CHAN KAM NGA v. DIRECTOR OF IMMIGRATION

FACV No. 13 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 13 OF 1998 (CIVIL)

(ON APPEAL FROM CACV No. 40 OF 1998)

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J U D G M E N T

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Chief Justice Li:

1. I agree with Mr Justice Bokhary PJ's judgment.

Mr Justice Litton PJ:

2. I agree with Mr Justice Bokhary PJ's judgment.

Mr Justice Ching PJ:

3. I agree with Mr Justice Bokhary PJ's judgment.

Mr Justice Bokhary PJ:

4. Of these 81 appellants, 69 are minors suing by their next friends while 12 are adults suing in the normal way. All 81 came to Hong Kong from the Mainland. Some came here on two way exit permits, were permitted to remain for limited periods, and then overstayed. Others were brought here as unauthorized entrants. The 46th, 48th and 58th appellants arrived here after 1 July 1997. The other 78 arrived here before that date. Anyway all 81 are here now. They all face orders made by the Director of Immigration ("the Director") for their removal to the Mainland. And they all resist such removal by asserting the right of abode here. This raises a number of questions. But the present appeal concerns only one of these questions: can a child become a Hong Kong permanent resident under category (3) of Article 24 of the Basic Law by virtue of a parent's Hong Kong permanent resident status under category (2) of that article not only if such status of the parent's had been acquired before the child's birth but even if it had not been acquired until after the child's birth?

5. How this question is answered will affect not only these 81 appellants but many other persons now and in the future. The appellants submit that it should be answered "yes". But the Director submits that it should be answered "no". By his judgment of 26 January 1998, Keith J answered it "yes" in the appellants' favour. But by their judgment dated 20 May 1998, the Court of Appeal (Chan CJHC, Nazareth VP and Mortimer VP) reversed the judge and answered it "no" in the Director's favour. The question is now before this Court. And I approach it with a keen sense of its wide implications.

The right of abode

6. It is natural that Article 24 is the first article in that chapter of our constitution, the Basic Law, which contains our fundamental rights and duties. For it is the article which says who has the right of abode in Hong Kong. And the right of abode in a place is the fundamental right without which the full array of fundamental rights available in that place cannot be accessed. This is because the right of abode in a place is the right, in the eyes of its law, to call that place home: coming and going at will; staying as long as you like.

Conferred on permanent residents

7. In Hong Kong this key right is conferred on permanent residents. Throughout the world constitutions extend their overarching protection to all persons within the jurisdiction, but reserve the fullest measure of rights to citizens. Our constitution follows this global pattern: doing so by reference to permanent residents rather than citizens. Article 24 lays down six categories of permanent residents. And it confers on all of them, whichever category they come within, the right of abode here along with all the other rights enjoyable here (subject only to the Chinese citizenship qualification necessary for certain official posts).

8. The six categories of persons who constitute the permanent residents of Hong Kong are defined by the second paragraph of Article 24 as:

"(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) Persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region;

(5) Persons under 21 years of age born in Hong Kong of those residents listed in category (4) before or after the establishment of the Hong Kong Special Administrative Region; and

(6) Persons other than those residents listed in categories (1) to (5), who, before the establishment of the Hong Kong Special Administrative Region, had the right of abode in Hong Kong only."

The crucial facts

9. Looked at in the context of categories (2) and (3) of Article 24, the following crucial facts common to all of these 81 appellants are to be noted:

(1) All of them are of Chinese nationality.

(2) They were all born outside Hong Kong (namely in the Mainland).

(3) Each of them has a father who is a Hong Kong permanent resident by virtue of category (2) i.e. through being a Chinese citizen and having been ordinarily resident in Hong Kong for a continuous period of not less than seven years. (It may be mentioned in passing, although it cannot affect the result of this case one way or the other, that the mothers of 25 of these appellants also happen to be Hong Kong permanent residents by virtue of category (2).)

(4) No parent of any appellant had become a Hong Kong permanent resident until after that appellant's birth: because no such parent had been ordinarily resident in Hong Kong for a continuous period of seven years until after his or her appellant child's birth.

10. So this appeal turns on whether that fourth fact operates to take these appellants and other persons like them out of category (3).

The rival contentions

11. For the appellants it is contended that the child of a Hong Kong permanent resident is a person born of a Hong Kong permanent resident whether that parent became a Hong Kong permanent resident before or after that child's birth. For the Director it is contended that the child of a Hong Kong permanent resident is not a person born of a Hong Kong permanent resident unless that parent had become a Hong Kong permanent resident before that child's birth.

The natural construction

12. In the Court of Appeal the Chief Judge of the High Court said that "The focus is certainly on birth". Nazareth VP said that: "The criterion 'born ... of' a permanent resident, immediately and naturally goes to the time of birth". And Mortimer VP said that the words of Article 24 "focus upon parentage, the status of the parents, the place of birth and the birth itself". As it seems to me, however, the word "born" had to be used in category (3) because the category covers persons born outside Hong Kong. Whatever else the words "born .. of" do or do not cover, they must cover a birth child. Each of these 81 appellants is the birth child of the parent on whose Hong Kong permanent resident status he or she relies.

13. Simply as a matter of giving words their natural meaning, I am of the view that the construction for which the appellants contend is correct.

14. Let me explain why I am of that view. Take any parent and birth child. Asked if the child is a person born of the parent, one is bound to answer "yes". Now take the same parent and child, adding the fact that the parent is a Hong Kong permanent resident. Asked if the child is a person born of a Hong Kong permanent resident, one would surely still answer "yes". One would not pause to enquire when the parent became a Hong Kong permanent resident. As a matter of ordinary language, that is irrelevant to the question of whether the child is a person born of a Hong Kong permanent resident.

And the purposive one too

15. That natural meaning gives effect to an obvious purpose of Article 24. That article, in conferring upon a child the right of abode in Hong Kong through a parent who has that right, serves the purpose of enabling that child to be with that parent here, thereby securing the unity of the family. If such a purpose needs reinforcement then it is to be found in article 19(1) of the Bill of Rights which provides ? word for word as article 23(1) of the International Covenant on Civil and Political Rights ("the ICCPR") does ? that: "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State". And Article 39 of the Basic Law provides that the "provisions of [the ICCPR] as applied to Hong Kong shall remain in force". For this humane purpose it matters not whether the parent's right of abode here had been acquired before the child's birth or afterwards.

16. In Minister of Home Affairs v. Fisher [1980] AC 319 the Privy Council was concerned with the Bermuda Constitution. Delivering their Lordships' advice, Lord Wilberforce pointed out (at p.330 B-E) that international instruments, including the ICCPR, could not be disregarded as influences upon the legislative policy behind the Bermuda Constitution even though those instruments had no legal force in Bermuda. They were matters which must have been present to the mind of the draftsman. In our case the position is much stronger. For as we have seen, Article 39 of the Basic Law gives article 23(1) of the ICCPR constitutional force in Hong Kong.

Typical population growth

17. In rejecting the construction of Article 24 contended for by the appellants, the Chief Judge of the High Court said:

"According to that construction, if an elderly person becomes a permanent resident in Hong Kong after a continuous period of seven years, then all of his children in Mainland China would automatically become permanent residents by virtue of Article 24(3). It would follow that each one of the children of each of his children would be entitled to apply for permanent resident status under the same Article. This 'family tree' would grow to a number which is difficult to imagine. In my view, this cannot be the intention of the Basic Law. It is clearly not the intention of the drafters of the Basic Law that thousands of persons born in Mainland China would one day become permanent residents of the HKSAR just as one person in say his late 70s has managed to become a Hong Kong permanent resident by staying here for a continuous period of 7 years many years down the road."

18. What that example does not do is spell out how long it would be before there came the "one day" when thousands of the elderly person's descendants born in the Mainland would become Hong Kong permanent residents. Category (3) does not cover the grandchildren of persons covered by categories (1) or (2): grandchildren are not "born of" their grandparents. Mainland-born grandchildren would not come within category (3) unless and until at least one of their own parents had ordinarily resided in Hong Kong for a continuous period of at least seven years. And this seven-year period would apply to each succeeding generation born in the Mainland.

19. In any event, it is open to question whether Mainland-born descendants are the ones who would most add to Hong Kong's population. If the children of the elderly person given in the example settled in Hong Kong, their children would probably be born here, as would succeeding generations. But the growth of Hong Kong's population through generation after generation of persons born and brought up here would be typical of population growth throughout the world.

20. I do not propose to give examples, extreme or otherwise, of situations which acceptance of the Director's construction could bring about. It is enough simply to note that such construction, if accepted, is bound to result in many instances of siblings some of whom do not have the right of abode in Hong Kong and some of whom do. This would be because some would have been born before a parent achieved seven years' ordinary and continuous residence here, and some would have been born after that.

21. Two arguments advanced on behalf of the Director remain to be considered.

The Sino-British Joint Liaison Group argument

22. Of these the first concerns the Sino-British Joint Liaison Group. How this argument is put on behalf of the Director may be taken

from the Director's printed case which deals with it in two paragraphs which read:

" Insofar as there is any ambiguity or doubt as to the true construction of BL24(3), the interpretation given to it by paragraph 2(c) of Schedule 1 to the No. 2 Ordinance in fact also reflects the agreement of the Joint Liaison Group set up under the Joint Declaration and there is a presumption that legislation is intended to give effect to the terms of an international agreement.

Furthermore, as a matter of law, any subsequent agreement between the parties to an international treaty regarding its interpretation or as to the application of its provisions is required to be taken into account in construing it: see Article 31(3) of the Vienna Convention. This rule applies whether or not there is any ambiguity."

23. The first part of this argument can be disposed of on the simple basis that the wording of Article 24 and its obvious purpose leaves no ambiguity or doubt as to the correctness of the appellants' construction. The second part of the argument is answered by what the judgment of the Court delivered today by the Chief Justice in FACV Nos 14, 15 and 16 of 1998 says in regard to the Sino-British Joint Liaison Group and the Vienna Convention. Taking into account the matters put forward by the Director does not dictate acceptance of the Director's construction.

24. I would take this opportunity to make it clear that on all points, whether as to these or other matters, what I say in this judgment is of course to be read subject to what the whole Court, speaking with one voice, says in that judgment.

The lacuna argument

25. The second of these two arguments of the Director's is the one summarized thus in a single paragraph of the Director's printed case:

" Alternatively, the Director submits that insofar as BL24(3) is silent on the question whether at the time of birth, one of the parents has to be a Hong Kong permanent resident (as defined in BL24(1) and (2)), this lacuna can be (and has been) filled by the legislature."

26. This argument can be disposed of even more shortly. Article 24's silence on the time of birth does not leave a lacuna in that regard. The natural interpretation, which gives effect to the purpose of Article 24, simply disregards the time of birth.

Unconstitutional addition

27. The Immigration (Amendment) (No. 2) Ordinance 1997 was passed on 1 July 1997. By s.5 this amendment Ordinance repealed Schedule 1 of the Immigration Ordinance, Cap. 115, and replaced it with a new Schedule 1, paragraph 2(c) which is similar in substance to category (3) of Article 24 save that it includes these words which are not to be found in category (3): "if the parent had the right of abode at the time of the birth of the person." I will refer to these words as "the additional words".

28. Mr Geoffrey Ma SC for the Director conceded in the course of the argument that the use of the "right of abode" concept in the additional words would be unconstitutional even if the introduction of the "time of birth" limitation by way of the additional words were constitutional. Mr Ma's concession was made ? and rightly made ? for these reasons. There was a time when there was no such thing as the right of abode in Hong Kong. Instead there was the right to land and remain here. And even after there came into existence such a thing as the right of abode here, a person did not acquire that right simply by being a Chinese citizen who was born here or who had ordinarily resided here for a continuous period of not less than seven years.

29. Of course if the only vice in the additional words lay in their use of the "right of abode" formula, that vice could be removed very easily. All that would be needed is a legislative amendment abandoning that formula and replacing it with a reference to Chinese citizenship coupled with either birth in Hong Kong or not less than seven years' ordinary and continuous residence here.

30. But that is not the only vice in the additional words. The "time of birth" limitation would be unconstitutional if the Director's construction of Article 24 is wrong and the appellants' construction thereof is right. For the reasons which I have given, I am of the view that the Director's construction is indeed wrong and that the appellants' construction is indeed right. And there is no getting around this by way of legislative amendment.

Result

31. Taking that view and on that basis, Keith J made a declaration to the effect that the additional words contravene Article 24 of the Basic Law. The Court of Appeal set aside that declaration. In my view, they were wrong to do so. The additional words do indeed contravene Article 24 of the Basic Law. Such contravention results not only from the legislatively curable vice of using the "right of abode" formula. Also and more fundamentally, it results from the legislatively incurable introduction of the "time of birth" limitation. They are therefore irremediably unconstitutional and null and void.

32. I would allow this appeal. But since, for the reasons which appear above, a declaration in the terms made by the judge may be open to misunderstanding, I would not simply restore his declaration. Instead I would declare as follows:

(1) Each appellant can become a Hong Kong permanent resident under category (3) of Article 24 of the Basic Law by virtue of a parent's Hong Kong permanent resident status under category (2) of that article whether such status of the parent's was acquired before or after the appellant's birth.

(2) The words "if the parent had the right of abode at the time of the birth of the person" in paragraph 2(c) Schedule 1 of the Immigration Ordinance, Cap. 115 (which schedule was introduced by the Immigration (Amendment) (No. 2) Ordinance 1997) contravene Article 24 of the Basic Law and are therefore unconstitutional and null and void.

33. That covers the constitutional challenge in the present case. It is not necessary or appropriate to make any declaration in the present case about any other part of Schedule 1. Paragraph 2(a) thereof, it is to be noted, follows the wording of category (1) of Article 24 and then adds this qualification: "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". The absence in the present case of any declaration that that qualification is unconstitutional is not to be taken as any indication that the same is constitutional.

34. As to costs, I would order that (i) each side bears its own costs here and below and that (ii) there be legal aid taxation of the appellants' costs here and below.

Sir Anthony Mason NPJ:

35. I agree with Mr Justice Bokhary PJ's judgment.

Chief Justice Li:

36. The Court being unanimous, the appeal is allowed to make the declarations and the orders as to costs set out under the heading "Result" in Mr Justice Bokhary PJ's judgment.