expected, and may not be competent, to adjudicate. The fact of the approach by the authorities to the State Council with a view to a reference to the Standing Committee for an interpretation was the subject of considerable controversy at the time and subsequently, and there were in some sectors of the community expressions of serious concern for the precedent set, and by those in the position of these applicants there is the sense of injustice to which I have referred. But, all that said, as with the judge at first instance in ex parte Begbie, the question is not whether the way a matter has been handled might or might not be criticized - the question for a judge is whether the ground of challenge in a particular case is sound in law (see Begbie at p.1123). That, as far as this court's function is concerned, is the long and the short of the matter, and invitations to a court to take a broad brush approach must not be permitted to obscure the parameters of the court's function.

134. The essential difficulty of the applicants' position is illustrated by a consideration of the respondent's statutory duty at the time he came to make the decisions now under challenge. The requirement that a public body shall abide by representations runs for so long as implementation of a promise does not interfere with the body's statutory duty (see AG of Hong Kong v. Ng Yuen Shiu [1983] 2 AC 629; Ex parte Coughlan and Ex parte Begbie, supra). That statutory duty, in the context of the decisions which have to be made by the respondent in respect of those in Hong Kong in breach of conditions of stay is the subject of repeated reference in Lau Kong Yung. The Director of Immigration has to have regard to the overall objective of a statutory scheme designed to discourage unlawful entry, illegal stay in breach of conditions of stay, and the prevention of queue jumping.

135. At the time the respondent made removal orders in all these cases before me, or decisions about the entitlement of the applicants for right of abode, the Immigration Ordinance in force, as amended by resolution on 16 July 1999, provided, in so far as is relevant, that those of Chinese nationality born outside Hong Kong to a parent who at the time of birth of that person was a permanent resident had the right of abode. That meant that those born before did not have the right of abode. That was not the law only from 16 July 1999 but was the law from 1 July 1997. Similarly, the Ordinance provided for a certificate of entitlement scheme which was the only method by which a Mainland resident may establish his right of abode. The provision of the No.3 Ordinance requiring the claimant to hold a valid travel document and a valid certificate of entitlement affixed to it was effective in and from July 1997. All that apart, art. 24(2)(3) of the Basic Law was qualified by art. 22(4) so that those applicants with the right of abode in Hong Kong could not exercise it unless armed with an exit permit from the Mainland.

136. This was the statutory and constitutional context in which decisions had to be made by the respondent; a context in which applications by Mainland residents for certificates of entitlement had to be made on the Mainland. Mainland residents could not, under these statutory provisions, make applications in Hong Kong and those making them could not remain in Hong Kong pending the result of an application. As was made clear in Lau Kong Yung, the policy reasons for the scheme included discouragement of illegal entry, unlawful stay after lawful entry, as well as queue jumping, and it was not for the respondent to frustrate that legislative intent (per Litton PJ, page 337).

137. Although the Director of Immigration had a discretion to allow individuals to remain, he was under no duty to exercise that discretion. It is in any event one thing to exercise a discretion in individual cases for reasons peculiar to that individual case. It is quite another for the Director of Immigration, in the face of the statutory and constitutional provisions and the policy underlying them, which I have described, provisions lawful since July 1997, to say that he would nonetheless permit thousands upon thousands of Mainland residents, whether in Hong Kong or otherwise, to be given right of abode even though born before a parent became a permanent resident, and to permit very large numbers to have their claims verified whilst they were in Hong Kong, or otherwise unlinked to any quota system.

138. If the real question is whether the frustration of an expectation will amount to an abuse of power (see Coughlan at page 645; and Begbie at page 1131), it is in my view impossible to say in the circumstances of this case that the decisions of the respondent which frustrated such expectations of the applicants (if such were their legitimate expectations) that the January 1999 judgments would be implemented in their favour too, constituted an abuse of power or were other than fully commensurate with his statutory duty.

139. And one is bound to add that, in so far as the applicants rely on public statements of Government officials about the right of abode cases and the judgments pronounced, almost each statement was accompanied by the clearest of warnings that persons without a certificate of entitlement, or persons overstaying or entering unlawfully, would be sent back.

140. The reality of the matter is that the applicants, quite understandably, desire to freeze the law at a time which is beneficial to them. But as a matter of law they cannot do that (even though armed with the representations made at that time). The judgments in Ng Ka Ling and Chan Kam Nga do not benefit the parties to that litigation because of representations made that the judgments would be implemented. Those parties take the benefit of the judgments because, despite the error as to legislative intent, to be taken as subsequently revealed by the Interpretation, they were parties to the litigation. The reality of the matter is also that the applicants' claim rests upon a real sense of grievance that the free standing power of interpretation was used at all after a final judgment. But its use is a fact, as is its legality, and it is exclusively with the legal impact with which I am concerned.

141. Further pertinent principles at play are illustrated in R. v. Secretary of State for Social Security, Ex parte McEntire, an unreported judgment of Popplewell J sitting in the Queen's Bench Division on 23 March 1992. The Department of Social Security had rejected an application for industrial injury disablement benefit because the applicant had not made a claim within five years from the last day when he worked, and regulation 25(2) of the applicable regulations precluded such a claim in those circumstances. However, in October 1989, the Court of Appeal ruled that regulation 25 was ultra vires. So, in May 1990, the Department revised its decision because regulation 25 was then regarded as ultra vires. They wrote to the applicant telling him so, and he said that this letter gave him a legitimate expectation that his claim would be dealt with on the basis that lateness was no longer an issue in the case. However, in July 1990, the Social Security Act of 1990 came into effect and one of its provisions was that regulation 25 "shall be taken to be, and always to have been validly made". In September that year, the decision of May 1990 was reviewed in the light of the new statutory provision, and it was decided that the benefit was, after all, because of the limitation period, not payable.

142. It was suggested in argument that the July 1990 legislation was not retrospective, but the judge was satisfied that it had retrospective effect and that the result was that the five year limit was to be treated as always having been the law. He also did not believe this to be a case of legitimate expectation - there could not be a legitimate expectation that Parliament would not change the law, nor an expectation that the position would obtain always. Most pertinently for present purposes, however, is the following passage from the judgment :

"Finally, so far as the point as to whether the adjudication officer has any power to review a decision by validating a previous invalid instrument is concerned, in my judgment what the adjudication officer has to do, albeit that he has a discretion, is to apply the law. The law as it stood in September was that this applicant was out of time, and although the adjudication officer had a discretion, it was not a discretion which he could exercise in favour of the applicant and contrary to what the law now was, and indeed always had been, as Parliament had declared."

143. The same position, it seems to me, faced the respondent when, in the cases now before me, he came to make removal orders or decisions refusing the right of abode. The decision to apply the law as it was then, and indeed as it always had been, was not an impeachable decision, and, as in the case of McEntire, it was not rendered impeachable by a representation made at an earlier time when the law was thought to be in the applicants' favour.

144. In R. v. Customs & Excise Commissioners, Ex parte Littlewoods Home Shopping Group Ltd [1997] STC 317, the Commissioners had given assurances to mail order traders using a retail scheme that if they paid value added tax (VAT) on balances outstanding from customers in 1973 (the year of introduction of the tax), they would not have to pay VAT on outstanding balances when they ceased to use the scheme. A High Court decision subsequently established that using the standard method under such a retail scheme represented an unauthorized derogation from a European Community Council directive, and the Commissioners decided, in 1995, that they would, with immediate effect, rescind their previous agreement not to tax outstanding sums due upon a retailer's ceasing to trade, or leaving the scheme. It was contended, upon an application for judicial review, that the assurances of the Commissioners that retailers would not have to pay VAT on outstanding balances when they ceased to use the scheme had given rise to a legitimate expectation that they would not be withdrawn. Tucker J had this to say, at page 325 :

"In my judgment, where there has been a change in the law, or where there has been a new judicial interpretation of the law, as the Commissioners reasonably believe occurred in the present case and as did in my opinion occur, then the Commissioners should not be bound by assurances given in different circumstances based on a different view of the law which has been held to be mistaken. This is especially so when, as in the present case, the public interests require that there should be a change in policy."

145. The question of a change in policy does not arise in this case. It was not argued before me that there has been a change in policy justified by some overriding public interest. Nor has there been a change in the law. What there has been is a new interpretation of the law, which represents the law as it has always been, and such public pronouncements as were made when the law was differently interpreted or viewed cannot be taken to bind the respondent.

Representations to individuals

146. There are individual applicants in the Ng Siu Tung application (HCAL 81/1999) who are said to benefit from specific representations :

(1) Yuan Zhi Wei (RA13)

147. Mr Yuen Chun Choi is the father of Yuan Zhi Wei, a Group B male aged 24, who did not arrive in Hong Kong until June 1999 (Period 4). In June 1997 he was told that the respondent could not even consider any direct applications from the Mainland to come to Hong Kong, that there were numerous such applications, and that those who wanted to come had to apply through the one-way permit scheme. He continued to write. He mentioned the Basic Law and art. 24 and clearly asserted the right of his children to permanent resident status. In September 1997 he was told that because his children were born before he and his wife acquired permanent resident status, they did not meet the requirements for permanent residence. On 24 April 1998 the Director of Immigration wrote to him saying that "according to the law at present your Mainland children cannot have the right of abode", citing the time of birth limitation. This was a strange thing to say because there was a first instance ruling against that contention. Nonetheless, the letter referred to that ruling and said that it was under appeal :

"The Court of Appeal will hear the case on 1 May. After the whole litigation process is completed, the Immigration Department will follow the final judgment of the courts in dealing with the applications for the certificate of entitlement."

On 28 April that year, after judgment had been given in the Court of Appeal in Cheung Lai Wah, but before judgment in the Court of Appeal in Chan Kam Nga, he was told that the appeal on the question of the time of birth limitation was pending and that applications for certificates of entitlement in such cases would not, for the time being, be processed. On 13 February 1999, he was told that the respondent was making arrangements for certificate of entitlement applications. He was told much the same thing in March 1999; and April as well. His son, the applicant, came to Hong Kong in June 1999, and a removal order was in due course made.

(2) Wong Yuk Heung (RA12)

148. In April 1998 the respondent wrote to the father of Wong Yuk Heung (a Group B lady aged 21) : this was at the time when the appeal in Chan Kam Nga was pending before the Court of Appeal. The letter, in part, said :

"About the matter where children were born outside Hong Kong before they are permanent residents that when the father or mother obtained permanent residency afterwards, that they too enjoy the right of abode, as the case is under appeal, the application of persons in this category cannot be given decisions yet."

He was also told, however, that those claiming the right of abode had to apply on the Mainland. He was told precisely the same thing in October, November and December 1998, when the case was pending before the Court of Final Appeal. Then, after the Court of Final Appeal judgments he wrote, pressing the claim of his children, and was then told, on 25 February 1999 that the Court of Final Appeal had given judgment and that "this Department is actively considering the specific arrangements to accept the applications for certificate of entitlement. Please make your application accordingly in a manner that will be announced at a later date". A removal order was issued in April 2000, the applicant having arrived in March 1999 and then overstayed.

(3) Lau Kong Yung (RA7)

149. Reliance is placed on a letter dated 19 January 1999. Lau Kong Yung, an eight year old boy, had overstayed since September 1997; a Group A claimant. His father had written on a number of occasions to the respondent about the son's application for the certificate of entitlement. He was told that the application had to be made on the Mainland. The letter of 19 January 1999 from the respondent to the father said that :

"As the case is under appeal, the application of persons in this category cannot be given decisions yet."

It is a proforma letter and it is safe to assume that a letter in the same terms, at about that stage, must have been sent to some others.

(4) Lau Pong (RA8)

150. There is a letter referred to dated 10 July 1998 from the Secretary for Security to a family reunion concern group who had written on behalf of families with children waiting to join their parents in Hong Kong, appending a list of names, including that of Lau Pong. In July 1998, the flavour of the litigation stood against Group B applicants and in favour of the scheme under the No.3 Ordinance. The letter of 10 July tells the group that Mainland residents have to apply on the Mainland for a one-way permit if they wish to settle in Hong Kong, that the Court of Appeal had decided that the arrangements for establishing right of abode were in accordance with the Basic Law, and that "the hearing for this case will continue in the Court of Final Appeal at a later date".

151. None of these letters, it seems to me, carries the position any further for these individual applicants than do the general representations with which I have already dealt. The representations are of the same mould and the result in law the same for the reasons I have provided.

The Legal Aid letter - December 1998

152. There is also, in the papers before me, a letter dated 11 December 1998 from the Legal Aid Department to Mr Chan Kei Yui (RA11). The evidence is that it is a proforma letter issued at that time. It reads as follows :

" Regarding application for legal aid

Regarding your application for legal aid please note the following matters :

(1) Extension of stay:

This is not within the range of services provided by this Department. If you need to, please apply to the appropriate department.

(2) Right of abode:

As your application for legal aid relates to legal matters that are being heard in the Court of Final Appeal at this time, there is accordingly no need to bring individual cases for litigation at this stage."

153. The letter has exercised my mind particularly, because it touches closely on that theme of the applicants' case which argues that the applicants ought to be treated as parties to the Ng Ka Ling and Chan Kam Nga litigation, and the suggestion here is that individual proceedings were discouraged on the footing that applicants not parties to that litigation would nonetheless be treated as parties to it.

154. The evidence, as I understand it, is that these letters were not issued until on or after 7 December 1998, a matter of a few weeks before the hearing of the two Court of Final Appeal cases. There was introduced by the Director of Legal Aid a registration system on 7 December 1998 which lasted until 23 February 1999, to cope with the sudden influx of thousands of proposed legal aid applications by those who held two-way permits. In such circumstances, the Director of Legal Aid had to distinguish between urgent cases in respect of which formal legal aid applications were arranged, and the rest, applicants who held valid two-way permits that had not expired and in respect of whom no removal orders had been made. Lists were compiled of those thus registered, and these lists were sent to the respondent. But they were only sent to the respondent in December 1999 and January 2000, and they were sent to see whether the respondent would accept those on the list as beneficiaries of the Concession. In other words, they were not sent to the respondent in the course of the litigation, and there is no suggestion of any agreement made, or indeed request, in relation to those registered, between the Legal Aid Department and the respondent, of the kind made in 1997 between the respondent, Pam Baker & Co., Clarke & Kong, and the Department of Legal Aid, respectively. Indeed, one recalls that in August 1997, a request for an undertaking that those not granted legal aid and whose cases had not been assessed as meritorious might nonetheless, if they reported to the Director of Immigration, not be removed, was rejected. There is no justification in the circumstances for reading some agreement between the respondent and the Director of Legal Aid (on behalf of those registered) from the events of December 1998 and January 1999.

155. There is a suggestion that the respondent was aware of these letters. That is correct, although the date upon which he became aware of them is not altogether clear. The evidence of a Mr Mak Kwai Yan, Assistant Director of Immigration, is that by 26 June 1999, there were 964 persons who had been present in Hong Kong between 1 to 10 July 1997 (and therefore not subject to the certificate of entitlement scheme) whose claims had been verified. In explaining how their claims were approached, he says that the categories of claimant accepted were named parties in the litigation; persons covered by specific agreements (I have referred to these 1997 agreements); and others, including "persons who surrendered to or were arrested by Immigration Officers and whose names were on a list of persons set out in pre-7 December 1998 letters issued by the Director of Legal Aid to the Director of Immigration .... [and] ... other persons who brought with them post-7 December 1998 letters issued by the Director of Legal Aid to them."

156. The pre-December 1998 letters take the applicants' case no further. They were mere notifications of receipt of a legal aid application, with a request not to remove the applicant pending the outcome of the legal aid application or of subsequent proceedings. Even if I were to assume that the respondent was aware before 29 January 1999 of the terms of the letters issued to two-way permit holders on and after 7 December 1998, those letters do not in my judgment constitute any representation, express or implied, flowing from the respondent to any applicant to whom such a letter was given.

157. It follows from this analysis that the applicants' case based on legitimate expectation (the question of the Concession apart) must fail.

Wednesbury unreasonableness

158. I have earlier reproduced, for their relevance to the legitimate expectation argument, those paragraphs of the Notice of Application which address the previous invariable practice of the Government of following judgments, and previous practice in relation to test cases. But they fall also to be considered under the heading of suggested Wednesbury unreasonableness. It is said that had the applicants thought that the judgments of the Court of Final Appeal might not be followed, they would have issued proceedings, and had the Director of Immigration processed their claims when it was in his power to do so, they would have had their status verified. It is said that the Director enjoys discretionary powers to remove a condition of stay, thus enabling a person to apply for an identity card, or for a certificate of entitlement whilst in Hong Kong.

159. This argument is closely allied to the legitimate expectation case, and once that has gone, there seems to me to be very little scope for an argument based upon Wednesbury unreasonableness. The limits to the availability of an argument based on discretion in circumstances where the respondent is addressing his statutory duties in relation to overstayers were thoroughly canvassed and emphasized in Lau Kong Yung. In making removal orders, the respondent was doing so in relation to persons who had no legal claim to stay; and the failure to exercise a discretion favourable to them could not, in my judgment, in the circumstances I have described, including the law then prevailing and the policy behind the law, be said to be Wednesbury unreasonable.

XI. THE CONCESSION

160. The applicants' case is that, independent of any other ground in this application for judicial review, those who arrived in Hong Kong before 29 January 1999 and who made a right of abode claim before that date have, by reason of the Concession announced by the Chief Executive on 26 June 1999, a legitimate expectation to have their status verified according to the judgments in Ng Ka Ling and Chan Kam Nga without returning to the Mainland.

161. The statement of 26 June was made (at a media session) in both English and Cantonese. I have already referred to it. In its English version it said, in so far as is relevant to the legitimate expectation point which now arises :

".... To comply with the principle that judgments previously rendered by the Court of Final Appeal shall not be affected by an interpretation of the National People's Congress Standing Committee, we will allow persons who arrived in Hong Kong between July 1 1997 and January 29 1999 and had claimed the right of abode to have their status as permanent residents verified in accordance with the CFA decision. It is estimated that there are about 3,700 people in this category."

162. The questions which arise are these :

(1) What does this Concession mean?

(2) Has the respondent, generally, applied the correct meaning to the Concession?

(3) Is it demonstrated in particular cases, where the facts are common ground, or are accepted for the purpose of this application for judicial review, that the respondent has not applied the correct meaning of the Concession?

The contentions

163. The applicants and the respondent are poles apart on the meaning of the Concession. The respondent asserts that there were three elements that are required to be satisfied for someone to come within the Concession :

(1) presence by a claimant within the relevant period;

(2) a claim for right of abode must have been lodged with the Director of Immigration, of which claim the Director has a record; and

(3) that claim must have been made whilst the claimant was in Hong Kong.

164. It is common ground :

(1) that those applicants categorized in these cases as Period 4 and 5 arrivals do not fall within the Concession;

(2) that it suffices for a claim to be constituted if it was lodged on behalf of the claimant by a parent or guardian or some person authorized by the claimant to make the claim; and

(3) that it was not necessary to qualify for the Concession that the claimant was in Hong Kong throughout the Concession period.

165. The applicants, on the other hand, say that the conditions imposed by the respondent as conditions precedent to satisfying the Concession criteria are unwarranted by a plain reading of the statement. In particular, they say that there is no need for a claim to have been documented; that there is no need for a claim to have been made to the Director of Immigration rather than, say, to the Legal Aid Department, or some other government authority; and that it suffices if the claim or assertion is made when the person concerned is out of Hong Kong, so long as he or she has been in Hong Kong at the same stage during the Concession period. The Notice of Application asserts that a person has made a claim if -

"(a) s/he had approached the Immigration Department and asserted that s/he qualifies as HKPR or enjoys the right of abode or otherwise made statements implying s/he has the right of abode (e.g. by applying for a Certificate of Entitlement or an I.D. card); or

(b) his/her guardian or agent had approached the Immigration Department and made the above assertion or statements on his/her behalf; or

(c) had approached the Immigration Department for an extension of stay pending the outcome of the test cases; or

(d) s/he had applied for legal aid for the purpose of compelling the Director of Immigration to recognize his/her status as HKPR, whether s/he was granted legal aid and/or included under the 'test cases' by name, or was told to await the decision of the test cases without further action; or

(e) s/he had by conduct including presence asserted that s/he is a permanent resident enjoying the right of abode.

(f) s/he or someone on his or her behalf had applied or attempted to apply for a one-way permit and is the child of a Hong Kong permanent resident."

166. The respondent's position is explained in an affidavit sworn by the Secretary for Security. She states that after the Interpretation, the Government "formulated a policy to identify classes of persons who would have their claim as permanent residents determined in accordance with the law as declared in the [Court of Final Appeal] judgments rather than the law as then declared by the ... Interpretation." It was clear, she says, that the named applicants in the two cases were not to be affected; and that neither were those covered by express undertakings that they would not be removed pending the outcome of that litigation. "The Government also considered whether there were any others who should similarly be treated in the same way. The Government considered that the fairest and most rational way to determine who should be so treated was to have regard to the person's physical presence in Hong Kong and also to the question of whether that person had sought to establish his status as a permanent resident by making a claim to the Director of Immigration for right of abode of which the Immigration Department had a record." Those who had made a claim between 1 and 10 July 1997 should, the Government considered, benefit because of the ruling of the Court of Final Appeal that the certificate of entitlement scheme in the No.3 Ordinance did not have retrospective effect. Those who made claims before 29 January 1999 should be treated favourably, according to this thinking, "because if they had brought their own proceedings, they would either have been parties before the Court of Final Appeal in their own right or would have been the subject of the implied agreements (by way of undertakings not to remove) that they should be treated in the same way as the applicants in Ng Ka Ling and Chan Kam Nga cases." She asserts that the requirement that the Director of Immigration should have a record of a claim should have been self-evident from the fact that an estimate was given in the Concession statement, as well as later, of the number of persons said to benefit. Furthermore, the need for a record was necessary as a matter of good administration. She adds that the Concession decision was made as an exception to the limited saving provision of the last paragraph of the Interpretation, and that the Government considered that the meaning and scope of the Concession was a matter for the Government to determine administratively.

167. On the same day as the Concession announcement, there was issued a press release (other than the release which simply transcribed the media session). It again referred to the 3,700 persons said to benefit, saying that they would be those who had laid right of abode claims with the Director of Immigration whilst in Hong Kong. On 28 June 1999, by a paper before the House Committee of the Legislative Council, the Security Bureau said that the Director of Immigration considered that those who were in Hong Kong and who between 1 July 1997 and 29 January 1999, inclusive, "made a claim to the Director of Immigration to the effect that they were entitled to the right of abode be regarded as being parties involved in the Court of Final Appeal judgments." The paper added that there were 3,700 persons thus affected, of whom 964 had already had their claims verified; 900 of the rest were in Hong Kong and they would not need to return to the Mainland before their claims were processed and results made known; and the remaining 1,800 had returned to the Mainland, and in their cases the Director of Immigration would discuss with the Mainland authorities arrangements for their entry when their claims for right of abode had been established.

168. There are some issues as to correct translation of the Chinese version of the Concession issued; and of the press release the same day. The applicants say that the Chinese version of the Concession refers to those who arrived in the relevant period and had claimed the right of abode "to the authorities". This, they say, is important because it brought in, or covered claims to, any Government authority, in particular to the Legal Aid Department. The court interpreter says that the correct translation is "lodged the right of abode claim with the authorities". It is common ground that the Chinese version (like its English counterpart) makes no express reference to the need to have made a claim whilst in Hong Kong. Nor does the Chinese version of the press release introduce such a requirement.

Principles of law

(1) The true meaning of a policy or a policy statement is a matter for the court to determine (see R. v. Ministry of Defence, Ex parte Walker [1999] 1 WLR 1209, 1216 (Court of Appeal)); and it is for the court to determine whether the public authority implementing it has interpreted it correctly (Ex parte Walker, [2000] 1 WLR 806, 810 (House of Lords)).

(2) "If a statement is not clear and unambiguous, such expectations such a statement gives rise to will not be legitimate" (see Hong Kong and China Gas Co. Ltd v. Director of Lands [1997] HKLRD 1291, 1297).

(3) If the statement is not precise, or as fully expressed as it might be, and permits of a range of meaning, the court will respect the policy maker's interpretation of it, unless that interpretation is irrational (Ex parte Walker, [1999] 1 WLR 1209, 1216F).

(4) It is not for the court to determine whether the policy represented by the Concession is a fair policy, unless it be shown that the policy is wholly unreasonable (see Ex parte Walker, [2000] 1 WLR 806, 812).

Analysis

169. I am satisfied that the Concession statement could not legitimately give rise to the expectations which the applicants say that it nurtured. The breadth of the Concession, as the applicants would interpret it, makes no practical sense and sits wholly ill at ease with the historical context in which the decision was made and announced. It permits classification as a claim an oral assertion, or inquiry, by those approaching inquiry or information counters, for example, at the Immigration Department. If that be sufficient, it is difficult, frankly, to see why an assertion over the telephone, of which there is no record, would not do. What was meant by "claimed the right of abode" in the statement of 26 June was not, in my judgment, explained with any particularity, and the broad statement permitted a range of meaning which was open to the authorities to interpret and limit in a practical way. To assume that the claim need not be formal and recorded and made to the Immigration Department is to invite a coach and horses to be run through the immigration policy to which the Interpretation (and indeed the judgments of January 1999) sought to give effect. How was one to check whether a claim had or had not been made? Absent a record and assuming the authorities were bound to accept anyone who had visited the Immigration Department, or indeed said that he or she had visited the Department, and asserted, in whatever context, and in whatever way, the right of abode, what numbers then qualified for verification processing in Hong Kong? The answer is that no one would have much of an idea, and the notion that the authorities would embrace such a policy has only to be stated for its weakness to be revealed. And from where, incidentally, came the figure of 3,700? It must in itself have suggested some disciplined method by which that figure had been reached. The Concession statement is not a statutory instrument to be analyzed for the precise words used, divorced from context and from history and from practical considerations; yet I am bound to say that the only route by which the applicants' interpretation could survive would involve digression from context, history and practical considerations.

170. It is said that a person has made a claim if he or she applied for legal aid, and the applicants point to a radio interview given by the Secretary for Security on 28 January 1999 in which she said that the claim would be regarded as sufficient if a person could prove an approach to the Legal Aid Department or to the Immigration Department. The Secretary for Security explains that her comment about approaches to the Legal Aid Department was intended to refer to those clients of Clarke & Kong who had been granted legal aid and whose removal had been withheld pursuant to express agreement, or those identified by that Department as having meritorious cases and whose removal was withheld by express agreement made in October 1997. I have to say that that being her intention or meaning, it was not a meaning conveyed in the radio interview, but I do not think that an error of this kind - error in the sense that what was said clearly went beyond the decided policy - can bind the authorities (see Ex parte Begbie, supra, at page 1127C). In any event, this broadcast is not the statement said to give rise to the legitimate expectation. What is said to give rise to the legitimate expectation is the Concession statement of 26 June. Furthermore, an application for legal aid is just that, an application for legal aid, for legal advice, for assistance in bringing an action assuming that the Legal Aid authorities considers there to be merit.

171. In my judgment, this court is bound, in the circumstances of the case, the broad phrase used, the context, the history, the need for some certainty of numbers, to respect the interpretation placed on the Concession by the authorities. It was imprecise enough for several meanings or applications to be adopted and the application of the Concession was not such "as to be 'so aberrant that it cannot be classed as rational' " (see Walker [2000] 1 WLR 806, 813, citing also R. v. Monopolies and Mergers Commission, Ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23, 32). That being so, the respondent's interpretation of the Concession cannot be impugned.

172. This analysis answers the first two questions I have posed as to the meaning of the Concession, and the respondent's interpretation of it.

Individual cases

173. The third question which now falls to be considered is whether it is demonstrated in particular cases that the respondent has misapplied the Concession in the light of the interpretation of it.

174. In the consideration of individual cases, the court should ask whether the decision-maker has misunderstood the policy and, if not, whether he has made a material finding of fact that cannot reasonably be entertained (see R. v. Monopolies Commission, Ex parte South Yorkshire Transport Limited [1993] 1 WLR 23). In asking whether the decision-maker has misunderstood the policy, it is to be remembered that where the criteria, such as they are, are themselves not precise, decision-makers will have some latitude when applying the policy. Thus, in the Monopolies Commission case (referred to in Ex parte Walker at [1999] 1 WLR 1209, 1216 F-G), Lord Mustill said, at page 32, that :

"... The criterion so established may itself be so imprecise that different decision-makers, each acting rationally, might reach differing conclusions when applying it to the facts of a given case. In such a case the court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational : Edwards v. Bairstow [1956] AC 14."

He went on to say that even after eliminating inappropriate senses of a word or phrases, one may still be left "with a meaning broad enough to call for the exercise of judgment rather than an exact quantitative measure". The question in such a case is whether the decision arrived at by the decision-maker is within "the permissible field of judgment".

175. I have earlier concluded that the broad meaning which the applicants would attribute to the Concession statement is unacceptably wide, and that the Director's interpretation that there had to be a claim made to the Director of Immigration of which he had a record, and made whilst the applicant was in Hong Kong, was perfectly acceptable and indeed, from a practical point of view, sensible. There has in effect been much debate in this hearing about the meaning of the word "claim" in the context of the announcement. Did it mean "lodge a claim"? The applicants point to suggest the differences in the words used in the English version of the Concession announcement and in what is said to be the correct Chinese version (where the word "lodge" is said not to be an appropriate translation), and I have been taken to a debate about the translation of the Chinese version of the second press release that day where the words "submitted claims to the Director of Immigration" are said to be an inaccurate translation, the suggestion being that the translation should be "had claimed they have right of abode". This is to elevate these broad statements, clearly intended, in my view, to be rendered practical by further definition and precise application, to the level of statements in statutory instruments, which they were not. These statements were broad statements of policies already formed by the Chief Executive in Council - and I note that the decision in the Executive Council was in relation to those who had "lodged claims on right of abode with the Director of Immigration" - (see the affidavit of the Secretary for Security, paragraph 4). I note that in the explanation of the policy and its background, and in papers to the Legislative Council, and in the explanation of the approach to those who by 26 June 1999 had been treated as if benefitting from the judgment, the authorities themselves seemed interchangeably to refer to lodging a claim for right of abode, and to making a claim to the effect that they had the right of abode. Clearly, they were applying it in a sense more strict than mere inquiries about possible status, more strict than follow-up inquiries, and more strict than references in passing in other contexts to a right of abode. They interpreted it as making an application, or saying something which clearly had that effect. That was a view and a latitude to which, in the circumstances, they were entitled. These comments are all particularly germane to the cases of Lau Kong Yung (RA7 in HCAL 81/1999), and Li Shuk Fan (the sole applicant in HCAL 2/2000). The other individual cases which I have examined, and to which I refer below, tend to fall outwith the Concession for the relatively obvious reasons that an approach was an inquiry and not a claim or application, or because there is no record of the asserted claim.

176. In some of the individual cases, the respondent accepts factual assertions to be true or is prepared to assume them to be true and is content for a removal order to be quashed in any such case if the court is against the respondent on his classification of the case as falling outwith the Concession, even though some facts are merely assumed. There are two cases of fundamental factual dispute in respect of which it has been decided that it is not appropriate for the applicant to be a representative applicant. I refer to them below.

177. Quite a number of the representative applicants say that they or members of their family went to make enquiries at the information office of the Immigration Department. There is evidence from the respondent about what, generally, transpired at that office. It is a large office with a public waiting area and 15 enquiry counters at which members of the public make their enquiries of officers. In 1997, there were 24 Immigration Officers and Assistants working at the office; in 1998 and 1999 there were 30. Those at the counters handled general enquiries made in person and by telephone and those making enquiries were not required to provide their particulars, and the office keeps no records of the enquiries made. In each of the years 1997 to 1999 inclusive, between 1.159 million and 1.458 million enquiries were handled by that office, about half of which were for those appearing in person and the rest by telephone. For right of abode enquiries, officers were instructed to deploy standard responses. I have been shown them. They merely told people how they were to claim and of the need to apply on the Mainland. There are also forms that are available at the office, particular application forms such as "application for certificate of entitlement" and "application for verification of eligibility for permanent identity card".

I. HCAL 81/1999

(RA1) Ng Siu Tung

178. She has been accepted by the respondent as coming within the Concession. No relief is now sought in relation to this applicant.

(RA2) Ng Kam Chi

179. There is a factual dispute in relation to Miss Ng. She says that she had provided her personal particulars in writing to the Immigration Department in July 1997. This is disputed. There is some record of particulars provided by her husband but not by her. It was agreed towards the end of the hearing that in the circumstances, this applicant is not suited to be a representative applicant, and I shall therefore not treat her as one.

(RA3) Lo Po Lai

180. Ms Lo, aged 21, has been in Hong Kong since April 1997. As far as suggested claims made in Hong Kong to the Director of Immigration are concerned, the contention is that her father asked an immigration officer about application procedures. The officer said that documents should be brought including proof of the parent-child relationship. The respondent is entitled to take the view, as he has, that this was an enquiry and does not constitute claiming the right of abode, of which in any event there is no record. It is said that the father visited the 13th floor of the Immigration Department on 7 January 1999 and told them that she wished to apply for the right of abode. There he was told, according to his account, that he should go to an office in Yaumatei. He went and presented documents, and was told that his daughter had overstayed and should surrender, but she was afraid to do so and there the matter was, for the time being, left. Evidence by the respondent is that at the 13th floor there are no records of any visits by or on behalf of this applicant and the Yaumatei Office handles applications for extension of stay. In the case of such an application, a record would be made. In the case of other enquiries, the enquirer would be referred to the information office and no record made. Those applying for extensions of stay would be given a form on which might be stated an intended right of abode claim. There is also a suggested visit by the father to the Legal Aid Department in May 1998 to enquire about procedures and the progress of litigation.

181. Assuming the evidence of these visits to be accurate, the Director of Immigration has, in the light of the Concession interpretation which he has adopted, made no material error in his assessment as to whether there has in the case of this applicant been a Concession claim.

(RA4) Chu Chun Man

182. She arrived in Hong Kong in October 1994 and overstayed since November 1994. No claim is alleged to have been made by her or on her behalf during the concession period.

(RA5) Tam Siu Ming

183. Tam Siu Ming was only in Hong Kong between 10 July 1997 and 17 July 1997, and then again on and after 16 July 1999. The only claim, therefore, that could survive, as it were, for Concession purposes would be one made in that week in July 1997. The contention is that on about 12 July 1997 he went with his family members, armed with documentary evidence, to the Wanchai Immigration Tower's inquiry counter to make his application but was told to return to the Mainland to apply. There is no record of any claim having been lodged. In the circumstances, the Director's decision on the Concession claim of this applicant cannot be upset by this court.

184. I note, incidentally, that Tam Siu Ming arrived on 10 July 1997. The respondent is prepared to treat him as having arrived before 10 July and therefore as a P2 applicant, a point relevant when I come to address the specific issue relating to that period. The cases of Lo Po Lai and Chu Chun Man also fall for consideration as Period 1 arrivals, in respect of which group there is also a discrete argument which I deal with later in this judgment.

(RA6) Lee Wang Lung

185. This applicant was in Hong Kong in the summer of 1997 and the summer of 1998, so far as the Concession period goes. It is said that in July 1997 he and his family went to the Immigration Department. What happened is summarized by those acting for the applicant thus : "Father, mother, Master Lee and sister attended Wanchai to assert their claim. They were not permitted to do so. There were no procedures available." It follows that no claim, in the form required by the Concession, was in fact made. In the same month, the father went to the Legal Aid Department "for legal assistance for my two children's right of abode in Hong Kong". Information was noted and a card evidencing his request given to him. But, in August, his legal aid application was refused. This could not be construed as a claim to the respondent, regardless of the fact that in any event there is no record of this with the respondent.

(RA7) Lau Kong Yung

186. This youngster now has a one-way permit and a certificate of entitlement, but I am nevertheless asked to determine the rejection of his Concession claim, for it is said on behalf of the applicants that such a determination will assist in cases of other applicants who have no one-way permit.

187. Lau Kong Yung arrived in Hong Kong in September 1997 but overstayed and has been in Hong Kong ever since. Amongst the assertions made are :

(1) That his family went to the Immigration Department in December 1998 where they handed over family documents as well as Lau Kong Yung's documents, asking for his right of abode to be processed. There is a dispute about what happened there, which is not one I can decide. There is, however, no record of such a visit.

(2) That there was a telephone enquiry asking how to apply for right of abode. This could not possibly fall within the Concession criteria.

(3) The father says that at the end of 1998 he took his son's documents to the Immigration Department in Wanchai and asked for his right of abode to be processed. Now, again, there is a factual issue here which is not for this court to determine. The respondent does not accept that this was the purpose of the visit. He exhibits a letter of 31 December 1998 to Mr Lau which acknowledges Mr Lau's report of a change of his marital status, which required or accompanied an application to amend his identity card particulars. There is a copy of that printed application form completed by or for Mr Lau on the records and the form is an "Application for amendment of registered particulars of Hong Kong identity card". On it are added the words "Enquire about the application for certificate of entitlement of Lau Kong Yung". It is said by the respondent that this is not an application for right of abode and is rather an enquiry made in passing in the course of an application for amendment of identity card particulars. I am unable to say that that is an aberrant application of the policy.

(4) The strength of this applicant's case on the Concession arises from letters which his father wrote in January 1999, still during the Concession period, to the Director of Immigration. At that stage, Master Lau was in Hong Kong, although the Director did not know it and although it would appear from the correspondence that Mr Lau, the father, was representing that the son was still in the Mainland. The reason given for rejecting those letters as coming within the Concession is important : Mr Chiu Wai Kai, Assistant Principal Immigration Officer, says :

"As is apparent from the contents of the letters written by Mr Lau, he only enquired about the progress of the processing of the application for certificate of entitlement by Master Lau. The letters ... did not make reference to Master Lau being present in Hong Kong, having overstayed in Hong Kong since 2 December 1997. It is the Director's case that these letters of enquiries and progress checks did not amount to lodging claim for right of abode in Hong Kong with the Director."

The essence of the decision in this particular case is not put on the footing that the Director would not treat as a claimant someone who had not surfaced or surrendered (and that was a pre-requisite for those whose claims were verified by 26 June 1999) - it is put on the footing that what Mr Lau was doing was making follow-up enquiries. A certificate of entitlement could not, in any event, Mr Fok said, be applied for in Hong Kong and there was no record of a certificate of entitlement claim on the Mainland.

188. In my judgment, the finding that Mr Lau was by these letters not in fact making a right of abode claim for his son is a finding that cannot reasonably be entertained. I accept that a follow-up enquiry about progress of a claim allegedly made elsewhere is by no means necessarily itself a claim to the Director in Hong Kong for the right of abode. But, on the facts of this particular case, Mr Lau was not merely complaining of lack of progress of a claim on the Mainland : he was renewing the application. He had given up hope of anything happening on the Mainland. On 2 January 1999 he wrote saying that he had sent documents to the PSB as long ago as before July 1997 - he had not even had a reply. "I would be very grateful if you could approve my son's application for the certificate of entitlement." On 22 January, he wrote enquiring about whether the certificate of entitlement had been given to the PSB (that is a follow-up enquiry), but then added : "May I bring my son to the Immigration Department for applying resident's document?" I suppose a legalistic approach might say that by that added question he was signalling a possible future claim, but that is not the reality of what this layman was saying. He was saying : "My son has the right of abode. Please now give him the necessary document to permit him to exercise that right."

189. That these documents were received by the respondent is not in doubt.

190. The relief claimed in the Notice of Motion is that I quash the decision of the respondent not to revoke the removal order. That relief is no longer sought, because Lau Kong Yung has in fact acquired his certificate of entitlement and his one-way permit. I am asked, instead, to make a declaration as to the validity of the decision about the Concession, since it is said that Lau Kong Yung's case is representative of others. The case turns very much on its own facts and I have doubts as to how helpful this decision is in relation to other applicants. I do not, in the event, think it appropriate to declare that Lau Kong Yung came within the Concession, for a question does arise, and it was hinted at in argument, as to the position of those who were represented to be on the Mainland but were in fact here. (I note in a letter of 17 January 1999 that the father writes "If my son has to come to Hong Kong, can he apply for a certificate of entitlement?") I do not decide that matter one way or the other, though I rather doubt that Concession claims were contemplated as constituted in the face of a representation of that kind, if made and if untrue. The only appropriate course, I believe, is for me to record my finding that the view taken in this case that no claim was made for the right of abode by the letters written in January 1999 was not a tenable view.

(RA8) Lau Pong

191. The only time Master Lau was in Hong Kong during the Concession period was from 14 July 1998 to 2 August 1998. It is said that on 20 July that year, he and his mother went to the 21st floor of the Immigration Department "to enquire", and asked for assistance to apply for right of abode, but they were told that they could not apply in Hong Kong. There is no record of his attendance, or of any assertion then made for the right of abode. This type of enquiry is the subject of the evidence, to which I have earlier referred, about the informal nature of proceedings at the information office of the Immigration Department. A similar enquiry at the same place was apparently made on 25 July 1998 and again on 27 July. It is said that on 27 July, the mother asked for applications for right of abode to be processed but they were turned away. Again, there is no record of these visits or enquiries. The respondent says that these approaches did not constitute claims and that there is in any event no record of the approaches, and that they therefore do not fall within the Concession. Given the scope and acceptable interpretation of the Concession by the respondent, that conclusion must follow.

192. The family also went to the Legal Aid Department on 27 July 1998 "to apply for legal assistance regarding my application for right of abode". That department issued him with a card and a file number. Although the evidence filed by the respondent says that it was not until July 1999 that he was aware of such an application having been made, there is evidence from the Legal Aid Department that a letter dated 27 July 1998 from the Director of Legal Aid was sent to the respondent which stated that the applicant had applied for legal aid and asking that no removal order be made until the outcome of the application for legal aid of any subsequent legal proceedings. The respondent takes the view that this is, in any event, not a claim for right of abode made to the Director of Immigration. It is a notice of application for legal aid. That is not an unreasonable conclusion.

(RA9) Lin Li Pin, Penny

193. Ms Lin alleges that in November 1998, whilst she was in Hong Kong, she sent a letter to the respondent and she exhibits her copy of that letter. In its effect it clearly, in my judgment, claims right of abode. But the respondent does not accept that she sent the letter. This is a fundamental factual issue, and towards the end of this hearing it was agreed that the issue was such as to make it easiest no longer to treat her as a representative applicant. So that is what I shall do; although I did make the comment to counsel that where there are issues of fact of this kind, they are not in any event for the court unless it be suggested that the determination by the respondent of such an issue of fact was plainly wrong.

(RA10) Lau Kwai Fong

194. Although she has been present in Hong Kong since September 1998, it is not alleged that she made a claim during her presence in Hong Kong during the concession period.

(RA11) Chan Kui Yui

195. The only claim relied upon by this applicant during the concession period arises from a visit to the Legal Aid Department on 11 December 1998 "to apply for legal assistance in the right of abode litigation". This applicant was given one of the post-7 December 1998 letters. It is not suggested that that letter was taken to the Immigration Department during what remained of the Concession period. This application for legal aid does not constitute a claim within the Concession.

Representative applicants 12-19 inclusive :

196. I do not intend to summarise their assertions or the respondent's answers to those assertions. That is because none of these applicants was in Hong Kong during the Concession period, and that reason alone suffices to take them out of its ambit.

II. HCAL 70/2000

197. There are seven representative applicants:

(RA1) Chan Chung Sau

198. Mr Chan is aged 30 years. During the Concession period he was in Hong Kong from 2 September 1997 to 2 October 1997. He says that he went with his mother to the Immigration Department headquarters in Wanchai "to inquire whether or not I was entitled to right of abode". He was told that he had to make the appropriate application on the Mainland. He requested no forms. There is no record of his visit and the events amount in any case to an enquiry rather than a claim as such.

(RA2) Chau Yin Ping

199. It is not suggested that this applicant's case is a Concession case.

(RA3) Chung Chi Kwong

200. Mr Chung is aged 21 years. He was in Hong Kong for one week during the concession period, namely, 1 February 1998 to 8 February 1998. This too is a case of a visit to the 2nd floor of the Immigration Department in Wanchai where the applicant says that he told the officer that he wished to apply for right of abode, but was told that he had to apply in the Mainland. There is, not surprisingly, no record of this enquiry, and it in any event constituted no more than an enquiry.

(RA4) Lam Chi Lok

201. Mr Lam, who is aged 36 years, is a Period 1 applicant. During the Concession period he was in Hong Kong from (before) July 1997 until 24 October 1997. His evidence is that in late July 1997 he went to the 2nd floor information desk of the Immigration Department in Wanchai "to inquire whether or not I could claim the right of abode in Hong Kong". There, he was told that he was required to return to the Mainland to make an application for a one-way permit. The view taken by the respondent that this does not amount to a claim within the Concession (and there is no record) is not impeachable.

202. The evidence is that he went again to the Immigration Department in October 1997 and went to the 13th floor "to enquire about my eligibility for the right of abode in Hong Kong". It is to be remembered that he, like other applicants in 70/2000, is a Group B applicant, not then considered eligible for right of abode in any event. He asked if he could make an application in Hong Kong. It was discovered that he had overstayed. He was told to make the application on the Mainland and when asked why he had overstayed, he was, he says, provided with a range of suggested responses, none of which included an assertion of a right of abode, in consequence of which he wrote : "Because I want to be with my family". It is accepted that Mr Lau went to the General Investigation Section on the 13th floor of Immigration Department in Wanchai on 16 October 1997. It is said that there is no list there of suggested answers. It is not for me in these proceedings, for the purpose of the present question, to resolve that issue. The General Investigation Section is responsible for processing two-way permit holders who have overstayed and have surrendered and sought permission to leave Hong Kong. The respondent puts his case on this basis, that even on the applicant's case, details of which are disputed, there has been no Concession claim : no claim for right of abode was lodged, and there is no record of one. In my judgment, there exist no valid grounds to challenge the validity of that conclusion.

(RA5) Sin Hoi Chu

203. Ms Sin was in Hong Kong twice during the Concession period - from 24 January 1998 to 6 February 1998; and from 30 October 1998 to 10 November 1998.

204. She says that in early February 1998 she went to the 2nd floor enquiry counter of Immigration Tower and asked whether she was "eligible to apply for the right of abode in Hong Kong". She was told that she had to apply on the Mainland. For reasons well canvassed, this was not a Concession claim.

205. She then says that when she came to Hong Kong in October 1998, she proceeded through immigration control and that during an exchange with the immigration officer about her reason for visiting Hong Kong, she said that she was visiting her parents and was entitled to the right of abode. He told her to apply on the Mainland. These assertions are disputed. But be that as it may, there is no record of it. It would be odd if the Concession decision had ever contemplated bringing within its fold oral statements in circumstances such as those described by Ms Sin. There is no ground for disturbing the respondent's Concession decision in this particular case.

(RA6) Sin Siu Yin

206. Ms Sin is an elder sister of Ms Sin Hoi Chu. She was in Hong Kong with her sister in late January 1998 for two weeks; and was here without her sister in July 1998 for three days. She says that in July, she went with her mother to the enquiry counter on 2nd floor of Immigration Tower, and her mother asked for "some forms in order to apply for her daughters to stay in Hong Kong for resettlement. At the same time my mother indicated to the officer that I was one of the daughters applying for the right of abode". The officer on hearing that the mother was not a permanent resident at the time of the birth of the daughters, told her that an application had to be made on the Mainland and the request for forms was declined. No forms were there submitted, meaning that no claim was lodged and that there exists no record of any claim.

207. She also says that her mother works near to the Immigration Tower and was a very frequent visitor to the Immigration Tower but was always told that the application had to be made on the Mainland. Obviously, there is no record of such visits or conversations or of any assertions or claims made during them. So, similarly in this case, there is no ground to overturn the Director's decision in relation to this applicant and the Concession.

(RA7) Yau Po Chun

208. It is not suggested that this applicant falls within the Concession.

The application to re-amend

209. There is outstanding in the case of HCAL 70 of 2000 an application for leave to re-amend the application for leave to apply for judicial review, by addition of a paragraph (23A) to assert procedural impropriety in the gathering of information from applicants as to whether they had made claims for the right of abode. The issues raised by that proposed application to re-amend do not now arise in this case because I have ruled that the Concession agreement is properly construed by the Director of Immigration to mean claims for the right of abode lodged with the Director of which he has a record. Since the assertions which the applicants say they were precluded from putting forward by reason of the suggested procedural improprieties would in any event fall outwith the Concession as thus interpreted, it would be unnecessary for me to determine the issues proposed to be raised, even if leave to re-amend were granted. It seems to me to be best in the circumstances to adjourn the application sine die, thus preserving the position for the applicants should they appeal and succeed on the question of the proper width of the Concession. I shall make an order accordingly.

III. HCAL 2/2000 : LI SHUK FAN

210. Ms Li was born in May 1980. She is a Group B applicant. Her father came to Hong Kong in 1980 and her mother in 1996. She came to Hong Kong in February 1998 on a two-way permit and was granted leave to remain as a visitor. Her permission to remain expired in March 1998 and she has, since then, remained in Hong Kong in breach of the condition of stay. The removal order in her case was made on 17 December 1999. The decision that she was not entitled to the benefit of the Concession was made on or about 28 December 1999.

211. There is but one matter upon which the Concession claim is put forward in the case of this applicant. It is a letter dated 4 December 1998. Argument based upon other facts, or alleged facts, said to constitute a Concession claim, have been abandoned.

212. The respondent's evidence is that before the decision to make a removal order was taken, the question whether this applicant fell within the Concession was addressed. It is said that :

"All the relevant departmental file records had been looked at and considered in relation to the applicant. No record of the applicant having lodged a claim for right of abode with the Director in the period between 1 July and 29 January 1999 was found. Nor was there such a record of such a claim having been made on her behalf."

213. Mr Fok accepts that if the letter was sent and received, the letter itself constitutes a record. The evidence on behalf of the Director is that their records show that a letter from the father was received on 7 December 1998. I presume that that is a fact only discovered on checking the records after receipt of the evidence of the applicant and her father in this case. Although the applicant said in her first affirmation that no copy was kept of the letter of 4 December 1998, the father subsequently produced a copy saying that the original had been misplaced. There is, however, no question but that a letter was received on 7 December and since it is not suggested that any other letter was written, it must be the case that the letter of 4 December was sent and was received by the department, that that letter was a record, and that the Director had a record of that letter. In my judgment, the respondent has, in coming to his decision in relation to this applicant's Concession claim, failed to take into account a material fact, namely, the fact of this letter.

214. The respondent says that the letter does not in any event constitute a claim to the right of abode. It is a letter which speaks of the applicant's background, that numerous applications for a one-way permit were made but refused for the reason that he, the father, had not at the time of the birth of the applicant acquired permanent resident status. He acknowledges that the applicant has overstayed, thereby breaking the law and he ends, according to one translation :

"In view of the above circumstances, in order to save my daughter, I hereby can only apply to the Immigration Department for assistance. I hope the Immigration Department will deal with my daughter's case with discretion in the spur of humanity. Perhaps could right of abode be granted? Or perhaps is there any other way by which my daughter can apply on the Mainland for a one-way permit to come to Hong Kong to live with her parents who give her confidence and who can care for and guide her? Only this would help ameliorate her mental illness.... It is sincerely hoped that the Immigration Department will make allowances for this exceptional case and handle it with discretion and leniency."

215. The phrase "perhaps could right of abode be granted" is, as to translation, challenged by the respondent and the same translator now says that the best translation she can give is "perhaps could she be given/granted residence and stay/remain".

216. I am asked to say that this letter is not in fact a right of abode claim nor any assertion that the applicant was entitled to the right of abode but that it is, in proper context, a plea for the exercise of discretion for the applicant to be allowed to stay, on compassionate grounds. It is then said by Mr Fok on behalf of the respondent that "once it is held that the letter is not a claim for right of abode to the Director of Immigration within the Concession decision, the proper conclusion is that the decision-making process leading to the removal order under challenge was not flawed." I do not, with respect, follow the logic of that. If, ex post facto, the letter were thought by this court not to be a claim for the right of abode, that would not mean that the procedure by which the respondent reached his decision was not flawed. The decision whether this letter is or is not a Concession claim was for the Director to make. He did not, before the removal order, make that decision. If he had made that decision, then this court would examine whether his decision was obviously wrong. But he did not make it at the time he ought, because he did not take the letter into account. For the reasons I have given, he has, as I say, failed to take into account a material fact.

217. I could, in the circumstances, quash the removal order and require the Director of Immigration to consider the content of this letter. That, however, would, in truth, be an artificial exercise because the respondent has made perfectly clear the view he takes of it. Sending it back for reconsideration would largely be motivated by a hope that in the sad circumstances of this case, the Director would exercise his discretion in favour of this applicant on humanitarian grounds. But this is not an acceptable approach. I am bound to say that the construction on the letter which the respondent has adopted seems correct. The applicant's father was writing this letter from the stance that his daughter was not in fact entitled to the right of abode, apparently, because she was a "born before" child; and from the point of view that she was not lawfully in Hong Kong. It seems to me that what the father was saying in this letter was that, nonetheless, he hoped that the daughter would be allowed to remain. In the circumstances, I shall not remit this case for reconsideration of this letter in the context of the Concession and shall not quash the removal order. I am asked also to declare that the applicant is entitled to the benefit of the Concession. Given the flavour of the letter, that is a declaration I do not think I can properly make.

218. That said, it is not disputed that the applicant suffers from schizophrenia and that she has been hospitalized in Hong Kong for that condition. Cases of children being apart from their parents are sad enough, and that refers to almost all the cases with which this whole hearing has been concerned. But where there is the added element of psychiatric illness, the child's need for family comfort and attention is surely all the more acute. I am concerned in the case of this applicant with the general question whether she is, as a matter of right, unaffected by the Interpretation, failing which whether she should be treated as a beneficiary of the Concession. The decision to remove her has not been challenged on the footing of a failure to give sufficient weight to her personal circumstances, a challenge to discretion which is always very difficult successfully to mount. Having said that, I can but express this court's serious concern, which does not bind the Director, at this applicant's special predicament, and express the strong hope that the Director might reconsider his decision on the special compassionate grounds that would appear to exist in this case.

XII. THE "SO WHAT" QUESTION

219. There was a question canvassed in argument that it is not now necessary for me to determine though I shall mention its ambit. I need not determine it because it is a question predicated on the footing that the applicants are unaffected by the Interpretation. It was a question which Mr Chang labelled the "so what?" question, in other words : "So what if an applicant was unaffected by the Interpretation?" His argument, in a nutshell, was that if an applicant was unaffected by the Interpretation, he was entitled to the benefit of the January 1999 judgments, and that meant that both Group A and Group B persons were entitled to remain in Hong Kong pending verification. That was because those judgments held that verification schemes could not go beyond reasonable verification; yet, after the Interpretation and at the time that the removal orders in this case were made, there was only in place on the Mainland a scheme which linked the certificate of entitlement with the exit permit; and there was no promise or intention, as there had been in the immediate aftermath of the Ng Ka Ling and Chan Kam Nga judgments, to put in place a delinked scheme. Therefore, the removal orders were unlawful, as well as irrational. So, too, now the court should not assume that if the removal orders were left in place, there would be instituted some scheme enabling the applicants to verify their status on the Mainland by a delinked scheme.

220. Mr Ma's response was to say that one had but to concentrate on the reason for which the removal orders were made; namely, that the applicants were in breach of conditions of stay. If the applicants wished to be unaffected by the Interpretation and therefore to be viewed as if they were parties to the Ng Ka Ling and Chan Kam Nga judgments, they had to take the rough with the smooth. They could not merely pick the benefit of those judgments, namely, the recognition of the rights of those establishing themselves to be Group B persons, and the benefit of a certificate of entitlement scheme delinked from the one-way permit. They had to take the burdens too, namely, that they were subject to a certificate of entitlement scheme nonetheless and that they were required to make their applications from the Mainland. And it was made perfectly clear, he points out, in the Lau Kong Yung judgment in the Court of Final Appeal that those who had entered illegally, or who had stayed in breach of condition of stay had no right to remain here, even though claiming to be a permanent resident; and that there was no duty upon the Director to exercise a discretion to permit them to remain. In Lau Kong Yung, at page 336, Litton PJ said that in Ng Ka Ling, the benefit of which the applicants now claim :

"We were at plains to emphasize that the provision in the No.3 Ordinance for verification of a person's claim to be a permanent resident remained intact."

And the statutory provision which remained intact despite the court's excision in January 1999 of the provisions then said to be unconstitutional and which retained the requirement of a valid certificate of entitlement was "not a provision the Director could ignore." (page 336F).

221. I need not, as I say, determine this issue, although there appears to me to be considerable force in Mr Ma's contentions. There is a difference, and always has been, between establishing the right of abode and exercising it. As the Chief Judge in the Court of Appeal in Cheung Lai Wah said :

"If applicants are allowed to lodge their applications after they have come to Hong Kong instead of doing it in China, this would, in the special circumstances of Hong Kong, defeat any scheme which is aimed at orderly settlement. It will encourage unlawful landing and illegal activities."

Nazareth VP in the same case labelled the suggestion that claimants be entitled to remain in Hong Kong to have their claims processed here as absurd. It not only confused a bare claim with verified status, but it had practical consequences almost too obvious to have to articulate.

222. The fact is that the applicants had stayed in breach of condition of stay. They had not established their right of abode. They had no legal claim to stay. The removal orders were made for that reason, and for that reason they were valid. The point was made by Litton PJ in Lau Kong Yung at page 336I :

"The absence of a workable scheme in February 1999 meant simply that, at that time, residents in the Mainland claiming the status of permanent resident were unable to put forward their claim : this did not amount per se to the deprivation of a core right guaranteed by the Basic Law."

And by Ching PJ, at page 341H :

"... the respondents had either entered Hong Kong illegally or had stayed in Hong Kong in breach of the conditions upon which they were permitted to enter. They had no legal claim to stay. Whatever scheme for an application for a certificate of entitlement was or was not in place, they had no legal claim to remain in Hong Kong. The Director was therefore justified, as a matter of law, in making the removal orders under section 19(1)(b) of the Immigration Ordinance (Cap.115). This would have been so whether the orders had been made before our judgment, after our judgment up to the Interpretation or after the Interpretation."

XIII. PERIODS 1 AND 2 ARRIVALS

223. The contention is that applicants who were already in Hong Kong before 1 July 1997 and stayed on after that day are permanent residents under art. 24(2)(3) of the Basic Law and are not affected by art. 22(4) because art. 22(4) applies only to those entering the HKSAR after the Basic Law came into effect. This ground stands independently of all other grounds. The assertion is that there is authority for the proposition thus advanced which is binding on this court. That authority is said to be the Court of Appeal decision in Cheung Lai Wah [1998] 1 HKC 617.

224. The contention in relation to Period 2 arrivals, that is, those applicants who arrived between 1 and 10 July, is that they are unaffected by the Interpretation because the Court of Final Appeal in Lau Kong Yung decided that the provision of the No.3 Ordinance (section 1(2)) that purported to give effect to the No.3 Ordinance as from 1 July 1997 remained invalid because it rendered persons guilty of criminal offences and was therefore unconstitutional as contrary to art. 15(1) of the ICCPR as applied to Hong Kong by virtue of art. 39 of the Basic Law.

225. These contentions remain live issues for category A applicants.

226. I think it convenient to deal first with the Period 2 argument.

Period 2 arrivals

227. Mr Chang points to the fact that the Court of Final Appeal held in Lau Kong Yung that the retrospective provision in the No.3 Ordinance remained unconstitutional because one of the bases put forward by the Court of Final Appeal in Ng Ka Ling for so saying, namely, that it retrospectively rendered persons guilty of criminal offences, was unaffected by the Interpretation. That being so, the respondent's powers and an applicant's status between 1and 10 July 1997 were dictated by the statutory provisions then in force, namely, section 2A of the Ordinance, unamended by the No.3 Ordinance. That simply provided that a Hong Kong permanent resident enjoyed the right of abode, which was to say that he had the right to land, and not to have any removal order made, and any condition of stay was to have no effect. And if that be so, no question of a removal order for breach of a condition of stay (the reason for removal orders in all relevant cases) could arise.

228. The original scheme prescribed by the No.3 Ordinance provided, in its effect, that those rights could not be enjoyed unless a person had established his right of abode by the specific method prescribed by that Ordinance : the holding of a certificate of entitlement, as well as a one-way permit; the application could be made nowhere but on the Mainland; and status could only be established by this method. A person seeking to exercise his right of abode in the absence of establishing his right by this method committed a criminal offence (unless he otherwise had permission to be in Hong Kong).

229. The respondent, however, points to that part of the Court of Final Appeal judgment in Lau Kong Yung [1999] 2 HKCFAR 300, 327, in which the Chief Justice said :

"The resulting position

As a result of the Interpretation the original scheme is and has since 1 July 1997 been constitutional.

...

The provisions in the No.3 Ordinance and the Notice declared by the court to be unconstitutional ... are and have since 1 July 1997 been constitutional." (Emphasis added)

230. How then does this sit with the passages which immediately follow in that judgment? :

"In Ng Ka Ling the court also declared section 1(2) of the No.3 Ordinance unconstitutional.... Section 1(2) had deemed the No.3 Ordinance, although enacted on 10 July 1997, to have come into effect on 1 July 1997. In my view this is not affected by the Interpretation. In Ng Ka Ling the court in holding this retrospective provision to be unconstitutional relied on two grounds.

First, on the modified scheme, the No.3 Ordinance took away the constitutional right of abode which a permanent resident by descent, who had arrived in Hong Kong on or after 1 July and before 10 July 1997, was already enjoying under the Basic Law... This ground is affected by the Interpretation. This is because the effect of the Interpretation was that article 22(4) qualified article 24(2)(3) and with that qualification, unless a requirement of Mainland approval in article 22(2)(4) was satisfied, the person concerned could not enjoy the right of abode.

The second ground relied on by the court was that the retrospective provision rendered the persons concerned guilty of criminal offences and was unconstitutional as contrary to article 15(1) of the International Covenant on Civil and Political Rights as applied to Hong Kong by virtue of article 39 of the Basic Law... This ground is not affected by the Interpretation. On the basis of this ground, the retrospective provision in section 1(2) of the No.3 Ordinance remains invalid."

231. I cannot agree with Mr Ma's contention that, by reason of the two sentences under the heading "The resulting position", which I have recited, the Court of Final Appeal intended to say that the No.3 Ordinance took effect from 1 July. It sits ill with the later passages about the unconstitutionality of the retrospective provision, and I note that at page 328 the Chief Justice said :

"As a result of the Interpretation, the original scheme is and has since the enactment of the No.3 Ordinance been constitutional." (emphasis added)

232. So how can the suggested contradiction be resolved? It must be recognized that the Court of Final Appeal in Ng Ka Ling had held that the type of restrictions on the enjoyment and exercise of the right of abode found in the No.3 Ordinance derogated from the constitutional right of abode conferred by art. 24(2)(3), which article was unqualified by art. 22(4). Since, however, the effect of the Interpretation was to render the exercise of the right of abode under art. 24(2)(3) subject to the provisions of art. 22(4), a scheme which required persons to obtain an exit permit and which required application for verification of the right of abode to be made on the Mainland did not, in the event, constitute a restriction on the constitutional right of abode. In that sense, the scheme was never unconstitutional. But the statutory provision which prescribed that since 1 July 1997 fulfillment of the litany of conditions laid down by the No.3 Ordinance was the only way in which right of abode could be established and but for which fulfillment the right of abode could not be executed, was a provision which could not operate as from 1 July, for if it did, those purporting to exercise their right of abode pursuant to fulfillment of other or less restrictive conditions which, but for that provision, were available, would be guilty of a criminal offence, on facts rendered criminal retrospectively. So whilst such a scheme, as a scheme, was permissible, it was not from 1 July permissible as the only set of conditions precedent to the exercise of the right of abode. That is one approach by which the suggested contradiction can be said to fall away.

233. In my judgment section 2A remained, between 1 and 10 July, unencumbered by the No.3 Ordinance. But where I do not agree with Mr Chang's argument is in the suggestion that the Ordinance was the only instrument which dictated the exercise of the respondent's powers. The Basic Law, then in force, was then part of the law of Hong Kong and if art. 22(4) placed a restriction upon the exercise of the right of abode, that was not a restriction which he could ignore, and such statutory provisions then in force had to be read and applied in conjunction with that restriction.

234. The link between art. 22(4) and art. 24(2)(3) is a centerpiece of the Interpretation and of the Lau Kong Yung judgment. The Interpretation states that art. 24 means that it is unlawful for anyone, including category 24(2)(3) persons, to enter Hong Kong from the Mainland without an exit permit, regardless of the reason for entry, and the Court of Final Appeal said in Lau Kong Yung that "The effect of this Interpretation is that as a matter of the Basic Law permanent residents by descent must obtain exit approval from the Mainland authorities and must hold a one-way permit before entry into the HKSAR." (per Li CJ at page 325H) and further "... the effect of the Interpretation was that art. 22(4) qualified art. 24(2)(3) and with that qualification, unless the requirement of Mainland approval in art. 22(4) was satisfied, the person concerned could not enjoy the right of abode." (page 327G). The essence of the matter is found in an analysis by Professor Yash Ghai "The NPC Interpretation and its consequences" in "Hong Kong's Constitutional Debate," (Ed. by Chan, Fu & Ghai) at page 210 :

"The second issue [in Lau Kong Yung] was the effect of the Interpretation. The first point was whether the Interpretation linked articles 22(4) and 24(2)(3), as this was not explicitly stated in the Interpretation. The court had little difficulty in demonstrating that the NPCSC saw a link between the provisions and that an exit permit was essential to the exercise of a right of abode."

235. It follows that if someone came to Hong Kong between 1 and 10 July, not entitled to exercise the right of abode because he had no exit permit, he could only lawfully enter and remain in Hong Kong by permission of the respondent, who was entitled to impose conditions of stay. If an offence were committed by reason of an unlawful entry or breach of a condition of stay, that would arise not because of the No.3 Ordinance, not yet in effect, but by reason of other provisions of the Immigration Ordinance then in force. In so far as it might be suggested that this analysis means that in the absence of an Ordinance giving effect to art. 22(4) between 1 to 10 July, no one could lawfully enter from the Mainland, and exercise, for the first time, a right of abode, that suggestion, in my judgment, would not hold good - a person who had an exit permit and whose circumstances matched those in art. 24(2)(3) could both establish and exercise the right of abode. He was not restricted by the No.3 Ordinance in the way in which he was able to establish the right of abode. Nor did the No.3 Ordinance then dictate the conditions precedent to the exercise of a right of abode. He could not be told that he was bound to hold a certificate of entitlement applied for and obtained in the way prescribed by the No.3 Ordinance, as well as an exit permit. But he did have to have an exit permit. None of the Period 2 applicants in cases No.81/1999 or 70/2000 held such a permit. The contention that the removal orders made were unlawful because Period 2 arrivals are unaffected by the Interpretation is a contention which, for the reasons I have given, I must reject.

Period 1 arrivals

236. Applicants Ng Kam Chi, Lo Po Lai and Chu Chun Man (in HCAL 81/1999) and Lam Chi Lok (in HCAL 70/2000) are the Period 1 representative applicants in this case. (No relief is any longer sought in relation to Ng Siu Tung). They had each before 1 July 1997 already overstayed. Each was in Hong Kong, on 30 June 1997, in breach of condition of stay. I find some difficulty with the proposition that because they happened to be here in Hong Kong already on 1 July 1997, they were entitled to exercise the right of abode, although they held no exit permit. It is true that the Basic Law came into effect only on 1 July, and that art. 22(4) only came into effect on 1 July. But the fact is that no one from the Mainland could from (and including) 1 July enjoy the right of abode unless the requirement of art. 22(4) was satisfied. That is the effect of the judgment in Lau Kong Yung. Those applicants here before 1 July had no right of abode. They were not here lawfully on 30 June. They were in a position no different from someone who entered clandestinely on 30 June, and it seems to me odd that when such a person seeks to exercise a right of abode on 1 July, he should be in a better position than the person who enters openly and lawfully on a two-way permit and then seeks to exercise the right of abode. Ching PJ in Lau Kong Yung, at page 341, said that "... the Interpretation means that as from 1 July 1997 ... persons seeking to settle in Hong Kong need both a one-way exit permit and a certificate of entitlement." It is the phrase "seeking to settle" which strikes me as apposite. A person in Hong Kong unlawfully on 30 June who stayed over to 1 July and purported to do so under a right newly acquired, sought thereby to exercise that right : but he was not, in my judgment, entitled actually to exercise it without the exit permit.

237. The applicants' argument was addressed thus by Mortimer VP in Cheung Lai Wah [1998] 1 HKC 617, 667 :

"The two applicants on these appeals entered Hong Kong before 1 July 1997. Cheung Lai Wah entered Hong Kong on a two-way exit permit in early 1995 but overstayed and was still in Hong Kong on 1 July 1997. Yeung Ni Ni entered Hong Kong illegally on 8 January 1997 and although she was surrendered by her parents to the Immigration Department on the following day and a removal order was later made, that removal order had not been put into effect before 1 July 1997. She was still present in the Hong Kong Special Administrative Region on that date and will remain pending the outcome of these proceedings.

It is submitted that they are permanent residents by descent under art 24. That status with its right of abode was given to them on 1 July 1997. The restrictions on the exercise of the right of abode as provided by art 22(4) applied only 'for entry into the Hong Kong Special Administrative Region'. These applicants did not enter the Hong Kong Special Administrative Region at all. When they either overstayed or entered Hong Kong art 22(4) was not in force. Therefore, they take advantage of their status and right of abode under art 24 but are not caught by either the provisions of art 22(4) or the retrospective provisions of No.3 Ordinance.

The position of these applicants as at midnight plus on 1 July 1997 was that they had become permanent residents by descent under art 24(3). But art 22(4) had also come into force. A permanent resident wishing to exercise his right of abode and settle in Hong Kong could only do so having applied for - and by necessary implication obtained - approval evidenced by a one-way permit. It follows that the approval to which the article refers is not simply approval for entry.

For example, so far as permanent residents are concerned, the approval to which the article refers is not simple entry by way of a two-way permit, but approval 'for the purpose of settlement'. Even a permanent resident who is granted a two-way permit could not arrive in the Hong Kong Special Administrative Region and then claim his right of abode. He would not have received the necessary approval for entry 'for the purpose of settlement' under art 22(4).

The purpose and intent of art 22(4) when read with the corresponding provision in the Joint Declaration is, in my judgment, not in doubt in spite of the general terms in which it is couched. The intention and purpose is that those who seek to exercise a right of abode as permanent residents after 1 July 1997 must do so in accordance with art 22(4) as clarified by Ordinance No.3.

Further, I am not in doubt that although the Basic Law came into effect after midnight on 1 July 1997, those who became permanent residents by descent at the handover but who held the approval of a one-way permit issued before the handover had sufficient approval to comply with art 22(4). This seems to me to be a necessary implication. Pre-handover permits are not irrelevant to a consideration of the meaning and effect of the article.

The remaining question is whether the language of art 22(4) prevents the court from giving effect to its purpose. The point is not devoid of difficulty but in my judgment it does not. It is necessary, however, to apply a wide and purposive construction to art 22(4). I would hold that on its true meaning, permanent residents present in Hong Kong on 1 July 1997 who have not entered with the necessary approval to enter Hong Kong for the purpose of settlement are not entitled to exercise their right of abode."

238. The applicants say that this court is, however, bound by the majority decision in the Court of Appeal in Cheung Lai Wah, which is said to decide the proposition in their favour. The majority to whom the applicants refer was constituted by Chan CJHC and by Nazareth VP. It is, however, pertinent to note the approach to art. 22(4) which underpinned the conclusion of the Chief Judge on this point :

" Article 22(4) requires any person who may fall within any of the categories, including article 24(3) and who is still residing in Mainland China, to seek approval to leave the Mainland. It suspends the exercise of such a right while a person is in Mainland China until after he (having established his right) has been issued a one-way permit, until he has come to Hong Kong. Article 22(4) therefore imposes a restriction on the exercise of the right of abode when the person having that right is in Mainland China. But this restriction is only a restriction on the coming to Hong Kong to exercise the right. Article 22(4) does not qualify the substance of the right of abode when that person is in Hong Kong."

239. In my judgment, the Interpretation and the judgment in Lau Kong Yung affect the view there expressed. The effect of the Interpretation and the judgment in Lau Kong Yung is not merely that those with the right of abode coming to Hong Kong to settle may not come to do so without first obtaining an exit permit, but that the right of abode may not be exercised by art. 24(2)(3) persons without an exit permit. If that be right, and I proceed on that footing, then the majority decision in Cheung Lai Wah on the point in question is affected by the Interpretation and by the decision in Lau Kong Yung and does not in the circumstances bind this court. Accordingly, this independent ground of attack upon the orders and decision which are the subject of this appeal also fails.

XIV. OTHER GROUNDS

(1) There is an amendment which I permitted to the Notice of Application in HKAL 70 of 2000. It was as follows :

"22(e) Further, in deciding to issue a removal order, the Director has failed to consider whether or not the applicants were persons unaffected by the Interpretation, or alternatively misdirected himself in law by only considering the question as to whether the applicants were unaffected within the confines of the Concession."

It was said that this amendment was intended to make more clear the legal argument. If it be suggested that the Director of Immigration did not consider the question of the Interpretation and its effect, it is not a suggestion that fits with the history and reality of these cases. The view had obviously been taken well before any individual decisions, in the light of the Interpretation, that all Group B applicants were affected by that Interpretation, and that they did not enjoy the benefit of the January 1999 judgments and could only remain in Hong Kong to take those benefits if they satisfied the Concession criteria.

(2) Group B applicants : procedural entitlement

240. It is asserted in the Notice of Application in HCAL 70 of 2000 that :

"In the case of the applicants in respect of whom a removal order has been made, there has never been a requirement that they hold a certificate of entitlement since the legislation requiring persons to hold a certificate of entitlement has never applied to them. Being persons entitled to the right of abode or entitled to be treated as having the right of abode, they are not removable as a matter of law and the Director has no power to remove them.

...

... they were never included in the certificate of entitlement scheme. Therefore there has never been any procedural restrictions applicable to them. Under Chan Kam Nga ... they were permanent residents without any requirement in law that they have to first satisfy administrative conditions such as holding a valid certificate of entitlement affixed to a one-way permit. ... They are in the same position as the applicants in Ng Ka Ling who arrived before 10 July 1997 when the No.3 Ordinance was passed."

241. Whilst this ground is pleaded only in the Notice of Application in HCAL 70 of 2000, it is, as I understand it, the position advanced in argument in relation to all Group B applicants in these cases.

242. The analogy with the pre-10 July arrivals is put on this basis, that whatever the effect of the "blue pencil exercises" in Ng Ka Ling and Chan Kam Nga, there was in fact between July 1997 and 29 June 1999, no certificate of entitlement scheme available to a Group B person, so that to read the effect of Ng Ka Ling as retrospective in the imposition of a certificate of entitlement requirement is to render all Group B persons (who could not possibly have obtained certificates of entitlement) and who were present in Hong Kong during that time guilty of a criminal offence. Therefore, it is said, all Group B persons should be entitled to establish their status by whatever means they may without requiring them to return to the Mainland.

243. I do not intend to labour this already very lengthy judgment with analyses of issues that do not in the event arise. Since the Group B applicants are not in fact entitled to the right of abode, nor entitled to be treated as having the right of abode, the question of procedural rights (or encumbrances) does not arise.

XV. CONCLUSION

244. It follows from my analysis and resulting conclusions that the applicants are not unaffected, as they contend, by the Interpretation. Nor have they a legitimate expectation that they would be treated as if they were parties to the litigation culminating in the Ng Ka Ling and Chan Kam Nga judgments. Alternatively, if they had such an expectation, the failure on the part of the Director to fulfill that expectation does not constitute an abuse of power. And I have further concluded that the applicants are not entitled to relief in consequence of the Concession announced in June 1999. Furthermore, those entitled under art. 24(2)(3) of the Basic Law to permanent resident status who arrived in Hong Kong during the period 1 July to 10 July 1997, without an exit permit, were not entitled to exercise the right of abode. Similarly, those in Hong Kong before 1 July 1997, who had by then overstayed or who had entered Hong Kong unlawfully, and were still here on and after 1 July, who on 1 July were persons described by art. 24(2)(3) as permanent residents, were nonetheless not entitled to exercise the right of abode unless they had acquired approval under art. 22(4) of the Basic Law to exit the Mainland.

245. Accordingly, the result of these applications for judicial review is as follows :

(1) HCAL81 of 1999

(1) The application for judicial review for orders of certiorari to quash the removal orders made against representative applicants 3 to 8 inclusive, and 10 to 17 inclusive, and representative applicant 19, is dismissed. (RA9 is no longer treated as a representative applicant).

(2) In the case of Lau Kong Yung, the court declines, for reasons given, to make a declaration that Lau Kong Yung came within the Concession announcement by the Chief Executive on 26 June 1999, although the court finds that the decision that letters written on his behalf in January did not constitute a claim for right of abode was irrational. No other relief in his case is sought.

(3) In relation to Ng Siu Tung's application for an order of certiorari quashing the decision in her case that she does not come within the Concession, she no longer seeks this relief since she has been accepted as a Concession case. Accordingly, in relation to this particular application by her, I shall make no order.

(4) The application for judicial review for declarations that each of the representative applicants who arrived in Hong Kong in Periods 1-3 (namely, representative applicants Nos.3 to 8 inclusive, and 10 and 11) came within the Concession, is dismissed. (RA2 and RA9 are no longer treated as representative applicants). In relation to Ng Siu Tung (RA1) she no longer seeks relief and because she has been accepted as falling within the Concession, I shall in relation to this particular application by her make no order.

(5) The application for judicial review for declarations that representative applicants 1, 3 and 4 are Hong Kong permanent residents by reason of the Court of Appeal judgment in Ng Ka Ling (Cheung Lai Wah) and the Court of Final Appeal judgments in Ng Ka Ling and Chan Kam Nga is dismissed. (RA2 is no longer treated as a representative applicant, although that is as a result of a Concession issue).

(6) The application for judicial review for a declaration that Tam Siu Ming is a Hong Kong permanent resident by reason of the judgments in Ng Ka Ling is dismissed.

(7) The application for judicial review for a declaration that the decision of the respondent contained in or evidenced by certain proforma letters to a number of representative applicants (to treat them as affected by the Interpretation) was unlawful, is dismissed.

(8) The application for judicial review for a declaration that all the representative applicants are unaffected by the Interpretation and that each is entitled to have their status verified in accordance with the Court of Final Appeal judgments in Ng Ka Ling and Chan Kam Nga while remaining in Hong Kong is dismissed.

(2) HCAL70 of 2000

246. The application for judicial review in this case for orders quashing the removal orders and the decisions made not to grant right of abode to the representative applicants is dismissed. The applications for declarations that each of the applicants is unaffected by the Interpretation and is entitled to have his permanent resident status verified in accordance with the Court of Final Appeal judgments in Ng Ka Ling and Chan Kam Nga without being removed from Hong Kong and that each is a permanent resident by virtue of art. 24(2)(3) of the Basic Law, are also dismissed; as is the application (in respect of the representative applicants who arrived in Hong Kong before 29 January 1999) for a declaration that each comes within the Concession.

(3) HCAL2 of 2000

247. The application for judicial review to quash the removal order in the case of Ms Li, and the decision to execute it is dismissed. Similarly the applications for declarations that she is entitled to the benefit of the Concession, and that she is a Hong Kong permanent resident are dismissed.

COSTS

248. I have of course not been addressed on the question of costs. I shall leave it to the parties, in the first instance, to see whether there can be agreement on the issue of costs. In the absence of agreement, I shall in

due course hear counsel on that issue.