FINAL APPEAL NO. 14 OF 1998 (CIVIL)
(ON APPEAL FROM CACV No. 216 OF 1997)
NG KA LING
NG TAN TAN
(infants by their father and next friend
NG SEK NIN)
Appellants
- and -
THE DIRECTOR OF IMMIGRATION Respondent
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FACV No. 15 of 1998
IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE R
EGION
FINAL APPEAL NO. 15 OF 1998 (CIVIL)
(ON APPEAL FROM CACV No. 217 OF 1997)
TSUI KUEN NANG Appellant
- and -
THE DIRECTOR OF IMMIGRATION Respondent
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FACV No. 16 of 1998
IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE R
EGION
FINAL APPEAL NO. 16 OF 1998 (CIVIL)
(ON APPEAL FROM CACV No. 203 OF 1997)
Between :
THE DIRECTOR OF IMMIGRATION Appellant
- and -
CHEUNG LAI WAH
(an infant suing by her father and next friend
CHEUNG MIU CHEUNG)
Respondent
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Appeal Committee:
Chief Justice Li, Mr Justice Litton PJ,
Mr Justice Ching PJ, Mr Justice Bokhary PJ
and Sir Anthony Mason NPJ
Date of Hearing:
6, 7, 8, 11 and 12 January 1999
Date of Judgment:
29 January 1999
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J U D G M E N T
Chief Justice Li:
This judgment is the unanimous judgment of the Court.
Throughout history, residents in Hong Kong have had family ties in the
rest of China. Since the Mainland began her open door policy, resulti
ng in strong links with Hong Kong, these family ties have very much gr
own. By 1 July 1997, when the People's Republic of China resumed the e
xercise of sovereignty over Hong Kong, a number of Chinese nationals b
orn on the Mainland have at least one parent who is a Hong Kong perman
ent resident with the right of abode here.
We are concerned in this appeal with their status as permanent residen
ts of and their right of abode in Hong Kong. Questions involving the p
roper interpretation of the Basic Law are before us for the first time
. These are questions of momentous importance for both the future of t
he people involved as well as the development of constitutional jurisp
rudence in the new order.
Terminology
We shall for convenience refer to the People's Republic of China as Ch
ina; the Standing Committee of the National People's Congress as the S
tanding Committee; the Hong Kong Special Administrative Region as the
Region or Hong Kong.
A reference to an Article is to the Article in the Basic Law. The text
of the Basic Law does not number the sub-paragraphs of each Article.
However, as is common practice, it is convenient to refer to the sub-p
aragraphs by numbering them. The second sub-paragraph of Article 24 wi
ll, for example, be referred to as Article 24(2).
The appellants in the first two appeals and the respondent in the thir
d appeal were the applicants in the judicial review proceedings and wi
ll all be referred to as "the applicants".
The Director of Immigration of the Hong Kong Special Administrative Re
gion will be referred to as "the Director". He is the respondent in th
e first two appeals and the appellant in the third appeal.
The constitutional framework
The Constitution of the People's Republic of China provides in Article
31:
" The state may establish special administrative regions when necessar
y. The systems to be instituted in special administrative regions shal
l be prescribed by law enacted by the National People's Congress in th
e light of the specific conditions."
The National People's Congress is the highest organ of state power and
its permanent body is its Standing Committee. Article 57 of the Chine
se Constitution. The National People's Congress and its Standing Commi
ttee exercise the legislative powers of the state. Article 58.
The Basic Law of the Hong Kong Special Administrative Region of the Pe
ople's Republic of China was enacted pursuant to Article 31. It was ad
opted by the National People's Congress and was promulgated on 4 April
1990. It became the constitution of the Hong Kong Special Administrat
ive Region upon its establishment on 1 July 1997 when China resumed th
e exercise of sovereignty over Hong Kong.
The preamble to the Basic Law states the establishment of the Region i
n accordance with Article 31:
".... and that under the principle of 'one country, two systems', the
socialist system and policies will not be practised in Hong Kong. The
basic policies of the People's Republic of China regarding Hong Kong h
ave been elaborated by the Chinese Government in the Sino-British Join
t Declaration."
Chapter I containing eleven articles states general principles. Articl
e 1 provides that the Hong Kong Special Administrative Region is an in
alienable part of the People's Republic of China. By Article 2, the Na
tional People's Congress authorizes the Hong Kong Special Administrati
ve Region to exercise a high degree of autonomy and enjoy executive, l
egislative and independent judicial power, including that of final adj
udication, in accordance with the provisions of the Basic Law. Article
5 provides that "the socialist system and policies" shall not be prac
tised in the Region and that the previous capitalist system and way of
life shall remain unchanged for 50 years.
The resumption of the exercise of sovereignty was dealt with by the Jo
int Declaration of the United Kingdom Government and the Chinese Gover
nment over the question of Hong Kong. This was signed on 19 December 1
984 and came into effect on 27 May 1985 on the exchange of instruments
of ratification. By the Joint Declaration, the Chinese Government dec
lared its basic policies regarding Hong Kong as set out in paragraph 3
therein and as elaborated in Annex I thereof, that they will be stipu
lated in a Basic Law and that they will remain unchanged for 50 years.
The Basic Law
Article 24(1) of the Basic Law provides that residents of the Hong Kon
g Special Administrative Region shall include permanent residents and
non-permanent residents.
The interpretation of Articles 24(2) and 24(3) is at the heart of this
appeal. Article 24(2) provides that the permanent residents shall be
the six categories of persons set out therein, namely:
"(1) Chinese citizens born in Hong Kong before or after the establishm
ent of the Hong Kong Special Administrative Region;
(2) Chinese citizens who have ordinarily resided in Hong Kong for a co
ntinuous period of not less than seven years before or after the estab
lishment of the Hong Kong Special Administrative Region;
(3) Persons of Chinese nationality born outside Hong Kong of those res
idents listed in categories (1) and (2);
(4) Persons not of Chinese nationality who have entered Hong Kong with
valid travel documents, have ordinarily resided in Hong Kong for a co
ntinuous period of not less than seven years and have taken Hong Kong
as their place of permanent residence before or after the establishmen
t of the Hong Kong Special Administrative Region;
(5) Persons under 21 years of age born in Hong Kong of those residents
listed in category (4) before or after the establishment of the Hong
Kong Special Administrative Region; and
(6) Persons other than those residents listed in categories (1) to (5)
, who, before the establishment of the Hong Kong Special Administrativ
e Region, had the right of abode in Hong Kong only."
We are concerned with the third category and we shall refer to it as t
he third category in Article 24(2).
Article 24(3) provides that the permanent residents shall have the rig
ht of abode in Hong Kong and shall be qualified to obtain, in accordan
ce with the laws of the Region, permanent identity cards which state t
heir right of abode.
Article 24(4) provides that the non-permanent residents shall be perso
ns who are qualified to obtain Hong Kong identity cards in accordance
with the laws of the Region but have no right of abode.
Article 24 is the first article in Chapter III headed "Fundamental Rig
hts and Duties of the Residents". After defining the residents in Arti
cle 24(1) and (2), comprising both permanent and non-permanent residen
ts, Chapter III provides for their fundamental rights and duties inclu
ding the right of abode in the case of permanent residents. These righ
ts and duties are expressed as constitutional guarantees for freedoms
which are of the essence of Hong Kong's civil society. It should be no
ted that only permanent residents have the right to vote and the right
to stand for election in accordance with law. Article 26.
Article 39 in this Chapter is an important provision for the constitut
ional protection of individual rights. Article 39(1) provides: "The pr
ovisions of the International Covenant on Civil and Political Rights .
... as applied to Hong Kong shall remain in force and shall be impleme
nted through the laws of the Hong Kong Special Administrative Region".
Article 39(2) provides that the rights and freedoms enjoyed by Hong K
ong residents shall not be restricted unless as prescribed by law and
that such restrictions shall not contravene the provisions of Article
39(1).
Chapter II of the Basic Law is headed: "Relationship between the Centr
al Authorities and the Hong Kong Special Administrative Region". Artic
le 22(4) therein provides:
" For entry into the Hong Kong Special Administrative Region, people f
rom other parts of China must apply for approval. Among them, the numb
er of persons who enter the Region for the purpose of settlement shall
be determined by the competent authorities of the Central People's Go
vernment after consulting the government of the Region."
Chapter VIII is headed: "Interpretation and Amendment of the Basic Law
". Article 158, dealing with interpretation, provides:
" The power of interpretation of this Law shall be vested in the Stand
ing Committee of the National People's Congress.
The Standing Committee of the National People's Congress shall authori
ze the courts of the Hong Kong Special Administrative Region to interp
ret on their own, in adjudicating cases, the provisions of this Law wh
ich are within the limits of the autonomy of the Region.
The courts of the Hong Kong Special Administrative Region may also int
erpret other provisions of this law in adjudicating cases. However, if
the courts of the Region, in adjudicating cases, need to interpret th
e provisions of this Law concerning affairs which are the responsibili
ty of the Central People's Government, or concerning the relationship
between the Central Authorities and the Region, and if such interpreta
tion will affect the judgments on the cases, the courts of the Region
shall, before making their final judgments which are not appealable, s
eek an interpretation of the relevant provisions from the Standing Com
mittee of the National People's Congress through the Court of Final Ap
peal of the Region. When the Standing Committee makes an interpretatio
n of the provisions concerned, the courts of the Region, in applying t
hose provisions, shall follow the interpretation of the Standing Commi
ttee. However, judgments previously rendered shall not be affected.
The Standing Committee of the National People's Congress shall consult
its Committee for the Basic Law of the Hong Kong Special Administrati
ve Region before giving an interpretation of this Law."
The Joint Declaration
The definition of permanent residents in Article 24 of the Basic Law h
ad its origin in Part XIV in Annex I of the Joint Declaration which el
aborated China's basic policies. Part XIV stated that the categories o
f persons set out therein shall have the right of abode and, in accord
ance with the law of Hong Kong, be qualified to obtain permanent ident
ity cards, which state their right of abode. The first three categorie
s later set out in Article 24(2) of the Basic Law were defined in Part
XIV as:
"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, and
persons of Chinese nationality born outside Hong Kong of such Chinese
nationals."
Part XIV also contained the statement that:
" Entry into the Hong Kong Special Administrative Region of persons fr
om other parts of China shall continue to be regulated in accordance w
ith the present practice."
Hong Kong legislation
Following the Joint Declaration, which used the phrase "the right of a
bode" for the first time in relation to Hong Kong, the Immigration Ord
inance, Cap. 115, has since 1987 contained a definition in section 2A
of the right of abode enjoyed by a Hong Kong permanent resident as:
"the right -
(a) to land in Hong Kong;
(b) not to have imposed upon him any condition of stay in Hong Kong, a
nd 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."
The categories of persons who are Hong Kong permanent residents are se
t out in Schedule 1. A Hong Kong permanent resident would be issued wi
th a permanent identity card. This is defined as an identity card whic
h contains a statement that the holder has the right of abode in Hong
Kong. See Section 1A of the Registration of Persons Ordinance, Cap. 17
7.
Immigration (Amendment) (No 2) Ordinance
Schedule 1 to the Immigration Ordinance prior to 1 July 1997, in presc
ribing the categories of persons who were Hong Kong permanent resident
s, did not follow the categories defined in Article 24(2) of the Basic
Law. By the Immigration (Amendment) (No 2) Ordinance enacted by the P
rovisional Legislative Council on 1 July 1997 ("the No 2 Ordinance"),
the old schedule was replaced by a new Schedule 1. Paragraph 2 of the
new Schedule 1 provides:
"2. Permanent resident 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 establishm
ent of the Hong Kong Special Administrative Region if his father or mo
ther 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 co
ntinuous period of not less than 7 years before or after the establish
ment 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 R
egion in category (a) or (b) if the parent had the right of abode in H
ong Kong at the time of the birth of the person.
(d) ...
(e) ...
(f) ..."
In relation to the category of permanent residents by descent, in para
2(c), the No 2 Ordinance stipulates the requirement that the parent h
ad the right of abode in Hong Kong at the time of the birth of the per
son. The constitutionality of this requirement is challenged in a sepa
rate appeal before the Court. Paragraph 1(2) of Schedule 1 defines the
relationship of parent and child as follows:
"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 mot
her in or out of wedlock;
(b) of a father and child, between a man and a child born to him in we
dlock or, if out of wedlock, between a father and a child subsequently
legitimated by the marriage of his parents;
(c) of a parent and adopted child, between a parent and a child adopte
d only in Hong Kong under an order made by a Court in Hong Kong under
the Adoption Ordinance (Cap. 290)."
It will be observed that in relation to a child born out of wedlock, t
his definition treats the mother differently from the father. Whereas
the relationship of parent and child is taken to exist between a woman
and a child born to her out of wedlock, such relationship is taken to
exist between a father and a child born to him out of wedlock only if
the child is subsequently legitimated by his parents' marriage.
Immigration (Amendment) (No 3) Ordinance 1997
On 10 July 1997, the Provisional Legislative Council enacted the Immig
ration (Amendment) (No 3) Ordinance ("the No 3 Ordinance"). It was dee
med to have come into operation on 1 July 1997. Section 1(2). A scheme
to deal with the category of permanent residents by descent in paragr
aph 2(c) of Schedule 1 was introduced. Under this scheme, a person's s
tatus as a permanent resident under paragraph 2(c) can only be establi
shed 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."
See section 2AA(1). Any person holding a valid HKSAR passport or a val
id permanent identity card would already have established his right of
abode. As stated above, the latter is defined as an identity card whi
ch contains a statement that the holder has the right of abode in Hong
Kong. And one of the requirements for obtaining a passport is the hol
ding of a permanent identity card. See section 3(2) of the Hong Kong S
pecial Administrative Region Passports Ordinance, Cap. 539. So, althou
gh three documents are prescribed, the relevant one for a person claim
ing permanent resident status by descent is (a). He can only establish
his status by holding a valid travel document and a valid certificate
of entitlement affixed thereto. We shall refer to them as "travel doc
ument" and "certificate of entitlement" and such references should be
taken as references to valid documents. The No 3 Ordinance contains a
statutory form of the certificate of entitlement. It states:
"The holder's Right of Abode in the Hong Kong Special Administrative R
egion has been established. This certificate is valid only if it has b
een affixed onto a valid travel document issued to the holder of this
certificate."
This statement emphasizes the requirement that it cannot stand on its
own. To be effective, it must be affixed to a travel document.
Section 2AA(2) provides:
" (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 unde
r paragraph 2(c) of Schedule 1 can only be exercised upon the establis
hment of his status as such a permanent resident in accordance with su
bsection (1) and, accordingly, where his status as such a permanent re
sident is not so established, he shall, for the purposes of this Ordin
ance, be regarded as not enjoying the right of abode in Hong Kong."
So, where the person does not hold a travel document to which is affix
ed a certificate of entitlement, he is regarded as not enjoying the ri
ght of abode.
An application may be made to the Director for a certificate of entitl
ement. The application shall be made in such manner as the Director ma
y specify by notice in the Gazette. See section 2AB(1) and (2). Sectio
n 2AB(4) expressly provides that such a notice is not subsidiary legis
lation. The effect of this provision is that the notice would not be s
ubject to amendment by the Legislative Council pursuant to section 34
of the Interpretation and General Clauses Ordinance, Cap. 1. Where the
Director is satisfied upon proof specified by him that the applicant
is a permanent resident under para 2(c) of Schedule 1, he shall issue
a certificate. Section 2AB(6). Where not so satisfied, he shall refuse
the application, notify the applicant of the reasons and inform him o
f the right of appeal to the Immigration Tribunal.
Section 2AD deals with appeals. The Tribunal shall determine "on the f
acts of the case as it finds them" whether the appellant is a permanen
t resident by descent in para 2(c) of Schedule 1. Its decision shall b
e final. No application for judicial review can be lodged unless and u
ntil the Tribunal has made a decision. Section 2AE.
An applicant cannot appeal at any time when he is in Hong Kong. Sectio
n 2AD(3). Where a removal order has been made against him, he cannot a
ppeal to the Tribunal against it on the ground that he has the right o
f abode. To bolster the scheme that he can only establish his status b
y holding a travel document affixed with a certificate of entitlement,
section 53D(3) introduced by the No 3 Ordinance provides that the Tri
bunal shall not allow an appeal against a removal order on the ground
that the appellant enjoys the right of abode by virtue of the status i
n para 2(c) of Schedule 1 unless his status has been established in th
e manner prescribed by section 2AA(1).
The No 3 Ordinance created new criminal offences including offences re
lating to the making of an application for a certificate of entitlemen
t for reward, the making of false statements for the purpose of obtain
ing a certificate, forgery of a certificate and the use and possession
of a forged or altered certificate. But the new offences were exempte
d from the retrospective provision and took effect only prospectively.
The Notice
The Notice dated 11 July 1997 and published on 16 July 1997 in the Gaz
ette ("the Notice") notified that the Director has made the provisions
set out therein. In relation to persons residing in the Mainland of C
hina at the time of application, the Notice specified that his applica
tion for a certificate of entitlement must be made "through the Exit-E
ntry Administration of the Public Security Bureau in the district wher
e he is residing". Para A(i). Further, the Notice stated that his appl
ication for an exit permit to Hong Kong and Macau made to the Exit-Ent
ry Administration of the Public Security Bureau under the laws in forc
e in the Mainland of China for settlement in Hong Kong may be regarded
as an application for a certificate of entitlement. See para B. For t
he purposes of applying for a certificate of entitlement, a person who
was ordinarily resident in the Mainland immediately before landing in
Hong Kong shall be regarded as residing in the Mainland during his st
ay in Hong Kong (i) where he stays in Hong Kong without the authority
of the Director after landing without permission, or (ii) similarly, w
here he has been given permission to land and is subject to conditions
of stay after such landing. Para C. The Notice (para D) sets out requ
irements as to what statements and information an application has to c
ontain. For persons residing outside China, the application has to be
made through the Chinese embassy or consulate in that place or by post
to the Director, and the postal route is provided for those residing
in Taiwan or Macau. Para A(ii) and (iii).
The Notice referred to Mainland laws relating to applications for exit
permits. Under Mainland laws, there are control measures governing Ch
inese citizens travelling to and from Hong Kong. The laws currently in
force are Article 17 of the Law on the control of the exit and entry
of citizens promulgated on 22 November 1985 and the Interim Procedures
for the Administration of Chinese citizens on passage to and from the
Hong Kong Region and the Macau Region for personal affairs promulgate
d on 25 December 1986. Exit approval is required. The Exit and Entry A
dministration of the Public Security Bureau is the organ responsible f
or issuing permits. What are known as one way permits are issued for t
hose coming for settlement and a quota system is operated. Article 5 o
f the Interim Procedures provided:
" Mainland citizens departing on personal grounds for settling in Hong
Kong/Macau shall be subject to examination and approval under the quo
ta system in order to safeguard and maintain the economic prosperity a
nd social stability of Hong Kong and Macau."
What are known as two way permits are issued for those travelling to H
ong Kong for purposes other than settlement.
According to the affidavit evidence filed on behalf of the Director, t
he quota system for one way permits has been operated by the Mainland
authorities for many years and the numbers have changed from time to t
ime. The present quota is 150 per day. The position was put in such ev
idence as follows:
" .... The obtaining of .... the one way permit has remained the legal
way for residents of the Mainland to exit the Mainland to settle here
. The decision to grant one way permits is made by the relevant office
s or departments of the BEEA [Exit and Entry Administration Bureau of
the Public Security Ministry] at provincial, municipal or county level
s. The Immigration Department takes no part in the queuing, the alloca
tion and granting of one way permits, all of which are (and have alway
s been) matters for which the BEEA is unilaterally responsible. In so
far as the daily one way permit quota is concerned, although the autho
rities in the Mainland consult the Hong Kong authorities, the final de
cision rests with the authorities in the Mainland. In other words, it
is not simply a question of the person being entitled to land or settl
e in Hong Kong under Hong Kong law. But rather, a Mainland resident wi
shing to land or settle in Hong Kong must satisfy the applicable Mainl
and laws regarding exit from the PRC as well."
The description of the organ involved in the affidavit evidence is sli
ghtly different from that in the Notice. We shall use that in the Noti
ce and shall refer to it as "the Mainland Exit-Entry Administration".
Such evidence referred to about 66,000 persons under the age of 20 who
claim to be within the third category in Article 24(2) who had applie
d for one way permits as at mid 1997.
We note that Mainland laws require exit approval for Chinese citizens
leaving the country. What is relevant here are the Mainland laws refer
red to above dealing with Chinese citizens travelling from the Mainlan
d to Hong Kong, another part of China.
Operation of the scheme under the No 3 Ordinance
We shall now describe the operation of the scheme in relation to a Mai
nland resident claiming the status of permanent resident by descent un
der para 2(c) of the new Schedule 1 of the Immigration Ordinance.
(1) He has to apply to the Director for a certificate of entitlement t
hrough the Mainland Exit-Entry Administration in the district where he
is residing in the Mainland. His application to the Mainland Exit-Ent
ry Administration for a one way permit may be regarded as an applicati
on for a certificate of entitlement.
(2) After confirming the person's identity, nationality and the validi
ty of his parents' marriage, the Mainland Exit-Entry Administration wi
ll send his application to the Director for processing. If the Directo
r is satisfied, he will issue a certificate of entitlement. This will
be sent to the Mainland Exit-Entry Administration.
(3) He is subject to the quota for one way permits determined and oper
ated by the Mainland authorities. Upon the grant of the one way permit
by the Mainland Exit-Entry Administration, his certificate of entitle
ment will be affixed by them to that permit. The one way permit is the
valid travel document for him contemplated by the scheme introduced b
y the No 3 Ordinance.
(4) His status can only be established by his holding the one way perm
it affixed with the certificate of entitlement. Without this, he shall
be regarded as not enjoying the right of abode. This is so notwithsta
nding that the Director is satisfied of his status as a permanent resi
dent by descent and has issued the certificate of entitlement (which w
ould be sent to the Mainland Exit-Entry Administration). Under the sch
eme, that certificate alone is insufficient to establish his status. I
t can only be established by holding a one way permit affixed with the
certificate.
(5) He cannot come to Hong Kong to make his application. It must be ma
de to the Mainland Exit-Entry Administration in the district in the Ma
inland where he is residing. If he is physically in Hong Kong, he is t
reated as residing in the Mainland during his stay in Hong Kong for th
e purposes of the scheme's operation. He cannot resist a removal order
made under the Immigration Ordinance by producing evidence to establi
sh his status. He can only establish that status by holding a one way
permit affixed with a certificate of entitlement.
The applicants
The facts relating to the applicants can be shortly stated.
Miss Ng Ka Ling and Miss Ng Tan Tan (FACV No 14 of 1998)
They are sisters. They are Chinese nationals born on the Mainland. By
the time of their birth in 1987 and 1989 respectively, their father wa
s a Chinese citizen who had ordinarily resided in Hong Kong for a cont
inuous period of not less than seven years. He had come in 1976. The a
pplicants entered Hong Kong on 1 July 1997, otherwise than through an
immigration control point. On 4 July 1997, they reported to the Immigr
ation Department to assert their right of abode under the third catego
ry in Article 24(2) of the Basic Law. The Director failed to recognize
their right. He arrested them and then released them on recognizances
.
Mr Tsui Kuen Nang (FACV No 15 of 1998)
He is a Chinese national born on the Mainland. By the time of his birt
h in 1978, his father was a Chinese citizen who had ordinarily resided
in Hong Kong for a continuous period of not less than seven years. He
had come in 1962. The applicant entered Hong Kong on 1 July 1997, oth
erwise than through an immigration control point. On 3 July 1997, he r
eported to the Immigration Department to assert his right of abode und
er the third category in Article 24(2). The Director failed to recogni
ze his right. He arrested him and then released him on recognizance.
Miss Cheung Lai Wah (FACV No 16 of 1998)
She is a Chinese national born on the Mainland. By the time of her bir
th in 1989, her father was a Chinese citizen who had ordinarily reside
d in Hong Kong for a continuous period of not less than seven years. H
e had come in 1967. She was born out of wedlock. Unfortunately, her mo
ther died the day after her birth. She came to Hong Kong on a two way
permit in December 1994 and has overstayed since January 1995. On 15 J
uly 1997, she reported to the Immigration Department to assert her rig
ht of abode under the third category in Article 24(2). The Director fa
iled to recognise her right and arrested her. She was held in custody
and was released on recognizance four days later on 19 July 1997.
The applicants' position
The two Ng sisters and Mr Tsui arrived in Hong Kong on 1 July 1997. Mi
ss Cheung had arrived prior to that date. Apart from Mr Tsui, they are
infants although their age is not material. We understand there are a
bout 1,000 to 1,500 persons claiming to be permanent residents within
the third category in Article 24(2) who had arrived prior to 10 July 1
997.
As far as the Ng sisters and Mr Tsui are concerned, the Director accep
ts that they are permanent residents within the third category in Arti
cle 24(2). They are "persons of Chinese nationality born outside Hong
Kong" who had at the time of their birth one parent (the father) who w
as a permanent resident under the second category in Article 24(2). Th
e father was a Chinese citizen who had ordinarily resided in Hong Kong
for a continuous period of seven years.
In the case of Miss Cheung, the Director contends that she is not a pe
rmanent resident within Article 24(2) on the ground that she was born
out of wedlock. But for this contention, the Director would accept tha
t Miss Cheung is a permanent resident within the third category in Art
icle 24(2). She too is a Chinese national born outside Hong Kong whose
father was at the time of her birth a permanent resident within the s
econd category in Article 24(2).
The respective fathers had in fact resided in Hong Kong for a consider
able length of time. Mr Tsui's father had come as early as 1962. Miss
Cheung's father had come in 1967 and the father of the Ng sisters had
come in 1976. Whilst the second category in Article 24(2) requires at
least seven years' ordinary residence in Hong Kong, it should be obser
ved that we are concerned with applicants whose fathers have resided h
ere for much longer and have been a part of our community for a long t
ime.
The applicants maintain that as they are permanent residents within Ar
ticle 24(2), they have the right of abode as conferred by Article 24(3
). Miss Cheung maintains that the fact that she was born out of wedloc
k should not affect her status as a permanent resident.
The Director's position
The Director's position is that the applicants are subject to the sche
me introduced by the No 3 Ordinance. Under the scheme, a person's stat
us as a permanent resident by descent can only be established by holdi
ng a one way permit affixed with a certificate of entitlement. None of
the applicants held such a permit, let alone a permit which was so af
fixed. By virtue of section 2AA(2) of the No 3 Ordinance, they shall b
e regarded as not enjoying the right of abode. Under the scheme they c
annot remain in Hong Kong. They have to go back to the Mainland and ap
ply through the Mainland Exit-Entry Administration for a certificate o
f entitlement and their application to that Administration for a one w
ay permit may be regarded as such an application. It is only when the
person concerned holds a one way permit affixed with a certificate of
entitlement that his permanent resident status could be established an
d, until so established, he shall be regarded as not enjoying the righ
t of abode.
This is notwithstanding that the Director is satisfied that the applic
ants (apart from Miss Cheung) are permanent residents within the third
category in Article 24(2) and Miss Cheung would also be a permanent r
esident within that category but for his contention based on the fact
that she was born out of wedlock. Further, this is notwithstanding tha
t the applicants had arrived before 10 July 1997 when no scheme existe
d. The Director maintains that the scheme still catches them because t
he No 3 Ordinance enacted on 10 July 1997 was deemed to have come into
operation on 1 July 1997.
The judicial review challenge
The applicants instituted judicial review proceedings. They seek vario
us declarations and orders quashing the Director's decisions. These ar
e test cases.
The judge
The judge (Keith J) ruled in Miss Cheung's favour on the out of wedloc
k question. Apart from that ruling, he held against the applicants and
dismissed their judicial review applications. [1997] HKLRD 1081. [199
7] 3 HKC 64.
Court of Appeal
The applicants appealed to the Court of Appeal. In Miss Cheung's case,
the Director appealed on the out of wedlock question with Miss Cheung
cross appealing on her judicial review challenge.
The Court of Appeal (Chan CJHC, Nazareth and Mortimer VPP) upheld the
judge. They heard the appeal and gave judgment in two parts. (1) They
dealt with the issues arising on the No 2 and No 3 Ordinance [1998] 1
HKC 617. (2) They dealt with the issue on the legality of the Provisio
nal Legislative Council [1998] 1 HKLRD 772, [1998] 2 HKC 382. On (1),
they upheld the judge's conclusion on the No 2 Ordinance in Miss Cheun
g's favour and his conclusion in the Director's favour on the validity
of the No 3 Ordinance. As to its retrospective provision, they (by ma
jority) held it to be valid but not applicable to pre 1 July 1997 arri
vals. On (2), they held they were bound by their earlier decision in H
KSAR v Ma Wai Kwan David [1997] HKLRD 761, [1997] 2 HKC 315 (July 1997
) that the Provisional Legislative Council was legally authorised.
Since the Court of Appeal's judgment, Mr Tsui was granted a one way pe
rmit and he left and re-entered Hong Kong on the strength of that perm
it. But nothing turns on this. For the purposes of this appeal, his po
sition should be taken as at the time of his judicial review applicati
on when he did not hold a one way permit.
The Court of Appeal granted leave to appeal to this Court. In the case
of Miss Cheung, it is the Director's appeal against the ruling on the
out of wedlock question with Miss Cheung cross appealing. In the othe
r cases, it is the applicants' appeal.
We were considerably assisted by the care with which the judgment of K
eith J and those in the Court of Appeal, particularly that of Chan CJH
C, were formulated.
The issues
The issues arising on this appeal are:
(1) Whether the Court of Final Appeal has the jurisdiction to interpre
t the relevant provisions of the Basic Law in adjudicating these cases
or is bound to seek an interpretation of such provisions from the Sta
nding Committee of the National People's Congress pursuant to Article
158 ("the reference issue").
(2) Whether the No 3 Ordinance introducing the scheme is constitutiona
l and, if not, the extent to which the No 3 Ordinance is unconstitutio
nal ("the constitutionality of the No 3 Ordinance issue").
(3) Whether section 1(2), the retrospective provision in the No 3 Ordi
nance, deeming it to have come into operation on 1 July 1997, is const
itutional ("the retrospectivity issue").
(4) Whether para 1(2)(b) of Schedule 1 introduced by the No 2 Ordinanc
e is constitutional. The effect of this provision is that where a chil
d is born out of wedlock, the relationship of parent and child is take
n to exist between father and child only if the child is subsequently
legitimated by his parents' marriage but not otherwise ("the birth out
of wedlock issue").
(5) Whether the Provisional Legislative Council was a legally constitu
ted body ("the Provisional Legislative Council issue"). If not, it wou
ld follow that the No 3 Ordinance enacted by that body would be uncons
titutional.
Representation
The applicants' representation in this Court and the courts below was
funded from public funds by legal aid. As in the courts below, their c
ase was presented by Mr Denis Chang SC and in relation to the Provisio
nal Legislative Council issue by Mr Philip Dykes SC. The case of the D
irector of Immigration was presented by Mr Geoffrey Ma SC. We are inde
bted to them and their teams for their considerable assistance.
Constitutional jurisdiction of the courts
Before turning to the issues, it is important for us first, to state t
he position as to the constitutional jurisdiction of the courts in the
Hong Kong Special Administrative Region and, secondly, to lay down th
e proper approach to the interpretation of the Basic Law.
The Region is vested with independent judicial power, including that o
f final adjudication. Article 19(1). The courts of the Region at all l
evels shall be the judiciary of the Region exercising the judicial pow
er of the Region. Article 80.
In exercising their judicial power conferred by the Basic Law, the cou
rts of the Region have a duty to enforce and interpret that Law. They
undoubtedly have the jurisdiction to examine whether legislation enact
ed by the legislature of the Region or acts of the executive authoriti
es of the Region are consistent with the Basic Law and, if found to be
inconsistent, to hold them to be invalid. The exercise of this jurisd
iction is a matter of obligation, not of discretion so that if inconsi
stency is established, the courts are bound to hold that a law or exec
utive act is invalid at least to the extent of the inconsistency. Alth
ough this has not been questioned, it is right that we should take thi
s opportunity of stating it unequivocally. In exercising this jurisdic
tion, the courts perform their constitutional role under the Basic Law
of acting as a constitutional check on the executive and legislative
branches of government to ensure that they act in accordance with the
Basic Law.
What has been controversial is the jurisdiction of the courts of the R
egion to examine whether any legislative acts of the National People's
Congress or its Standing Committee (which we shall refer to simply as
"acts") are consistent with the Basic Law and to declare them to be i
nvalid if found to be inconsistent. In our view, the courts of the Reg
ion do have this jurisdiction and indeed the duty to declare invalidit
y if inconsistency is found. It is right that we should take this oppo
rtunity of stating so unequivocally.
Under the Chinese Constitution (Articles 57 and 58), the National Peop
le's Congress is the highest organ of state power and its permanent bo
dy is the Standing Committee and they exercise the legislative powers
of the state. So their acts are acts of the Sovereign. The jurisdictio
n of the Region's courts to examine their acts to ensure consistency w
ith the Basic Law is derived from the Sovereign in that the National P
eople's Congress had enacted pursuant to Article 31 of the Chinese Con
stitution the Basic Law for the Region. The Basic Law is a national la
w and is the constitution of the Region.
Like other constitutions, it distributes and delimits powers, as well
as providing for fundamental rights and freedoms. As with other consti
tutions, laws which are inconsistent with the Basic Law are of no effe
ct and are invalid. Under it, the courts of the Region have independen
t judicial power within the high degree of autonomy conferred on the R
egion. It is for the courts of the Region to determine questions of in
consistency and invalidity when they arise. It is therefore for the co
urts of the Region to determine whether an act of the National People'
s Congress or its Standing Committee is inconsistent with the Basic La
w, subject of course to the provisions of the Basic Law itself.
This proposition gains added strength from the circumstance that the B
asic Law was enacted to implement China's basic policies regarding Hon
g Kong to remain unchanged for 50 years as declared and elaborated in
the Joint Declaration. Article 159(4) of the Basic Law provides that n
o amendment thereto shall contravene the established basic policies. T
he jurisdiction to enforce and interpret the Basic Law necessarily ent
ails the jurisdiction stated above over acts of the National People's
Congress and its Standing Committee to ensure their consistency with t
he Basic Law.
In HKSAR v Ma Wai Kwan David, which concerned the survival of the comm
on law in the new order and the legality of the Provisional Legislativ
e Council, the Court of Appeal (Chan CJHC, Nazareth and Mortimer VPP)
held, accepting the Government's submission, that the Region's courts
have no jurisdiction to query the validity of any acts of the National
People's Congress since they are acts of the Sovereign. It was held t
hat the jurisdiction of the Region's courts is a limited one to examin
e the existence (as opposed to the validity) of the acts of the Sovere
ign or its delegate. In our view, this conclusion of the Court of Appe
al as to the jurisdiction of the Region's courts is wrong. The correct
position is as stated above.
The basis of the Court of Appeal's conclusion was Article 19(2) of the
Basic Law. That provides:
" The courts of the Hong Kong Special Administrative Region shall have
jurisdiction over all cases in the Region, except that the restrictio
ns on their jurisdiction imposed by the legal system and principles pr
eviously in force in Hong Kong shall be maintained."
The Government submitted in that case that prior to 1 July 1997 Hong K
ong courts could not have questioned the constitutionality of legislat
ion of the United Kingdom Parliament vis-a-vis that country's unwritte
n constitution or the Hong Kong Letters Patent, which was Hong Kong's
constitutional document as a British colony. So, this was a restrictio
n on the jurisdiction of the Hong Kong courts "imposed by the legal sy
stem and principles previously in force" envisaged by Article 19(2). A
fter 1 July 1997, it applied equivalently to acts of the National Peop
le's Congress, so the Government argued. That submission was accepted
by the Court of Appeal.
The analogy drawn with the old order was misconceived. Prior to 1 July
1997, Hong Kong was a British colony. According to the common law, th
e United Kingdom Parliament had the supreme authority to legislate for
Hong Kong and the courts in Hong Kong could not have questioned that
authority.
For the reasons already explained, the position in the new order is fu
ndamentally different. Article 19(2) of the Basic Law provides for the
limitation on the constitutional jurisdiction of the courts "imposed
by the legal system and principles previously in force in Hong Kong".
This cannot bring to the new order restrictions only relevant to legis
lation of the United Kingdom Parliament imposed under the old order.
We should point out that Mr Ma SC for the Director at the hearing befo
re us did not maintain the submission made by the Government in HKSAR
v Ma Wai Kwan David. He in effect accepts that the Region's courts hav
e the jurisdiction we have stated to examine acts of the National Peop
le's Congress and its Standing Committee for inconsistency with the Ba
sic Law and that the decision in that case, in so far as inconsistent
with this position, was wrong.
We should also point out that in his judgment on the Provisional Legis
lative Council issue in this case, the Chief Judge stated that his vie
ws on the jurisdiction of the courts of the Region in HKSAR v Ma Wai K
wan David were expressed in the context of that case and cannot be und
erstood to mean that National People's Congress' laws and acts would p
revail over the Basic Law; the analogy he drew with the colonial court
s in that case might not have been entirely appropriate; and that it m
ight be that in appropriate cases, the courts of the Region do have ju
risdiction to examine National People's Congress' laws and acts which
affect the Region.
Any limitation on the courts' jurisdiction must be found in the Basic
Law itself. As noted above, Article 19(2) refers to the maintenance of
restrictions on their jurisdiction imposed by the legal system and pr
inciples previously in force. An example of this is in Article 19(3) w
hich provides, inter alia:
" The courts of the Hong Kong Special Administrative Region shall have
no jurisdiction over acts of state such as defence and foreign affair
s. ....."
Article 158 also contains a restriction on the Court of Final Appeal's
jurisdiction to interpret in the circumstances referred to therein pr
ovisions of the Basic Law "concerning affairs which are the responsibi
lity of the Central People's Government, or concerning the relationshi
p between the Central Authorities and the Region" and it obliges the C
ourt to seek an interpretation of the relevant provisions from the Sta
nding Committee of the National People's Congress. We shall deal with
Article 158 when we come to the reference issue.
Approach to interpretation of the Basic Law
We must begin by recognizing and appreciating the character of the doc
ument. The Basic Law is an entrenched constitutional instrument to imp
lement the unique principle of "one country, two systems". As is usual
for constitutional instruments, it uses ample and general language. I
t is a living instrument intended to meet changing needs and circumsta
nces.
It is generally accepted that in the interpretation of a constitution
such as the Basic Law a purposive approach is to be applied. The adopt
ion of a purposive approach is necessary because a constitution states
general principles and expresses purposes without condescending to pa
rticularity and definition of terms. Gaps and ambiguities are bound to
arise and, in resolving them, the courts are bound to give effect to
the principles and purposes declared in, and to be ascertained from, t
he constitution and relevant extrinsic materials. So, in ascertaining
the true meaning of the instrument, the courts must consider the purpo
se of the instrument and its relevant provisions as well as the langua
ge of its text in the light of the context, context being of particula
r importance in the interpretation of a constitutional instrument.
As to purpose, the purpose of the Basic Law is to establish the Hong K
ong Special Administrative Region being an alienable* part of the Peop
le's Republic of China under the principle of "one country, two system
s" with a high degree of autonomy in accordance with China's basic pol
icies regarding Hong Kong as set out and elaborated in the Joint Decla
ration. The purpose of a particular provision may be ascertainable fro
m its nature or other provisions of the Basic Law or relevant extrinsi
c materials including the Joint Declaration.
As to the language of its text, the courts must avoid a literal, techn
ical, narrow or rigid approach. They must consider the context. The co
ntext of a particular provision is to be found in the Basic Law itself
as well as relevant extrinsic materials including the Joint Declarati
on. Assistance can also be gained from any traditions and usages that
may have given meaning to the language used.
Chapter III of the Basic Law begins by defining the class constituting
Hong Kong residents including permanent and non-permanent residents a
nd then provides for the rights and duties of the residents, including
the right of abode in the case of permanent residents. What is set ou
t in Chapter III, after the definition of the class, are the constitut
ional guarantees for the freedoms that lie at the heart of Hong Kong's
separate system. The courts should give a generous interpretation to
the provisions in Chapter III that contain these constitutional guaran
tees in order to give to Hong Kong residents the full measure of funda
mental rights and freedoms so constitutionally guaranteed.
However, when interpreting the provisions that define the class of Hon
g Kong residents, including in particular the class of permanent resid
ents (as opposed to the constitutional guarantees of their rights and
freedoms), the courts should simply consider the language in the light
of any ascertainable purpose and the context. The context would inclu
de other provisions of the Basic Law. Of particular relevance would be
the provisions of the International Covenant on Civil and Political R
ights ("the ICCPR") as applied to Hong Kong which remain in force by v
irtue of Article 39 and any relevant principles which can be distilled
from the ICCPR.
What we have set out above cannot be and is not intended to be an exha
ustive statement of the principles the courts should adopt in approach
ing the interpretation of the Basic Law. Constitutional interpretation
, like other forms of interpretation, is essentially question specific
. As and when questions of interpretation arise, the courts will addre
ss the challenges posed by the questions raised and develop principles
as necessary to meet them.
We now turn to the issues.
The reference issue
Article 158 has been quoted in full earlier in this judgment. Article
158(1) provides that the power of interpretation of the Basic Law shal
l be vested in the Standing Committee of the National People's Congres
s. Article 158(2) provides that the Standing Committee "shall authoriz
e" the courts of the Region "to interpret on their own, in adjudicatin
g cases, the provisions of this Law which are within the limits of the
autonomy of the Region". It is clear, as is accepted by both counsel,
that this contains the constitutional authorization. The words "on th
eir own", in our view, emphasize the high degree of autonomy of the Re
gion and the independence of its courts.
But the jurisdiction of the courts of the Region is not limited to int
erpreting such provisions. For Article 158(3) provides that the courts
of the Region "may also interpret other provisions" of the Basic Law
in adjudicating cases.
But there is a limitation on this jurisdiction as far as the Court of
Final Appeal is concerned. If the courts of the Region:
"in adjudicating cases, need to interpret the provisions of this Law c
oncerning affairs which are the responsibility of the Central People's
Government, or concerning the relationship between the Central Author
ities and the Region, and if such interpretation will affect the judgm
ents on the cases, the courts of the Region shall, before making their
final judgments which are not appealable, seek an interpretation of t
he relevant provisions from the Standing Committee of the National Peo
ple's Congress through the Court of Final Appeal of the Region."
Since it is the Court of Final Appeal which can make final judgments w
hich are not appealable, this provision limits the Court of Final Appe
al's jurisdiction. Where the conditions there prescribed are satisfied
, the Court of Final Appeal has a duty to seek an interpretation of th
e relevant provisions from the Standing Committee.
Article 158(3) goes on to provide that when the Standing Committee mak
es an interpretation of the provisions concerned, "the courts of the R
egion, in applying those provisions, shall follow the interpretation o
f the Standing Committee. However, judgments previously rendered shall
not be affected".
Article 158(4) obliges the Standing Committee to consult its Committee
for the Basic Law before giving its decision on interpretation. This
Committee was established by a decision of the National People's Congr
ess on 4 April 1990. Under that decision, the Committee is a working c
ommittee under the Standing Committee. It consists of twelve members,
six respectively from the Mainland and Hong Kong, including persons fr
om the legal profession appointed by the Standing Committee. The Hong
Kong members shall be nominated jointly by the Chief Executive, Presid
ent of the Legislative Council and the Chief Justice of the Region.
Under Article 158, the power of the Hong Kong courts to interpret prov
isions of the Basic Law is "in adjudicating cases". It follows that th
e courts have no such power when not engaged in adjudicating cases. Th
is reflects the well established principle in our system that the cour
ts' role is adjudicative and not advisory. The power of interpretation
of the Region's courts is as follows. Article 158 refers to:
(a) The provisions which are within the Region's autonomy; and
(b) Other provisions of the Basic Law. Within such other provisions ar
e the two excluded categories: provisions which (i) concern affairs wh
ich are the responsibility of the Central People's Government; or (ii)
concern the relationship between the Central Authorities and the Regi
on. We shall refer to the provisions in (i) or (ii) as "the excluded p
rovisions".
Under Article 158, the lower courts have the power to interpret (a) an
d (b) including the excluded provisions. The Court of Final Appeal has
the power to interpret (a) and also the other provisions in (b) excep
t the excluded provisions.
Thus, there is no limitation on the power of the lower courts to inter
pret all the provisions of the Basic Law. The only limitation is on th
e jurisdiction of the Court of Final Appeal. The language of Article 1
58(2) emphasizes the power of all courts of the Region to interpret "o
n their own" provisions which are within the limits of the Region's au
tonomy.
As far as the Court of Final Appeal is concerned, it has a duty to mak
e a reference to the Standing Committee if two conditions are satisfie
d:
(1) First, the provisions of the Basic Law in question (a) concern aff
airs which are the responsibility of the Central People's Government;
or (b) concern the relationship between the Central Authorities and th
e Region. That is, the excluded provisions. We shall refer to this as
"the classification condition".
(2) Secondly, the Court of Final Appeal in adjudicating the case needs
to interpret such provisions (that is the excluded provisions) and su
ch interpretation will affect the judgment on the case. We shall refer
to this as "the necessity condition."
In our view, it is for the Court of Final Appeal and for it alone to d
ecide, in adjudicating a case, whether both conditions are satisfied.
It is for the Court, not the National People's Congress, to decide whe
ther the classification condition is satisfied, that is, whether the p
rovision is an excluded provision. This is accepted by both counsel fo
r the applicants and counsel for the Director.
If the classification is not satisfied, that would be an end of the ma
tter. Even if the Court needs to interpret the provisions concerned an
d the interpretation will affect the judgment on the case, the necessi
ty condition could not be satisfied since the provision in question wo
uld not be an excluded provision.
If the classification condition is satisfied, it is again for the Cour
t of Final Appeal alone to decide whether the necessity condition is m
et in the case concerned.
If the Court of Final Appeal is satisfied of both conditions, it would
be obliged to seek an interpretation of the relevant excluded provisi
ons from the Standing Committee. It is significant that what has to be
referred to the Standing Committee is not the question of interpretat
ion involved generally, but the interpretation of the specific exclude
d provisions.
As referred to above, the Director accepts that Miss Cheung but for th
e born out of wedlock point and the other applicants are permanent res
idents within the third category in Article 24(2). Article 24(3) provi
des that permanent residents have the right of abode. Under the scheme
introduced by the No 3 Ordinance, the applicants do not enjoy the rig
ht of abode unless they hold the one way permit issued by the Mainland
affixed with a certificate of entitlement issued by the Director. The
Director seeks to uphold the constitutionality of the No 3 Ordinance
on the basis that Article 24 is qualified by Article 22(4). This provi
des that for entry into the Region, people from other parts of China m
ust apply for approval. It further provides that the number of persons
who enter the Region for the purpose of settlement shall be determine
d by the competent authorities of the Central People's Government afte
r consulting the government of the Region. The Director argues that si
nce the applicants are people from other parts of China within Article
22(4), the Mainland authorities must approve their entry into the Reg
ion and this provides the constitutional basis for the scheme requirin
g their exit approval in the form of the one way permit before the rig
ht of abode can be enjoyed.
Mr Ma SC for the Director points out that Article 22(4) is within Chap
ter II headed "Relationship between the Central Authorities and the Ho
ng Kong Special Administrative Region". He submits that Article 22(4)
is an excluded provision because it falls within both the excluded cat
egories in Article 158. He submits that approval for exit concerns the
responsibility of the Central People's Government and the movement of
persons from the Mainland to the Region concerns the relationship bet
ween the Central Authorities and the Region. And on the Director's arg
ument, the Court in adjudicating this case has to interpret Article 22
(4). So in his submission, the classification and necessity conditions
are both satisfied.
Mr Ma SC makes clear that the Director is not seeking a reference to t
he Standing Committee under Article 158, but that he must draw to our
attention these submissions to enable the Court to consider whether a
reference should be made. In our view, it is proper for Mr Ma SC for t
he Director to put these submissions to us since they relate to the Co
urt's constitutional jurisdiction.
Although Mr Ma SC relies on both the excluded categories, for present
purposes, we shall assume that Article 22(4) is an excluded provision
on the sole basis that it concerns the relationship between the Centra
l Authorities and the Region.
The crucial question before us is what test the Court should apply in
considering whether the classification condition is satisfied.
Mr Ma SC submits that where (a) the Court is engaged in interpreting p
rovision X (Article 24 in this case) which, being a provision within t
he limits of the Region's autonomy, is not an excluded provision but (
b), it is arguable that provision Y (Article 22(4) in this case), whic
h on its own is an excluded provision, is relevant to the interpretati
on of provision X, then the Court is obliged to make a reference under
Article 158.
We are at the stage of considering whether the Court is obliged to mak
e a reference under Article 158. At this stage, the Court is concerned
with what is arguable and not with deciding the question of interpret
ation. That is a matter for the Standing Committee if a reference has
to be made and a matter for the Court if a reference does not have to
be made. Of course, an argument which is plainly and obviously bad wou
ld not be arguable. If the Court decides at this stage, that the point
is unarguable, that would be an end of the matter as far as a questio
n of reference is concerned. If the Court decides that it is arguable,
the Court would then consider whether the classification and necessit
y conditions are satisfied. In the present case, it is arguable that a
n excluded provision (Article 22(4)) is relevant to the interpretation
of a non-excluded provision (Article 24).
In deciding what test is to be applied in considering whether the clas
sification condition is satisfied, a purposive interpretation has to b
e adopted. An important purpose of Article 158 is the Standing Committ
ee's authorization to the Hong Kong courts including the Court of Fina
l Appeal to interpret "on their own" the provisions of the Basic Law w
hich fall outside the excluded provisions, particularly provisions whi
ch are within the Region's autonomy. This is an essential part of the
high degree of autonomy granted to the Region.
In the light of that approach, we turn to the test. Provision X (Artic
le 24 here), which is a provision within the Region's autonomy, must b
e interpreted in its context. The context naturally includes other pro
visions in the Basic Law which may be relevant to the construction of
provision X in a number of ways. For example, they may qualify provisi
on X and qualification may be by way of addition, subtraction or modif
ication. Or they may lend colour to its meaning or provide a pointer t
o its construction. On Mr Ma SC's argument, once an excluded provision
(Article 22(4) here) is so relevant, the matter would have to be refe
rred to the Standing Committee. The subject of the reference would not
be the interpretation of provision X because it is not an excluded pr
ovision; the suggestion seems to be that the subject of the reference
would be the interpretation of the excluded provision so far as releva
nt to the interpretation of provision X. Such a reference would withdr
aw from the jurisdiction of the Court the interpretation of a provisio
n (provision X) of the Basic Law which is within the limits of the aut
onomy of the Region. In our view, this would be a substantial derogati
on from the Region's autonomy and cannot be right.
In our view, the test in considering whether the classification condit
ion is satisfied is that put by Mr Chang SC for the applicants. As a m
atter of substance, what predominantly is the provision that has to be
interpreted in the adjudication of the case ? If the answer is an exc
luded provision, the Court is obliged to refer. If the answer is a pro
vision which is not an excluded provision, then no reference has to be
made, although an excluded provision is arguably relevant to the cons
truction of the non-excluded provision even to the extent of qualifyin
g it.
The test gives effect to both of the two main objects of Article 158,
that of vesting interpretation of the Basic Law, particularly the excl
uded provisions, in the Standing Committee and that of authorizing the
courts of the Region to interpret the non-excluded provisions, in par
ticular to interpret "on their own" the provisions within the limits o
f the Region's autonomy.
It is, in our view, of considerable significance that Article 158 requ
ires a reference to the Standing Committee of the interpretation of th
e relevant excluded provisions only. The Article does not require a re
ference of the question of interpretation involved generally when a nu
mber of provisions (including an excluded provision) may be relevant t
o provide the solution of that question.
Applying that test, in adjudicating this case, as a matter of substanc
e, the predominant provision which we are interpreting is Article 24,
which provides for the right of abode of a permanent resident, and the
content of that right. That Article is the very source of the right w
hich is sought to be enforced by the applicants in these appeals. That
being so, the Court, in our view, does not have to make a reference,
although Article 22(4) is arguably relevant to the interpretation of A
rticle 24.
The constitutionality of the No 3 Ordinance issue
On this issue the key question is whether A |
|