Master Chong Fung Yuen v. Director of Immigration
Read the full judgment text of HCAL 67/1999 on BabelCite. This High Court CFI judgment was delivered on 24 December 1999.
1. Article 24(2) of the Basic Law stipulates that -
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HCAL000067/1999 HCAL 67/1999 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO.67 OF 1999 -------------------------
-------------- Coram : Hon Stock J in Court Dates of Hearing : 13 and 14 December 1999 Date of Judgment : 24 December 1999 ---------------------- J U D G M E N T ---------------------- 1. Article 24(2) of the Basic Law stipulates that -
2. Article 24 further provides that permanent residents of the Hong Kong Special Administrative Region shall have the right of abode in Hong Kong. 3. The applicant is a Chinese citizen who was born in Hong Kong. He therefore claims to be a permanent resident of the Hong Kong Special Administrative Region, and to have the right of abode here. The Director of Immigration ('the Director') accepts that the applicant is a Chinese citizen, and that he was born in Hong Kong. 4. Nonetheless, the Director does not accept that the applicant is a permanent resident of Hong Kong, and does not accept that he has the right of abode in the Region. He communicated that decision to the applicant's advisers by letters dated 16 April 1999 and 8 May 1999, and it is against that decision that this application for judicial review is brought. This court is asked to declare that the applicant is a permanent resident of, and that he has the right of abode in, the Hong Kong Special Administrative Region. THE FACTS 5. There is no dispute about the essential facts. In early September 1997, the applicant's parents came to Hong Kong with two-way permits from the Mainland on a visit. They are not residents of Hong Kong, permanent or otherwise. The applicant's paternal grandfather has been residing in Hong Kong since 1978 and he is a permanent resident, but nothing now turns on his status in so far as it might once have been argued to filter down through the father for the benefit of the applicant. Shortly after the parents arrived in Hong Kong, the mother gave birth to the applicant, on 29 September 1997. They were all then lawfully in this territory. But the parents overstayed and after they were traced, they left. That was in November 1997. But the applicant remained behind, the claim about his status having been lodged with the Director. It is intended that once these proceedings are determined, even if in his favour, the applicant will return to the Mainland to live with his parents once more. THE IMMIGRATION ORDINANCE 6. Despite the accepted facts and the terms of the Basic Law, the Director says that the applicant is not a permanent resident of Hong Kong because he falls foul of requirements prescribed by the Immigration Ordinance. 7. Section 2 of the Immigration Ordinance provides that 'Hong Kong permanent resident' means a person who belongs to a class or description of persons specified in Schedule 1". 8. Section 5 of the Immigration (Amendment) Ordinance (No.2) of 1997, which came into effect on 1 July 1997, repealed the former Schedule 1 and replaced it with a Schedule which, in its material part, provided as follows :
9. It can at once be seen that the words which are emphasised qualify the words of art.24(2)(1), and the effect of the qualification, if it is good in law, is to exclude the applicant, for neither of his parents was, at any time, settled or had the right of abode in Hong Kong. 10. The qualification was amended by resolution of the Legislative Council, passed on 16 July 1999, so that paragraph 2(a) of the Schedule now reads :
The significance of 1 July 1987 is that that was the date upon which the right of abode first appeared as a right in Hong Kong law. Before that date, persons in certain categories had the right to land. The point was that, if he relied on the terms of the Immigration Ordinance as framed between July 1997 and July 1999, a person who had been born before July 1987 could not, under paragraph 2(a) of Schedule 1, pray in aid a parent who had the right of abode at the time of his birth because there was then no such right. Still, this change is of no avail to the applicant, because he was born after 1987. For those born after 1987, the 1999 legislation maintains the qualification relating to settlement or right of abode of at least one parent. THE APPLICANT'S POINT 11. The applicant's point is a starkly simple one. Article 11 of the Basic Law states that "no law enacted by the legislature of the Hong Kong Special Administrative Region shall contravene this Law"; and it is contended that whichever version of paragraph 2(a) of Schedule 1 one takes - whether the 1997 or the 1999 version - it is a provision which is unconstitutional to the extent that it provides that Chinese citizens born in Hong Kong are permanent residents only if either parent was settled or had the right of abode in Hong Kong. It is said that the condition precedent or limitation thus imposed in respect of Chinese citizens born in Hong Kong is incompatible with the unqualified right conferred by art.24(2)(1) of the Basic Law. 12. There was, in this application as originally framed and in respect of which leave was given, another line of argument. It sought to achieve permanent resident status for the applicant through his father who is a Mainland resident but who is said to be a permanent resident himself by reason of the status of the grandfather. That argument is not now pursued. 13. As a matter of plain language, art.24(2)(1) of the Basic Law would appear to be very clear - certainly on its face. Indeed, looking through the entire Basic Law, it might be said to be difficult to find a sentence so bereft, on its face, of scope for interpretative scrutiny. So I turn straight to the arguments for the respondent. THE RESPONDENT'S CASE (1) The suggested approach 14. Mr Fok's starting point is that it is deceptively simplistic, and an error in approach to interpretation, to examine the very words on the face of art.24(2)(1) itself, and to say that, since they appear plain in themselves, no doubt as to their true meaning can arise, no scope for clarification is disclosed, and no room for ambiguity is revealed. He reminds me of fundamental rules of interpretation, one of which is the "informed interpretation rule" meaning that any proper interpretation is approached, not by first-glance impression or by purely literal application, but by an informed mind - informed, that is, by "... the context of the enactment including all such matters as may illumine the text and make clear the meaning intended by the legislator in the factual situation of the instant case". (Bennion, "Statutory Interpretation", (3rd ed.), p.449.) So, too, "... no one is entitled to assert that statutory words are unambiguous until he has read them in their full context." (Cross, "Statutory Interpretation", (3rd ed.), p.58.) To refuse to consider, for example, a draft Bill and commentary to it, "... is to refuse to follow what is perhaps the most important clue to meaning. It is perversely neglecting the reality, while chasing shadows. As Aneurin Bevan said : 'Why gaze in the crystal ball when you can read the book?'" (per Lord Simon of Glaisdale in Black-Clawson International Ltd v. Papiewerke Waldhof-Aschaffenberg AG [1975] AC 591.) 15. What the court is then invited to do is to decide whether the meaning of the words in art.24(2)(1) is doubtful, by reference to context in its widest sense, namely, the text of the Basic Law itself, the Joint Declaration, legislative history, including post-promulgation history (meaning history after promulgation of the Basic Law); and post-promulgation history is said to include an Opinion of the Preparatory Committee for the Hong Kong Special Administrative Region, a Working Report presented by that Committee to the National People's Congress, and an approval of that Report by Resolution of the National People's Congress. I note that this use of "context" is so wide as to include all interpretative criteria, normally applied only once doubt is thought to exist in relation to the meaning of words in legislation, but that approach does not seem objectionable (see Bennion, p.452). I am also invited to conclude that the literal meaning of art.24(2)(1) could not have been intended, and that that is evident by reason of absurdities or anomalies that such a meaning would create. 16. Put another way, Mr Fok says that the correct interpretation of art.24(2)(1) is to be found in the light of the ascertainable purpose of art.24(2)(1), and that that purpose is similarly to be found in the self same aids to interpretation. The phrase "ascertainable purpose" is one which Mr Fok draws from the judgment in Ng Ka Ling & Others v. Director of Immigration [1999] HKCFAR 4, 29 :
(2) Legislative history, and the Joint Declaration 17. Tracing the evolution of Hong Kong's immigration legislation is not an exercise calculated to invigorate, but I have had the benefit of Mr Fok's very clear exposition, aided by a summary in tabular form. 18. It is noteworthy that there is nothing new, nothing astounding, so far as that history goes, in a concept which confers citizenship by reason of birth alone, unqualified, that is, by consideration of the residential status of the parents. 19. Section 4 of the British Nationality Act 1948 conferred citizenship of the United Kingdom and colonies on "every person born within the UK and colonies". Effect to that provision in Hong Kong was evidenced in the Immigration (Control and Offences) Ordinance of 1958, and those born in Hong Kong were not classified as "immigrants" for the purpose of that Ordinance. It mattered not, in other words, whether they were born to a mother on her way through Hong Kong, or to a mother ordinarily resident here. The Immigration Ordinance of 1971 introduced the status of "Hong Kong belonger", and amongst those who qualified were any British subjects "born in Hong Kong". 20. The British Nationality Act 1981 manifested a change in approach. A person born after that Act's commencement acquired citizenship, but only :
(see section 1) That Act introduced a further category of citizenship, namely, that of British Dependant Territories Citizen ('BTDC'). A person born in a dependant territory was conferred with that status, but, again, only if at the time of birth the father or mother was a BDTC or settled in a dependant territory. There were other ways of acquiring such citizenship, but they are not relevant for present purposes. 21. These provisions were reflected in the Immigration Ordinance 1982, which changed the definition of "Hong Kong belonger". A British subject born in Hong Kong immediately before 1 January 1983 was a Hong Kong belonger, as was a person born in Hong Kong thereafter, but only "if that person's father or mother or grandfather or grandmother has an appropriate qualifying connection with Hong Kong" (see paragraph 3, First Schedule). It is unnecessary to explain "qualifying connection", for it suffices that as from 1 January 1983 mere birth in Hong Kong did not suffice - citizenship status required something significantly more; a requirement tied to the residential status of the parents. 22. There is now to be interposed the Joint Declaration, signed in December 1984. It is important, says Mr Fok, for the Basic Law was designed to give effect to its provisions, and because there is evidence placed before me in the form of an affirmation from an Assistant Director of Immigration, Mr Wong Tak Po, who participated in expert talks concerning the right of abode, under the aegis of the Joint Liaison Group, and he says, and I accept, that "It was the consensus of the PRC and the UK Governments that, to ensure a smooth transition and to maintain the existing immigration control system, the Immigration Ordinance should be gradually brought in line with the provisions of the [Joint Declaration]." 23. I shall, later, set down the terms of Chapter XIV of Annex I to the Joint Declaration, in so far as they are relevant to this case. It is sufficient for the moment to state that art.24 clearly reflects those terms. 24. All this is said by the respondent to show the historical context in which the Basic Law was promulgated, namely, a statutory regime in which the legislature had moved away from conferring belonger or non-alien status by virtue of birth, to limiting that status to those who were born here and whose parents had a particular or specified connection with Hong Kong. It is barely credible then, according to this argument, that the Basic Law would enact provisions intending to do anything other than maintain that limitation. (3) Suggested anomalies 25. The literal approach will, it is said, reveal anomalies that can never have been intended. The suggestion is that it would be anomalous to construe art.24(2)(1) as conferring the status of permanent resident on any Chinese citizen who by pure happenstance is born in Hong Kong. It is said that the Basic Law could not possibly have intended to confer that status on a child born prematurely, for example, to a female passing through Hong Kong from the Mainland to some international gathering in another country. Then I am told that the construction for which the applicant contends would confer permanent resident status on children born to mothers from the Mainland who have entered illegally. The evidence before me is that in 1997, there were 2,170 children born in Hong Kong to pregnant illegal immigrant women, and that the figure in 1998 was 1,589. 3,660 children were born in Hong Kong in 1997 to women entering Hong Kong on two-way permits; and 2,331 in the first six months of this year. I do not know what the figures were before promulgation of the Basic Law, but I am prepared to assume that they were similar; or even higher, given the evidence that there has, since 1997, been a decrease in the number of illegal immigrants and the number of children born to illegal immigrants, because of increased security effectiveness since then. These numbers exclude those that do not come to the attention of the authorities. (4) The Preparatory Committee's Opinions 26. The Basic Law was promulgated on 4 April 1990. Annexed to the Basic Law is a Decision of the National People's Congress adopted that day on "the Method for the Formation of the First Government and the First Legislative Council of the Hong Kong Special Administrative Region". It includes the provision that :
That is the extent of the functions of the proposed Preparatory Committee as prescribed by this Decision. 27. On 10 August 1996, the Preparatory Committee issued a document entitled "Opinions of the Preparatory Committee for the Hong Kong Special Administrative Region of the National People's Congress on the implementation of Article 24(2) of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China". The Opinion begins as follows :
28. That part of the Opinion upon which the respondent relies in this case runs as follows :
29. There was then prepared a Working Report about the Committee's work, and that was submitted to the Fifth Session of the National People's Congress on 10 March 1997, and that Working Report of the Preparatory Committee included reference to "the Opinions about the implementation of Article 24(2) of the Basic Law ... for the reference of the HKSAR when it enacts relevant detailed rules for the implementation." 30. On 14 March 1997, a Resolution was passed by the Eighth National People's Congress at its Fifth Session by which that Session approved the Working Report. 31. The Opinion, Working Report and Resolution are said by Mr Fok S.C., on behalf of the respondent, to be part of the post-enactment history of the Basic Law which he suggests should be looked at as a legitimate interpretative tool by which to ascertain legislative intent. 32. In relation to the weight which it is said I should give to these instruments, there is placed before me the opinion of Professor Lian Xi Sheng, Professor of the China Politics and Law University, Beijing, who explains in detail the significance and legal effect, within the People's Republic of China ("PRC"), of Resolutions passed by the National People's Congress, the intended function of the Opinions of the Preparation Committee, and the system of legislative interpretation within the PRC, and how it is different from constitutional and legal interpretation in Western systems. 33. The respondent's position is that the effect of the Opinion is that it serves, and is intended, to "flesh out" or clarify art.24(2)(1) of the Basic Law, and that it is an indicator of legislative intent to which this court should give significant weight. (5) The Standing Committee's Interpretation 34. The weight and authority of the Preparatory Committee's Opinion in the interpretation of art.24 is said to be enhanced by the Standing Committee's Interpretation of arts.22(4) and 24(2)(3) adopted on 26 June 1999, because that Interpretation includes the following passage :
35. It is not suggested that this constitutes an Interpretation of art.24(2)(1) pursuant to the powers of the Standing Committee under art.158 of the Basic Law. But it is said not only to lend great authority to the Opinion of the Preparatory Committee, but indicates how the Standing Committee would, in an exercise under art.158, interpret art.24(2)(1). It must therefore be taken as an authoritative statement of legislative intent to which this court must, says Mr Fok, give effect. ANALYSIS (1) The Basic Law itself 36. An examination of the Basic Law itself, by which I include all provisions of the Basic Law, does not assist the respondent's case. On the contrary, it is in my judgment an exercise which significantly weakens his case. The contextual framework for any interpretation of the Basic Law must begin with a text of the Basic Law itself. Whilst the Basic Law uses "ample and general language", and is "a living instrument intended to meet changing needs and circumstances" (Ng Ka Ling, at p.28), and though a literal, technical, narrow or rigid approach is to be avoided, any question of interpretation is question specific, and it seems to me that art.24 has a character of its own in the context of the Basic Law. By that I mean that it is self-evidently intended to be more specific than other articles which provide for broadly stated rights; rights which fall to be considered amongst a vast panoply of different factual contexts, and against competing duties and necessities to which the courts in assessing the limits of those rights must have regard. Article 24 defines, and is intended to define, those who will have the right of abode in the Hong Kong Special Administrative Region, a subject which by its very nature requires much greater precision than many of the other articles. This is evident too from the degree to which the categories within art.24 have in fact been defined. Deliberate and clear distinctions are drawn between Chinese nationals and non-Chinese nationals; and Chinese nationals qualify for permanent resident status in some circumstances in which non-Chinese nationals do not; for example, Chinese nationals who have ordinarily resided in Hong Kong for seven years or more qualify, whereas non-Chinese nationals who have ordinarily resided in Hong Kong for at least seven years qualify but only if, in addition, they have taken Hong Kong as their place of permanent residence. More significantly for present purposes, art.24 is elsewhere seen expressly to address itself to qualification by descent from those who have ordinarily resided in Hong Kong for a given period (art.24(2)(3)), and from those who are otherwise already permanent residents (art.24(2)(5)). Given that degree of specificity throughout art.24, and given the fact that the article itself expresses the right of abode in certain categories of individuals to arise by virtue of descent from those who have acquired a certain residential status in Hong Kong, the fact that there is no such qualification in art.24(2)(1) is highly significant. Had it not been intended to confer on Chinese citizens the right of abode by mere reason of birth in this territory - and, as we shall see, there is nothing new about such a concept - the additional phrase required could readily have been accommodated without offence to the style or economy of language used in other paragraphs of art.24. 37. The language itself is clear and unqualified. In passages preceding the "ascertainable purpose" passage in Ng Ka Ling to which passage I have earlier referred, the Court of Final Appeal said, at page 28, that :
I see no gaps or ambiguities in art.24(2)(1), either from the language used, or from the context in which that language appears. Whilst a constitution as a whole uses general language, it does not follow that provisions which are crystal clear must nonetheless be regarded ab initio as ambiguous, or vague, or half-baked, simply because they appear in a constitutional instrument. There are of course phrases in the Basic Law which are open to argument as to their intent and meaning. There are such phrases within art.24 itself. Recent case history provides very obvious examples. But I do not think that art.24(2)(1) is one of them. 38. In R. v. Wimbledon Justices ex parte Derwent [1953] 1 QB 380, 384, Lord Goddard, CJ, in relation to an English statute of 1945, said :
39. And that, I think, is what this court is, in effect, being invited to do in this case : to read in a qualification that is simply not there. That is not to say that words and qualifications can never be implied. As Bennion remarks in the introductory chapter to his work"Statutory Interpretation", page 4 : "... the fact is that the express words of every Act have a shadowy accompaniment of a host of implicit statements. Either these statements are to be implied by law (because not expressly disapplied) or they arise from the words of the enactment or its context. In many cases of doubtful construction, the real question, often not perceived, is whether the manifold implications include one that settles the doubt." And Mr Fok shows me the approach of Keith JA in Commissioner of Registration v Registration of Persons Tribunal [1999] 3 HKLRD 199, where the court read art.24(2)(4) as including words of limitation which did not appear on the face of the article; and counsel highlights that approach as if to suggest that the same result must follow in this case. But the fact is that there was a most material, and notable, difference between that case and this; and the difference is that in that case the court was able to imply the limitation from the very words of the article; where, as the court expressly put it, at page 207 :
40. But where, I ask, can be gleaned the implication for which the respondent contends in this case? Certainly not, I would say, on the face of the article itself, or elsewhere in the text of the Basic Law. Interpretation is designed to ascertain the meaning of words, and that meaning is either a plain meaning or a meaning to be ascertained amongst a number of competing constructions. I can see competing constructions, respectable opposing views, about the meaning of art.25, for example, that "all Hong Kong residents shall be equal before the law", for the word "equality" is not self-defining (see the discussion to this effect by B.G. Ramcharan in "The International Bill of Rights" edited by Henkin, p.246 et. seq.); and I can see competing constructions - respectable opposing views - about the meaning of the phrase "born ... of those residents listed in Categories (1) and (2)" of art.24(2)(3), if questions arise as to the requisite status of the parents at the time of birth. But I fail to see competing constructions in relation to art.24(2)(1). The effect of what I am told by the respondent is that "Chinese citizens born in Hong Kong" actually means "Chinese citizens born in Hong Kong but not the following Chinese citizens born in Hong Kong"; and I fail to see from whence that can be implied or construed - certainly not from the text or context of the Basic Law itself. (2) Legislative history 41. The legislative history to which I have been referred does not persuade me that the plain words of art.24(2)(1) do not mean what they say; that they should be read as requiring qualification, not just by birth but by descent as well, and not just descent from Chinese nationals, but descent from parents settled or ordinarily resident in Hong Kong. It is suggested that I should look to the deliberate change in and after 1983, from conferring status by birth to that of conferring status by descent; and the argument is that it could not have been intended to move from the approach established in and after 1983 to something new. 42. In answer to this contention, I make the following observations :
(3) The Joint Declaration 43. There is nothing in the Joint Declaration itself which suggests to me that the Basic Law, in art.24(2)(1), confers on its face the status of permanent resident upon a group wider than that envisaged by the Joint Declaration. 44. Chapter XIV of Annex I to the Joint Declaration had this to say about the right of abode :
It is difficult to imagine that those who negotiated the Joint Declaration, aided as no doubt they were, on each side, by policy officials, and legal advice, would have missed the significance of the phrase "all Chinese nationals who were born in Hong Kong", unqualified as it stood, even though other categories were qualified by express reference to residence in Hong Kong, or to the residential status in Hong Kong of their parents. 45. The evidence placed before me (see the affirmation of Mr Wong Tat-po) is that within the framework of the Joint Liaison Group, "... the PRC and UK Governments [agreed] that the Immigration Ordinance should be brought gradually into line with the provisions of the Joint Declaration. ....Following the amendment of the Immigration Ordinance in 1987, the Chinese and British sides of the JLG continued to discuss how the Immigration Ordinance should be further amended to bring it in line with the provisions of the JD and the corresponding provisions in the BL to be made by the NPC in due course. It was originally envisaged that a further amended Immigration Ordinance in full alignment with all the right of abode and related provisions in the JD and the corresponding provisions in the BL would be made by the Legislative Council on a later date and would come into force on 1 July 1997. ...[T]here was a mutual understanding between the Chinese and British sides of the JLG that the BL only provided a framework for defining who would be permanent residents of the HKSAR, but the Immigration Ordinance, when amended to bring it into line with the provisions of the BL, would need to set out the definitions with more precision in the manner agreed between both sides." 46. I am not entirely sure what point Mr Wong is seeking there to make. If it is that future domestic legislation was necessary to give effect to the Basic Law, and that such domestic legislation would have to comply with the Basic Law, that is, as a suggestion, unassailable; and the point in this case is whether a particular part of the legislation has achieved that purpose. If it is to say that local legislation giving effect to the Basic Law was expected to define or clarify or complement broad words or phrases in the Basic Law, then that, too, cannot be gainsaid; and it is also a question in this case whether paragraph 2(a) of Schedule 1 to the Ordinance achieves one of those purposes or whether, on the other hand, it clarifies nothing but instead derogates from the requirements of the Basic Law. But if in his reference to 'only...a framework', Mr Wong is implying for the Basic Law guidance and nothing more, then he is, in my opinion, off the mark. I would respectfully agree with Chan, CJHC when he said in Chan Kam Nga v. Director of Immigration [1998] 1 HKLRD 752, 756 that "... the purpose of art.24 is clearly to confer upon certain categories of persons the status of permanent resident and the right of abode in the HKSAR". (Emphasis added). 47. The Basic Law, in art.24, is not some generalization to future legislatures as to the path that might be taken. It is a constitutional bedrock conferring rights, from which rights there was to be no derogation. The instrument itself defined who was to have the status of permanent resident. That is not to say that there was left no room for particularization or clarification, properly so-called. So, for example, there is, in the Ordinance which was subsequently enacted a definition of "Chinese citizen"; a prescription for the calculation of the period of seven years; and a definition or explanation of the term "born ... of those residents" by reference to the status of the parents at the time of birth; and so on. But whatever understanding was reached in the meeting rooms of the JLG could not provide a carte blanche for the draftsman of local legislation, or for the legislature, to cut down on the terms of the Basic Law, and to start redefining those entitled to right of abode. 48. The point is made by Keith JA in Commissioner for Registration v. Registration of Persons Tribunal [1999] 3 HKLRD 199, 205 that :
That is to say that setting out definitions with more precision is a matter altogether different from deciding upon a scheme which is thought to be prudent, and purporting then to place that scheme under the rhubric of art.24, when in fact the scheme excludes some of those upon whom that article plainly conferred rights. (4) The anomaly argument 49. The anomaly argument is closely connected with the argument about legislative history, and to the extent that I have addressed the suggestion that a change in legislative direction would be anomalous, this aspect of the argument is thus far resolved. The argument, then, is that it is unlikely in any event that it could have been intended to give right of abode to children of those who came here from the Mainland unlawfully and whilst pregnant. It is an argument which cannot lightly be dismissed, and I do not do so. Yet it remains the case that it is not in itself anomalous or unusual to confer nationality or right of abode status on such children; it remains the case that it would have been simple to exclude them from the purview of art.24(2)(1); it remains the case that the absence of words of limitation sits in contrast to express limitations for other categories within art.24(2); and it remains the case that it is not possible to discern competing interpretations. I do not think it enough in such circumstances to point to a practical difficulty and say that a limiting provision which removes the difficulty must therefore be implied. That, as Lord Goddard emphasised in Derwent, is not the court's function. Purposive, practical and non-technical though a court must strive to be, it is not the court's job to legislate; to imply words which cannot, in accordance with time tested criteria, be found. In the entire context which I have described and examined, this suggested anomaly does not drive me to read words into the article which are not there. (5) The Preparatory Committee Opinion; the Working Report; and the Resolution 50. The respondent to the application in Commissioner for Registration v. Registration of Persons Tribunal, to which case I have made reference on several occasions, invited that court to take into account as a valid interpretative tool the 1996 opinions of the Preparatory Committee. The court found it unnecessary in that case to consider the relevance of that extrinsic material, though Keith JA remarked, at page 213, that :
51. But Mr Fok, who appeared for the respondent in that case, asks me in this case to take into account those opinions. Since the issues are not thus far resolved in the respondent's favour, his submissions in this regard require analysis. 52. He does not suggest that the opinions constitute an interpretation of the Basic Law under art.158. They clearly do not. They do not purport to do so. Indeed, the Preparatory Committee had no power to make such an interpretation. Similarly, neither the Working Report nor the Resolution of the National People's Congress constituted, either separately or cumulatively, such an interpretation; again, neither purported to do so. So, none of these instruments is binding on this court. 53. Further, there is no question but that it is the common law principles of interpretation, and common law cannons of construction, that I must apply throughout in this case and, as Keith JA pointed out in the Commissioner for Registration case (page 213), those common law cannons are to be applied in the courts of Hong Kong "even to the interpretation of the Basic Law." 54. Nonetheless, Mr Fok says that these instruments are all part of the post-enactment history to which I should have regard as throwing light on legislative intent. He refers me to that passage in Bennion which, at page 537, runs as follows :
And the doctrine is referred to in Halsbury's Laws 4th ed., vol.44(1), para.1429 :
So, for example, where the question was whether a piece of legislation permitted the levying of certain dues and it was shown that from the time of the passing of a piece of legislation dues were in fact levied without protest, that was said to raise 'a strong prima facie ground' for thinking that there must exist 'some legal ground' for exacting the dues (see Trustees of the Clyde Navigation v. Laird (1883) 8 App Cas 658, referred to at note 4 to the passage in Halsbury cited above). Similarly it is said (note 2 to para.1427) that -
55. I do not think that the documents to which I have been referred can properly be called contemporaneous expositions, arising as they did some six years after promulgation of the Basic Law; (and almost twelve years after the Joint Declaration, the right of abode provisions of which art.24 so closely follows). 56. The Opinions of the Preparatory Committee cover a range of topics - for example, who should not be considered as ordinarily resident, and the procedures to be followed by persons not of Chinese nationality when applying for recognition as permanent residents. It is a document which addresses itself to the implementation of art.24(2) and is an "opinion for the reference of the HKSAR to formulate the details of the implementation rules". It then goes on to say that "Chinese citizens in Hong Kong as provided by Category (1) of paragraph 2 of article 24 of the Basic Law refer to people who are born during which either one or both of their parents were lawfully residing in Hong Kong, but excluding those who are born to illegal immigrants, overstayers or people residing temporarily in Hong Kong". 57. There has been considerable debate before me about the nature of the exercise which is manifested by the Preparatory Committee Opinions; Mr Fok suggesting that they are statements of legislative intent; and Ms Li S.C., for the applicant, saying that the Opinions document is a mere recommendation to the future legislature of the Hong Kong Special Administrative Region, does not purport to state original legislative intent, and is an ex post facto legislative exercise, which may, if the facts on the ground so dictate, entail that which is in effect amendment; for which contention she looks to the terms of the Opinions document with its reference to implementation, and to the explanation that has been put before me by Professor Lian about interpretation methods under Mainland law, and about the status of the Preparatory Committee's Opinions, and of Resolutions and Decisions of the National People's Congress. 58. Professor Lian informs me that such resolutions and decisions are vehicles which can be geared to one occasion or one matter for resolving a specific problem. "In practice," he says, " where there is immaturity or omission in some legislation, the same can be remedied by way of decision." As for the work of the Preparatory Committee and its Opinions, it was, he explains, "absolutely imperative for the Preparatory Committee to set forth in the Working Report the measures taken to deal with the aforesaid issues" - the issues include eligibility for becoming a permanent resident - "as this was a legal act whereby its work could be given effect. The approval of the Working Report by the NPC and its Resolution is a recognition by the NPC that the Opinions of the Preparatory Committee are consistent with the Basic Law. The Opinions of the Preparatory Committee lay the foundation ... for the Government of the HKSAR to make the related immigration law. Accordingly, when implementing the relevant provisions of the Basic Law, the factors to be taken into consideration include not just the Basic Law itself, but also the Opinions of the Preparatory Committee as recognized and approved by the NPC. This is because the Opinions of the Preparatory Committee provide the details of the relevant provisions in accordance with the legislative intent of the relevant provisions of the Basic Law. ...The Basic Law ... cannot anticipate various new scenarios and new issues that may arise in the course of its implementation. This therefore requires certain remedial measures and they include the interpretation of the Basic Law and the Decisions (or Resolutions) made by the NPC or Standing Committee of the NPC regarding certain parts of the Basic Law so that the legislative intent can be fully reflected. ... In order to supplement the inadequacies of the Basic Law with a view to solving the problems that may arise in the course of its implementation, it is ... necessary for the Preparatory Committee to give its opinions about the solutions to the SAR for their reference in enacting the detailed rule." In a passage about the PRC system of interpretation, the Professor states that according to the Resolution on the Strengthening of the Work of Interpretation of Law "where provisions of law ... require further clarification as to their scope or require the making of supplemental provisions, the Standing Committee of the NPC shall interpret the same or make supplemental provisions by way of orders." 59. I have, I confess, some difficulty in determining the exact nature of the (Preparatory Committee) Opinions exercise. That no doubt is a product of grappling with terminology with which I am so unfamiliar. Despite Ms Li's emphasis on references to 'implementation' and 'supplementing inadequacies', there is much in the opinion of Professor Lian which I take to suggest that the Committee's Opinions are intended to fill out, rather than amend, the original. I also think it clear enough that the word 'refer' in the Opinions is intended to denote 'means', and is intended to suggest an interpretation of art.24. But if it is an exercise by the Preparatory Committee in its interpretation of art.24(2)(1), then it must be recognised that the method of interpretation is not the same as that used by this court, but further and as significantly, the route by which that suggested meaning was reached has not been explained to me. 60. In none of the papers that I have seen is there any reference to material from which the suggested meaning is to be gathered; no suggestion of a contending or opposing argument as to the breadth of art.24(2)(1). There are no travaux preparatoires; no reference to or record of any deliberations of the Basic Law Drafting Committee. There are suggestions that the Preparatory Committee has deliberated upon the meaning of art.24(2)(1), but nothing to show what those deliberations were. This is not to criticise the approach of another system, but simply to highlight the fact that bare statements years after the promulgation of the Basic Law that a particular article refers to a certain and more limited category of person than is suggested on the face of the article is material that is of limited avail in the common law exercise that I am required to conduct. 61. Mr Fok says that the Committee's Opinion is a "fleshing out" exercise. The use of the word "clarification" in the Working Report would seem to support that contention. But it is a contention with which I continue to have difficulty. I cannot see what it "clarifies" or "fleshes out". To clarify is "to remove complexity, ambiguity or obscurity from a statement" (see New Shorter Oxford English Dictionary, p.411). And to flesh something out is to add something to the bare bones, not to cut away. 62. The whole point of examining statements or circulars by officials or ministers in the immediate aftermath of an enactment is to ascertain a relatively contemporaneous view - often from those who were involved themselves in the design or creation of the legislation - about 'doubtful points of construction'; to discern between competing constructions. Quite apart from the fact that I do not see these documents as falling within the category ofcontemporanea expositio, they do not persuade me that the meaning of art.24(2)(1) is doubtful, nor do the bare statements of suggested meaning assist me in the exercise in which I am engaged. 63. The Resolution of the National People's Congress adopted on 14 March 1997 makes no specific reference to art.24. Nor should we expect it to have done. It simply approves the Working Report, which itself refers to art.24. This is said to be an endorsement of the Preparatory Committee's Opinions. But the point deserves repeating, that the Resolution is not, nor does it purport to be, an interpretation under art.158; nor does it disclose any deliberation about the terms of art.24, or of any suggested contending interpretation. It is a document which I have studied and to which I have regard, but it does not in the event alter the view which I have thus far formed. THE STANDING COMMITTEE'S INTERPRETATION 64. The Basic Law enjoins the courts of the Hong Kong Special Administrative Region to apply the laws previously in force in Hong Kong, and that requires the application of common law principles of interpretation. The sole mechanism by which Mainland methods of interpretation have binding impact in Hong Kong is the mechanism provided by art.158. When the Standing Committee, exercising powers under art.158 interprets the Basic Law, according to its methods, that interpretation binds the courts of Hong Kong. The Standing Committee has not made an interpretation under art.158 of art.24(2)(1). The Interpretation issued on 26 June 1999 is an interpretation under art.158 of arts.22(4) and 24(2)(3) of the Basic Law. In relation to each of those two provisions, the Standing Committee of the NPC has used deliberate formula, namely, that the particular provision interpreted "mean as follows : ...". 65. The phrase from that Interpretation upon which Mr Fok relies, namely : "The legislative intent as stated by this interpretation, together with the legislative intent of all other categories of art.24(2) of the Basic Law ... have been reflected in the [Opinions of the Preparatory Committee] ... on 10 August 1996", is an addendum to that Interpretation; and there was a need to refer to other categories within art.24 because art.24(2)(3), which was under formal interpretation, itself refers to arts.24(2)(1) and 24(2)(2). But there was no need to interpret art.24(2)(1), and all that the addendum states is that the legislative intent has been "reflected" in the Opinions. I think that I may safely assume that the National People's Congress, in the exercise in which it was engaged in June 1999, was not directed to the issues arising in this case or in any case concerning art.24(2)(1); nor presented by any contending arguments about it. I am told by Mr Fok in the course of argument that that addendum is, in its effect, a statement of how the Standing Committee would interpret art.24(2)(1) should that issue ever come before it; in other words, that it would interpret it in accordance with the Preparatory Committee's Opinions, because the Standing Committee has said that the Preparatory Committee's Opinion reflects legislative intent. That is as may be, but I am not bound by a suggested prospect of that kind. I am, however, bound to construe the relevant provision according to the common law principles which apply. If indeed it was the intention of those who drafted and promulgated art.24(2)(1) of the Basic Law, that the right apparently conferred on Chinese citizens born in Hong Kong was a right to be restricted to those born of parents who had settled or who had the right of abode in Hong Kong, then that is an intention which, in my opinion, is not in the event reflected in the Basic Law, either by the very words used, or by any implication which can properly be made. CONCLUSION "Each one of us has the task of deciding what the relevant words mean. In coming to that decision, he will necessarily give great weight to the opinion of others, but if at the end of the day he forms his own clear judgment and does not think that the words are 'fairly and equally open to diverse meanings' he is not entitled to say that there is an ambiguity. For him at least there is no ambiguity and on that basis he must decide the case." (per Viscount Simonds in Kirkness v. John Hudson & Co. Ltd [1955] AC 696, 712). 66. I have to say that, for me at least, there is no ambiguity, and no doubt as to the legal meaning. And that is so, no matter which way up I look at art.24(2)(1), and even though I seek to give it as liberal a scrutiny as I can. 67. In my judgment, there is no warrant for the gloss on art.24(2)(1) which the respondent places upon it. It is more than a gloss; it is a derogation from the rights conferred by the article. The article means what it says on its face. It confers the status of permanent residents on Chinese citizens who have been born in Hong Kong. The words in paragraph 2(a) of Schedule 1 to the Immigration (Amendment) Ordinance enacted on 1 July 1997 : "if his father and 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" were in my judgment incompatible with, and contravene art.24(2)(1) of the Basic Law; and so, too, are the same words as they are repeated in the amended paragraph 2(a) of Schedule 1 to the Immigration Ordinance, introduced by resolution made by the Legislative Council on 16 July 1999. They have therefore no effect to limit the right of abode of those Chinese citizens born within Hong Kong and, therefore, of this applicant. What words remain of paragraph 2(a) - in either the 1997 or 1999 Ordinance - stand conveniently on their own, (though the references, in what then remains of sub-paragraphs (i) and (ii) of paragraph 2(a) in the 1999 amendment, to the year 1987, are less appropriate than the reference in art.24(2)(1) to "before or after the establishment of the Hong Kong Special Administrative Region" - although the effect is the same). 68. The applicant is a Chinese citizen who was born in Hong Kong. Those facts are not disputed. He is therefore a permanent resident of Hong Kong within the meaning of art.24(2)(1) of the Basic Law, and is entitled to the declaration sought. It is therefore declared that the applicant is a permanent resident of, and has the right of abode in, the Hong Kong Special Administrative Region. There will be a costs order nisi that the respondent shall pay to the applicant his costs of and occasioned by this motion, to be taxed if not agreed.
Representation: Miss Gladys Li, SC, leading Mr S.H. Kwok, instructed by Messrs Clarke & Liu, for the Applicant Mr Joseph Fok, SC, instructed by the Department of Justice, for the Respondent |
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