CHAN KAM NGA AND OTHERS v. THE DIRECTOR OF IMMIGRATION

1997 A.L. No. 104

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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[Para. 2(c) of the new Sch. 1 to the Immigration Ordinance (Cap. 115)(substituted by section 5 of the Immigration (Amendment)(No. 2) Ordinance (No. 122 of 1997)) limits the right of abode in Hong Kong to persons whose mother or father had acquired the right of abode in Hong Kong by the date of their birth. The court declared that that limitation contravened Art. 24(3) of the Basic Law.]

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J U D G M E N T

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Introduction

This is another case concerning children born and living in mainland China who claim to have acquired the right of abode in Hong Kong. The case raises a short but very important issue on the proper construction of Art. 24(3) of the Basic Law. It affects not merely the many children who claim to have already acquired the right of abode in Hong Kong, but the very many people who hope to acquire the right of abode in Hong Kong in the future by virtue of their parentage.

The issue, in short, is this. The Basic Law gives the right of abode in Hong Kong to the children of persons who themselves have the right of abode in Hong Kong. However, the legislation which was enacted to implement this right limited the right of abode in Hong Kong to the children of persons who had acquired the right of abode in Hong Kong by the time the children were born. The issue which the case raises is whether that legislative provision contravenes the Basic Law.

The Relevant Provisions

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

"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 ..."

(1) relates to place of birth, (2) relates to residence in Hong Kong, and (3) relates to parentage.

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 That schedule had to be repealed and substituted by one which complied with, and implemented in detail the provisions of, Art. 24 of the Basic Law.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

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

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

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

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

(d) ...

(e) ...

(f) ..."

The Applicants

There are 81 Applicants in all. One of them, Lai Sze Nga (A21), has been chosen as a representative applicant, but the case of each of the Applicants is the same. Many of them are children, but whether they are children or not, they all make the following claims:

(i) they are Chinese nationals born in mainland China;

(ii) neither of their parents had become Hong Kong permanent residents with the right of abode in Hong Kong by the date when they were born;

(iii) however, at least one of their parents had become a Hong Kong permanent resident, with the right of abode in Hong Kong, by the date when they decided to exercise what they claim to be their right of abode in Hong Kong.

Since neither of their parents had acquired the right of abode in Hong Kong at the time of their birth, they have not acquired the right of abode in Hong Kong unless the words "if the parent had the right of abode in Hong Kong at the time of the birth of the person" are removed from the new para. 2(c) of Sch. 1 to the Immigration Ordinance as being incompatible with the Basic Law.

The Arguments

The Applicants' case, as succinctly developed by Ms. Gladys Li S.C. on their behalf, is simple. There is nothing in Art. 24(3) which restricts the persons who are covered by it to those who were born after their mother or father had acquired the right of abode in Hong Kong. Since the legislation restricts the acquisition of the right of abode in Hong Kong of those who claim the right of abode by parentage to persons whose mother or father had acquired the right of abode in Hong Kong by the date of their birth, the legislation was imposing a condition on the acquisition of the right of abode in Hong Kong which was not in Art. 24(3). The legislation therefore contravenes the Basic Law because it denies the right of abode in Hong Kong to many persons who fall within Art. 24(3).

Mr. Geoffrey Ma S.C. for the Respondent, in an equally concise submission, took three points:

(i) Art. 24(3) should be construed as limiting the right of abode in Hong Kong by parentage to persons whose mother or father had acquired the right of abode in Hong Kong by the date of their birth. Accordingly, the legislation was entirely consistent with Art. 24(3).

(ii) Alternatively, Art. 24(3) should be regarded as being reasonably capable of bearing both constructions. In these circumstances, it is open to the court to consider various extrinsic materials. An examination of those materials, namely an agreement reached in the Joint Liaison Group, shows that Art. 24(3) should be construed as limiting the right of abode in Hong Kong by parentage to persons whose mother or father had acquired the right of abode in Hong Kong by the date of their birth.

(iii) Alternatively, Art. 24(3) did not address the question whether the right of abode in Hong Kong acquired by parentage should be limited to persons whose mother or father had acquired the right of abode in Hong Kong by the date of their birth. It was therefore open to the Legislature, without contravening the Basic Law, to legislate on the issue.

The Lacuna Issue

I cannot go along with argument (iii). Art. 24 addressed the question as to who would have the right of abode in Hong Kong from 1st July 1997. It identified the various categories of persons who would be Hong Kong permanent residents. The fact that Art. 24(3) did not expressly deal with whether the mother or father of persons who claim the right of abode in Hong Kong by parentage had to have acquired the right of abode in Hong Kong by the date of their birth does not mean that there is a lacuna in Art. 24(3). The fact remains that the right of abode in Hong Kong is acquired by whoever comes within the terms of Art. 24(3). That is not to say that the Legislature does not have a role to play in putting flesh on the bones of Art. 24(3). For example, Art. 24(3) does not attempt to address how the facts which give rise to the right of abode in Hong Kong by parentage are to be established. Thus, in Cheung Lai Wah v. The Director of Immigration [1997] 3 HKC 64, it was held that that was a legitimate area for statutory intervention. But unlike that issue, the issue as to who would have the right of abode in Hong Kong was specifically addressed in Art. 24.

The Agreement Reached in the Joint Liaison Group

I turn to whether the agreement reached in the Joint Liaison Group between the British and Chinese sides is a permissible aid to construction. The agreement relied upon was that Art. 24(3) "should be understood" as granting the right of abode in Hong Kong to persons of Chinese nationality born outside Hong Kong

"if at the time of his or her birth, whether before or after the establishment of the Hong Kong Special Administrative Region, one of his or her parents is a Chinese national who has right of abode in Hong Kong."

That was agreed at the 24th meeting of the Joint Liaison Group. There was no evidence before me as to when that meeting took place, though since it was on 3rd January 1994 that the Security Branch informed the Legislative Council of the agreement, I assume that the agreement was reached towards the end of 1993.

I do not regard this agreement as a permissible aid to the construction of Art. 24(3). It is important to note that the agreement was reached well after the promulgation of the provision which the Court has to construe. I accept that events which occurred in relation to a legislative provision subsequent to its enactment may, in an appropriate case, clarify the meaning intended by the legislature: see the references to the post-enactment history of a legislative provision in Halsbury's Laws, vol. 44(1), 4th ed. (reissue), paras. 1414 and 1427-1430. But although the agreement reached in the Joint Liaison Group purported to interpret Art. 24(3) in a particular way, that agreement does not mean that both sides believed that that was the correct interpretation or that it was the interpretation which those who drafted the Basic Law and the National People's Congress which adopted it had in mind. The agreement may simply have reflected the way in which both sides wanted Art. 24(3) to be implemented. In other words, there is no evidence before me whatsoever which suggests that the agreement reflected what both sides thought had originally been intended.

The Proper Construction of Art. 24(3)

In the light of my conclusions on Mr. Ma's arguments (ii) and (iii), I return to his suggested construction of Art. 24(3). He argued that the language of Art. 24(3) is plain. The persons to whom Art. 24(2) relates are persons who have acquired the status of Hong Kong permanent resident by not less than seven years' continuous residence in Hong Kong. Anyone who claims to have acquired the status of Hong Kong permanent resident under Art. 24(3) through such a parent must have been born by the time the parent acquired the status of Hong Kong permanent resident under Art. 24(2). Otherwise, such a person would not have acquired the status of Hong Kong permanent resident at the time of his birth, and would only have acquired it when his parent acquired it. That is borne out by the language of Art. 24(3), which refers to persons "born" outside Hong Kong. The qualifying event is said to be their birth, and that is because that is the relevant time to consider the status of the person through whom the status of Hong Kong permanent resident is claimed.

I cannot go along with this argument. Although the word "born" is used in Art. 24(3), the paramount focus of Art. 24(3) is on parentage. It focuses primarily on descent. That is not to say that it does not also focus on birth. Of course it does, but the focus on birth is not on the time of birth, but on the place of birth, i.e. outside Hong Kong. For my part, therefore, I do not think that the language of Art. 24(3) points overwhelmingly in favour of the construction for which Mr. Ma contends.

Not without hesitation, I have concluded that Ms. Li's construction of Art. 24(3) is preferable. There are no express words of limitation in Art. 24(3). If Mr. Ma's construction was correct, it would be necessary to read Art. 24(3) as if it included words of limitation which are not there. I would have been quite prepared to include such words of limitation in order to give effect to what those who drafted the Basic Law and the National People's Congress which adopted it had intended, i.e. to give Art. 24(3) a generous and purposive construction. However, I could only do that if I knew what they had intended: see Lord Diplock's speech in Wentworth Securities Ltd. v. Jones [1980] AC 74 at pp.105E-106A. As it is, I am completely in the dark about what they intended. I say that for the following reasons:

(i) The Joint Declaration may be used as an aid to construing the Basic Law, because the Joint Declaration is expressly referred to in the preamble to the Basic Law as containing the elaboration of the basic policies of China regarding Hong Kong, and because the Basic Law was enacted "in order to ensure the implementation" of those policies. However, no help is in fact to be found in the Joint Declaration, because it simply provided, in Annex XIV, that the persons who shall have the right of abode in Hong Kong includes

"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".

In other words, Arts. 24(1)-(3) of the Basic Law did little more than to reproduce the language of the Joint Declaration.

(ii) No travaux preparatoires explaining why the relevant provisions in the Joint Declaration and the Basic Law were couched in the particular language which was used have been referred to me, and I therefore assume that no such travaux preparatoires exist. Nor has any evidence from any other legitimate source been placed before me identifying what the statutory intention was.

Finally, although there is no material before me upon which I could construe Art. 24(3) purposively, I can take into account, as an aid to construction, the consequences of construing Art. 24(3) in a particular way. The canons of statutory construction, for example, encourage the court

(i) to find against a construction which would produce anomalies, since anomalies are unlikely to have been intended, and

(ii) to find against a construction which involves the splitting up of families, since "the family is the natural and fundamental group unit of society and is entitled to be protected by society and the State": Art. 23(1) of the International Covenant on Civil and Political Rights, which Art. 39 of the Basic Law requires to be implemented through the laws of the HKSAR.

There is one surprising result of adopting Ms. Li's construction of Art. 24(3). That is that Chinese nationals born in China with no previous connection with Hong Kong may acquire the right of abode in Hong Kong in middle age if an elderly parent were then to complete seven years' continuous residence in Hong Kong. However, there is an even more surprising result if Mr. Ma's construction of Art. 24(3) is adopted. Not only could parents be separated from their children, but children could be separated from their younger brothers and sisters. That would happen if their brothers and sisters, unlike them, were born after their mother or father had acquired the right of abode in Hong Kong under Art. 24(2). I regard these considerations as powerful support for the construction of Art. 24(3) which Ms. Li advanced.

Conclusion

For these reasons, I have come to the conclusion that the words "if the parent had the right of abode in Hong Kong at the time of the birth of the person" in the new para. 2(c) of Sch. 1 to the Immigration Ordinance contravene Art. 24(3) of the Basic Law. I make a declaration to that effect. Although other relief is sought in the Notice of Application, that is the only relief which Ms. Li asked me to make. As in the Cheung Lai Wah case, I do not think that it would be right to make an adverse order as to costs since this was in the nature of a test case. Accordingly, the order nisi I make as to costs is that there should be no order as to the costs of the application, save for taxation of the Applicants' costs pursuant to the Legal Aid Regulations.