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)
|CHAN KAM NGA
(an infant suing by his father and next friend CHAN KWING WOON) and 80 OTHERS
|DIRECTOR OF IMMIGRATION
|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
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 of the Hong Kong Special Administrative Region, had the right of abode in Hong Kong only."
The crucial facts
9. Looked at in the context of categories (2) and (3) of Article 24, the following crucial facts common to all of these 81 appellants are to be noted:
(1) All of them are of Chinese nationality.
(2) They were all born outside Hong Kong (namely in the Mainland).
(3) Each of them has a father who is a Hong Kong permanent resident by virtue of category (2) i.e. through being a Chinese citizen and having been ordinarily resident in Hong Kong for a continuous period of not less than seven years. (It may be mentioned in passing, although it cannot affect the result of this case one way or the other, that the mothers of 25 of these appellants also happen to be Hong Kong permanent residents by virtue of category (2).)
(4) No parent of any appellant had become a Hong Kong permanent resident until after that appellant's birth: because no such parent had been ordinarily resident in Hong Kong for a continuous period of seven years until after his or her appellant child's birth.
10. So this appeal turns on whether that fourth fact operates to take these appellants and other persons like them out of category (3).
The rival contentions
11. For the appellants it is contended that the child of a Hong Kong permanent resident is a person born of a Hong Kong permanent resident whether that parent became a Hong Kong permanent resident before or after that child's birth. For the Director it is contended that the child of a Hong Kong permanent resident is not a person born of a Hong Kong permanent resident unless that parent had become a Hong Kong permanent resident before that child's birth.
The natural construction
12. In the Court of Appeal the Chief Judge of the High Court said that "The focus is certainly on birth". Nazareth VP said that: "The criterion 'born ... of' a permanent resident, immediately and naturally goes to the time of birth". And Mortimer VP said that the words of Article 24 "focus upon parentage, the status of the parents, the place of birth and the birth itself". As it seems to me, however, the word "born" had to be used in category (3) because the category covers persons born outside Hong Kong. Whatever else the words "born .. of" do or do not cover, they must cover a birth child. Each of these 81 appellants is the birth child of the parent on whose Hong Kong permanent resident status he or she relies.
13. Simply as a matter of giving words their natural meaning, I am of the view that the construction for which the appellants contend is correct.
14. Let me explain why I am of that view. Take any parent and birth child. Asked if the child is a person born of the parent, one is bound to answer "yes". Now take the same parent and child, adding the fact that the parent is a Hong Kong permanent resident. Asked if the child is a person born of a Hong Kong permanent resident, one would surely still answer "yes". One would not pause to enquire when the parent became a Hong Kong permanent resident. As a matter of ordinary language, that is irrelevant to the question of whether the child is a person born of a Hong Kong permanent resident.
And the purposive one too
15. That natural meaning gives effect to an obvious purpose of Article 24. That article, in conferring upon a child the right of abode in Hong Kong through a parent who has that right, serves the purpose of enabling that child to be with that parent...