SIN HOI CHU AND OTHERS v. THE DIRECTOR OF IMMIGRATION

CACV 415, 416 & 417/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 415, 416 AND 417 OF 2000

(ON APPEAL FROM HCAL NO. 81 OF 1999, NO. 2 OF 2000
AND NO. 70 OF 2000)

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CACV 415/2000

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J U D G M E N T

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Keith JA (giving the first judgment at the invitation of Mayo V-P):

INDEX

Introduction

The history of the right of abode litigation

(i) The Ng Ka Ling litigation

(ii) The Chan Kam Nga litigation

(iii) The Lau Kong Yung litigation

(iv) The Interpretation

(v) The legal effect of the Interpretation

The issue left unresolved in Lau Kong Yung

The present cases

"Judgments previously rendered"

Legitimate expectation

(i) Implementation of the judgments

(ii) Treating right of abode claimants as parties to the litigation

(iii) Interference with statutory duty

The Concession

(i) The effect of the Concession

(ii) The persons covered by the policy

(iii) Inconsistencies

(iv) Inquiries and other claims

The cases of the individual applicants

The early arrivals

(i) Period 2 arrivals

(ii) Period 1 arrivals

Conclusion

Introduction

1. Art. 24 of the Basic Law confers the right of abode in Hong Kong on the permanent residents of Hong Kong. It is a cherished status. A person with the right of abode in Hong Kong has the right to land in Hong Kong, the right not to have any condition of stay imposed upon him, and the right not to be removed or deported from Hong Kong.¹ He can truly call Hong Kong his home.

2. For the most part, right of abode litigation in Hong Kong has been concerned with two issues: who has the right of abode in Hong Kong, and what conditions have to be satisfied before the right of abode in Hong Kong can be regarded as having been established. In two landmark judgments early last year², the Court of Final Appeal enlarged in a significant way one of the classes of persons who have the right of abode in Hong Kong, and removed one of the obstacles in the path of Mainland residents wishing to establish their right of abode in Hong Kong. The present appeals are all about who can benefit from those judgments.

3. The history of the right of abode litigation is well known. Its constitutional implications have been widely discussed.³ But since an appreciation of the history of the litigation is critical to an understanding of the issues which the appeals raise, I trust that I will be forgiven for summarising it here.

The history of the right of abode litigation

(i) The Ng Ka Ling litigation. For the past few decades, entry into Hong Kong from the Mainland has been regulated by the Mainland authorities. An exit permit from the Mainland must be obtained by a Mainland resident who wishes to leave the Mainland and enter Hong Kong. One-way exit permits are issued to those who wish to settle in Hong Kong. Two-way exit permits are issued to those who merely wish to visit Hong Kong. Since the Mainland authorities have operated a quota system for the issue of one-way exit permits, the entry into Hong Kong of Mainland residents who wish to settle in Hong Kong has been staggered.

4. Art. 24(3) of the Basic Law confers the right of abode in Hong Kong on persons of Chinese nationality born outside Hong Kong to a permanent resident of Hong Kong. The vast majority of such persons are Mainland residents. Many of them wished to settle in Hong Kong. However, the Basic Law said nothing about how they were to establish that they had the right of abode in Hong Kong.

5. It was against that background that the Immigration (Amendment) (No. 3) Ordinance 1997 ("the No. 3 Ordinance")⁴ was enacted on 10 July 1997. It provided that the rights of a permanent resident of Hong Kong could not be enjoyed or exercised unless he or she had first established his or her status as a permanent resident of Hong Kong. That status could only be established by holding a valid travel document to which was affixed a certificate of entitlement. And an application for a certificate of entitlement had to be made in such manner as the Director of Immigration specified by notice in the Government Gazette.⁵ On the following day, i.e. 11 July 1997, the Director of Immigration issued such a notice.⁶ The practical effect of the regime created by the No. 3 Ordinance as supplemented by the notice in the Gazette was to require, in the case of Mainland residents claiming the right of abode in Hong Kong under Art. 24(3), the certificate of entitlement to be attached to a one-way exit permit. Thus, even if a Mainland resident claiming the right of abode in Hong Kong through parentage had proved to the satisfaction of the Director of Immigration that he or she was the son or daughter of a permanent resident of Hong Kong, their right of abode in Hong Kong could not be regarded as established until he or she had been granted a one-way exit permit by the Mainland authorities. In that way, the entry into Hong Kong of Mainland residents claiming the right of abode in Hong Kong through parentage could continue to be staggered.

6. The compatibility of this requirement for establishing the right of abode in Hong Kong through parentage was considered in Cheung Lai Wah v. The Director of Immigration. The critical question related to the construction of Art. 22(4) of the Basic Law, which requires Mainland residents to apply for approval from the Mainland authorities if they wish to settle in Hong Kong. Did that apply to persons who had the right of abode in Hong Kong under Art. 24(3)? I held that it did, and that therefore linking the certificate of entitlement to the one-way exit permit was not incompatible with the right of abode in Hong Kong conferred by Art. 24(3).⁷ The Court of Appeal agreed.⁸

7. By the time Cheung Lai Wah got to the Court of Final Appeal, it had become Ng Ka Ling v. The Director of Immigration. The Court of Final Appeal handed down its judgment on 29 January 1999. It held that Art. 22(4) did not apply to persons who had the right of abode in Hong Kong under Art. 24(3), and it ruled that the linking of the certificate of entitlement to the one-way exit permit was incompatible with the right of abode in Hong Kong through parentage conferred by Art. 24(3). The judgment was hailed as a great victory for right of abode claimants who lived on the Mainland. They assumed that once they had satisfied the Director of Immigration that at least one of their parents was a permanent resident of Hong Kong, they would be permitted to come to Hong Kong. They would no longer have to wait - maybe for many years - for a one-way exit permit before being regarded as having established their right of abode in Hong Kong. Or so they thought.

(ii) The Chan Kam Nga litigation. The actual language of Art. 24(3) confers the right of abode in Hong Kong on persons of Chinese nationality "born outside Hong Kong of" permanent residents of Hong Kong who are Chinese citizens. If those Chinese citizens had not been born in Hong Kong, they had to have "ordinarily resided in Hong Kong for a continuous period of not less than seven years". However, when the Immigration (Amendment) (No. 2) Ordinance 1997 ("the No. 2 Ordinance")⁹ was enacted, it limited the right of abode in Hong Kong conferred by Art. 24(3) to the children of Chinese citizens who had become permanent residents of Hong Kong by the time the children were born.

8. Leading counsel was instructed by the Director of Legal Aid to advise whether this limitation was compatible with the right of abode conferred by Art. 24(3). Counsel took the view that an argument on these lines was "unlikely to succeed", and for that reason the issue was not raised in Cheung Lai Wah. However, in a footnote to my judgment¹⁰, I stated that it was arguable that this limitation was incompatible with Art. 24(3), and as a result the proceedings which came to be known as Chan Kam Nga v. The Director of Immigration were launched. On 26 January 1998, I held that the limitation was incompatible with Art. 24(3).¹¹ On that occasion, the Court of Appeal disagreed. By its judgment handed down on 20 May 1998¹², it held that the limitation was compatible with Art. 24(3).

9. The Court of Final Appeal handed down its judgment in Chan Kam Nga on 29 January 1999 - the same day as it handed down its judgment in Ng Ka Ling. The Court of Final Appeal disagreed with the Court of Appeal. It held that the limitation was incompatible with Art. 24(3). Thus, the son or daughter of a Chinese citizen who was a permanent resident of Hong Kong acquired the right of abode in Hong Kong under Art. 24(3) even if he or she had been born before either of his or her parents had become a permanent resident of Hong Kong. This judgment of the Court of Final Appeal was also hailed as a great victory for right of abode claimants who lived on the Mainland. The number of persons who could claim the right of abode in Hong Kong through parentage, whether then or in the future, would be very considerably increased. Or so they thought.

(iii) The Lau Kong Yung litigation. In Ng Ka Ling, the Court of Final Appeal had left undisturbed the conclusion of the lower courts that Mainland residents who claim the right of abode in Hong Kong under Art. 24(3) had no right of entry into Hong Kong while their claims were being verified. But what about the many Mainland residents who were already in Hong Kong, but who were then in breach of immigration control - either because they had come to Hong Kong on two-way exit permits but had not returned to the Mainland when their permission to remain in Hong Kong had expired, or because they had entered Hong Kong surreptitiously, i.e. otherwise than through an immigration control point? Orders for their removal from Hong Kong were made by the Director of Immigration.

10. The legality of these removal orders was challenged in Lau Kong Yung v. The Director of Immigration.¹³ One of the grounds of challenge was that those who claimed the right of abode in Hong Kong through parentage should not be returned to the Mainland because new arrangements for establishing their right of abode in Hong Kong had not been promulgated to replace the original system for establishing the right of abode in Hong Kong through parentage which the Court of Final Appeal had declared in Ng Ka Ling to be incompatible with the Basic Law. Yeung J rejected that argument, and declined to quash the removal orders. The Court of Appeal disagreed.¹⁴ On 11 June 1999, it quashed the removal orders. This was yet again hailed as a great victory for Mainland residents claiming the right of abode in Hong Kong through parentage. They would not be required to return to the Mainland pending the introduction of a new scheme for establishing their right of abode in Hong Kong. Or so they thought.

(iv) The Interpretation. In the meantime, the Government had been considering the implications of the judgments of the Court of Final Appeal in Ng Ka Ling and Chan Kam Nga. It concluded that, as a result of the Court of Final Appeal's judgment in Chan Kam Nga, at least 1.67m. additional Mainland residents would qualify for the right of abode in Hong Kong: about 690,000 initially, and about 980,000 in the next generation, who would have acquired their right of abode in Hong Kong once their parents (who constituted the first wave of arrivals) had completed seven years' ordinary residence in Hong Kong. If, as a result of the Court of Final Appeal's judgment in Ng Ka Ling, they were entitled to come to Hong Kong without a one-way exit permit, so that their arrival in Hong Kong would not be staggered, the effect upon resources and services would be alarming.¹⁵

11. Eventually, the Government decided to seek an interpretation by the Standing Committee of the National People's Congress ("the NPCSC") under Art. 158 of the Basic Law of the relevant provisions of the Basic Law, i.e. Art. 22(4) and Art. 24(3). The request for such an interpretation was submitted by the Chief Executive to the State Council on 20 May 1999. The NPCSC issued its interpretation of these provisions on 26 June 1999 ("the Interpretation").¹⁶

12. The Interpretation rejected the Court of Final Appeal's construction of the relevant provisions of the Basic Law. It held that Art. 22(4) applies to persons who claim the right of abode in Hong Kong under Art. 24(3). Accordingly, they have to obtain approval from the Mainland authorities if they wish to settle in Hong Kong. As for Art. 24(3), it held that at least one of the claimant's parents had to have become a permanent resident of Hong Kong by the time of the claimant's birth for the claimant to have acquired the right of abode in Hong Kong. Within a few weeks,

(a) the Immigration Ordinance was amended¹⁷ to reinstate the limitation created by the No. 2 Ordinance, limiting the right of abode in Hong Kong to the children of Chinese citizens who had become permanent residents of Hong Kong by the time the children were born, and

(b) by a notice in the Government Gazette¹⁸, the Director of Immigration restored the old system for Mainland residents to establish their right of abode in Hong Kong, i.e. a system which linked the certificate of entitlement to the one-way exit permit.

The public controversy which erupted over the Government's decision to seek an interpretation by the NPCSC of these provisions and over the Interpretation itself is well known, but I do not, of course, comment on that debate. The court's function is merely to apply the law as we conceive it to be. All that needs to be said is that the Interpretation represented a severe setback to the aspirations of the very many Mainland residents who had hoped to settle in Hong Kong as a result of acquiring the right of abode in Hong Kong through one or both of their parents.

(v) The legal effect of the Interpretation. The NPCSC had issued the Interpretation by the time Lau Kong Yung got to the Court of Final Appeal. Lau Kong Yung thus assumed an added significance. It gave the Court of Final Appeal the opportunity to consider the legal effect of the Interpretation. The Court of Final Appeal confirmed¹⁹ that the Interpretation had legal effect and was binding on the courts of Hong Kong. Thus, the original system for establishing the right of abode in Hong Kong through parentage which the Court of Final Appeal had declared in Ng Ka Ling to be incompatible with the Basic Law had been lawful after all. So too had the limitation requiring those who claimed the right of abode in Hong Kong through parentage to have been born after at least one of their parents had become a permanent resident of Hong Kong. Accordingly, the removal orders were restored²⁰, but subject to an undertaking which the Director of Immigration had given to consider whether the removal orders should be revoked.

The issue left unresolved in Lau Kong Yung

13. In the course of his judgment in Lau Kong Yung, Li CJ said²¹ that since the effect of the Interpretation was to declare what the law had always been, it dated back to 1 July 1997 when the Basic Law had come into effect. He referred to the common law relating to the declaratory theory of judicial decisions as explained by the House of Lords in Kleinwort Benson Ltd. v. Lincoln City Council.²² However, he expressly left open the question as to which persons were unaffected by the Interpretation, i.e. which persons could, despite the Interpretation, continue to benefit from the law as it had been declared to be in Ng Ka Ling and Chan Kam Nga. It is that issue which the present appeals raise.

14. The fact that there were some persons who were unaffected by the Interpretation is undeniable. That is agreed on all sides. There are at least three reasons for that. First, the Basic Law itself provides for certain persons not to be affected by any interpretation by the NPCSC of the Basic Law. Art. 158(3) provides that "judgments previously rendered shall not be affected" by any interpretation of the Basic Law by the NPCSC under Art. 158. It is common ground that that provision applies, not merely to an interpretation of the Basic Law by the NPCSC pursuant to a request by the Court of Final Appeal for such an interpretation, but also to what has been called "free-standing" references, e.g. the request made by the Chief Executive for the interpretation of Art. 22(4) and Art. 24(3).

15. Secondly, the NPCSC itself declared that there were persons who would be unaffected by the Interpretation. The final paragraph of the Interpretation contained this sentence:

"This Interpretation does not affect the right of abode in the Hong Kong Special Administrative Region which has been acquired under the judgment of the Court of Final Appeal on the relevant cases dated 29 January 1999 by the parties concerned in the relevant legal proceedings."

Questions arise as to what the legal effect of this sentence in the Interpretation is and whether this translation is entirely accurate. I shall refer to these topics later. For the moment, it is sufficient to state that, whatever its legal effect or proper translation, it demonstrates that the NPCSC believed that there was a class of persons who could, despite the Interpretation, continue to benefit from the law as it had been declared to be in Ng Ka Ling and Chan Kam Nga.

16. Thirdly, on the day on which the Interpretation was issued, the Chief Executive himself issued a press statement in both Chinese and English. The statement announced various decisions which had been made by the Executive Council earlier that day. Those decisions included a decision as to which persons should be treated as unaffected by the Interpretation, and therefore recognised that there were at least some persons whose right of abode claims would be decided in accordance with the judgments of the Court of Final Appeal in Ng Ka Ling and Chan Kam Nga. This statement has been referred to as "the Concession", but as Stock J (as he then was and who heard these cases at first instance) said, that is to beg one of the issues, which is whether the stance adopted by the Government in this statement was one which it was obliged in law to take or whether it was an indulgence which went further than its legal obligations. The Government's position is that the Concession went much further than it was legally obliged to go.

The present cases

17. Three cases were heard together by Stock J: Ng Siu Tung and others v. The Director of Immigration (HCAL 81/1999), Li Shuk Fan v. The Director of Immigration (HCAL 2/2000) and Sin Hoi Chu and others v. The Director of Immigration (HCAL 70/2000). In Ng Siu Tung, there were a total of 5,308 applicants. 19 of them were selected as representative applicants. They represented different times of arrival in Hong Kong and different factual situations. It was thought that their cases raised all the issues of law which would have to be determined in the case of all the applicants. Similarly, there were a total of 43 applicants in Sin Hoi Chu. Seven of them were selected as representative applicants for the same reason. Stock J was called upon to decide only the cases of the representative applicants in these two cases and of Li Shuk Fan.

18. The rights of the applicants turn in a number of respects on the dates upon which they arrived in Hong Kong. Five time bands have been identified for the purpose of classifying each of the applicants:

(i) Period 1 relates to those persons who arrived in Hong Kong before 1 July 1997 (the date on which the Basic Law took effect), and who stayed in Hong Kong until 1 July 1997 or beyond.

(ii) Period 2 relates to those persons who arrived in Hong Kong between 1 July 1997 and 10 July 1997, which was the date on which the No. 3 Ordinance was enacted.

(iii) Period 3 relates to those persons who arrived in Hong Kong between 10 July 1997 and 29 January 1999, which was the date of the judgments of the Court of Final Appeal in Ng Ka Ling and Chan Kam Nga.

(iv) Period 4 relates to those persons who arrived in Hong Kong between 29 January 1999 and 26 June 1999, which was the date of the issue of the Interpretation and the announcement of the Concession.

(v) Period 5 relates to those persons who arrived in Hong Kong after 26 June 1999.

Another useful classification adopted both in the hearing before Stock J and the hearing before us related to the distinction between those persons born after either of their parents had become a permanent resident of Hong Kong and those persons born before. Persons born after were called Group A claimants. Persons born before were called Group B claimants. The representative applicants in Ng Siu Tung and Sin Hoi Chu cover all of the five time bands and both Group A and Group B claimants.

19. Personal histories vary, of course, from applicant to applicant. Many of the applicants came to Hong Kong on two-way exit permits, but did not return to the Mainland when their permission to remain in Hong Kong expired. Others came to Hong Kong clandestinely, i.e. otherwise than through an immigration control point. Moreover, if an applicant arrived in Hong Kong during a particular period, he may not have remained in Hong Kong during the whole of that period. In many cases, an applicant arrived during a particular period but then returned to the Mainland. They remained applicants. Again, some of the applicants who went back to the Mainland have since then returned to Hong Kong.

20. However, the common feature in the case of all the representative applicants in Ng Siu Tung and Sin Hoi Chu, as well as Li Shuk Fan, is that in each of their cases the Director of Immigration considered whether they came within the Concession. Since the Director of Immigration thought that the number of people unaffected by the Interpretation would be greater under the Concession than under (a) the "judgments previously rendered" immunity in Art. 158(3) and (b) the sentence on the topic in the Interpretation itself, persons who were regarded as coming within the Concession were allowed to stay in Hong Kong while their claims to the right of abode in Hong Kong were being established in accordance with the Court of Final Appeal's judgments in Ng Ka Ling and Chan Kam Nga. Likewise, persons who were not regarded as coming within the Concession had removal orders made against them.

21. With a few exceptions, the representative applicants in Ng Siu Tung and Sin Hoi Chu and Li Shuk Fan had removal orders made against them.²³ In each case, the facts which were said to justify the removal orders were that the applicant (a) had contravened a condition of stay in Hong Kong and (b) had not come within the Concession. Thus, the decisions which were challenged were

(a) the decisions that the representative applicants did not come within the Concession,

(b) the decision to treat only those persons who came within the Concession as unaffected by the Interpretation,

(c) the decisions that the right of abode in Hong Kong of the representative applicants had not been established, and

(d) the decisions requiring them to leave Hong Kong before their right of abode in Hong Kong had been established in accordance with the judgments of the Court of Final Appeal in Ng Ka Ling and Chan Kam Nga,

though not each of the representative applicants and Li Shuk Fan had been the subject of all of these decisions. With minor exceptions to reflect the particular circumstances of some of the representative applicants, Stock J dismissed the applications for judicial review of these decisions. It is from the dismissal of these applications that Li Shuk Fan and the representative applicants in Ng Siu Tung and Sin Hoi Chu now appeal.

"Judgments previously rendered"

22. As I have said, the question which the present appeals raise relates to which persons were unaffected by the Interpretation. In answering that question, the starting point has to be Art. 158 of the Basic Law itself, which provides that an interpretation of the Basic Law by the NPCSC will not affect "judgments previously rendered". The judgments previously rendered which were to be unaffected by the Interpretation were the judgments of the Court of Final Appeal in Ng Ka Ling and Chan Kam Nga. An examination of those judgments shows that they had both broad and narrow aspects.

23. Take the judgment in Ng Ka Ling first. The Court of Final Appeal had to decide whether the linking of the certificate of entitlement to the one-way exit permit by the No. 3 Ordinance and the notice in the Gazette was compatible with the Basic Law. It held that it was not, and in order to reflect that view of the law, the Court of Final Appeal declared some of the statutory provisions introduced into the Immigration Ordinance by the No. 3 Ordinance and some of the paragraphs in the notice in the Gazette null and void. That was the broad aspect of the judgment. But the additional relief which the Court of Final Appeal granted related to the rights of the actual parties to the litigation. The Court of Final Appeal made orders quashing various decisions which the Director of Immigration had made in the applicants' cases, and declared that they had established their status as permanent residents of Hong Kong and that they were therefore entitled to the right of abode in Hong Kong. That was the narrow aspect of the judgment.

24. A similar analysis can be made of the judgment in Chan Kam Nga. The Court of Final Appeal had to decide whether the limitation imposed by the No. 2 Ordinance on the right of abode in Hong Kong conferred by Art. 24(3) was compatible with the Basic Law. It held that it was not, and in order to reflect that view of the law, the Court of Final Appeal declared that one of the provisions introduced into the Immigration Ordinance by the No. 2 Ordinance was null and void. That was the broad aspect of the judgment. But the additional relief which the Court of Final Appeal granted related to the rights of the actual parties to the litigation. The Court of Final Appeal declared that each of the applicants could become permanent residents of Hong Kong under Art. 24(3) whether their parents' status as permanent residents of Hong Kong had been acquired before or after the applicants' birth. That was the narrow aspect of the judgment.

25. This analysis of the judgments in Ng Ka Ling and Chan Kam Nga brings into sharp focus what I believe the critical question to be. What does the word "judgments" in the phrase "judgments previously rendered" actually cover? Does it cover the declarations which the Court of Final Appeal made relating to the compatibility of the impugned provisions with the Basic Law? In other words, does it cover the conclusion of the Court of Final Appeal as to the constitutionality of the impugned provisions, which the Court of Final Appeal had to decide in order to determine what the rights of the actual parties to the litigation were? Or does it cover only the declarations which the Court of Final Appeal made relating to the rights of the actual parties to the litigation?

26. If these are the correct questions to ask, they admit, I believe, of only one answer. If the declarations which the Court of Final Appeal made relating to the compatibility of the impugned provisions with the Basic Law remain unaffected by the Interpretation, the effect of the Interpretation is very significantly reduced. The NPCSC's interpretation of Art. 22(4) and Art. 24(3) had the effect of rendering the impugned provisions in the Immigration Ordinance introduced by the No. 2 and No. 3 Ordinances compatible with the Basic Law. But if the declarations made by the Court of Final Appeal relating to the compatibility of those provisions with the Basic Law remain unaffected by the Interpretation, the Interpretation will be robbed of all practical effect. It cannot have been the intention of those who drafted the Basic Law (a) to give the NPCSC the supreme authority to interpret the Basic Law, but then (b) to deny to such an interpretation any practical effect on the ground that the interpretation by the NPCSC of the articles in question was different from the interpretation of those articles by the courts of Hong Kong whose interpretation is said to be rendered sacrosanct by the phrase "judgments previously rendered shall not be affected".

27. Ms Gladys Li SC for the applicants sought to meet that concern by conceding that there were still many people who would be affected by the Interpretation. She referred to persons neither of whose parents had become permanent residents of Hong Kong by the date of the Interpretation and persons who had not been born by then. It could not therefore be said that treating the word "judgments" as covering the broad declarations made by the Court of Final Appeal robbed the Interpretation of all its effect. I am a little sceptical about the logic behind excluding those classes of persons from those persons who would be unaffected by the Interpretation. For example, the Court of Final Appeal declared in Chan Kam Nga that the right of abode in Hong Kong is acquired under Art. 24(3) even if the parent who is the permanent resident of Hong Kong acquired that status after the birth of the claimant. If that declaration is unaffected by the Interpretation, why should children as yet unborn not be able to claim the benefit of that declaration? But even if the exclusion of those classes of persons from those persons who would be unaffected by the Interpretation is justified, the fact remains, if the word "judgments" in Art. 158(3) is treated as covering the broad declarations made by the Court of Final Appeal, that the Interpretation will be robbed of its effect in relation, not merely to the 5,352 applicants in these three cases, but also to the hundreds of thousands of Mainland residents one of whose parents had by the date of Interpretation become a permanent resident of Hong Kong. As I have said, I do not believe that it could have been the intention of those who drafted the Basic Law to permit such inroads into the application of any interpretation by the NPCSC of the provisions of the Basic Law.

28. What, then, did those who drafted the Basic Law intend to preserve from the effect of any interpretation by the NPCSC of the provisions of the Basic Law by the phrase "judgments previously rendered shall not be affected"? In my view, the answer is those judgments which declared the rights of the actual parties to the litigation in which the judgments were rendered. Thus, the persons whose rights are unaffected by any interpretation of the NPCSC under Art. 158 are the actual parties to that litigation. That reflects the crucial distinction which Stock J drew (with which I agree) between (a) the principles of law which a judgment establishes (and which, if the court is a court of record, the doctrine of precedent requires courts of co-ordinate and lesser jurisdiction to follow in cases which are factually indistinguishable) and (b) the application of those principles of law to the parties to the litigation in which the judgment is rendered. That distinction was pithily described by Stock J as "a judgment inter partes and the precedent which that judgment creates". The broad declarations in Ng Ka Ling and Chan Kam Nga reflected the principles of law which the cases established. The narrow declarations in the two judgments reflected the application of those principles to the parties.

29. I am confirmed in this view by three matters. First, in his judgment in Lau Kong Yung, Sir Anthony Mason NPJ said²⁴:

"As to the effect of a free-standing interpretation by the Standing Committee, that is, an interpretation given otherwise than on a reference, judgments previously given are protected by the vesting of judicial power in the courts of the Region and the vesting of the power of final adjudication in the Court of Final Appeal. Under the common law, a final judgment would not be re-opened as between the parties to the litigation in which the judgment was delivered by reason of the subsequent adoption of a new interpretation of the relevant legal instrument."

It is important not to take this observation out of context. Sir Anthony was dealing with the effect of a free-standing interpretation, not the circumstances in which that interpretation would be of no effect. But if one is looking for the reason why it was thought appropriate to provide that an interpretation of the Basic Law under Art. 158 should not affect judgments previously rendered in Hong Kong, the answer is the policy of the common law to bring finality to litigation. One of the ways in which that policy is given effect to is by the common law rule that a subsequent change in the law will not allow the parties to re-open litigation which has already been concluded. As Sir Anthony reminded us, "the subsequent adoption of a new interpretation of the relevant legal instrument" - of which the subsequent adoption by the NPCSC of a new interpretation of Art. 22(4) and Art. 24(3) of the Basic Law is an example - is a practical illustration of the application of the policy of the law to bring finality to litigation.

30. Ms Li contended that Sir Anthony was not saying that the subsequent adoption of a new interpretation of the relevant legal instrument was the only situation in which a final judgment could not be re-opened. I agree. But Ms Li did not suggest that the rationale for exempting "judgments previously rendered" from the effect of an interpretation of the Basic Law by the NPCSC was anything other than the need to reflect the policy of the law to bring finality to litigation. And that need is adequately met by treating the phrase "judgments previously rendered" as applying only to the judgments which declared the rights of the actual parties to the litigation in which the judgments were rendered.

31. Secondly, this approach is consistent with the declaratory theory of judicial decisions as explained by Lord Goff of Chieveley in Kleinwort Benson²⁵:

".... the law as declared by the judge is the law applicable not only at the date of the decision but at the date of the events which are the subject of the case before him, and of the events of other cases in pari materia which may thereafter come before the courts."

Thus, by analogy, the interpretation of Art. 22(4) and Art. 24(3) by the NPCSC was applicable, not only at the date of the Interpretation, but also on the date on which Art. 22(4) and Art. 24(3) took effect, i.e. on 1 July 1997. If the interpretation was retrospective in that sense, treating the word "judgments" as covering the broad declarations which the Court of Final Appeal made would result in the Interpretation being denied the retrospectivity which, if the analogy is a true one, the declaratory theory of judicial decisions would otherwise have accorded to it.

32. Ms Li's answer is that the analogy is not a true one. Lord Goff himself recognised that there may be differences between judicial and legislative changes²⁶:

"I recognise, of course, that the situation may be different where the law is subject to legislative change. That is because legislation takes effect from the moment when it becomes law, and is only retrospective in its effect to the extent that this is provided for in the legislative instrument. Moreover even where it is retrospective, it has the effect that as from the date of the legislation a new legal provision will apply retrospectively in place of that previously applicable."

But it is important to remember that, although the Interpretation was an interpretation by a legislative body, and although the process and techniques of legislative interpretation adopted by the NPCSC may be unfamiliar, even alien, to the common lawyer, the function which the NPCSC was performing was an interpretative rather than a legislative function. It was not changing the law by legislation, but declaring what the law had always been by interpretation. I therefore agree with Mr Geoffrey Ma SC for the Director of Immigration that the analogy is an apt one, and that the declaratory theory of judicial decisions supports treating the word "judgments" as covering only the narrow declarations made by the Court of Final Appeal.

33. Thirdly, treating the word "judgments" in that way is supported by the NPCSC's own statement as to the reach of the phrase "judgments previously rendered shall not be affected". It will be recalled that the Interpretation itself provided that it was not to "affect" the rights which had been acquired under the judgments of the Court of Final Appeal "by the parties concerned in the relevant legal proceedings". There was a dispute before Stock J as to the correct translation of the Interpretation. The Chinese characters which have been translated as "parties" are the three characters 當事人 - dong sze yan in their romanised version. It was argued on behalf of the applicants before Stock J that in their context the three characters refer to "the persons affected by" the relevant legal proceedings, rather than "the parties to" the relevant legal proceedings. Although Stock J was not versed in Chinese characters (save to an extremely limited degree), he did not regard that as preventing him from coming to a conclusion on the topic with which he was comfortable. He concluded that the translation advanced on behalf of the applicants could not be supported. I regard his reasoning as compelling.

34. However, the issue as to the correct translation of the Interpretation was not developed before us, and in the event I have decided to attach little weight to the NPCSC's statement as to the reach of the Interpretation. That is because the reach of any interpretation issued by the NPCSC was not a matter which had been referred to the NPCSC. In other words, although the NPCSC had been asked to interpret Art. 22(4) and Art. 24(3), it had not been asked to interpret the phrase "judgments previously rendered" in Art. 158(3). Accordingly, although its statement as to the reach of the Interpretation was a considered and important expression as to who was to be affected by the Interpretation, the statement was not necessarily one which amounted to an interpretation of the phrase "judgments previously rendered", and was not one which necessarily identified who were entitled under Art. 158(3) not to be affected by the Interpretation.

35. For these reasons, I conclude that the only persons whose rights are unaffected by the Interpretation are the actual parties to the litigation which culminated in the judgments in Ng Ka Ling and Chan Kam Nga. By the time the Ng Ka Ling litigation got to the Court of Final Appeal, the actual parties to the litigation were Ng Ka Ling and three others. The actual parties to the Chan Kam Nga litigation were Chan Kam Nga and 80 others.

36. The Director of Immigration has been prepared to treat two other categories of persons, apart from the actual parties, as parties to that litigation:

(i) There were a number of cases which were stayed or adjourned sine die while the cases which comprised the Ng Ka Ling litigation proceeded through the courts. They were only stayed or adjourned because it was recognised that they raised the same issues of law which would be decided in the Ng Ka Ling litigation. But for the orders staying or adjourning those cases for that reason, the cases would almost certainly have been consolidated with the cases which comprised the Ng Ka Ling litigation. In those circumstances, I understand entirely the Director of Immigration's decision to treat the applicants in those cases as if they had been parties to the Ng Ka Ling litigation for the purpose of obtaining the benefit of the judgment of the Court of Final Appeal in Ng Ka Ling.

(ii) There were a number of persons who the Director of Immigration undertook not to remove from Hong Kong pending the ultimate outcome of the Ng Ka Ling and Chan Kam Nga litigation. They came into three categories: (a) those persons who had been granted legal aid to bring right of abode claims which raised the issues in the Ng Ka Ling litigation²⁷, (b) those persons who had not been granted legal aid but who the Director of Legal Aid regarded as having "meritorious cases" on the issues raised in the Ng Ka Ling litigation²⁸, and (c) other persons whose details had been provided to the Director of Immigration by the solicitors acting for the applicants in the Chan Kam Nga litigation, whose cases raised the same issue as that in the Chan Kam Nga litigation and who complied with certain conditions laid down by the Director of Immigration.²⁹ But for the undertakings given by the Director of Immigration in relation to these three categories of persons, applications for legal aid in respect of those who had not been granted legal aid may well have been renewed, proceedings may well have been instituted on their behalf, and their cases would have been stayed or adjourned while the cases which comprised the Ng Ka Ling litigation and while the Chan Kam Nga litigation proceeded through the courts. Again, I entirely understand why the Director of Immigration decided to treat these persons as if they had been parties to the litigation for the purpose of obtaining the benefit of the judgments of the Court of Final Appeal in Ng Ka Ling and Chan Kam Nga.

None of the representative applicants in Ng Siu Tung or Sin Hoi Chu (nor Li Shuk Fan) were actual parties to the litigation which culminated in the judgments in Ng Ka Ling and Chan Kam Nga, nor do any of them come within the two categories of persons who the Director of Immigration is prepared to treat as parties to that litigation.

37. It is against that background that Ms Li contended that the Director of Immigration went nowhere near far enough in treating only these two categories of persons as parties to the litigation. The argument is that Ng Ka Ling and Chan Kam Nga were test cases, litigated in public law, and would result in final judgments which could be applied for the benefit of, or against, the very large number of Mainland residents claiming the right of abode in Hong Kong. For that reason, it was assumed that there would be no need for other proceedings to be issued, because the test cases would decide what the rights of all the right of abode claimants would be. Since their position was no different from the actual parties to the Ng Ka Ling and Chan Kam Nga litigation, they should be treated as parties to that litigation.

38. That is, of necessity, a truncated version of Ms Li's elegant and wide-ranging submissions on the topic, but it contains, I hope, the essence of the applicants' case. Who, on this argument, should be treated as parties to the litigation? Ms Li's answer is those persons who are Chinese nationals born outside Hong Kong who (a) by the date of the Interpretation had at least one parent who was a Chinese citizen and who had ordinarily resided in Hong Kong for a continuous period of at least seven years and (b) could have brought proceedings for declarations relating to their right of abode in Hong Kong but for the fact that there were test cases proceeding through the courts which it was believed would decide what their rights would be.

39. In my judgment, this argument is predicated upon the word "judgments" in Art. 158(3) being treated as covering the broad declarations made by the Court of Final Appeal. If the word "judgments" is treated as covering only the narrow declarations made by the Court of Final Appeal in relation to the actual parties to the litigation (as I have concluded it should be), there is no room left for the argument that the judgments inure for the benefit of persons who were not the actual parties to the litigation. If the only part of the judgments of the Court of Final Appeal in Ng Ka Ling and Chan Kam Nga which were unaffected by the Interpretation are the declarations made in favour of the actual parties to the litigation, it cannot be said that other persons in respect of whom no declarations were made should nevertheless be treated as parties to the litigation for the purpose of enjoying the fruits of those judgments.

40. Before leaving this topic, I wish to comment upon two particular arguments which Ms Li developed. First, considerable reliance was placed on the decision of the English Court of Appeal in Ashmore v. British Coal Corporation.³⁰ In that case,

".... Ms Ashmore worked in the canteen of a coal mine in Nottingham. She complained to an industrial tribunal that she was paid less than men were being paid for similar work, contrary to the Equal Pay Act 1970. Over 1,500 other women employees of the corporation made similar complaints. The industrial tribunal decided to hear 14 sample cases, six selected by the employees and eight by the employers, to lay down general principles according to which the others could be decided. Ms Ashmore was aware of these arrangements. The tribunal decided all the cases adversely to the applicants on grounds which were equally applicable to Ms Ashmore's application. She then asked for a separate hearing of her case. The Court of Appeal decided that it should be struck out as an abuse of the process of the court. Ms Ashmore had not been a party to the sample proceedings but the sensible procedure there adopted would be undermined if all other members of the group were entitled to demand a separate hearing."³¹

It is important to note that Ashmore was not a representative or class action. The Chairman of the Industrial Tribunal was quoted by the Court of Appeal as having said this about the 14 sample cases in the course of his judgment on various interlocutory issues:

"These would not be test cases, the decision on any of the cases would not be binding upon the applicants or the respondents in any other cases but the decision might well assist in the resolution of the remaining cases by agreement .... Although a decision on sample cases is not binding upon the respondents or applicants in other cases it will undoubtedly have persuasive effect when the cases of other applicants fall to be considered."³²

Thus, Ms Li's point is that even though the 14 sample cases were not representative or test cases, Ms Ashmore was nevertheless treated in effect as if she had been one of the 14 sample cases. If she had not been so treated, her application would have been allowed to proceed. The Ashmore case was therefore akin to a case in which persons who were not parties to litigation were nevertheless treated as parties to it for the purpose of determining what their legal rights were.

41. I do not regard the Ashmore case as helpful. I note that Ms Ashmore was a party to the litigation, even though her case was not chosen as one of the 14 sample cases. But the critical point is that her claim was dismissed, not because she was treated as a party to the litigation, but because it would have been an abuse of the court's process for her case to be litigated. The case, therefore, though an interesting one in defining the scope of the doctrine relating to the abuse of the court's process, does not help on the circumstances in which persons who are not actual parties to litigation will be able to claim that they are parties to it so as to benefit from the judgment eventually rendered.

42. Secondly, I have already referred to the considerable reliance placed on the fact that Ng Ka Ling and Chan Kam Nga were "test cases" and were litigated in public law. There was much debate, both before Stock J and before us, as to what constitutes a test case, such differences as there may be between test cases litigated in public law and test cases litigated in private law, and the effect of declarations in public law. In my view, that debate has become academic. I do not think that it can seriously be gainsaid that the broad declarations made by the Court of Final Appeal in Ng Ka Ling and Chan Kam Nga about the constitutionality of the impugned provisions introduced into the Immigration Ordinance by the No. 2 and No. 3 Ordinances affected the rights of very large numbers of persons over and above the actual parties to the litigation. They would henceforth all be entitled to have their right of abode claims decided in accordance with laws which recognised the incompatibility of those provisions with the Basic Law. In that sense, Ng Ka Ling and Chan Kam Nga were indeed test cases. Both the Court of Final Appeal and the lower courts had been acutely conscious of that. But once the word "judgments" in Art. 158(3) is treated as covering only the declarations made by the Court of Final Appeal relating to the rights of the actual parties to the litigation, the argument as to the effect in law of the broad declarations simply falls away.

43. For all these reasons, I have concluded that the only parts of the judgments in Ng Ka Ling and Chan Kam Nga unaffected by the Interpretation were the declarations made in respect of the actual parties to the litigation, and they were therefore the only persons unaffected by the Interpretation. However, in limiting the application of the word "judgments" in Art. 158(3) to cover only the declarations made by the Court of Final Appeal relating to the actual parties to the litigation, I have not overlooked the fact that very many persons claim to have been dissuaded from

(a) seeking to establish to the satisfaction of the Director of Immigration that they had the right of abode in Hong Kong, or

(b) applying to the Director of Legal Aid for legal aid to challenge any refusal to consider their claims or any rejection of their claims, or

(c) applying to the courts for leave to challenge such refusal or rejection,

in the belief that they would benefit from the litigation proceeding through the courts. Stock J thought, however, that the cases of such persons should be considered in the context of the thwarting of their expectations, rather than be forced into the ill-fitting jacket of persons who should be treated as parties to the litigation. Indeed, he said that the "real issue in this case is an issue about expectation". It is to that topic that I now turn.

Legitimate expectation

(i) Implementation of the judgments. As one would expect from a government which asserts an unqualified respect for the rule of law, the Government in Hong Kong complies with the law. Thus, it respects final declaratory judgments given by the courts and implements them. Against that background, the applicants' case on legitimate expectation proceeds on the footing that, both before and after the judgments of the Court of Final Appeal in Ng Ka Ling and Chan Kam Nga,

(a) senior officials of the Government publicly stated, and

(b) other public servants specifically represented to individual claimants,

that the judgments would be implemented, i.e. that the Director of Immigration would determine their claims for right of abode in Hong Kong in accordance with the judgments of the Court of Final Appeal by procedures which complied with those judgments. These public statements and specific representations, given by officials of a government which asserted a respect for the rule of law³³ and the final judgments of the courts, are said to have given rise to a legitimate expectation on the part of the applicants that the judgments of the Court of Final Appeal in Ng Ka Ling and Chan Kam Nga would be implemented in that their right of abode claims would be determined in accordance with the judgments by procedures which complied with them.

44. Public statements. Most of the public statements on which the applicants rely come from press reports and similar materials, but it was not suggested that these statements had been inaccurately reported. It is not necessary to lengthen this judgment by identifying each of them. Many of them simply reiterate a respect for the rule of law and the Government's consistent practice of abiding by rulings of the courts, or provide information relating to the course of the Ng Ka Ling and Chan Kam Nga litigation, or comment (with relief or disappointment) on particular decisions of the courts in the course of the litigation. As for the public statements which can properly be said to amount to statements that the judgments of the courts in any test case relating to right of abode claims would be implemented, I have discerned only one such statement prior to the Court of Final Appeal's judgments in Ng Ka Ling and Chan Kam Nga. That was a statement made on 12 July 1997 by the Secretary for Security. She said that if the Government lost in the courts, it would have to amend the relevant legislation.³⁴ As I understand it, she was saying that the judgments of the courts would be implemented: the impugned legislation would be amended to give effect to them.

45. For some time after the Court of Final Appeal's judgments in Ng Ka Ling and Chan Kam Nga, Government officials were regularly saying that the judgments would be implemented. For example, according to a press release issued on 29 January 1999, the Secretary for Security noted that "some changes would be introduced to comply with the [Court of Final Appeal's] ruling on de-linking the [certificate of entitlement] from the [one-way exit permit]". This amounted to a statement that the Government would be implementing the judgment in Ng Ka Ling. On the following day, the Acting Chief Executive issued a statement in which she said:

"We respect the Court's decision and we will act accordingly" (emphasis supplied).

Her next sentence showed what she meant by the words we have emphasised:

".... the judgment of the Court of Final Appeal will increase the number of persons eligible for the right of abode in Hong Kong and, in the longer term, we believe, will put pressure on our services."

Thus, by acting accordingly, she meant that the judgment in Chan Kam Nga which had the effect of increasing significantly the number of persons eligible for the right of abode in Hong Kong would be implemented. That is confirmed by her next sentence:

"We will be meeting with the Mainland authorities early next week to assess the implications of the Court's decision and the size of the potential pool of eligible persons."

46. If there was any ambiguity in those statements, they were removed when the Secretary for Security gave a press conference on the same day. She began by saying:

".... we respect the Court's judgment and will employ the appropriate administrative measures to implement the Court's judgment" (emphasis supplied).

She did not go into detail as to how the judgment in Ng Ka Ling would be implemented, but she said:

".... we need to establish new procedures in order to implement the court's judgment",

and a little later

"... we will respect and abide by the court's judgment, take appropriate measures to implement the judgment."

47. In relation to these statements and others, Stock J said:

"I do not, however, need to cite every governmental announcement made in those days. They all said much the same thing: that they would respect³⁵ the Court of Final Appeal's judgments, expressed concern about the practical ramifications, and also said, again and again, that the judgments did not entitle people to come to Hong Kong for settlement other than with a certificate of entitlement, and that those who came on two-way permits and then claimed the right of abode without holding a certificate of entitlement would not have their applications processed in Hong Kong, and would have to leave at the expiry of their stay in Hong Kong."

A little later in his judgment, Stock J said:

"The history I have related shows that in the immediate aftermath of the two judgments, the authorities in Hong Kong represented they intended to implement a scheme to give effect to the two Court of Final Appeal judgments. They said that they intended to respect those judgments. The evidence is that discussions were held with Mainland authorities about procedures for the collection and verification of certificate of entitlement applications. The idea was that the Exit and Entry Administrative Bureau of the Public Security Ministry would act as the respondent's agent on the Mainland in the application procedure for a certificate of entitlement." (Emphasis supplied)

I entirely agree with this summary of the effect of the evidence.

48. However, it is equally plain that the Government decided to change its stance. I have referred earlier in this judgment to the events leading up to the Government's decision to seek an interpretation by the NPCSC of the relevant provisions of the Basic Law. I doubt whether the Government can fairly be criticised for taking time to consider the implications of the judgments of the Court of Final Appeal, but it cannot be gainsaid that the Government's decision to invoke the NPCSC's powers of interpretation under Art. 158 represented a change of stance.

49. Specific representations. The large number of persons who sought to establish that they had the right of abode in Hong Kong caused the Government Secretariat and the Immigration Department to issue various standard letters which were in Chinese. Thus, before the judgments of the Court of Final Appeal were handed down, the Government Secretariat was informing claimants:

"After the whole litigation process is completed, the Immigration Department will follow the final judgments of the Courts in dealing with the applications for the Certificate of Entitlement."³⁶

It cannot be disputed, I think, that that was a clear statement of the Government's intention (as it then was) to implement whatever the test cases ultimately decided.

50. Far less compelling is the other standard letter from the Government Secretariat on which Ms Li relied. After the judgments of the Court of Final Appeal, the Government Secretariat was informing claimants:

"The Director of Immigration is making arrangements for the application of Certificates of Entitlement."

It is possible that this meant that the Director of Immigration was making arrangements to introduce a new scheme for applying for certificates of entitlement which was not linked to one-way exit permits. But in the context of the letter as a whole, it is possible that it meant that it was still necessary to obtain a certificate of entitlement before one's right of abode in Hong Kong could be established. After all, the previous sentence of the letter had referred to the fact that the Court of Final Appeal's judgment

".... clearly states that persons who claim to have the right of abode .... must, before entering Hong Kong, obtain a Certificate of Entitlement (CofE), and the related application must be submitted on the Mainland."

51. Far less compelling also are the standard letters from the Immigration Department on which Ms Li relied. Before the judgments of the Court of Final Appeal, the Immigration Department was informing claimants:

"In the matter of children born outside of Hong Kong before their HK parents became HK permanent residents; that they too enjoy the right of abode even though their father or mother became received permanent residency afterwards. The case is under appeal, and the applications of persons in this category cannot be given decisions for the time being."

I do not think that the Immigration Department was representing in this letter that the final judgments of the courts would be implemented. The letter was simply saying that until final judgment was given on the issues raised in the Chan Kam Nga litigation, right of abode claims for group B claimants would not be processed. Again, after the judgments of the Court of Final Appeal, the Immigration Department was informing claimants:

"This Department is actively considering the specific arrangements to accept the applications for Certificates of Entitlement."

I put this letter into the same category as the one from the Government Secretariat issued after the judgments of the Court of Final Appeal. It is quite possible that this letter simply meant that it was still necessary to obtain a certificate of entitlement before one's right of abode in Hong Kong could be established.

52. The import of these public statements and specific representations. However, it is necessary to return to the big picture. In my judgment, the public statements of Government officials, including the standard letter issued by the Government Secretariat before the judgments of the Court of Final Appeal were handed down, amounted to statements that the final judgments of the courts in cases which were being treated as test cases would be implemented, i.e. that the Director of Immigration would determine right of abode claims in accordance with those judgments by procedures which complied with those judgments. That is what Stock J found. He said:

"The representations were indeed that the judgments would be implemented, and there is implicit in those representations that the law stated by the judgments would be followed in the case not only of the litigants, but also in favour of those who would benefit by the law thus stated."

53. What impact these statements and representations had on the many thousands of Mainland residents claiming the right of abode in Hong Kong is impossible to answer, save on an examination of each of their cases. It depends on what each of them knew. But upon the assumption that these statements and representations induced them to expect that they would benefit from the judgments given in the test cases, the critical question is whether that expectation was a legitimate one. In my view, it was not. The statements and representations on which the applicants rely all proceeded on the assumption that the law as stated by the judgments of the Court of Final Appeal in the test cases would be the last word on the matter. Putting it in another way, the link between the promises that the judgments would be implemented and the continual refrain about respecting the rule of law shows that the statements and representations relied upon have to be read as statements and representations that the judgments would be implemented so long as they represented the law. Thus, if the applicants expected that, as a result of the representations and statements, their right of abode claims would be determined in accordance with those judgments regardless of any subsequent change in the law, such an expectation would not have been a legitimate one.

54. One hesitates to take pleading points in cases as important as this, but for what it is worth the force of this argument was recognised in the re-amended notice of application for leave to apply for judicial review in Ng Siu Tung. It referred to "the unvaried practice of the Government in Hong Kong to follow the law as declared by the court until such time as the law is changed" (emphasis supplied). As Stock J said:

"To point to [that practice] as establishing a legitimate expectation from which the applicants hope to benefit, is to point to the flaw in the argument, because the law itself permits interpretation by the Standing Committee, and the Court of Final Appeal has held that, before as well as after the Court of Final Appeal judgments, the law was not such as could benefit these applicants. Looked at from another angle, the named parties to the Court of Final Appeal judgments have benefitted from a judgment based on interpretations of the Basic Law held now (in effect) to have been erroneous, and the applicants seek to derive the same benefit. The invariable practice upon which the applicants rely is the invariable practice of following and applying the law as it is at any given time. It is not an invariable practice of conferring on everyone the benefit (or indeed of imposing the burden) of the law as determined by a judgment even in the face of, say, retrospective legislative amendment or of a declaration, operating retrospectively, which holds that the law was not that which was accepted law at the time of that judgment."

55. I recognise that if the statements and representations are read as meaning simply that the judgments would be implemented so long as they represented the law, the statements and representations were, in the words of Stock J, merely

".... statements of the obvious - that the law would be implemented; that the authorities would do as the law declared by the courts required them to do."

There was no need to state the obvious, said Ms Li, so why were the statements and representations made? She suggested that they were made to discourage right of abode claimants from pursuing their claims through the courts and therefore to prevent a flood of legal proceedings. That may or may not be so, but what is important is not what motivated officials to make the statements and representations, but what they could reasonably have been understood to mean by the persons to whose attention they could reasonably be expected to have come. As I have said, the statements and representations could reasonably have been understood to mean only that the final judgments of the courts in the test cases would be implemented so long as those judgments represented the law.

56. Stock J expressed these sentiments as follows:

"The reality of the matter is that the applicants, quite understandably, desire to freeze the law at a time which is beneficial to them. But as a matter of law they cannot do that (even though armed with the representations made at that time). The judgments in Ng Ka Ling and Chan Kam Nga do not benefit the parties to that litigation because of representations made that the judgments would be implemented. Those parties take the benefit of the judgments because, despite the error as to legislative intent, to be taken as subsequently revealed by the Interpretation, they were parties to the litigation."

I agree, and it is to whether the applicants could be said to have had a legitimate expectation that they would be treated as parties to the litigation that I now turn.

(ii) Treating right of abode claimants as parties to the litigation. At the conclusion of the previous section of this judgment, I referred to the fact that very many persons claim to have been dissuaded from pursing their right of abode claims in the belief that they would benefit from the litigation then proceeding through the courts. In order to evaluate that claim, an appreciation of the events which shaped the course of the litigation is necessary.

57. Within a few days of the Basic Law taking effect, a number of applications for leave to apply for judicial review of decisions relating to the claims of Mainland residents for the right of abode in Hong Kong had been filed. Consideration was given to how these applications should be dealt with. By 21 July 1997, it had been decided to select a few cases in which all the anticipated issues of law could be decided. The remaining cases would be stayed or adjourned sine die pending the outcome of the representative cases.

58. The decision to select a few cases as test cases to obtain rulings from the courts on the anticipated issues of law had an impact on legal aid. Even if legal aid had been granted, it was thought to be unnecessary for proceedings to be issued. That was reflected in what the Chief Secretary for Administration had said to the Provisional Legislative Council on 23 July 1997. She had been asked about "the amount of public money to be spent" on the right of abode claims arising out of the No. 3 Ordinance. Having referred to the number of persons who had been granted legal aid already, she said:

".... with the agreement of the courts and both sides, a few cases will be selected as test cases to obtain rulings from the courts on points of law. It is therefore unnecessary to initiate separate proceedings for each and every legally aided person." (Emphasis supplied)

59. Moreover, on 22 September 1997, the Director of Legal Aid stopped granting legal aid to right of abode claimants even when the merits tests had been satisfied. That was done in order to save unnecessary legal costs, since it was anticipated that the legal rights of such persons would be decided by the Ng Ka Ling litigation. That was the reason for the undertaking given by the Director of Immigration to the Director of Legal Aid (to which I have already referred) not to remove from Hong Kong those persons whom the Director of Legal Aid regarded as having "meritorious cases". In addition, from about 7 December 1998, the Legal Aid Department began to issue standard letters to right of abode claimants who applied for legal aid which contained the following sentence:

"As your application for legal aid relates to legal matters that are being heard in the Court of Final Appeal at this time, there is accordingly no need to bring individual cases for litigation at this stage."

60. Again, what impact these events had on the many thousands of Mainland residents claiming the right of abode in Hong Kong is impossible to answer, save on a case by case basis. As I said earlier, it depends on what each of them knew. But I am prepared to proceed on the assumption that at least some right of abode claimants were dissuaded by these events from pursuing their claims for the time being, and were persuaded to take no action while the test cases were being litigated.

61. This is the area where the applicants' sense of grievance is most acutely felt. The courts themselves encouraged the selection of a few cases to test the legal principles raised. If people were discouraged from pursuing their right of abode claims (whether directly to the Director of Immigration, or indirectly to the Director of Legal Aid and the courts) because they were led to believe that it was unnecessary to do so, it would be grossly unfair if they were not treated in the same way as those persons who happened to be parties to the test cases which were being litigated.

62. Like Stock J, I am alive to this burning sense of injustice, but the fact remains that, to the extent that Ng Ka Ling and Chan Kam Nga were test cases deciding the rights of all right of abode claimants and not merely the cases of the persons who were parties to the litigation, the judgments of the Court of Final Appeal did not survive the Interpretation. Therefore, the only people entitled to benefit from the judgments of the Court of Final Appeal were the parties to the litigation. Thus, the applicants' case has to be put on the basis that the events which shaped the course of the litigation and caused them not to pursue their right of abode claims for the time being amounted to a representation that they would be treated, not merely in the same way as, but as if they were, the actual parties to the litigation.

63. With two possible exceptions, I have not seen any statement or representation which expressly informed right of abode claimants that they would be treated as if they were litigants in the test cases which were proceeding through the courts. Nor does the course which the litigation took imply that they would be treated as if they were actual parties to the litigation. The course which the litigation took implied that they would benefit from the final declarations of the courts as to what the rights of right of abode claimants in general were, to the extent that those declarations continued to represent the law. But what the course of the litigation did not imply was that, if the final declarations of the courts survived only to benefit the actual parties to the litigation, all right of abode claimants would be treated as if they were actual parties to the litigation. Thus, if any of the applicants expected to be treated as if they were parties to the litigation, that expectation would not have been a legitimate one.

64. The possible exceptions relate to the statement made by the Chief Secretary for Administration to the Provisional Legislative Council on 23 July 1997 and the sentence in the standard letter issued by the Legal Aid Department from about 7 December 1998. However, what I think the Chief Secretary and the Legal Aid Department were saying was simply that proceedings did not have to be commenced for a right of abode claimant to get the benefit of the rulings which the courts would be making on the points of law raised in the test cases. Thus, if the NPCSC had agreed with the judgments of the Court of Final Appeal relating to the interpretation of Art. 22(4) and Art. 24(3), a right of abode claimant would get the benefit of that interpretation even if he had not instituted any proceedings himself. The Chief Secretary and the Legal Aid Department were not saying that proceedings did not have to be commenced for a right of abode claimant to get the benefit of the courts' rulings in the event that those rulings were subsequently held to be erroneous.

65. I do not think that this conclusion is as unfair as the applicants suggest. The law as the Interpretation declared it to be is that the impugned provisions introduced into the Immigration Ordinance by the No. 2 and No. 3 Ordinances were not incompatible with the Basic Law. Yet the applicants wish to be dealt with as if the impugned provisions continue to be incompatible with the Basic Law. In truth, what the applicants have been denied is the opportunity to benefit from a prior interpretation of the relevant provisions in the Basic Law which was superseded by the Interpretation. It is true that a limited number of people can benefit from that earlier interpretation (i.e. the parties to the litigation, the persons whom the Director of Immigration was prepared to treat as parties to the litigation and the persons to whom the Concession applied), but the fact remains that the applicants are seeking to benefit from an interpretation of the relevant provisions of the Basic Law which no longer applies and which was replaced by an interpretation which dated back to when the Basic Law took effect. Their real complaint is that they have not been permitted to be included in the limited number of people whose cases have been unaffected by the Interpretation. I leave it to others to decide whether in those circumstances the applicants could really be said to have been treated unfairly.

(iii) Interference with statutory duty. The applicants are said to face another hurdle. Suppose that, contrary to the views which I have expressed up to now, they did indeed have a legitimate expectation that their right of abode claims would be determined in accordance with the judgments of the Court of Final Appeal by procedures which complied with those judgments or that right of abode claimants would be treated as if they were parties to the litigation which culminated in those judgments. Should the Director of Immigration be held in the circumstances to be bound to honour those expectations? Stock J held that he should not be held to be bound to honour them - on the basis that to require him to honour them would amount to an unwarranted interference with the Director of Immigration's statutory duty "to have regard to the overall objective of a statutory scheme designed to discourage unlawful entry, illegal stay in breach of conditions of stay, and the prevention of queue-jumping". This duty was the subject of repeated reference in Lau Kong Yung, especially in the judgment of Litton PJ.

66. I can see, of course, how the exercise by the Director of Immigration of his statutory duty might cause him to conclude that removal orders should be made in respect of persons who were in Hong Kong in breach of immigration control even if they were claiming the right of abode in Hong Kong. But it is important to remember that this case is not simply about the removal from Hong Kong of illegal entrants or overstayers. The case is about which right of abode claimants remain unaffected by the Interpretation so that they can benefit from the judgments in Ng Ka Ling and Chan Kam Nga. Decisions as to whether particular claimants could benefit from those judgements could be made even if removal orders were made against them.

67. Thus, it is strongly arguable, in my view, that to require the Director of Immigration to honour any legitimate expectation that right of abode claims would be determined in accordance with the judgments of the Court of Final Appeal or that right of abode claimants would be treated as if they were parties to the litigation which culminated in those judgments would not have amounted to such an interference with the Director of Immigration's statutory duties as to relieve him from any obligation to honour those expectations. However, this is not a topic to which I need to come to any conclusion upon in view of my conclusion that such expectations which the applicants had lacked legitimacy, and I have refrained from doing so.

The Concession

(i) The effect of the Concession. Following the State Council's acceptance of the Chief Executive's request for an interpretation by the NPCSC of the relevant provisions of the Basic Law, the Government addressed the question as to the action it would take if the effect of any interpretation was to render the impugned provisions introduced into the Immigration Ordinance by the No. 2 and No. 3 Ordinances compatible with the Basic Law after all. In particular, the Government addressed the question as to who, in that event, should be regarded as unaffected by such an interpretation, and who would therefore be entitled to have their right of abode claims determined in accordance with the Court of Final Appeal's judgments in Ng Ka Ling and Chan Kam Nga. It had been accepted, of course, that the actual parties to the litigation would be unaffected by such an interpretation. It had also been accepted that the two categories of persons who the Director of Immigration had been treating as if they had been parties to the litigation should also be regarded as unaffected by such an interpretation. The question was whether any other persons should be treated as unaffected by such an interpretation. That was the question which was addressed in the Concession.

68. As I have said, the Concession was contained in a press statement issued by the Chief Executive immediately after the issue of the Interpretation. The material part of the English version of the Concession reads as follows:

".... to comply with the principle that judgments previously rendered by the Court of Final Appeal shall not be affected by an interpretation of the National People's Congress Standing Committee, we will allow persons who arrived in Hong Kong between July 1, 1997 and January 29, 1999, and had claimed the right of abode, to have their status as permanent residents verified in accordance with the CFA decision. It is estimated that there are about 3,700 people in this category .... [F]or those who arrived after January 29, 1999, or I could put it another way, for any other persons, they will only be able to apply for the right of abode if they satisfy the terms of the interpretation by the Standing Committee of the National People's Congress."³⁷

69. It is important to identify the legal underpinning on which the applicants' case relating to the Concession rests. It is that as a result of the Concession the persons to whom the Concession applied had a legitimate expectation that their right of abode claims would be determined in accordance with the judgments of the Court of Final Appeal in Ng Ka Ling and Chan Kam Nga. The fact that the Concession gave rise to such a legitimate expectation which the Director of Immigration was obliged to fulfil is not in dispute. What is in dispute is who the Concession actually covers.

70. In order to determine that question, Mr Ma contended that the court was entitled to look for assistance beyond the terms of the Concession itself. That is because the press statement containing the Concession was simply that: an announcement to the press of the policy which the Government would apply to determine which persons would be treated as unaffected by the Interpretation. It was an announcement setting out in broad terms what the Government's policy was. It did not purport to set out the details of that policy, or the way in which that policy would be implemented. In particular, it did not set out what a right of abode claimant actually had to have done in order to be treated as someone who "had claimed the right of abode".

71. I agree with that submission. The question as to who the Concession actually covers is to be determined by reference to what the Government's policy actually was. For that purpose, we are entitled to take into account the evidence as to who the Concession was intended to cover, because that identifies what the Government's policy was. I have not overlooked the fact that the applicants' entitlement to rely on the Concession arises from their legitimate expectation that the Concession would be fulfilled. But if that was an expectation that the press statement constituted a comprehensive statement setting out all the criteria which would be taken into account in determining whether the right of abode had indeed been claimed, I do not believe that such an expectation was a legitimate one. The only legitimate expectation which right of abode claimants could have had as a result of the press statement was that

(a) their right of abode claims would be determined in accordance with the Court of Final Appeal's judgments in Ng Ka Ling and Chan Kam Nga if they came within the Government's prevailing policy of which the press statement was simply a brief announcement, and

(b) the details of the current policy would not be inconsistent with the summary of the policy contained in the press statement.

Thus, the proper exercise is to determine what the Government's policy was, and then to consider whether the details of that policy harmonised with the Chief Executive's summary of the policy contained in his briefing to the press. In other words, the issue is not so much who is covered by the Concession (i.e. the press statement), but who is covered by the policy, and whether that policy is consistent with the Concession. From now on, I shall refer to the Concession as "the press statement" so as to distinguish it from the policy underlying it.

72. However, the need for the policy to be consistent with the press statement assumes that a particular right of abode claimant was aware of the actual terms of the press statement - either because he had read it himself or because he had been told what it said or what its gist was. If he was not aware of the actual terms of the press statement, the terms of the press statement could not have created any legitimate expectation. In those circumstances, the only legitimate expectation which such a right of abode claimant could have had was that the Government would apply to his case whatever its current policy actually was. This mirrors the reasoning of Lord Hoffmann in R. v. Ministry of Defence ex p. Walker.³⁸

73. As for what the Government's policy actually was, the judgments in the Walker case in both the Court of Appeal³⁹ and the House of Lords contained authoritative guidance on the construction of statements of policy. The principles which can be gleaned from them are:

(i) The true meaning of a statement of policy is a matter for the court to decide.⁴⁰

(ii) Whether the public body or public servant who has to implement the policy has interpreted it correctly is also a matter for the court to decide.⁴¹

(iii) If the statement of policy has not been expressed as clearly or as fully as it might have been, the court will respect the interpretation of it by the body or person who has to implement it unless that interpretation is irrational.⁴²

Finally, since the creation of policy is for policy-makers and not the courts, it is no part of the court's function to debate the merits of a particular policy. The court's jurisdiction to strike down a policy is only engaged if the policy is so irrational or unreasonable that no policy-maker could sensibly have adopted it.⁴³

(ii) The persons covered by the policy. There is a measure of common ground as to who the policy announced in the press statement covers. First, it is common ground that the policy does not cover periods 4 or 5 claimants, i.e. right of abode claimants who arrived in Hong Kong after 29 January 1999. It covers only periods 1, 2 and 3 claimants, i.e. right of abode claimants who were already in Hong Kong on 1 July 1997 or who arrived in Hong Kong between 1 July 1997 and 29 January 1999. Secondly, it is common ground that to qualify for inclusion in the policy, a right of abode claimant did not have to have been in Hong Kong throughout the whole of the period covered by the policy, i.e. throughout the whole of the period between 1 July 1997 and 29 January 1999. Thirdly, it is common ground that the claim for the right of abode did not have to be made by the claimant himself. To qualify for inclusion in the policy, it was sufficient for the claim to have been made on behalf of the claimant by a parent or guardian or by some other person authorised by the claimant to make the claim on his behalf.

74. The area of dispute relates to three conditions which the Director of Immigration claims had to be satisfied if a right of abode claimant was to be covered by the policy announced in the press statement. First, the claim for the right of abode must have been made to the Director of Immigration or to the Immigration Department. It is insufficient for the claim for the right of abode to have been made to some other official, for example the Chief Executive or the Director of Legal Aid, or to some other department, such as the Government Secretariat or the Legal Aid Department. Secondly, the Director of Immigration or the Immigration Department has to have had a record of the claim. Thirdly, the claim must have been made while the claimant was in Hong Kong. That applies even to those claimants who did not make their claims personally but whose claims were made by a parent or guardian or by some other person authorised by them to make such a claim on their behalf.

75. The evidence of the Secretary for Security is that the policy announced in the press statement was that (a) a claim for the right of abode in Hong Kong had to be made to the Director of Immigration or to the Immigration Department, and that (b) the Director of Immigration or the Immigration Department had to have a record of that claim. The evidence of the Assistant Director of Immigration who was the head of the Enforcement and Liaison Branch of the Immigration Department is that an additional feature of the policy was that the right of abode claimants had to have been physically in Hong Kong when the claim was made. Subject to one point, this evidence is not challenged. Since the unchallenged evidence, therefore, was that the Government's policy as to who should not be affected by the Interpretation was subject to these conditions, these conditions had to be complied with before a right of abode claimant could rely on the policy announced in the press statement in order to benefit from the judgments of the Court of Final Appeal in Ng Ka Ling and Chan Kam Nga.

76. The one reservation related to what the Secretary for Security said in a radio interview on 28 June 1999. She was reported⁴⁴ to have said that a claim for the right of abode which had been made to the Legal Aid Department would be regarded as sufficient. The Secretary for Security says that what she was referring to was

(a) those clients of the solicitors acting for the applicants in Ng Ka Ling who had been granted legal aid to bring right of abode claims which raised the issues in the Ng Ka Ling litigation, and

(b) those persons who had not been granted legal aid but who the Director of Legal Aid had regarded as having "meritorious cases" on the issues raised in the Ng Ka Ling litigation,

i.e. two of the categories of persons who the Director of Immigration had undertaken not to remove from Hong Kong pending the ultimate outcome of the Ng Ka Ling litigation, and who the Director of Immigration had been prepared to treat as if they had been parties to the Ng Ka Ling litigation. That evidence was not challenged. Indeed, no application was made to Stock J for leave to cross-examine the Secretary for Security on her affidavit in which that evidence appeared. It follows that her comments in the radio interview cannot be treated as widening the Government's policy beyond what she claims it to have been.

77. I do not think that these three conditions were inconsistent with the summary of the policy in the press statement. Since the press statement did not spell out the details of the policy, it was open to the authorities to flesh out the policy in such a manner as they thought appropriate, so long as persons who could truly be said to have made a claim for the right of abode in Hong Kong were not prevented from coming within the policy by an unduly restrictive set of rules governing the application of the policy which derogated from the policy.

78. Thus, it was not a derogation from the policy for the authorities to require that the claim had to be made to the Director of Immigration or to the Immigration Department, because that was simply particularising the way in which right of abode claims had to be made for them to be treated as coming within the policy. Indeed, it was an entirely rational requirement because it was the Immigration Department which was responsible for handling, processing and verifying right of abode claims.

79. Similarly, it was not a derogation from the policy for the authorities to lay down a mechanism for determining whether a claim for the right of abode had indeed been made to the Director of Immigration or the Immigration Department. If inclusion within a policy depends upon the occurrence of a particular fact (in this case, the making of a claim for the right of abode to the Director of Immigration or the Immigration Department), there has to be some system in place for verifying that the particular fact occurred. As Stock J said:

"How was one to check whether a claim had or had not been made? Absent a record and assuming the authorities were bound to accept anyone who had visited the Immigration Department, or indeed said that he or she had visited the Department, and asserted, in whatever context, and in whatever way, the right of abode, what numbers then qualified for verification processing in Hong Kong? The answer is that no one would have much of an idea, and the notion that the authorities would embrace such a policy has only to be stated for its weakness to be revealed."

The fact of the matter is that if verification was needed that a right of abode claim had been made, it was an entirely rational requirement for that verification to consist of a record of the claim in the records of the Immigration Department. After all, the press statement had referred to the estimate of about 3,700 persons who might benefit from the policy. That would have suggested to anyone reading the press statement that records were kept of right of abode claims, and the fact that such records were kept by the Director of Immigration was confirmed by the Secretary for Security in her affidavit.

80. It is the third condition - that the right of abode claimants had to have been physically in Hong Kong when the claim was made - which I have found more difficult. When the Government had to decide who should be treated as unaffected by the Interpretation, it could have extended the benefit of the judgments of the Court of Final Appeal in Ng Ka Ling and Chan Kam Nga to all persons who had made a right of abode claim prior to 29 January 1999. However, it adopted a more restrictive approach. Not only did there have to be a claim for the right of abode made prior to 29 January 1999, but also the claimant had to have come to Hong Kong by then. Thus, if the making of a claim for the right of abode prior to 29 January 1999 would qualify for inclusion in the policy only if the claimant had been in Hong Kong at some time between 1 July 1997 and 29 January 1999, the making of the claims was being linked to presence in Hong Kong. Understandably, if the claimant's presence in Hong Kong between 1 July 1997 and 29 January 1999 had had nothing to do with the making of a claim for the right of abode, the link between the making of the claim and presence in Hong Kong would have been an artificial, not a real, one. Thus, the presence in Hong Kong had to be for the purpose of making a right of abode claim. However, the determination of that question would involve investigating in each individual case what the reason for the claimant's presence in Hong Kong had been. That would not always be verifiable by objective criteria. The problem could be resolved by treating presence in Hong Kong on the date when the claim was made as conclusive on the issue whether presence in Hong Kong was for the purpose of making a claim.

81. In the course of his submissions, Mr Ma made the point that it would be absurd if right of abode claimants who had happened to come to Hong Kong for a short holiday between 1 July 1997 and 29 January 1999 should come within the policy. Of course, tourism is not the only reason why Mainland residents might come to Hong Kong. Many Mainland residents come to Hong Kong to see relatives - for example, a father who is working in Hong Kong and is remitting his earnings back to the Mainland to support his family. But the fact remains that the Government's policy as to which claimants (who were neither parties to the litigation or treated as parties to the litigation) should be immune from the effect of the Interpretation was those claimants who came to Hong Kong in order to claim the right of abode, and a convenient way of establishing that intention was to make presence in Hong Kong on the date of the claim conclusive on that issue.

82. I acknowledge that this would have the effect of penalising persons who complied with the advice which they got from immigration officers who they approached in Hong Kong inquiring about how to apply for the right of abode. As we shall see, they were told to return to the Mainland to make their applications there - because the way to apply for the right of abode in Hong Kong was to apply for a one-way exit permit to the Mainland authorities, such an application being treated as an application to the Director of Immigration for a certificate of entitlement. But the fact that compliance with this advice resulted in right of abode claimants being outside the policy which was subsequently announced was a by-product of the need, which I cannot describe as irrational or unreasonable, for having a convenient and objective way of establishing that the claimants' previous presence in Hong Kong had been for the purpose of claiming the right of abode.

83. In the final analysis, I do not regard the justification which I have identified for the requirement of presence in Hong Kong on the date the claim was made as so irrational as to warrant the invocation of the courts' supervisory jurisdiction to strike the requirement down. Nor do I regard the requirement as derogating from the summary of the policy in the press statement. It was making express that which the summary of the policy had left implied. The summary of the policy implied a link between the making of the claim and presence in Hong Kong (if only because it made presence in Hong Kong at some time between 1 July 1997 and 29 January 1999 a requirement), but it did not spell out how effect would be given to that link in practice. What the policy did was to spell out the effect of that link in express terms.

84. The condition requiring presence in Hong Kong on the date the claim was made applies even to persons who did not make the claim themselves but whose claims were made by a parent, guardian or some other person. That is said to be an irrational feature of the policy.⁴⁵ I do not agree. If it was legitimate to link presence in Hong Kong with the making of a claim for the right of abode, that link would have been neutralised if the claim could have been made on behalf of a person who was not in Hong Kong at the time. It may be that the claimant's presence in Hong Kong at some other time may have been for the purpose of claiming the right of abode, but if he did not make such a claim then, his assertion that he had nevertheless been in Hong Kong for that purpose was unlikely to be verifiable by objective criteria. That problem was resolved if even persons on whose behalf a claim was made by someone else had to have been in Hong Kong on the date when the claim was made on their behalf. I rather doubt whether this line of reasoning could apply to claimants who were too young to make decisions for themselves or to come to Hong Kong on their own. It may be that in their case presence in Hong Kong on the date the claim was made should have been required only for the person making the claim on behalf of the claimant. But since that does not arise on the cases of any of the representative applicants or Li Shuk Fan, and since this point is one on which I do not believe we were addressed, I do not propose to decide this question conclusively.

(iii) Inconsistencies. It is important to appreciate that in one respect the policy announced in the press statement did not contain anything new. Since 29 January 1999, the Director of Immigration had been considering right of abode claims in accordance with the judgments of the Court of Final Appeal in Ng Ka Ling and Chan Kam Nga. The claims which were considered were right of abode claims which had been lodged with the Immigration Department, being claims of which the Immigration Department had a record. It was this practice which was the precursor of the policy which was announced in the press statement of 26 June 1999.

85. However, the demarcation line between those who were treated as having lodged right of abode claims with the Immigration Department being claims of which the Immigration Department had a record and those who were treated as not having lodged such claims had been drawn more benevolently to right of abode claimants prior to 26 June 1999. For example, persons who prior to 29 January 1999 had simply applied for an extension of stay in Hong Kong on the ground that they wanted to await the outcome of the Ng Ka Ling and Chan Kam Nga litigation, rather than claiming the right of abode in Hong Kong, were accepted prior to 26 June 1999 as having made a right of abode claim. That was so even though in some cases the application for an extension of stay was made on a form which stated that it "shall not be construed as constituting an application for permission to remain in Hong Kong". That is to be contrasted with persons who prior to 29 January 1999 had similarly applied for an extension of stay in Hong Kong to await the outcome of the test cases, rather than claiming the right of abode in Hong Kong, but who were after 26 June 1999 not accepted as having made a right of abode claim. There are other examples of persons who were treated before 26 June 1999 as having lodged right of abode claims with the Immigration Department and persons whose circumstances were similar but who were treated after 26 June 1999 as not having lodged right of abode claims with the Immigration Department.

86. I do not think that this difference in treatment alters the legal position. The change in the legal landscape which had occurred as a result of the Interpretation was very significant. Policies are not cast in stone. They can be varied from time to time to reflect changing circumstances. And even if policies do not change, the way in which they are to be implemented can. Provided that there was nothing irrational in the new way in which the policy was being implemented, or inconsistent with such expectations as the actual terms of the press statement may have generated, any differences in the treatment of right of abode claimants in the wake of the Interpretation did not create rights where rights did not otherwise exist.

(iv) Inquiries and other claims. The evidence is that some of the right of abode claimants, instead of claiming the right of abode in Hong Kong, made applications of other kinds. I have dealt with one example of that - the claimants who applied for an extension of stay in Hong Kong. Technically speaking, an application for an extension of stay in Hong Kong is not a claim for the right of abode in Hong Kong. It is only an application for the time limit on the applicant's permission to remain in Hong Kong to be extended. The evidence points to two other examples: those who, instead of claiming the right of abode in Hong Kong to the Director of Immigration, applied for legal aid to the Director of Legal Aid or applied for one-way exit permits to the Mainland authorities. Such claimants have not been treated as coming within the policy.

87. I do not think that the Director of Immigration can be said to have erred in law in treating applications for legal aid as not coming within the policy. A claim for a right of abode is just that. It is a claim to be treated as having a right of abode in Hong Kong. Technically speaking, an application for legal aid when no claim for the right of abode has been made to the Director of Immigration is not a claim for the right of abode. It is an application for public funds to finance a claim for a declaration that the claimant is entitled to the right of abode in Hong Kong. In any event, a claimant (other than a Group B claimant) who had applied for legal aid and who was regarded as having a "meritorious" case would have come within the undertaking given by the Director of Immigration to the Director of Legal Aid to which we have already referred. Thus, such a claimant would for that reason have been treated as if he had been a party to the litigation.

88. However, different considerations apply to applications for a one-way exit permit. I acknowledge that, technically speaking, such an application is not a claim for the right of abode either. It is an application which had to be made under the law as it was up to 29 January 1999 if the claimant was to be able to comply with the requirement that the certificate of entitlement was to be affixed to a valid travel document. However, under the system in place prior to 29 January 1999, an application to the Mainland authorities for a one-way exit permit was regarded as an application for a certificate of entitlement.⁴⁶ Not to treat an application for a one-way exit permit as a claim for the right of abode would be inconsistent with the only way of claiming the right of abode asserted by the immigration authorities prior to 29 January 1999. Even so, an application for a one-way exit permit would almost certainly not come within the third condition: a person who applied to the Mainland authorities for a one-way exit permit is very unlikely to have been in Hong Kong on the date his application was made.

89. I should add that the evidence was that some of the claimants made inquiries at the Immigration Office of the Immigration Department. Technically speaking, an inquiry as to whether someone has a right of abode in Hong Kong or as to how to make a claim for the right of abode is just that: an inquiry as to one's rights and an inquiry as to procedure, not a claim for right of abode. However, they say that in the course of making inquiries they made it clear that they were claiming the right of abode in Hong Kong, either for themselves or for members of their family. Such claims were not treated as claims coming within the policy.

90. In my judgment, the Director of Immigration cannot be said to have erred in law in that respect. The evidence is that, even if the person making the inquiry was claiming the right of abode in Hong Kong for himself or a relative, the officers manning the inquiry counters were instructed to give standard responses. Those responses merely told persons making the inquiries how a claim for the right of abode was to be made and the need for that application to be made on the Mainland. But the critical point is that no records are kept of those inquiries. The person making the inquiry is not asked for his name or for the name of the person on whose behalf the inquiry is being made. Nor is a record kept of the nature of the inquiry or of any information which may be given by the person making the inquiry. Thus, even if the inquiry could be said to have amounted to a claim for the right of abode in Hong Kong, it was not a claim of which the Immigration Department had a record. Admittedly, statistics are compiled setting out the number of inquiries handled by the Immigration Department, and for that purpose there has to be a record kept of the fact of an inquiry, but no record of the kind contemplated by the policy, i.e. a record which would verify that a right of abode claim had been made by or on behalf of a particular claimant, is kept.

91. I have not overlooked the powerful point that right of abode claimants should not be deprived from benefiting from the judgments in Ng Ka Ling and Chan Kam Nga simply because the wrong form of words was used when the claim intended to be a right of abode claim was being made, or the wrong department was visited. I recognise the sense of grievance which must be felt by claimants who are told that they did not come within the policy, because they were treated as having made inquiries rather than claims, or because their claims were not treated as claims for the right of abode, or because their claims for the right of abode were not addressed to the Director of Immigration or the Immigration Department. But as I have said, we can only strike down particular features of the policy if they are so irrational or unreasonable that no policy-maker could sensibly have adopted them, and I am unable to characterise any of the features of the policy as either irrational or unreasonable to that extent. If the application of the policy involves somewhat technical distinctions being drawn between an inquiry and a claim, or between a claim for the right of abode and some other form of application, that is because that is what the policy, properly interpreted, requires.

92. In this connection, it should not be forgotten that, in my view, the only persons whose rights were unaffected by the Interpretation were the actual parties to the litigation which culminated in the judgments in Ng Ka Ling and Chan Kam Nga. To the extent that the policy expanded the number of persons whose rights would be treated as unaffected by the Interpretation, the policy was a concession which the Government had not been legally obliged to make. I leave it to others to decide whether, in those circumstances, those persons whose cases fall on the wrong side of the policy can really be said to have been treated unfairly.

93. Finally, the point has been made that there was only a small window of opportunity for Group B claimants to make a claim for right of abode in Hong Kong. Before the enactment of the No. 2 Ordinance on 1 July 1997 and the judgment of the Court of Final Appeal in Chan Kam Nga on 29 January 1999, the only period when they could legitimately have been proceeding on the basis that the impugned provision in the No. 2 Ordinance was incompatible with the Basic Law was between 26 January 1998 (when judgment was handed down in the Court of First Instance in Chan Kam Nga) and 20 May 1998 (when the Court of Appeal allowed the Director of Immigration's appeal). That may be so, but the fact remains that claims for the right of abode by Group B claimants could have been made during that period.

The cases of the individual applicants

94. What remains is to consider the cases of the individual applicants to determine which of them, if any, come within the policy which the Government adopted for determining who, in addition to the parties to the litigation in Ng Ka Ling and Chan Kam Nga and to those who were treated as parties to the litigation, should remain unaffected by the Interpretation. I shall refer to each representative applicant by reference to their number in the notice of application for leave to apply for judicial review, and I shall abbreviate the term "representative applicant" to RA.

(1) Ng Siu Tung (RA1).⁴⁷ By the hearing before Stock J, Ng Siu Tung had been accepted by the Director of Immigration as coming within the policy announced in the press statement. Since he is treating her as unaffected by the Interpretation, the claim for relief was not pursued on her behalf.

(2) Ng Kam Chi (RA2).⁴⁸ There are a number of factual disputes in her case. Although she visited the Immigration Department on 22 July 1997, there is a dispute as to whether she was claiming the right of abode or merely applying for an extension of her stay in Hong Kong. And on the assumption that she was claiming the right of abode, there is a dispute as to whether a record was kept of that claim. She maintains that she completed a form giving various personal particulars. No such form appears in the Immigration Department's records, though in the records there is a form completed by her husband (who accompanied her to the Immigration Department on 22 July 1997) giving some of his personal particulars. It was agreed towards the end of the hearing before Stock J that Ng Kam Chi was not suited to be a representative applicant. He ordered that she no longer be treated as one, and there is no appeal from that order.

(3) Lo Po Lai (RA3).⁴⁹ Lo Po Lai came to Hong Kong on 13 April 1997 on a two-way exit permit which was valid for nine days. She has remained in Hong Kong ever since. It is common ground that she made a claim for the right of abode to the Director of Immigration after 29 January 1999, and that there is a record of such a claim⁵⁰, but the critical question is whether such a claim for the right of abode was made between 1 July 1997 and 29 January 1999. Although she initially appeared to accept that no such claim for the right of abode had been made prior to 29 January 1999, she claims that applications for the right of abode in Hong Kong were made on her behalf on three occasions between 1 July 1997 and 29 January 1999:

(i) She claims that on 4 July 1997 her father went to the Immigration Department and asked an immigration officer about "application procedures". He was referring to an application for "walkabout permits (children of permanent residents)". He was informed that the applicant had to come to the Department in person, and bring all the relevant documents to prove the parent and child relationship. The Director of Immigration is not prepared to accept this assertion on her part, but on the assumption that her assertion is correct, the Director of Immigration would have had no alternative but to treat this conversation as not coming within the policy. It was not a claim for anything: it was simply a request for information as to how to make a claim. Nor was there any record of any claim. And it is possible that even if it was a claim, it was not a claim for the right of abode. It sounds to me as if it might have been a claim for an extension of stay in Hong Kong.

(ii) She claims that some time in May 1988, after she had heard that the Court of Appeal had held that claimants who had arrived in Hong Kong before 1 July 1997 could stay and live in Hong Kong, her father went to the Legal Aid Department "to inquire about procedures and progress of the litigation". He was given the same answer as the Immigration Department had given him the previous July. Again, the Director of Immigration is not prepared to accept this assertion on her part, but on the assumption that her assertion is correct, the Director of Immigration would have had no alternative but to treat this conversation as not coming within the policy. It was not a claim for the right of abode: it was simply a request for information as to how to make a claim. It was not a claim to the Immigration Department: it was a claim to the Legal Aid Department. And there was no record of this claim.

(iii) She claims that on 7 January 1999 her father took various documents to the Immigration Department. He spoke to officers in Room 1307 at Immigration Tower. He gave them personal particulars of himself and his daughter, and informed them that she wished to apply for the right of abode. He was told to go to the Chinese Visitors' Office ("the CVO") in Yau Ma Tei if she wanted an extension of stay in Hong Kong. When he went there, he was told that since his daughter had overstayed in Hong Kong, she had to surrender herself to the Immigration Department. Again, the Director of Immigration is not prepared to accept this assertion on her part, but on the assumption that her assertion is correct, the Director of Immigration would have had no alternative but to treat these conversations as not coming within the policy. Room 1307 at Immigration Tower is part of the General Investigation Section of the Immigration Department. The evidence is that whenever an inquiry about, or claim for, the right of abode is made by someone who comes to the Section, the standard response is to inform the person making the inquiry or claim to go to the Information Office to further their inquiries and to obtain the relevant application forms. For that reason, no record is made of any such claims or inquiries, and no such record of any claim or inquiry made on behalf of Ms Lo exists.

Slightly different considerations apply to the visit to the CVO, which handles applications for extensions of stay. The evidence is that if an inquiry or application is made to the CVO in relation to matters not handled by the CVO (for example, right of abode claims), the person making the inquiry or application is advised to go to the Immigration Office at Immigration Tower. Although a note would be taken of the name of the person coming to the counter "for statistical and record purposes", no note would be made of what was said if the inquiry or application was made in relation to matters not handled by the CVO. Thus, if Ms Lo's father was applying for an extension of stay, he was not making a claim for the right of abode on her behalf. On the other hand, if he was making a claim for the right of abode, there was no record of such a claim.⁵¹

(4) Chu Chun Man (RA4).⁵² Chu Chun Man came to Hong Kong on 15 October 1994 on a two-way exit permit, and was permitted to remain in Hong Kong until 4 November 1994. She has remained in Hong Kong ever since. She does not allege that a claim for the right of abode was ever made by her or on her behalf until 12 July 1999 when she made a claim for the right of abode to the Immigration Department. Although the Immigration Department has a record of that claim, the claim was not made between 1 July 1997 and 29 July 1999, and her case does not come within the policy.

(5) Tam Siu Ming (RA5).⁵³ Tam Siu Ming is now 34. He came to Hong Kong on 10 July 1997 on a two-way exit permit, and left Hong Kong on 17 July 1997 within the permitted limit of stay. A claim for the right of abode is said to have been made by him or on his behalf on four occasions between 1 July 1997 and 29 January 1999:

(i) He claims that he came to Hong Kong to apply for the right of abode. On 12 July 1997, he went to the "Immigration Tower's inquiry counter". The Director of Immigration has assumed that Mr Tam was referring to the Information Office, and it has not been asserted on Mr Tam's behalf that that assumption was incorrect. At the counter, he "made [his] application". He does not expressly say that the application was for the right of abode, but we are prepared to assume that it was. He was told that he had to return to the Mainland to apply, and that the Department did not accept that type of application. The Director of Immigration did not err in concluding that this application did not bring Mr Tam within the policy. There was no record of this application - not surprisingly, since it was made at the Information Office.

(ii) There are two letters in which a claim for the right of abode was indeed made on his behalf by his mother. The letters were dated 25 July 1997 and 1 October 1997. Since Mr Tam was not in Hong Kong at the time, and since he was old enough to make decisions for himself and to come to Hong Kong on his own, his absence from Hong Kong on those dates prevented him from coming within the policy. Moreover, although the letter of 25 July 1997 was addressed to the Director of Immigration, the letter of 1 October 1997 was addressed to the Chief Executive. The claim in that letter could not have come within the policy for that reason.

(iii) Mr Tam alleged that he made a further application on 27 December 1997. That application has been described in various places in the evidence or submissions as an application for a certificate of entitlement, for a one-way exit permit, or for the right of abode, and as an application made to the Immigration Department or to the Mainland authorities. But whatever the application was, since it was an application made when Mr Tam was not in Hong Kong, the Director of Immigration would have had no alternative but to treat it as not coming within the policy for that reason.

(6) Lee Wang Lung (RA6).⁵⁴ Lee Wang Lung came to Hong Kong on 24 July 1997 on a two-way exit permit, and left Hong Kong on 29 August 1997 within the permitted limit of stay. A claim for right of abode is said to have been made on his behalf on 31 July 1997 (when he was only 16). His father claims that he went with members of his family including his son to the second floor of the Immigration Department. That would have been the Immigration Office. He told the officer to whom he spoke that he was applying for certificates of entitlement for his children. He was told that he could not make that application there, and that it had to be made on the Mainland. The Director of Immigration is not prepared to accept this assertion on his part, but on the assumption that his assertion is correct, the Director of Immigration would have had no alternative but to treat this conversation as not coming within the policy, since there was no record of this claim - again, not surprisingly, since it was made at the Information Office. The family then went to the Legal Aid Department where an application for legal aid was made. However, a mere application for legal aid is not a claim for the right of abode within the policy.

(7) Lau Kong Yung (RA7).⁵⁵ Lau Kong Yung is now aged 9. He was the lead applicant in Lau Kong Yung. He came to Hong Kong on 10 September 1997 on a two-way exit permit, and was permitted to remain in Hong Kong until 1 December 1997. He has remained in Hong Kong ever since. By the hearing before Stock J, he had been granted a one-way exit permit and therefore a certificate of entitlement. His right of abode in Hong Kong had therefore been established. However, Stock J proceeded to determine the rejection of his claim to have come within the policy, as it was said that such a determination would assist in the case of claimants who had not been granted a one-way exit permit. A claim for the right of abode is said to have been made on his behalf on two occasions in December 1998:

(i) His father claims that he and members of his family went to the Immigration Department where they handed over various documents, including Lau Kong Yung's documents, and asked for his right of abode to be processed. The Director of Immigration does not accept that this happened, but since there is no record of any claim for the right of abode being made on that day (or even any record of such a visit), any claim for the right of abode which may have been made did not come within the policy.

(ii) Later in December, the father claims that he went to the Immigration Department, again with his son's documents, and asked for his son's claim for the right of abode to be processed. That is disputed by the Director of Immigration, who claims that the reason for the father's visit was to obtain an application form for the particulars on his identity card to be amended. When the father completed that application form, he added the words "Enquired about the application for certificate of entitlement of Lau Kong Yung". On these facts, the Director of Immigration did not err in refusing to treat Lau Kong Yung as coming within the policy. If the father had claimed the right of abode on his son's behalf, there was no record of such a claim. If all that the father had done was to inquire about how to claim the right of abode for his son, that did not amount to a claim for the right of abode.

95. The most compelling feature of Lau Kong Yung's case that he comes within the policy arises from a series of letters written by the father to the Director of Immigration or the Immigration Department in January 1999, but before 29 January 1999. On Stock J's reading of the evidence filed on behalf of the Director of Immigration, the only reason why these letters were regarded as not bringing Lau Kong Yung within the policy was because they were treated merely as inquiries about the progress of the processing of a claim for a certificate of entitlement. Stock J rejected this view of the letters. I agree. The father was not merely complaining of the lack of progress of an application for a certificate of entitlement which had been made to the Mainland authorities some time previously. He was renewing his application to the Director of Immigration. In the first of the letters, the father wrote:

"I would be very grateful if you could approve my son's application for the Certificate of Entitlement."

It is difficult to see why this should not have been regarded as a claim for the right of abode.

96. However, unlike Stock J, I read the evidence filed on behalf of the Director of Immigration as setting out another reason why the Director of Immigration did not regard these letters as bringing Lau Kong Yung within the policy - namely, that Lau Kong Yung had not been in Hong Kong when the letters were written. In fact he was, although I accept that the language of the letters may well have conveyed the impression that he was not. For example, in one of the letters the father wrote:

"If my son has to come to Hong Kong, can he apply for the Certificate of Entitlement?"

97. The question then arises whether presence in Hong Kong at the time of the claim - which is required if the person on whose behalf the claim is made is to come within the policy - must be presence which has not been concealed from the authorities. Stock J expressed the very provisional view on this topic by doubting whether "Concession claims of that kind were contemplated as constituted in the face of a representation of that kind, if made and if untrue". However, although the question was raised before us, it was not the subject of detailed submissions, nor of any evidence from those who had been responsible for formulating the policy as to whether the policy was intended to cover persons whose presence in Hong Kong was concealed. Moreover, it looks as if the applicants' solicitors had not seen the point coming. Thus, no attempt had been made to file evidence, if it was available, to show that Lau Kong Yung's presence in Hong Kong had not been concealed from the Immigration Department.

98. In all the circumstances, I have concluded that the course which Stock J took was entirely correct. He declined to make a declaration as to whether Lau Kong Yung came within the policy, not only because his case turned so much on its own facts, but also because the question of concealment had not been fully argued before him. He simply recorded his finding that it was not open to the Director of Immigration to take the view that the letters written in January 1999 did not constitute a claim for the right of abode.

(8) Lau Pong (RA8).⁵⁶ Lau Pong is now aged 17. He came to Hong Kong on 14 July 1998 on a two-way exit permit, and left Hong Kong on 2 August 1998 within the permitted limit of stay. He claims that on 20 July 1998 he and his mother went to the second floor of the Immigration Department. They asked the immigration officer there for help in applying for the right of abode for him, and showed the officer copies of his father's identity card and his own two-way exit permit. He was told that he had to return to the Mainland to apply for a one-way exit permit. The Director of Immigration is not prepared to accept this assertion on his part, but on the assumption that the assertion is correct, the Director of Immigration would have had no alternative but to treat the conversation as not coming within the policy as there was no record of the claim. Exactly the same applies to visits made to the Immigration Department on 25 July 1998 and 27 July 1998.

99. It is accepted that on 27 July 1998 Lau Pong applied for legal aid "in connection with" a claim for the right of abode in Hong Kong. It is also accepted that the Director of Immigration was informed of that application by the Legal Aid Department, who requested the Director of Immigration not to remove Lau Pong from Hong Kong pending the outcome of his application for legal aid. However, for the reasons I have given, the Director of Immigration did not err in law in concluding that this was not a claim for the right of abode made to the Director of Immigration within the policy: it was merely a notification to the Director of Immigration that legal aid had been applied for. It is not suggested that Lau Pong came within the undertaking to which footnote 28 above relates.

(9) Lin Li Pin Penny (RA9).⁵⁷ An important question of fact arose in her case. She claims that on 5 November 1998 while she was in Hong Kong, she wrote to the Director of Immigration claiming the right of abode in Hong Kong. She kept a copy of the letter, and there is no doubt that it amounts to such a claim. However, the Director of Immigration does not accept that she sent the letter. It was agreed towards the end of the hearing before Stock J that it was best not to treat her as a representative applicant any longer. He ordered that she no longer be treated as one, and there is no appeal from that order.

(10) Lau Kwai Fong (RA10).⁵⁸ Lau Kwai Fong came to Hong Kong on a two-way exit permit on 22 September 1998, and was permitted to remain in Hong Kong until 18 October 1998. She has remained in Hong Kong ever since. It is not suggested that she formally made a claim for the right of abode to the Director of Immigration prior to 29 January 1999, but it is suggested that her arrival in Hong Kong in order to await the outcome of the judgments of the Court of Final Appeal in Ng Ka Ling and Chan Kam Nga, coupled with her intention to claim the right of abode in Hong Kong if those judgments proved favourable to her, amounted to an assertion of her right of abode. I doubt if on those facts it could be said that she was asserting her right of abode, but even if it could be, I do not see how they amount to the making of a claim for the right of abode to the Director of Immigration or a claim of which the Immigration Department had a record.

(11) Chan Kei Yui (RA11).⁵⁹ Chan Kei Yui came to Hong Kong twice on two-way exit permits in November and December 1997. He came again to Hong Kong on another two-way exit permit on 21 November 1998, and was permitted to remain in Hong Kong until 14 February 1999. He has remained in Hong Kong ever since. The only occasion on which he is said to have made a claim for the right of abode while in Hong Kong prior to 29 January 1999 was on 11 December 1998 when he went with his father to the Legal Aid Department to apply for "legal assistance in the right of abode litigation case". He was given the standard letter of the kind which the Legal Aid Department had begun to issue from 7 December 1998. We have already referred to the effect of that letter in connection with the applicants' arguments on legitimate expectation. All that needs to be added is that, for the reasons I have given, the Director of Immigration did not err in concluding that the making of an application for legal aid in order to pursue a claim for the right of abode did not amount to the making of a claim for the right of abode to the Director of Immigration.

(12) Wong Yuk Heung (RA12)⁶⁰, (13) Yuan Zhi Wei (RA13)⁶¹, (14) Sze Wing Lam (RA14)⁶², (15) Yip Yam Wa (RA15)⁶³, (16) Kwong Kin Ting (RA16)⁶⁴, (17) Wong Hon Lun (RA17)⁶⁵, (18) Tang Kim Ching (RA18)⁶⁶ and (19) Hung Kam Chuen (RA19).⁶⁷ All these representative applicants arrived in Hong Kong after 29 January 1999. It is accordingly conceded that none of them came within the policy announced in the press statement.

(20) Chan Chung Sau (RA1)⁶⁸, (21) Chau Yin Ping (RA2)⁶⁹, (22) Chung Chi Kwong (RA3)⁷⁰, (23) Lam Chi Lok (RA4)⁷¹, (24) Sin Hoi Chu (RA5)⁷², (25) Sin Siu Yin (RA 6)⁷³ and (26) Yau Po Chun (RA7).⁷⁴ These are the seven representative applicants in the case of Sin Hoi Chu (HCAL 70/2000). It is conceded that two of them did not make a claim for the right of abode between 1 July 1997 and 29 January 1999.⁷⁵ As for the others, in the course of the hearing before Stock J, it was conceded by Ms Li that if the Director of Immigration had to have a record of a claimant's claim for the right of abode for that claimant to be able to be treated as coming within the policy announced in the press statement, none of the representative applicants came within the policy because no such record existed in their cases. In those circumstances, I trust that I will be forgiven for not considering their cases in any further detail.

(27) Li Shuk Fan. Li Shuk Fan is now aged 20. She came to Hong Kong on a two-way exit permit on 19 February 1998, and was permitted to remain (after applying for an extension of her stay in Hong Kong) until 10 March 1998. She has remained in Hong Kong ever since. By the time of the hearing before Stock J, the only claim for the right of abode which was said to bring Ms Li within the policy announced in the press statement was a claim made in a letter from Ms Li's father to the Immigration Department dated 4 December 1998. Ms Li's father said that a copy of this letter had been kept, and that copy was exhibited to an affirmation made by him.

100. At the time when the Director of Immigration considered whether Ms Li had made a claim for the right of abode within the policy announced in the press statement, he was not aware of the letter of 4 December. There was a record at the Immigration Department's Investigation Central Administration Section that a letter from Ms Li's father had been received on 7 December 1998, but the letter itself was not on file. The Director of Immigration was entitled to be sceptical as to whether the copy of the letter produced by Ms Li's father was a copy of the letter which had been sent to the Immigration Department, because

(a) Ms Li had originally said that a copy of the letter had not been kept, and

(b) Ms Li's father had said that the letter had merely been misplaced (presumably he was referring to the copy of the letter, because on his version of events the original had been sent to the Immigration Department).

However, since it was not suggested that any other letter had been written by Ms Li's father to the Department, Stock J found that the copy letter produced by Ms Li was a copy of the letter received by the Department on 7 December 1998. There is no respondent's notice in relation to that finding, and the Director of Immigration's failure to take the letter into account when he decided that Ms Li did not come within the policy announced in the press statement meant that the Director of Immigration had failed to take into account a material fact in her case.

101. If the letter could properly be regarded as containing a claim for the right of abode on Ms Li's behalf, the letter constituted a record of such a claim. But could the letter be regarded as containing a claim for the right of abode? The letter referred to the fact that Ms Li's parents had settled in Hong Kong with Ms Li's younger brother, and that numerous applications had been made by Mr Li on behalf of his three other children on the Mainland for one-way exit permits to enable them to come to Hong Kong to live with him and his wife. He said that these applications had been refused because these three children had all been born before either he or his wife had become Hong Kong permanent residents. He referred at length to the schizophrenia which Ms Li had been suffering from, and the hospital treatment which she had been receiving since arriving in Hong Kong. He acknowledged that she had broken the law by not returning to the Mainland when her permission to stay had expired. The letter ended, according to one translation of it, as follows:

"In view of the above circumstances, in order to save my daughter, I hereby can only apply to the Immigration Department for assistance. I hope the Immigration Department will deal with my daughter's case with discretion in the spirit of humanity. Perhaps, could right of abode be granted? Or perhaps, is there any other way by which my daughter can apply on the Mainland for a one-way permit to come to Hong Kong to live with her parents who give her confidence and who can care for and guide her? Only this would help ameliorate her mental illness. Otherwise, if she is to return to the Mainland, while her parents work in Hong Kong and cannot take care of her, her hope will again be shattered. Her illness will be further affected. It is sincerely hoped that the Immigration Department will make allowances for this exceptional case and handle it with discretion and leniency."

The translation of the italicised words was challenged by the Director of Immigration, and the same translator subsequently said that the best translation which she could give was: "Perhaps could she be given/granted [residence] and stay/remain."

102. Since the Director of Immigration did not address the issue as to whether the letter could be regarded as containing a claim for the right of abode, the order which one might have expected Stock J to make was an order quashing the removal order and requiring the Director of Immigration to consider whether the letter did indeed contain a claim for the right of abode. Stock J was persuaded not to take that course. His thinking on the topic comprised two important strands:

(i) He thought that the Director of Immigration had "made perfectly clear the view he takes of it", i.e. that the letter did not contain a claim for the right of abode. Thus, "[s]ending it back for reconsideration would be largely motivated by a hope that in the sad circumstances of this case, the Director would exercise his discretion in favour of this applicant on humanitarian grounds". That, said Stock J, would not be "an acceptable approach".

(ii) He thought that the Director of Immigration's view that the letter did not contain a claim for the right of abode "seems correct. The applicant's father was writing this letter from the stance that his daughter was not in fact entitled to the right of abode, apparently, because she was a 'born before' child; and from the point of view that she was not lawfully in Hong Kong. It seems to me that what the father was saying in this letter was that, nonetheless, he hoped that the daughter would be allowed to remain."

In these circumstances, Stock J declined to quash the removal order, and obviously refused to declare that Ms Li came within the policy announced in the press statement. In the event, he dismissed her application for judicial review, but expressed the strong hope that the Director of Immigration would re-consider the issue of her removal from Hong Kong on the special compassionate grounds which Stock J thought might have existed.

103. As for (i), the point was taken before us that there was no certainty that, if the Director of Immigration was asked to consider that which he had not considered up to then, i.e. whether the letter contained a claim for the right of abode, the Director of Immigration would conclude that it did not contain such a claim. We were reminded of the warnings given by the courts about the danger of assuming what the decision would have been if the decision-maker had applied his mind to the issue in question.⁷⁶ However, this was a case in which, after the copy of the letter had been brought to his attention, the Director of Immigration had considered it, and had concluded that it did not contain a claim for the right of abode. There was no evidence to that effect, but the submissions of Mr Joseph Fok SC (who addressed Stock J on the case of Ms Li) were predicated on the assumption that the Director of Immigration had come to that conclusion. Certainly, that was what Stock J thought, because otherwise he could not have said that the Director of Immigration had "made perfectly clear the view he takes of it".

104. As for (ii), I do not think that the Director of Immigration erred in law in concluding that the letter did not contain a claim for the right of abode. Ms Li's father was accepting that she could not have been granted a one-way exit permit since she had been born before either he or his wife had become Hong Kong permanent residents. He was therefore accepting that she had no right to come to Hong Kong to live. He was therefore asking for an indulgence in view of her sad circumstances. It is ironic that had he used a different form of words (albeit words which would have been inappropriate in view of his appreciation that his daughter was not entitled to claim the right of abode in Hong Kong), the letter would have contained a claim for the right of abode. As it was, on its proper construction, it can, with regret, only be construed as an application for an extension of Ms Li's stay in Hong Kong.

105. Mr Fok has argued that Stock J's decision not to quash the removal order and not to require the Director of Immigration to re-consider whether the letter had contained a claim for the right of abode was made in the exercise of a discretion. He contended that once the letter had been construed by Stock J as not containing a claim for the right of abode, no question of the exercise of a discretion arose, and that the application for judicial review should have been dismissed irrespective of discretionary considerations. I disagree with the premise on which this argument is based. In my judgment, Stock J dismissed the application for judicial review because he concluded that Ms Li did not come within the policy announced in the press statement since the letter did not contain a claim for the right of abode. When he expressed the strong hope that the Director of Immigration would re-consider her case, he was not inviting the Director of Immigration to re-visit the question whether the letter contained a claim for the right of abode. He was merely inviting the Director of Immigration to consider whether Ms Li should be granted an extension of her stay in Hong Kong on compassionate grounds, while at the same time recognising that the Director of Immigration is not bound to take humanitarian grounds into account when deciding whether to make a removal order against someone who is not entitled to remain in Hong Kong.⁷⁷

106. In the course of the hearing before us, we were told that the Director of Immigration was re-considering Ms Li's case. Since the hearing, we have been informed that he has decided to confirm the removal order in her case. Presumably, he thought that Ms Li's two elder siblings who remained on the Mainland could look after her. Tempting though it may be, it is not for me to comment further on his view of the matter.

107. Conclusion. For these reasons, I have concluded that none of the representative applicants nor Li Shuk Fan made a claim for the right of abode in Hong Kong which came within the policy announced in the press statement.

The early arrivals

108. The interpretation of Art. 24(3) by the NPCSC dashed the hopes of Group B claimants of being granted the right of abode in Hong Kong. The right of abode claims of Group A claimants, though, were not affected by that interpretation. Their right of abode claims were affected by the interpretation of Art. 22(4) by the NPCSC, and by the consequential link between the certificate of entitlement and a one-way exit permit. However, there are two classes of Group A claimants who claim to be unaffected by the interpretation of Art. 22(4) by the NPCSC, even though they were not, nor entitled to be treated as, parties to the Ng Ka Ling litigation, and even though they did not come within the policy announced in the press statement. They are Group A claimants in periods 1 and 2, i.e. those who arrived in Hong Kong before 1 July 1997 and stayed in Hong Kong until 1 July 1997 and beyond, and those who arrived in Hong Kong between 1 July 1997 and 10 July 1997. Like Stock J, I propose to deal with period 2 arrivals first.

(i) Period 2 arrivals. It will be recalled that the No. 3 Ordinance (which introduced into the Immigration Ordinance the impugned provisions linking the certificate of entitlement to a valid travel document issued by the Mainland authorities) was enacted on 10 July 1997. However, it was deemed to have come into operation on 1 July 1997.⁷⁸ Its retrospectivity was one of the issues in the Ng Ka Ling litigation. The principal ground on which the legality of its retrospectivity was challenged was that it removed the right of abode in Hong Kong from claimants who had been unconditionally entitled to the right of abode in Hong Kong under Art. 24(3) since 1 July 1997.

109. That argument was rejected in Cheung Lai Wah in the Court of First Instance⁷⁹ and by a majority of the Court of Appeal⁸⁰ on the basis that it took no account of Art. 22(4). On their construction of Art. 22(4), the conditions imposed by the No. 3 Ordinance for establishing the right of abode in Hong Kong under Art. 24(3) were validated by Art. 22(4). The fact that legislative provisions which sought to implement those conditions were enacted later did not amount to an unconstitutional restriction on an unqualified constitutional right. That right had already been qualified by Art. 22(4).

110. However, once the Court of Final Appeal had construed Art. 22(4) as not applying to persons who had the right of abode in Hong Kong under Art. 24(3), this justification for the retrospectivity of the No. 3 Ordinance fell away. Indeed, that was conceded in the course of the hearing in the Court of Final Appeal by counsel for the Director of Immigration. Thus, the Court of Final Appeal held that the provision in the No. 3 Ordinance by which it was deemed to have come into operation on 1 July 1997 was "unconstitutional", in the sense that it removed from right of abode claimants the unqualified right of abode in Hong Kong to which they had been entitled between 1 July 1997 and 10 July 1997.⁸¹

111. The NPCSC's interpretation of Art. 22(4) undermined the basis on which the retrospectivity of the No. 3 Ordinance was said to be unconstitutional. The Court of Final Appeal recognised that in Lau Kong Yung. Thus, the Court of Final Appeal held that the retrospectivity of the No. 3 Ordinance could not be held to be unconstitutional on the ground that it removed from right of abode claimants the unqualified right of abode in Hong Kong to which they had been entitled between 1 July 1997 and 10 July 1997.⁸² But that was not quite the end of the matter, because the Court of Final Appeal had held in Ng Ka Ling the retrospective provision nevertheless to be unconstitutional on a separate ground, namely that it was incompatible with Art. 15(1) of the International Covenant on Civil and Political Rights⁸³, which prohibited convictions for criminal offences for acts which had not been criminalised when they had occurred.⁸⁴ In Lau Kong Yung, the Court of Final Appeal held that this ground for the ruling in Ng Ka Ling that the retrospective effect of the No. 3 Ordinance was unconstitutional was not affected by the Interpretation.⁸⁵

112. Since the No. 3 Ordinance had only been constitutional since 10 July 1997⁸⁶, the question arises as to the position of Group A claimants who arrived in Hong Kong on or after 1 July 1997 (when their right of abode in Hong Kong through parentage was conferred by the Basic Law) and prior to 10 July 1997 (when the statutory scheme for establishing their right of abode in Hong Kong through parentage was enacted). One of the representative applicants who arrived in Hong Kong between 1 July 1997 and 10 July 1997 is a Group A claimant.⁸⁷ The argument on behalf of such claimants is that since the No. 3 Ordinance did not apply to them when they arrived in Hong Kong, the law which applied to them was the Immigration Ordinance in its unamended form. That provided, in section 2A, that a permanent resident of Hong Kong enjoyed the right of abode in Hong Kong. Thus, if their claims to be permanent residents of Hong Kong were verified (i.e. if it was established to the satisfaction of the Director of Immigration that, at the time of their birth, at least one of their parents was a permanent resident of Hong Kong), their status as permanent residents of Hong Kong should be treated as established. Moreover, they could not be removed from Hong Kong, since section 2A prohibits the removal from Hong Kong of a permanent resident of Hong Kong.

113. I disagree with the premise on which this argument is based. The Immigration Ordinance in its unamended form was not the only source for laws relating to the exercise of the right of abode in Hong Kong. The Basic Law itself contained restrictions on the exercise of the right of abode in Hong Kong which permanent residents of Hong Kong enjoyed. That restriction was contained in Art. 22(4). Art. 22(4) was, of course, the subject of the Interpretation. As was said in Lau Kong Yung:

".... the effect of the Interpretation was that Art. 22(4) qualified [Art. 24(3)] and with that qualification, unless the requirement of Mainland approval in Art. 22(4) was satisfied, the person concerned could not enjoy the right of abode."⁸⁸

Thus, although a statutory scheme relating to the obtaining of such approval was not in place between 1 July 1997 and 10 July 1997, so that there was no statutory scheme which required persons claiming the right of abode in Hong Kong through parentage to have a one-way exit permit issued by the Mainland authorities, nevertheless Mainland approval for their settlement in Hong Kong was still required. Since that approval took the form of the issue of a one-way exit permit, a one-way exit permit was required even between 1 July 1997 and 10 July 1997 for someone who wished to exercise his right of abode in Hong Kong. Such a claimant did not need a certificate of entitlement, of course, let alone one which was attached to a one-way exit permit (because those requirements were introduced by the No. 3 Ordinance and the notice in the Gazette), but what he did need was a one-way exit permit. That was the view of Stock J, and I agree with him.

(ii) Period 1 arrivals. The argument on behalf of the period 1 arrivals is based on the fact that Art. 22(4) is prospective in nature. It reads:

"For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval. Among them, the number of persons who enter the Region for the purpose of settlement shall be determined by the competent authorities of the Central People's Government after consulting the government of the Region."

Since Art. 22(4) only took effect on 1 July 1997, it is said only to relate to persons who sought to enter Hong Kong on or after 1 July 1997. Thus, it does not apply to Group A claimants who arrived in Hong Kong before 1 July 1997. They are therefore said not to have needed Mainland approval before exercising their right of abode. Because they acquired the right of abode in Hong Kong as soon as the Basic Law took effect, they immediately enjoyed the right of abode in Hong Kong, without the need to have obtained a one-way exit permit or a certificate of entitlement, subject to them establishing to the satisfaction of the Director of Immigration that at the time of their birth at least one of their parents was a permanent resident of Hong Kong. One of the representative applicants who arrived in Hong Kong before 1 July 1997 is a Group A claimant.⁸⁹

114. Looking at this argument in terms of principle and free from authority, I would have rejected it. The link between Art. 22(4) and Art. 24(3) means that anyone who claims to have acquired the right of abode under Art. 24(3) must already have obtained approval from the Mainland authorities to settle in Hong Kong. I accept that Art. 22(4) is prospective, but since Art. 24(3) came into effect at the same time as Art. 22(4), Art. 22(4) is prospective in that it only applies to someone who claimed the right of abode in Hong Kong on or after 1 July 1997. But that did not mean that approval from the Mainland authorities to settle in Hong Kong was not needed for persons who had come to Hong Kong prior to 1 July 1997 but who claimed the right of abode in Hong Kong on or after 1 July 1997.

115. I accept that the applicants' argument is supported by the judgments of Chan CJHC and Nazareth V-P in the Court of Appeal in Cheung Lai Wah.⁹⁰ However, this view does not lie easily with various comments made by the Court of Final Appeal in Lau Kong Yung. Thus, the view of Li CJ was that once Art. 24(3) was to be read as qualified by Art. 22(4), the right of abode could not be enjoyed unless the requirement of Mainland approval in Art. 22(4) had been obtained.⁹¹ Similarly, Ching PJ said that the link between Art. 22(4) and Art. 24(3) meant "that persons from the Mainland seeking to settle in Hong Kong need both a one-way exit permit and a certificate of entitlement which are to be applied for in the Mainland."⁹² I acknowledge, of course, that the Court of Final Appeal was not specifically addressing the question of the effect of the link between Art. 22(4) and Art. 24(3) on persons who had arrived in Hong Kong before 1 July 1997. But the width of the language used by the members of the Court of Final Appeal suggests that they were not prepared to deny Art. 22(4) having any effect on those right of abode claimants who happened to arrive in Hong Kong before Art. 22(4) took effect. Again, this was the view of Stock J, and I agree with it.

Conclusion

116. For these reasons, I would dismiss these appeals. In view of the importance of the issues which the cases raise, and in view of the impact which the cases of the 26 representative applicants and Li Shuk Fan have on (a) all the other applicants and (b) the many thousands of right of abode claimants who hope to benefit from the judgments in these cases, I would not at present be inclined to order the applicants to pay the costs of the Director of Immigration. Accordingly, the order nisi as to costs which I would make is that there be no order as to the costs of the appeals or of the applications for judicial review in the Court of First Instance, save that there should be legal aid taxation in the cases of those applicants who are legally aided.

117. I wish to add three things. First, in cases with as many issues as these, it was only to be expected that the arguments would be full and wide-ranging. It may be that I have not addressed all the arguments developed before us in this judgment. However, I have addressed what I have regarded as the principal ones, as well as those on which the outcome of the appeals turned. Secondly, I wish to pay tribute to Stock J, whose careful and comprehensive judgment enabled me to get to grips with the issues quicker than would otherwise have been the case, and has made my task less difficult than it otherwise would have been. Thirdly, I wish to thank the solicitors in the case for the exemplary manner in which the bundles have been prepared, and counsel for the clear, cogent and moderate way in which their arguments were couched.

Leong JA:

118. I have had the privilege of reading the judgments in draft of Mayo VP and Keith JA and I agree with the conclusions they have reached in these appeals generally as well as in respect of the individual cases.

119. I would only add the following.

120. All the issues in the appeals come to one question: whether the appellants are affected by the Interpretation under Article 158 of the Basic Law by the Standing Committee of the National People's Congress on 26 June 1999 of Article 22(4) and 24(2)(3) thereof which applies retrospectively from 1 July 1997 (the "Interpretation"). The result of the Interpretation is that the legal propositions declared by the Court of Final Appeal on 29 January 1999 in the case of Ng Ka-ling , that the linking of the certificate of entitlement to the one way permit was incompatible with Article 24(3) and in the case of Chan Kam-nga, that the limitation of the right of abode through parentage under Article 24(3) to children one of whose parents had become permanent residents in Hong Kong at the time of their birth was incompatible with Article 24(3), ceased to be the law that could be correctly applied.

121. The effect of all this is, in so far as the appellants are concerned, unless they are excepted from the application of the Interpretation, some of them would be faced with a removal order to be made by the Director of Immigration to remove them from Hong Kong while removal orders already made against others would not be revoked by the Director of Immigration.

122. The appellants claim that they are unaffected by the Interpretation because -

1. They are entitled to be treated as parties to the CFA judgments of Ng Ka-ling and Chan Kam-nga and by virtue of the principle of "judgments previously rendered shall not be affected" they are unaffected by any subsequent in law.

2. They had a legitimate expectation that the two CFA judgments would apply to them.

3. They are covered by the "Concession" announced by the Chief Executive on 26 June 1999 immediately after the Interpretation was made.

4. For some of them, they arrived in Hong Kong before 1 July 1997 and some arrived between 1 July 1997 and 10 July 1997.

123. It is accepted that where an Interpretation is made under Article 158 of the Basic Law, whether a free standing one or one given after reference, the proviso to Article 158(1) that it does not affect judgments previous rendered applies. On the effect of a free standing Interpretation, Sir Anthony Mason NPJ said this:

"As to the effect of a free standing interpretation by the Standing Committed that is an interpretation given otherwise than on a reference, judgments previous given are protected by the vesting of judicial power in the courts of the region and the vesting of the power of final adjudication in the Court of Final Appeal. Under the Common law a final judgment would not be reopened as between the parties to the litigation in which the judgment was delivered by reason of the subsequent adoption of a new interpretation of the relevant legal instrument."

124. Stock J (as he then was) concluded in his judgment that "the parties to the litigation" in the judgments of Ng Ka-ling and Chan Kam-nga, could include the parties in the cases directed to be represented by Ng Ka-ling and Chan Kam-nga suing as representative cases and could also include those persons whom the Director of Immigration undertook to treat as "parties to the litigation", but the appellants could not be included.

125. The appellants contend that "parties to the litigation" should include those persons who have not brought proceedings or joined in the proceedings of Ng Ka-ling and Chan Kam-nga if they are on the record of the Director of Legal Aid as having applied for legal aid. Those persons who have not applied for legal aid but whose rights accrued under the judgments of Ng Ka-ling and Chan Kam-nga should also be included because once the legal position has been ascertained, there would be no need for them to take separate legal proceedings. They also argue on the footing that Ng Ka-ling and Chan Kam-nga are test cases for similar cases and these include the appellants' cases. They seek to find support in the English Court of Appeal case of Ashmore v British Coal Corporation where the plaintiff and over 1,500 other women employees made similar complaints about unequal pay treatment. By their agreement, 14 sample cases were selected from among these complaints for adjudication by the Industrial Tribunal. It was agreed that according to the general principles determined by the Tribunal in the sample cases, the other complaints including that of the plaintiff would be decided. The English Court of Appeal held that the principles decided in the sample cases were applicable to the plaintiff and the separate proceedings taken by her were an abuse of process.

126. In my opinion, this case is of no assistance to the appellants. The circumstances in the present case are totally different. The appellants were no part of any agreement that Ng Ka-ling and Chan Kam-nga were to be sample cases and according to their outcome, the appellants would be similarly bound. Some of the appellants had not even emerged when Ng Ka-ling and Chan Kam-nga were decided and could not have been party to any agreement of this sort.

127. Ng Ka-ling and Chan Kam-nga decided not only the issues between the Director of Immigration and the named parties in these two cases, they also decided legal issues which give determinative effect according to which other similar cases should be decided in future. This is not the same as making the appellants and other persons whose cases are similar to those of the named parties in Ng Ka-ling and Chan Kam-nga parties to the legal proceedings in these two cases. Now that the legal propositions decided in these two cases are no longer correct as a result of the Interpretation which declares what Articles 22(4) and 24(2)(3) always meant since the Basic Law came into being, the appellants cannot claim a determination of their cases according to the decisions of Ng Ka-ling and Chan Kam-nga.

128. Article 158(1) provides that judgments previously rendered shall not be affected by an interpretation thereunder (在此以前作出的判決不受影響). The Interpretation applies this provision by expressly declaring:

"This Interpretation does not affect the right of abode in the Hong Kong Special Administrative Region which has been acquired under the judgment of the Court of Final Appeal on the relevant cases dated 29.1.1999 by the parties concerned in the relevant legal proceedings."

『本解釋不影響香港特別行政區終審法院1999 年1 月29日對有關案件判決的有關當事人所獲得的香港特別行政區居留權』

129. According to the "朗文中文高級新詞典" the words "有關" means "有關繫" (connected), "牽涉到" (involved). These words "有關" were used to qualify "當事人" (parties) and "案件" (legal proceedings). Thus, according to the Chinese text of this declaration, it is clear that only the right of abode acquired by the parties connected with or involved in the legal proceedings in the judgments of the Court of Final Appeal dated 29.1.1999 would not be affected. The conclusion must be that persons like the appellants who are only affected by but not connected with or involved in the legal proceedings in the Ng Ka-ling and Chan Kam-nga cases will not be excepted from the application of the Interpretation.

130. The appellants claim that certain government public statements and the individual pro forma letters sent to right of abode claimants before and after the judgments in Ng Ka-ling and Chan Kam-nga gave them a legitimate expectation that the judgments would be applied across the board to all those persons who are in the same categories as the named parties in the two cases and the appellants expected to be treated in the same manner as the named parties in Ng Ka-ling and Chan Kam-nga. The appellants also claim that no indication had been made by the Government that it would seek an interpretation of Article 22 and 24(2)(3) from the SCNPC and that it would not in accordance with the two judgments set up a scheme to verify their claims. They argue that in these circumstances, they have the clearest legitimate expectation that the Government would not seek to retrospectively apply the Interpretation to them.

131. The question simply put is this: whether the Government had made a promise binding itself to apply the CFA judgments to the categories of right of abode claimants such as the appellants even though they are not litigants in Ng Ka-ling and Chan Kam-nga.

132. The Government statements relied up on by the appellants and the pro forma letters have been referred to in the judgment of Stock J and some of these have been gone into and analysed by Keith JA in his judgment and I do not propose to repeat them here. Suffice for me to say, that in the statements and pro forma letters before the two judgments, the Government was stating no more than that the relevant right of abode issues would be dealt with in accordance with the final judgments of the Court of Final Appeal and in the meantime no decision would be made pending such determination. In those statements and letters after the two judgments, Government was stating no more than that it respected the judgments of the court and because of the ramifications of the two judgments, the Government was actively considering the necessary arrangements to implement the two judgments. Although the Government did not indicate in these statements and letters that it would seek an interpretation from the State Council, the Government made no representation that it would not pursue such a course of action. The Government may do so under the Basic Law should it decide to pursue the matter further. Indeed the Government had gone to this highest authority and obtained the final determination on the meaning of the two Articles, an interpretation which represents what the relevant Articles should mean as from the date of their promulgation. There was nothing in these statements and letters to induce the appellants into any expectation that the Government would not take such a course.

133. That the Government would follow the law as decided by the courts is obvious and it was not surprising that the Government stated that it respected the two judgments and was seeking arrangements to implement them. But once the correctness of the declarations of law in those two judgments was unseated by the Interpretation, the inevitable is that all the issues on the right of abode must be decided in accordance with the Interpretation. All claimants for the right of abode would be affected unless they come within the exception of judgments previously rendered in the Interpretation or under the Common law or they are excepted as a matter of policy by coming within the ambit of the Chief Executive's " Concession". The statements and letters could not in my opinion have given the appellants a legitimate expectation that they could benefit from the two judgments in the same manner as the named litigants in those two cases.

134. Even if it can be said that for the claimants who were persuaded by the Government to postpone taking separate legal proceedings pending the outcome of the judgments in the two cases of Ng Ka-ling and Chan Kam-nga, and that these statements and letters gave them an expectation that their cases would be dealt with in the same manner as the litigants in the two cases, the Government was not wrong not to deal with their cases in that manner after the Interpretation came into being, because the Government could not act against the law as interpreted by the Interpretation. The Government cannot be bound to exercise its discretion relating to the right of abode to follow the two judgments, which are no longer regarded as correct. This aspect of the law is clearly stated by Tucker J in R v Customs and Excise Commissioners, Ex parte Littlewoods Home Shopping Group Ltd [1997] STC 317:

"Where there has been a change in the law, or where there has been a new judicial interpretation of the law, as the commissioners reasonably believe occurred in the present case and as did in my opinion occur, then the commissioners should not be bound by assurances given in different circumstances based on a different view of the law which has been held to be mistaken. This is especially so when, as in the present case, the public interests require that there should be a change in policy."

135. This is especially apposite to the present case where the duty of the Director is to have regard to control of entry of illegal immigrants and illegal stay in Hong Kong.

136. On 26 June 1999, after the Interpretation was made, the Chief Executive made a statement the relevant part of which is as follows:

"After receiving the interpretation of the Standing Committee of the National People's Congress, the Executive Council met earlier today. We have made the following decisions:

First, we will introduce a resolution to the legislature to amend Schedule I to the Immigration Ordinance

(a) to make it clear that children born outside Hong Kong will only be eligible for the right of abode if at least one of their parents has already acquired permanent residence status at the time of their birth;

(b) to provide for children born out of wedlock to apply for right of abode ...

Secondly, to comply with the principle that judgments previously rendered by the Court of Final Appeal shall not be affected by an interpretation of the National People's Congress Standing Committee, we will allow persons who arrived in Hong Kong between July 1, 1997 and January 29, 1999 and had claimed the right of abode, to have their status as permanent residents verified in accordance with the CFA decision. It is estimated that there are about 3,700 people in this category."

137. The Chinese original is this:

『我們接到全國人大常委會的解釋後，我們立即召開了行政會議，而作出以下的決定:

第一，下星期我們將於立法會提交決議案修改入境條例的附表，以規定：

（甲）在香港以外所生的港人子女，只有在其出生時，其父或母已獲得永久居民身份，才能擁有居留權；

（乙）非婚生港人子女可以申請居留權。

第二，根據終審法院的判決不受人大常委會的解釋所影響的原則下，我們將容許由一九九七年七月一日至一九九九年一月二十九日在港並曾向當局聲稱擁有居留權的人士，以終審法院的判決核實他們永久居民的身份，據統計，這類人士大概有三千七百人。』

138. The English translation of "由一九九七年七月一日至一九九九年一月二十九日在港並曾向當局聲稱擁有居留權的人士 ......" is "persons who had arrived in Hong Kong between 1 July 1997 and 29 January 1999 and had claimed the right of abode". The Chinese words "向當局" (the authorities) have been left out. It also does not represent the true meaning of the Chinese text, which is "persons who were in Hong Kong between 1 July 1997 and 29 January 1999 AND had made a claim to the authorities ..." .

139. The press release which followed states:

『政府發言人今日(星期六)解釋: "受惠的人士必須於一九九七年七月一日至一九九九年一月二十九日期間在港，並曾於這段期間向入境事務處處長聲稱擁有居留權 ... 。

另一類受惠者為於1997年7月1日至1999年1月29日期間在港並向入境事務處聲稱擁有居留權的人士 ......。

他說 ：「此類別他們包括於一九九九年一月二十九日於終審法院作出裁決的兩個測試個案共八十六名訴訟人士，以及在相關司法程序中所涉及的有關人士」

換言之 ...... 期間在港並已向入境事務處聲稱擁有居留權的內地人士將可能視為與訴訟有關人士，該等人士為數約3,700人 ......

部分該等聲稱擁有居留權人士其申請已獲核實或在最後核實階段。過九百人並已享受有或即將享有居留權』

140. The English translation is this:

"'The persons to benefit are those who were in Hong Kong between July 1, 1997 and January 29, 1999 and laid ROA claims with the Director of Immigration whilst in Hong Kong during this period,' a Government spokesman explained today (Saturday).

...

Another group of beneficiaries are those who were in Hong Kong and approached the Immigration Department to claim ROA between July 11, 1997 and January 29, 1999.

'They include the 86 litigants themselves in respect of the two test cases on which the CFA ruled on January 29, 1999 and those who were parties concerned in the relevant legal proceedings.'

'In other words ... those mainlanders who were in Hong Kong during that period and had made a claim to the Director of Immigration to the right of abode may be regarded as parties concerned in the litigation ... . The total number of persons involved are about 3,700.'

The ROA claims by some of these persons have already been verified or being verified at the final stage. Over 900 persons have already obtained or may shortly obtain the ROA.

..."

141. The statement announces a concession made to persons who were in Hong Kong during that "window" period and had claimed their right of abode to have their status as permanent residents verified in accordance with the CFA judgment and those who fall within this category would not be required to return to the mainland before verification of their status could be made.

142. The respondent contends that this concession was limited to persons who had lodged a claim with the Director of Immigration while they were in Hong Kong during the window period and the Director had a record of the claim.

143. The appellants argue that the concession does not require their physical presence in Hong Kong when a claim is made nor does it require that there should be a record of such claim with the Director of Immigration. They contend that it is sufficient if they had been in Hong Kong sometime during the window period and had asserted their entitlement whether they were then in Hong Kong. They also argue that an assertion of their claim to right of abode should be regarded as having been made if they had approached the Immigration Department to make a claim or an enquiry or to ask for an extension of the time of stay or they had applied to the Director of Legal Aid for Legal Aid to pursue their claim for the right of abode.

144. The Chinese statement of the Chief Executive states "在港並曾向 ...... " (were in Hong Kong and had claimed ...", and not "曾在港並向 ... " (had been in Hong Kong and claimed). It clearly states that the making of the claim to the right of abode and the claimant's physical presence in Hong Kong must be co-existent before the claimant can qualify for entry into the concession. Although the statement does not make clear to which "authorities" the claim should have been made, it goes without saying that the claim must be made to the "relevant authorities" which must mean the authorities who are legally in a position to deal with the matter of right of abode and entry or stay in Hong Kong. It cannot be any other authority than the Immigration Department. In fact, the press release had made it quite clear that it was the Immigration Department. This is a policy statement and it is clear and unambiguous as to which category of persons is not within it. The ambit of this concession is clearly set. It was intended to apply to an estimated 3,700 persons.

145. It is a concession or exception to what would normally be the case and therefore it is a matter of policy for Government to determine the criteria for such a benefit and the number of persons to whom such benefit is available. The Government has set down the ambit of beneficiaries and to implement this by reference a record of such claim is necessary. The Government cannot be said to be unreasonable when it required a claimant to show he had made a claim evidence of which is a record of it with the Director of Immigration. It would be absurd to suggest that the mere making of an inquiry with the Immigration Department on the right of abode would be sufficient evidence that a claim had been made. The Department received thousands of these inquiries by telephone or by personal attendance at the department throughout the year and keeping of such inquiry is an impossibility. Equally an application to the Legal Aid Department for an assistance which may or may be granted, to lodge legal proceedings to pursue a claim could not be regarded as making a claim to the right of abode. The requirement that before a person came within the concession he must show that he had made a claim to the right of abode in a formal assertion of his entitlement is not an unreasonable requirement for the purpose of implementing the policy. As is held in, R v Ministry of Defence, Ex parte Walker, it is only when such a policy is so unreasonable or irrational that no policy maker would adopt it that the court would start to interfere.

146. In my opinion, the appellants have not been able to show that the Judge was wrong in rejecting their argument that they were entitled to the benefit of the concession.

147. I would dismiss the appeals.

Mayo VP:

Judgments already rendered shall not be affected and test cases

148. It would seem to be convenient to deal with these two heads together.

149. Miss Li SC submitted that it was essential to keep in mind the background to this litigation before deciding whether the applicants should be deemed to be parties to the NG Ka-ling & Others v Director of Immigration (1999) 2 HKCFAR 4 and CHAN Kam-nga & Others v Director of Immigration (1999) 2 HKCFAR 82 cases.

150. She agreed with the conclusion reached by the Judge that the reference in Article 158(3) to judgments previously rendered not being affected by an interpretation applied equally to a free-standing interpretation by the Standing Committee made pursuant to Article 158(1).

151. This was also consistent with the relevant part of the Interpretation which referred to the previous litigation.

152. The final paragraph reads:

"As from the promulgation of this Interpretation, the courts of the Hong Kong Special Administrative Region, when referring to the relevant provisions of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, shall adhere to this Interpretation. This Interpretation does not affect the right of abode in the Hong Kong Special Administrative Region which has been acquired under the judgment of the Court of Final Appeal on the relevant cases dated 29 January 1999 by the parties concerned in the relevant legal proceedings. Other than that, the question whether any other person fulfils the conditions prescribed by Article 24(2)(3) of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China shall be determined by reference to this Interpretation."

153. However she submitted that when considering who had been parties to the litigation it was necessary to have regard to the factual situation which had obtained at the relevant time.

154. Shortly after the transfer of the sovereignty there was a large influx of people from the Mainland who were seeking to assert a right of abode in Hong Kong.

155. A decision was made early on that the most efficient way of presenting the various issues to the Court would be to select litigants who would be representative of the various issues and make them parties to the litigation.

156. On 23 July 1997 the Chief Secretary referred to this in the Provisional Legislative Council and stated that the Legal Aid Department and the Secretary for Justice had agreed to this course being adopted. It needs perhaps to be added that almost all of the applicants were legally aided.

157. Miss Li argued that there was no necessity to identify all the parties concerned as it would inevitably be the case that where Declarations were made which were favourable to the representatives the Government would be bound to follow the decisions of the Court.

158. She further submitted that not only those who had applied for legal aid should come within the ambit of the parties referred to. It should also include all persons whose rights had accrued under the NG Ka-ling and CHAN Kam-nga judments by reason of the principle all parties concerned had recognised that once points of law are decided there was no need for separate proceedings. This was consistent with the common law principle against reopening litigation as between parties. Those who could be considered as "parties" extended beyond the actual parties to the litigation. Authority for this proposition could be found from the case of Ashmore v British Coal Corporation [1990] 2 Q.B. 338.

159. In that case Miss Ashmore had been a party to proceedings which had been taken by a number of her fellow employees who had attempted unsuccessfully to bring an action against their employer in relation to discriminatory treatment of female employees. However her case was not one of the test cases which had been considered. When she decided to commence separate proceedings the Court struck out Miss Ashmore's action as an abuse of process as it amounted to an attempt to relitigate issues which had already been judicially determined. I do not see how this can be of any assistance in the present case. The position is entirely different. It was recognised in the case that it was not a test case and different considerations apply.

160. In this connection it needs to be borne in mind that NG Ka-ling and CHAN Kam-nga should only be regarded as precedents for persons other than the parties to the litigation.

161. The other contention advanced by Miss Li was the public nature of the litigation and the fact that the judgments in NG Ka-ling and CHAN Kam-nga were analogous with judgments in rem. The applicant's case in this connection is comprehensively stated on pages 57 - 60 of the judgment below.

162. This took into account the fact that the applicants had been publicly discouraged from commencing separate proceedings and that the questions involved matters of status which would apply to a wide class of persons. Inevitably it was the case that all these people would be keenly interested in the outcome of the litigation and so it was only right that they should be regarded as parties to the litigation in accordance with the description contained in the interpretation.

163. Miss Li went on to develop this argument by referring to the nature of the judgment and the relief being sought. The judgment could properly be described as being a declaratory judgment. The characteristics of such a judgment were considered in Chapter 18 of the 5th Edition of Judicial Review of Administrative Action 1995 at p. 735:

"A declaratory judgment is a formal statement by the court pronouncing upon the existence or non-existence of a legal state of affairs. It declares what the legal position is and what are the rights of the parties. A declaratory judgment is to be contrasted with an executory, in other words, coercive judgment which can be enforced by the courts. In the case of an executory judgment, the courts determine the respective rights of the parties and then order the defendant to act in a certain way, for example, to pay damages or to refrain from interfering with the plaintiff's rights. If the order is disregarded, it can be enforced by official action, usually by levying execution against the defendant's property or by imprisoning him for contempt of court. A declaratory judgment, on the other hand, pronounces upon the existence of a legal relationship but does not contain any order which can be enforced against the defendant. The court may, for example, declare that the plaintiff is a British subject or that a notice served upon him by a public body is invalid and of no effect. The declaration pronounces on what is the legal position."

164. Miss Li suggested that the significant point to be noted was that in the event of a declaratory judgment being entered it was inconceivable that further legal proceedings would need to be instituted to ensure that the terms of the judgment were complied with. It was accordingly right that persons affected by a declaratory judgment should be treated as being parties to the litigation.

165. Miss Li was also critical of the Judge's reasoning at p. 67 of his judgment when on the authorities of Amos v Chadwick (1878) 9 Ch D 459 and Perry v Corydon Borough Council [1938] 3 All ER 670 he concluded that NG Ka-ling and CHAN Kam-nga were "test or representative actions in relation to other actions which had been assigned to Messrs Clarke and Kong". She contended that having regard to all the surrounding circumstances it was unrealistic to look for specific agreements with all parties concerned to be bound by the result of the litigation.

166. The correct approach to adopt according to her was to regard the cases as test cases which were designed to test fundamental issues of law with the aim of setting down general legal principles for the determination and processing of claims of permanent resident status of the Mainland children of Hong Kong parents many of whom were already in Hong Kong and had applied for legal aid or may so apply. Once the issues were determined any judgment would apply to everyone concerned.

167. This approach was consistent with a statement made by the Chief Secretary to the Provisional Legislative Council on 23 July 1997 in reply to questions put to her:

"(a) The proof of parent and child relationship is essential in each application. The Legal Aid Department (the Department) requires a proper birth certificate issued by the appropriate authority to verify the relationship. In the absence of any documentary proof of identity and status of the persons concerned, the Department will refuse an application for legal aid.

(b) So far, 73 cases have been granted legal aid. However, with the agreement of the courts and both sides, a few cases will be selected as test cases to obtain rulings from the courts on points of law. It is therefore unnecessary to initiate separate proceedings for each and every legally aided person. It is difficult to estimate the costs of litigation at this stage as it depends on the number of selected cases, their complexity and whether there will be any appeals arising from such cases. The Department will closely monitor expenditure in these cases.

(c) All applications for legal aid must be processed expeditiously in accordance with the Legal Aid Ordinance (Cap. 91). Delay in processing an application may jeopardize the interests of eligible applicants. It is expected that the few test cases would not overburden the court."

168. She went on to argue that in NG Ka-ling the Court of Final Appeal had made Declarations on the constitutionality of the Certificate of Entitlement Scheme of Verification and in CHAN Kam-nga on the requirement that for a claim to a right of abode to succeed it was not necessary that the parent in respect of whom the claim was being made should already have resided in Hong Kong for 7 years.

169. After the Court of Final Appeal delivered its judgments which were favourable to the applicants they had by virtue of the principle of "judgments previously rendered shall not be affected" acquired the status they were claiming and this could not be taken away by the Interpretation of the Standing Committee.

170. She further submitted that the power of the Standing Committee under Article 158 is to make interpretations of the provisions of the Basic Law. The question of what status can be acquired by person in Hong Kong was a matter for the determination of the Courts applying Common Law principles.

171. At this point it may be helpful to again refer to the final paragraph of the Interpretation which has earlier been cited in this judgment. It is very clear from this that the Interpretation has a retrospective effect from 1 July 1997 and that subject to the exception referred to of "the parties concerned in the relevant legal proceedings" everyone else is held to be bound by the Interpretation.

172. There is every reason to suppose that this is the true position. If Miss Li's analysis of the position is correct it would mean that any public law case would always bind everyone and to a large extent render the Interpretation otiose. Non-parties would be able to take advantage of Court orders without the necessity of complying with the terms of the order or incurring the liabilities or obligations under it.

173. As was pointed out by Mr Ma, SC for the Director of Immigration ("the Director") what Miss Li was seeking to argue was that the Director should be bound by the law as laid down in NG Ka-ling and CHAN Kam-nga and disregard the law as it now is by virtue of the Interpretation.

174. There can be no doubt that the existing law was reversed by the Interpretation and by the Court of Final Appeal in LAU Kong-yung & Others v Director of Immigration (1999) 2 HKCFAR 300 and that this took retrospective effect from 1 July 1997.

175. This was recognised by Li CJ at p. 326 of LAU Kong-yung:

"The applicable date

The Interpretation, being an interpretation of the relevant provisions, dates from 1 July 1997 when the Basic Law came into effect. It declared what the law has always been. Compare the common law declaratory theory of judicial decisions, see Kleinwort Benson Ltd v Lincoln City Council [1998] 3 WLR 1095 at pp. 1117 - 1119 and 1148."

176. Also as indicated by Li CJ this was not inconsistent with the underlying philosophy outlined in Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 when Lord Hope stated at p. 410:

"What then is the position where the fact that the payment was not legally due at the time when it was made was only revealed later by subsequent case law? In posing this question I am not dealing with the situation where a judgment of the court that a sum is due has become final and been acted upon, but is afterwards overruled by a higher court in a different case. The law of unjust enrichment does not disturb transactions of that kind. Where the payment is made because the court has held that the sum is due to be paid to the payee, the obligation to pay is to be found in the order which has been made by the court. I am dealing with the case where the payment was made on the understanding that the law on the point was settled and that understanding was shown by subsequent case law to have been wrong.

The answer to this question may be said to depend upon whether the decision in question has changed the law or has merely declared what the law always was. We were reminded of Lord Reid's observation that to say that the judges never change the law is a fairy tale: 12 J.S.P.T.L. 22. Experience has shown that the judges do from time to time change the law, in order to adapt it to changed social conditions or in response to other factors which show that the law has become out of date. But it would be equally wrong to say that the judges never declare the law. It may simply be that there was a gap which needed to be filled, or that there was a defect in thinking which needed to be revealed so that a point could be clarified. And to overturn an established line of authority is one thing. It is quite another where there was no previous decision on a point which no one had sought to bring before the court previously. It may be said that a view of the law can be regarded as settled even where there is no case law at all on the subject, because all those interested in it have acted on a common understanding of what the law requires. But I would find it difficult to accept that a judge who said that that common understanding was wrong, and that the law was different from what everyone previously had thought it was, had changed the law. It would seem to be more accurate to say that, as it was for the judge to say what the law was he was merely declaring what the law was and that he was not changing it.

On the whole it seems to me to be preferable to avoid being drawn into a discussion as to whether a particular decision changed the law or whether it was merely declaratory. It would not be possible to lay down any hard and fast rules on this point. Each case would have to be decided on what may in the end be a matter of opinion, about which there may be room for a good deal of dispute. It is better to face up to the fact that every decision as to the law by a judge operates retrospectively, and to concentrate instead on the question - which I would regard as the critical question - whether the payer would have made the payment if he had known what he is now being told was the law. It is the state of the law at the time of the payment which will determine whether or not the payment was or was not legally due to be paid, and it is the state of mind of the payer at the time of payment which will determine whether he paid under a mistake. But there seems to me to be no reason in principle why the law of unjust enrichment should insist that that mistake must be capable of being demonstrated at the same time as the time when the payment was made. A mistake of fact may take some time to discover. If there is a dispute about this, the question whether there was a mistake may remain in doubt until the issue has been resolved by a judge. Why should this not be so where the mistake is one of law?"

177. What however is of great assistance in resolving these issues is the judgment of Sir Anthony Mason NPJ at p. 344 to 346 of LAU Kong-yung when he considered Article 158 and the binding effect of free-standing interpretation of the Basic Law:

"The power to make an interpretation and its binding effect

The Basic Law is the constitution of the Hong Kong Special Administrative Region of the People's Republic of China established under the principle of 'one country, two systems'. It is a national law of the PRC, being an enactment of the National People's Congress made in the exercise of legislative powers conferred upon the NPC by the PRC Constitution.

Article 8 of the Basic Law preserves the common law in Hong Kong, art.80 vests the judicial power in the courts of the Region and art.81 maintains the judicial system previously practised in Hong Kong except for changes consequent upon the establishment of the Court of Final Appeal of the HKSAR. Article 81 is followed by art.82 which vests the power of final adjudication in the Region in the Court of Final Appeal. By these and other provisions, the Basic Law maintains the common law and a common law judicial system in the Region. This conjunction of a common law system under a national law within the larger framework of Chinese constitutional law is a fundamental aspect of the principle of 'one country, two systems' which is recited in the Preamble to the Basic Law.

As is the case with constitutional divisions of power, a link between the courts of the Region and the institutions of the People's Republic of China is required. In a nation-wide common law system, the link would normally be between the regional courts and the national constitutional court or the national supreme court. Here, however, there are not only two different systems, but also two different legal systems. In the context of 'one country, two systems', art.158 of the Basic Law provides a very different link. That is because the article, in conformity with art.67(4) of the PRC Constitution, vests the general power of interpretation of the Basic Law, not in the People's Supreme Court or the national courts, but in the NPC Standing Committee.

Consistently with that vesting of the general power of interpretation in the Standing Committee, the Standing Committee authorises the courts of the Region to interpret 'on their own, in adjudicating cases' the provisions of the Basic Law which are within the limits of the autonomy of the Region. The expression 'on their own' stands in contrast to the mandatory reference requirement under art.158(3) which applies to the Court of Final Appeal in relation to what the Chief Justice calls 'the excluded provisions'.

The expression 'in adjudicating cases' is of particular significance. In the common law world, these words would be surplusage. Interpretation of a law, even of a constitution, is the business of the courts, being an incident of the adjudication of cases. In the People's Republic of China, however, under art.67(4), the Standing Committee of the NPC exercises, as well as other functions and powers, the power 'to interpret laws', because the PRC Constitution does not provide for a separation of powers that is the same as or similar to the common law doctrine of the separation of powers. Article 57 of the PRC Constitution provides that the NPC is the highest organ of state power and the NPCSC is its permanent body.

The Standing Committee's power to interpret laws is necessarily exercised from time to time otherwise than in the adjudication of cases. So the expression 'in adjudicating cases' makes it clear that the power of interpretation enjoyed by the courts of the Region is limited in that way and differs from the general and free-standing power of interpretation enjoyed by the Standing Committee under art.67(4) of the PRC Constitution and art.158(1) of the Basic Law.

This conclusion may seem strange to a common lawyer but, in my view, it follows inevitably from a consideration of the text and structure of art.158, viewed in the light of the context of the Basic Law and its character as the constitution for the HKSAR embodied in a national law enacted by the PRC.

This conclusion on the power of the Standing Committee to interpret under art.158(1), as the Chief Justice points out, gains some support from Professor Yash Ghai's work Hong Kong's New Constitutional Order (2nd ed., 1999) p.198. There the author concluded that the Standing Committee has a general power to interpret the Basic Law. The power is 'plenary in that it covers all the provisions of the Basic Law; this power may be exercised in the absence of litigation.'

In argument, it was submitted that the last two sentences of art.158(3) support a different conclusion, namely that the Standing Committee's power of interpretation is confined to matters referred to it by the Court of Final Appeal. The argument is that the last two sentences are confined to an interpretation given on such a reference and that is significant because the penultimate sentence requires the courts of the Region to follow that interpretation and the last sentence states that 'judgments previously rendered shall not be affected'. The absence of similar provisions in relation to an interpretation by the Standing Committee otherwise than on a reference, so the argument runs, suggests the absence of such a power, that being a conclusion which, speaking generally, might appeal to a common lawyer.

In my view, the suggested conclusion does not follow from the matters on which it is based. The general power of interpretation of the Basic Law vested in the Standing Committee by art.158(1) is plainly a power to give an authoritative interpretation of the Basic Law binding on all institutions in the Region. There was no occasion to spell out the obvious in the Basic Law. Nonetheless it may have seemed desirable to make specific provision for what was to happen when an interpretation is to be given on a reference, in order to make clear beyond any doubt, the effect the Interpretation would have when it was returned to the Court of Final Appeal on the reference, and to ensure that it was the interpretation of the Standing Committee rather than the Court's judgment applying the interpretation that would have authoritative force. The penultimate sentence, it will be noted, is directed to 'the courts of the Region', not simply to the Court of Final Appeal.

As to the effect of a free-standing interpretation by the Standing Committee, that is, an interpretation given otherwise than on a reference, judgments previously given are protected by the vesting of judicial power in the courts of the Region and the vesting of the power of final adjudication in the Court of Final Appeal. Under the common law, a final judgment would not be re-opened as between the parties to the litigation in which the judgment was delivered by reason of the subsequent adoption of a new interpretation of the relevant legal instrument.

I conclude the discussion of this point by observing that, although the Interpretation is made by the Standing Committee, the permanent body of the NPC, which is the highest organ of state of power and exercises legislative power, the Interpretation is not simply legislation, as an amendment to the Basic Law would be. It is expressed to be an Interpretation and to state 'the legislative intent' of the Basic Law in a way that differs from the view taken by the Court in Ng Ka Ling & Others v Director of Immigration (1999) 2 HKCFAR 4. It satisfies the requirements of art.158(1) so that it is an 'interpretation' within the meaning of that provision with the consequences that attach to such an interpretation."

178. This effectively disposes of these issues.

179. All that needs to be added is that public policy demands that there must at some stage be an end to litigation.

180. As it happens there was an extension over and above the parties to the Ng Ka-ling and CHAN Kam-nga litigation.

181. While it was undoubtedly the case that on any fair interpretation of the law that NG Ka-ling and CHAN Kam-nga were test cases which did not in any way bind the Director to the applicants in this case it is nonetheless true that the Director of Legal Aid did enter into specific agreements with a small number of applicants the particulars of which have been identified. The Director was bound to honour these agreements and this was recognised by the Judge.

182. There are also of course the beneficiaries of the concession which was announced by the Government at the time of the announcement of the Interpretation. Those who are able to meet the conditions which were imposed will also be entitled to claim a right of abode in accordance with the principles laid down in NG Ka-ling and CHAN Kam-nga.

183. The concession issue will be dealt with later in this judgment.

184. All that remains to be said on the first two topics is that the reasoning of the Judge was impeccable on these subjects and there are no grounds for interfering with his decisions.

Legitimate expectation

185. At p. 77 of the judgment the Judge outlined the case which was being made out to make good this claim:

"'Further and/or in the alternative the applicants who were in Hong Kong or who had made a claim before the Interpretation are entitled to benefit from Ng Ka Ling and Chan Kam Nga by reason of legitimate expectation arising from representations of the Government to the public at large and to specific individuals that these judgments would be followed and implemented.'

'All the applicants not limited to those who arrived before 29 January 1999 have relied on a determination of their rights deemed to be final and on the determination to be given effect by the Director by reason of principles of the rule of law under which it was the unvaried practice of the Government in Hong Kong to follow the law as declared by the court until such time as the law is changed. Until the Interpretation was given by the NPCSC on 26 June 1999 and decided by the CFA in Lau Kong Yung on 3 December 1999 to take effect retrospectively from 1 July 1997, there was no indication that their rights already determined would be affected. Immediately after the judgments of the CFA on 29 January 1999 and on many occasions thereafter, the Government had reaffirmed the aforesaid practice and its intention to give effect to the judgments.'

'But for the invariable practice of the Government in Hong Kong making it unnecessary for anyone to bring proceedings in his own behalf while test cases were being determined, or for fresh proceedings to be brought after issues were determined, each of the applicants would have done so. Applicants in P1, 2, 3 and 4 were in Hong Kong before the Interpretation. Applicants in P5 could either have come to Hong Kong earlier or bring proceedings through their parents.'

'Moreover but for the Director refraining from processing their claims although in law it was within his power to do so, the applicants would have had their status verified. The Director's failure to do so when the Chief Executive took step to move a change in the law by way of the Interpretation amounts to special circumstances under which it is unfair to remove the applicants even if they are removable.'

'The Director enjoys extensive discretionary powers under the Immigration Ordinance, including giving permission to stay and removing the condition of stay with the effect that a person can apply for a certificate of entitlement or identity card while remaining in Hong Kong. These discretionary powers are unchanged by the No.2 and No.3 Ordinances, and have been used by the Director of Immigration before and since these Ordinances came into effect. The Director of Immigration is duty bound to exercise his discretion reasonably. In the special circumstances of the applicants, it is Wednesbury unreasonable of the Director not to exercise his discretion to allow them to remain.'"

186. Miss Li submitted that when the Judge had referred to the words which I have underlined he distorted the applicants' case. She suggested that if the whole passage is read in its overall context it is evident that the representations about which complaint is made are not limited in the manner suggested by these words. I do not consider that it is necessary to make any ruling on this on account of the reasons which will be given for the view I have taken of this matter.

187. The Judge outlines and comments upon the statements relied upon both before and after the delivery of the judgments in NG Ka-ling and CHAN Kam-nga from pages 78 to 81 of the judgment. It is not necessary to include all of these and for present purposes it will suffice to summarise them.

188. There were representations that the law would be implemented and that the authorities would comply with the law declared by the Court as may be required. It is contended that this implied that the decision of the Court of Final Appeal would be followed and implemented. There was no suggestion that the Government would seek an interpretation from the Standing Committee. There was also reference to the fact that arrangements were being made with the Mainland Authorities for the implementation of the measures required to comply with the judgments. In pro forma letters to individual applicants they were informed that the test cases would be followed.

189. Miss Li argued that the issues for determination were not private rights on factual disputes. They were issues of constitutional interpretation and the constitutionality of the provisions in the No. 2 and No. 3 Ordinances. The Government promise to accept the final determination on such issues must be presumed to be conclusive and would give rise to the legitimate expectation that this is what the Government would do. Articles 2, 3, 12(4) and 26 of the International Covenant on Civil and Political Rights also supported the legitimate expectation of the applicants to have the Court of Final Appeal judgments applied to them. She also submitted that the applicants had acted to their detriment after being informed that the judgments would be adhered to. They had not immediately commenced legal proceedings to assert their rights.

190. In this connection she argued that once a legitimate expectation of a substantial benefit had arisen on a matter of public policy the burden is on the Director to satisfy the Court that the frustration was justified by some overriding public interest. For this proposition she relied upon a passage at p. 645 from the judgment of Lord Woolf MR in R v North and East Devon Health Authority, Ex parte Coughlan [2000] 2 WLR 622:

"There are at least three possible outcomes. (a) The court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight it thinks right, but no more, before deciding whether to change course. Here the court is confined to reviewing the decision on Wednesbury grounds (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] I K.B. 223). This has been held to be the effect of changes of policy in cases involving the early release of prisoners: see In re Findlay [1985] A.C. 318; Reg. v. Secretary of State for the Home Department, Ex parte Hargreaves [1997] 1 W.L.R. 906. (b) On the other hand the court may decide that the promise or practice induces a legitimate expectation of, for example, being consulted before a particular decision is taken. Here it is uncontentious that the court itself will require the opportunity for consultation to be given unless there is an overriding reason to resile from it (see Attorney-General of Hong Kong v. Ng Yuen Shiu [1983] 2 A.C. 629) in which case the court will itself judge the adequacy of the reason advanced for the change of policy, taking into account what fairness requires. (c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.

The court having decided which of the categories is appropriate, the court's role in the case of the second and third categories is different from that in the first. In the case of the first, the court is restricted to reviewing the decision on conventional grounds. The test will be rationality and whether the public body has given proper weight to the implications of not fulfilling the promise. In the case of the second category the court's task is the conventional one of determining whether the decision was procedurally fair. In the case of the third, the court has when necessary to determine whether there is a sufficient overriding interest to justify a departure from what has been previously promised."

191. There could be no doubt that the rights which were being considered in the present case were of a substantive nature.

192. Miss Li submitted that the law on this subject was helpfully summarised in the Chapter on the Principles Governing the Exercise of Official Power in the 5th Edition of de Smith, Woolf and Jowell's Judicial Review of Administrative Action:

"The protection of a substantive legitimate expectation is now fully accepted in English law as a principle governing the exercise of discretion. Decisions of public bodies 'may not be internally inconsistent'. To qualify for protection - to be 'legitimate' - the expectation of a substantive benefit or advantage must contain the following qualities:

(1) The expectation must be induced by the decision-maker either expressly - by means of a promise or undertaking, or implicitly - by means of settled past conduct or practice.

(2) An express promise or undertaking can take the form of (a) a general representation, issued either to 'the world' or to a class of beneficiaries; or (b) a specific representation addressed to a particular individual or individuals.

(3) A general representation may take various forms, including that of a circular letter or other statement of policy. It can also include published decisions about advance clearance, or extra-statutory concessions. A person who seeks to rely upon a representation must be one of the class to whom it may reasonably be expected to apply. Thus a report from the Jockey Club announcing the intended availability of news licensed racecourses, which was sent to existing racecourse owners, was held not to apply to prospective new racecourse owners who spent money on a new site in reliance upon the report.

Whether a general representation will be held to give rise to a legitimate expectation does not depend upon the intention of the decision-maker. The question is whether the representation may reasonably induce a person within the class to rely on it. The context of the representation is therefore important. For example, a departmental circular letter setting out the criteria for the adoption of children from abroad may induce a legitimate expectation that its detail will be followed. But other circulars may be more in the nature of advisory documents, purporting to interpret the law or the likely implementation of government policy and therefore less likely to induce binding expectations (for example, Planning Policy Guidance notes issued by the Department of the Environment on diverse matters, including policy in relation to affordable housing, or to permissible conditions attached to planning permissions)."

193. She also sought to derive assistance from National Provincial Building Society and Others v United Kingdom [1997] STC 1466. According to her the case is of assistance in demonstrating that the applicants had the clearest legitimate expectation that the Government would not seek to apply any retrospective interpretation of the judgments.

194. While I am satisfied that Miss Li's analysis of the law is correct I do not think that in the circumstances which prevailed that any question of a legitimate expectation arose.

195. Nowhere did the Government ever state that come what may and whatever the state of the law from time to time it would always apply the NG Ka-ling and CHAN Kam-nga judgments. All that the evidence establishes is that the Government intended to abide by the law as it stood. They never stated that they would not seek an interpretation from the Standing Committee.

196. Perhaps even more important than this it cannot be said that there was any abuse of power. How could it be an abuse of power to apply the law which according to the Interpretation has always been the law? It might have been an abuse of power to follow the wrong law namely the judgments after the Interpretation and the judgment of the Court of Final Appeal in LAU Kong-yung. It is possible to derive assistance from case law on this topic.

197. Lord Fraser had this to say at p. 638 of the AG of Hong Kong v NG Yuen-shiu [1983] 2 AC 629:

"Their Lordships see no reason why the principle should not be applicable when the person who will be affected by the decision is an alien, just as much as when he is a British subject. The justification for it is primarily that, when a public authority has promised to follow a certain procedure, it is in the interest of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. The principle is also justified by the further consideration that, when the promise was made, the authority must have considered that it would be assisted in discharging its duty fairly by any representations from interested parties and as a general rule that is correct.

In the opinion of their Lordships the principle that a public authority is bound by its undertakings as to the procedure it will follow, provided they do not conflict with its duty, is applicable to the undertaking given by the Government of Hong Kong to the applicant, along with other illegal immigrants from Macau, in the announcement outside the Government House on October 28, that each case would be considered on its merits."

198. The Court of Appeal considered a judgment of Simon Brown LJ at p. 651 of R v North and East Devon Health Authority, Ex parte Coughlan [2000] 2 WLR 622:

"... These various authorities show that the claimant's right will only be found established when there is a clear and unambiguous representation upon which it was reasonable for him to rely. Then the administrator or other public body will be held bound in fairness by the representation made unless only its promise or undertaking as to how its power would be exercised is inconsistent with the statutory duties imposed upon it. The doctrine employed in this sense is akin to an estoppel."

199. And then perhaps most conclusively of all as regards its application to the instant case Tucker J had this to say at p. 325 of R v Customs and Excise Commissioners, Ex parte Littlewoods Home Shopping Group Ltd [1997] STC 317:

"In my judgment, where there has been a change in the law, or where there has been a new judicial interpretation of the law, as the commissioners reasonably believe occurred in the present case and as did in my opinion occur, then the commissioners should not be bound by assurances given in different circumstances based on a different view of the law which has been held to be mistaken. This is especially so when, as in the present case, the public interests require that there should be a change in policy."

200. In his judgment the Judge dealt with all of these matters. His treatment of the law and the facts cannot be faulted. No grounds have been made out to justify our interfering with his findings in any way.

The concession

201. The terms of the concession were announced in a Press Release which was issued on 26 June 1999.

202. The terms of the Release were as follows:

"Some 3,700 persons are set to benefit from the principle that judgements rendered previously shall not be affected by the interpretation by the National People's Congress Standing Committee (NPCSC) of the Basic Law provisions in respect of the right of abode (ROA) issue.

'The persons to benefit are those who were in Hong Kong between July 1, 1997 and January 29, 1999 and laid ROA claims with the Director of Immigration whilst in Hong Kong during this period,' a Government spokesman explained today (Saturday).

Two groups of persons fall under this category.

'The first group are those who were present in Hong Kong and claimed ROA in the period between July 1 and July 10, 1997,' the spokesman said.

'The Court of Final Appeal (CFA) has ruled that they are not subject to the Certificate of Entitlement (C of E) Scheme because the Immigration (Amendment)(No.3) Ordinance enacted on July 11, 1997 does not have retrospective effect.'

'Provided they satisfy the criteria for ROA under the CFA judgement, they will have and will retain their ROA status despite the interpretation,' the spokesman said.

Another group of beneficiaries are those who were in Hong Kong and approached the Immigration Department to claim ROA between July 11, 1997 and January 29, 1999.

'They include the 86 litigants themselves in respect of the two test cases on which the CFA ruled on January 29, 1999 and those who were parties concerned in the relevant legal proceedings.'

'In other words, Mainland persons who were in Hong Kong and who submitted claims to the Director of Immigration for the ROA between July 1, 1997 and January 29, 1999 may be regarded as being parties concerned. The total number of persons involved are about 3,700.'

The ROA claims by some of these persons have already been verified or being verified at the final stage. Over 900 persons have already obtained or may shortly obtain the ROA.

'The applications from the remaining ROA claimants (over 2,700) will be processed in accordance with the CFA judgement,' the spokesman said.

'About 900 of them are currently in Hong Kong. They will not need to return to the Mainland before their applications are processed and results are made known.'

'For the other some 1,800 claimants who have returned to the Mainland, arrangements will be sought to facilitate the processing of their applications in due course,' he said.

The spokesman pointed out that persons who arrived in Hong Kong and claimed ROA between January 30 and June 26, 1999 would have their claims processed subject to the NPCSC interpretation.

End/Saturday, June 26, 1999"

203. Miss Li claimed that it was clear from the concession that all that an applicant had to establish to enable him to come within its the terms was:

1. He was in Hong Kong within the "window period" of 1 July 1997 and 29 January 1999 and

2. That he had made a right of abode claim by the end of the "window period".

204. In the Chinese announcement instead of referring to a claim being made to the Director reference was made to "the Authorities".

205. Miss Li also drew attention to the fact that there was no requirement that the claim should be made personally or that they must be present in Hong Kong when the application was made. Accordingly if the application was made to the Director of Legal Aid or the applicant was in Hong Kong at any time during the "window period" the terms of the concession would have been complied with. In addition to this there was no requirement that there should be a record kept by "the Authorities" of a claim being made.

206. She submitted that the Director was not the policy maker and that he had to apply the concession in accordance to its true meaning.

207. While she accepted that the policy maker may change the policy after it had been declared the change had to be lawful and take into account any legitimate expectation which had arisen. The Director had not said that there has been any change in the policy.

208. Miss Li accepted that the Judge had asked the right questions on this subject at p. 100 of his judgment. They were:

"(1) What does this Concession mean?

(2) Has the respondent, generally, applied the correct meaning to the Concession?

(3) Is it demonstrated in particular cases, where the facts are common ground, or are accepted for the purpose of this application for judicial review, that the respondent has not applied the correct meaning of the Concession?"

209. She submitted though that he had been in error in answering these questions.

210. He had been wrong in holding that the application for a right of abode had to be made to the Director and that applications to the Director of Legal Aid did not meet the requirements. In particular the Director had set in motion a screening procedure and his investigations had been concerned with whether the applicants who had applied for legal aid were likely to be able to establish their claims.

211. She was also critical of the Judge's approach to this topic when he had stated at p. 106 of his judgment that the Director had to apply the concession in a practical way. She claimed that this was irrational. This was particularly the case when it had been established that to an extent the Director's records were deficient. The whole approach of the Judge was misconceived when he referred to the concession as being "a broad statement permitting a range of meanings. If the applicants come within the range of meanings of this broad statement the Director must give them the benefit of the concession." She contended that it was unlawful for the Director to take the position that for reasons of limiting numbers of persons who would be given the benefit of the concession additional criteria could be imposed to exclude some of them although the applicants came within the meaning of "claimed right of abode".

212. At this point it may be helpful to attempt to formulate the law on this subject. As was pointed out by Mr Ma the scope for the Court's interpretation is severely circumscribed. What is clear is that it is no part of the Court's function to attempt to define what any particular policy may be. What can be said is that if it can be shown that the policy is so unfair as to constitute an abuse of power it is open to the Court to strike it down. Authority for the proposition can be derived from the judgment of the Court of Appeal in R v North and East Devon Health Authority, Ex parte Coughlan [2000] 2 WLR 622 at p. 654:

"The fact that the court will only give effect to a legitimate expectation within the statutory context in which it has arisen should avoid jeopardising the important principle that the executive's policy making powers should not be trammelled by the courts: see Hughes v. Department of Health and Social Security [1985] A.C. 766, 788, per Lord Diplock. Policy being (within the law) for the public authority alone, both it and the reasons for adopting or changing it will be accepted by the courts as part of the factual data - in other words, as not ordinarily open to judicial review. The court's task - and this is not always understood - is then limited to asking whether the application of the policy to an individual who has been led to expect something different is a just exercise of power. In many cases the authority will already have considered this and made appropriate exceptions (as was envisaged in British Oxygen Co. Ltd. v. Board of Trade [1971] A.C. 610 and as had happened in Ex parte Hamble (Offshore) Fisheries Ltd. [1995] 2 All E.R. 714), or resolved to pay compensation where money alone will suffice. But where no such accommodation is made, it is for the court to say whether the consequent frustration of the individual's expectation is so unfair as to be a misuse of the authority's power."

213. Support can also be derived from a passage at p. 812 of R v Ministry of Defence, Ex parte Walker [2000] 1 WLR 806:

"It is not for the courts to consider whether the scheme with its exclusion is a good scheme or a bad scheme, unless it can be said that the exclusion is irrational or so unreasonable that no reasonable minister could have adopted it. Despite great sympathy for Sergeant Walker and his wife, who has given him so much support, I do not find it possible to say that the aim of the scheme was to provide compensation 'as nearly as possible' equivalent to that given for injury resulting from criminal acts committed in Great Britain. It cannot be said to be irrational to limit the compensation to acts which are really analogous and to exclude the sort of injury the risk of which soldiers undertake as such whether they be on duty in a combatant or a peacekeeping capacity."

What was the policy

214. In a most helpful affidavit the Secretary for Security ("the Secretary") sets out in some detail the background to the problems which had been encountered and the proposals which were put forward with a view to finding a solution to them.

215. In particular the Secretary described the factors which were weighed when determining who should come within its terms. These were set out in para. 23 of her affidavit:

"23. As will be clear from the above and the materials I have exhibited, there were two qualifying elements which a person would have to satisfy in order to be within the Concession Decision, namely that they were present in Hong Kong in the relevant period between 1 July 1997 and 29 January 1999 and that they had made a claim to the effect that they had the right of abode in Hong Kong of which the Director of Immigration had a record. The latter requirement is clearly supported by the fact that the Concession Decision was explained to benefit a specified estimated number of persons. That the claim should be one of which the Director of Immigration had a record was a necessary element of the Concession Decision as a matter of good administration. The Concession Decision was made as an exception to the fourth paragraph of the NPCSC Interpretation which stated that save for 'the right of abode in the [HKSAR] which has been acquired under the judgment of the Court of Final Appeal on the relevant cases dated 29 January 1999 by the parties concerned in the relevant legal proceedings', the question of whether any other persons qualified for permanent resident status was to be determined in accordance with the NPCSC Interpretation. As such, the Government considered that the meaning and scope of its Concession Decision should be a matter for the Government to determine administratively. If the Concession Decision was not limited to those persons of whose claims for right of abode the Director of Immigration had a record, there would be no clear, objective or uncontroversial basis on which the Director of Immigration would be able to determine whether a claimant was in Hong Kong and had made a claim for right of abode during the period 1 July 1997 to 29 January 1999."

216. What emerges from the affidavit is the amount of careful thought given to the problem and the necessity of putting in place a policy the dimensions of which could be defined and accommodated by information known to the Government. Hence the requirement of only being able to include in the terms of the concession applicants of whom they had a record. This of course included some of the applicants who had been screened by the Director of Legal Aid.

217. The affidavit also refers to a number of contemporary documents relating to the implementation of the policy. These would indicate a measure of consistency. However even if this was not the case it would have been by no means fatal. The Court's approach to this can be seen from the speech of Lord Hoffmann at p. 815 of R v Ministry of Defence, Ex parte Walker [2000] 1 WLR 806:

"The Minister of State for the Armed Forces therefore announced a specifically Bosnian policy in the House of Commons on 5 December 1994. He said (Hansard (H.C. Debates), 5 December 1994, col. 122) that 'compensation is not payable where injury . . . occurs as a result of war operations or military activity by warring factions. Current operations in Bosnia obviously fall into that category.'

It may be that the Bosnian policy thus declared could be viewed as an application or interpretation of the 1980 policy. Or it may be said to represent a change in the 1980 policy to cover the new situation in Bosnia. I do not think that it matters. The ministry was entitled to change its policy: see In re Findlay [1985] A.C. 318. I do not think it is legitimate to argue that because the minister thought (as he may have done) that he was merely interpreting the old policy, he could not give effect to the stated Bosnian policy except in so far as it falls within the court's interpretation of the 1980 letter. The minister clearly intended his statement to apply to injuries sustained by servicemen in Bosnia, whether it strictly fell within the language of the old policy or not."

218. What is clear from the evidence which was before the Judge was that the Government was responding as best it could to a very difficult situation. By no stretch of the imagination could it be said that the action which was taken by the Government including the formulation and implementation of the concession could in any way be described as being either unfair or Wednesbury unreasonable.

219. With respect I consider that the Judge was entirely correct in the way in which he analysed the situation. He also applied the law correctly and there is no warrant for us to interfere in any way with this part of his judgment.

Period 1 and 2 applicants born after one of their parents had already resided in Hong Kong for 7 years

220. We were informed that 41 of the applicants were in this category.

221. This part of the appeal can be dealt with quite concisely.

222. Miss Li contended that if these applicants were physically present in Hong Kong prior to 10 July 1997 they were not affected by the No. 3 Ordinance. She argued that the Interpretation did not affect their substantive rights and status. They complied with the requirements of Article 24(2)(3). So far as Article 22(4) was concerned the effect of the Interpretation is that all Mainland residents including persons coming within Article 24(2)(3) who wish to enter Hong Kong for any reason must apply for and hold the relevant exit permits before they can enter Hong Kong. The Interpretation has effect from 1 July 1997. Period 1 applicants were already in Hong Kong before Article 22(4) came into effect. Any provision relating to entry to Hong Kong would not apply to them. So far as Period 2 applicants were concerned a similar case could be made out for them by virtue of the retrospective nature of the No. 3 Ordinance.

223. Miss Li place considerable reliance upon the Court of Appeal judgment in Cheung Lai-wah (which later became NG Ka-ling) in support of this contention. Chan CJHC (as he then was ) and Nazareth VP who formed a majority of the Court for different reasons came to the conclusion that persons who had entered Hong Kong prior to 1 July 1997 were not affected by Article 22(4).

224. The Court of Final Appeal held in LAU Kong-yung that the Interpretation took effect from 1 July 1997. This meant that as from that date Article 24(2)(3) was qualified by Article 22(4). Accordingly anyone in Hong Kong seeking to assert a right of abode under Article 24(2)(3) must have the relevant exit visa and permission from the Mainland Authorities.

225. This point was made by Ching PJ at p. 341 of LAU Kong-yung & Others v Director of Immigration (1999) 2 HKCFAR 300:

"I am equally in no doubt that the Interpretation took effect as from I July 1997. In making it, the Standing Committee did not purport to act, and has never purported to act, as a court. Nor did it purport to be amending the law. It was doing exactly what it said it was doing, namely interpreting the law. That must mean that they were explaining what the law is and has been since the Basic Law came into effect.

I am in agreement with the Chief Justice that the Interpretation means that as from 1 July 1997, so far as relevant to the arguments put forward to us, that persons from the Mainland seeking to settle in Hong Kong need both a one-way exit permit and a certificate of entitlement which are to be applied for in the Mainland. The difference between that and what was laid down by this Court is the requirement for the one-way permit. In the period between our judgment (29 January 1999) and the Interpretation (26 June 1999) there was no system in place by which application could be made for a certificate of entitlement.

As a matter of law the position is clear. The respondents had either entered Hong Kong illegally or had stayed in Hong Kong in breach of the conditions upon which they were permitted to enter. They had no legal claim to stay. Whatever scheme for an application for a certificate of entitlement was or was not in place, they had no legal claim to remain in Hong Kong. The Director was therefore justified, as a matter of law, in making the removal orders under s. 19(1)(b) of the Immigration Ordinance (Cap. 115). This would have been so whether the orders had been made before our judgment, after our judgment up to the Interpretation or after the Interpretation."

226. I have no doubt that this is an accurate assessment of the position. Miss Li's submissions cannot be sustained and this part of the appeal must also fail.

Representative Applicants CACV 415/2000

227. These are now confined to RA's 3 - 8, 10 and 11 for the reasons given by the Judge on pages 13 onwards.

228. Taken as a whole the particular circumstances of these RA's cover the whole spectrum of considerations which arose in connection with the application of the concession.

229. While it is true that all of these individual cases seek to place reliance upon the submissions made in connection with each of the topics already dealt with it must be the case having regard to the observations I have already made that the scope of the concession is not nearly as wide as Miss Li claimed.

230. In these circumstances it will be appreciated that as the Judge's conclusions have been fully accepted by me it will be possible to some extent to adopt what might be described as a broad brush approach.

231. For example there was evidence before the Judge that between 1.1 and 1.4 million inquiries are received in the Inquiries Section of the Immigration Department annually. Once it is accepted that it was necessary for this problem to be resolved in a practical way it is entirely acceptable that there should be a requirement for the Director to have a record of applications for a right of abode. There was evidence that no written record is made of general inquiries to the Immigration Department and this is not surprising bearing in mind the volume of inquiries and the fact that approximately 50% of the inquiries are made over the telephone.

232. Presence in Hong Kong was also necessary. One of the justifications for this being that if the applicant is not in Hong Kong it is unlikely that the Director will have sufficient background information concerning the person.

233. It was necessary to identify the presence in Hong Kong and to relate this to what has been described as the "window period" covered by the concession namely 1 July 1997 to 29 January 1999 the date when the Court of Final Appeal delivered its judgments in the NG Ka-ling and CHAN Kam-nga cases.

234. During the course of eloquent submissions Miss Li made the point that until the Court of Final Appeal had delivered its judgments in these cases, it was not possible for applicants to assert their rights of abode. Accordingly it made little sense to provide a cut off period which ran from the delivery of these judgments.

235. Be that as it may there were, according to the affidavit evidence which was before the Judge, compelling practical reasons why it was from an administrative point of view necessary to adopt this date.

236. As has already been indicated in this judgment it is not open to the Court in applications for judicial review to modify the way in which the Director implements the policy in question. It is only if it can be demonstrated that the policy is unreasonable or unfair and thus constitutes an abuse of process that the Court can strike the policy down and refer it again for consideration.

237. Although the Judge dealt with each of these applicants' cases in great detail I do not propose doing the same. It will suffice to identify in each of these cases the main reason why the claim was rejected and comment upon whether that rejection was valid having regard to the criteria which has been outlined and the overall reasons why Miss Li's submissions are not well founded.

RA3

238. The Judge had this to say at p. 112 of his judgment:

"Ms Lo, aged 21, has been in Hong Kong since April 1997. As far as suggested claims made in Hong Kong to the Director of Immigration are concerned, the contention is that her father asked an immigration officer about application procedures. The officer said that documents should be brought including proof of the parent-child relationship. The respondent is entitled to take the view, as he has, that this was an enquiry and does not constitute claiming the right of abode, of which in any event there is no record. It is said that the father visited the 13th floor of the Immigration Department on 7 January 1999 and told them that she wished to apply for the right of abode. There he was told, according to his account, that he should go to an office in Yaumatei. He went and presented documents, and was told that his daughter had overstayed and should surrender, but she was afraid to do so and there the matter was, for the time being, left. Evidence by the respondent is that at the 13th floor there are no records of any visits by or on behalf of this applicant and the Yaumatei Office handles applications for extension of stay. In the case of such an application, a record would be made. In the case of other enquiries, the enquirer would be referred to the information office and no record made. Those applying for extensions of stay would be given a form on which might be stated an intended right of abode claim. There is also a suggested visit by the father to the Legal Aid Department in May 1998 to enquire about procedures and the progress of litigation.

Assuming the evidence of these visits to be accurate, the Director of Immigration has, in the light of the Concession interpretation which he has adopted, made no material error in his assessment as to whether there has in the case of this applicant been a Concession claim."

239. The Judge's conclusion appears to be fully justified. In addition to this RA3 admitted that she did not make a claim until after the Court of Final Appeal judgments.

RA4

240. No claim was made by her during the concession period.

RA5

241. The Judge said this at p. 113 of his judgment:

"Tam Siu Ming was only in Hong Kong between 10 July 1997 and 17 July 1997, and then again on and after 16 July 1999. The only claim, therefore, that could survive, as it were, for Concession purposes would be one made in that week in July 1997. The contention is that on about 12 July 1997 he went with his family members, armed with documentary evidence, to the Wanchai Immigration Tower's inquiry counter to make his application but was told to return to the Mainland to apply. There is no record of any claim having been lodged. In the circumstances, the Director's decision on the Concession claim of this applicant cannot be upset by this court."

242. Again the Judge's reasons cannot be faulted. Neither the Director nor the Director of Legal Aid had any record of any application being made for a ROA.

RA6

243. The Judge said this at p. 114 of his judgment:

"This applicant was in Hong Kong in the summer of 1997 and the summer of 1998, so far as the Concession period goes. It is said that in July 1997 he and his family went to the Immigration Department. What happened is summarized by those acting for the applicant thus : 'Father, mother, Master Lee and sister attended Wanchai to assert their claim. They were not permitted to do so. There were no procedures available.' It follows that no claim, in the form required by the Concession, was in fact made. In the same month, the father went to the Legal Aid Department 'for legal assistance for my two children's right of abode in Hong Kong'. Information was noted and a card evidencing his request given to him. But, in August, his legal aid application was refused. This could not be construed as a claim to the respondent, regardless of the fact that in any event there is no record of this with the respondent."

244. The same observation can be made here as for RA5.

RA7

245. This applicant is the litigant in whose name proceedings were brought in relation to the Interpretation of which the Court of Final Appeal was seized. The Judge comments on his case in some detail from p. 114 to p. 118. It is not necessary to reproduce this part of the judgment. The reason for this is that this applicant has now acquired a Certificate of Entitlement and a one-way permit. The Judge did not consider it to be appropriate to make any declaration for the purpose of the representative action as the case turned upon facts which were particular to this applicant.

RA8

246. The Judge says this at p. 118 and p. 119 of his judgment:

"The only time Master Lau was in Hong Kong during the Concession period was from 14 July 1998 to 2 August 1998. It is said that on 20 July that year, he and his mother went to the 21st floor of the Immigration Department 'to enquire', and asked for assistance to apply for right of abode, but they were told that they could not apply in Hong Kong. There is no record of his attendance, or of any assertion then made for the right of abode. This type of enquiry is the subject of the evidence, to which I have earlier referred, about the informal nature of proceedings at the information office of the Immigration Department. A similar enquiry at the same place was apparently made on 25 July 1998 and again on 27 July. It is said that on 27 July, the mother asked for applications for right of abode to be processed but they were turned away. Again, there is no record of these visits or enquiries. The respondent says that these approaches did not constitute claims and that there is in any event no record of the approaches, and that they therefore do not fall within the Concession. Given the scope and acceptable interpretation of the Concession by the respondent, that conclusion must follow.

The family also went to the Legal Aid Department on 27 July 1998 'to apply for legal assistance regarding my application for right of abode'. That department issued him with a card and a file number. Although the evidence filed by the respondent says that it was not until July 1999 that he was aware of such an application having been made, there is evidence from the Legal Aid Department that a letter dated 27 July 1998 from the Director of Legal Aid was sent to the respondent which stated that the applicant had applied for legal aid and asking that no removal order be made until the outcome of the application for legal aid of any subsequent legal proceedings. The respondent takes the view that this is, in any event, not a claim for right of abode made to the Director of Immigration. It is a notice of application for legal aid. That is not an unreasonable conclusion."

247. Certainly the informal visits to the Immigration Department would not qualify on the criteria referred to. So far as the application for legal aid is concerned the Judge was entitled to take the view he did that an application for legal aid could be distinguished from an application for a right of abode.

RA10

248. No claim was made during the concession period.

RA11

249. The Judge said at p. 120 of his judgment:

"The only claim relied upon by this applicant during the concession period arises from a visit to the Legal Aid Department on 11 December 1998 'to apply for legal assistance in the right of abode litigation'. This applicant was given one of the post-7 December 1998 letters. It is not suggested that that letter was taken to the Immigration Department during what remained of the Concession period. This application for legal aid does not constitute a claim within the Concession."

250. A similar observation can be made on this application to the observation made on RA8.

CACV 417/2000

251. It is apposite to deal with these representative applicants in a similar manner to the RAs in CACV 415/2000.

252. There were seven representative applicants.

RA1

253. The Director has no written record of any application for a right of abode. Clearly the Judge was right to reject this application.

RA2

254. This was not a concession case.

RA3

255. This case was similar to RA1's and the Judge was right to reject the application.

RA4

256. The Judge said this at p. 122 of his judgment:

"Mr Lam, who is aged 36 years, is a Period 1 applicant. During the Concession period he was in Hong Kong from (before) July 1997 until 24 October 1997. His evidence is that in late July 1997 he went to the 2nd floor information desk of the Immigration Department in Wanchai 'to inquire whether or not I could claim the right of abode in Hong Kong'. There, he was told that he was required to return to the Mainland to make an application for a one-way permit. The view taken by the respondent that this does not amount to a claim within the Concession (and there is no record) is not impeachable.

The evidence is that he went again to the Immigration Department in October 1997 and went to the 13th floor 'to enquire about my eligibility for the right of abode in Hong Kong'. It is to be remembered that he, like other applicants in 70/2000, is a Group B applicant, not then considered eligible for right of abode in any event. He asked if he could make an application in Hong Kong. It was discovered that he had overstayed. He was told to make the application on the Mainland and when asked why he had overstayed, he was, he says, provided with a range of suggested responses, none of which included an assertion of a right of abode, in consequence of which he wrote : 'Because I want to be with my family'. It is accepted that Mr Lau went to the General Investigation Section on the 13th floor of Immigration Department in Wanchai on 16 October 1997. It is said that there is no list there of suggested answers. It is not for me in these proceedings, for the purpose of the present question, to resolve that issue. The General Investigation Section is responsible for processing two-way permit holders who have overstayed and have surrendered and sought permission to leave Hong Kong. The respondent puts his case on this basis, that even on the applicant's case, details of which are disputed, there has been no Concession claim : no claim for right of abode was lodged, and there is no record of one. In my judgment, there exist no valid grounds to challenge the validity of that conclusion."

257. The Judge's reasoning cannot be faulted. The applicant could not be treated as having made an application for a right of abode on the basis of the reasoning outline earlier in this judgment.

RA5

258. The Judge said this at p. 123 of his judgment:

"Ms Sin was in Hong Kong twice during the Concession period - from 24 January 1998 to 6 February 1998; and from 30 October 1998 to 10 November 1998.

She says that in early February 1998 she went to the 2nd floor enquiry counter of Immigration Tower and asked whether she was 'eligible to apply for the right of abode in Hong Kong'. She was told that she had to apply on the Mainland. For reasons well canvassed, this was not a Concession claim.

She then says that when she came to Hong Kong in October 1998, she proceeded through immigration control and that during an exchange with the immigration officer about her reason for visiting Hong Kong, she said that she was visiting her parents and was entitled to the right of abode. He told her to apply on the Mainland. These assertions are disputed. But be that as it may, there is no record of it. It would be odd if the Concession decision had ever contemplated bringing within its fold oral statements in circumstances such as those described by Ms Sin. There is no ground for disturbing the respondent's Concession decision in this particular case."

259. This reasoning must be right.

RA6

260. The Judge said this at p. 124 of his judgment:

"Ms Sin is an elder sister of Ms Sin Hoi Chu. She was in Hong Kong with her sister in late January 1998 for two weeks; and was here without her sister in July 1998 for three days. She says that in July, she went with her mother to the enquiry counter on 2nd floor of Immigration Tower, and her mother asked for 'some forms in order to apply for her daughters to stay in Hong Kong for resettlement. At the same time my mother indicated to the officer that I was one of the daughters applying for the right of abode'. The officer on hearing that the mother was not a permanent resident at the time of the birth of the daughters, told her that an application had to be made on the Mainland and the request for forms was declined. No forms were there submitted, meaning that no claim was lodged and that there exists no record of any claim.

She also says that her mother works near to the Immigration Tower and was a very frequent visitor to the Immigration Tower but was always told that the application had to be made on the Mainland. Obviously, there is no record of such visits or conversations or of any assertions or claims made during them. So, similarly in this case, there is no ground to overturn the Director’s decision in relation to this applicant and the Concession.”

261. This also is a hopeless case. The Director has no record of any application. The Judge was right to make the order he did.

RA7

262. This was not a concession case.

CACV 416/2000

263. This is a separate appeal. The applicant however places reliance upon all the submissions and contentions which were advanced by Miss Li in CACV 415/2000.

264. The Judge dealt with the background facts and the relief claimed at pages 22 - 24 of the judgment:

"The applicant was born on the Mainland in 1980, the year her father came to Hong Kong, and he has been ordinarily resident here since then. Her mother has been here since 1996 on a one-way permit. The applicant arrived in Hong Kong on 19 February 1998 on a two-way permit. The respondent says that her permission to remain expired on 10 March 1998, and that she is an overstayer. It is said that she suffers from acute schizophrenia; and that in September 1998 she was brought by her father to the Director of Immigration for verification of her right of abode. She was, however, told to leave Hong Kong within a week. Before that date arrived, she was admitted to hospital where she remained an in-patient for some months. It is said that on 4 December 1998, the father wrote to the Director of Immigration stating why the applicant should not be forced to leave Hong Kong. She was discharged from hospital on 23 February 1999. It is claimed that there were subsequent visits to the Immigration Department for verification of her right of abode. In December 1999, she was detained for the purpose of removal. Just before the removal order was to be executed, the applicant's solicitors obtained an injunction preventing that step.

Decisions challenged :

(i) The removal order dated 17 December 1999;

(ii) A decision by the Director of Immigration on or about 28 December 1999 that the applicant is not entitled to the benefit of the Concession announced by the Chief Executive; and

(iii) A decision of the Director of Immigration on or about 28 December 1999 to execute the removal order. The order has, by reason of interim relief granted in December 1999 by Ribeiro J, as he then was, not been executed.

Relief claimed :

(i) An order to quash the removal order; and to quash the decision to execute it;

(ii) A declaration that the applicant is entitled to the benefit of the Concession by the Chief Executive on 26 June 1999; and

(iii) A declaration that the applicant is a Hong Kong permanent resident."

265. It is necessary to consider the letter of 4 December 1998. The Judge deals with it on p. 127 of the judgment:

"The respondent says that the letter does not in any event constitute a claim to the right of abode. It is a letter which speaks of the applicant's background, that numerous applications for a one-way permit were made but refused for the reason that he, the father, had not at the time of the birth of the applicant acquired permanent resident status. He acknowledges that the applicant has overstayed, thereby breaking the law and he ends, according to one translation :

'In view of the above circumstances, in order to save my daughter, I hereby can only apply to the Immigration Department for assistance. I hope the Immigration Department will deal with my daughter's case with discretion in the spur of humanity. Perhaps could right of abode be granted? Or perhaps is there any other way by which my daughter can apply on the Mainland for a one-way permit to come to Hong Kong to live with her parents who give her confidence and who can care for and guide her? Only this would help ameliorate her mental illness.... It is sincerely hoped that the Immigration Department will make allowances for this exceptional case and handle it with discretion and leniency.'

The phrase 'perhaps could right of abode be granted' is, as to translation, challenged by the respondent and the same translator now says that the best transl?tion she can give is 'perhaps could she be given/granted residence and stay/remain'."

266. At the hearing below the Judge accepted that this letter had gone astray and that when the Director considered whether or not the applicant came within the terms of the concession he had not considered the letter. The Judge also accepted that this being the case the Director's decision not to include her within the concession was open to challenge. However he did not refer the application back to the Director for reconsideration as it was clear on the criteria which was being adopted by the Director that the application was doomed to failure. He did though recommend that the Director might like to reconsider the application on compassionate grounds. We have been informed after the conclusion of the hearing that the Director is not prepared to rescind the removal order he made in relation to this lady.

267. There was a further dimension to this matter. It will be seen from the contents of the letter that an appeal is being made to the Director not to remove the applicant from Hong Kong on compassionate grounds. It was claimed that such an appeal could not be entertained by the Director properly as he had not been in possession of all the available evidence when he had made his determination. Miss Li argued that the discretion had not been properly exercised as it was always possible that if the Director had been in possession of all the material he might have exercised his discretion in favour of the applicant. Miss Li placed reliance upon the passage at para. 60 of the judgment of Bingham LJ (as he then was) in R v Chief Constable of the Thames Valley Police ex parte Cotton [1990] IRLR 344:

"While cases may no doubt arise in which it can properly be held that denying the subject of a decision an adequate opportunity to put his case is not in all the circumstances unfair, I would expect these cases to be of great rarity. There are a number of reasons for this:

1. Unless the subject of the decision has had an opportunity to put his case it may not be easy to know what case he could or would have put if he had had the chance.

2. As memorably pointed out by Megarry J in John v Rees [1970] Ch 345 at p.402, experience shows that that which is confidently expected is by no means always that which happens.

3. It is generally desirable that decision-makers should be reasonably receptive to argument, and it would therefore be unfortunate if the complainant's position became weaker as the decision-maker's mind became more closed.

4. In considering whether the complainant's representations would have made any difference to the outcome the court may unconsciously stray from its proper province of reviewing the propriety of the decision-making process into the forbidden territory of evaluating the substantial merits of a decision.

5. This is a field in which appearances are generally thought to matter.

6. Where a decision-maker is under a duty to act fairly the subject of the decision may properly be said to have a right to be heard, and rights are not to be lightly denied. Accordingly if, in the present case, I had concluded that Mr Cotton had been treated unfairly in being denied an adequate opportunity to put his case to the acting chief constable, I would not for my part have been willing to dismiss this appeal on the basis that it would have made no difference if he had had such an opportunity (although the court's discretion as to what, if any, relief it should grant would of course have remained)."

268. I am not however persuaded that the way in which the Judge dealt with this matter is open to valid criticism. There clearly was scope for the Judge to approach the problem in the way he did. The subject is dealt with at the conclusion of the Chapter on "The Discretion of the Court" in de Smith, Woolf and Jowell 5th Edition at paras 20-031 and 20-032:

"20-031 The exercise of discretion must not however be unbridled. As Sir Thomas Bingham M.R., has made clear extrajudicially, in a lecture, it is an important element of the rule of law 'that the rights and obligations of citizens should depend on clear rules publicly stated and not on the whims, prejudices or predilections of the individual (judge). "Where law ends tyranny begins".' Sir Thomas is not in favour of judges dispensing justice under the proverbial palm trees. He recognised that the discretion of the court may be wide but he emphasises that its exercise should be tightly controlled by the application of clear principles. He defines discretion as follows:

'An issue falls within a judge's discretion if, being governed by no rule of law, its resolution depends on the individual judge's assessment (within such boundaries as have been laid down) of what is fair and just to do in the particular case. He has no discretion in making his findings of fact. He has no discretion in his rulings on the law. But when, having made any necessary finding of fact and any necessary ruling of law, he has to choose between different courses of action, orders, penalties or remedies he then exercises a discretion. It is only when he reaches the stage of asking himself what is the fair and just thing to do or order in the instant case that he embarks on an exercise of discretion.'

20-032 That puts the position accurately. It is only necessary to add that in determining what is 'the fair and just thing to do or order in the instant case' the judge must not ignore the practical consequences of his decision. For example, he certainly must pause before coming to the conclusion that there is no purpose in ordering a rehearing because the result would inevitably be the same. What is confidently expected is by no means always that which happens. It is very easy for a judge to convince himself that he knows what case can or would be put but it must not be forgotten that justice must not only be done but must be seen to be done. The court must be particularly sensitive to the individual's fundamental rights. This is not because those fundamental rights would otherwise have to be protected by the European Court of Human Rights at Strasburg but because those rights are equally important to and in the majority of circumstances equally protected by the common law. There can be situations where the court has to stand firm and even if administrative chaos may result, still uphold the law and ensure that it is obeyed. Fortunately in the great majority of cases the court has exercised discretion in a principled and reasoned manner. The wide-ranging discretion conferred on the courts on applications for judicial review has thus proved on the whole to be beneficial and productive. It has enabled judicial review to develop and to extend its scope to areas in a way which a decade ago would not have been considered possible. If the remedies available on judicial review, instead of being capable of fine-tuning and delicate application by the use of discretion, has been crude instruments with haphazard impact, this would not have been possible. The degree of discretion properly exercised has been to the advantage of individual applicants, the public and administrators."

269. It can further be demonstrated in this case that the Judge was right. Even after the Director was further seized of the matter and in possession of all relevant material he was still not disposed to exercise his discretion in the applicant's favour even notwithstanding the fact that the Judge made it as clear as he could that he hoped that the applicant would be allowed to remain. In my view this appeal should be dismissed.

Conclusion

270. As can be seen from these three judgments we are unanimously of the view that these appeals should in their entirety be dismissed and we so order. We also make an order nisi that there be no order for costs. I would like to associate myself with the observations made by Keith JA concerning Stock J's (as he then was) judgment.

271. It set out all of the relevant facts and law in an admirable manner. This was of the greatest assistance to us.

272. I would also like to add my thanks to all counsel and solicitors for their excellent preparation and presentation of this difficult case. This made our task much simpler than it would otherwise have been.