Master Chong Fung Yuen v. The Director of Immigration
Read the full judgment text of CACV 61/2000 on BabelCite. This Court of Appeal judgment was delivered on 27 July 2000.
1. This is an appeal from a judgment of Stock J who heard a judicial review of a decision of the Director of Immigration ("DI") when it was decided that the applicant, who is the respondent in this appeal did not enjoy a right of abode in the HKSAR.
Cited by 4 cases · Cites 6 cases
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CACV000061/2000 CACV 61/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 61 OF 2000 (ON APPEAL FROM HCAL 67/1999) ________________________________
___________________________________ Coram: Hon Mayo VP, Leong JA and Rogers JA in Court Date of Hearing: 4 & 5 July 2000 Date of Judgment: 27 July 2000 ______________ J U D G M E N T ______________ Hon Mayo VP: 1. This is an appeal from a judgment of Stock J who heard a judicial review of a decision of the Director of Immigration ("DI") when it was decided that the applicant, who is the respondent in this appeal did not enjoy a right of abode in the HKSAR. 2. The Judge held that the applicant was so entitled and the DI appeals from this determination. 3. The relevant facts are conveniently set out in the judgment at p. 2:
4. The applicant who is represented by Miss Gladys Li SC claims that he is a permanent resident of the HKSAR by virtue of the provisions contained Article 24(2)(1) of the Basic Law:
5. The DI contends that it is necessary to read Article 24(2)(1) in conjunction with para. 2(a) of Schedule 1 to the Immigration Ordinance, Cap. 115 which at the relevant time was in this form:
6. The Schedule was subsequently amended by Resolution of the Legislative Council on 16 July 1999 to read:
7. It will be appreciated that Article 11 of the Basic Law provides that "no law enacted by the legislature of the HKSAR shall contravene this law" which of course refers to the Basic Law. The question which had to be determined by the Judge was whether the provisions in the Immigration Ordinance which have the effect of qualifying the right conferred by Article 24(2)(1) are compatible with the Basic Law. 8. On the face of it Article 24(2)(1) is concise and clear and there would appear to be little scope for ambiguity. 9. At p. 25 of his judgment the Judge analyses the approach to be adopted towards a proper interpretation of the Basic Law. He adopted the approach recommended by the Court of Final Appeal in NG Ka-ling and others v The Director of Immigration [1999] 2 HKCFAR 4. 10. He also was of the opinion that the principles of construction of the common law were those which should be adopted in interpreting the provisions of the Basic Law. As has been pointed out by Miss Li the Judge has not been criticised for adopting this approach. The criticisms which have been levelled against him relate to his alleged failure to take cognisance of the ascertainable purpose and context of Article 24(2)(1). 11. The Judge was taken through a history of how Immigration Laws developed in Hong Kong and how this was affected by the Joint Declaration in 1984 and the promulgation of the Basic Law in 1990. Reference was then made to the functions which were exercised by the Preparatory Committee for the HKSAR of the National People's Congress including an Opinion it published on the implementation of Article 24(2). 12. In this Opinion a view was expressed along these lines:
13. This was embodied in a Working Report which was submitted to and approved by the Fifth Session of the Eighth National People's Congress. 14. According to Professor Lian Xisheng, Professor of the Chinese Politics and Law University, Beijing, Resolutions relating to Working Papers of the National People's Congress have a legal effect and provide a basis for the HKSAR Government "to make the related Immigration Laws". 15. The Judge was also referred to the Standing Committee's Interpretation of Articles 22(4) and 24(2)(3) adopted on 26 June 1999 when reliance was placed on the above Opinions on the implementation of Article 24(2). 16. Before us Mr Fok SC placed particular reliance upon para. 2 of the Standing Committee's interpretation which is in this form:
17. He submitted that it was clear from this that if a reference was made pursuant to Article 158 in relation to Article 24(2)(1) that the contentions which were being advanced by DI would inevitably be upheld. 18. Mr Fok then went on to submit that assistance could be derived from the approach adopted by Sir Anthony Mason when considering an interpretation at p. 344 of LAU Kong-yung & Others v The Director of Immigration [1999] 2 HKCFAR 300:
19. Mr Fok accepted that there had been no interpretation in the instant case. However he argued that there were a number of interfaces between the Hong Kong Law and the Laws of the People's Republic of China and when this was taken in conjunction with the very definite legal opinion given by Professor Lian there were clearly grounds to support his contention that the additional requirements laid down in para. 2(a) of the Schedule to the Immigration Ordinance were in conformity with Article 24(2)(1) of the Basic Law. 20. Mr Fok submitted that when a court embarks upon an exercise in interpreting statutory language it is necessary to ascertain the intention of the lawmaker by considering the legislation as a whole and in its proper context. This is the informed interpretation rule which is referred to in the 3rd Edition of Bennion: Statutory Interpretation. I accept the validity of this submission. I would however add that it is apparent from the lengthy and comprehensive judgment of Stock J that he was obviously mindful of this necessity. 21. In the same way as the Judge was we were taken through the history of the relevant immigration provisions. Mr Fok contended that Article 24(2)(1) represented a radical departure from the law previously obtaining. Essentially a provision was being enacted which was based upon the lex soli. He suggested that it was unlikely that the legislature would have intended this. 22. I do not consider that much assistance can be derived from this. 23. What is very clear is that the constitutional arrangements which were made in 1997 on the transfer of sovereignty were of a unique nature. 24. The United Kingdom was withdrawing from Hong Kong and it became a Special Administrative Region of the People's Republic of China. Hardly surprisingly this necessitated a significant reappraisal of the law relating to the status of the inhabitants of Hong Kong. It also was necessary to consider overall who would have rights conferred upon them to reside in the Territory. This being the case it is not likely to be particularly helpful to consider past Immigration legislation. 25. It would seem to me to be rather more realistic to have regard to Nationality Law in the People's Republic of China. Article 4 of the Nationality Law confers Chinese Nationality on a person born in China where one of the parents is of Chinese Nationality. There is no residential requirement for the parents. These requirements are much more in conformity with Article 24(2)(1) than the provisions contained in para. 2(a) of Schedule 1 of the Immigration Ordinance. 26. Mr Fok asked the rhetorical question whether it would have been in the minds of the drafters of the Basic Law to confer rights upon children born to illegal immigrants and persons in Hong Kong legally on a temporary basis. He referred to statistics on this subject. Apparently there were just over 2000 children born in Hong Kong to pregnant illegal immigrant women in 1997 and 3,600 born to women on two-way permits. It needs to be borne in mind that even these figures may need further refinement. I say this because it is likely that some of these women will have been married to men who are entitled to stay in Hong Kong and accordingly the children who have been born here would be entitled to remain in Hong Kong even according to the criteria which is now being contended for by the DI. 27. Having regard to the present total population of Hong Kong it can hardly be argued immigration on this scale poses any serious threat to the community. Indeed when Mr Fok was pressed on the subject he had to concede that even if the DI's appeal were to be dismissed there was no threat of a mass influx of immigrants. 28. The fact of the matter is that the drafters of the legislation were not only concerned with looking from the outside to see who should be permitted to remain in the Territory. They were more concerned with considering the status of those who were already resident here. 29. Notwithstanding the transitional provisions in the Schedule which of themselves may be controversial very real problems could well be encountered if the DI is right and it is necessary for anyone born in Hong Kong to also establish that one of his or her parents were permanent residents. One anomaly which may arise may be that different considerations may prevail for those born before the changeover and those born after it. 30. When considering the overall background I am of the opinion that it is useful to have regard to the provisions of the Joint Declaration. The relevant provisions are in section XIV:
31. What is clear from this is that Article 24(2)(1) is much more consistent with para. 158 than the alternative contended for by the DI. Being born in Hong Kong is sufficient to confer a right of abode without the necessity of establishing that one of the parents needs to be settled or have a right of abode in Hong Kong. 32. Assistance can also be derived from the Chinese Memorandum which was exchanged on 19 December 1984 on the signing of the Joint Declaration.
33. It is perhaps of some significance that when reference is made to "all Hong Kong Chinese compatriots" there is no qualification that there be a requirement for these compatriots to establish that one of their parents would have to be a permanent resident of Hong Kong. 34. The next matter which needs to be considered is the form of the Article as a whole. There is nothing in the Article to support the contention argued for the DI. I agree with the submission made by Miss Gladys Li that all the indications are to the contrary. 35. The drafters of the Article did not overlook the fact that there may be situations where it is necessary to provide for a requirement that the parents must be resident in Hong Kong. In particular see Articles 24(2) categories (3) and (5). 36. This would appear to make it all the more likely that the drafters did not inadvertently omit to provide for a residential requirement for persons born in Hong Kong under category 1. This is reinforced by the fact that a distinction is drawn between those in category 1 and those in category 3. 37. The final matter to be dealt with is the extrinsic materials referred to earlier in this judgment. 38. Before attempting to analyse this material it is essential to have regard to the provisions in the Basic Law dealing with the law which shall apply in Hong Kong. 39. The relevant part of Article 18 provides:
40. Article 19 provides:
41. These two Articles need to be read in conjunction with Article 8 which provides:
42. It is apparent from these Articles that the scope for the application of the National Laws of the People's Republic of China is severely circumscribed. 43. However having said this it is necessary to have regard to the provisions contained in Article 158. This provides:
44. The essential question which arises is whether an Interpretation has been sought from the Standing Committee of National People's Congress. Mr Fok accepts that so far as Article 24(2)(1) is concerned no interpretation has specifically been sought. 45. However as indicated earlier in this judgment he places considerable reliance upon the Standing Committee's Interpretation of Articles 22(4) and 24(2)(3). 46. He also called in aid the observations earlier cited from the judgment of Sir Anthony Mason in LAU Kong-yung and Others. 47. It is however very clear from this judgment that the principles which are laid down are predicated upon the premise that a reference has been made to the Standing Committee and an Interpretation has been obtained. 48. Anything less than this is unsatisfactory and in my view contrary to the provisions contained in Articles 8, 18 and 19. 49. What is of significance concerning the extrinsic materials is that there is virtually no indication that any of the problems which are likely to arise in interpreting Article 24(2)(1) have been specifically addressed either by the Preparatory Committee or the Standing Committee. 50. The matters which had to be considered when a reference was made in relation to Article 22(4) and 24(2)(3) were very different from those which had to be weighed and considered in relation to Article 24(2)(1). It is by no means obvious to me that the Standing Committee would necessarily interpret 24(2)(1) in the manner suggested by Mr Fok. 51. In my view the Judge cannot be faulted for the way in which he sought to interpret the Article and for the conclusions he reached. I consider that the appeal should be dismissed and an order nisi should be made that the applicant should have his costs. Hon Leong JA: 52. The Applicant (Respondent) in this case was born in Hong Kong on 29 September 1997. At the time of his birth, his parents were lawfully in Hong Kong after they came from the Mainland on a two-way visit permits. Neither of them were permanent residents in Hong Kong. 53. The question that falls for a decision in this appeal is whether he qualifies for permanent resident status under Article 24(2)(1) of the Basic Law of Hong Kong and this is dependent on the proper interpretation of that Article. It may be convenient to set out Article 24(2)(1) as well as Article 24(2)(2) and Article (2)(3) for the present purpose:
54. The contention of the Director of Immigration ("the Director") (Appellant) is that Article 24(2)(1)(Category (1)) does not confer eligibility to acquire the status of permanent resident of Hong Kong on any Chinese citizen born in Hong Kong whatever the circumstances of that person's birth in Hong Kong. A person claiming to be a permanent resident under Category (1) must also be born of a parent who is a permanent resident of the HKSAR. It is submitted that Article 24(2)(1) should be construed in the light of its ascertainable purpose or context. Mr Fok SC for the Director submits that the common theme of Article 24 which sets down the criteria for permanent resident status is that there must be a close and real connection with Hong Kong and Category (1) should be construed to include a requirement that one of the person's parents should be a permanent resident of Hong Kong at the time of his birth. Such construction, it is submitted, is consistent with paragraph 2(a) of Schedule 1 of the Immigration Ordinance, Cap. 115. This paragraph states as follows:
55. The intention of the legislature, so Mr Fok SC submits, is not to include those Chinese citizens born in Hong Kong of non-HKSAR permanent residents in this category. The object is to prevent pregnant women unlawfully in Hong Kong to give birth to children in Hong Kong enabling them to acquire Hong Kong permanent residence. Having regard to the history of the immigration legislation applicable in Hong Kong before the Joint Declaration it would be anomalous to construe the Article to confer that right on any Chinese citizen who by pure happenstance is born in Hong Kong. 56. It is submitted that illegal immigrants statistics dating back to 1992 produced by the immigration authority indicate that an average of more than two thousand babies were born in Hong Kong each year of pregnant women illegal immigrants and slightly more than that of pregnant women on a two-way permit to Hong Kong from the Mainland. These children if they are entitled to become permanent residents in Hong Kong, would increase population growth and exert severe demand on resources in Hong Kong. This would affect Hong Kong socially and economically. However Mr Fok accepted that this did not constitute a threat to society. 57. It is submitted that the legislature's intention that Article 24(1) includes permanent resident parentage is clear. This may be seen from the following sources:
58. Miss Gladys Li, SC's argument on the other hand is that a natural construction of the wording of Article 24(2)(1) requires only (i) the status of Chinese citizen and (ii) birth in Hong Kong before or after 1 July 1997. There is no other requirement. The Judge below was correct in concluding that there was no warrant for the requirement which the Director had sought to place on that Article. It is now firmly established since the authority of the CFA that interpretation must be in its context. 59. In my view, the language of Article 24(2)(1) is clear and unambiguous. This gives Chinese citizens born in Hong Kong at any time the right to become permanent residents. No further requirement is required. 60. This has to be contrasted with Article 24(2)(3) which concerns those Chinese citizens born outside Hong Kong and this requires an additional requirement: one of the parents must be a person qualified as a permanent resident either under Article 24(2)(1) i.e. Chinese citizen born in Hong Kong or under Article 24(2)(2) i.e. Chinese citizen who had been residing in Hong Kong for 7 years. 61. If Article 24(2)(1) is to be interpreted as contended by the Director, that it should include the requirement of permanent resident parentage, it is difficult to see why the legislature should have devised different categories under Article 24(2)(1) and Article 24(2)(3). A single category of "Chinese citizen born in or outside Hong Kong before or after the establishment of the HKSAR of a parent who is a permanent resident of Hong Kong" to replace the two would have suffice. The fact this has been done is indicative of the intention of the legislature that Article 24(2)(1) is a distinct category independent of permanent resident parentage. 62. Secondly, if the contention of the Director is right, a person falling within Article 24(2)(1) will be required to establish at least one of his parents is a permanent resident not only by reason of him or her being born in Hong Kong but also one of his or her parents is a permanent resident in Hong Kong. Thus, under Article 24(2)(3) a Chinese Nationals born outside Hong Kong, if he is relying on Article 24(2)(1), has to establish not only that one of his parents is born in Hong Kong, but also a permanent resident which status is dependent on the establishment of his grandparent having the status of permanent resident. This process would go on tracing back generations and is obviously unrealistic and falls into absurdity. This could not have been the intention of the legislature. 63. Thirdly, Section XIV of the Joint Declaration have made provisions as to the categories of persons who have the right of abode in the HKSAR. In so far as Chinese Nationals are concerned the relevant provision is at 158 which states:
64. It can be seen that the categories of Chinese citizens who are qualified for permanent resident status under Article 24 are consistent with those set out in provision 158 of the Joint Declaration which does not include the qualification the Director is now seeking to add to the meaning of Article 24(2)(1). The Basic Law is a translation into law of the intention of the Joint Declaration and the interpretation sought by the Director could not have been the intention of the legislature. 65. Fourthly, turning to the Opinion of the Preparatory Committee on the Implementation of Article 24(2), the relevant part of it states as follows:
66. The Opinion was adopted at the Fourth Plenary Meeting of the Preparatory Committee for the Hong Kong Special Administrative Region of the National People's Congress on 10 August 1996 and later embodied in a Working Report which was approved by the Eighth National People's Congress. 67. It should be noted that the Opinion in its preamble states clearly that it is for the consideration of the Hong Kong Special Administrative Region when making implementation rules. Thus, even though it has been adopted by resolution of the National People's Congress, it is not an interpretation of Article 24. It is different from the Interpretation by the Standing Committee of the National People's Congress on Article 22(4) and Article 24(2)(3)("the Interpretation") which was made after consulting the Basic Law Committee of the National People's Congress under Article 67(4) of the Constitution of the People's Republic of China and Article 158(1) of the Basic Law. The Interpretation is binding on all institutions in Hong Kong (LAU Kong-yung & Others v The Director of Immigration [1999] 2 HKCFAR 300) whereas the Opinion is not. 68. Mr Fok submits that the Standing Committee of the National People's Congress had followed the Opinion and the Interpretation covers all provisions of Article 24. Therefore, Article 24(2)(1) should be similarly interpreted in the manner sought by the Director which is consistent with the Opinion. In any case, he submits, if Article 24(2)(1) is not so interpreted, on a reference of it to the Standing Committee for interpretation, the inevitable result would be that sought by the Director. 69. I do not agree. The relevant part of the Interpretation for the present purpose reads as follows:
70. It is quite clear that the Interpretation was made pursuant to the "Motion Regarding the Request for an Interpretation of Article 22(4) and Article 24(2)(3) ..." and its binding effect is confined to the interpretation of these specific provisions of Article 22 and Article 24(2)(3). It does not extend to Article 24(2)(1). The reference that the legislative intent of other provisions of Article 24(2)(2) have been reflected in the Opinion of the Preparatory Committee does not mean these other provisions should be interpreted in the way set out in the Opinion. These other provisions had not been submitted to the Standing Committee for interpretation. 71. Until Article 24(2)(1) is submitted to the Standing Committee for interpretation, it cannot be said that the Opinion of the Preparatory Committee on Article 24(2)(1) is the legislative intention of this Article. Until that happens, how the Standing Committee, after consulting the Basic Law Committee, will interpret 24(2)(1) is just speculation. 72. Finally, the figures showing the number of babies born in Hong Kong to illegal immigrant women and women on two-way permits show approximately four to five thousand such babies were born each year since 1992. Mr Fok adduces these figures to support his argument that these births are a source of population growth which Hong Kong cannot afford if Article 24(2)(1) does not have the meaning the Director now seeks. Suffice to say, these do not assist Mr Fok's argument. They do not include figures showing the number of husbands of these women who have permanent resident status. If a baby's father is a permanent resident, on the interpretation sought by the Director, the baby acquires permanent resident status despite his mother being an illegal immigrant or being here on a temporary stay. The figures do not support the claim by the Director that if Article 24(2)(1) simply require birth in Hong Kong, there would be an influx of illegal immigrants to have their babies born in Hong Kong. 73. In my judgment, Article 24(2)(1) does not have the meaning sought by the Director. The trial Judge had gone through all aspect of the matters raised by the Director and for the reasons I gave above, his conclusion cannot be faulted. 74. The appeal should be dismissed. Hon Rogers JA: 75. The central issue in this appeal involves the construction of Article 24(2)(1) of the Basic Law. The immediate question is whether the applicant, Master Chong Fung-yuen is entitled to judicial review as found by the judge below and entitled to the declaration that he is a permanent resident of and has the right of abode in the Hong Kong Special Administrative Region ("HKSAR"). 76. The case for Master Chong is straightforward. He was born in Hong Kong on 29 September 1997. Both his parents are unquestionably Chinese nationals. On that basis, it is said he is a Chinese citizen. There is no dispute about that. In those circumstances, it is said that Master Chong falls within the definition of permanent resident under Article 24(2)(1) - "Chinese citizens born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region". 77. Whilst appreciating the force of the natural meaning of those words, Mr Fok, SC, on behalf of the Director of Immigration, says that Article 24(2)(1) does not, on its true meaning, include Chinese citizens who are born to illegal immigrants, overstayers or people residing temporarily in Hong Kong. He says that is so by necessary implication when looking at all the circumstances. 78. The matter was fully considered in the judgment of Stock J in the court below. In my view, the learned judge came to the correct conclusion for the correct reasons. I do not wish to repeat what he said nor extend this judgment unnecessarily, but I would add the following. 79. In my view, the Director can derive no assistance simply from a consideration of the Basic Law itself. Not only is the wording of the particular clause clear that it has no restrictions but the wording of the rest of Article 24 can only lead to the conclusion that where some restriction is intended, which is to be based upon a consideration of the status of the parents of the person in question, that restriction is contained in the Article. 80. In the context of the definition of those who are entitled to the most important and basic right contained in the Basic Law, I see no scope on the wording of the law itself for inferring some restriction. I would add that in view of the fact that an amendment to the Immigration Ordinance effected by a resolution on 16 July 1999 has removed that restriction in respect of persons born before 1 July 1987, the imposition of the restriction in respect of those born on or after 1 July 1987 can, in my view, only be regarded as legislatively arbitrary. 81. A consideration of the history of the immigration legislation in Hong Kong does not, in my view, lead to any different conclusion. The previous legislation, going back to 1948, was briefly considered but it simply shows that for different purposes, different criteria were laid down at different times. 82. Our attention was drawn to what was stated by the Secretary for Security when introducing the Immigration (Amendment) (No. 2) Bill 1987. I am far from satisfied that the circumstances exist which would make it proper for this court to consider such material. In my view, this case comes no way near to being one where it is established that any of the legislation is ambiguous or obscure or that its literal meaning leads to an absurdity. The conditions laid down in Pepper v. Hart [1993] AC 593 simply do not exist. Nevertheless, nothing contained in that speech of the Secretary for Security seems to me to assist. All that speech contains is a reiteration of what was contained in Section XIV of Annex 1 to the Joint Declaration. 83. In this regard, it is of course evident that Articles 24(2)(1) and (2) were taken directly from the provisions of the Joint Declaration. 84. The rather far fetched examples, which were given on behalf of the Director, of those who might be able to claim a right of abode, do not assist. In any legislation, those with ingenuity can always point to what they consider are anomalies or loopholes in the law. Importantly for this case, Mr Fok denied any suggestion that the number of people who might qualify under Article 24(2)(1) would be, in any way, alarming or likely to cause disruption in the administration of the HKSAR or any other difficulties. Our attention was drawn to the figures, for example, of those born to people in Hong Kong on two-way permits. The observation might be made that those figures were not compared with the figures of those born to people in Hong Kong. Nor was any analysis made to see whether any of those persons born to mothers on 2-way permits had fathers who were ordinary residents in Hong Kong in any event. 85. I fail to see how, whether from logic or otherwise, it can be said that it was always implicit that the right of abode would not be acquired by a person of Chinese nationality born in Hong Kong if his parents were people residing temporarily in Hong Kong (in the words of the Preparatory Committee) or whose parents were not settled in Hong Kong (in the words of Schedule 1of the Immigration Ordinance). 86. Recognising the difficulties which lay before his case, Mr Fok, placed greatest reliance upon the aspect of his case which depended upon the opinions of the Preparatory Committee, the Working Report of the Preparatory Committee and its adoption by the resolution of the Eighth National People's Congress and the interpretation given by the Standing Committee of the National People's Congress of Articles 22(4) and 24(2)(3) of the Basic Law on 26 June 1999. 87. I am by no means convinced that this material is itself something which should be considered by this court in determining this appeal. I have no doubt, having considered all the previous matters, that there is no ambiguity or obscurity which would require clarification. It is said on behalf of the Director, however, that this court should look at the material as part of the post-enacting history. It is also said that the interpretation by the Standing Committee on 26 June 1999 constitutes persuasive obiter dicta in relation to the interpretation of Article 24(2)(1). Mr Fok even goes further and says that this court should either put itself in the position of the Standing Committee interpreting the Basic Law or should, at any rate, decide the case on the same basis that he argues that the Standing Committee would decide an interpretation of Article 24(2)(1). 88. As has been observed, the material which this court is asked to consider is not contemporaneous material in the sense that it was material which led up to the enactment of the Basic Law, it is rather material which arose as part of the post-enactment history. In that respect, it seems to me that it can only have very limited application. At page 27 of his judgment, the judge drew attention to a note in the 4th edition of Halsbury's Laws of England at paragraph 1427. Such application as it does have in that respect appears from the citation of authorities to be directed mainly to the consideration of official statements published by Government departments administering an Act of Parliament: specifically in relation to tax matters. Even there, however, the consideration of such material is not universally approved, see, for example, Lord Templeman in Wicks v. Firth (Inspector of Taxes) [1983] 2 AC 214 at 236. 89. Turning first to the opinions of the Preparatory Committee which were adopted at the Fourth Plenary Meeting on 10 August 1996, it should be observed that the Preparatory Committee was first authorised to be established by a decision of the National People's Congress on 4 April 1990. At paragraph 2 of that decision, it was decided that the National People's Congress would establish a Preparatory Committee for the HKSAR which should be responsible for "preparing the establishment of the Region and shall prescribe the specific method for forming the first Government and the first Legislative Council in accordance with this Decision". 90. Paragraph 3 of that decision read :
91. This was followed on 31 March 1993 by a decision of the National People's Congress which recites that it considered a proposal submitted by the Guangdong delegation for the establishment of the Preliminary Working Commission of the Preparatory Committee. 92. On 2 July 1993, the Standing Committee of the NPC adopted a decision which established the Preparatory Committee for the HKSAR "to carry out relevant preparatory work to ensure the smooth transition in 1997 when China resumes its exercise of sovereignty over Hong Kong". 93. It can be seen therefore that the Preparatory Committee had many functions and duties, chief amongst those was preparing for the establishment of the Selection Committee and prescribing specific methods for forming the first Government and the first Legislative Council. Insofar as the Preparatory Committee then considered other aspects it was clearly a secondary aspect of their work. 94. The opinion which was adopted in the Plenary Session on 10 August 1996, commences with the statement that the opinions expressed were provided for reference for the HKSAR to formulate details of the implementation of the rules. Paragraph 1 of that opinion is heavily relied upon in this case by the Director. It reads :-
95. As was observed by Keith JA in the Commissioner for Registration v. Registration of Persons Tribunal [1999] 3 HKLRD 199 at 213, the opinion, on the face of it, merely purports to lay down the way in which the Preparatory Committee was suggesting that the HKSAR should implement Article 24. It did not purport to be and, of course, could not have been an interpretation of Article 24 in terms that common law courts understand it, nor in terms of the Basic Law. 96. I do not propose to set out the whole of what is contained in the opinion adopted in the Fourth Plenary Meeting, still less do I propose to set out all the other matters which the Preparatory Committee considered, made reports upon and delivered their opinions in respect of. The work of the Preparatory Committee was extensive. 97. It is true that the work of the Preparatory Committee was referred to by Deputy Premier Qian Qichen of his Working Report of the Preparatory Committee which was presented to the Fifth Session of the Eighth National People's Congress on 10 March 1997. However, the resolution of the Eighth National People's Congress on 14 March refers to such report only obliquely, if at all, in the words "and has also put forward proposals and advice on major economic and legal issues relating to the transfer of political power of Hong Kong and the smooth transition as well as the celebration arrangements for re-unification of Hong Kong with China". In this instance, it may be useful if I set out the other matters which were referred to in the resolution, namely :-
98. It will be seen therefore that whatever deliberations the Preparatory Committee had made in respect of Article 24(2)(1) of the Basic Law, they had been minor in comparison with all the other matters which were dealt with and the opinions expressed in the particular Working Report relating to Article 24(2)(1) could hardly have loomed large in the consideration of the resolution of the National People's Congress to which I have just referred. Put in another way, even if the National People's Congress had been alerted to the fact that the opinion expressed by the Preparatory Committee had sought to cut down the category of persons entitled to rights under the Basic Law, it could hardly be expected to be a subject of either debate or a reference in the resolution of the Congress. 99. In referring to these events as cumulatively or individually constituting expressions of opinion which should be accorded respect as an interpretation or as a declaration of legislative intent, one has to observe that it is not clear what the Preparatory Committee considered, who they consulted or what deliberations they had in respect of it. Nor is it clear that their attention was drawn to what would seem, on the face of it, to be a clear restriction of constitutional rights. 100. The comprehensive adoption of the reports by the Eighth National People's Congress was an all encompassing matter which did not even specifically mention the particular report. 101. As I have observed already, changes have now been made in 1999 to the domestic legislation which do not reflect the opinions expressed in the Working Report of the Preparatory Committee. 102. Turning to the interpretation by the Standing Committee on 26 June 1999, the first matter to be observed is that Article 24(2)(1) was not a matter of interpretation by the Standing Committee on that occasion. It is true that in the Standing Committee's interpretation, corresponded almost exactly, to the wording of paragraph 4 of the Working Report of the Preparatory Committee. Moreover, the Standing Committee concluded their interpretation with the words :-
103. Mr Fok specifically argues that this is not and was not intended to be an interpretation of Article 24(2)(1). But he says that it should be treated as obiter dicta of the highest order. He goes so far as to say it would be "nonsensical" for this court to decide this case on any basis other than by "accepting" in effect paragraph 1 of the Preparatory Committee's Working Report as a guide to the proper construction of Article 24(2)(1). It was not, however, a matter which was referred to the Standing Committee and it is not clear therefore what was considered by the Standing Committee. 104. Specific care is always taken with regard to obiter dicta because it may well constitute statements in respect of which there has been no full or proper argument. The difficulty of obiter dicta was referred to by Lord Haldane on more than one occasion. In the case of Cornelius v Phillips [1918] AC 199 at 211, he doubted whether dicta of judges, however eminent, ought to be cited as establishing authoritatively propositions of law unless they really form integral parts of the train of reasoning directed to the real question to be decided. The same sentiments were expressed by Lord Dunedin in Leeds Industrial Co-operative Society, Limited v. Slack [1924] AC 851 at 864. He said :-
These considerations are, in my view, all the more relevant in relation to interpretations by bodies where there is no representation by interested parties, still less adversarial argument. 105. A further aspect of the matter is in relation to the Basic law Committee. That Committee is consulted as part of a process of the Standing Committee making an interpretation. The Basic Law Committee was consulted prior to the 26 June 1999 interpretation, but on the face of the matter only, in relation to Article 22(4) and Article 24(2)(3). There is no indication that the Basic Law Committee was consulted in relation to Article 24(2)(1). Moreover, the observations of the Standing Committee are general observations. There is no suggestion that the Standing Committee's attention was drawn to the restriction on constitutional rights. 106. Most importantly however, obiter dicta in relation to statutory interpretation can only be of assistance to courts insofar as they indicate a process of reasoning. In none of the documents to which our attention has been drawn, be they the opinions, the Working Reports, the speech of the Deputy Premier, the resolution of the National People's Congress or the interpretation by the Standing Committee, is there any process of reasoning expressed or any indication given as to why there should be any limitation of what otherwise would be clear constitutional rights. There is, in consequence, very little basis for deriving any assistance as to the proper interpretation of the words of Article 24(2)(1) from the opinions or Working Report of the Preparatory Committee or any of the materials consequent thereon or the interpretation of June 1999. 107. Insofar as it is suggested that this court should approach the question on the basis of the Standing Committee would interpret Article 24(2)(1) in the same way as is expressed in the opinions of the Preparatory Committee, I see nothing to suggest that that would be so. In any event, the question of the powers of the Standing Committee, and the scope and ambit of any powers of interpretation by the Standing Committee has not been the subject of any detailed argument. The only assistance which this court could gain is from Professor Lian's opinion which might in part give rise to the suggestion that legislative interpretation is different from interpretation by the courts. 108. This court applies the common law in its interpretation of the Basic Law. The Basic Law itself makes clear, in amongst other Articles, Articles 8, 18, 19, 84, 85 and 88, that that is so. In doing so, it can only approach the question of interpretation as is done in common law courts. In my view, the position is clear. 109. I too would dismiss this appeal. Hon Mayo VP: 110. Accordingly this appeal is dismissed and an order nisi is made that respondent is to have his costs. His costs will also be taxed in accordance with the Legal Aid Regulations.
Representation: Miss Gladys Li, SC & Mr S H Kwok, instructed by Messrs Clarke & Kong, for the respondent Mr Joseph Fok, SC & Mr Jat Sew Tong, Secretary for Justice for the appellant |
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