XIE XIAOYI v. THE DIRECTOR OF IMMIGRATION

1998 HCAL No. 13

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

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J U D G M E N T

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Introduction

1. Art. 24(3) of the Basic Law is proving to be fertile ground for constitutional litigation. It has been held to confer the right of abode in Hong Kong on the illegitimate children of Hong Kong permanent residents, but not on the stepchildren of Hong Kong permanent residents. It has been held to confer the right of abode in Hong Kong on the children of Hong Kong permanent residents even if neither of their parents were Hong Kong permanent residents at the time of their birth. The court is now concerned with adopted children. Does Art. 24(3) confer the right of abode in Hong Kong on children who were born outside Hong Kong but who have been adopted by a Hong Kong permanent resident?

The relevant provisions

2. Art. 24 of the Basic Law (so far as is material) provides:

3. The categories of persons who were Hong Kong permanent residents prior to 1st July 1997 had been identified in Sch. 1 to the Immigration Ordinance (Cap. 115). That schedule had to be repealed and substituted by one which complied with, and implemented in detail the provisions of, Art. 24 of the Basic Law. Accordingly, a new Sch. 1 was substituted by section 5 of the Immigration (Amendment) (No. 2) Ordinance 1997 (No. 122 of 1997). It came into effect on 1st July 1997. Para. 2 of the new Sch. 1 reads as follows:

The words "if the parent had the right of abode in Hong Kong at the time of the birth of the person" in para. 2(c) were declared in Chan Kam Nga v. The Director of Immigration (1999) 2 HKCFAR 82 to contravene Art. 24 of the Basic Law, and to be unconstitutional, null and void for that reason.

4. In addition, the new Sch. 1 identified the circumstances in which the relationship of parent and child is taken to exist. Thus, in relation to adopted children, para. 1(2)(c) of the new Sch. 1 reads as follows:

The Applicants

5. There are four Applicants in all. In the case of one of them, Lui Yiu Leung, a boy now aged 5, there is an issue as to when his adoption took effect. Since it is believed that that may have an effect on how he may exercise such right of abode in Hong Kong as he may have, his case has been adjourned.

6. The circumstances of two of the other Applicants, Tam Nga Yin and Chan Wai Wah, are identical in all respects but one. They are both Chinese nationals who were born on the Mainland. They were both adopted in accordance with the law prevailing on the Mainland prior to the coming into effect of the Basic Law on 1st July 1997. At least one of their adoptive parents had become a Hong Kong permanent resident by the time of their birth. They were both brought to Hong Kong prior to 1st July 1997. One came on a two-way exit permit which has since expired. The other was brought into Hong Kong clandestinely otherwise than through an immigration control point. In due course, their presence in Hong Kong was revealed to the Department of Immigration. Eventually, orders were made by the Director of Immigration for their removal from Hong Kong.

7. The only difference between them relates to the dates on which their removal orders were made. In the case of Tam Nga Yin, a girl now aged 12, the removal order was made after 1st July 1997, i.e. at a time when it is claimed that the right of abode had already been conferred on her. Accordingly, the decision which is challenged in her case is the removal order itself. It is said that that removal order should not have been made, because she had by then acquired the right of abode in Hong Kong. In the case of Chan Wai Wah, a boy now aged 2, the removal order was made prior to 1st July 1997. It is not said that the removal order could not have been made then. Accordingly, the decision which is challenged in his case is the Director of Immigration's current proposal to put the removal order into effect. It is said that he cannot do that because the boy has now acquired the right of abode in Hong Kong.

8. The remaining Applicant, Xie Xiaoyi, a girl now aged 3, is also a Chinese national who was born on the Mainland. Like the other Applicants, she was adopted in accordance with the law prevailing on the Mainland prior to 1st July 1997, and in her case both her adoptive parents had become Hong Kong permanent residents by the time of her birth. The difference between her and the other Applicants is that she is not in Hong Kong. An application was made on her behalf in September 1997 for verification that she was eligible for a Hong Kong permanent identity card. In effect, an application was being made for confirmation that she had the right of abode in Hong Kong. The Director of Immigration refused to confirm that she was eligible for a Hong Kong permanent identity card. He did so on the basis that her adoption was not a Hong Kong adoption as required by para. 1(2)(c). That is the decision challenged in her case.

The issues

9. Two principle issues arise:

A further issue arises in relation to Xie Xiaoyi. It is said on her behalf that if she has not acquired the right of abode in Hong Kong under Art. 24(3), she nevertheless has acquired it under Art. 24(6).

The law of adoption in Hong Kong

10. Before turning to an examination of these issues, it is necessary to identify the effect in Hong Kong law of an adoption order. In summary, section 13 of the Adoption Ordinance provides that an adoption order has the effect of transferring to the adoptive parents the rights and duties of the natural parents "in relation to the further custody, maintenance and education" of the child. In those areas, the child is treated as if he or she had been born to the adoptive parents in lawful wedlock. Section 17 deals with overseas adoptions. In summary, it provides that an overseas adoption is to be treated as having the same effect in Hong Kong as an adoption order in Hong Kong, provided that the adoption was valid in that country, and that the effect of the adoption in that country was to give the adoptive parents greater rights than the natural parents. Mr. Geoffrey Ma S.C. for the Director of Immigration accepted that the effect under Mainland law of a Mainland adoption order was the same as the effect under Hong Kong law of a Hong Kong adoption order.

11. I have referred to the fact that the Adoption Ordinance speaks of "the future custody, maintenance and education" of the child. The bringing up of a child involves much more than that. It goes without saying that successful parenting involves love, affection and support as well. It may be that the Adoption Ordinance takes these things for granted. Perhaps the Adoption Ordinance deliberately uses impersonal language because it is addressing what the legal effect of an adoption order is. But even though the transfer of parental duties from the natural parents to the adoptive parents is limited to those areas, I have little doubt that what is intended is the severance of the legal relationship between the child and his or her natural parents, and the creation of a new legal relationship between the child and his or her adoptive parents.

Construing Art. 24

12. In Ng Ka Ling v. The Director of Immigration (1999) 2 HKCFAR 4, it was said at p. 29A-B:

As for language, it was said at p. 28H:

As for purpose, it was said at p. 28G:

As for context, it was said at p. 28H-I and p. 29B-C:

The proper construction of Art. 24(3)

13. The Respondent's argument, developed by Mr. Ma with his usual conciseness, could not be more simple. The words "born ... of" in Art. 24(3) are clear and unambiguous. They can only refer to persons naturally born of Hong Kong permanent residents. How could a child adopted by a Hong Kong permanent resident be said to be "born ... of" that resident? This argument finds support in a comment made by Chan CJHC in Lui Sheung Kwan v. The Director of Immigration [1998] 1 HKLRD 265. In that case, the issue was whether Art. 24(3) conferred the right of abode in Hong Kong on the stepchild of a Hong Kong permanent resident. At p. 267F, Chan CJHC said:

If a step child cannot be said to be "born ... of" his or her stepparents, as Chan CJHC held, an adopted child cannot be said to be "born ... of" his or her adoptive parents either.

14. A literal reading of Art. 24(3) favours this conclusion. But the courts have been told to eschew "a literal, technical, narrow or rigid approach", and my starting point is to identify the true focus of Art. 24(3), when seen in the context of the other categories of persons upon whom Art. 24 confers the right of abode in Hong Kong. Arts. 24(1) and 24(2) confer the right of abode in Hong Kong on two categories of Chinese citizens. Art. 24(1) relates to those Chinese citizens who were born in Hong Kong, and Art. 24(2) relates to those Chinese citizens who have ordinarily resided in Hong Kong for at least seven years. In my view, the purpose of Art. 24(3) is to confer the right of abode in Hong Kong upon persons of Chinese nationality who were born outside Hong Kong but whose parents fell within the categories identified in Arts. 24(1) and 24(2). Although the question in this case is whether those parents have to be the natural parents of the person claiming the right of abode in Hong Kong, the fact that the focus of Art. 24(3) is on parentage goes some way towards answering that question.

15. Against that background, I turn to the meaning of the words "born outside Hong Kong of" in Art. 24(3). Are the words "born ... of" intended to refer to the nature of the relationship of parent and child in Art. 24(3)? In other words, is the relationship of parent and child in Art. 24(3) limited to the relationship which arises as a result of birth? Or does the fact that the phase used is "born outside Hong Kong of" show that the words are intended to serve a different purpose altogether, namely 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 in Hong Kong was born outside Hong Kong? On this footing, Art. 24(3) would mean:

This, in effect, is the construction advanced by Ms. Gladys Li S.C. for two of the remaining Applicants, and her submissions on the topic were adopted by Mr. Patrick Szeto for the other Applicant.

16. Such a construction has obvious attractions: it would give effect to the natural and ordinary meaning of the word "born", but limiting its application to the place of birth of the person claiming to have the right of abode in Hong Kong, while preserving the true focus of Art. 24(3), namely the parentage of the person claiming to have the right of abode in Hong Kong. I acknowledge that this construction is not linguistically attractive if one concentrates on the two words "born ... of", but I do not see any violence being done to the language of Art. 24(3) if the phase "born outside Hong Kong of" is looked at as a whole.

17. This construction - the core of which limits the application of the word "born" to the place of birth of the person claiming to have the right of abode in Hong Kong - is, I believe, if not supported by, at least not inconsistent with, other provisions in Art. 24. Thus, in Art. 24(1) we find the phase "born in Hong Kong". It is true that parentage does not come into Art. 24(1) at all, and its relevance to the proper construction of Art. 24(3) is therefore marginal. But the fact remains that the phrase "born in Hong Kong" in Art. 24(1) undoubtedly refers only to the place of birth of the person claiming to have the right of abode in Hong Kong, because the focus of Art. 24(1) is on the place of birth only. Again, in Art. 24(5) we find the phrase "born in Hong Kong of". Art. 24(5) serves much the same purpose in relation to persons not of Chinese nationality as Art. 24(3) does in relation to persons of Chinese nationality. Leaving aside the age qualification, Art. 24(5) confers the right of abode in Hong Kong on persons not of Chinese nationality "born ... of" persons who come within Art. 24(4), just as Art. 24(3) confers the right of abode in Hong Kong on persons of Chinese nationality "born ... of" persons who come within Arts. 24(1) and 24(2). The difference is that whereas the right of abode in Hong Kong is conferred by Art. 24(5) only on persons who were born in Hong Kong, Art. 24(3) confers the right of abode in Hong Kong, even if the category of persons to whom Art. 24(3) applies were born outside Hong Kong.

18. Not without some hesitation, I have concluded that the Applicants' construction of Art. 24(3) is preferable. I bear in mind that the language of Art. 24(3) should be construed "in the light of any ascertainable purpose and the context". In those circumstances, it should be construed, if possible,

The construction of Art. 24(3) contended for by Mr. Ma could result in the separation of the child from its adoptive parents, and the separation of the child from any of the natural children of its adoptive parents, i.e. its new brothers and sisters. It would mean that adoptive parents would be less able to perform their duties in relation to the future custody, maintenance and education of their adopted child than the natural parents of a child. This would be so even though the law of Hong Kong seeks to treat them, for all practical purposes, as if they were the natural parents of the child. It would mean that the new legal relationship created between the child and its adoptive parents would be denied one of its most fundamental attributes, namely the opportunity to live together in that part of the People's Republic of China in which at least one of the child's adoptive parents is a permanent resident. I regard these considerations as powerful support for the construction of Art. 24(3) which Ms. Li and Mr. Szeto advanced.

19. In the interests of completeness, I should add that I have derived little assistance in construing Art. 24(3) from the authorities or from the amendments made to the Immigration Ordinance. As for the Immigration Ordinance, it is possible, I suppose, that those who drafted the new Sch. 1 and the legislature which enacted it thought that Art. 24 related to adopted children. Why enact para. 1(2)(c) if they thought that adopted children were not included in Art. 24? And if they thought that adopted children were included in some of the categories in Art. 24 but not others, why did they not limit para. 1(2)(c) to those of the categories of persons in para. 2 of Sch. 1 in which they thought adopted children were included? However, I do not regard the presence of para. 1(2)(c) in Sch. 1 as a permissible aid to the construction of Art. 24. For example, it may be that para. 1(2)(c) was included, not because it was thought that Art. 24 included adopted children, but in case it was subsequently held by a court that it did.

20. As for the authorities, it is crucial to remember Li CJ's wise words in Ng Ka Ling at p. 29D:

Thus, some support for the Applicants' construction of Art. 24(3) might be derived from what Bokhary PJ said in Chan Kam Nga at p. 89D:

Similarly, some support for the Respondent's construction of Art. 24(3) might be derived from what Chan CJHC said in Lui Sheung Kwan at p. 267E:

However, these comments were made in connection with the particular issues which the courts on those occasions had to address. It would, I think, be dangerous to take these comments out of the context in which they were expressed. I have therefore resisted the temptation to do so.

21. For all these reasons, Art. 24(3) in my view confers the right of abode in Hong Kong on persons of Chinese nationality who were born outside Hong Kong but who have been adopted by a Hong Kong permanent resident.

The compatibility of para. 1(2)(c) with Art. 24

22. Para. 1(2)(c) of the new Sch. 1 to the Immigration Ordinance places a gloss on Art. 24(3). Although it appears to assume that Art. 24 applies to adopted children, it limits the application of Art. 24 to children adopted in Hong Kong under the Adoption Ordinance. On this topic, the Applicants' case could not be more simple. There is nothing in the language of Art. 24 which suggests that the rights which it accords to adopted children should be limited in that way. Para. 1(2)(c) thus imposes a condition on the acquisition of the right of abode in Hong Kong which is not in Art. 24. Para. 1(2)(c) therefore contravenes the Basic Law, because it denies the right of abode in Hong Kong to adopted children who fall within Art. 24. In my judgment, there is no answer to that argument. Indeed, I did not understand Mr. Ma to have argued otherwise.

The impact of Art. 24(6)

23. My conclusion on the two issues which arise on Art. 24(3) makes it unnecessary for me to address the argument advanced by Mr. Szeto, but not by Ms. Li, that if the Applicants had not acquired the right of abode in Hong Kong under Art. 24(3), they nevertheless acquired it under Art. 24(6). Since the right of abode in Hong Kong can only be acquired under Art. 24(6) if it has not been acquired under Arts. 24(1)-(5), and since I have found that the Applicants have acquired the right of abode in Hong Kong under Art. 24(3), it follows that they cannot have acquired it under Art. 24(6).

24. However, the argument that the Applicants could have acquired the right of abode in Hong Kong under Art. 24(6) if they had not acquired it under Art. 24(3) can be disposed of in a few sentences. There are two reasons for rejecting it. First, the Applicants did not have the right of abode in Hong Kong before 1st July 1997. They did not come within any of the categories of persons who were identified in the old Sch. 1 to the Immigration Ordinance as being Hong Kong permanent residents prior to 1st July 1997. Secondly, even if they had the right of abode in Hong Kong prior to 1st July 1997, Hong Kong was not the only place where they had the right of abode. As Chinese citizens, they had the right of abode on the Mainland as well.

The relief

25. I was briefly addressed on what relief would be appropriate if I decided the issues raised in favour of the Applicants, but the parties may have second thoughts about what relief is appropriate in the light of this judgment. The relief which I grant therefore is subject to the parties having liberty to apply to vary any of the orders which I make within 14 days of today.

26. Against that background, the orders I make are as follows. In the cases of each of the three Applicants, I declare that they are permanent residents of the Hong Kong Special Administrative Region and have the right of abode in Hong Kong. In the case of Tam Nga Yin, I make an order of certiorari to quash the removal order made against her on 23rd August 1997. In the case of Chan Wai Wah, I make an order of prohibition, prohibiting the Director of Immigration from putting the removal order which was made against him on 20th June 1997 into effect. In the case of Xie Xiaoyi, I make an order of certiorari to quash the decision of the Director of Immigration on 10th November 1997 that she does not have the status of permanent resident of the Hong Kong Special Administrative Region. Finally, I declare that para. 1(2)(c) of the new Sch. 1 to the Immigration Ordinance contravenes Art. 24 of the Basic Law.

Remarks: