CHEUNG LAI WAH AND OTHERS v. THE DIRECTOR OF IMMIGRATION

HEADNOTE

[(1) The requirement that persons who claim the right of abode in Hong Kong by descent should

(a) prove the facts on which their claim is based to the satisfaction of the Director of Immigration, and

(b) have obtained a one-way exit permit from the Chinese authorities,

before being admitted to Hong Kong is not incompatible with Arts. 24, 31 or 39 of the Basic Law or Art. 8(4) of the Hong Kong Bill of Rights.

(2) Art. 24 merely identifies the categories of persons who have the right of abode in Hong Kong, and it left the question as to how the facts on which the claim to right of abode should be established to be determined by the legislature in such legislation as was enacted to implement the provisions of Art. 24.

(3) Art. 22(4) of the Basic Law applies to persons claiming the right of abode in Hong Kong under Art. 24. Accordingly, the Basic Law itself requires persons living in mainland China who seek to exercise their right of abode in Hong Kong to obtain a one-way exit permit from the Chinese authorities before coming to Hong Kong.

(4) Although the amendments to the Immigration Ordinance (Cap.115) made by the Immigration (Amendment) (No. 3) Ordinance (No. 124 of 1997) ("the No. 3 Ordinance") were to come into force on 1st July, despite the No. 3 Ordinance having been enacted on 10th July, the fact that it had retrospective effect did not render it either unconstitutional or incompatible with Art. 12(1) of the Hong Kong Bill of Rights. The rights which it qualified retrospectively had been qualified by Art. 22(4) of the Basic Law, and Art. 12(1) merely prohibited the prosecution of conduct which would not have been criminal at the time but for the retrospective effect of the enactment challenged.

(5) The definition of the relationship between parent and child in para. 1(2) of the new Sch.1 to the Immigration Ordinance (substituted by section 5 of the Immigration (Amendment) (No. 2) Ordinance (No. 122 of 1997)) is incompatible with Art. 24(3) of the Basic Law, to the extent that it prevents children who claim the right of abode in Hong Kong through their fathers from enjoying the right of abode if they were born out wedlock. The court declared the provision to contravene the Basic Law to that extent, and made an order nisi excising the contraventions from para. 1(2).]

1997 A.L. Nos. 68, 70, 71 and 73

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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J U D G M E N T

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INTRODUCTION

1. Prior to 1st July, children born and living in mainland China did not have the right of abode in Hong Kong. Now many of them do. They wish to come to Hong Kong and settle here. The Government naturally wants their arrival to be orderly. It is concerned that Hong Kong might be overwhelmed by the sudden influx of thousands of children, who will have to be accommodated and educated. In an attempt to stagger their arrival, and to ensure that only those with the right of abode are allowed to settle in Hong Kong, a number of measures have been enacted. In these consolidated applications for judicial review, those measures have been subjected to a sustained legal challenge.

2. The measures targeted in these proceedings were enacted by the Provisional Legislative Council. Its power to enact laws is also challenged. However, that issue was recently addressed by the Court of Appeal in HKSAR v. Ma Wai Kwan David[1997] 2 HKC 315. The Applicant's advisers were content in the circumstances for the issue not to be re-addressed at first instance in this case, though they reserved the right to argue that the measures challenged were null and void, and of no legal effect, because the Provisional Legislative Council did not have the power to enact them.(Although the Applicants' solicitors filed evidence which related to the legality of the Provisional Legislative Council, no such evidence has been filed on behalf of the Respondent. The Respondent's advisers reserved the right to file any evidence on the issue on which it was proposed to rely in the event of the legality of the Provisional Legislative Council being argued at the appellate stage.) Accordingly, I have proceeded on the assumption that they were validly enacted.

IMMIGRATION TO HONG KONG FROM MAINLAND CHINA

3. Although this case concerns entry into Hong Kong, it should not be forgotten that entry into Hong Kong often involves exit from the mainland. For the past few decades, entry into Hong Kong from mainland China has been regulated by the Chinese authorities. An exit permit from Hong Kong must be obtained by anyone who wishes to leave the mainland and enter Hong Kong.(Art. 17 of the Law on the Control of the Exit and Entry of Citizens promulgated on 22nd November 1985, and Art. 3 of the Interim Measures for the Administration of Chinese Citizens on Passage to or from the Regions of Hong Kong or Macao for Personal Affairs promulgated on 25th December 1986.) One-way exit permits are issued to those who wish to settle in Hong Kong. Two-way exit permits are issued to those who wish to visit Hong Kong. The great majority of one-way exit permits are issued to wives wanting to join their husbands, and to children wanting to join their parents. The Immigration Department has no part at all to play in the issue or allocation of these permits. It is handled entirely by the Public Security Bureau in the mainland.

4. The Chinese authorities operate a quota system for the issue of these permits. The system is designed "to safeguard and maintain the economic prosperity and social stability of Hong Kong".(Art. 5 of the Interim Measures, op.cit. The language echoes para. 4 of the Joint Declaration.) Although the Immigration Department is consulted about the size of the quota, the final decision rests with the mainland authorities. The quota has changed over the years. For example, in 1984 when the Joint Declaration(The Sino-British Joint Declaration on the Question of Hong Kong signed on 19th December 1984.) was signed, the quota for the issue of one-way exit permits was 75 a day. It is now 150 a day, with 45 specifically allocated to children in Guangdong Province, at least one of whose parents have settled in Hong Kong and have acquired the right of abode, and 30 specifically allocated to persons in Guangdong Province, whose spouses have settled in Hong Kong and have acquired the right of abode. Persons in the latter category are allowed to bring with them a child under the age of 14 even if that child does not enjoy the right of abode in Hong Kong.(Speech of Mr. Wang Ying-gang, Deputy Chief of the Guangdong Provincial Public Security Department, 14th August 1997.)

5. The one-way exit permit system has allowed for the orderly settlement in Hong Kong of very large numbers of people from the mainland over the years. About 340,000 people have settled in Hong Kong in this way over the last ten years, more than 60,000 of them arriving in 1996 alone. That represents a little over 1% of the total population of Hong Kong, and is one of the highest annual immigration percentages in the world. However, there are still large numbers of persons who have applied for, and are awaiting the issue of, one-way exit permits. They include about 66,000 children under the age of 20 at least one of whose parents, and about 95,000 persons whose spouses, have settled in Hong Kong.(The statistics in this paragraph come from the affirmation of Mak Kwai Yun, the acting Assistant Director of Immigration.)

THE STATUTORY FRAMEWORK

6. The right of abode in Hong Kong. The right of abode is a concept recognised by the common law. It has been described, in relation to a British subject, as "the right... to enter the United Kingdom without let or hindrance when and where he pleased and to remain here as long as he [wished]".D.P.P. v. Bhagwan [1972] AC 60 at p.74B per Lord Diplock. The phrase "right of abode" was first used in connection with Hong Kong in the Joint Declaration. It was subsequently defined in section 2A of the Immigration Ordinance (Cap.115). A person who had the right of abode in Hong Kong had the right

"(a) to land in Hong Kong;

(b) not to have imposed upon him any condition of stay in Hong Kong, and any condition of stay that is imposed shall have no effect;

(c) not to have a deportation order made against him; and

(d) not to have a removal order made against him."

7. Persons who enjoy the right of abode. The Joint Declaration had identified the categories of persons who were to have the right of abode in Hong Kong from 1st July 1997.(Annex I, section XIV.) They included

"all Chinese nationals who were born or who have ordinarily resided in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region for a continuous period of 7 years or more ...."

They also included

"persons of Chinese nationality born outside Hong Kong of such Chinese nationals."

It is the latter category of persons with which this case deals.

8. The categories of persons identified in the Joint Declaration as having the right of abode in Hong Kong from 1st July 1997 were repeated in Art. 24 of the Basic Law.(The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China adopted on 4th April 1990.) The relevant parts of Art. 24 read as follows:

"The permanent residents of the Hong Kong Special Administrative Region shall be:

(1) Chinese citizens born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region;

(2) Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the Hong Kong Special Administrative Region;

(3) Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2);

(4) ....;

(5) ....;

(6) ....

The above-mentioned residents shall have the right of abode in the Hong Kong Special Administrative Region and shall be qualified to obtain, in accordance with the laws of the Region, permanent identity cards which state their right of abode."

It is the category of persons in (3) with which this case is concerned.

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

"Permanent residents of the Hong Kong Special Administrative Region

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

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

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

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

(d) .....

(e) .....

(f) ....."

(a) relates to birth, (b) relates to residence, and (c) relates to descent. It is the category of persons in (c) with which this case is concerned.

10. Establishing and exercising the right of abode. The new Sch.1 identified how some of the categories of persons in para. 2 are to establish that they are permanent residents of the HKSAR. However, how persons who claim to be permanent residents of the HKSAR by descent are to establish that fact was identified by section 4 of the Immigration (Amendment)(No. 3) Ordinance(Ord. No. 124 of 1997.) ("the No. 3 Ordinance"). It came into operation on 10th July 1997. It added a new Part 1B to the Immigration Ordinance. The two new sections of the Immigration Ordinance which are directly relevant are sections 2AA and 2AB. They provide as follows:

"2AA. Establishing status of permanent resident under paragraph 2(c) of Schedule 1

(1) A person's status as a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1 can only be established by his holding of-

(a) a valid travel document issued to him and of a valid certificate of entitlement also issued to him and affixed to such travel document;

(b) a valid HKSAR passport issued to him; or

(c) a valid permanent identity card issued to him.

(2) A person's right of abode in Hong Kong by virtue of his being a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1 can only be exercised upon the establishment of his status as such a permanent resident in accordance with subsection (1) and, accordingly, where his status as such a permanent resident is not so established, he shall, for the purposes of this Ordinance, be regarded as not enjoying the right of abode in Hong Kong.

2AB. Certificate of entitlement

(1) Any person who-

(a) immediately before 1 July 1997 did not enjoy the right of abode in Hong Kong under this Ordinance as then in force;

(b) is not the holder of a valid HKSAR passport or valid permanent identity card; and

(c) claims to be a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1,

may apply to the Director [of Immigration] for a certificate of entitlement.

(2) An application under subsection (1) -

(a) shall be made in such manner as the Director may specify by notice in the Gazette; ...

(3) ...

(4) ...

(5) For the removal of doubt, it is hereby declared that the making of an application under subsection (1) does not give the applicant the right of abode or right to land or remain in Hong Kong pending the decision of the Director on the application.

(6) Upon receipt of an application under subsection (1), the Director acting through an immigration officer authorized by him shall-

(a) where he is satisfied upon such proof specified by the Director that the applicant is a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1, issue a certificate of entitlement to the applicant in the prescribed form and in such manner as the Director may determine;

(b) where he is not satisfied that the applicant is a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1-

(i) refuse the application;

(ii) notify the applicant in writing the reason of the refusal; and

(iii) inform the applicant the right of appeal to the [Immigration] Tribunal."

The manner in which such applications are to be made has been specified in a notice in the Gazette.(Gazette Notice (Extraordinary) No. 21 of 1997.) If he is residing in mainland China, he must apply through the Exit and Entry Administration of the Public Security Bureau in which he is residing, but an application for a one-way exit permit would be regarded as an application for a certificate of entitlement.

11. The effect of these provisions on mainland children who did not have the right of abode in Hong Kong prior to 1st July 1997 but who claim to have at least one parent who had the right of abode in Hong Kong at the time of their birth is as follows. Such children will not, of course, have had either a valid HKSAR passport or a valid permanent identity card issued to them.(Persons who are claiming to be permanent residents of the HKSAR by descent are not entitled to permanent identity cards until their claim has been established (see reg. 25A of the Registration of Persons Regulations (Cap.177 sub.leg.) as amended by section 11 of the No. 3 Ordinance), and a HKSAR passport will not be issued to someone who does not have a permanent identity card (see section 3(2) of the Hong Kong Special Administrative Region Passports Ordinance (Ord. No. 127 of 1997)).) Accordingly, to enjoy their status as permanent residents of the HKSAR, they have to hold a valid travel document, which in practice means holding a valid one-way exit permit issued by the Chinese authorities(There may be a question as to whether the definition of the phase "valid travel document" added to section 2(1) of the Immigration Ordinance by section 2 of the No. 3 Ordinance covers one-way exit permits, but that does not arise for consideration in this case.), to which has to be affixed a valid certificate of entitlement issued by the Director of Immigration.

12. In practical terms, therefore, there are two restrictions on the automatic entry into Hong Kong of persons who claim the right of abode by descent. First, they have to establish the facts which give rise to their claim, i.e. they have to prove that at least one of their parents had the right of abode in Hong Kong at the time of their birth. That fact needs to be proved to the satisfaction of the Director of Immigration, and once that fact is proved the Director of Immigration is required to issue the claimant with the Certificate of Entitlement to the Right of Abode in the HKSAR. Secondly, before they can exercise their right of abode in Hong Kong, they have to obtain a one-way exit permit from the Chinese authorities. Until they have established the facts which give rise to their claim, and until they have obtained a one-way exit permit, they are not regarded as having acquired the right of abode in Hong Kong, and they do not have the right to land or to remain in Hong Kong.

THE APPLICANTS

13. Although these cases are in the nature of test cases, the cases of the individual Applicants should not be overlooked. I propose, therefore, to identify the facts relevant to their individual cases.

14. Cheung Lai Wah is the Applicant in 1997 A.L. No. 68. Her father, a Chinese citizen, came to Hong Kong in 1967. He had acquired the right of abode in Hong Kong when Lai Wah was born in mainland China on 15th September 1989. However, her mother, who had not acquired the right of abode in Hong Kong, died on the day following her birth, before she and Lai Wah's father had married. Lai Wah came to Hong Kong in early 1995 on a two-way exit permit, but she overstayed in Hong Kong, and was still in Hong Kong on 1st July 1997. A number of decisions are challenged in her case, but the principal one challenged is the decision of the Director of Immigration made on 9th August that Lai Wah had to establish her status as a permanent resident under para. 2(c) of the new Sch. 1 to the Immigration Ordinance in the manner prescribed by Part 1B of the Immigration Ordinance before she can exercise her right of abode in Hong Kong.

15. Ng Ka Ling and Ng Tan Tan are the Applicants in 1997 A.L. No. 70. Their father, a Chinese citizen, came to Hong Kong in 1976. He had acquired the right of abode in Hong Kong when Ka Ling and Tan Tan were born in mainland China on 27th December 1987 and 13th June 1989 respectively. Ka Ling and Tan Tan both came to Hong Kong otherwise than through an immigration control point on 1st July 1997. The principal decision challenged in their cases is the decision of the Director of Immigration made on 7th August refusing them permission to land in Hong Kong.

16. Tsui Kuen Nang is the Applicant in 1997 A.L. No. 71. His father, a Chinese citizen, came to Hong Kong in 1962. He had acquired the right of abode in Hong Kong when Kuen Nang was born in mainland China on 22nd April 1978. He came to Hong Kong otherwise than through an immigration control point on 1st July 1997. The principal decision challenged in his case is the decision of the Director of Immigration made on 7th August refusing him permission to land in Hong Kong.

17. Yeung Ni Ni is the Applicant in 1997 A.L. No. 73. Her father, a Chinese citizen, came to Hong Kong in 1979. He had acquired the right of abode in Hong Kong when Ni Ni was born in mainland China on 28th June 1987. Ni Ni came to Hong Kong otherwise than through an immigration control point on 8th January 1997, and was surrendered by her parents to the Immigration Department on the following day. On 20th May, an order for her removal from Hong Kong was made. That order had not been put into effect by 1st July. The decisions challenged in her case are the order for her removal from Hong Kong, and the decision of the Director of Immigration, communicated to Ni Ni's solicitors on 9th August, that Ni Ni had not established her status as a permanent resident under para. 2(c) of the new Sch.1 to the Immigration Ordinance in the manner prescribed by Part 1B of the Immigration Ordinance.

ESTABLISHING THE FACTS

18. Mr. Denis Chang S.C. for the Applicants, in a wide-ranging and comprehensive submission, accepted without reservation that anyone who claims the right of abode in Hong Kong by descent must establish the facts which give rise to the claim. However, he asserted that they should be entitled to entry into Hong Kong pending the establishment of the facts. If those facts are found not to be established, they can then be removed from Hong Kong. Requiring the claimant to remain out of Hong Kong while the facts on which he relies are being verified results in the claimant being denied the right of abode to which he may be found to have been entitled during the period of verification. That is said to be inconsistent with Art. 24 of the Basic Law, which is not expressed to be subject to any limitations, and which is couched in absolute terms.

19. I cannot accept this argument. Art. 24 identified the various categories of persons who would be permanent residents of the HKSAR. But it says nothing about how the facts which give rise to the right of abode by descent are to be established. Indeed, it says nothing about how the facts which give rise to the right of abode by birth, residence or otherwise are to be established. It merely identified the categories of persons who were to enjoy the right of abode in Hong Kong. How the facts which give rise to the right of abode are to be established was therefore left to the detailed implementation of the provisions of Art. 24 in such legislation as the legislature enacted. The enactment of procedures for establishing rights or status is a common feature of modern legislation. That is particularly so in the fields of nationality and immigration.(See, for example, section 41 of the British Nationality Act 1981, and Art. 14 of the Nationality Law of the People's Republic of China promulgated on 10th September 1980.) In short, it is for the legislature to make Art. 24 workable in practice.(Examples of legislation passed to implement the provisions of the Basic Law include the Court of Final Appeal Ordinance (Cap. 484) and the Regional Flag and Regional Emblem Ordinance (Ord. No. 177 of 1997).)

20. Accordingly, preventing the claimant from coming to Hong Kong before the facts which give rise to the right of abode by descent are established is not incompatible with Art. 24, because there is nothing in Art. 24 which addresses the question of how the facts are to be established. It is no answer to say that a claimant whose claim is ultimately verified would have been deprived of his right of abode during the period of verification. You might as well say that a claimant whose claim is ultimately found to be false will wrongly have enjoyed the right of abode during the period of verification. The fallacy in the argument is that it seeks to accord the right of abode to a person who is seeking to establish that he has the right of abode.

21. If Mr. Chang's argument was correct, it would mean that everyone who presented themselves on or after 1st July 1997 at an immigration control point and who claimed that one of their parents had had the right of abode in Hong Kong at the time of their birth would automatically be entitled to enter Hong Kong there and then, even if they had no documentary or other proof of the truth of their claim. It would mean that everyone who came into Hong Kong clandestinely without passing through immigration control, whether before or after 1st July 1997, and who now claims that one of their parents had had the right of abode in Hong Kong at the time of their birth, would automatically be entitled to remain in Hong Kong for the time being pending the verification of their claim. It was, no doubt, these consequences which prompted the Security Bureau, in its brief to the Provisional Legislative Council on the Bill which became the No. 3 Ordinance, to comment:

"It is clearly undesirable to allow all eligible children who claim ROA to enter Hong Kong before their status can be determined."

I do not believe that these serious inroads into immigration control were contemplated by the draftsmen of the Basic Law, or would have been regarded by them as a necessary or desirable consequence of Art. 24(3).

22. I should add that a person who does not establish, to the satisfaction of the Director of Immigration, that he enjoys the right of abode in Hong Kong by descent may not have that decision reviewed under section 53 of the Immigration Ordinance.(See the addition of section 53(8)(ab) to the Immigration Ordinance by section 6 of the No. 3 Ordinance.) That applies to persons who are already in Hong Kong. Indeed, if orders for the removal from Hong Kong of such persons are made, those removal orders cannot be the subject of a successful appeal to the Immigration Tribunal simply on the ground that the person concerned enjoys the right of abode in Hong Kong.(See the addition of section 53D(3) to the Immigration Ordinance by section 7 of the No. 3 Ordinance.) I do not regard these restrictions on the right of review or appeal as incompatible with Art. 24 of the Basic Law. I have already said that there is nothing in Art. 24 which addresses the question of how the facts giving rise to the claim to the right of abode by descent are to be established. That was to be left to Hong Kong's legislature to decide.(I note that a person lawfully in Hong Kong but not entitled to a permanent identity card (for example, someone on a two-way exit permit) cannot exercise such right of abode by descent as he claims, because where his status as a permanent resident has not been established in accordance with section 2AA(1), he is to be regarded, for the purposes of the Immigration Ordinance, as not enjoying the right of abode in Hong Kong: section 2AA(2). I do not comment on the compatibility of that with Art. 24 of the Basic Law. None of the Applicants are lawfully in Hong Kong: they either came to Hong Kong clandestinely otherwise than through an immigration control point, or came to Hong Kong on a two-way exit permit but overstayed in Hong Kong.)

23. Finally, Mr. Chang's comprehensive skeleton argument drew on the U.K. experience in this context. Until recently, a person claiming a right of abode in the U.K. had to prove that right by producing a U.K. passport or a certificate certifying that he had such a right of abode. However, the immigration authorities were not required to refuse such a person permission to enter the U.K. if he did not have either of the documents. The immigration authorities could admit such a person for the purpose of making further enquiries into his status. Similarly, if a question arose about the right of abode of a person already in the U.K., he could not be removed from the U.K. until the facts that he was an illegal entrant and did not have the right of abode had been established. I am not convinced that that accurately states the law in the U.K., but even if it does, I do not find it of assistance. It may be that the legislature in Hong Kong could have given the immigration authorities a discretion whether to admit into Hong Kong a person claiming a right of abode in Hong Kong, but the fact that the legislature has chosen not to do so does not mean that Art. 24 has been contravened.

THE NEED FOR AN EXIT PERMIT

24. One of the objectives of the No. 3 Ordinance was to ensure that the arrival of persons who had acquired the right of abode in Hong Kong by descent would be staggered. In its brief to the Provisional Legislative Council, the Security Bureau said:

"If they all arrived at once the impact on the social support services would be extremely difficult to bear."

The objective was achieved by requiring persons who claim to have acquired the right of abode in Hong Kong by descent to obtain a one-way exit permit first. The argument on behalf of the Applicants is that such a requirement is incompatible with Art. 24 of the Basic Law: it is not permissible to use immigration legislation as a means of correcting such social problems as were thought would arise as a result of the exercise by large numbers of mainland children of their right of abode in Hong Kong by descent.(See, for example, Ex p. Walsh (1925) 37 C.L.R. 36.)

25. Mr. Geoffrey Ma S.C. for the Director of Immigration met this argument by relying on the laws of mainland China relating to the emigration of Chinese nationals from mainland China to Hong Kong. In a clear and concise submission, he argued that it would have been quite wrong to ignore those laws. He accepted that the laws of mainland China were not to be applied in Hong Kong(Art. 18 of the Basic Law, with the exception of those laws of mainland China listed in Annex III to the Basic Law.), but contended that that did not mean that they could be ignored. If the laws of mainland China restricted the number of its nationals who could settle in Hong Kong, it would wrong for laws to be enacted in Hong Kong for entry into Hong Kong which would be inconsistent with the laws of mainland China on the topic.

26. If this argument had stood alone, I would not have been attracted by it. It would have meant that people living in mainland China who were accorded the right of abode in Hong Kong by Art. 24 needed the permission of the Chinese authorities before they could enjoy that right. In particular, persons living in mainland China who were accorded the right of abode in Hong Kong by descent needed to be issued with a travel document laid down by an authority outside the HKSAR, and over which the HKSAR has no control, before they could enjoy that right. The implementation of Art. 24(3) would therefore be in the hands of the Chinese authorities. The HKSAR may be "an inalienable part of the People's Republic of China"(Art. 1 of the Basic Law.), but the "high degree of autonomy" in its affairs which the HKSAR is to enjoy(Art. 12 of the Basic Law.) would be undermined. Where does this leave the principle of "one country, two systems"?(The preamble to the Basic Law)

27. However, there is a far more formidable justification for the provisions of the No. 3 Ordinance relating to the need for an exit permit. That justification is to be found in Art. 22 of the Basic Law. The relevant part of Art. 22 is the 4th para. I shall refer to it from now on as Art. 22(4). It reads as follows:

"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."

The first sentence does not expressly identify from whom that approval must be sought, but the second sentence is, I believe, relatively clear. Since the laws of mainland China require persons who wish to come to Hong Kong "for the purpose of settlement" to have been issued with one-way exit permits, what the second sentence does is to make the relevant Chinese authorities responsible for determining the number of one-way exit permits to be issued. That is not to be done merely to stem the flow of persons who might otherwise leave mainland China. It is also intended to have an impact on the number of persons who might otherwise enter Hong Kong. The reason for consulting with the Government of the HKSAR over the number of one-way exit permits to be issued is presumably to enable Hong Kong's ability to absorb a steady stream of new arrivals to be taken into account.

28. Accordingly, it is the Basic Law which confers on the Chinese authorities the right to determine how many of its citizens should be permitted to settle in Hong Kong. Thus, if Art. 22(4) applies to persons who enjoy the right of abode in Hong Kong under Art. 24, the need for an exit permit as required by the No. 3 Ordinance may be an example of the derogation from Hong Kong's high degree of autonomy, but it is something which has been expressly sanctioned by Art. 22(4). Indeed, the provisions of the No. 3 Ordinance which made the exercise of the right of abode in Hong Kong by descent depend on the obtaining of a one-way exit permit do no more than implement the requirements of Art. 22(4). Where legislation implements the provisions of the Basic Law, no question of its incompatibility with the Basic Law arises. The source of any grievance over the legislation, whether justified or not, lies not with its supposed incompatibility with Art. 24, but with the presence in the Basic Law of Art. 22(4).(Reasoning of a similar kind was at the heart of the decision of the Court of Appeal in Lee Miu Ling v. The Attorney-General [1996] 1 HKC 124, the challenge to the legality of legislation relating to functional constituencies.)

29. The crucial question, then, is whether Art. 22(4) applies to persons who enjoy the right of abode under Art. 24. Art. 24 identified those categories of persons who have the right of abode in Hong Kong. Some of the persons in those categories may be living in mainland China. Since Art. 22(4) seeks to control the entry into Hong Kong of persons living in mainland China, a purposive construction of Art. 22(4) requires it to be construed as applying to those persons who enjoy the right of abode under Art. 24 but who are living in mainland China.

(Chan CJHC expressed reservations in David Ma over giving a generous and purposive construction to some of the provisions of the Basic Law (pp.323H-324D), but as Mortimer V.-P. said at p.364D-E:

"The common law principles of interpretation, as developed in recent years, are sufficiently wide and flexible to purposively interpret the plain language of this semi-constitutional law. The influence of international covenants has modified the common law principles of interpretation.")

And from a linguistic point of view, I cannot see why the reference in Art. 22(4) to persons coming to Hong Kong "for the purpose of settlement" should not be construed as including persons living in mainland China who are seeking to exercise their right of abode in Hong Kong. Otherwise, it would be necessary to read Art. 22(4) as if it included the words "other than those who have the right of abode in the Region" after the words "for the purpose of settlement".

30. Mr. Chang pointed out that Art. 22(4) is in Chapter II of the Basic Law which is headed "Relationship between the Central Authorities and the Hong Kong Special Administrative Region", whereas Art. 24 is in Chapter III of the Basic Law which is headed "Fundamental Rights and Duties of the Residents". He contended that that was a strong indication that the provisions in the Basic Law relating to the right of abode in Hong Kong were limited to those in Chapter III, i.e. to Art. 24. I cannot accept this argument. Art. 22(4) is in Chapter II because it related to the relationship between the central authorities of the People's Republic of China and the HKSAR. It gives the relevant Chinese authorities the power to decide how many one-way exit permits should be issued. Simply because it is properly to be found in Chapter II, therefore, does not mean that it has no impact on the right of abode in Hong Kong provided for by Art. 24 in Chapter III.

31. Indeed, the connection between Art. 22(4) and Art. 24 is underlined by the provision in the Joint Declaration on which Art. 22(4) is based. That provision reads:

"Entry into the Hong Kong Special Administrative Region of persons from other parts of China shall continue to be regulated in accordance with the present practice."

Two points can be made. First, that provision appears in the same section of the Joint Declaration as the categories of persons who were to enjoy the right of abode in Hong Kong. That suggests a connection between the two provisions when they were reproduced, albeit in different chapters, in the Basic Law. Secondly, the provision in the Joint Declaration itself is consistent with the idea that persons in mainland China who wish to exercise their right of abode in Hong Kong by descent must obtain a one-way exit permit first, because there was a quota system for the issue of one-way exit permits in operation in 1984 when the Joint Declaration was signed.

32. There are three other comments I wish to make. First, the evidence before me included the opinions of distinguished academics on the proper construction of Art. 22(4). Prof. Chang Hsin's view is that Art. 22(4) does not apply to persons who enjoy the right of abode in Hong Kong by virtue of Art. 24. The opposite view is taken by Prof. Xu Chong De.(He relied, in part, on his recollection of the views of fellow members of the Drafting Committee of the Basic Law. I have not taken those recollections into account.) I do not regard the proper construction of Art. 22(4) as being a question of foreign law, which I must decide as an issue of fact. I have therefore treated their views in the same way as the submissions of counsel.

33. Secondly, Mr. Chang described the Respondent's reliance on Art. 22(4) as "a monumental afterthought". It was, he said, like the dog which did not bark in the night.

("Q. Is there any point to which you would wish to draw my attention?

A. To the curious incident of the dog in the night-time.

Q. The dog did nothing in the night-time.

A. That was the curious incident." (Conan Doyle, "The Memoirs of Sherlock Holmes").)

The contemporaneous documents give no explanation as to why the Drafting Committee of the Basic Law added the crucial second sentence to the original draft of Art. 22(4), and it was not until December 1995 that the linkage between Art. 22(4) and Art. 24 was first recorded.(See the draft Annex III to the Report of the Social and Security Special Subject Sub-group to the Sixth Plenary Meeting of the Preliminary Preparatory Committee.) I note these points, but I am not assisted by them. The fact is that there are no travaux preparatoires in the conventional sense, and I have therefore had to construe Art. 22(4) as I find it - using such legitimate aids to construction as are available to me.

34. Thirdly, Mr. Chang argued that Art. 22(4) was irrelevant to the present case, because all the Applicants are now in Hong Kong, and Art. 22(4) provides for what should happen at the earlier stage when approval to come to Hong Kong is sought. That is so, but it misses the point. The Applicants can only establish their right of abode in Hong Kong by descent in accordance with the No. 3 Ordinance. They have not done so. They contend they are not obliged to do so because the provisions in the No. 3 Ordinance which they did not comply with are said to be incompatible with Art. 24 of the Basic Law. Since their case depends on the incompatibility of the No. 3 Ordinance with Art. 24 of the Basic Law - which itself is dependent on the proper effect of Art. 22(4) - the fact that the Applicants are now in Hong Kong does not make Art. 22(4) irrelevant to their cases.

35. ART. 31 OF THE BASIC LAW

Art. 31 of the Basic Law provides:

"Hong Kong residents shall have freedom of movement within the Hong Kong Special Administrative Region and freedom of emigration to other countries and regions. They shall have freedom to travel and to enter or leave the Region. Unless restrained by law, holders of valid travel documents shall be free to leave the Region without special authorization."

Mr. Chang argued that the limitations on the exercise of the right of abode in Hong Kong by descent imposed by the No. 3 Ordinance are incompatible with Art. 31 in two respects. First, a person who enjoys the right of abode in Hong Kong is entitled by Art. 31 to enter Hong Kong. Yet the No. 3 Ordinance prevents him from doing so until he has established the facts giving rise to his right of abode in Hong Kong, and until he has obtained a one-way exit permit. Secondly, since the Applicants are in Hong Kong, they will have to leave Hong Kong if they are to be permitted to exercise their right of abode in Hong Kong because of the requirement to establish that status in accordance with section 2AA(1) of the Immigration Ordinance. That is incompatible with what is implicit in Art. 31, namely the freedom of Hong Kong residents to remain in Hong Kong.

36. I cannot go along with this argument. It is no more than a variation of Mr. Chang's argument that the Applicants should be entitled to enter and remain in Hong Kong while the facts on which they rely are being established. Art. 31 identifies a particular sets of rights relating to freedom of movement which both permanent and non-permanent residents of the HKSAR enjoy. In that respect, it serves a similar function to section 2A(1) of the Immigration Ordinance. What it does not deal with is how the right to be treated as a resident of the HKSAR is to be established or exercised. Accordingly, provisions relating to the establishment or exercise of the status of Hong Kong resident are not incompatible with Art. 31.

ART. 8(4) OF THE HONG KONG BILL OF RIGHTS

37. Art. 39 of the Basic Law provides:

"The provisions of the International Covenant on Civil and Political Rights [the ICCPR]... as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region ..."

Art. 12(4) of the ICCPR provides:

"No one shall be arbitrarily deprived of the right to enter his own country."

Art. 12(4) had to be modified in its application to Hong Kong to reflect the fact that Hong Kong is not a country. Accordingly, Art. 8(4) of the Hong Kong Bill of Rights, which implemented Art. 12(4) in Hong Kong, provides:

"No one who has the right of abode in Hong Kong shall be arbitrarily deprived of the right to enter Hong Kong."(Although the Government of the U.K. entered reservations about the application of Art. 12(4) of the ICCPR to its dependent territories, the legislature of Hong Kong chose to apply Art. 12(4) to Hong Kong by enacting Art. 8(4) of the Hong Kong Bill of Rights.)

38. Mr. Chang argued that the limitations on the exercise of the right of abode in Hong Kong by descent imposed by the No. 3 Ordinance are incompatible with Art. 8(4) of the Hong Kong Bill of Rights. The limitations are said to be arbitrary on two grounds. First, they discriminate against those claiming the right of abode in Hong Kong by descent because it is said that no other permanent residents in Art. 24 are liable to have their status "suspended" while they establish the facts upon which their status depends. Secondly, even within the category of persons who claim the right of abode in Hong Kong by descent, they discriminate against those living in mainland China, because they alone are not permitted to enter Hong Kong while establishing their status.

39. I disagree. Although the No. 2 Ordinance identifies how permanent residents in three of the other categories in Art. 24 have to establish their status(Paras. 3, 4 and 5 of the new Sch.1 to the Immigration Ordinance added by section 5 of the No. 2 Ordinance.), I accept that there is no provision applicable to them which is equivalent to section 2AA(2) of the Immigration Ordinance. However, I do not believe that the fact that the persons who claim the right of abode in Hong Kong by descent are singled out in this way amounts to the deprivation of the right to enter Hong Kong. They have the right to enter Hong Kong provided that they establish the facts upon which their status depends. Nor do I think that those claiming the right of abode in Hong Kong by descent who live in mainland China can be said to have been arbitrarily deprived of the right to enter Hong Kong. The postponement of the right arises from the implementation of Art. 22(4) through the provisions of the No. 3 Ordinance.

RETROSPECTIVITY

40. Although the No. 3 Ordinance came into operation on 10th July 1997, it had retrospective effect. Section 1(2) provides:

"This Ordinance (other than section 4 in relation to the addition of the new section 2AG [to the Immigration Ordinance] and section 5) shall be deemed to have come into operation on 1 July 1997."

The principal ground on which the retrospectivity of the No. 3 Ordinance is challenged is that it removed the right of abode in Hong Kong from those who had been unconditionally entitled to the right of abode in Hong Kong under Art. 24(3) since 1st July. An unqualified constitutional right which had accrued on 1st July was retrospectively taken away on 10th July. The exercise of the right of abode in Hong Kong by descent between 1st July and 10th July was retrospectively deemed not to have been an effective exercise of the right at all.

41. This argument may have been a compelling one but for Art. 22(4). On my construction of Art. 22(4), restrictions on the exercise of the right of abode in Hong Kong by descent are contained in the Basic Law itself. Since the restrictions on the exercise of the right of abode in Hong Kong by descent for persons living in mainland China were contained in Art. 22(4), which was in place on 1st July, the fact that the legislative provisions which sought to implement those restrictions came into effect later did not amount to an unconstitutional restriction on an unqualified constitutional right. That right had already been qualified by Art. 22(4).

42. The alternative ground on which the retrospectivity of the No. 3 Ordinance is challenged is that it is inconsistent with Art. 15(1) of the ICCPR, which, as applied to Hong Kong by Art. 12(1) of the Hong Kong Bill of Rights, provides:

"No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under Hong Kong or international law, at the time when it was committed."

An attempt was clearly made to disapply the retrospective effect of the No. 3 Ordinance in respect of criminal offences(Section 1(2) was not to apply to the new section 2AG to be added by the No. 3 Ordinance to the Immigration Ordinance, and which created a new criminal offence of making an application for a certificate of entitlement for reward. Nor was it to apply to section 5 of the No. 3 Ordinance which amended the section of the Immigration Ordinance which related to the criminal offences connected with the forgery of immigration documents.), but the No. 3 Ordinance still had the effect of making criminal some conduct which between 1st and 10th July would not have been criminal. That conduct would have been landing in Hong Kong without the permission of an immigration officer or an immigration assistant, which is an offence under section 38(1)(a) of the Immigration Ordinance.(This applies to the Applicants in 1997 A.L. No. 70 (Ng Ka Ling and Ng Tan Tan) and 1997 A.L. No. 71 (Tsui Kuen Nang). It is not an offence for someone who enjoys a right of abode in Hong Kong to land in Hong Kong without such permission, but the retrospective effect of the No. 3 Ordinance means that they are deemed by section 2AA(2) of the Immigration Ordinance not to have enjoyed the right of abode in Hong Kong when they arrived in Hong Kong.)

43. This argument proceeds on the assumption that Art. 12(1) of the Hong Kong Bill of Rights prohibits legislation which exposes persons to the possibility of prosecution for conduct which was not criminal at the time of the conduct. I do not construe Art. 12(1) in that way. I construe Art. 12(1) as prohibiting the prosecution of persons for conduct which was not criminal at the time of the conduct. After all, if a person cannot be prosecuted for such conduct, no question of him being exposed to the possibility of prosecution arises. Indeed, that is for more consistent with the language of Art. 12(1): "No one shall be held guilty of any criminal offence ..." I know that two commentators on the equivalent provision (Art. 7(1)) in the European Convention on Human Rights take a different view(van Dijk and van Hoof, "Theory and Practice of the European Convention on Human Rights", 2nd. ed., pp.364-365.), but the travaux preparatoires of Art. 15(1) of the ICCPR are inconclusive.(Bossuyt and Humphrey, "Guide to the 'travaux preparatoires' of the International Covenant on Civil and Political Rights", 1987, p.325.) Accordingly, the challenge to the No. 3 Ordinance on the basis of retrospectivity fails. What could be challenged successfully is any prosecution on the basis of a contravention between 1st and 10th July of section 38(1)(a) of the Immigration Ordinance.

RELATIONSHIP OF PARENT AND CHILD

44. A separate issue arises in the case of the Applicant in 1997 A.L. No. 68, Cheung Lai Wah. It is said that she does not even come within the category of persons who enjoy the right of abode in Hong Kong by descent. That is because her parents had not married by the time her mother died, and for that reason the relationship of parent and child between her and her father (by whom she claims to have acquired the right of abode in Hong Kong by descent) did not exist. That is the result of para. 1(2) of the new Sch.1 to the Immigration Ordinance, as substituted by section 5 of the No. 2 Ordinance, which provides:

"The relationship of parent and child is taken to exist as follows-

(a) of a mother and child, between a woman and a child born to the mother in or out of wedlock;

(b) of a father and child, between a man and a child born to him in wedlock or, if out of wedlock, between a father and a child subsequently legitimated by the marriage of his parents;

(c) ..."

45. This definition of the relationship between parent and child was clearly inspired by section 50(9) of the British Nationality Act 1981(It was applied to the definition of British Dependent Territories citizen having a connection with Hong Kong by Art. 1(4) of the Hong Kong (British Nationality) Order 1986 (No. 948 of 1996).), which provides:

"For the purposes of this Act-

(a) the relationship of mother and child shall be taken to exist between a woman and any child (legitimate or illegitimate) born to her; but

(b) ... the relationship of father and child shall be taken to exist only between a man and any legitimate child born to him; ..."

However, Art. 160 of the Basic Law provides:

"Upon the establishment of the Hong Kong Special Administrative Region, the laws previously in force in Hong Kong shall be adopted as laws of the Region except for those which the Standing Committee of the National People's Congress declares to be in contravention of this Law. If any laws are later discovered to be in contravention of this Law, they shall be amended or cease to have force in accordance with the procedure as prescribed by this Law."

Pursuant to Art. 160, the Standing Committee of the National People's Congress resolved(On 23rd February 1997.) that any provision in any ordinance whose purpose was to implement British nationality law in its application to Hong Kong contravened the Basic Law, and was not therefore to be adopted as the law of the HKSAR. The rationale was, I assume, that Hong Kong's own "nationality" laws would be contained in the ordinances enacted to implement Art. 24. Accordingly, Mr. Chang argued that since the definition of the relationship between parent and child introduced by the No. 2 Ordinance reproduced, to all intents and purposes, the definition in the British Nationality Act, it too should be treated as not having been adopted as the law of the HKSAR.

46. I reject this argument for two reasons. First, I do not think that the No. 2 Ordinance applied the British Nationality Act to Hong Kong. All it did was to adopt certain definitions in the British Nationality Act. Secondly, the National People's Congress resolution does not apply to the new definitions introduced by the No. 2 Ordinance, because it only applies to laws previously in force in Hong Kong, i.e. those in force in Hong Kong prior to 1st July 1997. Since the No. 2 Ordinance came into force on 1st July, the National People's Congress resolution did not apply to it.

47. Mr. Chang also contended that the definition of the relationship between parent and child in para. 1(2) of the new Sch.1 to the Immigration Ordinance is incompatible with various provisions in the U.N. Convention on the Rights of the Child(On 10th June 1997, the Government of the People's Republic of China informed the Secretary-General of the U.N. that it extended the Convention to the HKSAR with effect from 1st July, though it did so subject to several declarations.), the ICCPR and the Hong Kong Bill of Rights, on the footing that it discriminated against the children of unmarried parents who claim the right of abode in Hong Kong through their fathers. It is unnecessary for me to consider those provisions because in my view there is a simple reason for saying that the definition of the relationship between parent and child is incompatible with Art. 24(3) of the Basic Law. The category of persons to whom Art. 24(3) relates are the children of permanent residents who come within the category of persons in Arts. 24(1) and 24(2). Their children are no less their children simply because they may have been born out of wedlock. Denying the right of abode in Hong Kong to children who rely on their father's status as permanent residents of the HKSAR simply because they were born out of wedlock is to deny the right of abode in Hong Kong to persons who plainly fall within Art. 24(3). This was the first point which Mr. Chang took on the issue, and in my view there is no answer to it.

48. Mr. Ma sought to justify the definition on the basis that Art. 24(3) needed to be fleshed out, and the definition is no more than an example of the detailed implementation of Art. 24(3). But what the definition does is to remove the right of abode in Hong Kong from the children of some permanent residents, when there is nothing in Art. 24(3) which justifies that. After all, Art. 24(3) focuses on birth, not status. The mere fact that Art. 24(3) did not define the relationship of parent and child did not mean that it could subsequently be defined in such a way as to exclude from the ambit of Art. 24(3) children who come within it.(It is arguable that limiting the right of abode in Hong Kong by descent to persons whose mother or father had acquired the right of abode in Hong Kong at the time of their birth is equally incompatible with Art. 24(3): the right of abode in Hong Kong is being denied to persons who arguably fall within Art. 24(3). However, that issue does not arise in the present case because the parents of the Applicants through whom their right of abode in Hong Kong is claimed had all acquired the right of abode in Hong Kong by the time of their birth.)

49. Accordingly, the conclusion which I have reached is that the definition of the relationship between parent and child in para. 1(2) of the new Sch.1 to the Immigration Ordinance is incompatible with Art. 24(3) to the extent that it prevents certain children born out of wedlock from acquiring the right of abode in Hong Kong. To use the language of Art. 11 of the Basic Law, I declare that it contravenes the Basic Law. The effect of this declaration on the case of the Applicant in 1997 A.L. No. 68 is that when she applies for a certificate of entitlement from the Director of Immigration, the Director of Immigration will not be entitled to refuse the certificate of entitlement on the ground that her father had not married her mother.

50. I have not been addressed on how para. 1(2) should read, shorn of those parts of it which contravene the Basic Law, but since those parts can be removed by applying "the blue pencil test", I propose to make an order nisi, i.e. the order will take effect unless, within 14 days of the handing down of this judgment, either party files an application for me to make some other order. The order nisi I make is that the words "if" and "between a father and a child subsequently legitimated by the marriage of his parents" be excised from para. 1(2)(b), so that para. 1(2)(b) now reads:

"... of a father and child, between a man and a child born to him in wedlock or out of wedlock...."

Accordingly, it is no longer necessary for me to consider an alternative argument based on the proposition that Chinese law makes no distinction between a child born in wedlock and one born out of wedlock. That argument would only have had to be considered if the definition of the relationship between parent and child survived the challenge to its incompatibility with the Basic Law.

CONCLUSION

51. For these reasons, with the exception of the declaration and the order nisi I have made in the case of 1997 A.L. No. 68, this application for judicial review must be dismissed. I wish to pay tribute to the industry and research which has gone into the preparation of the case, and the comprehensive nature of the arguments of counsel. Finally, since this has been in the nature of a test case, I do not at present think that it would be right to make an adverse order as to costs. Accordingly, the order nisi I make as to costs is that there should be no order as to costs, save for taxation of the Applicants' costs pursuant to the Legal Aid Regulations.