LI SHUK FAN 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 judgment of the Court):

1. These appeals all raised the important question as to which persons were unaffected by the interpretation by the Standing Committee of the National People's Congress of two important provisions in the Basic Law relating to 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. Our judgments in these appeals in effect decided who could continue to benefit from the law as it had been declared to be in the two test cases which culminated in the judgments of the Court of Final Appeal in Ng Ka Ling and Chan Kam Nga.

2. The questions of law which the appeals raised, therefore, including the question relating to the early arrivals, were ones of great, general and public importance, because they affected the right of so many people truly to call Hong Kong their home - not merely the many thousands of applicants in the three cases to which the appeals related, but the many hundreds of thousands of people who stood to benefit from our judgments if we had construed the words "judgments previously rendered" in Art. 158 of the Basic Law differently. These considerations render it appropriate for the questions involved in the appeals to be submitted to the Court of Final Appeal for decision, and we therefore grant the applicants in CACV 415/2000 and CACV 417/2000 - which concern a number of representative applicants whose cases were thought to cover all relevant factual situations - leave to appeal to the Court of Final Appeal.

3. Different considerations are said to apply to the appeal of Li Shuk Fan in CACV 416/2000. To the extent that her case raises the same issues of principle as those in the other two appeals, it is said that her appeal does not have to be submitted to the Court of Final Appeal because the Director of Immigration has undertaken not to remove her from Hong Kong until the other appeals have been disposed of, and Mr Joseph Fok SC for the Director of Immigration has informed us that the Director of Immigration would also undertake to apply the law as laid down in the other appeals to her case. The only practical effect, so it is said, of granting Li Shuk Fan leave to appeal, therefore, would be to enable the Court of Final Appeal to consider whether a letter from Li Shuk Fan's father to the Immigration Department dated 4 December 1998 brought Li Shuk Fan within the policy announced in the press statement.

4. However, Ms Gladys Li SC for Li Shuk Fan has said that, had Li Shuk Fan not issued her application for leave to apply for judicial review of the decision to remove her from Hong Kong, it may have been necessary to find an additional representative applicant to cover the factual situation which Li Shuk Fan's case covered. In that connection, Ms Li has said that there are at least eight right of abode claimants whose cases, though not identical to Li Shuk Fan because the letters written on their behalf would obviously have been couched in different terms from the letter of Li Shuk Fan's father of 4 December 1998, have nevertheless been affected by the judgment of the court in Li Shuk Fan. In our judgment, these considerations are sufficient to justify granting Li Shuk Fan leave to appeal on the ground that the question involved in her appeal ought otherwise to be submitted to the Court of Final Appeal for decision. Accordingly, leave to appeal to the Court of Final Appeal is granted for all three appeals.