Lau Kong Yung and Others v. Director of Immigration

HCAL000021X/1999

HCAL 20/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 20 OF 1999

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AND

HCAL 21/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 21 OF 1999

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Coram: The Hon. Mr. Justice Yeung in Court

Dates of Hearing: 22 and 23 March 1999

Date of Delivery of Judgment: 30 March 1999

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J U D G M E N T

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1. These are applications by the applicants for writs of Habeas Corpus Ad Subjiciendum and to judicially review the decision of the Director of Immigration (the Director) to remove them from Hong Kong. Leaves for their doing so had been earlier granted by me.

2. The 4th applicant, Hung Nei La's status as a permanent resident of the HKSAR has been established. She has in fact been issued with a Hong Kong identity card. Her application will therefore be dealt with by way of a consent order and she is no longer concerned with the present applications.

3. It is convenient to divide the remaining 17 applicants in into two groups. The first group consists of A1(Lau Kong Yung), A2(Lam Yuen Ping, A3 (Hung Tung Leong), A5(Hui Mau King), A6(Chung Hung Wa), A7 to A14(Tsang Yung Chuen, Au Yeung Cheung Fan, Li Shan Shan, Lau Man Lung, Li Kwok Chiu, Chung Wai Li, Chan Yee Wan, Wu Puyuan), A17(Ma Hung Chau) and A18 (Wong Luen Kuen).(the first group). The second group consists of A15(Kwok Leung Tin) and A16(Ching Lai Yung) (the second group).

4. The backgrounds of the applicants are not exactly alike. For the purpose of the present proceedings, it has been agreed that they can be treated as persons of Chinese nationality born on the Mainland. They came to Hong Kong on two way Chinese Exit permit and have overstayed. They were detained and have been served by the Director with Removal Orders under section 19(1)(b) of the Immigration Ordinance.

5. The applicants all claim to be children of Hong Kong permanent residents. They have some documents to support such claims.

6. In the "Summary of Facts and Reasons for Removal" served on the first group, the reasons for removal was that they had contravened the condition of stay by overstaying in the Hong Kong Special Administrative Region (the HKSAR) and their status as a permanent resident of the HKSAR under paragraph 2(c) of Schedule 1 to the Immigration Ordinance cannot be established in accordance with section 2AA (1) of the same Ordinance. The "Summary of Facts" bears a pro forma paragraph as follows:-

"Though XXX was born in the Mainland of China to his Hong Kong permanent resident father/parents, XXX, his status as a permanent resident of the HKSAR under paragraph 2(c) of Schedule 1 to the Immigration Ordinance cannot be established in accordance with section 2AA(1) of the same Ordinance."

7. The second group have documents, some of which are said to have been issued by authorities in China. Such documents are consistent with their claims to be children of Hong Kong permanent residents. In the "Summary of Facts and Reasons for Removal" served on the second group, it is stated that they claimed to be children of permanent residents of the HKAR.

8. The applicants all claim to be persons of Chinese nationality born on the Mainland China (the Mainland) of permanent residents of Hong Kong. They therefore claim themselves to be permanent residents of the HKSAR under Article 24(3) of the Basic Law. Most of the applicants were born at the time when both of their parents did not have the right of abode in Hong Kong. The rest were born after at least one of their parents had the right of abode in Hong Kong.

9. Article 24 of the Basic Law provides that the permanent residents of the HKSAR shall be the six categories of persons set out therein. For the purpose of the present applications, only the first three categories are relevant and they are:-

"(1) Chinese citizens born in Hong Kong before or after the establishment of the HKSAR;

(2) Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the HKSAR;

(3) Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2);"

10. Article 24 further provides that permanent residents shall have the right of abode in the HKSAR and shall be qualified to obtain, in accordance with the laws of the Region, permanent identity cards which state their right of abode.

11. Immediately after the resumption of the exercise of sovereignty over Hong Kong on 1.7.1997 by the People's Republic of China, the Provisional Legislative Council enacted the Immigration (Amendment)(No. 2) Ordinance (the No. 2 Ordinance) which slightly restricts the first three categories of permanent residents of the HKSAR as:-

"(a) A Chinese citizen born in Hong Kong before or after the establishment of the HKSAR if his father or mother 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 continuous period of not less than 7 years before or after the establishment of the HKSAR.

(c) A person of Chinese nationality born outside Hong Kong to a parent who is a permanent resident of the HKSAR in category (a) or (b) if the parent had the right of abode in Hong Kong at the time of the birth of the person."

12. The No. 2 Ordinance, under Schedule 1 thereto also excludes from the relationship of "parent and child" a father and a child born to him out of wedlock unless the child is subsequently legitimated by his parents' marriage.

13. On 10.7.1997, the Provisional Legislative Council enacted the Immigration (Amendment)(No. 3) Ordinance (the No. 3 Ordinance). The No. 3 Ordinance is deemed to have come into operation on 1.7.1997.

14. The No. 3 Ordinance contains a scheme (the Scheme) providing the only way in which a person's status as a permanent resident by reason of his Chinese nationality born outside Hong Kong of a permanent resident of the HKSAR can be established.

15. The relevant sections of Part 1B of the No. 3 Ordinance are as follows:-

"2AA. Establishing status of permanent resident under paragraph 2(c) of Schedule 1

(1) A person's status as a permanent resident of the HKSAR under paragraph 2(c) of Schedule 1 can only be established 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.

(2) A person's right of abode in Hong Kong by virtue of his being a permanent resident of the HKSAR under paragraph 2(c) of Schedule 1 can only be exercised upon the establishment of his status as such a permanent resident in accordance with subsection (1) and, accordingly, where his status as such a permanent resident is not so established, he shall, for the purposes of this Ordinance, be regarded as not enjoying the right of abode in Hong Kong.

2AB. Certificate of entitlement

(1) any person who-

(a) immediately before 1 July 1997 did not enjoy the right of abode in Hong Kong under this Ordinance as then in force;

(b) is not the holder of a valid HKSAR passport or valid permanent identity card; and

(c) claims to be a permanent resident of the HKSAR under paragraph 2(c) of Schedule 1,

may apply to the Director for a certificate of entitlement.

(2) An application under subsection (1)-

(a) shall be made in such manner as the Director may specify by notice in the Gazette;

(b) may be made on behalf of an applicant by his parent, legal guardian or any other person acceptable to the Director and for the purposes of subsection (6)(b)(ii) and (iii) and section 2AD(1) such parent, legal guardian or other person shall be regarded as the applicant.

(3) An application under subsection (1) which is not made in accordance with subsection (2)(a) and accompanied by the prescribed fee, if any, shall not be accepted.

(4) A notice under subsection (2)(a) is not subsidiary legislation.

(5) For the removal of doubt, it is hereby declared that the making of an application under subsection (1) does not give the applicant the right of abode or right to land or remain in Hong Kong pending the decision of the Director on the application.

(6) Upon receipt of an application under subsection (1), the director acting through an immigration officer authorized by him shall-

(a) where he is satisfied upon such proof specified by the Director that the applicant is a permanent resident of the HKSAR under paragraph 2(c) of Schedule 1, issue a certificate of entitlement to the applicant in the prescribed form and in such manner as the Director may determine;

(b) where he is not satisfied that the applicant is a permanent resident of the HKSAR under paragraph 2(c) of Schedule 1-

(i) refuse the application;

(ii) notify the applicant in writing the reason of the refusal;

(iii) inform the applicant the right of appeal to the Tribunal."

16. Section 2AE also provides that no application for leave to apply for judicial review may be made in respect of the refusal to grant a certificate of entitlement unless and until the Tribunal has made a decision on an appeal lodged in respect of the refusal by the Director.

17. The Gazette Notice (the said Gazette Notice) under section 2AB(2)(a) was published on 11 July 1997 which provides the following:-

"Immigration Ordinance (Chapter 115)

APPLICATION FOR CERTIFICATE OF ENTITLEMENT

It is hereby notified that, in exercise of the powers conferred by section 2AB(2)(a) and section 2AC(2)(a) of the Immigration Ordinance (Chapter 115), the Director of Immigration has made the following provisions:-

"Authority to whom an application for a Certificate of Entitlement.....is to be made

A. An application for a Certificate of Entitlement or certified duplicate by a person who claims to have the right of abode in Hong Kong under paragraph 2(c) of Schedule 1 to the Immigration Ordinance shall be made to the Director of Immigration in the following manner:-

(i) if he is at the time of application residing in the Mainland of China, through the Exit-Entry Administration of the Public Security Bureau in the district where he is residing;

(ii) if he is at the time of application residing outside China, through the Chinese Embassy or Consulate in the country or territory where he resides or by post to the Director of Immigration direct;

(iii) if he is at the time of application residing in the region of Taiwan or Macau, by post to the Director of Immigration direct.

B. In the case that the person is at the time of application residing in the Mainland of China, an application for an exit permit to Hong Kong and Macau made to the Exit-Entry Administration of the Public Security Bureau under the laws in force in the Mainland of China for settlement in Hong Kong, whether before or after the gazetting of this notice. may be regarded as an application for a Certificate of Entitlement or certified duplicate.

C. For the purpose of making an application for a Certificate of Entitlement or certified duplicate:-

(i) a person who stays in Hong Kong without the authority of the Director of Immigration after landing in Hong Kong without the permission under section 11(1) of the Immigration Ordinance and was ordinary resident in the Mainland of China immediately before such landing shall be regarded as residing in the Mainland of China during such stay in Hong Kong; and

(ii) a person who has been given permission under section 11(1) of the Immigration Ordinance to land in Hong Kong and is subject to the conditions of stay specified in Regulation 2(1) or (2) of the Immigration Regulations during his stay after such landing and was ordinarily resident in the Mainland of China immediately before such landing shall be regarded as residing in the Mainland of China during such stay in Hong Kong................................"

18. The intention of the Provisional Legislative Council, as demonstrated in the No. 3 Ordinance and the said Gazette Notice is clear on the following aspects:-

(1) Anyone who claims to be a permanent resident of the HKSAR by reason of his Chinese nationality born outside Hong Kong to a permanent resident of the HKSAR can only establish his status by holding a certificate of entitlement.

(2) Without the certificate of entitlement, the applicant is to be regarded as not having the right of abode in Hong Kong.

(3) An applicant for a certificate of entitlement does not have the right of abode or the right to land or remain in Hong Kong.

(4) An applicant who resides in the Mainland must make his application in the Mainland.

(5) An applicant who ordinarily resides in the Mainland and comes to Hong Kong without authority or breaches his condition of stay shall be regarded as residing in the Mainland and he must therefore make his application in the Mainland.

(6) An applicant who fails to obtain the certificate of entitlement cannot apply to judicially review the decision of the Director until after he appeals to the Tribunal and the Tribunal has made a decision on the appeal.

19. The constitutionality of the provisions in the No. 2 Ordinance, the No. 3 Ordinance and the said Gazette Notice has been scrutinised recently by the Court of Final Appeal in the high profile cases of Chan Kam Nga v. Director of Immigration Final Appeal No. 13 of 1998 (Civil), Ng Ka Ling and others v. Director of Immigration Final Appeal No. 14 of 1998 (Civil), Tsui Kuen Nang v. Director of Immigration Final Appeal No. 15 of 1998 (Civil) and Director of Immigration v. Cheung Lai Wah Final appeal No. 16 of 1998 (Civil).

20. In Chan Kam Nga's case, the Court of Final Appeal unanimously held that a person of Chinese nationality born outside Hong Kong to a parent who is a permanent resident of the HKSAR is himself a permanent resident whether the right of abode of the parent was acquired before or after the birth that person.

21. In so far as the No. 2 Ordinance adds the following words "if the parent had the right of abode in Hong Kong at the time of the birth of the person" to restrict the third category of permanent resident, those additional words were held to be "irremediably unconstitutional and null and void."

22. In the consolidated cases of Ng Ka Ling, Tsui Kuen Nang and Cheung Lai Wah, the Court of Final Appeal also unanimously decided that the following provisions to be unconstitutional, namely:

(1) The provision in the No. 3 Ordinance that a permanent resident of the HKSAR residing on the Mainland must hold a valid travel document (the One-way permit) issued to him before he can enjoy the constitutional right of abode;

(2) The retrospective provision under the No. 3 Ordinance that it was deemed to have come into operation on 1 July 1997; and

(3) The provision that a child born to a father out of wedlock is to be excluded from the relationship of "parent and child".

23. However, the Court of Final Appeal unequivocally endorsed the Scheme which requires a claimant to apply for and to obtain a certificate of entitlement from the Director as the only means to establish his status as a permanent resident under category 3 of Article 24 of the Basic Law. At page 61 of the judgment, the Court of Appeal made the following observation:-

"It follows that the No. 3 Ordinance is unconstitutional to the extent that it requires permanent residents of the Region residing on the Mainland to hold the one way permit before they can enjoy the constitutional right of abode.

However, it does not follow that the entire scheme introduced by the No. 3 Ordinance is unconstitutional. One must distinguish between a permanent resident who enjoys the right of abode on the one hand and a person claiming to be a permanent resident on the other hand. It is reasonable for the legislature to introduce a scheme which provides for verification of a person's claim to be a permanent resident. In our view, the scheme, apart from the requirement of the one way permit, is constitutional as it cannot be said to go beyond verification. Therefore, the scheme is constitutional in requiring a claimant to apply for and obtain a certificate of entitlement from the Director and providing that his status as permanent can only be established by his holding such a certificate. Further, the provisions of the scheme whereby he must stay in the Mainland whilst applying for such a certificate and whilst appealing against any refusal of the Director to issue a certificate are also constitutional. He has a right to land as part of his right of abode as a permanent resident. But his claim to that status must first be verified.

In holding the scheme (apart from the one way permit requirement) to be constitutional as it is directed towards verification, we have taken into account that the Director must operate it lawfully in a fair and reasonable manner and that there are safeguards to which its operation is subject."

24. The Court of Final Appeal continues at pages 68 and 69 of its judgment:-

"........The No. 3 Ordinance as severed introduced a scheme whereby their status as permanent residents can only be established by their holding a certificate of entitlement and, without it, they are regarded as not enjoying the right of abode....................................................................................... Prior to 10 July 1997, permanent residents (such as the applicant who are accepted by the Director to be such within the third category in Article 24(2) enjoyed the constitutional right of abode and were therefore entitled to land and remain. But if the retrospective provision in the No. 3 Ordinance were constitutional, its operation would have involved them retrospectively in the commission of criminal offences. Under the scheme as severed, they must hold a certificate of entitlement. Without it, their status was treated as not established and they must be regarded as not enjoying the right of abode. So they had no right to land or remain and their doing so would constitute criminal offences under section 38 of the Immigration Ordinance. This provision prohibits landing or remaining without permission and contraventions are criminal offences."

25. The Court of Final Appeal, by its judgment clearly indicates that anyone who comes to Hong Kong after 10.7.1997 otherwise than through an immigration control point or who overstays in breach of the condition of stay is not entitled to enjoy any right of abode by claiming to be a permanent resident within the third category in Article 24 of the Basic Law. What he does in fact constitutes a criminal offence.

26. He must hold a certificate of entitlement before he can enjoy such constitutional right of abode and without it, his status is treated as not established and he must be regarded as not enjoying the right of abode.

27. The Court of Final Appeal further held that people with similar background as the applicants must stay in the Mainland whilst applying for such a certificate.

28. Paragraph C(i) and (ii) of the said Gazette Notice to the effect that people who come to Hong Kong from the Mainland illegally or who overstay in breach of the condition of stay shall be regarded as residing in the Mainland during such stay in Hong Kong are also held to be constitutional.

29. Mr. Dykes, on behalf of the applicants makes principally four points in support of their applications. Firstly, as far as the first group is concerned, the Director in the "Summary of Facts and Reasons for Removal" addressed to them, had in fact 'verified' them to be permanent residents. The Director must therefore treat them as permanent residents who have the right of abode in Hong Kong, namely the right "to enter without let or hindrance when he pleases and to remain...............as long as he wishes....."

30. As for the second group, the Director has not acknowledged in the "Summary of Facts and Reasons for Removal" addressed to them that they are children of Hong Kong permanent residents. The reason is because after the hearing on 15.2.1999 for leave, the Director realises the legal consequence of acknowledging those facts, hence the change of his stance in the matter. As the applicants have produced unchallenged evidence to support such claims and the court should find such claim established on a balance of probability.

31. Mr. Dykes suggests that even though the applicants may not have established their status in the manner prescribed by the said Gazette Notice and therefore do not enjoy the right of abode for the purposes of the Immigration Ordinance, any removal orders made against them would still be unconstitutional as it is a removal of a person whom the Director is satisfied has, and does in fact have, the right of abode under Article 24 of the Basic Law.

32. For the same reason, the further detention of the applicants is also unlawful notwithstanding the provisions of s. 2AA(2) of the Immigration Ordinance. The applications for Habeas Corpus should be granted even the applicants are no longer in physical detention as they are on recognizance and therefore are subject to restraint and are not genuinely at liberty.

33. Secondly, the restrictions contained in the Scheme under Part 1B of the No. 3 Ordinance have no application to those applicants whose parents only obtained the right of abode in Hong Kong after their births. They are therefore excluded from the Scheme.

34. Thirdly, as the arrangement under the said Gazettes Notice for applicants living on the Mainland to apply for the certificate of entitlement had been ruled unconstitutional by the Court of Final Appeal and the Director has not made any new arrangements, the Director had failed to carry out his statutory duties. The Director has also failed in his duties to provide an arrangement whereby application for the certificate of entitlement can be made in Hong Kong.

35. Mr. Dykes suggests that it is wrong for the Director to remove the applicants to the Mainland where there are no constitutional arrangements in place for the application of certificate of entitlement. The applicants should be allowed to remain in Hong Kong pending their applications for certificates of entitlement in Hong Kong

36. Fourthly, taking into consideration the aforesaid matters, together with the risks that if sent back to the Mainland, the applicants' constitutional right of abode, even if established would be delayed or denied by reason of the attitude of the Mainland authorities, the decision to remove the applicants is such an unreasonable decision that no reasonable authority could have made.

37. Mr. Dykes suggests that a more reasonable approach for the Director to adopt is to maintain the status quo by allowing the applicants to remain in Hong Kong pending the outcome of further discussions with the Mainland authorities and the implementation of a new scheme. Alternatively, the Director could regularise the status of the applicants by accepting that they are permanent residents of the HKSAR.

38. I do no accept the suggestion that when the Director stated in the "Summary of Facts and Reasons for Removal" words to the effect that "so and so was born to his Hong Kong permanent resident father", it is an acceptance by the Director that so and so is in fact the child of a Hong Kong permanent resident.

39. The only reason for the issue of the removal order as stated in the order itself is that "the applicant has contravened the condition of stay by overstaying in the HKSAR and his status as a permanent resident of the HKSAR under paragraph 2(c) of the Schedule 1 to the Immigration Ordinance cannot be established in accordance with section 2AA(1) of the same Ordinance."

40. In the issue of the removal order, the Director did not have to decide if the subject of the removal order was or was not the child of a Hong Kong permanent resident. He only needed to decide if he held a certificate of entitlement and if he had overstayed his two-way permit.

41. Looking at the "Summary of Facts and Reasons for Removal" in question, the sentence in question is nothing more than an acknowledgement of such "Facts" as alleged by the applicants.

42. The aforesaid approach is consistent with the stance taken by the Director. I have considered the affirmations of Mr. Chun Yiu and Mr. Mak Kwai Yun who were responsible for the issues of the removal orders in question. I have also taken into consideration their evidence under cross examination by Mr. Dykes which was made available at his request.

43. I feel unable to reject their evidence that they did not make any findings of facts on the applicants' claim to have the relationship of parent and child with a Hong Kong permanent resident as there was no need for them to do so in making the removal orders against the applicants. Such evidence, in my view is consistent with the background of the case and the legislation then in force.

44. In any event, the "acknowledgement" by the Director cannot be a 'verification' of the applicants' status as permanent residents in accordance with the Immigration Ordinance and the said Gazette Notice.

45. The No. 3 Ordinance and the said Gazette Notice stipulate that the only way in which a person can establish his status as a permanent resident by reason of his being a Chinese national born outside Hong Kong of a permanent resident of the HKSAR is by holding a certificate of entitlement. There is no other 'recognised' way.

46. If the Director purports to accept that a person is a Chinese national born outside Hong Kong of a permanent resident of the HKSAR and thus has the right of abode in Hong Kong as a permanent resident when he does not hold a certificate of entitlement, the Director is not acting within the law and such acceptance is null and void and of no effect. The applicants are not entitled to rely on the "acceptance" to strengthen their cases.

47. In so far as Mr. Dykes keeps on repeating the assertion that the applicants are permanent residents with the right of abode in the HKSAR under Article 24 of the Basic Law and bases his argument on such assertion, the argument has no valid foundation. He is in fact "putting the cart before the horse".

48. The applicants must obtain the certificate of entitlement first before they can be permanent residents of the HKSAR under Article 24 of the Basic Law. Before the status of the applicants are so established, they do not enjoy the right of abode in the HKSAR.

49. The aforesaid conclusion is inescapable on a careful and proper understanding of the effect of the No. 2 Ordinance, the No. 3 Ordinance, the said Gazette Notice and the judgment of the Court of Final Appeal in Ng Ka Ling's case.

50. Mr. Dykes argues that the Scheme does not apply to those applicants whose parents did not have the right of abode in Hong Kong at the time of their births. He said they should be excluded from the restrictions of the Scheme all together.

51. I do not agree with such submission.

52. Article 24(3) of the Basic Law provides that persons of Chinese nationality born outside Hong Kong of permanent residents are themselves permanent residents.

53. The No. 2 Ordinance seeks to limit the category to those with a parent who had the right of abode in Hong Kong at the time of their births. Such addition was held to be unconstitutional by the Court of Final Appeal in Chan Kam Nga's case.

54. With or without the addition in the No. 2 Ordinance, the No. 3 Ordinance applies to "A person of Chinese nationality born outside Hong Kong to a parent who is a permanent resident of the HKSAR" if he wishes to rely on such status to establish his status as a permanent resident of the HKSAR.

55. Prior to the delivery of the judgment by the Court of Final Appeal in Ng Ka Ling's case, those applicants who do not have a parent with the right of abode at the time of their births had been wrongly excluded. But once they are included by the excision from paragraph 2(c) of Schedule 1 of the Immigration Ordinance the unconstitutional words namely, "if the parent had the right of abode at the time of the birth of that person", and are therefore entitled to the benefit of Article 24(3) of the Basic Law, they are also subject to sections 2AA and 2AB of the Ordinance. They must obtain certificates of entitlement before their status as permanent residents of the HKSAR can be established.

56. If the argument of Mr. Dykes is correct, those applicants whose parents acquired their right of abode in Hong Kong only after their births will not be subject to the Scheme at all. There will be no enactment of procedures by the Legislature to establish the rights or status applicable to those applicants when such enactment "is a common feature of modern legislation, particularly in the fields of nationality and immigration".

57. The approach as suggested by Mr. Dykes will lead to extreme chaos and it simply cannot be the proper interpretation of the relevant legislation.

58. It is true to say that the judgment of the Court of Final Appeal in Ng Ka Ling's case makes it clear that a certificate of entitlement is not the only way of establishing the status of permanent resident under Article 24(3) of the Basic Law. But such observation only applies to those who arrived in Hong Kong before the enactment of the No. 3 Ordinance on 10.7.1997. The Court of Final Appeal, in my view, makes it clear that those arriving after the enactment of the No. 3 Ordinance can only establish such status by obtaining the certificate of entitlement.

59. Mr. Dykes also suggests that the legislature clearly contemplates that some application for certificate of entitlement would be made in Hong Kong to support his contention that the applicants should be allowed to stay in Hong Kong pending their application for the certificate of entitlement. He refers in particular to s. 2AB(5) of the Immigration Ordinance.

60. I do not share such a view. Section 2AB(5) read in the proper context is meant to prevent people who have applied for the certificates of entitlement from coming to Hong Kong illegally or remaining in Hong Kong illegally, having initially landed with permission.

61. The manifested intention of the legislature is that anyone residing in the Mainland of China must apply for the certificate of entitlement in China. Hence the requirement that those applications must be made through the Exit-Entry Administration of the Public Security Bureau of the relevant district and that for the purpose of applying for a certificate of entitlement, a person who was ordinary resident in the Mainland immediately before landing in Hong Kong shall be regarded as residing in the Mainland during his stay in Hong Kong (i) where he stays in Hong Kong without the authority of the Director after landing without permission, or (ii) similarly, where he has been given permission to land and is subject to condition of stay after such landing.

62. Indeed as Mr. Ma, Senior Counsel for the Director suggests, the Director is simply not entitled to entertain any application for the certificate of entitlement from the applicants in Hong Kong. The law does not allow it.

63. This is the view of Keith J. at the Court of First Instance in Ng Ka Ling's case when he states at P. 13 of his judgment:

"Mr. Denis Chang S.C. for the applicants, in a wide-ranging and comprehensive submission, accepted without reservation that anyone who claims the right of abode in Hong Kong by descent must establish the facts which give rise to the claim. However, he asserted that they should be entitled to entry into Hong Kong pending the establishment of the facts. If those facts are found not to be established, they can then be removed from Hong Kong. Requiring the claimant to remain out of Hong Kong while the facts on which he relies are being verified results in the claimant being denied the right of abode to which he may be found to have been entitled during the period of verification. That is said to be inconsistent with Art. 24 of the Basic Law, which is not expressed to be subject to any limitation, and which is couched in absolute terms.

I cannot accept this argument. Art. 24 identified the various categories of persons who would be permanent residents of the HKSAR. But it says nothing about how the facts which give rise to the right of abode by descent are to be established. Indeed, it says nothing about how the facts which give rise to the right of abode by birth, residence or otherwise are to be established. It merely identified the categories of persons who were to enjoy the right of abode in Hong Kong. How the facts which give rise to the right of abode are to be established was therefore left to the detailed implementation of the provisions of Art. 24 in such legislation as the legislature enacted. The enactment of procedure for establishing rights or status is a common feature of modern legislation. That is particularly so in the fields of nationality and immigration. In short, it is for the legislature to make Art. 24 workable in practice.

Accordingly, preventing the claimant from coming to Hong Kong before the facts which give rise to the right of abode by descent are established is not incompatible with Art. 24, because there is nothing in Art. 24 which addresses the question of how the facts are to be established. It is no answer to say that a claimant whose claim is ultimately verified would have been deprived of his right of abode during the period of verification. You might as well say that a claimant whose claim is ultimately found to be false will wrongly have enjoyed the right of abode during the period of verification. The fallacy in the argument is that it seeks to accord the right of abode to a person who is seeking to establish that he has the right of abode."

64. When the matter went before the Court of Appeal, the Chief Judge made similar observation at P. 16 of the Judgment:

"The requirement that all applications must come through the BEEA in China is, in my view, also acceptable. After all, persons falling within this category are mostly residing in the Mainland. If applicants are allowed to lodge their applications after they have come to Hong Kong instead of doing it in China, this would, in the special circumstances of Hong Kong, defeat any scheme which is aimed at an orderly settlement. It will encourage unlawful landing and illegal activities. Hong Kong is so geographically close to the Mainland that it is very easy to come to Hong Kong through other means than immigration control points. A scheme which allows for different options simply will not work. Counsel's argument that if a person has the right of abode, he has the right to land and it is not necessary to grant him permission to land is, with respect, circular. It cannot be assumed that a person seeking to prove his status has already acquired the status even before verification. Cases regarding the UK situation are entirely different."

65. Hon Nazareth V-P was even more blunt when he said at P.49 of the judgment:

"As to the submission on the applicants' behalf that claimants should be able to enter and to remain in Hong Kong to have their claims processed, this is plainly unrealistic, and, not to mince words, even absurd. Quite apart from the practicalities, as Keith J below pointed out, it confuses a bare claim to permanent residence status with the actual status of a permanent resident that has been verified."

66. The aforesaid observations have not received any adverse comment from the Court of Final Appeal and those observations are highly relevant to the present applications.

67. The suggestion by Mr. Dykes that the applicants should be allowed to remain in Hong Kong to apply for their right of abode is indeed a very bold suggestion, a suggestion which has never before met any judicial approval.

68. The applicants also complain that there is no valid scheme in place whereby a person of Chinese nationality born outside Hong Kong to a permanent resident of the HKSAR can apply for the certificate of entitlement.

69. The original arrangement under the said Gazette Notice whereby applicants residing in the Mainland of China must apply for the certificate of entitlement through the Exit-Entry Administration of the Public Security Bureau in the district where they are residing has been excised as the requirement under the Scheme for the one way permit has been held to be unconstitutional by the Court of Final Appeal.

70. Up to the present time, the Director has not yet specified a new arrangement by notice. The absence of a new arrangement may be a relevant consideration in deciding the reasonableness or otherwise of the Director's decision that the applicants must return to the Mainland first to apply for the certificate of entitlement, but it does not entitle a person who has no right of abode in the HKSAR to enter Hong Kong illegally or to remain in Hong Kong in breach of the condition of stay.

71. The fact remains, despite their claiming to be persons of Chinese nationality born outside Hong Kong of permanent residents of the HKSAR, the applicants have not obtained the certificate of entitlement and therefore do not have the right of abode in Hong Kong.

72. Section 2AA(1)(A) after the excision reads as follows:

"(1) A person's status as a permanent resident of the Hong Kong Special Administrative Region under paragraph (2)(c) of Schedule 1 can only be established by his holding of -

(a) a valid certificate of entitlement issued to him."

73. The applicants have not had valid certificates of entitlement issued to them. Their status as permanent residents of the HKSAR by reason of their being persons of Chinese nationality born outside Hong Kong of permanent resident of the HKSAR have not been established. They have no right of abode in Hong Kong under the Basic Law. They have no right to enter Hong Kong illegally or to remain in Hong Kong in breach of the condition of stay.

74. The existence or otherwise of a valid verification scheme for status cannot affect the legality of the statutory provisions.

75. Mr. Dykes suggests that it is unreasonable for the Director to remove the applicants from Hong Kong. He said the Director should allow the applicants to remain and to regularise their status.

76. The applicants have adduced as evidence a number of affirmations to demonstrate how difficult it had been in the past for them to apply to come to Hong Kong to join their parents. There are allegations of malpractice, including corruption on the part of the Mainland authorities. A Ms. Lin Li-pin said she had applied in the past twenty years to come to Hong Kong without success.

77. I have considerable sympathy for Ms. Lin and those with similar experience. But the Basic Law only came into operation on 1.7.1997 and permanent residents of the HKSAR under Article 24(3) can only seek to exercise such right as from that day.

78. Further prior to the decision of the Court of Final Appeal in Chan Kam Nga's case, it was not considered that a person without a parent who had the right of abode at the time of his birth should have permanent resident status under Article 24(3) of the Basic Law.

79. The difficulties that Ms. Lin and some of the applicants encountered were in connection with their applications for one way permits and not certificates of entitlement.

80. The grant of a one way permit is of course a matter entirely for the Mainland authorities and it is subject to a fixed daily quota. As the demand invariably far exceeds the daily quota, there are bound to be many applicants who will be disappointed.

81. As indicated above, some of the difficulties were caused by the unconstitutional part of the No. 2 Ordinance.

82. On the other hand, there is evidence to the effect that between 1.7.1997 and 28.2.1999, over 50,000 certificates of entitlement have been issued by the Immigration Department while another 16,000 odd applications are being processed. Of the 50,000 holders of certificates of entitlement, almost 40,000 have already arrived for settlement in addition to another 7,000 who arrived on one way permits.

83. Since the judgment in Ng Ka Ling's case was announced by the Court of Final Appeal on 29.1.1999, the Government and the Director have taken urgent steps with a view to implement the Court of Final Appeal Judgment. A task force has been set up. Urgent meetings with the Mainland authorities have been held and will be held towards the formulation of an arrangement to operate the certificate of entitlement Scheme in a lawful, fair and reasonable manner in accordance with the Court of Final Appeal Judgment.

84. It is perhaps pre-mature to speculate what the new arrangement will be or to attack it on the basis that it will be unconstitutional or otherwise.

85. But the bottom line is: the Government must be given a reasonable period of time to work out an acceptable new arrangement, bearing in mind that the task involved is complicated and extremely difficult.

86. The present applications were taken out on 15.2.1999, just two weeks after the delivery of the Judgment by the Court of Final Appeal on 29.1.1999.

87. Is it unreasonable for the Director to insist that the applicants, who have not established their right of abode in Hong Kong and who had overstayed in breach of the condition to stay, must be removed from Hong Kong? Is such decision so perverse, absurd or irrational that no reasonable authority could make? I do not find the questions difficult to answer.

88. What is reasonable is a highly subjective matter and different people have different views.

89. From the point of view of the applicants, they should of course be allowed to join their parents in Hong Kong, if their assertions are correct. No one can argue with that and I certainly would not. But as a public officer in the discharge of his public duties, the Director of course must adopt an objective approach and take into consideration the interest of the public at large.

90. The proximity between Hong Kong and the Southern Part of Mainland China means any news of the slightest impact on people living therein travel fast. If the applicants were to be allowed to remain in Hong Kong as they had wished, without having to obtain the certificate of entitlement first, the following scenarios are bound to occur:-

1. Thousand and thousands of visitors from the Mainland who come to Hong Kong on two-way permits to visit relatives or on Group Tour Scheme for sight-seeing will refuse to leave after their permits expire. They will all claim to be children of Hong Kong permanent residents.

2. In order to minimise the impact of such overstays, the relevant authorities may have to limit the issue of the two-way permits and to restrict the number of the participants of the Group Tour Scheme. Innocent people who are in genuine need of two-way permits will be affected and the result can be serious. There will even be an adverse effect on the already ailing tourist industry of Hong Kong.

3. In order to come to Hong Kong as soon as possible, people who are entitled to be issued with certificates of entitlement would be encouraged to come to Hong Kong illegally instead of waiting "in the queue". Those who are waiting will be adversely affected. Many more who are not entitled to be issued with certificates of entitlement will nevertheless attempt to try their lucks by coming to Hong Kong illegally. People who preys upon others' misfortune or stupidity will be enriched and the safety of those who are preyed upon will be put at risk.

91. The immediate effect is that within a very short period of time, Hong Kong will be flooded with a large but unverified, unplanned and unregulated influx of immigrants, the actual size of which is impossible to comprehend with any degree of accuracy. We can be talking about tens of thousands, a few hundred thousands or even over a million people. Is the fabric of our society strong enough to withstand such influx? To any sensible and reasonable people, the answer is clear.

92. Whether large number of immigrant will be beneficial to the long term interest of Hong Kong is a matter of opinions. Only time can tell. Speaking for myself, as demonstrated by events in the sixties and the seventies, Hong Kong needs new immigrants to maintain and sustain her growth.

93. But as a Chinese saying goes, "Ships sail on water, but they also sink in water". An unverified, unplanned and unregulated large influx of new immigrants to Hong Kong will be an unbearable burden in terms of education, medical facilities, housing and general social welfare arrangements. It may "sink" Hong Kong.

94. If the applicants are what they claim themselves to be, Hong Kong permanent resident, they should realize that their interests and those of Hong Kong are linked. They should not be so selfish as to put what they perceive to be their own interests ahead of that of Hong Kong and those who are in the same position as they are. They must not cling to their tunnel vision and ignore the far-reaching implication of the effect of their remaining in Hong Kong before obtaining the certificate of entitlement first.

95. In the exercise of a supervisory function over the executive act in a judicial review proceeding, the court is not concerned with whether the executive act in question is good or bad. The court can only interfere with the executive act on the Wednesbury principle.

96. I can do no better than to repeat the often cited passage of Lord Greene M.R. in Associated Provincial Picture House Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223 at p. 233,

"I will summarize once again the principle applicable. The Court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them."

97. The applicants are either illegal immigrants or overstayers. They have not proved in accordance with the law that they have the right of abode in Hong Kong. They are not entitled to remain in Hong Kong.

98. It is therefore not unlawful for the Director to detain the applicants and to order their removal. There is no suggestion that in coming to such decisions, the Director has taken into account matters that he ought not to take into account or has refused to take into account or neglected to take into account matters which he ought to take into account. The decisions of the Director cannot be said to be so unreasonable that no reasonable authority could ever have come to it.

99. There is no proper basis upon which the court can interfere with the decisions of the Director in these matters.

100. I just wish to reiterate that the Court of Final Appeal of Hong Kong have in no uncertain terms ruled that persons of Chinese nationality born outside Hong Kong of permanent residents are entitled to be permanent residents of Hong Kong whether the right of abode of their parents was obtained before or after their births.

101. But such status of permanent resident can only be established by the obtaining of the certificate of entitlement in accordance with the Immigration Ordinance and applicants residing in Mainland China must apply for such certificate of entitlement in the Mainland.

102. I am sure a new verification scheme will be in place within a reasonable period of time. The Court of Final Appeal have indicated "that the Director must operate it lawfully in a fair and reasonable manner and that there are safeguards to which its operation is subject".

103. The Director must specify the manner in which an application for a certificate of entitlement shall be made by notice in the Gazette. If there is unlawful delay by the Director in coming to a decision whether to accept or reject an application, the person concerned, although in the Mainland, can invoke public law remedies in our courts. If the Director decides to refuse the application for a certificate, there is a statutory right of appeal to the Immigration Tribunal and the appeal safeguard is a full one.

104. The constitutional rights of those claiming under Article 24(3) of the Basic Law are adequately protected. But they must apply for the certificate of entitlement first. In the meantime, they are of course entitled to use the two way permit to visit Hong Kong if the need arises. However, they must leave Hong Kong when the permit expires.

105. What they cannot do and must not do is to come to Hong Kong illegally or to overstay their permit in breach of the condition of stay. Such behaviour, not only will not enhance their chances of being allowed to stay in Hong Kong, in fact constitutes a criminal act which attracts a maximum penalty of 3 years imprisonment.

106. I have considered the various matters raised by the applicants carefully. I am not persuaded that there is any merit in their applications. Both the applications for writs of Habeas Corpus Ad Subjiciendum and for judicial review are therefore dismissed.

Representation:

Mr. Philip Dykes, S.C. and Mr. S.H. Kwok instructed by Messrs. Pam Baker & Co. for Applicants.

Mr. Geoffrey Ma, S.C. and Mr. Anthony Wu, G.C. instructed by Department of Justice for Respondent.