LUI SHEUNG KWAN AND ANOTHER v. DIRECTOR OF IMMIGRATION

(English Translation)
HCAL109/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

ADMINISTRATIVE LAW LIST

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D E C I S I O N

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Chan, CJHC :

1. The applicants Mr Lui Sheung Kwan and Madam Ngan Sau Ying are not satisfied with the Removal Order issued by the Immigration Department on 28th November 1997 in respect of their son Mr Lui Chun Ming. They now apply for leave to seek a judicial review.

2. The 1st applicant Mr Lui Sheung Kwan came from Mainland China to settle in Hong Kong in January 1979. He is now a Hong Kong permanent resident. At the beginning of 1986, Mr Lui got married to the 2nd applicant Madam Ngan Sau Ying in Mainland China. Madam Ngan was born in China. Her father was surnamed To. When Madam Ngan was four months old, she was given to a couple surnamed Ngan. Since then, she was brought up by this couple. In 1973, Madam Ngan was married to a man surnamed Tung in Mainland China. She gave birth for him to two sons and one daughter. In 1982, Madam Ngan's foster parents and husband passed away one by one. In 1986, through the introduction of a friend, she got married to Mr Lui in Mainland China. The three children born of Madam Ngan and her late husband Mr Tung hence changed their surname to Lui. They are Lui Chun Fai, Lui Chun Ling and Lui Chun Ming. In April 1991, Madam Ngan was permitted by the Security Bureau in Chuen Chow to settle in Hong Kong with two of her children, i.e. Lui Chun Fai and Lui Chun Ling. But according to the practice in Mainland China, she could apply at any one time for at the most two children to come with her. Hence, Mr Lui Chun Ming had to stay in the village alone and reside with Madam To, the natural mother of Madam Ngan. However, since Madam To is already advanced in age and there is no other relative in the village, there is no one to look after Mr Lui Chun Ming. Hence, Mr Lui and Madam Ngan had to return to the village to visit him from time to time. Mr Lui Chun Ming is now 23 years of age. According to Madam Ngan, when she applied in Hong Kong for identity cards, she had indicated that she still has a son in her home village. Hence, Madam Ngan and her two children who had come to settle in Hong Kong had their identity cards in straight numbers. There is also a number reserved for Mr Lui Chun Ming who has not come to Hong Kong yet. Mr Lui and Madam Ngan have applied in Mainland China for Mr Lui Chun Ming to come and settle in Hong Kong. This has not been successful so far. As a result, at the beginning of 1997, Mr Lui Chun Ming arrived in Hong Kong on a two-way permit. After the expiry of the two-way permit, he remained in Hong Kong and did not return to Mainland China. At the end of June 1997, Mr Lui Chun Ming was intercepted by the Immigration Department. On 28th November 1997, the Immigration Department issued a Removal Order. Mr Lui and Madam Ngan feel aggrieved by it. They apply to this Court for leave to have a judicial review of such Order.

3. Undoubtedly, Mr Lui is a Hong Kong permanent resident. However, Madam Ngan only came to settle in Hong Kong in April 1991. Up to now, she is still not yet a Hong Kong permanent resident. Article 24 of the Basic Law provides :

"Article 24 ...

The permanent residents of the Hong Kong Special Administration 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) ......."

4. Earlier on, the Provisional Legislature enacted an amendment to the Immigration Ordinance, setting out certain conditions pursuant to Article 24(3) of the Basic Law to scrutinize as to who can apply to be Hong Kong permanent residents according to Article 24(3). The children of certain Hong Kong permanent residents have instituted legal proceedings against the HKSAR with regard to whether the Immigration (Amendment) Ordinance 1997 is contrary to the Basic Law. After a hearing, the Court of First Instance decided that this Amendment Ordinance did not contravene the Basic Law. The HKSAR and the parties concerned have appealed to the Court of Appeal against that decision. During the meantime, the children of many Hong Kong residents have also commenced legal proceedings since they may be affected by that decision. The Immigration Department considers that if these new cases fall within the same category, then pending the appeal, those children who have come from Mainland China can remain in Hong Kong pending the determination of the appeal. However, the Immigration Department considers that Mr Lui Chun Ming and certain other cases are different from the case under appeal. It decided to issue the Removal Order. The reason for the Immigration Department to say that the present case is different is that Mr Lui Chun Ming does not satisfy the provisions of Article 24(3). Whatever the result of the appeal, it has nothing to do with Mr Lui Chun Ming's case.

5. Mr Kwok for the applicants submits that the Basic Law does not provide any explanation or definition for the term "children". Hence, "children" can include stepsons and stepdaughters. In respect of Article 24(3) of the Basic Law, counsel argues that it can be construed as follows. So long as a person satisfies four conditions, he can be a Hong Kong permanent resident. First, the 1st applicant Mr Lui must be a Hong Kong permanent resident according to Article 24(1) or (2); second, Mr Lui Chun Ming must be of Chinese nationality; third, he must be born outside Hong Kong; and fourth, Mr Lui Chun Ming is the child of Mr Lui and this includes being the stepson of Mr Lui. Counsel submits that at the present stage, it is sufficient for the granting of leave to seek a judicial review for the Court to be satisfied that his submissions are arguable.

6. I take the view that the applicants' interpretation of Article 24(3) of the Basic Law is taking it out of context. It is also contrary to the spirit of the Basic Law granting the status of Hong Kong permanent residents to certain citizens. This Article cannot be construed in pieces as submitted by the applicants. Article 24(1) and (2) relate to the status of the residents themselves while Article 24(3) relates to the status of the children of these residents. The emphasis of this provision is on children "born of" them and not on their children "outside Hong Kong". This is because if these children were born in Hong Kong, they would be included in Article 24(1) and need not fall under the ambit of their parents under Article 24(3). The words "born of" are the verb which goes with the subject "resident". I am of the view that Article 24(3) refers to the children of Chinese nationality born of Hong Kong permanent residents under categories (1) and (2). In the English version, it is clearly stated:

"Article 24

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

7. Hence, Article 24(3) of the Basic Law is quite clear. In order to satisfy this provision, Mr Lui Chun Ming must be the natural son of Mr Lui Sheung Kwan.

8. According to the facts as alleged by Mr Lui and Madam Ngan, I have great sympathy for them. In particular, Madam Ngan had experienced quite some unpleasant events. Mr Lui has also faithfully discharged the duties and responsibilities of a husband and a stepfather. However, it is clear that Mr Lui Chun Ming is not the natural son of Mr Lui. As to Madam Ngan, since she has not remained in Hong Kong continuously for seven years, she does not satisfy Acticle 24(2). Hence, her application is also not helpful to Mr Lui Chun Ming.

9. I take the view that Mr Lui Chun Ming's case clearly does not satisfy Article 24(3) of the Basic Law. Whatever the outcome of the pending appeal, Mr Lui Chun Ming will not benefit from it. Hence, the Removal Order issued by the Immigration Department has a reasonable basis. The application for leave to seek a judicial review by Mr Lui and Madam Ngan has no merits, It is refused. Madam Ngan has to wait until she has remained in Hong Kong for seven years before she can apply for Mr Lui Chun Ming to come and settle in Hong Kong.