Chan Kam Nga v Director Of Immigration

Cited as:[1999] 1 HKLRD 304; (1999) 2 HKCFAR 82
Court:Court of Final Appeal (Hong Kong)
Judgement Number:FACV13/1998
Judgment Date:29 Jan 1999
FACV000013/1998 CHAN KAM NGA v. DIRECTOR OF IMMIGRATION

FACV000013/1998

FACV No. 13 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 13 OF 1998 (CIVIL)

(ON APPEAL FROM CACV No. 40 OF 1998)

_____________________

Between:
CHAN KAM NGA
(an infant suing by his father and next friend CHAN KWING WOON) and 80 OTHERS
Appellants
AND
DIRECTOR OF IMMIGRATION
Respondent

_____________________

Court:
Chief Justice Li, Mr Justice Litton PJ, Mr Justice Ching PJ, Mr Justice Bokhary PJ and Sir Anthony Mason NPJ

Date of Hearing: 12 January 1999

Date of Judgment: 29 January 1999

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J U D G M E N T

________________

Chief Justice Li:

1. I agree with Mr Justice Bokhary PJ's judgment.

Mr Justice Litton PJ:

2. I agree with Mr Justice Bokhary PJ's judgment.

Mr Justice Ching PJ:

3. I agree with Mr Justice Bokhary PJ's judgment.

Mr Justice Bokhary PJ:

4. Of these 81 appellants, 69 are minors suing by their next friends while 12 are adults suing in the normal way. All 81 came to Hong Kong from the Mainland. Some came here on two way exit permits, were permitted to remain for limited periods, and then overstayed. Others were brought here as unauthorized entrants. The 46th, 48th and 58th appellants arrived here after 1 July 1997. The other 78 arrived here before that date. Anyway all 81 are here now. They all face orders made by the Director of Immigration ("the Director") for their removal to the Mainland. And they all resist such removal by asserting the right of abode here. This raises a number of questions. But the present appeal concerns only one of these questions: can a child become a Hong Kong permanent resident under category (3) of Article 24 of the Basic Law by virtue of a parent's Hong Kong permanent resident status under category (2) of that article not only if such status of the parent's had been acquired before the child's birth but even if it had not been acquired until after the child's birth?

5. How this question is answered will affect not only these 81 appellants but many other persons now and in the future. The appellants submit that it should be answered "yes". But the Director submits that it should be answered "no". By his judgment of 26 January 1998, Keith J answered it "yes" in the appellants' favour. But by their judgment dated 20 May 1998, the Court of Appeal (Chan CJHC, Nazareth VP and Mortimer VP) reversed the judge and answered it "no" in the Director's favour. The question is now before this Court. And I approach it with a keen sense of its wide implications.

The right of abode

6. It is natural that Article 24 is the first article in that chapter of our constitution, the Basic Law, which contains our fundamental rights and duties. For it is the article which says who has the right of abode in Hong Kong. And the right of abode in a place is the fundamental right without which the full array of fundamental rights available in that place cannot be accessed. This is because the right of abode in a place is the right, in the eyes of its law, to call that place home: coming and going at will; staying as long as you like.

Conferred on permanent residents

7. In Hong Kong this key right is conferred on permanent residents. Throughout the world constitutions extend their overarching protection to all persons within the jurisdiction, but reserve the fullest measure of rights to citizens. Our constitution follows this global pattern: doing so by reference to permanent residents rather than citizens. Article 24 lays down six categories of permanent residents. And it confers on all of them, whichever category they come within, the right of abode here along with all the other rights enjoyable here (subject only to the Chinese citizenship qualification necessary for certain official posts).

8. The six categories of persons who constitute the permanent residents of Hong Kong are defined by the second paragraph of Article 24 as:

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

(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 Hong Kong Special Administrative Region;

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

(4) Persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region;

(5) Persons under 21 years of age born in Hong Kong of those residents listed in category (4) before or after the establishment of the Hong Kong Special Administrative Region; and

(6) Persons other than those residents listed in categories (1) to (5), who, before the establishment...

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