THE DIRECTOR OF IMMIGRATION (Appellant) v Master CHONG FUNG-YUEN (Respondent) (an infant by his grandfather and next friend CHONG YIU-SHING)

Read the full judgment text of FACV 000026/2000 on BabelCite. This FACV judgment was delivered on 20 July 2001 before Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ.

Constitutional law – Hong Kong – Basic Law – interpretation – Article 24(2)(1) – Chinese citizens born in Hong Kong – permanent residents – right of abode – Immigration Ordinance Cap. 115 Schedule 1 paragraph 2(a) – parental requirement – consistency with Basic Law – Article 158(3) – excluded provisions – judicial reference to Standing Committee of NPC – classification condition – necessity condition – common law approach to interpretation – Preparatory Committee's Opinions – whether Article 24(2)(1) is an excluded provision under Article 158(3) – Court of Final Appeal held Article 24(2)(1) is within the HKSAR's autonomy and not an excluded provision so no judicial reference required – proper interpretation of Article 24(2)(1) is plain and unambiguous, meaning Chinese citizens born in Hong Kong before or after 1 July 1997, with no implied parental qualification – parent requirement in paragraph 2(a) of Schedule 1 inconsistent with Article 24(2)(1) – statement in NPCSC Interpretation that the legislative intent of all other categories of Article 24(2) is reflected in the Preparatory Committee's Opinions is not a binding interpretation of Article 24(2)(1) and cannot override the clear meaning of the language on the common law approach – appeal dismissed with no order as to costs and order for taxation of respondent's costs under the Legal Aid Ordinance.

Legal issues: Whether Article 24(2)(1) of the Basic Law is an excluded provision requiring a judicial reference under Article 158(3) · Whether the parent requirement in paragraph 2(a) of Schedule 1 to the Immigration Ordinance is inconsistent with Article 24(2)(1) of the Basic Law

Outcome: Director's appeal dismissed. The respondent is declared a permanent resident of the HKSAR with the right of abode under Article 24(2)(1) of the Basic Law.

Cited by 1 case