XIE XIAOYI v. THE DIRECTOR OF IMMIGRATION

CACV 301/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 301 OF 1999

(ON APPEAL FROM HCAL Nos. 13 & 14/1998 (Consolidated))

_____________________________________________________

______________

J U D G M E N T

______________

Hon Mayo VP:

1. This is an appeal from the judgment of Keith JA sitting as an additional Judge of the Court of First Instance when he heard a consolidated Judicial Review.

2. There were altogether four applicants. The application of one of the applicants Lui Yiu-leung was adjourned. As to the remainder the Judge made Declarations that they were all permanent residents of HKSAR and had rights of abode. Consequential orders were made pursuant to this. The Director of Immigration appeals against these orders.

3. Although the applicants are the respondents in this appeal it is convenient to refer to them as the applicants and to refer to the appellant as being the Director of Immigration.

4. The issue which arises in this litigation is whether Article 24(3) of the Basic Law confers a right of abode in Hong Kong on persons born outside Hong Kong but who have been adopted by a Hong Kong permanent resident.

5. Article 24 provides:

6. All of the relevant facts have been agreed for all of the applicants. They have usefully been summarised in Mr Joseph Fok SC and Mr Jat Sew-tong's skeleton argument.

7. There is further agreement between the parties that the effect of an adoption order under Mainland Law is similar to that under the Adoption Ordinance, Cap. 290.

8. S. 13(1) of the Adoption Ordinance provides:

9. It will be appreciated from this that many of the incidents of parenthood flow from a child's natural parents to the adoptive parents on the making of an adoption order.

10. The Judge accepted that a literal reading of Article 24(3) favoured the interpretation advanced by the Director of Immigration. Clearly it is not the case that the applicants were "born outside Hong Kong of those residents listed in categories (1) and (2)".

11. Counsel for the applicants and for the Director of Immigration all sought to derive assistance from the approach adopted by Li CJ at 28 and 29 of Ng Ka-ling & Others v The Director of Immigration (1999) 2 HKCFAR 4 in interpreting the provisions contained in the Basic Law.

12. Miss Gladys Li SC for the 1st and 3rd applicants in HCAL 14/98 and Mr Szeto for the applicant in HCAL 13/98 both submitted that it was evident from this passage that the approach to be adopted in interpreting Article 24(3) was to have regard to the overall context of the provision and view it in the light of the relevant surrounding circumstances including having regard to commitments such as those laid down in the ICCPR, ICESCR and the U.N. Convention on the Rights of the Child.

13. It was only after considering all of this that an attempt should be made to place the textual meaning of the relevant words in the Article in question.

14. Mr Fok argued that the correct approach to adopt was to first consider the text of the Article and ascertain whether there were any ambiguities or omissions which rendered the meaning to be unclear. It was only then that it was necessary to have regard to the overall context and the surrounding circumstances. In any event what was not permissible was to ignore or disregard words which had been included in the Article or to substitute other words for them. As an illustration of this he submitted that you should not disregard the words "born ... of" in the Article. The words meant what they said.

15. He went on to submit that the failure of the Judge to adopt this approach had led to his reaching the wrong conclusion. This was illustrated by the passage appearing on p. 9 of his judgment.

16. What the Judge had done was to overlook the clear words to the effect that to qualify as a permanent resident you had to be born of someone coming within categories 1 or 2 of Article 24. There was no ambiguity in the words and their meaning was clear. It is difficult to fault the logic of Mr Fok's analysis.

17. Miss Li contended that if you considered the overall context of the Article it was apparent that what Article 24(3) was concerned with was parenthood. Once that was accepted the way was open to the Judge to consider parenthood in the context of adoption. She submitted that it was clear from s. 13 of the Adoption Ordinance that when an adoption order was made all the rights, duties and obligations relating to the child passed from the natural parents to the adopting parents.

18. This strictly speaking is not true. The various rights and duties are set out in the section and while they are undoubtedly extensive they are not all inembracing. There is certainly nothing in the section to suggest that the adopting parents can stand in the shoes of the natural parents for all purposes or that it could be in any way argued that the child had been born to or of the adopting parents.

19. Miss Li went on to argue that the Judge had been right to consider and attach importance to Article 23(1) of the ICCPR which holds that the family is "the natural and fundamental group unit of society and is entitled to be protected by society and the State". Similar provisions were contained in the ICESCR and U.N. Convention on the Rights of the Child.

20. Even if it were to be permissible to consider the terms of these Conventions they would not assist the applicants. There can be no question of the Director of Immigration being in breach of any of these Conventions as the relevant "family life" is only brought about if the child is permitted to reside in Hong Kong. This principle emerges from A.S. v Canada, Communication No. 68/1980 (31.3.81) UNHRC and X & Y v The United Kingdom, Application No. 7229/75 (15.12.77) EHRC.

21. I have no doubt that the correct approach to the interpretation of Article 24(3) is the approach adopted by Chan CJHC in Lui Sheung-kwan & Ngan Sau-ying v The Director of Immigration [1998] 1 HKLRD 265. He said at p 267:

22. In that case he was dealing with the rights of step children to come within the ambit of the Article. I can see no reason to depart in any way from the reasoning of Chan CJHC in the present case. It is very clear that adopted children are not born to or of their adopting parents and this being the case they do not satisfy the criteria laid down in the Article.

23. When the Director of Immigration refused the applications he placed reliance upon the definition of parent and child in Schedule 1 to the Immigration Ordinance, Cap. 115.

The Judge dealt with this at p. 14 of his judgment:

24. With the greatest respect I think that the Judge misconceived the position. As can be seen from this judgment I do not consider that adopted children come within the ambit of Article 24(3). There can accordingly be no question of para. 1(2)(c) of the Schedule being in any way in breach of the Article.

25. There is also nothing in Miss Li's submission that the failure to include Adoption Orders recognised by virtue of s. 17 of the Adoption Ordinance was discriminatory and contrary to the Basic Law. The fact that the Government has not taken any steps to effect legislative amendments to rectify the position is not germane to the issues which have to be determined on this appeal.

26. What is clear is that Article 24(3) does not confer a right of abode to adopted children and that in my view is decisive of this appeal. In my view the appeal should be allowed and the Declarations made by the Judge should be set aside.

Hon Leong JA:

27. The respondents in this appeal are of Chinese nationality and were born in the Mainland. They are adopted children of persons who are permanent residents of the Hong Kong Special Administrative Region. The respondent in HCAL 13/1998 is now in Canada. Of the respondents in HCAL 14/1998, one came to Hong Kong on a two-way permit but has since overstayed and the other two came here illegally. They are now remaining in Hong Kong without the authority of the Director of Immigration. The Director of Immigration has issued a removal order against them. The respondents in both cases claim that they have a right of abode in Hong Kong conferred on them under Article 24(3) of the Basic Law of the Hong Kong Special Administrative Region and are therefore permanent residents not subject to removal by the Director of Immigration.

28. Article 24(3) is as follows:

29. It is not in dispute that both or one of the adopted parents of the respondents are permanent residents of Hong Kong within the meaning of category (2) of Article 24. In the court below, the appellant contended that on its true construction, Article 24(3) confers the right of abode only on persons naturally born of Hong Kong permanent residents and adopted children of Hong Kong permanent residents are not included. The respondents on the other hand contended that the construction put by the appellant was too literal and the true focus of Article 24(3) was parentage and on that construction, adopted children are included. They claimed that by reason of their adoption, they are entitled to the right of abode.

30. The Judge below acknowledged that a literal construction of Article 24(3) favoured the view that category (3) is confined to persons naturally born of parents with category (1) or (2). However, he considered this was too "literal, technical, narrow or rigid" a construction which the courts had been told to eschew. His conclusion was that the true focus of Article 24(3) was the parentage of the persons claiming permanent residence and the relationship of parent and child in that category was not limited to the relationship which arose as a result of birth. Thus, Article 24(3) includes adopted children of Hong Kong permanent residents.

31. The crucial question in this appeal is therefore on its true construction, whether Article 24(3) of the Basic Law confers the right of abode on children born outside Hong Kong but have been adopted by a Hong Kong resident.

32. The appellant before us maintains the same view as contended below and relies on Lui Sheung-kwan & Ngan Sau-ying v The Director of Immigration [1998] 1 HKLRD 265 to support the construction that the focus of Article 24(3) is on birth. The appellant submits that the Judge's construction of Article 24(3) is wrong.

33. The respondents argue in support of the Judge's view and maintain that support for this view can be found in s. 13(1) of the Adoption Ordinance, Cap. 290 which creates the adoptive relationship and extinguishes the right and duties of a natural parent upon the making of an adoption order and s. 2 of the Immigration Ordinance, Cap. 115 which included in the definition of "child" a child adopted in Hong Kong for the purpose of Hong Kong permanent residence. It is further submitted for the respondents that support is also to be found in Articles 17, 23, 24 and 26 of the International Covenant of Civil and Political Rights (ICCPR) and Article 21 of the U.N. Convention on the Rights of the Child which extend to Hong Kong.

34. The approach in interpreting the Basic Law is stated in Ng Ka-ling & Others v The Director of Immigration (1999) 2 HKCFAR 4. There Li CJ said that the courts should avoid a literal, technical, narrow or rigid approach and must consider the context which is to be found in the Basic Law itself as well as relevant extrinsic materials including the Joint Declaration but he also said this:

35. Thus the approach to interpreting category (3) should not ignore the language of the text.

36. On the language of Article 24(3), my view is that it is unambiguous and more than clear that the words "born ... of" mean "birth". The Chinese original text "居民 ... 所生 ... 的 ... 子女" meaning "the children that the resident gave birth" makes it abundantly clear that the words mean parent and child relationship arising out of birth and not otherwise. In Lui Sheung-kwan & Ngan Sau-ying v The Director of Immigration, Chan CJHC drew the distinction that 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 Chief Judge was of the view that the emphasis of this provision is on children "born of" them and not their children "outside Hong Kong". His conclusion was that Article 24(3) refers to the children of Chinese nationality born of Hong Kong permanent residents under categories (1) and (2).

37. It is argued for the respondents that the Chief Judge had concentrated on birth in relation to category (1) only and in category (3), he focussed on parentage because he referred to the children of the residents in category (1) and (2). It is submitted that this supports the respondents' case rather than the appellant's.

38. My view is that Lui's case decided that parentage derived from birth of the child and not step parental relationship or any other parent and child relationship is the focus of category (3), that is, "birth" was the principal element. Support for this construction may be found in Chan Kam-nga & Others v Director of Immigration [1999] 2 HKCFAR 82 where Bokhary PJ does not disagree with the view taken by the Chief Judge, Nazareth VP and Mortimer VP that "born ... of" in Article 24(3) relates to "'birth" (at p. 89):

39. Thus, it seems to me that although the time and place of birth, the nationality, parentage and birth itself of the person claiming permanent residence in Hong Kong are all elements of category (3), the principal focus is on birth. It is the parent and child relationship created through natural birth and not otherwise that gives rise to the right of the person claiming under category (3). Parentage derived from adoption or step parentage is clearly not contemplated.

40. The operation of s. 13 of the Adoption Ordinance does not make an adoptive parent a natural parent. S. 13(1) creates from the date of the adoption order a new family unit by substituting the natural relationship by the newly created adoptive relationship. While this makes the adoptee in law a member of the family of the adopter, and for the purpose of his custody, maintenance and education and for other purposes such as succession on intestacy, treats him as if he were born in lawful wedlock of the adopter but this does not make him a person born naturally of the adopted parents. Subsection (3) which puts the adoptee within the prohibited degrees of consanguinity also does not make the adoptee a naturally born child of the family. It would be absurd to suggest that for the purpose of Article 24(3) the adoptee could be deemed to have been born on the date of the adoption order. Article 24(3) confers permanent residence through parentage derived naturally and not by way of a legal fiction. The law relating to adoption in Hong Kong does not assist the respondents.

41. The construction that Article 24(3) is limited to naturally born children is reinforced by the SCNPC Interpretation of Article 24(2)(3) adopted by it on 26 June 1999. Paragraph 2 of the Interpretation states as follows:

42. This Interpretation specifically refers to the "time of birth" of the person claiming under Article 24(3). The parents in existence at the time of birth of a person who is subsequently adopted by another person must be his natural parents. The words "at the time of birth" cannot be taken to mean the time when the person was adopted or when he was deemed by law to have been born in lawful wedlock. The Interpretation has clearly not included parentage other than natural parentage. It is binding in all cases involving a determination on whether a person is within category (3). This goes to support the construction to exclude adopted persons.

43. That being so, the Judge's construction cannot be right and the respondents would necessarily not be qualified for permanent residence under category (3).

44. It is argued for the respondents that the interpretation of Article 24(3) excluding adopted children is to interfere with family life and inconsistent with the provisions of Article 17 and 23 of the ICCPR. Reliance is also placed on Article 8 of the European Convention on Human Rights and Article 21 of the United Nations Convention on the Rights of the Child. Article 17 prohibits arbitrary unlawful interference with the family by the State. Article 23 provides for entitlement of the family to protection by the State. Article 8 guarantees a right to respect for family life. The appellant relying on A.S. v Canada, Communication No. 68/1980 (31.3.81) UNHRC, submits that Article 17 and Article 23 are predicated on the requirement of the existence of an established family life and these provisions do not oblige the Government to re-establish family life already impaired. Relying on X & Y v The United Kingdom, Application No. 7229/75 (15.12.77) EHRC, the appellant further submits that Article 8 does not oblige the Government to grant a foreign national citizen entry to its territory for the purpose of establishing a new family relationship. The respondents argue that these cases were decided on their own facts and do not establish matters of principle.

45. In my view, the purpose of Article 24 of the Basic Law is to control influx of immigrants to Hong Kong and impose limits on the categories of persons who are permanent residents in Hong Kong. It is the intention to include only children who are born of parents who are permanent residents here by virtue of their own birth or residence here for 7 years. If that were not the intention, category (3) would not have included the words "born of". The Government is not obliged under the Covenants to unite families which are split or to allow those with no right of abode to enter to establish a family. The relevant provisions of the Covenants or the Convention do not protect those who have no established family life here and those who have no right to enter. In any case the European Convention has no application in Hong Kong.

46. It is argued for the respondents that it was wrong for the Government to maintain in the legislation paragraph 1(2)(c) of Schedule 1 of the Immigration Ordinance which has been relied on for refusing the claims of the respondents.

47. This paragraph reads:

48. It is submitted that this provision is inconsistent with the Basic Law and indeed the Judge held that it limits the application of Article 24 to children adopted in Hong Kong under the Adoption Ordinance and had declared it "contravenes the Basic Law, because it denies the right of abode in Hong Kong to adopted children who fall within Article 24."

49. However, the Judge's Declaration to that effect was made on the basis that Article 24(3) confers the right of abode on adopted children. But as category (3) does not include adopted children, the basis of the Declaration is no longer correct. In any case paragraph 1(2)(c) is irrelevant to the construction of Article 24(3). Thus whatever stance taken by the Government, rightly or wrongly, on this legislation is of no avail to the respondents in their pursuit for permanent resident status.

50. For these reasons I too would allow the appeal and set aside the Declarations and orders made in the court below.

Hon Rogers JA:

Introduction

51. This case involves applications on behalf of three applicants to challenge decisions of the Director of Immigration which turn upon whether the Immigration Ordinance provides that the applicant children are permanent residents and in default whether the effect of the provisions of category (3) of Article 24(2) of the Basic Law confers the right of abode by natural birth only, as is contended for by the appellant Director of Immigration or whether that provision, apart from conferring the right of abode by birth, is also wide enough to confer the right of abode on adopted persons, as contended for by all the respondents and accepted by the judge below.

The applicants

Xie Xiaoyi

52. Mr Tse Ka Shu and Madam Siu Yiang Wa were married in November 1979 in Shantou city, Guangdong province. From the papers which have been filed, it would appear that they have been in Hong Kong for some time. They are residents of Taikoo Shing and acquired permanent resident status in June 1988. They manage two active and thriving businesses in Hong Kong which were established in 1984 and 1990 respectively.

53. Paragraph 4 of the Grounds on which Relief is sought which is contained in the Amended Notice of Application for Leave to apply for Judicial Review states that :-

The applicant Xie Xiaoyi was born in Shantou city, Guangdong province.

54. Whilst both paragraph 4 as quoted above and the adopting father Tse Ka Shu's affirmation made in support of the application in February 1998 state that the applicant was the daughter of Mrs Tse's sister and brother-in-law, the adoption papers filed in the Mainland state that the child's natural parents are the younger brother and the sister-in-law of the adopting mother. Be that as it may, the papers show that Xie Xiaoyi was adopted by Mr and Mrs Tze on 17 August 1995 and that both the birth and adoption were notarised on the same day, namely 1 September 1995. At that time, Xie Xiaoyi was living at the same address as her natural parents.

55. It would appear that Xie Xiaoyi did not come to Hong Kong until August 1997. On 23 September that year, her adoptive parents, Mr and Mrs Tse, applied for verification of Xie Xiaoyi's eligibility for a permanent identity card. That application was rejected by a letter of 10 November 1997 on the basis that the adoption had taken place in the Mainland and that since under the provisions of paragraph 1(2)(c) of Schedule I of the Immigration Ordinance, Cap. 115, the relationship of a parent and adopted child is taken to exist between a parent and a child adopted only in Hong Kong under an order made by a court in Hong Kong under the Adoption Ordinance, Cap. 290, the claim that the status of permanent residence had been achieved under paragraph 2(c), Schedule I of the Immigration Ordinance could not be established.

Tam Nga-yin

56. Tam Nga-yin was born in the Mainland in November 1986. She was adopted in the Mainland on 12 February 1987. Her adoptive mother had been born in Hong Kong and thus enjoyed permanent resident status. Tam Nga-yin came to Hong Kong in July 1996 on a two-way permit. She outstayed the period of the permit and thus in February 1997, she fell into the category of an "overstayer". On 23 August 1997, the Director of Immigration determined that Tam Nga-yin did not enjoy the right of abode in Hong Kong and made the decision that she should be removed from Hong Kong.

Chan Wai Wah

57. Chan Wai Wah was born in the Mainland on 5 February 1997. He apparently came to Hong Kong prior to adoption in April 1997 and some two weeks later, on 22 April 1997, his natural parents gave consent for his adoption. The adoption took place in the Mainland. His adoptive father had become a permanent resident in Hong Kong in 1985. On 20 June 1997, the Director of Immigration made the decision that Chan Wai Wah did not enjoy the right of abode in Hong Kong and determined that he should be removed. That determination that Chan Wai Wah should be removed was maintained after 30 June 1997.

The status of permanent residence

58. As was submitted by Miss Gladys Li SC, who appeared on behalf of Tam Nga-yin and Chan Wai Wah, it is to the domestic legislation that attention must first be paid. Section 2(1) of the Immigration Ordinance, Cap. 115 defines "Hong Kong permanent resident" as meaning a person who belongs to a class or description of persons specified in Schedule I of the Ordinance. The relevant provision of Schedule I, for present purposes, is paragraph 2(c). Paragraph 2 insofar as is relevant reads as follows :-

On the face of that provision, it would seem that paragraph 2(c) only provides for persons of Chinese nationality who are born outside Hong Kong to be permanent residents if one of their parents at the time of their birth was a Chinese citizen.

59. In my view, the position is so clear under paragraph 2(c), that I can see no basis for reading the word "parent" as it appears in that paragraph otherwise than as a reference to the natural parent.

60. Reference was made in the course of argument to the Adoption Ordinance. Although children whose adoptions are recognised under the Ordinance acquire rights, their position is not equated to that of natural children. Neither is their status as an adopted child backdated prior to the date of adoption.

The Adoption Ordinance

61. Section 17(1) of the Adoption Ordinance provides :-

62. It has been conceded both in this court and in the court below that this section applies to the present adoptions. Thus, to determine the effect of the present adoptions under the Adoption Ordinance, it is necessary to consider other provisions of the Ordinance.

63. Section 13(1) provides :-

64. The first point to note is that the adoption order under this sub-section specifically takes effect only upon the adoption order being made and is in relation to the future. Importantly, the section does not provide that the adoption order should have any backdating effect. It should also be pointed out that the aspects relevant under this sub-section are specifically set out, namely custody, maintenance and education as well as the right to give consent to marriage. Hence, the argument that was raised that this sub-section creates a new family unit from the date of making the adoption order must be considered with caution since the scope of the section is not all encompassing.

65. It was argued that the policy of adoption is to substitute, for all purposes, the adoptive parents in place of the natural parents. But this is only so in some respects. It is not so in respect of others.

66. Section 13(3) brings within the prohibited degrees of consanguinity an adopter and the person whom he or she has been authorised to adopt. That provision relates only to the adoptive parent. Hence, children of the adoptive parent do not come within the prohibited degrees of consanguinity.

67. Likewise, the provisions of section 15 of the Adoption Ordinance relating to the devolution of property on the intestacy of the adopter, the adopted person or any other person relates to devolution as if the adopted person were the child of the adopter, born in lawful wedlock, and were not the child of any other person. Significantly, although this section, as indeed many in the Adoption Ordinance, is modelled on the Adoption Act 1950, there is no corresponding provision to section 14(1) of the Adoption Act 1950 which read :-

68. Hence in this respect, too, the position of an adopted child will be different from that of a natural child. Indeed, the adopted child in Hong Kong appears to be in a position which is even less assimilated to that of a natural child than was the case under the Adoption Act 1950.

69. In summary, therefore, the provisions of the Adoption Ordinance are limited. They do not extend to a blanket treatment in law of the adopted child as if it had been born a child of the marriage of the adoptive parents. In this respect, it would seem that the law of adoption in Hong Kong has remained stationary being still modelled on the Adoption Act 1950 which was the law pertaining in England and Wales half a century ago. In contrast, it can be noted that the Adoption Act 1976 contains in section 39 a provision, the effect of which is to treat the child "in law" as if he had been "born as a child of the marriage". Thus, seemingly, an all encompassing provision with a backdating effect.

70. Whilst therefore, the nature of adoption as recognised by the law of Hong Kong gives the adopted child rights, those rights are by no means all encompassing as they might be if the legislation had been similar to current United Kingdom legislation.

71. The net effect is, therefore, that the use of the word "parent" as used in paragraph 2(c) of Schedule I, does not dictate that the reference applies or must be construed as applicable to adoptive parents.

72. It is pertinent at this point to make reference to paragraph 1(2)(c) of Schedule I of the Immigration Ordinance under the heading Interpretation. That reads :-

73. I find it difficult to see how, as it seems was thought, the provisions of paragraph 1(2)(c) could have effect upon the provisions relating to the status of permanent residence contained in paragraph 2(c). Paragraph 1(2)(c), relates to the existing or current relationship of parent and child. Paragraph 2(c) relates to a child (person) born to a parent, in other words, the historical event. Whatever relationship might be deemed to exist under the Interpretation section of Schedule I, this would not back date to mandate that the child should be deemed to have been born to a person who was not its natural parent even if for the purposes of assessing the current relationship, they should be treated as parent and child. Since paragraph 2(c), in my view, relates entirely to the historical event of birth, paragraph 1(2)(c) is irrelevant to its construction.

74. Insofar as a parallel was sought to be drawn to the previous paragraph 1(2)(b), I consider that the two provisions are quite different and the fact that one provision, paragraph 1(2)(b), was applicable to the whole of paragraph 2 did not dictate that the other, paragraph 1(2)(c) was as well.

75. The further difficulty facing the applicants is that even if one could somehow construe paragraph 2(c) as applying to adopted children, insofar as that was to be achieved by means of paragraph 1 as being the interpretation provision, such a construction would be excluded in the present cases because the adoptions were not Hong Kong adoptions.

76. For that reason, the applicants fall back upon the provisions of the Basic Law. It is said that if the legislation, when properly interpreted, fails to give effect to one of the fundamental rights enacted in the Basic Law, then it must be invalid. The applicants point to the fact that one of the most fundamental of rights, namely the right to be treated as a permanent resident, is contained in Article 24 and specifically in Article 24(2)(3). That reads :-

77. That provision of the Basic Law has been the subject of an interpretation by the Standing Committee of the National Peoples' Congress and the subject of a subsequent decision of the Court of Final Appeal, albeit in relation to different facts.

78. Without having to refer to the interpretation and the subsequent decision, I find it difficult to see how those words of Article 24(2)(3) are not on the face of them clear, directing the inquiry as to whether the parents who gave birth to the person in question fell within the categories (1) and (2). On the face of the matter, paragraph 4 of the grounds on which relief is sought in respect of Xie Xiaoyi would seem to be a reflection of the meaning of the words "born of" or, as used in that paragraph, "born by".

79. The judge below appreciated that construction of the wording of Article 24(2)(3). At page 9G of his judgment, he said :-

80. The conclusion to which he referred was that the words "born ... of" can only refer to "persons naturally born of Hong Kong permanent residents".

81. However, on the footing that the words "born outside Hong Kong of" showed an intention to confer the right of abode in Hong Kong on persons of Chinese nationality whose parents are Hong Kong permanent residents, even if the person claiming the right of abode was born outside Hong Kong, the judge considered that no violence would be done to the language of the Article if the phrase "born outside Hong Kong of" was "looked at as a whole" and the Article were understood as if it read "persons of Chinese nationality born outside Hong Kong whose parents are residents listed in categories (1) and (2)". On that footing, it was thought possible to interpret the word "parents" as including adoptive parents and apply the criteria as at the time the decision is made or possibly as at the time the adoption takes place.

82. In argument, Miss Gladys Li considered that the words "children of" could be substituted for the words "whose parents are". In this way, it was argued that the interpretation of the Article would be in accordance with its concept.

83. My first observation in respect of this form of interpretation is that if a construction is put upon a statute which requires the interpolation of words, the difficulty automatically arises that the interpretation is not of the original words but of something else.

84. Although in the case of Ng Ka Ling and others v. The Director of Immigration [1999] 2 HKCFAR 4 at p.28H, the Chief Justice of the CFA said :-

He went on to say at p.29A :-

85. This, in my view, emphasises the difficulty of interpolating words into the provisions which define the classes of permanent residents in the Basic Law. The context, as the Chief Justice pointed out, no doubt, includes the traditions and usages which may have given meaning to the language used; the provisions of the international covenants, as applied to Hong Kong, in particular, the International Covenant on Civil and Political Rights (the ICCPR) are also of relevance. But in the last resort, it is to the words of the definition of the class to which reference must be had.

86. Indeed, the interpolation of the words, as put forward in the judgment in the court below and in argument in this court, seems to me to cause as many problems as it might solve. The opening words of category (3) of Article 24(2) relate to persons of Chinese nationality. The argument that this category of permanent residents includes children who would not qualify otherwise than by adoption immediately raises the question as to how the criteria of Chinese nationality is to be judged : If it is to be judged upon parentage, is the deciding factor be the nationality of the natural parents or the nationality of the adoptive parents?

87. If it is the natural parent's nationality which is of importance for this part of the Article, it is difficult to see a basis on which the residential qualifications of the adoptive parents should be taken as determinative under the remaining part of the Article.

88. If it is the nationality of the adoptive parents which is said to be relevant as regards determining the nationality of "persons of Chinese nationality", then the first point to note would be that the nationality can only arise or be determined upon adoption and not upon birth. The nationality would therefore be something which was subject to change. Indeed, in the final analysis it might even be said to be irrelevant because, if one of the adoptive parents fell within category (1) or (2) all the criteria of category (3) might be said to be satisfied by that very fact. It seems to me, that such an interpretation could not accord with the meaning of the Article.

89. Indeed any interpretation of Article 24(2)(3) which would involve determining the right of residence at a later time than that of the birth of the individual would be out of keeping with the interpretation of the Article as has been made by the Standing Committee.

90. The interpretation by the Standing Committee was given in the context of cases involving parents who subsequently acquired a right of abode in Hong Kong. Nevertheless, the material part of the interpretation reads as follows :-

91. It seems to me that the Standing Committee interpreted this provision in the same way as I consider is the natural meaning, namely the status of permanent residence must be acquired under category (3), if at all, at birth.

92. It should be mentioned that reliance was placed upon paragraph 1(2)(c) not so much as a direct means of interpretation of Article 24(2)(3) of the Basic Law, but as indicative of the fact that it was the Government's stance that Article 24(2)(3) must comprehend adopted children within its scope. It was said that the Government had had many occasions on which to consider amending paragraph 1(2)(c) of Schedule I and to delete it altogether had it considered that an adoptive relationship did not qualify an adopted child for permanent resident status but that it had not done so.

93. Obviously, the Director of Immigration has proceeded on the basis that an adoption order made in Hong Kong would have the effect of permitting a Chinese national adopted by a permanent resident to claim permanent residence. In other countries, in a corresponding situation that might be the result : see, for example, the case of Re B (a minor) [1999] 2 AC 136 when the principles on which a judge should act in approving a domestic adoption order were considered specifically in relation to a situation where the infant stood to gain a right of abode.

94. But in Hong Kong, the constitutional and statutory positions are different. The Director of Immigration was thus wrong, in my view, to have referred to paragraph 1(2)(c) in his letter of 10 November 1997 in the case of Xie Xiaoyi. That paragraph was irrelevant to the consideration of paragraph 2(c) of Schedule I.

95. The provisions of paragraph 1(2)(c), however, could be relevant in relation to paragraph 3 and paragraph 5 of Schedule I of the Immigration Ordinance. These relate to the making of a declaration by a parent. Thus construed, I see no immediate reason why they should necessarily be in conflict with any provision of the Basic Law.

The International Covenant on Civil and Political Rights (ICCPR)

96. Reliance was placed upon the provisions of Articles 23, 24 and 26 of the ICCPR and indeed on Articles 20 and 21 of the United Nations Convention on the Rights of the Child. Whilst particularly Article 21 of the United Nations Convention on the Rights of the Child would seem to me to make it more difficult to justify the overall effect of preventing residents of Hong Kong adopting children who were not resident in Hong Kong and automatically being able to bring them back to Hong Kong, I find nothing in these provisions which require that the status of permanent residence must be accorded to children adopted abroad.

97. Without minimising the importance of the family unit which is crucial to a stable society, it has to be recognised that the act of adoption is the voluntary act of the adopting parents. As such, if prospective adopters are to undertake obligations and responsibilities in relation to a child, they must first ensure that they are in a position to fulfil their chosen task. In this respect, the prospective adoptive parents have to consider not merely personal considerations such as finance and opportunity but also the ability to be able to look after that child and to take the child wherever they intend to reside.

98. Article 23(2) of the ICCPR refers to the right of men and women of marriageable age to marry and found a family. That is a right to procreate. That should be untrammelled. Adoption is, however, always subject to rules and often to consent either by a governmental or judicial body. There is no absolute right to adopt and neither Article 23(2) of the ICCPR nor Article 21 of the United Nations Convention on the Rights of the child specify that there should be one. Indeed, Article 21(a) of the latter covenant stipulates that there should be proper controls in respect of adoptions.

99. Whilst arguments were raised that the effect of the provisions in failing to give a right of permanent residence to an adopted child would be to split families that, in my view, is not correct. A consideration of the facts relating to the individual cases in this instance demonstrates that it is by no means clear that the adopted children had been living together with their adoptive parents from the time of adoption. In one instance, of course, the adopted child came into Hong Kong illegally prior to adoption but in the others, the child remained in the place of birth, and not apparently with the adoptive parents, for a significant period of time. There were thus no family units within the meaning of Article 23(1) of the ICCPR prior to the children being brought to Hong Kong.

100. A breach of the provisions of this Article and possibly Article 21 of the United Nations Convention on the Rights of the Child might be occasioned if adoptive parents had lived abroad with an adopted child as a family unit for a significant period of time such that a family unit would have been formed and they were denied permission for the adopted child to come to Hong Kong with them. But that is a very different situation from the present. Furthermore, and importantly as regards the interpretation of Article 24(2(3), even in a situation like that, the Covenants do not dictate that the adopted child who has become part of the family unit should be a permanent resident, the provisions would be satisfied provided the family were not split.

101. In the final analysis, the acquisition of the right of permanent residence is not dependent upon the choice of individuals who are able to adopt in jurisdictions outside Hong Kong.

102. In my view, therefore, this appeal should be allowed and the declarations and orders made in the court below be set aside.

Hon Mayo VP:

103. This being the case this appeal is allowed and the Declarations and orders made by the Judge are set aside. We further make an order nisi that there be no order for costs save for the legal aid taxation of the applicants' costs.