THE DIRECTOR OF IMMIGRATION v. CHONG FUNG YUEN

FACV No. 26 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 26 OF 2000 (CIVIL)

(ON APPEAL FROM CACV No. 61 OF 2000)

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J U D G M E N T

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Chief Justice Li :

This is the unanimous judgment of the Court.

At the outset, it may be helpful to set out the sections into which this judgment is divided in order to facilitate reference.

1. Introduction

Article 24 of the Basic Law prescribes the categories of persons who are permanent residents of the Hong Kong Special Administrative Region ("the HKSAR" or "the Region" or "Hong Kong") and confers on them the right of abode in the Region. One category of such persons is "Chinese citizens born in Hong Kong before or after the establishment of [the HKSAR]." See art. 24(2)(1).

The respondent, Master Chong Fung Yuen, is a Chinese citizen born in Hong Kong on 29 September 1997 after the establishment of the HKSAR on 1 July 1997. The respondent accordingly claims that he is a permanent resident within art. 24(2)(1) with the right of abode.

The appellant, the Director of Immigration ("the Director"), accepts that the respondent is a Chinese citizen born in Hong Kong on 29 September 1997 but has rejected his claim. The Director maintains that :

The respondent accepts that he does not comply with the requirement relating to the parent in para. 2(a).

Between 1 July 1997 and 16 July 1999, para. 2(a) provided that a person who is within the following category is a permanent resident of the HKSAR :

Para. 1(5) of Schedule 1 provides that a person is settled in Hong Kong if (a) he is ordinarily resident in Hong Kong and (b) he is not subject to any limit of stay in Hong Kong.

On 16 July 1999, by resolution of the Legislative Council under s.59A of the Immigration Ordinance, para. 2(a) was amended to read :

The reason for the amendment was that before 1 July 1987 the concept of the right of abode did not exist in Hong Kong immigration law. The effect of the amendment is that persons born before 1 July 1987 are not subject to the requirement relating to the parent whereas those born after that date are. Paragraph 2(a), as it was before the amendment, applies to the respondent. But in any event, his position is the same under para. 2(a) after the amendment since he was born after 1 July 1987.

2. The Judge and the Court of Appeal

The Judge (Stock J as he then was) held in favour of the respondent : [2000] 1 HKC 359. He held that the requirement relating to the parent in para. 2(a) was inconsistent with art. 24(2)(1) of the Basic Law. He allowed the respondent's application for judicial review and made a declaration that the respondent is a permanent resident of and has the right of abode in the HKSAR. The Court of Appeal (Mayo VP, Leong and Rogers JJA as they then were) upheld the orders made by the Judge and dismissed the Director's appeal : [2000] 3 HKLRD 661. The Director appeals to this Court.

3. The facts

There is no dispute about the facts. The respondent's parents are both Chinese citizens who were married in the Mainland. The respondent, who is a Chinese citizen, was born in Hong Kong on 29 September 1997 after his parents came to Hong Kong on two-way permits from the Mainland on a visit. His parents were then lawfully in Hong Kong. But neither his father nor his mother (i) was settled in Hong Kong or (ii) had the right of abode in Hong Kong at the time of his birth or subsequently. His parents were given extensions of stay until 24 November 1997. Thereafter they became overstayers. They were located and returned to the Mainland. The respondent has been given extensions of stay pending the resolution of these proceedings.

4. The issues

The issue decided by the lower courts is whether, on a proper interpretation of art. 24(2)(1), the requirement relating to the parent in para. 2(a) is inconsistent with the article ("the art. 24(2)(1) issue").

On this appeal, the Director raises another issue. The Director accepts that there has been no interpretation of art. 24(2)(1) by the Standing Committee of the National People's Congress which is binding on the courts in the HKSAR. The National People's Congress will be referred to as "the NPC" and its Standing Committee as "the NPCSC" or "the Standing Committee". The Director contends that the Court is under a duty to seek an interpretation of art. 24(2)(1) from the Standing Committee pursuant to art. 158(3) of the Basic Law.

Article 158 provides :

Provisions "concerning affairs which are the responsibility of the Central People's Government, or concerning the relationship between the Central Authorities and the Region" will be referred to as "the excluded provisions" and a reference which the Court is obliged to make under art. 158(3) will be referred to as "a judicial reference". The Director submits that art. 24(2)(1) is an excluded provision. This question did not arise in the lower courts because art. 158(3) requires the Court but not the lower courts to make a judicial reference. This new issue will be referred to as "the art. 158(3) issue".

It is only if the Court decides against making a judicial reference on the art. 158(3) issue that the art. 24(2)(1) issue arises for consideration by the Court.

5. History

We shall now recount briefly the history of recent events in so far as it is relevant for present purposes.

In Ng Ka Ling & others v Director of Immigration (1999) 2 HKCFAR 4 ("Ng Ka Ling"), one of the questions before the Court was whether art. 22(4) (which provides that, for entry into the HKSAR, people from other parts of China must apply for approval) covered permanent residents of the Region. In that case, counsel for the Director, although not requesting a judicial reference, submitted that art. 22(4) is an excluded provision, leaving the Court to decide for itself whether a judicial reference had to be made. The Court held that it has a duty to make a reference to the Standing Committee if two conditions are satisfied and that it is for the Court to decide, in adjudicating a case, whether they are satisfied : (1) The classification condition, that is, that the provision is an excluded provision; and (2) the necessity condition, that is, that the Court in adjudicating the case needs to interpret the excluded provision, and such interpretation will affect the judgment on the case (at 30I-31B). It held that the test of whether the classification condition was satisfied was, as a matter of substance, what predominantly was the provision that had to be interpreted. The Court assumed that art. 22(4) is an excluded provision and held that art. 24 is a provision within the Region's autonomy. It considered that art. 24 was the predominant provision and decided against a judicial reference. The Court then held that art. 22(4) did not apply to permanent residents of the Region. Further, the Court decided that on a proper interpretation of art. 24(2)(3), a child born out of wedlock is within the article.

On 29 January 1999, the day on which the judgment in Ng Ka Ling was delivered, the Court gave judgment in Chan Kam Nga & Others v Director of Immigration (1999) 2 HKCFAR 82 ("Chan Kam Nga"). The Court interpreted art. 24(2)(3) to mean that a child born outside Hong Kong could become a permanent resident within art. 24(2)(3) if his parent had acquired permanent resident status within art. 24(2)(1) or 24(2)(2) either before or after the child's birth.

In neither Ng Ka Ling nor Chan Kam Nga, did the Government submit that art. 24(2)(3) is an excluded provision.

On 20 May 1999, the Chief Executive of the HKSAR submitted to the State Council a report requesting assistance ("the Chief Executive's Report"). It set out the circumstances and stated that the admission of the additional people as a result of the Court's rulings would have a serious and adverse effect on the stability and prosperity of Hong Kong. It stated that the Court's interpretation was different from the Government's understanding "of the wording, purpose and legislative intent of the provisions". And it requested the State Council to ask the Standing Committee to make a legislative interpretation of arts 22(4) and 24(2)(3) according to the true legislative intent. It stated that the HKSAR Government will implement the Court's ruling on children born out of wedlock and did not request an interpretation of art. 24(2)(3) in relation to that question.

On 26 June 1999, the Standing Committee adopted "the Interpretation by the Standing Committee of [the NPC] of arts 22(4) and 24(2)(3) of the Basic Law ..." ("the Interpretation"). According to the Interpretation, (1) the provisions of art. 22(4) mean that people from other parts of China, including those persons of Chinese nationality born outside Hong Kong of Hong Kong permanent residents, who wish to enter the HKSAR for whatever reason, must obtain approval from the Mainland authorities before they can enter the HKSAR; (2) the provisions of art. 24(2)(3) mean that, to qualify as a permanent resident within it, both parents or either parent of the person concerned must be a permanent resident within arts 24(2)(1) or 24(2)(2) at the time of birth of the person concerned. The Interpretation also stated :

In his speech before its adoption, Mr Qiao Xiaoyang (喬曉陽副主任), Deputy Director of the Legislative Affairs Commission of the Standing Committee ("Mr Qiao") set out the background. He stated that the State Council had analysed the Chief Executive's Report and submitted a Motion regarding the request for an interpretation of arts 22(4) and 24(2)(3). After saying that the Council of Chairmen of the Standing Committee had examined the Motion and proposed the draft Interpretation of arts 22(4) and 24(2)(3) after consulting the Committee for the Basic Law, he explained the draft.

On 3 December 1999, the Court held in Lau Kong Yung v. Director of Immigration (1999) 2 HKCFAR 300 ("Lau Kong Yung") that the Standing Committee had power to make the Interpretation under art. 158(1) and that it was a valid and binding Interpretation of art. 22(4) and art. 24(2)(3) which the courts in the HKSAR are bound to follow. The Court held that the effect of the Interpretation of arts 22(4) and 24(2)(3) is as stated above. In so holding, the Court acknowledged that the Interpretation differs from what the Court had held in its judgments. (See 326G-327B).

As quoted above, the Interpretation had referred to the Opinions of the Preparatory Committee on the implementation of art. 24(2). That Committee was established in 1996 pursuant to the NPC's Decision adopted on 4 April 1990 (the same date as the adoption of the Basic Law) on the method for the formation of the First Government and the First Legislative Council of the HKSAR. That Decision stated that the Preparatory Committee "shall be responsible for preparing the establishment of the Region and shall prescribe the specific method for forming the first Government and the first Legislative Council in accordance with this Decision" and provided that it shall be composed of Mainland and Hong Kong members, with not less than 50 per cent of the latter.

On 10 August 1996, the Preparatory Committee issued its Opinions on the implementation of art. 24(2). It began :

Para. 1 relates to art. 24(2)(1) and stated :

In 1997, the Working Report of the Preparatory Committee, which included the statement that it had put forward its aforesaid Opinions, was approved by the NPC by Resolution on 14 March 1997.

6. The approach to the interpretation of the Basic Law

We shall next consider the approach to the interpretation of the Basic Law that should be applied by the courts in Hong Kong. The following questions arise : (1) Whether the common law applies; (2) the effect of any interpretation by the Standing Committee; (3) the common law approach to interpretation.

6.1 Whether the Common Law applies

The position of the Director representing the Government is very clear. It is that this Court, like the lower courts, is bound to apply the common law as developed in Hong Kong in interpreting the Basic Law and this is consistent with the principle of "one country, two systems" enshrined therein. The respondent adopts the same position.

The Director has not suggested that the courts in Hong Kong should apply the principles in the Mainland system for interpreting the Basic Law. That system is different from the system in Hong Kong based on the common law. Under it, legislative interpretation by the Standing Committee can clarify or supplement laws. In the Opinions of Professor Lian Xisheng (廉希聖教授) dated 10 August 1999 adduced by the Director in these proceedings, Professor Lian said (at para. 17) :

See also Professor Albert Chen : The interpretation of the Basic Law (2000) HKLJ Vol. 30 Part 3 411-3. And Professor Albert Chen : An Introduction to the Legal System of the People's Republic of China (1998) 95-6.

The Standing Committee has the power to interpret the Basic Law under Article 67(4) of the Chinese Constitution and art. 158 of the Basic Law. The courts in Hong Kong have been authorized by the Standing Committee under arts 158(2) and 158(3) to interpret the Basic Law in adjudicating cases subject to the limit on the Court's jurisdiction imposed by art. 158(3) in relation to the excluded provisions and subject to being bound by any interpretation by the Standing Committee under art. 158 as discussed below. The common position of the parties that the courts in Hong Kong are bound to apply the common law in exercising their power of interpretation, as so authorized, accords with the Basic Law which provides for the continuation of the common law in the HKSAR. See arts 8 and 18(1). The Basic Law also provides that the courts in the HKSAR shall adjudicate cases in accordance with laws applicable in the Region which include the common law, and may refer to precedents of other common law jurisdictions. See arts 19(1), 84 and 87(1). In essence, the Basic Law provides for a separate legal system in the HKSAR based on the common law. National laws shall not be applied in the HKSAR except for those listed in Annex III which shall be confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by the Basic Law. See art. 18(3).

6.2 The effect of interpretation by the Standing Committee

However, where the Standing Committee has made an interpretation of the Basic Law pursuant to its power under Article 67(4) of the Chinese Constitution and art. 158 of the Basic Law, the courts in Hong Kong are under a duty to follow it. The Court so held in Lau Kong Yung where the Court stated that the Standing Committee's power of interpretation of the Basic Law under art. 158(1) originating from the Chinese Constitution "is in general and unqualified terms" (at 323B). In particular, that power of the Standing Committee extends to every provision in the Basic Law and is not limited to the excluded provisions referred to in art. 158(3).

Equally, where the Standing Committee makes an interpretation of an excluded provision pursuant to a judicial reference from the Court under art. 158(3), the courts in Hong Kong in applying the provision concerned shall follow the Standing Committee's interpretation, although judgments previously rendered shall not be affected. This is expressly provided for in art. 158(3).

The Standing Committee's power to interpret the Basic Law is derived from the Chinese Constitution and the Basic Law. In interpreting the Basic Law, the Standing Committee functions under a system which is different from the system in Hong Kong. As has been pointed out, under the Mainland system, legislative interpretation by the Standing Committee can clarify or supplement laws. Where the Standing Committee makes an interpretation of a provision of the Basic Law, whether under art. 158(1) which relates to any provision, or under art. 158(3) which relates to the excluded provisions, the courts in Hong Kong are bound to follow it. Thus, the authority of the Standing Committee to interpret the Basic Law is fully acknowledged and respected in the Region. This is the effect of the Basic Law implementing the "one country, two systems" principle as was held by the Court in Lau Kong Yung. Both systems being within one country, the Standing Committee's interpretation made in conformity with art. 158 under a different system is binding in and part of the system in the Region.

As has been pointed out, the Director accepts that the Standing Committee has not issued an interpretation of art. 24(2)(1) which is binding on the courts in Hong Kong. He accepts that the statement in the Interpretation that "together with the legislative intent of all other categories of art. 24(2) ... have been reflected" in the Opinions of the Preparatory Committee on the implementation of art. 24(2) of the Basic Law does not amount to a binding interpretation of art. 24(2)(1). If there were such a binding interpretation, the courts in Hong Kong would be under a duty to follow it.

6.3 The common law approach to interpretation

The courts in Hong Kong exercise independent judicial power under the Basic Law. See arts 2 and 80. One of the fundamental functions of the courts in the HKSAR, in exercising independent judicial power is the interpretation of the laws, including the Basic Law itself, subject to the limit on the Court's jurisdiction imposed by art. 158(3) in relation to the excluded provisions and subject to being bound by any interpretation by the Standing Committee under art. 158. Subject to these matters, it follows from the grant of independent judicial power to the courts that the interpretation of laws is a matter for the courts. This principle, which follows from the doctrine of the separation of powers, is a basic principle of the common law and is preserved and maintained in Hong Kong by the Basic Law.

The courts' role under the common law in interpreting the Basic Law is to construe the language used in the text of the instrument in order to ascertain the legislative intent as expressed in the language. Their task is not to ascertain the intent of the lawmaker on its own. Their duty is to ascertain what was meant by the language used and to give effect to the legislative intent as expressed in the language. It is the text of the enactment which is the law and it is regarded as important both that the law should be certain and that it should be ascertainable by the citizen.

The courts do not look at the language of the article in question in isolation. The language is considered in the light of its context and purpose. See Ng Ka Ling at 28-29. The exercise of interpretation requires the courts to identify the meaning borne by the language when considered in the light of its context and purpose. This is an objective exercise. Whilst the courts must avoid a literal, technical, narrow or rigid approach, they cannot give the language a meaning which the language cannot bear. As was observed in Minister of Home Affairs v. Fisher [1980] AC 319 at 329E, a case on constitutional interpretation : "Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language".

As the Court held in Ng Ka Ling (at 29 A-C), the courts should give a generous interpretation to the provisions in Chapter III that contain constitutional guarantees of freedoms that lie at the heart of Hong Kong's separate system. However, when interpreting the provisions that define the categories of permanent residents, the courts should simply consider the language in the light of any ascertainable purpose and the context.

To assist in the task of interpretation of the provision in question, the courts consider what is within the Basic Law, including provisions in the Basic Law other than the provision in question and the Preamble. These are internal aids to interpretation.

Extrinsic materials which throw light on the context or purpose of the Basic Law or its particular provisions may generally be used as an aid to the interpretation of the Basic Law. Extrinsic materials which can be considered include the Joint Declaration and the Explanations on the Basic Law (draft) given at the NPC on 28 March 1990 shortly before its adoption on 4 April 1990. The state of domestic legislation at that time and the time of the Joint Declaration will often also serve as an aid to the interpretation of the Basic Law. Because the context and purpose of the Basic Law were established at the time of its enactment in 1990, the extrinsic materials relevant to its interpretation are, generally speaking, pre-enactment materials, that is, materials brought into existence prior to or contemporaneous with the enactment of the Basic Law, although it only came into effect on 1 July 1997.

It is unnecessary for the purposes of this case to explore what assistance (if any) can be derived from extrinsic materials other than pre-enactment materials relating to context and purpose; in particular, whether post-enactment materials can be called in aid. For the purposes of this case, it is sufficient to state that on the common law approach which the courts are bound to apply in the absence of a binding interpretation by the Standing Committee, extrinsic materials, whatever their nature and whether pre or post-enactment, cannot affect interpretation where the courts conclude that the meaning of the language, when construed in the light of its context and purpose ascertained with the benefit of internal aids and appropriate extrinsic materials, is clear. The meaning of the language is clear if it is free from ambiguity, that is, it is not reasonably capable of sustaining competing alternative interpretations.

Once the courts conclude that the meaning of the language of the text when construed in the light of its context and purpose is clear, the courts are bound to give effect to the clear meaning of the language. The courts will not on the basis of any extrinsic materials depart from that clear meaning and give the language a meaning which the language cannot bear.

In a case where the courts have to consider the use of extrinsic materials other than pre-enactment materials relating to context and purpose, the courts should, in conformity with common law principles, approach the matter cautiously. The common law does not in general adopt the approach that all extrinsic materials can be considered leaving their weight to be assessed. A prudent approach is particularly called for where the courts are asked to consider post-enactment materials. This is because as discussed above, under a common law system which includes a separation of powers, the interpretation of laws once enacted is a matter for the courts. So it is with the Basic Law, although in this regard, as noted above, the courts' power is subject to the limit on the Court's jurisdiction imposed by art. 158(3) in relation to the excluded provisions and subject to being bound by any interpretation by the Standing Committee under art. 158.

7. The art. 158(3) issue

As was held in Ng Ka Ling, the Court is required to make a judicial reference under art. 158(3) where both the classification and necessity conditions are satisfied. Here, as is common ground between the Director and the respondent, the necessity condition is satisfied. The Court in adjudicating this case needs to interpret art. 24(2)(1) and such interpretation will affect the judgment on this case. The issue is whether the classification condition is satisfied.

7.1 The submissions

Ms Gladys Li SC for the respondent submits that art. 24(2)(1) prescribes one category of permanent residents who are entitled to the right of abode. As such, it is a provision within the HKSAR's autonomy and is not an excluded provision.

In arguing that art. 24(2)(1) is an excluded provision, Mr Joseph Fok SC for the Director makes the following submissions :

The Director seeks to derive support for his argument that art. 24(2)(1) is an excluded provision from what is stated in the Preamble in the Interpretation in relation to art. 24(2)(3).

Mr Fok SC accepts, that on the test based on substantive effect suggested by him, art. 24(2)(3) is an excluded provision in relation to both the time of birth question even on its own (without art. 22(4) being involved) and the born out of wedlock question.

7.2 The figures compiled by the Immigration Department

In submitting that the suggested test based on substantive (that is, real) effect is satisfied on the facts, the Director relies on the figures compiled by his Department which have been put before the Court. According to these figures, during the 43 months between 1 July 1997 to 31 January 2001, a total of 1991 Chinese citizens born in Hong Kong would qualify as permanent residents within art. 24(2)(1) if the Director's contention on that article were rejected. Their mothers were illegal immigrants, holders of two way permits or transient overstayers and their fathers were either temporarily or not resident in Hong Kong. This amounts to about 46 children per month, about 555 children per annum.

On the basis of these figures, the Director accepts that there is no indication that a decision against him will give rise to an immediate influx of persons from the Mainland.

In our view, one can go further. On the basis of these figures for the past 43 months, there could not be said to be any significant risk to Hong Kong resulting from a decision against the Director.

The figure of 1991 Chinese citizens should be contrasted with a total of 22,850 Chinese citizens born in Hong Kong during this period who would qualify even if the Director's contention is upheld. Although their mothers were illegal immigrants or holders of two way permits or transient overstayers, they would qualify because their fathers were either settled or were permanent residents in Hong Kong.

7.3 The Preamble in the Interpretation

The Director does not suggest that the Interpretation contains an interpretation of art. 158(3) concerning excluded provisions. But in submitting that art. 24(2)(1) is an excluded provision, the Director seeks to derive support from what is stated in the Preamble to the Interpretation in relation to art. 24(2)(3). The text of the Interpretation is in Chinese. The English translation was prepared by the Department of Justice of the HKSAR Government with the statement that it is for reference purposes and has no legislative effect.

The Preamble stated that the Standing Committee had examined the State Council's Motion regarding the request for an interpretation of arts 22(4) and 24(2)(3) which was submitted upon the Chief Executive's Report. It then proceeded :

Professor Albert Chen, a member from Hong Kong of the Basic Law Committee established under art. 158(4), has taken the view that the Interpretation did not state, explicitly or implicitly, that art. 24(2)(3) is an excluded provision. (See South China Morning Post 23 January 2001). He wrote :

On the other hand, Professor Wu Jianfan (吳建璠教授) a member from the Mainland of the Basic Law Committee, has taken a different position. He has expressed the view that the Interpretation pointed out that both art. 22(4) and art. 24(2)(3) are excluded provisions which should have been referred. Further, he stated that his own view is the same, that is, both articles are excluded provisions. In relation to what the Interpretation said, Professor Wu wrote :

See Professor Wu's article in China Law 25 August 1999 at 54.

The Director relies on Professor Wu's views whilst the respondent relies on Professor Chen's views. Bearing in mind these different views, the Preamble to the Interpretation cannot be read as expressing a clear view that art. 24(2)(3) on its own is an excluded provision. It must be read in the context of the Motion before the Standing Committee which was for an interpretation of both arts 22(4) and 24(2)(3) which Mr Qiao stated are inseparable. (The English translation of his speech used in argument is taken from "Hong Kong's Constitutional Debate : Conflict over Interpretation" HK University Press (2000) 481 - 486). The Standing Committee was not faced with a request for an interpretation of art. 24(2)(3) on its own, without art. 22(4) being involved. Read in context, the view expressed in the Preamble on what should have been referred could not be taken to relate to art. 24(2)(3) on the footing that it was before the Standing Committee on its own because that was not the case.

7.4 Is art. 24(2)(1) an excluded provision ?

As has been pointed out, the courts in Hong Kong have been authorised by the Standing Committee under arts 158(2) and 158(3) to interpret the Basic Law in adjudicating cases. And the courts' power to interpret as so authorized is subject to the limit on the Court's jurisdiction imposed by art. 158(3) in relation to the excluded provisions and subject to being bound by any interpretation by the Standing Committee under art. 158.

In describing the excluded provisions, art. 158(3) focuses on the provision in question. It does not refer to the effect of its implementation. In our view, art. 158(3) cannot be interpreted to prescribe, as the test whether a provision is an excluded provision, the factual determination of the substantive effect of its implementation. The use of such a test is not justified on the language of art. 158(3), when interpreted in the light of its context and purpose.

Further, as Mr Fok SC for the Director fairly accepts, the suggested substantive effect test would mean that most if not all the articles in the Basic Law could be potentially excluded provisions; whether a particular provision would actually be such a provision would depend on the facts. We cannot discern from art. 158(3) any indication that its operation is to depend on an investigation of the facts relating to the effect of its implementation.

Article 158(3) in focusing on the provision in question requires the Court to consider the character of the provision. The question is whether the provision has the character of one which concerns affairs which are the responsibility of the Central People's Government or the relationship between the Central Authorities and the Region. Article 24(2)(1) prescribes the category of Chinese citizens born in Hong Kong before or after 1 July 1997 to be permanent residents. Its character is that of a provision defining one category of permanent residents who are entitled to the right of abode. In our view, having regard to its character, art. 24(2)(1) does not concern affairs which are the responsibility of the Central People's Government or the relationship between the Central Authorities and the Region. It is a provision within the Region's autonomy and is not an excluded provision. Accordingly, a judicial reference to the Standing Committee is not required.

7.5 Other points

In Ng Ka Ling, the Court discussed the classification and necessity conditions in that order. It has been argued by Professor Albert Chen that the correct approach is to consider the necessity condition first. See his article " The Court of Final Appeal's Ruling in the Illegal Migrant Children Case : A Critical Commentary on the Application of Article 158 of the Basic Law" in "Hong Kong's Constitutional Debate : Conflict over Interpretation" 113. This argument merits serious consideration but it does not arise for decision here. In this case, it is common ground that the necessity condition has been satisfied and in this judgment it was dealt with before the classification condition was considered.

In Ng Ka Ling, the Court held that the test of whether the classification condition was satisfied was the predominant test. This was in the context of the situation where two provisions are involved, an excluded provision and a provision within autonomy and the question arises as to the relationship between them. As is accepted by both parties, we are not concerned with such a situation here, and this is not an appropriate case to re-examine the predominant test, although it may be proper to do so in a suitable case.

The Director made the following submissions on the procedure that should be adopted on a judicial reference by the Court to the Standing Committee. First, it is for the Court to decide on the contents of the reference document to be communicated to the Standing Committee. It should contain sufficient materials including the parties' submissions. Secondly, the Court should give the parties the opportunity to make submissions on the contents of the reference document. Further, the Director accepts that following transmission to the Standing Committee, the reference document should be handed down in open court. The procedure suggested by the Director appears to be appropriate, although it is unnecessary to decide on them and we have not had the benefit of full argument.

8. The art. 24(2)(1) issue

8.1 The submissions

Article 24(2) provides that the permanent residents of the HKSAR shall be :

It is common ground that the Interpretation did not contain any interpretation of art. 24(2)(1) which is binding on the courts in Hong Kong and that the Court should apply the common law approach. The respondent's case is simple. Article 24(2)(1) means what it says, that is, Chinese citizens born in Hong Kong before or after 1 July 1997, no more, no less. The Director's case is that by one of two independent routes, the Court should interpret art. 24(2)(1) to mean by necessary implication that it does not include those Chinese citizens who are born to illegal immigrants, overstayers or people residing temporarily in Hong Kong. The two routes are : (1) By interpreting the article in the light of its context and purpose. (2) By taking into account the statement in the Interpretation that the legislative intent of "all other categories of art. 24(2) ... have been reflected" in the Preparatory Committee's Opinions on the implementation of art. 24(2).

8.2 Interpretation of art. 24(2)(1) in the light of its purpose and context

Article 24(2) defines the persons who are permanent residents of the HKSAR and art. 24(3) confers on them the right of abode. So the purpose of art. 24(2) taken together with art. 24(3) is to confer the right of abode on the persons defined to be the permanent residents of the HKSAR. By the definition, certain persons are included. Those not included would be excluded and in this sense, the purpose of art. 24(2) can be said to be to limit the persons who are permanent residents of the HKSAR and hence its population.

The context of art. 24(2)(1) includes in particular two matters which should be examined. First, the other categories in art. 24(2). Secondly, the Joint Declaration between the United Kingdom and the People's Republic of China signed in December 1984 and the background thereto as far as immigration law was concerned.

When one considers, as part of the context, the other categories of art. 24(2), it is significant that where qualification for permanent resident status depends upon the status of a parent of the person concerned, this is expressly stated with the words "born ... of". Thus, art. 24(2)(3) defines that category as persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2). Similarly, art. 24(2)(5) defines that category as "persons under 21 years of age born in Hong Kong of those residents listed in category (4) before or after" 1 July 1997. In contrast, art. 24(2)(1) in defining that category refers to the place of birth, that is, Hong Kong, and contains no words providing for any requirement relating to the parent. Such a contrast is significant.

Annex I to the Joint Declaration contains an elaboration by the Government of the People's Republic of China of its basic policies regarding Hong Kong and the Basic Law was enacted to ensure the implementation of such basic policies. Chapter XIV of Annex I set out the categories of persons who shall have the right of abode in the HKSAR. The relevant provision is :

Categories (1), (2) and (3) in art. 24(2) contain the classes of persons provided for in this provision with similar wording.

As part of the context for art. 24(2)(1), the Director relies on the state of immigration law in Hong Kong in 1984 as forming part of the background of Annex I to the Joint Declaration. By that time, no immigration rights in Hong Kong could be acquired under the law by the mere fact of birth in Hong Kong alone, whereas before 1983, they could be so acquired; immigration rights were conferred on British subjects born in Hong Kong. See the judgment of Stock J [2000] 1 HKC at 367-8, 374-5. So it would be odd, the Director's argument runs, if art. 24(2)(1), which implements Annex I, was intended to confer permanent resident status by the mere fact of birth in Hong Kong alone.

In our view, no reliance can be placed for a proper interpretation of art. 24(2)(1) on the point that after 1983 no immigration rights in Hong Kong could be acquired by the mere fact of birth in Hong Kong alone. As was pointed out by Stock J (at 375), this is because British nationality laws and consequential amendments to Hong Kong's immigration laws had their own history. The United Kingdom had to deal with issues arising from the perceived threat of large scale immigration into the United Kingdom from British Commonwealth countries and this resulted in a policy shift away from citizenship based on jus soli. (In English, "right of the soil", that is, the principle that a child's citizenship is determined by place of birth). It should not be assumed that the Basic Law followed this policy shift from that history.

The Director points out that a person in the position of the respondent would, but for the fact that his parents were visiting in Hong Kong at the time of his birth, have been born in the Mainland where his parents normally reside. And he would have to qualify for permanent resident status by descent under art. 24(2)(3) by satisfying the requirement that either parent must be a permanent resident under category (1) or (2) at the time of his birth. Even if that requirement were satisfied, exit permission under art. 22(4) has to be obtained. Those indeed would be the consequences if a person in the position of the respondent were born on the Mainland. These consequences follow from the fact that the requirements in the art. 24(2)(3) category are different from those in the art. 24(2)(1) category. But it does not follow from the fact that there are different requirements for the respective categories that art. 24(2)(1) should be regarded as ambiguous.

When the language of art. 24(2)(1) is considered in the light of its context and purpose, its clear meaning is that Chinese citizens born in Hong Kong before or after 1 July 1997 have the status of permanent residents. The meaning of the provision is not ambiguous, that is, it is not reasonably capable of sustaining competing alternative interpretations.

8.3 The Interpretation and the Preparatory Committee's Opinions

The Director relies on the statement in the Interpretation that the legislative intent of all other categories of art. 24(2) have been reflected in the Preparatory Committee's Opinions on the implementation of art. 24(2) ("the statement in question"). As has been pointed out, he accepts that it is not a binding interpretation of art. 24(2)(1) by the Standing Committee. His argument is that the common law is sufficiently flexible to enable the Court to take such statement into account and hold in favour of the interpretation contended for by the Director. He does not base any submission on the Preparatory Committee's Opinions divorced from the statement in question in the Interpretation.

On the common law approach, which the Court is under a duty to apply in the absence of a binding interpretation by the Standing Committee, the statement in question cannot affect the clear meaning of art. 24(2)(1) properly reached, applying the common law approach.

As discussed above, on the common law approach, the Court's task is to construe the language in art. 24(2)(1) in the light of its context and purpose in order to ascertain the legislative intent as expressed in the language. As concluded earlier, the meaning of art. 24(2)(1) is clear; there is no ambiguity. It means Chinese citizens born in Hong Kong before or after 1 July 1997. In conformity with the common law, the Court is unable, on the basis of the statement in question, to depart from what it considers to be the clear meaning of art. 24(2)(1) in favour of a meaning which the language cannot bear.

9. Result

Accordingly, the Director's appeal is dismissed with no order as to costs. An order is made for the taxation of the respondent's costs in accordance with the Legal Aid Ordinance and Regulations.