Read the full judgment text of CACV 203/1997 on BabelCite. This Court of Appeal judgment was delivered on 2 April 1998 before Chan, CJHC, Nazareth, V.-P. and Mortimer, V.-P..
Constitutional law – Basic Law – interpretation – right of abode – permanent residents – Article 24(3) – Article 22(4) – Immigration (Amendment) (No.2) Ordinance 1997 – Immigration (Amendment) (No.3) Ordinance 1997 – Certificate of Entitlement – one-way exit permit – retrospective operation – accrued rights – presumption against retrospectivity – International Covenant on Civil and Political Rights – Hong Kong Bill of Rights – Article 12(1) – Article 15(1) – Article 8(4) – UN Convention on the Rights of the Child – Vienna Convention on the Law of Treaties – interpretation of international treaties and constitutional documents – purposive construction – illegitimacy – father-child relationship – discrimination – right of abode as common law right – R v Bhagwan – Ministry of Home Affairs v Fisher – Attorney General of the Gambia v Jobe – HKSAR v Ma Wai Kwan – Chinese nationals born outside Hong Kong of Hong Kong permanent residents – Provisional Legislative Council – judicial review – four test cases – whether children of Chinese nationality born outside Hong Kong of Hong Kong permanent residents must obtain Certificate of Entitlement through BEEA and affix to a valid travel document before exercising right of abode – whether Article 22(4) qualifies substantive right of abode under Article 24(3) – whether retrospective operation of No.3 Ordinance valid – whether retrospective provision unconstitutional as affecting accrued rights or retrospectively criminalising conduct – whether paragraph 1(2)(b) of Schedule 1 to No.2 Ordinance excluding illegitimate children of male permanent residents from Article 24(3) unconstitutional – held unanimously that No.3 Ordinance is constitutional as it gives effect to Article 22(4) – held unanimously that father-child definition in No.2 Ordinance is unconstitutional as it detracts from the clear scope of Article 24(3) which is concerned with birth and not status – by majority, retrospective provision held valid but does not affect two applicants who entered Hong Kong before 1 July 1997, since Article 22(4) is prospective and cannot retrospectively curtail substantive right of abode – retrospective provision held to apply to the two applicants who entered on 1 July 1997 – Director of Immigration's appeal in CACV 203 dismissed – appeals of Cheung Lai Wah and Yeung Ni Ni allowed; appeals of Ng Ka Ling, Ng Tan Tan and Tsui Kuen Nang dismissed on the issues argued – legality of Provisional Legislative Council reserved for later determination – on further appeal to Court of Final Appeal (FACV 16/1998), declarations granted in favour of the applicant.
Legal issues: Constitutionality of the No.3 Ordinance and the certificate of entitlement/exit permit scheme · Validity of the retrospective provision in section 1(2) of the No.3 Ordinance · Validity of the parent-child relationship definition in the No.2 Ordinance excluding illegitimate children of male permanent residents
Outcome: Court of Appeal held unanimously that the No.3 Ordinance is constitutional; unanimously that paragraph 1(2)(b) of Schedule 1 to the No.2 Ordinance (excluding illegitimate children of male Hong Kong permanent residents from Article 24(3)) is unconstitutional; by majority, that the retrospective provision in section 1(2) of the No.3 Ordinance does not affect Cheung Lai Wah (CACV 203) and Yeung Ni Ni (CACV 218) who had entered Hong Kong before 1 July 1997, but does affect Ng Ka Ling, Ng Tan Tan (CACV 216) and Tsui Kuen Nang (CACV 217) who entered on 1 July 1997. Cheung's cross-appeal and Yeung's appeal succeed; the Director's appeal in CACV 203 fails. The legality of the Provisional Legislative Council was reserved.
Cites 4 cases