YEUNG NI NI v. THE DIRECTOR OF IMMIGRATION

CACV203/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 203 OF 1997

(ON APPEAL FROM HCAL NO. 68 OF 1997)

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D E C I S I O N

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Chan, CJHC :

1. These appeals and cross appeal arise from four test cases in which the applicants sought a judicial review of certain decisions of the Director of Immigration.

THE FACTS

2. The applicants in these cases are all Chinese nationals born in Mainland China. Their parents were already Hong Kong permanent residents at the time of their births. Miss Cheung Lai Wah, aged 8 (who is the respondent in Civil Appeal No. 203 of 1997) came to Hong Kong in early 1995 using a two-way permit. She has overstayed in Hong Kong since the expiration of her permit. Miss Ng Ka Ling, aged 10 and her sister Miss Ng Tan Tan aged 7 (who are the appellants in Civil Appeal No. 216 of 1997) and Mr Tsui Kuen Nang, aged 19 (who is the appellant in Civil Appeal No. 217 of 1997) entered Hong Kong without going through an immigration control point on 1st July 1997. Miss Yeung Ni Ni, aged 11 (who is the appellant in Civil Appeal No. 218 of 1997) came to Hong Kong illegally on 8th January 1997. She surrendered herself to the Immigration Department on the following day. All these children reported to the Immigration Department on various dates before 10th July 1997. They were arrested and released on recognizance. The Ng sisters and Mr Tsui were refused permission to land on 7th August 1997. There was a removal order issued against Miss Yeung on 20th May 1997 but it is still not executed.

3. Miss Cheung is an illegitimate child, her parents not having married before her mother passed away after having given birth to her. The children in the other three appeals are not the only children of their respective parents, all having other siblings lawfully residing in Hong Kong. It is not disputed that all of them are able to prove by various means that they are the natural and, with the exception of Miss Cheung, also the lawful children of Hong Kong permanent residents. They claim to be permanent residents under Article 24(3) of the Basic Law.

4. In the early hours of 1st July, 1997, the Provisional Legislative Council enacted the Immigration Amendment (No. 2) Ordinance 1997 (" the No. 2 Ordinance") which sets out, amongst other things, the definition of the relation between parent and child for the purpose of Article 24(3). On 10th July 1997, before the status of these children was accepted by the Immigration Department, the Immigration Amendment (No.3) Ordinance 1997 ("the No. 3 Ordinance") was enacted setting out how the status of permanent resident under Article 24(3) can be established. The provisions of the No.3 Ordinance are deemed to have come into operation on 1st July 1997. The effect of these two Ordinances is that these children are now regarded as illegal immigrants, notwithstanding their proof of status as permanent residents under Article 24(3) and in the case of Miss Cheung, she is now considered as not eligible under that Article as a result of the No. 2 Ordinance. This means that all of them will have to be returned to Mainland China where they have to apply to the relevant authorities to establish their status again and for approval to come to Hong Kong. This is what the Immigration Department intends to do.

THE PROCEEDINGS

5. The children in these cases (whom I shall for the sake of convenience call the appellants although Miss Cheung is a respondent) applied by way of judicial review for an order of the Court quashing the decisions of the Immigration Department arresting them, releasing them on recognizance, ordering their removal back to Mainland China and requiring them to prove their status all over again according to the provisions of the No.3 Ordinance. In the case of Miss Cheung, she also sought to challenge the validity of that part of the No. 2 Ordinance which affects her eligibility to apply for the status of permanent resident.

6. The grounds on which they challenged the validity of the two Ordinances were that (1) these Ordinances were enacted by the Provisional Legislative Council which was not a competent legislature set up in accordance with the provisions of the Basic Law; (2) these Ordinances were unconstitutional because they were inconsistent with the provisions of the Basic Law and contravene the International Covenant on Civil and Political Rights ("ICCPR") and the Hong Kong Bill of Rights ("Bill of Rights") and (3) the retrospective effect of the No. 3 Ordinance was unconstitutional.

THE JUDGE'S DECISION

7. The trial judge held that the No.3 Ordinance was not unconstitutional and that it had retrospective effect on these appellants. However, he declared that the definition of the relation between parent and child in the No.2 Ordinance, insofar as it purported to exclude from Article 24(3) the illegitimate children of male Hong Kong permanent residents, was invalid as contrary to the Basic Law.

8. Before the trial judge, the parties agreed that the issue on the legality of the Provisional Legislative Council should be reserved for decision at a later stage in the light of the decision of this Court in HKSAR v. Ma Wai Kwan, David [1997] 2 HKC 315. In that case, this Court expressed the view that there is a legal basis for the formation of the Provisional Legislative Council.

9. The learned judge, having come to his decision on the issues before him, dismissed the applications for judicial review by these appellants. The appellants now appeal against this dismissal. The Immigration Department is not satisfied with the judge's ruling that Article 24(3) covers the illegitimate children of male Hong Kong permanent residents and appeals against that part of the decision. Miss Cheung has filed a respondent's notice seeking to support the trial judge's ruling on the parent/child relation issue and cross-appealed against the trial judge's decision on the other issues.

THE MAIN ISSUES

10. A number of grounds of appeal are relied on in the Notices of Appeal and Cross Appeal. The following issues arise for determination in these appeals :

(1) the legality of the Provisional Legislative Council;

(2) the constitutionality of the No.3 Ordinance;

(3) the validity of the retrospective provision in the No.3 Ordinance; and

(4) the validity of that part of the No.2 Ordinance which affects the illegitimate children of male Hong Kong permanent residents.

11. The parties agree that this Court should first deal with the issues in (2) to (4). If a decision on these issues can dispose of these appeals and cross-appeal, it may not be necessary to deal with (1), the legality of the Provisional Legislative Council. This is the decision on those 3 issues.

THE RIGHT OF ABODE

12. The right of abode is a Common Law concept. Lord Diplock in R. v. Bhagwan [1972] A.C. 60, at 77 described it as the right of a (British) subject to enter his country (the UK) without let or hindrance when and where he pleases and on arrival to go wherever he likes within the realm.

13. This concept was first "brought" into Hong Kong by the Joint Declaration in 1984. In Part XIV of Annex I, six categories of persons "shall have the right of abode in the HKSAR, and, in accordance with the law of the HKSAR, be qualified to obtain permanent identity cards issued by the HKSAR". Following from this provision in the Joint Declaration, the term "permanent resident" was then introduced into the Immigration Ordinance and in 1987, "right of abode" was defined in section 2A as a right which is enjoyed by Hong Kong permanent residents. Until the enactment of the No.3 Ordinance, this section read as follow :

"2A. Hong Kong permanent residents enjoy right of abode in Hong Kong

(1) A Hong Kong permanent resident enjoys the right of abode in Hong Kong, that is to say he has the right -

(a) to land in Hong Kong;

(b) not to have imposed upon him any condition of stay in Hong Kong, and any condition of stay that is imposed shall have no effect;

(c) not to have a deportation order made against him; and

(d) not to have a removal order made against him.

14. The basic policies in the Joint Declaration are enshrined in the Basic Law which was promulgated in 1990. Article 24 of the Basic Law sets out the same categories of persons mentioned in Part XIV of Annex I to the Joint Declaration. These categories of persons are to be the permanent residents of the HKSAR after 1st July 1997. Article 24 also reflects Part XIV of Annex I by conferring a right of abode on these permanent residents who are qualified to obtain permanent identity cards according to the laws of the HKSAR.

15. Prior to the Basic Law taking effect, children of Chinese nationality born outside Hong Kong of Hong Kong permanent residents did not have the status of permanent residents. They did not have the right to land. They required the permission of the Immigration Department to enter, land and remain in Hong Kong. This situation was changed after the Basic Law took effect on 1st July 1997. These children would become permanent residents under Article 24(3) of the Basic Law. They would have the right of abode and be qualified to obtain permanent identity cards. According to the previous section 2A of the Immigration Ordinance which was in force prior to the No. 3 Ordinance, they would also have the right to enter, land and remain here.

THE TWO ORDINANCES

16. There are thousands of such children in Mainland China. The evidence presented by the Immigration Department reveals that since 1987, approximately 340,000 people from Mainland China came to settle in Hong Kong. In 1996 alone, 61,179 persons were issued one-way permits to settle here. There is a quota system in Mainland China with regard to the number of persons including children who would be approved for settlement in Hong Kong. This quota system was fixed in consultation with the Hong Kong Government. In the 1950s, the quota was 50 persons per day for settlement purpose. In 1982, 75 exit permits were issued per day. In 1993, this was increased to 105 per day with a special number allocated for children of Hong Kong residents. Since 1995, the quota has been increased to 150 per day, again with a special number allocated for children of Hong Kong residents. From the information given by the Immigration Department, in about mid-1997, about 66,000 persons under the age of 20 are eligible to apply to come to Hong Kong under the category of persons in Article 24(3). There are another 95,000 spouses of Hong Kong residents who are applying and waiting to come to Hong Kong to join their husbands.

17. It is quite obvious that these children cannot all come to Hong Kong at the same time. Nobody can dispute that it is necessary to have an orderly and gradual programme of settlement for these children. It is also clear that there is no provision in the Basic Law regarding the procedure to verify the status of permanent residents of these children. It is under these circumstances that the Government proposed and the Provisional Legislative Council enacted the No.2 and the No.3 Ordinances.

18. One of the main purposes of the No.2 Ordinance is clearly to redefine the categories of permanent residents in the previous Schedule 1 of the Immigration Ordinance so that they are in line with the provisions of the Basic Law. The six categories of permanent residents as provided in Article 24 become categories (a) to (f) in paragraph 2 of Schedule 1. Paragraphs 3 to 5 set out the requirements in establishing the status of permanent residents within categories (d) to (f). There is nothing in the No.2 Ordinance dealing with how persons falling within category (c), i.e. children of Chinese nationality born outside Hong Kong of Hong Kong permanent residents are to establish their status of permanent residents.

19. The main purpose of the No.3 Ordinance is to put in place a scheme for the establishment of the status of permanent resident under paragraph 2(c) of Schedule 1 which is the category of permanent residents under Article 24(3) of the Basic Law. The section which is most relevant to these appeals reads as follows :

"2AA. Establishing status of permanent resident under paragraph 2(c) of Schedule 1

(1) A person's status as a permanent resident of the Hong Kong Special Administration Region under paragraph 2(c) of Schedule 1 can only be established by his holding of -

(a) a valid travel document issued to him and of a valid certificate of entitlement also issued to him and affixed to such travel document;

(b) a valid HKSAR passport issued to him; or

(c) a valid permanent identity card issued to him.

(2) A person's right of abode in Hong Kong by virtue of his being a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1 can only be exercised upon the establishment of his status as such a permanent resident in accordance with subsection (1) and, accordingly, where his status as such a permanent resident is not so established, he shall, for the purposes of this Ordinance, be regarded as not enjoying the right of abode in Hong Kong."

20. The certificate of entitlement is in a special form called Form No.12 which contains these statements :

"The holder's Right of Abode in the Hong Kong Special Administrative Region has been established. This certificate is valid only if it has been affixed onto a valid travel document issued to the holder of this certificate."

21. Section 2A of the Immigration Ordinace was amended so that it is now subject to section 2AA. There is also a consequential amendment to Regulation 25A(2) of the Registration of Persons Regulations, Cap.177. Its effect is that those who are qualified to apply for certificates of entitlement but have not been issued with such certificates and are still residing in Mainland China shall not be eligible to apply for permanent identity cards.

22. Pursuant to sections 2AB and 2AC of the No. 3 Ordinance, on 11th July 1997, the Director of Immigration issued a notice in the Gazette with regard to the procedure relating to applications for certificates of entitlement. The effect of the notice is this. Any person in Mainland China who claims to be a Hong Kong permanent resident within Article 24(3) has to apply through the Exit and Entry Administration of the Public Security Bureau ("BEEA") in the district in which he is residing for a certificate of entitlement to be issued by the Immigration Department in Hong Kong. At the same time, he has to seek the approval of the BEEA to leave Mainland China and come to Hong Kong. It is only when he has obtained both a certificate of entitlement issued by the Immigration Department as well as an exit permit issued by the BEEA and the two must be affixed together that he can come to settle in Hong Kong. In other words, even if the Immigration Department is satisfied with his claim as a permanent resident under Article 24(3) of the Basic Law, he still requires the exit approval from the authority in Mainland China.

23. This procedure is to have retrospective effect. This means that all the appellants are regarded as still in Mainland China although they are physically present in Hong Kong. They cannot apply for certificates of entitlement here. They have to be returned to Mainland China where they have to apply for the requisite certificates of entitlement and exit permits through the BEEA in their respective districts.

24. It is the case of the appellants that the No.3 Ordinance (together with the notice issued by the Immigration Department) is contrary to the Basic Law because it purports to restrict and/or qualify the right of abode which is conferred on them under Article 24. Three aspects of this issue are called into question: first, the obtaining of a certificate of entitlement is the only way of proving the status of permanent resident; second, it has to be applied for while the applicant is in Mainland China; and third, the applicant must also have been issued to him a valid travel document to which the certificate is affixed before he can settle in Hong Kong.

THE CERTIFICATE OF ENTITLEMENT

25. Mr Chang, S.C., for the appellants, submits that under common law, the status of permanent resident automatically carries with it the enjoyment of the right of abode. Hence, section 2A prior to the enactment of the No.3 Ordinance was not expressed to be subject to any other provision. The Immigration Ordinance was all along "right of abode sensitive" in that persons with the right of abode in Hong Kong are not affected by other immigration control provisions in the Ordinance. They do not need permission to land or to remain. It is accepted that persons claiming the right of abode under Article 24(3) cannot simply walk pass any immigration control point without producing any evidence of status. Some procedure is desirable. What counsel argues is that the certificate of entitlement scheme should not be the only way of proving status. A careful examination of the provisions of the Immigration Ordinance reveals that other provisions require only proof on the facts and not in any specific way. For the other categories of permanent residents, the Ordinance permits the production of such information which the Director of Immigration may reasonably require. Counsel submits that the scheme created by the No. 3 Ordinance is aimed at denying permanent residents their status. It is submitted that even if these appellants have come to Hong Kong illegally, since they have been able to prove their permanent resident status by other means, their status cannot be taken away. If the No. 3 Ordinance has that effect, it is unconstitutional, being contrary to Article 24 of the Basic Law. It is also contrary to the relevant provisions in the ICCPR which was adopted through Article 39 of the Basic Law and the Hong Kong Bill of Rights.

26. Of the six categories of persons who may have the status of permanent residents under Article 24 of the Basic Law, the No.2 Ordinance contains no provision governing the establishment of such status for category (c), i.e. children of Chinese nationality born outside Hong Kong of Hong Kong permanent residents, who are governed by Article 24(3). This is dealt with in the No.3 Ordinance.

27. Although section 2AB of the No.3 Ordinance specifies 3 types of documents required for proving status for this cagegory of persons, a closer look at the provision shows that only one is in fact available for the great majority of persons falling under this category. While it allows for the establishment of status by the production of a HKSAR passport, this is not really feasible since no such passport would normally be issued if a person does not have a permanent identity card. As to proof by way of a permanent identity card, it is unlikely that any person outside Hong Kong can apply for one. The status of permanent resident was only conferred on 1st July 1997 when the Basic Law took effect. Even if a person had wanted to apply for a permanent identity card while outside Hong Kong, the retropective effect of the No.3 Ordinance together with the amendment to the Registration of Persons Regulations makes it impossible for him to have a permanent identity card as proof of status. Hence, it can be said that in effect the other two types of documents of proof are unrealistic and merely window dressing. A certificate of entitlement is the only evidence of proof for persons within Article 24(3).

28. I think it is universally accepted that an orderly settlement of these children in Hong Kong is necessary and that there must be some procedure for verifying applications claiming such status. The Basic Law does not provide for that. One has to be devised. But whatever the procedure, it must be one which facilitates the proof of status. It must not be aimed at restricting or qualifying the right of abode unless this is permitted by the Basic Law. Apart from this main consideration, a number of factors must be borne in mind when devising such procedure. First, it is physically impossible to have all eligible persons to come to Hong Kong at the same time. This would create chaos. Secondly, their status as permanent residents needs to be verified. This would take time. Thirdly, it is in the interest of the children as well as the Hong Kong community to have an orderly settlement. Even if these children can come all at once, this would give rise to serious social problems including how to house and educate them. What good is it to them to be able to enjoy their right to go anywhere without let or hindrance if they have problems with accommodation or education ? The Hong Kong community simply cannot cope with such a large number of immigrants all of a sudden. This would be a considerable strain on the community's resources. Fourthly, the scheme must be reasonably fair for all eligible persons. It may be based on merits. It may be on a first come first serve basis. But whatever the criterion, it must be and be seen to be reasonably fair. Fifthly, since they would be Chinese nationals living in Mainland China, it is reasonable to expect that their applications would normally come from places where they are residing. Sixthly, it would be undesirable to have different schemes (as opposed to ways) of verifying their claims as this may create a lot of practical problems.

29. With respect to counsel for the appellants, I do not agree that the issue of a certificate of entitlement can be described as the only way of proving status. It is a document showing that the Director of Immigration is satisfied with the proof tendered by an applicant. He is perfectly entitled to try and satisfy the Director by various means and tender whatever proof he has to the Director. There is no question of the Director not accepting reasonable and relevant material as proof. If and when the Director is satisfied with the evidence produced by an applicant, a certificate of entitlement will be issued. The certificate is only a document confirming the Director's satisfaction that the person's status has been established. It is not a way of proving status.

30. The requirement that all applications must come through the BEEA in China is, in my view, also acceptable. Afterall, persons falling within this category are mostly residing in the Mainland. 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 an orderly settlement. It will encourage unlawful landing and illegal activities. Hong Kong is so geographically close to the Mainland that it is very easy to come to Hong Kong through other means than immigration control points. A scheme which allows for different options simply will not work. Counsel's argument that if a person has the right of abode, he has the right to land and it is not necessary to grant him permission to land is, with respect, circular. It cannot be assumed that a person seeking to prove his status has already acquired the status even before verification. Cases regarding the UK situation are entirely different.

31. For these reasons, I take the view that it is not restricting or qualifying the right of abode to require a person claiming under Article 24(3) to apply in Mainland China and to obtain a certificate of entitlement from the Immigration Department.

THE REQUIREMENT OF EXIT PERMIT

32. The scheme created by the No. 3 Ordinance also requires an applicant to obtain a valid travel document from the Chinese authorities (in the form of a one-way exit permit) and the certificate of entitlement to be affixed to such document.

33. The appellants' objection is that this unreasonably makes the enjoyment of the right of abode wholly dependent on the holding of a valid travel document to be issued by an external authority over which the Hong Kong Government has no control. This is contrary to the high degree of autonomy of Hong Kong. Mr Chang for the appellants submits that the object of the No.3 Ordinance is not to facilitate the enjoyment of the right of abode but to obstruct and deny persons claiming or enjoying such right. He argues that the requirement of a valid travel document goes beyond matters of procedure or proof. It seeks to separate the status from the right and the right from its enjoyment and this is in direct contradiction of the Basic Law. The object of the No. 3 Ordinance is to subject a permanent resident to a quota system of the PRC.

34. On the other hand, Mr Ma, S.C., for the Immigration Department, submits that the immigration laws in the PRC require that any person seeking to leave the country and to enter Hong Kong needs approval. Otherwise, this would be a criminal offence. The HKSAR, being part of the PRC, albeit having a different system, should recognize and respect the laws of the Sovereign. Any Hong Kong law calling for compliance with PRC laws cannot be regarded as unconstitutional. The main justification relied on by Mr Ma is however Article 22(4) of the Basic Law. I shall return to this point at a later stage.

35. The PRC immigration laws provide that all Chinese nationals require approval to leave the country. Any breach of such laws amounts to a punishable offence in the PRC. These laws also apply to Chinese residents intending to go to Hong Kong. Those who wish to settle in Hong Kong would be issued one-way permits while others would be issued two-way permits. The decision to grant one-way permits is usually made by the relevant BEEA at the provincial, municipal or county levels. An application for a one-way permit made to such office is regarded as an application for a certificate of entitlement. If the Immigration Department is satisfied that the person's claim to the right of abode is established, a certificate of entitlement in the form of a self-adhesive label will be sent to the respective originating authority of the Mainland for affixing onto the one-way permit which is to be issued by that authority. On the strength of the one-way permit to which the certificate of entitlement is affixed, the applicant can leave the Mainland and enter Hong Kong as a permanent resident. The Immigration Department takes no part in the processing and granting of one-way permits. The final decision rests with the authorities in the Mainland. To this extent, the control on who can or should come to Hong Kong to exercise their right of abode is left in the hands of the PRC authorities.

36. Article 24(3) of the Basic Law clearly confers the status of permanent residents on children of Chinese nationality born outside Hong Kong of Hong Kong permanent residents. It is for them to prove their status and for the Immigration Department to be satisfied with their proof. In my view, if he is so satisfied, the requirement of a valid travel document to which the certificate of entitlement must be affixed seems to go beyond a matter of procedure or proof. This is clear from the content of the certificate of entitlement which says that it is valid only if it is affixed onto a valid travel document even although the right of abode has been established.

37. If the Director of Immigration is satisfied that the holder has established his status, then quite clearly that person is already a permanent resident by virtue of Article 24(3) and should be entitled to his right of abode. What the second sentence in the certificate purports to do is to deny the person the benefit of this certificate and hence defer the enjoyment of his right of abode until he has a valid travel document with the certificate affixed to it. This is prima facie not acceptable as it is inconsistent with the clear wording of Article 24(3) unless there is justification for it.

38. With respect, I do not agree with Mr Ma's suggestion that this can be justified on the ground that HKSAR should recognize and respect the immigration laws of the Sovereign. If a person who has the right of abode in Hong Kong enters Hong Kong from a foreign country in breach of the immigration laws of that country, it is none of the business of the immigration officer to ask him whether he has committed any immigration offence in that foreign country. This does not mean that the Immigration Department does not recognize or respect the laws of that country. It is because that person has a right to land in Hong Kong and cannot be turned away. Similarly, if a person from Mainland China who has proved to the satisfaction of the Director of Immigration that he has a right of abode in Hong Kong comes to Hong Kong in breach of the PRC immigration laws, it is also not the business of the immigration officer to make enquiries on that unless he is permitted or required by Hong Kong law to do so. While it is accepted that the PRC immigration laws should be recognized and respected, I do not think that this alone can justify the deferment of the exercise of the right of abode which is clearly conferred on that person under the Basic Law.

ARTICLE 22(4) OF THE BASIC LAW

39. The 4th paragraph of Article 22 reads as follows :

"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."

40. Mr Ma for the Immigration Department submits, and the trial judge accepted, that the justification is found in Article 22(4) of the Basic Law. He argues that a purposive approach must be adopted in construing Article 24 of the Basic Law. Adopting such an approach, Article 24 must be construed in the light of Article 22 (4) and the factual background. He says that it has always been the law of the PRC which requires approval for exits from the Mainland. This is necessary to stem out illegal exits and unlawful activities. A quota system has always been in place restricting the number of persons leaving the Mainland to come into Hong Kong. Hence, Article 24 should not be construed in such a way as to encourage a breach of the PRC immigration laws or unlawful exits and illegal activities. It is submitted that Article 22(4) which requires approval of the relevant PRC authority for exit from the Mainland and entry into Hong Kong is clearly intended to reflect the practical situation that has been the reality for many years. Hence, when Article 24(3) is construed together with Article 22(4), it is perfectly legitimate for laws to be passed in Hong Kong which ensure not only compliance with the proper procedures for lawful entry into Hong Kong but also for the lawful exit from the Mainland. In this way, counsel submits, Article 22(4) qualifies Article 24(3).

41. The trial judge held that by adopting a purposive approach on the construction of Article 22(4) and from a linguistic point of view, Article 22(4) applies to persons coming to Hong Kong for settlement under Article 24(3). With regard to the interaction between Article 22(4) and Article 24(3), he said:

"Accordingly, it is the Basic Law which confers on the Chinese authorities the right to determine how many of its citizens should be permitted to settle in Hong Kong. Thus, if Art. 22(4) applies to persons who enjoy the right of abode in Hong Kong under Art. 24, the need for an exit permit as required by the No.3 Ordinance may be an example of the derogation from Hong Kong's high degree of autonomy, but it is something which has been expressly sanctioned by Art. 22(4). Indeed, the provisions of the No.3 Ordinance which made the exercise of the right of abode in Hong Kong by descent depend on the obtaining of a one-way exit permit do no more than implement the requirements of Art. 22(4). Where legislation implements the provisions of the Basic Law, no question of its incompatibility with the Basic Law arises. The source of any grievance over the legislation, whether justified or not, lies not with the supposed incompatibility with Art. 24, but with the presence in the Basic Law of Art. 22(4)."

42. Mr Chang for the appellants submits that the trial judge was wrong in his construction of Article 22(4) which is in any event not relevant to the appellants who had already entered Hong Kong prior to 1st July 1997. Article 22 of the Basic Law has its origin in Part XIV of Annex 1 to the Joint Declaration which provides that entry into Hong Kong from other parts of China shall continue to be regulated in accordance with the "present practice". According to the practice which was prevailing then, only people who were not Hong Kong residents or Hong Kong belongers or who did not have the right to land or stay in Hong Kong unconditionally were allowed to visit Hong Kong on two-way permits and people who had the right to land in Hong Kong or who did not require permission of the Director to enter Hong Kong were not affected. Hence, Mr Chang argues, people with the right of abode in Hong Kong who stand in a separate category should not and are not intended to be covered by Part XIV of Annex I and Article 22(4). He submits that it is not necessary to read words into that article since this is already quite plain. Afterall, Article 22 is contained in the Chapter on Relationship between the Central Authorities and the Hong Kong Special Administrative Region whereas Article 24 is contained in the Chapter on Fundamental Rights and Duties of the Residents.

43. In my view, Article 24 must not be construed in isolation. It must be considered in the light of the other provisions of the Basic Law, including Article 22(4) and its origin. The different categories of persons who would have the status of permanent residents (and hence the right of abode) were contained in the same Part XIV of Annex I to the Joint Declaration which formed the origin of Article 22(4). Exit from Mainland China for all Chinese nationals has always been subject to the PRC immigration laws and hence exit permits have always been required. In 1984 when the Joint Declaration was signed, the category of persons who would be conferred the right of abode in Hong Kong under Article 24(3) had not come into existence. The practice prevailing then was that residents in Mainland China who wished to come to Hong Kong for whatever purpose must have the approval of the relevant authorities and the requisite exit permits. That practice clearly and understandably did not apply to Hong Kong residents or belongers since they were not regarded as residents in China. At that stage, persons living in the Mainland who would after 1st July 1997 fall within any of the categories in Article 24 were also persons who required such approval and exit permits. It was clearly the intention of Part XIV of Annex I to the Joint Declaration which later became Article 22(4) to seek to control persons living in Mainland China to enter into Hong Kong irrespective of what their future status in Hong Kong would be.

44. I agree that a purposive construction should be adopted in respect of Article 22(4) and Article 24(3) which must, so far as possible, be read in such a way so that they are consistent with each other. Adopting such an approach, Article 22(4) must be construed as applying to all persons seeking to leave Mainland China to enter Hong Kong and these include persons who would after 1st July 1997 fall within Article 24(3) and who would be seeking to settle in Hong Kong to enjoy their right of abode.

45. I would also agree with the trial judge that from a linguistic point of view, this is also the effect of Article 22(4). It is in very clear and general terms. All persons seeking entry to Hong Kong from various parts of China other than the HKSAR must have the approval of the relevant authorities in the PRC. I do not think it is necessary to read any words into Article 22(4) since it is intended to cover, as it has always been the case, all persons seeking to leave China. The second sentence in Article 22(4) makes the position even clearer. It refers to those people who seek to settle in Hong Kong as "among them" i.e., amongst persons seeking entry into Hong Kong from other parts of China.

46. In my view, reading Article 22(4) and Article 24(3) together, the effect is this. Article 24(3) confers the status of permanent residents on persons who are living in Mainland China and who qualify under that Article. Article 22(4) requires such persons to obtain approval before coming to Hong Kong to exercise their right of abode which follows from such status. Article 22(4) is not a piece of PRC immigration law. It is part of the law of Hong Kong. It is perfectly proper for Hong Kong legislation, i.e., the No.3 Ordinance, to make provision for a procedure which reflects the intention of and gives effect to Article 22(4). What the No.3 Ordinance seeks to do is to provide a procedure for persons falling within Article 24(3) to establish their status, bearing in mind the requirement for approval, not only under the PRC immigration laws, but also under Article 22(4). The entire certificate of entitlement scheme is introduced to give effect to Articles 22(4) and 24(3) of the Basic Law. There is justification for such a scheme. Although the number of persons falling within Article 24(3) who can come to Hong Kong to enjoy their right of abode is not in the hands of the HKSAR but is controlled by the PRC authorities, this is expressly provided for in Article 22(4) of the Basic Law. As the trial judge rightly held, there is no question of these provisions in the No.3 Ordinance being incompatible with the Basic Law. They cannot be regarded as unconstitutional.

47. It is further argued that the No.3 Ordinance is contrary to Article 31 of the Basic Law since it restricts the freedom of movement of Hong Kong permanent residents. With respect, I do not think Article 31 applies to persons who are residing in Mainland China and who are still seeking to establish their status. It is only after they have done so in accordance with the No. 3 Ordinance that they can rely on Article 31.

48. Mr Chang also submits that the No. 3 Ordinance is unconstitutional because it unlawfully discriminates against a certain category of permanent residents and is therefore contrary to Article 8(4) of the Bill of Rights which is the Hong Kong equivalent of Article 12(4) of the ICCPR. I agree with the learned judge that when a piece of legislation purports to give effect to the intention of Article 22(4) of the Basic law which is our Constitution and to implement its provision, it cannot be said to be an arbitrary deprivation of the rights conferred by another Article of the Basic Law. There is, in my view, no contravention of Article 8(4) of the Bill of Rights.

THE RETROSPECTIVE PROVISION

49. Section 1(2) of the No. 3 Ordinance provides that the Ordinance (with the exception of 2 penal provisions) shall be deemed to have come into operation on 1st July 1997. The appellants submit that it is unconstitutional for the Ordinance to have retrospective effect on them.

50. Mr Chang relies on a number of grounds to support his argument that the No.3 Ordinance should not have such effect on the appellants. The main ground is of course that the judge was wrong on his interpretation of Article 22(4) of the Basic Law. I have dealt with this in the preceding paragraphs. But counsel submits that even if Article 22(4) of the Basic Law applies to permanent residents of the HKSAR, it would not follow that a person with proof of the right of abode could be expelled from Hong Kong after he had already entered. He says that the system in place prior to 10th July 1997 did not give the immigration authorities the power to do so. Nor does Article 22(4). Any requirement of approval to exit Mainland China would not have any effect on the rights of persons already in Hong Kong. The two who had entered prior to 1st July 1997 can also say that the effect of Article 22(4) cannot possibly apply to them since they had already entered Hong Kong before the Basic Law took effect. Counsel argues that it is totally inconsistent with any reasonable requirement of proof for the No.3 Ordinance to deem that the provisions restricting the means and manner of proof to be already in place prior to 10th July 1997 when plainly they were not. The appellants claim their right of abode while they are in Hong Kong and not at any point of entry. The requirement of the necessary documents in order for them to enjoy the right of abode did not exist prior to 10th July before they came. A legal fiction was created so as to nullify the right of abode.

51. Another ground of objection is that the No.3 Ordinance has the effect of retrospectively stigmatizing the appellants as illegal immigrants and having committed immigration offences. This is because the effect of the No.3 Ordinance is to deem these appellants to have no right to enter or to remain in Hong Kong. It renders these appellants guilty of either entering or remaining unlawfully in Hong Kong without the permission of the Immigration Department. It is submitted that the judge was wrong in his view on the retrospective criminalization point. He had mistakenly held that if the appellants were to be prosecuted for immigration offences, they could not have been convicted of such offences in view of Article 15 of the ICCPR and that since there was no risk of prosecution or conviction, the retrospective provision of the No.3 Ordinance was not unconstitutional.

52. Counsel also submits that the law which has the effect of creating an offence can have both civil as well as criminal consequences. Even if there were to be no prosecution, the Immigration Department might, as it did in this case, try to make use of the retrospective law to arrest or detain the appellants for the purpose of removing them or exacting recognizances from them. He says that if the judge was right, it would mean that the lawmakers could with impunity stigmatize as offences acts which were perfectly lawful at the time they occurred and deny these people the right to have the law declared invalid and their innocence vindicated in a court of law.

53. On the other hand, Mr Ma for the Immigration Department submits that while there is a presumption against retrospectivity, it is perfectly open for the legislature to enact a law which makes specific provision to have such effect. Reliance is placed on Bennion, Statutory Interpretation, 2nd Ed. at pages 214-215. Counsel argues that making the appellants subject to the No.3 Ordinance involves the enforcement of procedures and not creating criminal liability. Article 15 of the ICCPR arises in relation to a defence to a criminal prosecution or the finding of criminal activity but there is no question of criminality involved. It is further argued that since the right contained in Article 24(3) is always qualified by the requirement for the compliance of PRC laws and Article 22(4), there is no question of affecting the appellants' accrued rights.

54. The Courts have always viewed retrospective provisions with caution and disfavour. There is a presumption against retrospectivity: see Bennion, Statutory Interpretation, 2nd Ed., p.214. The Courts are usually slow to uphold provisions seeking to have retrospective effect, particularly when they affect accrued rights unless there is clear and express provision to this effect. This attitude is also reflected in section 23 of the Interpretation and General Clauses Ordinance, Cap.1.

55. The retrospective provision in the present case does not fit in comfortably with reality. How can the Ordinance say that the appellants do not have the status of permanent residents and the right of abode when in actual fact they can clearly show that they have? How can it be said that between 1st and 9th July 1997, a person (whether he be in Mainland China or in Hong Kong) could apply for a certificate of entitlement when the necessary forms were not even in existence until the 10th July when the law was passed or even 11th July 1997 when the Director's Notice was issued ? The Director could not possibly have issued any certificates during that period. If these appellants had applied for and had been issued permanent identity cards between 1st and 9th July 1997 before the amendment to the provisions of the Registration of Persons Regulations by the No. 3 Ordinance, would they have been able to fall within section 2AA of the No. 3 Ordinance? Presumably they would not. This is because the Ordinance was deemed to have taken effect on 1st July and these people did not have permanent identity cards on that date but only obtained them after that date. What then would their status be? What would happen to their accrued rights? As the authors of Bennion, Statutory Interpretation 2nd Ed., say at p.215: "Retrospectivity is artificial, deeming a thing to be what it was not. Artificiality and make-believe are generally repugnant to law as the servant of human welfare." However, section 1(2) of the No. 3 Ordinance clearly seeks retrospective effect for that Ordinance. The question is not whether this is contrary to reality, but whether it is unconstitutional or inconsistent with the ICCPR.

56. The requirement that a person residing in Mainalnd China must apply through the BEEA to the Hong Kong Immigration Department to claim for his status under Article 24(3) strongly indicates that he can establish (as opposed to exercise) his right of abode while outside Hong Kong although he is not yet able to exercise it here. It follows that the establishment of the status (and hence the right which follows from that status) is clearly separate and distinct from the exercise of such right after it has been established. A person whilst still residing in Mainland China can provide through the BEEA to the Immigration Department proof that he is a child born of a Hong Kong permanent resident. If the Director is satisfied with such proof, he shall issue a certificate of entitlement. It is then up to the BEEA to approve that person's exit from Mainland China and to issue a one-way permit to him. In other words, the requirement of approval which leads to the issue of a one-way permit is separate from the establishment of the right of abode. It relates to the exercise of such right. In fact, the wording in section 2AA also draws a distinction between the establishment of the status and the exercise of the right.

57. The learned judge also construed Article 22(4) as imposing a restriction on the exercise of the right of abode. See page 26 of his judgment. However, he went on to say that since this restriction was contained in Article 22(4) which was in place on 1st July 1997,

"the fact that the legislative provisions which sought to implement those restrictions came into effect later did not amount to an unconstitutional restriction on an unqualified constitutional right. That right had already been qualified by Art.22(4)."

58. With respect, I do not agree with this conclusion. It is clear that Article 24 confers the status of permanent residents on certain categories of persons. 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 and 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. Article 22(4) itself does not say so. It does not even provide any consequence for a breach of that Article. Nor is this provided anywhere in the Basic Law. It is not even an offence under the Basic Law or the Immigration Ordinance if no approval from the BEEA is obtained. Prior to 1st July 1997, a Chinese resident who came to Hong Kong without the exit approval of the Mainland authorities was in breach of the PRC immigration laws. He would be removed from Hong Kong not because he had breached those laws, but because he had no right to enter or remain in Hong Kong and had no permission from the immigration officer. After 1st July 1997, if a Chinese resident came to Hong Kong without the exit approval of the Mainland authorities, he would be in breach not only of the PRC immigration laws but also Article 22(4) of the Basic Law. If he had presented himself at an immigration control point, he would have been refused entry. But if he had already entered and if before the enactment of the No.3 Ordinance (with its retrospective provision), he was able to prove his permanent resident status under Article 24(3), then he would have a right to remain in Hong Kong and could not be removed. The retrospective provision of the No. 3 Ordinance therefore seeks to have the effect of curtailing or even taking away the right of abode conferred under Article 24(3) of the Basic Law. In my view, there must be justification for this. What the Basic Law gives by the one hand would not be taken away by the other unless there is clear, express and specific provision. Such a provision is necessary to qualify the substance of this right (as opposed to the deferring of the exercise of such a right). I do not think the wording of Article 22(4) has this effect. It is neither clear, express nor specific. Nor is it the intention of this Article to have such effect. It is a general provision aimed at all Chinese residents seeking to leave the Mainland to come to Hong Kong, for whatever purpose, including persons who come here claiming to be permanent residents. It is not specifically targeted at this category of persons.

59. Further, two of the appellants came before the Basic Law took effect on 1st July 1997. It seems that they would, in any event, not be affected by Article 22(4) which requires them to get approval before coming to Hong Kong since the Basic Law was not effective when they came. In that case, why should the right of abode which they have acquired under Article 24(3) before the No. 3 Ordinance was enacted be affected? This illustrates the weakness of the argument that Article 22(4) qualifies the substance of the right under Article 24(3). It also weakens the validity of the retrospective provision.

60. No doubt, a person needs to be physically in Hong Kong to exercise the right of abode and he cannot come to Hong Kong without the approval of the PRC authorities under Article 22(4). But if he is already in Hong Kong before the enactment of the No. 3 Ordinance, Article 22(4) does not say he cannot exercise his right of abode here. This is a right which is expressly given to him by Article 24(3). In my view, no legislation can seek to qualify an existing right if the Basic Law does not do so and Article 22(4) does not have this effect. It would be contrary to Article 24(3) to qualify this right. What the legislation can do is to put in place a scheme which is compatible with Article 22(4) and Article 24(3) and which reflects these provisions. What the legislation cannot do is to ignore the reality that these appellants are already physically in Hong Kong and should, in the absence of this retrospective provision, be enjoying the right of abode here. It cannot say that they can be treated to have never come to Hong Kong and do not enjoy the rights which are conferred on them by Article 24(3) after they have come to Hong Kong.

61. Section 1(2) of the No.3 Ordinance is doing precisely that. It is aimed at these appellants and persons who are in a similar position. It is depriving these people of the right of abode which they have acquired under Article 24(3) during the 9 days between 1st and 9th July 1997. What can only be said of these appellants is that if they were still in Mainland China, they could not yet come to Hong Kong to exercise such right. However, if they are already in Hong Kong, it would be wrong for the No. 3 Ordinance, particularly section 1(2), to say they do not even have this right. In my view, since Article 22(4) does not have the effect of qualifying the substance of the right of abode conferred under Article 24(3), there was no qualification of this right since 1st July 1997. There is no justification for the retrospective provision. It is clearly in contravention of Article 24(3) of the Basic Law by trying to affect the accrued right of abode of these appellants. I would hold that the retrospective provision is unconstitutional.

62. The Immigration Department is worried that if persons in the same situation as these appellants are permitted to stay to enjoy the right of abode, this would have undesirable consequences. I do not think so. In a way, these people (and there are about 1400 of them) have "jumped the queue". This they did by risking the dangers of coming here illegally and taking advantage of the lack of clear and proper legislation before 10th July 1997. But once the certificate of entitlement scheme is in place, persons arriving after that date will be governed by that scheme. These appellants came to Hong Kong before that date and have already established their status under Article 24(3). Confirming their status of permanent residents does not affect those applicants in Mainland China who have in any event to wait in line to obtain certificates of entitlement and exit permits. These appellants have not adversely affected their positions in the queue and will not do so. There is no evidence that the quota on the number of child immigrants seeking to come to Hong Kong will be reduced as a result of allowing these appellants and persons in a similar situation to stay in Hong Kong.

63. On the argument based on Article 12 of the ICCPR, the learned judge said:

"This argument proceeds on the assumption that Art.12(1) of the Hong Kong Bill of Rights prohibits legislation which exposes persons to the possibility of prosecution for conduct which was not criminal at the time of the conduct. I do not construe Art.12(1) in that way. I construe Art.12(1) as prohibiting the prosecution of persons for conduct which was not criminal at the time of the conduct. After all, if a person cannot be prosecuted for such conduct, no question of him being exposed to the possibility of prosecution arises. Indeed, that is for (far) more consistent with the language of Art.12(1): 'No one shall be held guilty of any criminal offence ...' I know that two commentators on the equivalent provision (Art.7(1)) in the European Convention on Human Rights take a different view, but the travaux preparatoires of Art.15(1) of the ICCPR are inconclusive. Accordingly, the challenge to the No.3 Ordinance on the basis of retrospectivity fails. What could be challenged successfully is any prosecution on the basis of a contravention between 1st and 10th July of section 38(1)(a) of the Immigration Ordinance."

64. I agree with Mr Chang's arguments that although the penal sections (sections 2AG and 5) of the No.3 Ordinance do not have retrospective effect, however, the result of saying that these appellants do not have the right of abode in Hong Kong even though they are here is that they have unlawfully landed and/or have remained unlawfully in Hong Kong, according to Hong Kong immigration laws. The Hong Kong courts cannot of course punish the appellants for any breach of the PRC immigration laws. Article 22(4) does not provide for any criminal sanction. But it is quite clear that the retrospective provision of the No.3 Ordinance has resulted in these appellants being considered as having committed at least two offences. What is more, they are under the provisions of the Immigration Ordinance liable to be detained, arrested, prosecuted and removed from Hong Kong. I do not think I can agree with the interpretation of the learned judge on the provisions of Article 12 of the ICCPR. It is not a matter of defence. It is a matter of substance. Apart from the fact that they can also be prosecuted (and whether they can be convicted is another matter), these appellants can be excluded from Hong Kong. The retrospective provision of the No.3 Ordinance is, in my view, clearly contrary to Article 12 of the ICCPR.

RELATIONSHIP OF FATHER AND CHILD

65. Miss Cheung is admittedly an illegitimate child of her father who is a Hong Kong permanent resident. The No.2 Ordinance amended Schedule 1 to the Immigration Ordinance which makes provisions with regard to permanent residents. Paragraph 1(2) provides as follows:

"The relationship of parent and a child is taken to exist as follows -

(a) of a mother and child, between a woman and a child born to the mother in or out of wedlock;

(b) of a father and child, between a man and a child born to him in wedlock or, if out of wedlock, between a father and a child subsequently legitimated by the marriage of his parents;

(c) ..." (my emphasis)

66. Counsel for the Immigration Department argues that Article 24(3) is silent on this issue. Hence, it cannot be said that paragraph 1(2)(b) in Schedule 1of the No.2 Ordinance is inconsistent with the Basic Law. If there is a genuine lacuna in Article 24(3) of the Basic Law on this issue, it is perfectly within the powers of the legislature to fill this lacuna to reflect public policy and the policy of the State Council which is the executive body of the highest organ of state power in the PRC. Counsel argues that what the legislation does is to "flesh out" the provision of Article 24(3). This was enacted to reflect a subsequent agreement in the Joint Liaison Group which was formed to implement the Joint Declaration. Counsel submits that there is a presumption that legislation is intended to give effect to the terms of an international agreement. Hence, the Basic Law should be construed bearing in mind its international dimension. It is argued that any subsequent agreement between the parties to an international treaty regarding its interpretation or application is to be taken into account in construing it. Reliance is placed on Article 31(3)(a) of the Vienna Convention on the Law of Treaties. See also Bennion, Statutory Interpretation, 2nd Ed., pages 643-4.

67. Counsel also submits that the UN Convention on the Rights of the Child does not assist the appellants. In that Convention, it is stated that the United Kingdom has expressly reserved its right with regard to its immigration laws. This reservation still applies to Hong Kong as a result of the adoption of the Convention by the Chinese Government. (See the letter of 10th June 1997 from the UN Secretary-General.) It is submitted that because of this reservation, it is permissible to have wild powers within the framework of the Basic Law to legislate policy and to legislate provisions such as those in the No.2 Ordinance. Counsel submits that reference to the nationality law of the PRC (which does not differentiate between a legitimate and an illegitimate child) does not assist in the present case which deals with the question of the permanent resident's status or right of abode and not the acquisition of Chinese nationality. In any event, it is argued that the No.2 Ordinance refers to a child born in wedlock and not to legitimacy which is irrelevant.

68. On the other hand, Mr Chang for the appellants, submits that there is no question of the filling of a genuine lacuna in the Basic Law. It is a constitutional document. The words are of general application and are capable of applying to all persons of Chinese nationality born outside Hong Kong of Hong Kong permanent residents irrespective of status at birth. It is submitted that if it had been the intention of the Basic Law to limit this class of persons to those born in wedlock, it would have been easy to add just one Chinese character to Article 24(3) and that would have put the matter beyond doubt. Counsel relies on the case of Ministry of Home Affairs v. Fisher [1980] AC 319 which supports the submission that the word "child" in a constitutional document included an illegitimate child where the father only had the status that conferred citizenship and the mother did not. Mr Chang argues that it is unconstitutional to use ordinary legislation to claw back fundamental rights contained in a constitution on the basis that the constitution has imperfectly expressed the intention of the drafters. It is not for the legislature to interpret the Basic Law through fresh legislation that cuts down on rights by restricting the application of that paragraph to exclude a particular class of persons.

69. With regard to the reservation in the UN Convention on the Rights of the Child, counsel points out that the reservation refers only to a reservation of the right of the UK Government to apply its own immigration laws to those who do not have the right under the law to enter and remain in the UK. This means that the UK undertook to respect the rights of all children with the appropriate right of abode status but reserved the right to legislate through its nationality laws with regard to the acquisition of that status by those who do not have such right. It is submitted that such reservation cannot apply to the Hong Kong situation. This is because Hong Kong does not confer nationality through any of its laws. It is further submitted that the paragraph 1(2)(b) does not only create differential treatments. It is a discrimination which cannot be justified in that it contravenes Articles 2 and 26 of the ICCPR which guarantee the enjoyment of rights and equality before the law on a non-discriminatory basis. Counsel says it is discriminatory in two ways : between legitimate and illegitimate children on the basis of the status of a parent at birth and discrimination between illegitimate children of the father and mother. This is an arbitrary deprivation of right.

70. The judge dealt with this point as follows:

"The category of persons to whom Art.24(3) relates are the children of permanent residents who come within the category of persons in Arts.24(1) and 24(2). Their children are no less their children simply because they may have been born out of wedlock. Denying the right of abode in Hong Kong to children who rely on their father's status as permanent residents of the HKSAR simply because they were born out of wedlock is to deny the right of abode in Hong Kong to persons who plainly fall within Art.24(3). This was the first point which Mr. Chang took on the issue, and in my view there is no answer to it."

71. With respect, I agree with the reasons given by the learned judge. Article 24(3) refers only to persons of Chinese nationality born outside Hong Kong of Hong Kong permanent residents (falling within Article 24(1) and (2)). It makes no reference to legitimacy or illegitimacy. Nor does it refer to children born in or out of wedlock. On the face of Article 24(3), its wording is clear enough. I do not think there is any lacuna to be filled or that this Article needs to be "fleshed out". The argument of "fleshing out" the bones in Article 24(3) also seems to be self-contradictory and does not hold water. This is because within the definition in that paragraph, the illegitimate child of a woman is included whereas the illegitimate child of a man is not. Why should it flesh out a provision in favour of the mother and not the father? This is clearly discriminatory against the father and his child.

72. I am in entire agreement with the learned judge that Article 24(3) focuses on birth and not status. He said this :

"The mere fact that Art.24(3) did not define the relationship of parent and child did not mean that it could subsequently be defined in such a way as to exclude from the ambit of Art.24(3) children who come within it."

73. I would go further and say that the mere fact that Article 24(3) is silent on the relationship of parent and child is an indication that it is not the intention of the Article to differentiate between children born in wedlock and those born out of wedlock. The definition in paragraph 1(2) is not simply fleshing out what Article 24(3) means or intends to mean. It is an attempt to restrict the scope of that Article. As the learned judge correctly pointed out, what the definition does is to remove the right of abode in Hong Kong from the children of some permanent residents but not the others. It is contrary to Article 24(3).

74. For the arguments put forward by Mr Chang, I also take the view that the reservation by the UK in the UN Convention on the Rights of the Child applies to immigration legislation intended to affect persons without any right under the law in the first place and does not apply to any legislation which tries to affect persons who have the right of abode. Hence, the Convention applies. It is clear that paragraph 1(2)(b) is discriminatory and is in contravention of the Convention as well as the ICCPR (which is also reflected in the Bill of Rights) regarding equality before the law irrespective of status.

75. Article 31 of the Vienna Convention requires that account shall be taken in the interpretation of an international treaty of certain matters extrinsic to the treaty, namely, any subsequent agreement between the parties regarding the interpretation or application of the treaty; any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation and any relevant rules or international law applicable in the relations between the parties. On the general rule of interpretation of an international agreement, the learned authors of Oppenheim's International Law, 9th Ed. say at p.1271 :

"The general rule of interpretation laid down in Article 31 of the Vienna Convention adopts the textual approach: a. 'treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.' That such a textual approach - on which the International Law Commission was unanimous - is an accepted part of customary international law as suggested by many pronouncements of the International Court of Justice, which has also emphasised that interpretation is not a matter of revising treaties or of reading into them what they do not expressly or by necessary implication contain, or of applying a rule of interpretation so as to produce a result contrary to the letter or spirit of the treaty's text." (my emphasis)

Again at page 1272 :

"The terms of a treaty are to be given their ordinary meaning, unless to do so results in a meaning incompatible with the spirit, purpose and context of the clause or instrument in which the words are contained, in which case 'no reliance can be placed' on this rule of interpretation. Also if it established that the parties intended a term to have a special meaning it shall be given that meaning. The need to give terms their ordinary meaning has often been affirmed by the International Court."

76. In my view, Article 31 of the Vienna Convention does not require that in the interpretation of the relevant provisions of an international treaty, any subsequent agreement, which are to be taken into consideration, must always be adhered to. This is particularly the case if the ordinary meaning of the document is clear.

77. The wording in Article 24(3) is clear. It must be given its ordinary meaning. The Joint Declaration is an international treaty but its policies are incorporated into the Basic Law which is now the Constitution of the HKSAR. In the interpretation of the Basic Law, it is therefore necessary to bear in mind not only its international dimension, but also its constitutional and domestic dimensions. With regard to the interpretation of a constituion, I would respectfully agree with what Lord Wilberforce said in Ministry of Home Affairs v. Fisher [1980] 319, 329E :

"A Constitution is a legal instrument giving rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the Constitution commences."

78. This is the approach I would adopt in interpreting the provisions of the Basic Law which recognise and give effect to the freedoms and rights of Hong Kong residents. As a constitutional document, the Basic Law purports to confer the right of abode on a certain category of persons under Article 24(3). When the terms of that Article is clear, the Court should construe it in such a way as to give full recognition and effect to the rights it is intended to confer. I do not think that, short of any amendment to the Basic Law, the "agreement" of the JLG for the implementation of the Joint Declaration should be allowed to qualify or even take away what is clearly given under the Constitution.

79. I do not think Chinese nationality law is relevant since this case is not concerned with the nationality status of Chinese residents. The Court is dealing with an interpretation of the Basic Law, the status of Hong Kong permanent residents and their rights under the laws of Hong Kong. Nor do I think the case of Sit Yuk Cheung (unreported, HCMP No. 40 of 1990) is relevant. That deals with the provisions of the British Nationality Act 1981 regarding legitimacy. This is an entirely different situation.

80. In my view, whether a child is born in or out of wedlock is a matter of fact and whether a child is an illegitimate child or not is a matter of law and fact. Article 24(3) deals with the fact as to whether a child of Chinese nationality was born of a Hong Kong permanent resident. There is no question of any legitimacy or otherwise. Nor is there any question of a child born in or out of wedlock. The definition in the No.2 Ordinance is unconstitutional in that it is plainly in contravention with the clear wording of Article 24(3). It attempts to exclude from its ambit a category of persons by way of some arrangement or agreement between the JLG and now a piece of domestic legislation. Paragraph 1(2)(b) of Schedule 1 in effect seeks to rewrite Article 24(3). I do not think this is permissible.

CONCLUSION

81. For the reasons which I have given above, my conclusion on the issues argued so far is as follows:

(1) the No. 3 Ordinance is not unconstitutional (or inconsistent with the provisions of the ICCPR); but

(2) the retrospective provision is invalid being contrary to Article 24(3) of the Basic Law (and also contravenes Article 12 of the ICCPR); and

(3) the definition of the relation between father and child in the No. 2 Ordinance is unconstitutional being contrary to Article 24(3) of the Basic Law (and also contravenes the provisions of the UN Convention on the Rights of the Child and the ICCPR regarding equality before the law).

Nazareth, V.-P. :

Preliminary

82. My Lord, the Chief Judge, has amply set out the facts, background and statutory provisions concerned. I therefore do not need to repeat them and am able to go directly to the three principal issues we have to address:

(i) the constitutionality of the Immigration (Amendment) (No.3) Ordinance 1997 ("the No.3 Ordinance);

(ii) the validity of the retrospective provision of the No.3 Ordinance; and

(iii) the validity of the legitimacy or wedlock requirement in the definition of the parent and child relationship in the Immigration (Amendment) (No.2) Ordinance 1997 ("the No.2 Ordinance").

There is also the separate issue of the legality of the Provisional Legislative Council, which does not have to be addressed at this stage.

The constitutionality of the No.3 Ordinance

83. This issue turns upon the compatibility of the No.3 Ordinance with the Basic Law. As explained by my Lord, the applicants' case is that the No.3 Ordinance (together with the notice issued by the Immigration Department) is contrary to the Basic Law because it purports to restrict or qualify the right of abode which is conferred by Article 24. The three aspects of the Ordinance that they challenge are:

(a) The necessity to obtain a Certificate of Entitlement as the only way of proving the status of permanent residence;

(b) The necessity to apply while the applicant is present or resident in mainland China; and

(c) The necessity for the applicant to have obtained a valid travel document to which the Certificate has to be affixed before he can settle in Hong Kong.

The right of abode

84. Mr Denis Chang SC, for the applicants, contends that the right of abode comprises at least the four elements detailed in s.2A of the Immigration Ordinance (Cap. 115) in the following way:

"A Hong Kong permanent resident enjoys the right of abode in Hong Kong, that is to say he has, subject to section 2AA(2), the right -

(a) to land in Hong Kong;

(b) not to have imposed upon him any condition of stay in Hong Kong, and any condition of stay that is imposed shall have no effect;

(c) not to have a deportation order made against him; and

(d) not to have a removal order made against him."

This is not disputed.

General approach to main questions

85. As will be seen, in respect of issues (i) and (iii) I agree with my Lord's conclusions and reasons, although, where it applies I rely primarily upon the effect of Article 22(4) of the Basic Law in rejecting the applicants' challenges that give rise to those issues. I do so upon the same basis as Keith J, i.e. that if the No.3 Ordinance is sanctioned by the Basic Law, e.g. Article 22(4) then it could not be incompatible with the Basic Law. As to issue (ii) (the retrospective provision), it seems to me, as it did to Keith J, that Article 22(4) does sanction that provision. This therefore is the only material respect in which I differ from the Chief Judge. Accordingly, I am able to deal with issues (i) and (iii) quite briefly.

Article 22(4) of the Basic Law

86. The fourth paragraph of Article 22, which has come to be referred to as Article 22(4) reads as follows:

"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."

87. In construing Article 22(4) and particularly its reach, it is important to bear in mind that it is a provision of Hong Kong's constitution. It plainly is not concerned with the spelling out of specific details. It has therefore to be interpreted in a broad and purposeful manner.

88. It provides that for entry into Hong Kong, people from other parts of China must apply for approval. From whom the approval is to be obtained is not stated. But, as appears to be accepted on all sides, including Keith J below, approval must be obtained from the competent authorities in China. This would seem also to follow from the number of those "among them" who enter for the purpose of settlement having to be determined by those competent authorities. That is also consistent with the previous practice, the continuation of which is provided by provision in the Joint Declaration that is the acknowledged source of Article 22(4). This appears in Article XIV of Annex 1 to the Joint Declaration, in the following terms:

"Entry into the Hong Kong Special Administrative Region of persons from other parts of China shall continue to be regulated in accordance with the present practice."

89. The evidence is that the then practice required exit permits issued by the PRC authorities to be obtained before Mainland residents could leave their areas and provinces to come to Hong Kong, and that it was on the strength of such exit permits, that were issued entirely at the discretion of the Chinese authorities, that such residents were allowed to enter and settle in Hong Kong.

90. It also seems clear on the face of Article 22(4) in particular the prospective tenor in which it is couched, that it is only in respect of entry after its coming into operation that it requires application for approval of entry to be made. Certainly the language of Article 22(4) does not at all lend itself to any construction that it also requires persons who entered Hong Kong prior its commencement to obtain approval. Such prior entry would not have been entry into the HKSAR (which is what is expressly referred to); nor in that context would it have been possible for the competent authorities of the Central People's Government to consult the government of the HKSAR (also expressly referred to in Article 22(4)) prior to the latter being established upon the commencement of the Basic Law. This is a potentially significant aspect of Article 22(4), to which I shall return.

91. To proceed, since the people concerned are required to apply for approval to enter, it must follow, in my view, that it was the intention of Article 22(4) to authorise reasonable measures and powers to enforce that requirement. Removal from the Region of people who entered without applying and receiving approval seems to me to be both a necessary and reasonable sanction.

92. What then, it may be asked, is to be the position of persons who entered before 1 July 1997? The plain answer is that Article 22(4) simply does not deal with them; nor was it suggested that they were dealt with elsewhere in the Basic Law. I dare say that those who formulated, drafted and enacted the Basic Law would almost certainly not have wanted people who illegally entered Hong Kong, in breach of both Hong Kong and Mainland laws, to be able to jump the queue or acquire any advantage over others who have not resorted to illegal entry, or to escape other sanctions that formerly applied. But the plain fact of the matter is that they failed to make provision for anything of that sort. Certainly there appears to be nothing in the Basic Law that expresses such an intention or from which it could be inferred; and it is not suggested that there is. Bearing in mind that the right of abode has been conferred by Article 24 in unqualified terms it would need clear language to restrict or suspend it.

Necessity for Certificate of Entitlement

93. I agree with the Chief Judge, as stated, that the applicants' challenge in this respect must fail for the reasons he gives, including that a Certificate of Entitlement is not the only way of approving permanent residence status. I add that a procedure that is publicly notified must obviously carry the assurance that it will enable the Director of Immigration to verify claims submitted in that manner, and conversely that would enable claimants to adopt that effective procedure if they wish to. I see nothing unreasonable in that; on the contrary it should be of assistance to both sides. It is in any case not suggested that some sort of established procedure is not desirable or even unnecessary.

94. As to the submission on the applicants' behalf that claimants should be able to enter and to remain in Hong Kong to have their claims processed, this is plainly unrealistic, and, not to mince words, even absurd. Quite apart from the practicalities, as Keith J below pointed out, it confuses a bare claim to permanent residence status with the actual status of a permanent resident that has been verified.

The necessity to be in mainland China when applying

95. The suggestion that this subjects persons who have the right of abode to an exit permit regime imposed by an extraneous authority beyond Hong Kong's control and the quota it implements, and is contrary to the high degree of autonomy provided by the Basic Law, overlooks the effect of Article 22(4). This expressly provides that people from other parts of China must apply for approval, and implicitly, obtain it, from the competent authorities of the Central People's Government who can limit the number of those seeking entry for settlement after consulting the government of the Hong Kong Special Administrative Region.

96. I would mention also the two limbs of Mr Chang's submission that upon its true and proper construction, Article 22(4) does not apply to permanent residents who have a right of abode under Article 24. The first was that the Chinese text of Article 22(4) referred to people belonging to other parts of China as opposed to people from other parts of China, the suggestion being that persons with a right of abode in Hong Kong could not be said to belong to other parts of China. I am unable to accept that approach to the meaning of words that seem to me to be quite plain. It could only be warranted by compelling reasons, which are wholly absent. The other limb was that the absolute nature of the right of abode conferred by Article 24 could be reconciled with Article 22(4) without the latter encroaching upon it if it were construed as not applying to persons who had a right of abode and that accordingly this must be the right and proper construction. Again, in the face of the clear language of Article 22(4), not to mention the other considerations relied upon by my Lord, I would likewise reject this submission.

Requirement for a valid document to which the Certificate of Entitlement must be affixed

97. I also agree that it is plainly for children of Chinese nationality born outside Hong Kong of Hong Kong permanent residents to prove their own permanent residence status and for the Immigration Department to satisfy itself with such proof. Furthermore, for my part, I think it entirely reasonable that thereafter the fact of such satisfaction and status be required to be proved by means of a document of a suitable degree of security; moreover one that the holder was likely to require in any event.

98. It remains to say that although I agree with the reasons for rejecting Mr Ma's subsidiary submission in support of the requirement for Certificate of Entitlement to be affixed to travel documents, made upon the basis that the laws of the Sovereign should be recognised and respected, it seems to me that there may well be an additional reason for doing so. What he contends for could result in denying recognition and respect to the very law enacted by the Sovereign inter alia to regulate the application of the laws of the Mainland to HKSAR, i.e. the Basic Law. It can be seen from the second paragraph of Article 18 of that Law that the matter has not been overlooked and that in conjunction with Annex III to the Basic Law, a regime to regulate such application is established. The second paragraph of Article 18 provides that:

"National laws shall not be applied in the Hong Kong Special Administrative Region except for those listed in Annex III to this Law. The laws listed therein shall be applied locally by way of promulgation or legislation by the Region."

It is not suggested that Annex III includes any law requiring those leaving the Mainland to obtain Certificates of Entitlement.

99. In these circumstances, even if the unsatisfactory nature of such an uncertain basis of application is disregarded, it may well be that the application of National Laws having been dealt with, there is no room for application of such laws otherwise than in the manner provided. I put it no higher as the matter was not argued before us. In the result, and mainly upon the reasons given by my Lord, the Chief Judge, I agree that the challenge to the constitutionality of the No.3 Ordinance must fail.

The retrospective provision

100. The No.3 Ordinance provides in s.1(2) that the Ordinance (with the exception of two provisions) shall be deemed to have come into operation on 1 July 1997. The applicants challenge that retrospective effect.

101. I propose to deal first with Keith J's construction of Article 22(4) as imposing a restriction on the right of abode conferred by Article 24 of the Basic Law. As indicated, I agree with his construction. In the way I approach the matter, whether it be a restriction or qualification of the right itself or merely a suspension of the exercise thereof, seems to me to matter little. For entry into the HKSAR, people from other parts of China must apply for approval. And whether such a restriction or suspension, it would be incompatible with the right of abode conferred in unqualified terms by Article 22(4), unless otherwise authorised by the Basic Law. As I have already stated, in my view, Article 22(4) expressly or by necessary implication does sanction the restriction (or suspension) of the right of abode in respect of people from other parts of China.

102. I turn then to the question whether it does so in respect of the retrospective effect provided for in the No.3 Ordinance. As I have already noted, Article 22(4) is framed in prospective terms. It only took effect from 1 July 1997. Those who entered into Hong Kong from other parts of China on that day were required to have obtained the approval provided for. Their right of abode was subject to that requirement. The power of the HKSAR legislature to legislate must, in my view, have extended to the giving of effect to and the enforcement of that requirement from the time it took effect, i.e. 1 July 1997. In the context of Articles 22(4) and 24 as in some other contexts, the Basic Law simply spells out broad principles and propositions, leaving it to the HKSAR legislature to make the necessary subsidiary provisions. In my view, therefore, the retrospective provision was sanctioned by Article 22(4) and accordingly it is not unconstitutional.

103. As to Article 12 of the ICCPR, I accept Keith J's view upon the wording of that provision which reads: "No one shall be held guilty of any criminal offence ... ." The necessity from time to time to make retrospective legislation should not be absolutely barred simply because some persons might be exposed to criminal prosecution; rather they should have immunity from prosecution, as in fact they here appear to do.

The legitimacy/wedlock point

104. Upon this matter I agree entirely with the Chief Judge's conclusion and very full reasons given in the context of comprehensive consideration of all the points raised. No useful purpose would be served by repeating in other or the same words what he has said.

Conclusions

105. The effect of my foregoing views would be that since Article 22(4) applies only prospectively, those applicants who entered prior to 1 July 1997 were not subject to it and did not fall foul of its requirement for approval to leave the Mainland. If they meet the criteria in Article 24, by that fact alone they have the right of abode. Article 22(4) does not restrict or suspend it, or even purport to do so. It simply does not apply to them. In those circumstances it is difficult to see what good reason there could be why their claims should not be processed and determined without their being removed from Hong Kong. Nor was it suggested that the Basic Law empowered the HKSAR legislature to curtail their right of abode in any way. Their appeals must therefore succeed.

106. As to the remaining applicants who entered Hong Kong between 1 and 9 July inclusive, their entry was in breach of Article 22(4) which required them to obtain the approval of the competent authorities of the Central People's Government. Although they may meet the relevant criteria in Article 24, as asserted on their behalf, the right they would have received on 1 July 1997 under Article 24, would be subject to such sanctions as Article 22(4) imposes or authorises. As I have said, those imposed by the No.3 Ordinance seem to me to be authorised even as to their retrospective effect. Their appeals must therefore fail upon the grounds addressed.

Mortimer, V.-P. :

107. I have had the opportunity of reading the decisions of Chan CJHC and Nazareth V-P in draft. I do not propose to rehearse the facts save to say that the applicants are examples of those who fall into the following categories:

(1) Those who entered Hong Kong before 1 July 1997 either illegally or on a two-way exit permit who overstayed but who were in Hong Kong Special Administrative Region on 1 July 1997.

(2) Those who entered Hong Kong after 1 July 1997 but before 10 July 1997 without any permit and without going through an immigration check or a control point.

(3) The illegitimate child of a father who is a permanent resident with the right of abode in Hong Kong.

All are the children of Hong Kong permanent residents. They claim right of abode under Article 24(3) of the Basic Law.

The relevant statutory background

108. This appeal concerns the right of abode of permanent residents of the HKSAR under the Basic Law. The legislative history is relevant. Before 1 July 1997 a Hong Kong permanent resident was defined in Schedule 1 of the Immigration Ordinance (Cap 115). This included:

"Any person who is wholly or partly of Chinese race and has at any time been ordinarily resident in Hong Kong for a continuous period of not less than 7 years."

109. Section 2(a) provided:

"(1) A Hong Kong permanent resident enjoys the right of abode in Hong Kong, that is to say he has the right -

(a) to land in Hong Kong;

(b) not to have imposed upon him any condition of stay in Hong Kong, and any condition of stay that is imposed shall have no effect;

(c) not to have a deportation order made against him; and

(d) not to have a removal order made against him."

110. Both before and after 1 July 1997 that is the statutory definition of right of abode in Hong Kong. The classic common law definition of right of abode is to be found in DPP v Bhagwan [1972] AC 60 at 74B per Lord Diplock:

"Mr Bhagwan as a British subject had the right at common law to enter the United Kingdom without let or hindrance when and where he pleased and to remain here as long as he [wished]."

That is the right save insofar as it is restricted or qualified by domestic law and the Basic Law.

111. It was agreed in the Sino-British Joint Declaration that after 1 July 1997 the categories of permanent residents with right of abode in Hong Kong would be increased. Article XIV provided that:

"All Chinese nationals who were born or who have ordinarily resided in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region for a continuous period of 7 years or more, and persons of Chinese nationality born outside Hong Kong of such Chinese nationals;"

should have the right of abode. This applied to persons such as the present applicants who were born outside Hong Kong of parents with a right of abode.

112. In the Joint Declaration it was also agreed that

"Entry into the Hong Kong Special Administrative Region of persons from other parts of China shall continue to be regulated in accordance with the present practice."

113. These provisions of the Joint Declaration are enacted with variations in Articles 24 and 22 of the Basic Law. The relevant parts of Article 24 read:

"Residents of the Hong Kong Special Administrative Region ('Hong Kong resident') 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) ...

(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."

114. Article 22(4) provides:

"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."

115. So far the provisions deal with the right of abode of permanent residents. There are further statutory provisions which deal with the circumstances in which people from other parts of China (these applicants) may establish their status as permanent residents and take up their right of abode.

116. In the early hours of 1 July 1997 the provisional legislature passed the Immigration (Amendments) (No.2) Ordinance 1997 (Ordinance No.2). As was pointed out by Mr Chang SC, for the applicants, this Ordinance made necessary amendments to the Immigration Ordinance to take account of Article 24 of the Basic Law but largely left intact the way in which a person coming into Hong Kong from China could satisfy an immigration officer of his right to enter and remain. The Ordinance provides that if the facts are established by the person wishing to enter so that they "appear to the Director" the Ordinance provided that to be sufficient. Further, there is no provision that such a person must enter at any particular landing place or point of entry. It was, therefore, left to the person seeking entry to establish the necessary facts by such means as the Director of Immigration would accept.

117. In Schedule 1 clause 1(2) this Ordinance also defined the relationship of parent and child for the purposes of Article 24(4) by providing as follows:

"(2) The relationship of parent and child is taken to exist as follows -

(a) of a mother and child, between a woman and a child born to the mother in or out of wedlock;

(b) of a father and child, between a man and a child born to him in wedlock or, if out of wedlock, between a father and a child subsequently legitimated by the marriage of his parents; ...."

118. Ten days later, the Immigration (Amendment) (No.3) Ordinance 1997 (Ordinance No.3) was passed. This Ordinance seeks to provide the means (and the only means) by which a person formerly resident in another province of China may seek to come to Hong Kong to settle here. It provides special rules for such persons and seeks to regulate the way in which persons from other parts of China must establish their status as permanent residents, taking into account the provisions of Article 22(4).

119. In summary this Ordinance provides:

(1) That a person's status as a permanent resident can only be established by his holding (a) a valid travel document issued to him; and (b) a valid "Certificate of Entitlement" also issued to him and affixed to the travel document.

(2) That a person's right of abode in Hong Kong can only be exercised upon the establishment of his status in accordance with those provisions.

(3) That an application for a "Certificate of Entitlement" can only be made in mainland China through the Exit and Entry Administration of the Public Security Bureau (BEEA) in the district where he resides although the Certificate of Entitlement will be issued by the Immigration Department in Hong Kong. A one-way exit permit has to be applied for at the same time. This is a "valid" travel document to which the Certificate must be affixed.

(4) Save for some penal provisions the Ordinance was expressed to be retrospective to 1 July 1997.

The Issues

120. It is agreed that each applicant is a child of a permanent resident of the HKSAR. The question upon which these appeals turn is whether each child is entitled under Article 24 of the Basic Law to exercise his right of abode as a permanent resident. This depends mainly upon the resolution of the narrower issues for our determination to which Chan CJHC has adverted. We are concerned in this part of the appeal with issues (2) to (4) only.

The applicants' main contentions

121. It is convenient to summarise the applicants main contentions. These are:

(1) That each has a right of abode in the HKSAR because he is a child of a permanent resident (see Article 24(3)).

(2) That Article 22(4) of the Basic Law does not apply to permanent residents and therefore does not in any way limit a permanent resident's right of abode or fetter the exercise of such a right.

(3) That the right of abode is a recognised common law right to enter, remain and leave without "let or hindrance".

(4) That a potential permanent resident may establish his status by any credible evidence. He is not limited to the specific means specified in Ordinance No.3 because

(a) Article 22(4) does not apply to permanent residents and therefore any limitation which prevents a permanent resident from establishing his status by credible evidence is unconstitutional; and

(b) in any event the provisions of the Ordinance are so restrictive that they effectively deprive the permanent resident of his right of abode and are contrary to Article 24.

(5) Further, the provisions of Ordinance No.3 requiring a potential permanent resident to establish his right in the manner specified and no other after application through the BEEA in mainland China arbitrarily deprives such a person of the right to enter Hong Kong and should be struck down as contrary to Article 8(4) of the Hong Kong Bills of Rights which provides:

"No one who has the right of abode in Hong Kong shall be arbitrarily deprived of the right to enter Hong Kong."

which replicates Article 12(4) of the ICCPR as applied to Hong Kong in Article 39 of the Basic Law.

(6) That in any event the retrospective provision in s.1(2) of Ordinance No.3 is of no effect as it deprives those permanent residents already present in the Hong Kong Special Administrative Region of their accrued right to establish their status by credible evidence (the facts are accepted) and also the Ordinance provides for certain retrospective criminal offences. The provision therefore ought to be struck down as inconsistent with Article 12(1) of the Bill of Rights and Article 15(1) of the ICCPR. Article 12(1) provides:

"No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under Hong Kong or international law, at the time when it was committed."

Although s.1(2) of Ordinance No.3 provides that the retrospective effect shall not apply to certain offences, there are other provisions which have criminal sanctions. These provisions obviously breach Article 12(1) above.

(7) That those applicants who entered Hong Kong before 1 July, having either entered illegally or overstayed and who are permanent residents, have the right of abode. The provisions of Ordinance No.3, even if retrospective, cannot deprive them of that right. Both Ordinance No.3 and Article 22(4) regulates entry into the Hong Kong Special Administrative Region. These applicants did not enter the Hong Kong Special Administrative Region. They are permanent residents and are entitled to their right of abode under Article 24.

(8) Finally, applicant Cheung Lai-wah, is a permanent resident by descent under Article 24(3) as she is a person of Chinese nationality born outside Hong Kong to a parent who is a permanent resident even though she was born out of wedlock. The provisions of Schedule 1 clause 1(2)(b) provides otherwise. This sub-section is inconsistent with the Basic Law and of no effect.

Approach to the construction of the Basic Law

122. For the purposes of these appeals, the broad principles upon which I approach the construction of the Basic Law are as follows:

(1) The Basic Law is a constitutional document. Many Articles have effect upon one another but all the provisions must be given full effect.

(2) Where an Article is clear and specific, no difficulty arises. But often provisions are expressed in wide and general terms. It is in relation to these that difficulties of interpretation are likely to arise.

(3) That where legislation has been passed within the general provisions of the Basic Law to provide specific, detailed and certain rules, I would give effect to the legislation provided that the legislation is clearly within the provisions of the Basic Law and does not deprive a person of his constitutional rights or so restrict them as to amount to a deprivation.

(4) That if the purpose of a general provision can be ascertained either from its words or its history, I would adopt a boldly purposive construction, if this is not excluded by the terms used or other provisions of the Basic Law.

(5) I find some guidance from the general principles expressed in Attorney General of the Gambia v Jobe [1984] AC 689 at 700 per Lord Diplock when he said:

"A constitution and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction."

Also in Minister of Home Affairs v Fisher [1980] AC 319 at 328 Lord Wilberforce said:

"These antecedents... call for a generous interpretation avoiding what has been called 'the austerity of tabulated legalism,' suitable to give to individuals the full measure of the fundamental rights and freedoms referred to. ... Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, ..."

These principles which I have set out are far from exhaustive. I turn to the issues.

Article 24(3) and Article 22(4) of the Basic Law

123. The central matter for our decision is whether Article 22(4) applies to those who are permanent residents of the HKSAR under Article 24(3). Article 24(3) provides that those to whom it applies "shall be" permanent residents. Any consideration of these appeals must begin with that premise. Subject to the separate issue relating to the birth of Cheung Lai-wah, the applicants are all permanent residents of the SAR. The Director of Immigration submits, however, that even though it is conceded that they are permanent residents, their right of abode can only be exercised if they are from other parts of China and wish to settle here by complying with Article 22. If correct, this is a substantial derogation from the right of abode granted by Article 24 and defined in s.2A of the Immigration Ordinance. This was still in force on 1 July 1997 until later retrospectively amended by Ordinance No.3. Further, as submitted by Mr Chang, the provision in Article 22(4) may be said to be discriminatory against permanent residents from other parts of China compared with those from other parts of the world. This is a factor to be taken into account in deciding this point.

124. To the common lawyer, the provisions of Article 22(4) appear wide and uncertain in their effect. But its intention to regulate the entry into the HKSAR of persons who wish to settle here from other parts of China is beyond question. The Article follows the provision in the Joint Declaration that:

"Entry into the Hong Kong Special Administrative Region of persons from other parts of China shall continue to be regulated in accordance with the present practice."

This refers to the arrangement whereby the Director of Immigration before the handover accepted the entry into Hong Kong of those holding one-way permits for settlement and two-way permits for visits from mainland China.

125. Having regard to this history and more particularly the effect in Article 22(4) of the words "among them" it follows that those who wish to enter the region for the purpose of settlement must apply for approval for entry into the HKSAR. I conclude, therefore, that even permanent residents with a right of abode under Article 24 from other parts of China must apply for approval before entering into the Hong Kong Special Administrative Region for the purpose of settlement.

126. It is necessary to give effect to all the provisions of the Basic Law. If this is done, Article 24 must be read subject to the provisions of Article 22(4). On this I agree with Keith J below and the judgments already delivered.

127. This leaves for consideration the effect of Article 22(4) in the case of each applicant.

Issue (2) - The constitutionality of Ordinance No.3

128. Ordinance No.3 seeks to do two things. First, it seeks to provide specific and certain provisions under the general requirement of Article 22(4) that for entry into the HKSAR, people "must apply for approval". Secondly, it regulates the way (and the only way) in which a permanent resident from another part of China may establish his status. These two functions are accomplished together by an application through the BEEA for a one-way permit from the PRC authorities and a Certificate of Entitlement from the Director of Immigration.

129. For my part, I have no doubt that the provisions relating to the application for approval by obtaining a one-way permit is a provision which accords with Article 22(4) of the Basic Law. This Article clearly contemplates that entry will be regulated in accordance with previous practice and that the regulation of such matters will take place in mainland China beyond the jurisdiction of the HKSAR courts.

130. The limitations upon a permanent resident's right to establish his status must be examined more carefully. It is not suggested that such a person may ignore immigration control on the basis that he can prove he is a permanent resident. Some regulation is necessary. The background of social problems and pressures created in Hong Kong clearly indicate that some regulation is necessary, but this is not a matter relevant to the resolution of this issue. The question is whether the stringent provisions of the Ordinance either deprive a permanent resident of his opportunity to take up his right of abode, or so delay it, or make it so difficult to achieve that he in fact suffers a deprivation of the constitutional right provided by Article 22(4).

131. Although it must be conceded that the provisions of the Ordinance are stringent and inflexible, there are considerable advantages in having specific and certain provisions under which a permanent resident from other parts of China may establish his status as a permanent resident and the ability to exercise his right of abode in Hong Kong when the administrative responsibility for carrying them out rests largely outside the jurisdiction of the court and beyond the powers of the legislature.

132. I agree, therefore, with the reasons given both below and in other judgments of this Court that Ordinance No.3 is constitutional and its provisions are not contrary to the Basic Law. The discriminatory provisions are provided for in the Basic Law. They are constitutional and I agree with the Chief Judge that Article 31 does not apply to persons residing in mainland China until after they have established their status under Ordinance No.3.

Issue (3) - Is the retrospective provision in No.3 Ordinance valid?

133. Section 1(2) of the No.3 Ordinance provides (with limited exceptions) that the Ordinance shall be deemed to come into operation on 1 July 1997 although the Ordinance was passed on 10 July 1997.

134. The applicants' main argument that the effect of the Ordinance was to retrospectively deprive them of their accrued rights of abode as permanent residents present in Hong Kong on 1 July 1997 falls away, in my judgment, if the exercise of that right of abode is limited by Article 22(4) as I conclude. A retrospective provision in legislation is not per se unconstitutional or unlawful, or in breach of the Bill of Rights or the ICCPR, as applied in the Basic Law. In my judgment, it cannot be said that the Ordinance has by its retrospective provision arbitrarily deprived the applicants of an accrued right of abode when the exercise of the right of abode is constitutionally limited and the provisions of Ordinance No.3 are themselves consistent with the Basic Law. In these circumstances, I find it impossible to conclude that the relevant retrospective provisions are not valid and effective.

135. As to the submissions that the Ordinance is inconsistent with Article 15(1) of the ICCPR and Article 12(1) of the Bill of Rights, I accept the Ordinance criminalises some conduct which is not exempted in s.1(2). But I take the view that the judge's approach below was correct, having regard to the whole of the circumstances and particularly the fact that the Ordinance is consistent with Article 22(4). I also agree with the approach of Nazareth VP where he said that the necessity from time to time to make retrospective legislation should not be absolutely barred simply because some persons might be exposed to criminal prosecution; rather than they should have immunity from prosecution as they appear to do in fact here.

Issue (4) - The validity of that part of No.2 Ordinance which affects the illegitimate children of male Hong Kong permanent residents

136. This issue concerns Cheung Lai-wah. Her father is a Hong Kong permanent resident but her mother died before her parents had married. She claims to have acquired the status of permanent resident and the right of abode by descent under Article 24(3) which provides:

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

(1) ...

(2) ...

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

137. Ordinance No.2 provides further definitions of permanent residents of the HKSAR and those who are entitled to the status of permanent resident by descent. Schedule 1 clause 2 reads:

"(2) Permanent resident of the Hong Kong Special Administrative Region

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

(a) ...

(b) ...

(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) or (b) if the parent had the right of abode in Hong Kong at the time of the birth of the person."

Clause 1 of the same schedule provides an interpretation of the relationship of parent and child. It reads:

"1. Interpretation

(1) ...

(2) The relationship of parent and child is taken to exist as follows -

(a) ...

(b) Of a father and child, between a man and a child born to him in wedlock or, if out of wedlock, between a father and the child subsequently legitimated by the marriage of his parents;

(c) ..."

138. Mr Geoffrey Ma SC for the Director of Immigration submits, as he did below, that the provision in Article 24(3) is a wide, general and vague provision under which the legislature is constitutionally entitled to provide clear, certain and specific provisions. The Ordinance makes certain a wide and uncertain provision.

139. For my part, I accept the principle advanced by Mr Ma. I am, however, quite unable to accept its application to these provisions. I accept that the words "persons ... born ..." will as a starting point in a statute mean persons born legitimately within wedlock or later legitimated. But this is clearly not the meaning for which the Director of Immigration can contend here. It is to be noted that Schedule 1 clause 2(a) defines the relationship of parent and child to exist between a mother and child born out of wedlock.

140. I find myself entirely in agreement with Keith J and the other members of this Court that the relevant provisions of Ordinance No.2 seek to detract from the constitutional right given in clear terms to persons born outside Hong Kong of permanent residents. I agree with Keith J that Article 24(3) is concerned with birth and not status. The consequence is that Schedule 1 clause 1(2)(b) is unconstitutional and inconsistent with the Basic Law and invalid. In those circumstances, I do not find it necessary to address the other arguments advanced.

Appeals CACV 216/1997 and CACV 217/1997

141. The applicants in these two appeals entered Hong Kong otherwise than through a control point on 1 July 1997. None of them had either a one-way permit (a valid travel document) nor a Certificate of Entitlement under the provisions of No.3 Ordinance. For the reasons given, they must fail on the issues argued so far.

142. Before leaving these appeals, my reasons for rejecting the present issues are strengthened by my approach to the remaining appeals to which I now turn.

Appeals CACV 203/1997 and CACV 218/1997

143. 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.

144. It is submitted that they are permanent residents by descent under Article 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 Article 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 Article 22(4) was not in force. Therefore, they take advantage of their status and right of abode under Article 24 but are not caught by either the provisions of Article 22(4) or the retrospective provisions of No.3 Ordinance.

145. The position of these applicants as at mid-night plus on 1 July 1997 was that they had become permanent residents by descent under Article 24(3). But Article 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.

146. 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 Article 22(4).

147. The purpose and intent of Article 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 Article 22(4) as clarified by Ordinance No.3.

148. 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 Article 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.

149. The remaining question is whether the language of Article 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 Article 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.

150. I would decide, therefore, that Article 22(4), as it applies to a permanent resident, provides that before he may exercise his right of abode in the HKSAR, he must apply for and obtain approval for entry for the purpose of settlement. This involves an application to enter and remain which in turn involves the obtaining of a one-way permit. This necessarily involves a recognition of the validity of one-way permits issued by Mainland authorities as constitutionally provided for by Article 22(4).

151. These reinforce the reasons I have earlier expressed to support my view that Ordinance No.3 does not arbitrarily deprive the applicants of an accrued right of abode.

152. For the reasons I have attempted to express, I conclude that these two applicants although they are permanent residents, may not exercise their right of abode until they have applied for and have obtained the necessary approval for entry and settlement in Hong Kong. The provisions of Ordinance No.3 require that such applications must be made to the BEEA in mainland China and the other provisions of Ordinance No.3 must be complied with.

153. I would, therefore, find against each of the applicants on the issues we have heard and reject the argument of the Director of Immigration in Cheung Lai-wah's case.

Chan, CJHC :

154. The decison of this Court on the issues argued is as follows. We decide unanimously that the No.3 Ordinance is constitutional. We also decide unanimously that the definition of the relation between father and child in the No.2 Ordinance is not constitutional. On the retrospective provision in the No.3 Ordinance, one member of this Court decides that it is invalid and does not affect the appellants; another member of this Court decides that it is valid but does not affect those appellants who came to Hong Kong before 1st July 1997 and the third member of this Court decides that it is valid and affects all the appellants.

155. The result is that we decide by majority that the retrospective provision does not affect Miss Cheung Lai Wah in Civil Appeal No. 203 of 1997 and Miss Yeung Ni Ni in Civil Appeal No.218 of 1997. Miss Cheung's cross appeal and Miss Yeung's appeal will succeed and do not depend on the issue of the legality of the Provisional Legislative Council. We also decide by majority that the retrospective provision affects Miss Ng Ka Ling and Miss Ng Tan Tan in Civil Appeal No.216 of 1997 and Mr Tsui Kuen Nang in Civil Appeal No. 217 of 1997. In order to succeed in their appeals, they may wish to make further submissions on the issue of the legality of the Provisional

Legislative Council. The Immigration Department's appeal in Civl Appeal No. 203 of 1997 will fail. We shall hear counsel on the further conduct of these appeals.