CHAN KAM NGA AND OTHERS v. THE DIRECTOR OF IMMIGRATION

CACV40/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 40 OF 1998

(ON APPEAL FROM HCAL NO. 104 OF 1997)

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J U D G M E N T

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Chan, CJHC :

1. The respondents are 81 applicants who sought, by way of judicial review in the Court of First Instance, a court declaration that part of paragraph 2(c) of Schedule 1 to the Immigration (Amendment) (No.2) Ordinance 1997 ("the No.2 Ordinance") is invalid as contravening the Basic Law. That provision purports to deny them the right to apply for permanent residence in Hong Kong under Article 24(3) of the Basic Law . The learned judge granted the declaration. This is an appeal by the Director of Immigration.

The applicants

2. All of the applicants are Chinese nationals born in Mainland China. Neither of their parents were Hong Kong permanent residents when these applicants were born. At least one of the parents of each of them has since become a Hong Kong permanent resident. Many of these applicants came to Hong Kong illegally and others by means of two-way exit permits which have now expired. They applied to remain in Hong Kong as permanent residents. Some of them had their applications refused by the Director of Immigration and their subsequent appeals against those decisions were turned down by the Immigration Tribunal. The remaining applicants also applied to remain in Hong Kong but either their applications to the Director of Immigration or their appeals to the Immigration Tribunal (after their applications had been refused) are still pending. The main reason for refusing their applications or turning down their appeals is that they do not qualify as permanent residents in Hong Kong.

The relevant provisions

3. Under Article 24(3) of the Basic Law, persons of Chinese nationality born outside Hong Kong of those residents listed in Article 24(1) and (2) are also permanent residents of the HKSAR.

4. On 1st July 1997, the Immigration (Amendment) (No.2) Ordinance 1997 was enacted. Schedule 1 to the Immigration Ordinance, Cap.115 was replaced. The relevant part of paragraph 2 of the new Schedule 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 -

(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." (emphasis added)

The issue in this case

5. It can be seen that the words in paragraph 2(c) of Schedule 1 emphasised above do not appear in Article 24(3). Their effect is to render all the applicants not qualified to apply for the status of permanent resident of HKSAR under Article 24(3). It is the applicants' case that these words are invalid since they are contrary to that Article. The issue for determination is whether the words "if the parents had the right of abode in Hong Kong at the time of the birth of the person" in paragraph 2(c) contravene Article 24(3) of the Basic Law or whether they reflect the true meaning of that Article.

Construction of Article 24(3)

6. This is a short but by no means easy issue. It depends on the proper construction of Article 24(3).

7. The main contention of Mr Ma, S.C., for the Director of Immigration is that on its true construction, any person who claims to have the status of Hong Kong permanent resident under that category must show that he was born after his parent had acquired the status of Hong Kong permanent resident under Article 24(2). Counsel argues that the language of Article 24(3) is quite plain and there is no ambiguity. The qualifying event is the person's birth. However, not only the place of birth but also the status of the parent at the time of his birth is relevant. The relevant time to consider the status of his parent is the time of the person's birth.

8. On the other hand, Miss Li, S.C., for the applicants submits that there is nothing in Article 24(3) which restricts the category of persons under that Article to children who were born after the parents had acquired permanent residents status. Since paragraph 2(c) of Schedule 1 to the No.2 Ordinance imposes such a condition, it is inconsistent with the Basic Law. Any subsequent legislation which cuts down what Article 24(3) confers cannot stand. She argues that this construction which was adopted by the trial judge is more consonant with common sense. If this construction is correct, it is only necessary to ask : whether the person in question is a Chinese national born in Mainland China and whether his parent is a permanent resident of Hong Kong by his residence here for a continuous period of not less than seven years. It is not relevant at what moment in time the parent had completed the necessary period of ordinary residence in Hong Kong. Counsel argues that the category under Article 24(1) relates to persons born in Hong Kong and the category under Article 24(3) deals with persons who were born outside Hong Kong of permanent residents under Article 24(1) and (2). Hence, the emphasis is on the place of birth and parentage. It does not deal with the time of birth.

9. The learned judge accepted that Article 24(3) focuses on birth but that the focus is not on the time of birth but on the place of birth, i.e. outside Hong Kong. He took into account, as an aid to construction, the Joint Declaration which was the origin of Article 24. However, the relevant parts in Part XIV of Annex I to the Joint Declaration are simply the same as Article 24(1)-(3). The judge said he was unable to give that Article a generous and purposive construction since he had no knowledge of what the drafters of the Basic Law and the NPC intended. Nor did he find any travaux preparatoires explaining why the relevant provisions in the Joint Declaration and the Basic Law were couched in the particular language which was used.

10. As a matter of construction, the court should give effect as much as possible to the plain wording of the provision in question bearing in mind the intention of the Basic Law. A generous and purposive construction should be adopted when it comes to the conferring of rights and freedoms on the persons affected by such provision. Article 24 is contained in Part III of the Basic Law which deals with the fundamental rights and duties of Hong Kong residents. In the interpretation of this part of the Basic Law, the court must be "guided by the principle of giving full recognition and effect to those fundamental rights and freedoms" which the Basic Law is intended to confer. See per Lord Wilberforce in Minister of Home Affairs and Another v. Fisher [1980] AC 319 at 329.

11. For the purpose of ascertaining the intention of the Basic law, I should perhaps set out all the categories of persons contained in Article 24 :

" 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) 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 lists 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. "

12. The purpose of Article 24 is clearly to confer upon certain categories of persons the status of permanent resident and the right of abode in the HKSAR. Of the six categories of persons who are qualified as permanent residents, the first and fifth categories of persons are those who were born in Hong Kong. The second and fourth categories are those who have ordinarily resided in Hong Kong for a continuous period of not less than seven years. The sixth category (which is a special category) refers to those persons who had, before 1st July 1997, the right of abode in Hong Kong only. It seems that apart from the third category of persons, i.e. the category under Article 24(3), persons who are conferred by the Basic Law with the status of permanent residents are those who have a direct connection with Hong Kong either by their birth in Hong Kong or having resided here for a sufficiently long period of time, i.e. 7 continuous years. The first and fifth categories of persons would have acquired their status from the time of their birth in Hong Kong. The second and fourth categories of persons would acquire their status upon the completion of seven years continuous residence. Even persons within the sixth category have a direct connection with Hong Kong having somehow acquired a right of abode here before the change of sovereignty.

13. To fall within Article 24(3), a person can only establish his connection with Hong Kong in an indirect way, i.e. through his birth to a Hong Kong permanent resident under category (2), leaving out for the purpose of these appeals category (1). It is not either his birth to a parent or his parent's completion of seven years residence in Hong Kong alone which would entitle him to acquire the status of a permanent resident. He has to rely on both his birth to his parent as well as his parent's completion of 7 years continuous residence. The focus is certainly on birth. But it is birth to a Hong Kong permanent resident and not birth to any person who may later become a permanent resident in the unknown future.

14. Since it is clearly the intention of Article 24 to confer the status of permanent resident on persons who have a connection with Hong Kong, hence, it is more likely, in my view, that Article 24(3) is intended to benefit persons who were born to parents who have already acquired permanent resident stauts in Hong Kong rather than those who were born to parents who may subsequently acquire permanent resident status at some later stage. The time at which a person under category (3) would acquire his status of permanent residence must, like persons within categories (1) and (5), be the date of his birth and not his parent's completion of 7 years continuous residence in Hong Kong. The time of his birth is the relevant time to ask whether his parent is a permanent resident or not.

15. In my view, there are a number of criteria in Article 24(3). First, the applicant must be a person of Chinese nationality. Secondly, he must have been born outside Hong Kong. Thirdly, he must be born of a person who is already a permanent resident either by his birth in Hong Kong or by having ordinarily resided in Hong Kong for a continuous period of not less than seven years.

16. The learned judge took into account, as an aid to construction, the consequences of construing Article 24(3) in a particular way. He was of the view that the canons of statutory construction would encourage the court to find against a construction which would produce anomalies since anomalies are unlikely to have been intended. I agree that this is a relevant consideration in ascertaining the intention of a statutory provision. The court should take cognisance of the possible consequences of construing the provision in a particular way. If this would produce serious or unexpected consequences, not only for the persons concerned but also to the whole community, it would demonstrate that that particular construction is unlikely to be the one intended by the drafter of the legislation.

17. The learned judge found that the construction he gave would create a less anomalous result and would foster family relations. He was aware that adopting such a construction would result in other Chinese nationals born in China with no previous connection with Hong Kong acquiring the right of abode here in middle age if their elderly parents were then to complete seven years' continuous residence in Hong Kong. However, he also noted that adopting the construction suggested by the Director of Immigration would mean that parents would be separated from their children and children would be separated from their younger brothers and sisters. This would spilt up families and would be contrary to Article 23(1) of the ICCPR.

18. With respect, I do not agree with this analysis. I think the learned judge had overstated the "evil" of splitting families if Article 24(3) is to be construed in the way as contended for by the Director of Immigration. No doubt the permanent resident may be split from his children and family. But it would be a split by his own choice. He had chosen to leave his children and family in Mainland China and come to stay in Hong Kong for seven years in the first place. Secondly, after that person has acquired his permanent resident status in Hong Kong, he has a choice of remaining in Hong Kong alone or returning to China to re-unite with his children and family. Thirdly, it would still be open to him to apply at a later stage to the relevant authorities for some of family members to come and join him in Hong Kong. The situation would be similar to a person who has gone abroad to work or to further his studies and has subsequently acquired citizenship in another foreign country. With respect, I do not see the anomaly. Nor do I think it is contrary to Article 23 of the ICCPR. The family is split by that person's coming to Hong Kong leaving his family behind and not as a result of Article 24(3).

19. On the other hand, I think the learned judge had understated the serious consequences of construing Article 24(3) in the way he did. 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.

20. I do not agree that paragraph 2(c) of Schedule 1 to the No.2 Ordinance has restricted the right under Article 24(3). It is not a matter of restriction. It is a matter of what the words in that Article mean and are intended to mean. In my view, on the true construction of Article 24(3), it clearly means that in order to qualify within this category, the applicant must have been born to a parent who has already become a permanent resident in Hong Kong at the time of his birth. Paragraph 2(c) of Schedule 1 of the No.2 Ordinance does not contravene Article 24(3) of the Basic Law. This conclusion is sufficient to dispose of the issue before the court.

Subsequent agreement of the JLG

21. Mr Ma for the Director of Immigration further submits that his interpretation is consistent with an agreement reached between the PRC and the United Kingdom at the Joint Liaison Group meetings. He says that there is a presumption that legislation, in this case the Basic Law, is intended to give effect to the terms of an international agreement. The JLG was set up under the Joint Declaration. Under paragraph 3(a) of Annex II to the Joint Declaration, one of the functions of the JLG is to conduct consultations on the implementation of the Joint Declaration. The Immigration Department seeks to show that there was an agreement reached by the JLG at the 24th meeting of the Group with regard to how Article 24(3) should be understood. Counsel says 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. He relies on Article 31 of the Vienna Convention on the Law of Treaties.

22. The learned judge was not attracted by this argument. Nor am I. No doubt, the Basic Law reflects an international treaty, i.e the Joint Declaration. But it is also a national law of the PRC and a domestic law and the Constitution of the HKSAR. An international treaty can of course be subsequently varied by the party nations. However, if the international treaty has become a part of the domestic law, and in this case also a national law, then before this variation can take effect, it must be reflected by an amendment to the national and/or domestic laws. Nothing short of an amendment to the Basic Law can suffice to bring in any variation to the international treaty which it reflects.

23. Another reason for rejecting this argument is that the court is concerned with what Article 24(3) means. The document which is said to witness a subsequent agreement of the JLG refers to what the two nations agreed should be understood by that Article. As the learned judge correctly said, this agreement was reached well after the promulgation of the Basic Law . It is the Basic Law which the court has to construe, not the provisions of the treaty, let alone any subsequent agreement to it. The judge was clearly correct to say that the agreement "does not mean that both sides believed that that was the correct interpretation or that it was the interpretaion which those who drafted the Basic Law and the NPC which adopted it had in mind." The agreement simply reflected the way in which both sides wanted Article 24(3) to be implemented. There is no evidence to suggest that the agreement reflected what both sides thought had originally been intended. In my view, the learned judge was clearly right to take such views.

24. Furthermore, for the reasons which I have given when dealing with the legitimacy issue in the earlier part of Cheung Lai Wah and others v. Director of Immigration (Civil Appeal No. 203 of 1997), I do not think Article 31 of the Vienna Convention on the Law of Treaties is of any significance in this case. It merely requires that any subsequent agreement between the party nations is to be taken into account in its construction. It does not require that the construction of the provision must be in accordance with the subsequent agreement. In the present case, the fact that it was thought necessary to reach a subsequent agreement suggests that the parties accepted that the wording of Article 24(3) may not bring out what they now intend it to mean.

25. Lastly, as Miss Li for the applicants says, it is not appropriate to refer to such subsequent agreement. According to the provisions in Annex II to the Joint Declaration, it is doubtful whether the so called subsequent agreement can be reached through the JLG. More importantly, it is doubtful whether the JLG was intra vires in reaching such an agreement. In any event, the proceedings of the JLG and its records are required to be kept confidential. It is up to the JLG to reveal what sort of record is to be used for its purpose. In the present case, the JLG had clearly agreed to the revelation of this subsequent agreement which was also disclosed to the former Legislative Council. But the idea of having to seek the consent of the JLG to reveal some but not all of its deliberations and/or conclusions in order to assist in the construction of the provisions of the Basic Law is not acceptable. As Miss Li says, it is not right that the Government can pick and choose as to what sort of document it thinks is useful or helpful to the construction of the provisions of the Basic Law. How then can lawyers advise their clients? How can the court properly interpret the provisions of the Basic Law? Are the courts limited to looking at materials which the Government says and what the JLG agrees are relevant to the interpretation of the Basic Law and not others? It is therefore clearly not right to rely on the confidential materials from JLG meetings to assist in the construction of the Basic Law.

26. I agree with what the learned judge had said on the "lacuna" submission. In appropriate cases, the legislature has a role to play in filling a lacuna when there is one. Since the wording of Article 24(3) is clear and plain, I do not think this is such a case.

Conclusion

27. For the reasons which I have given above, I hold that on the true construction of Article 24(3), only persons of Chinese nationality born outside Hong Kong of parents who have already acquired permanent resident status at the time of their birth are included in Article 24(3). Paragraph 2(c) of Schedule 1 to the No.2 Ordinance is not inconsistent with that Article. Nor is it contrary to Article 23(1) of the ICCPR.

28. In the circumstances, I would allow the appeal and set aside the declaration made by the learned judge.

Nazareth, V.-P.:

29. I agree with the conclusions of my Lords and with their reasons.

30. It is not necessary for me to repeat particulars of the background, the provisions concerned, issues and submissions, which my Lords have fully recorded.

31. The starting point must be whether the meaning of Article 24(3) of the Basic Law on its plain wording is that persons of Chinese nationality born outside Hong Kong of permanent residents are themselves permanent residents only if their parents were permanent residents at the time of their birth. In my view, Article 24(3) does have that meaning. The words "born ... of" those residents, i.e. in effect permanent residents, a convenient designation that I adopt in this judgment, seems to me to clearly import a temporal qualification. The criterion "born ... of" a permanent resident, immediately and naturally goes to the time of birth.

32. Moreover, looking beyond to secondary considerations, the contrary would mean that a person not born of a parent who was at the time of birth a permanent resident, nevertheless years later upon a grandparent becoming a permanent resident would have to be regarded as born to a permanent resident. That seems to me to manifest an element of absurdity in that construction and its practical effect. Furthermore, "born ... to", in my view, is not appropriate language to exclude the temporal qualification. It seems to me that if it were intended that the temporal qualification should not apply, a fortiori in the context of language that does suggest such a temporal qualification, that exclusion would have to be stated in clear terms.

33. In addition, as the Chief Judge has demonstrated, all the paragraphs of Article 24 other than paragraph (3) import a real connection with Hong Kong. Only paragraph (3) would embrace such a nebulous and fortuitous connection if construed in the way contended for by the respondents, a consideration that must clearly militate against that construction.

34. Needless to say I do not accept that the focus of Article 24(3) is on the place of birth, i.e. outside Hong Kong, as suggested by the judge. Article 24(3) simply happens to be dealing with persons born outside Hong Kong, those born in Hong Kong having already been dealt with in Article 24(1). In providing the criteria for permanent residency in relation to persons born outside Hong Kong, it is true that Article 24(3) focuses on descent, but it does so by use of the words "born ... of", and the temporal qualification they imply cannot be overlooked.

35. It follows that Article 24(3) properly construed requires a parent to have been a permanent resident at the time of birth.

36. Upon the foregoing view, it is not strictly necessary to address the ancillary considerations touched upon by the judge or by counsel in their submissions before us; those would only be in point if the meaning of Article 24(3) were ambiguous or unclear. I nevertheless propose to do so briefly.

The lacuna issue

37. The judge rejected Mr Ma's alternative submission that Article 24(3) did not address the question whether the right of abode in Hong Kong acquired by parentage should be limited to persons whose father or mother had acquired the right of abode in Hong Kong by the date of their birth. He added "the fact remains that the right of abode in Hong Kong is acquired by whoever comes within the terms of Article 24(3). That is not to say the legislature does not have a role to play in putting flesh upon the bones of Article 24(3)".

38. Those considerations, however, are nothing to the point if the true meaning of Article 24(3) is clear, as in my view, it is. If it were not, then, it seems to me that in effect there would be a lacuna enabling the legislature to legislate to fill it without contravening the Basic Law. Upon that basis, paragraph 2(c) of Schedule I of the Immigration Ordinance, Cap. 115, as amended, would not contravene the Basic Law.

Aspects of the judge's construction of Article 24(3)

39. The judge appears to have relied heavily upon Miss Li's submission that there are no words of limitation in Article 24(3). However, that is again nothing to the point if the meaning of Article 24(3) is sufficiently clear. That said, he was clearly right in seeking to give Article 24(3) a generous and purposive construction, in concluding that it was not possible to detect the purpose of Article 24(3), that the Joint Declaration did not assist in that regard, and in assuming, on the position before him, that no travaux preparatoires existed.

40. However, the judge then went on to refer to what he termed surprising results. First, the result of adopting Miss Li's construction, 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, he thought it was Mr Ma's construction that produced the other and even more surprising result. Not only could parents be separated from their children but children could be separated from their younger brothers and sisters. He regarded these considerations as powerful support for the construction that Miss Li advanced. I have to say, that I do not regard Mr Ma's construction as having an even more surprising result. If anything, it seems to me that the result of Miss Li's construction must be the more anomalous and surprising. However that may be, I cannot accept that those considerations could constitute powerful support for Miss Li's construction.

41. The judge also had regard to canons of construction, appropriately upon his view, that the meaning of Article 24(3) was unclear. Thus that the court was encouraged to find against a construction which would produce anomalies, since anomalies are unlikely to have been intended. Also that the court was likewise encouraged 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 - Article 23(1) of the International Covenant on Civil and Political Rights, which Article 39 of the Basic Law requires to be implemented through the laws of the HKSAR. But, as I have already said, I do not accept that Mr Ma's construction produces the more anomalous result, or indeed any anomalous result. Likewise, I would not regard the splitting of families to be the result of the construction of Article 24(3) contended for by Mr Ma. The cause of such splitting up, it seems to me, is far more likely to be the action of the permanent resident parent acquiring a family outside Hong Kong, or migrating to Hong Kong without his family.

Vienna Convention on the Law of Treaties, Article 31

42. It was under this, that Mr Ma sought to rely upon an agreement reached between the PRC and the United Kingdom at a Joint Liaison Group meeting. Any subsequent agreement between the parties to an international treaty regarding its interpretation or as to the application of its provisions is to be taken into account in construing it under Article 31(3)(a). However, quite apart from the other obstacles to the success of this submission, it appears that the Vienna Convention has never been given effect in terms of Hong Kong's municipal law. Given that the suggestion is that an agreement subsequent to the enactment of legislation to give effect to a treaty is to be taken into account in construing that legislation, it seems to me, a fortiori, that Article 31 of the Convention cannot be relied upon, not having been given effect in terms of Hong Kong's municipal law.

43. In the result, in my view, upon its true and proper construction, Article 24(3) requires at least one parent to be a permanent resident at the time of the birth. Accordingly paragraph 2(c) of Schedule I to the Immigration Ordinance is not contrary to Article 24(3) of the Basic Law.

44. I would also allow the appeal and set aside the judge's order.

Mortimer, V.-P.:

45. This is an appeal against the order of Keith J dated 26 January 1998 in proceedings for judicial review in which he granted a declaration that the words "if the parent had the right of abode in Hong Kong at the time of the birth of the person" in paragraph 2(c) of Schedule I of the Immigration Ordinance, Cap. 115 as amended contravened Article 24(3) of the Basic Law. Some 81 applicants are involved.

The legislative background

46. Relevant parts of Article 24 of the Basic Law provide:

"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 ..."

47. Before 1 July 1997 Hong Kong permanent residents were identified in Schedule I of the Immigration Ordinance, Cap. 115. But immediately after the Basic Law came into force the Immigration Ordinance was amended by the Immigration (Amendment)(No.2) Ordinance 1997. By s.5 a new Schedule I was substituted. Paragraph 2 of Schedule I provides:

"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 issue

48. The issue which was before the judge and is now before this Court is whether the words in sub-paragraph (c) "if the parent had the right of abode in Hong Kong at the time of the birth of the person" contravene the words in Article 24(3) of the Basic Law "persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2)".

The decision challenged

49. In a characteristically careful and well reasoned judgment the judge held that they did because on a true construction of Article 24(3) a person of Chinese nationality born outside Hong Kong who is the offspring of a permanent resident is a permanent resident himself whether or not his parent was a permanent resident at the time of his birth.

The background

50. All the applicants are Chinese nationals and the offspring of permanent residents but neither of their parents had become Hong Kong residents with the right of abode at the time of their birth. Since then, however, at least one of their parents has become a Hong Kong permanent resident and each now claims permanent residency with the right of abode. The grounds are that this right is given by Article 24(3) of the Basic Law and cannot be removed by paragraph 2(c) of Schedule I of the Immigration Ordinance which is inconsistent with the Basic Law and therefore of no effect.

Submissions for the applicants

51. The matter is purely one of statutory construction. Miss Gladys Li SC, for the applicants, contends that the words of Article 24(3) are simple, clear and without restriction to limit the meaning so as to apply only to those whose parent was a permanent resident at the time of his birth. Further, Miss Li points to the heading of Chapter 3 in the Basic Law in which Article 24 appears. This deals with "fundamental rights and duties of the residents". She refers to Article 39 which continues to apply the provisions of the international covenant on civil and political rights to the HKSAR. In this context, she cites Minister of Home Affairs v Fisher [1980] AC 319 at 328 where Lord Wilberforce having made reference to the chapter in the Bermuda Constitution headed "protection of fundamental rights and freedoms of the individual" and similar international conventions, said:

"These antecedents, and the form of Chapter I itself, 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."

52. With this in mind, Miss Li submits that the judge was right to derive assistance from Article 23.1 of the ICCPR which provides:

"The family is the natural and fundamental group unit of society and is entitled to be protected by society and the state."

and points to the reliance of the Privy Council in Fisher's case upon similar provisions in international covenants and the ICCPR at 330B-E.

53. Miss Li also urges that Article 24(3) should be given a generous and purposive construction. On this point I agree that this is the proper approach to interpretation of provisions in the Basic Law granting fundamental rights but, along with the judge, I can find no indication in the Joint Declaration or any other legitimate source which indicates the purpose of this provision. He turned to a construction which he regarded as avoiding anomalies and one which militated against the splitting up of the family relying upon Article 39 of the Basic Law and Article 23.1 of the ICCPR.

Submissions for the Director

54. Mr Geoffrey Ma SC appears for the Director of Immigration. His contentions can be summarised as follows:

(1) That the meaning of Article 24(3) is clear and unambiguous. The focus is upon the time of birth as well as the place; and paragraph 2(c) of the Immigration Ordinance, as amended, reflects this clear meaning.

(2) Failing this, there is a lacuna or vagueness in the Article which is legitimately remedied by paragraph 2(c).

(3) That in any event paragraph 2(c) followed an agreement to the same effect in the Joint Liaison Group. This agreement is recorded as an understanding between the two sides as to the meaning of section 14 of the Joint Declaration. Mr Ma argues this agreement must be taken into account in interpretation of the Joint Declaration as a "subsequent agreement between the parties regarding the interpretation of the Treaty" and in accordance with paragraph 3 of Article 31 of the Vienna Convention on the Law of Treaties must be taken into account in interpreting the Treaty. Therefore, because the Joint Declaration can be considered as an aid to interpretation of the Basic Law, the agreement must also be taken into account in interpreting Article 24(3).

(4) In any event, the Immigration (Amendment)(No.2) Ordinance is an ancillary provision to Article 24(3) giving a precise meaning to what otherwise is a vague provision containing a lacuna.

(5) That the effect of paragraph 2(c) of Schedule I is not to split families. If families live apart, it is their choice. They may not be able to live as a unit in Hong Kong but they may always live as a unit in mainland China or elsewhere if they so choose.

The approach to interpretation

55. I approach the interpretation of Article 24(3) in the following way:

(i) The first task is to decide whether the words of the Article bear a clear and plain meaning which involves neither anomaly nor absurdity. If so, that meaning must prevail and it is unnecessary to fall back upon other aides to construction.

(ii) That even though it is not possible to identify any purpose, it is still necessary to give the plain meaning of the words a generous construction. See Attorney General of the Gambia v Joby [1984] AC 689 at 700 per Lord Diplock:

"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."

(iii) That if it is necessary to consider the ICCPR and Article 39 of the Basic Law, the practical effect of holding in favour of the Director of Immigration's construction will be for families to be parted.

(iv) That the agreement in the Joint Liaison Group is not a proper aid to construction under the Vienna Convention. The reason is that the Joint Liaison Group had no power to make agreements between the two governments. See Annex 2 to the Joint Declaration paragraph 6:

"The Joint Liaison Group shall be an organ for liaison and not an organ of power ..."

Also see the functions of the JLG specified in paragraph 3:

"3. The funcitons of the Joint Liaison Group shall be:

(a) to conduct consultations on the implementation of the Joint Declaration;

(b) to discuss matters relating to the smooth transfer of government in 1997;

(c) to exchange information and conduct consultations on such subjects as may be agreed by the two sides."

(v) That if there is a genuine lacuna in the meaning of Article 24(3) this may be provided for in domestic legislation.

Conclusion

56. With this in mind I turn to the words of the Article. In my judgment, these words focus upon parentage, the status of the parents, the place of the birth and the birth itself. Inevitably they focus upon the time of the birth as the time at which the right is given. I would hold, therefore, that on their true construction the words mean that at the time of the birth at least one parent must be a permanent resident. The time of the birth establishes the right. In my judgment, this is the natural meaning of the words.

57. Had it been the intention to give all children born of permanent residents outside Hong Kong, the status of permanent residents by descent, this could easily and clearly have been provided. This tends to show that the meaning was not intended to be as wide as that contended for by the applicants and the meaning which I attribute does not admit of sufficient flexibility to allow any more generous construction.

58. Finally, I would add that neither of the meanings contended for leads to any greater anomaly than the other. On the meaning contended for by the Director, some children in a family may have the right of abode whereas others may not. On the meaning contended for by the applicants, all the descendants of an elderly person who achieves permanent residency under Article 24(2) - seven years residence - will become permanent residents themselves although they may have no connection with the HKSAR whatsoever. I do not think either meaning leads to absurdity.

59. However, if I am wrong and the words of Article 24(3) are vague or ambiguous so as to leave a gap in the meaning between the two contentions, I am satisfied that the legislature has the necessary power to clothe the words with certainty by passing the amendment in paragraph 2(c) of Schedule I.

For these reasons, I agree with the earlier judgments. I also would allow the appeal, set aside the judge's order, and hold that the words of paragraph 2(c) of Schedule I are not contrary to Article 24(3) of the Basic Law.