Tsui Kuen Nang v. The Director of Immigration

FACV000015A/1998

FACV No. 14 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 14 OF 1998 (CIVIL)

(ON APPEAL FROM CACV No. 216 OF 1997)

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FACV No. 15 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 15 OF 1998 (CIVIL)

(ON APPEAL FROM CACV No. 217 OF 1997)

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FACV No. 16 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 16 OF 1998 (CIVIL)

(ON APPEAL FROM CACV No. 203 OF 1997)

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Date of Hearing: 26 February 1999

Date of Judgment: 26 February 1999

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J U D G M E N T

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Chief Justice Li:

1. This is the unanimous judgment of the Court.

2. On 29 January 1999, the Court gave judgment in these appeals. On 24 February 1999, the Director of Immigration filed a notice of motion applying for clarification of that part of the judgment which relates to the National People's Congress and its Standing Committee. The ground stated in the motion is that the matter is of great constitutional, public and general importance.

3. This application invites the Court to take an exceptional course. After a judgment is given, it is for the public and the legal profession to consider that judgment. Where appropriate, the Court can be asked to consider it in a subsequent case. However, we are faced with an exceptional situation. Various different interpretations have been put on the part of the Court's judgment referred to in the motion and this has given rise to much controversy.

4. Having regard to these circumstances and the limitations on the proper exercise of judicial power, we are prepared to take the exceptional course under our inherent jurisdiction of stating the following.

5. The courts' judicial power is derived from the Basic Law. Article 158(1) vests the power of interpretation of the Basic Law in the Standing Committee. The courts' jurisdiction to interpret the Basic Law in adjudicating cases is derived by authorization from the Standing Committee under Articles 158(2) and 158(3). In our judgment on 29 January 1999, we said that the Court's jurisdiction to enforce and interpret the Basic Law is derived from and is subject to the provisions of the Basic Law which provisions include the foregoing.

6. The Court's judgment on 29 January 1999 did not question the authority of the Standing Committee to make an interpretation under Article 158 which would have to be followed by the courts of the Region. The Court accepts that it cannot question that authority. Nor did the Court's judgment question, and the Court accepts that it cannot question, the authority of the National People's Congress or the Standing Committee to do any act which is in accordance with the provisions of the Basic Law and the procedure therein.

Representation:

Mr Denis Chang SC, Mr Philip Dykes SC and Mr S H Kwok (instructed by M/s Clarke & Liu and assigned by the Director of Legal Aid) for the Appellants in FACV Nos 14 & 15 of 1998 and the Respondent in FACV No 16 of 1998

Mr Geoffrey Ma SC and Mr Joseph Fok (instructed by the Department of Justice) for the Respondent in FACV Nos 14 & 15 of 1998 and the Appellant in FACV No 16 of 1998