Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Li Shuk Fan v The Director Of Immigration

Judgment Cited authorities 20 Cited in Precedent Map Related
Vincent
Judgment Date30 June 2000
Year2000
Judgement NumberHCAL2/2000
Subject MatterConstitutional and Administrative Law Proceedings
CourtHigh Court (Hong Kong)
HCAL000002/2000 LI SHUK FAN v. THE DIRECTOR OF IMMIGRATION

HCAL000002/2000

HCAL81/1999, HCAL2/2000 and HCAL70/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.81 OF 1999

------------------

BETWEEN
NG SIU TUNG AND OTHERS Applicants
AND
THE DIRECTOR OF IMMIGRATION Respondent

------------------

AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.2 OF 2000

-------------------

BETWEEN
LI SHUK FAN Applicant
AND
THE DIRECTOR OF IMMIGRATION Respondent

--------------------

AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.70 OF 2000

--------------------

BETWEEN
SIN HOI CHU AND 42 OTHERS Applicants
AND
THE DIRECTOR OF IMMIGRATION Respondent

--------------------

Coram: Hon Stock J in Court

Dates of Hearing: 22-26 and 29-31 May, 1-2 and 5 June 2000

Date of Judgment: 30 June 2000

___________________________

JUDGMENT INDEX

___________________________

I. Introduction

II. These Cases

III. The Constitutional and Statutory Framework

IV. The Right of Abode Cases

V. Reaction to the Litigation

VI. The Interpretation, and After

VII. The Applicants' Cases

VIII. Interpreting the Interpretation

IX. The Common Law Approach applied to the CFA judgments

X. Legitimate Expectation

XI. The Concession

XII. The "So What" Question

XIII. Periods 1 and 2 Arrivals

XIV. Other Grounds

XV. Conclusion

-------------------------

J U D G M E N T

-------------------------

I. INTRODUCTION

1. On 29 January 1999, the Court of Final Appeal delivered judgments in two cases. By its judgment in Ng Ka Ling and Others v. Director of Immigration [1999] 2 HKCFAR 4, it was decided that the statutory scheme enacted on 10 July 1997 was unconstitutional to the extent that that scheme required permanent residents of the Hong Kong Special Administrative Region ("HKSAR") who were residing on the Mainland to hold a one-way permit issued by Mainland authorities before they could enjoy their right of abode in Hong Kong. The second judgment was Chan Kam Nga and Others v. Director of Immigration [1999] 2 HKCFAR 82, by which it was declared that a statutory provision which, in relation to those of Chinese nationality born outside Hong Kong, conferred the status of permanent resident upon those born to a parent who was a permanent resident of the HKSAR but only if the parent was a permanent resident at the time of the claimant's birth, was, to the extent of that time of birth limitation, unconstitutional; in other words, the Court held that those born before either parent became a permanent resident were also permanent residents.

2. There were many who, not surprisingly, thought that they would benefit from those judgments, even though they had not themselves joined in either proceedings. Those were people who assumed that, subject to proof of their claim, they would be entitled to exercise the right of abode without having first to secure a one-way permit on the Mainland and, amongst them, there were those who believed that the fact that they were born before their parents became permanent residents was, as a result of one of the judgments, not a bar to their own claim. The authorities represented that they would abide by the judgments of the Court of Final Appeal and that they would put in place a verification scheme, not linked to the one-way permit. But, in accordance with the decision in Ng Ka Ling, the Director of Immigration insisted that claims for right of abode which had, of course, to be verified, had, in the case of Mainland residents, to be made on the Mainland, and for this purpose Mainland residents included those who were in Hong Kong subject to conditions of stay or who had overstayed, and who immediately before coming to Hong Kong, either illegally or subject to conditions, had been residing on the Mainland. So the Director of Immigration, who is the respondent to these cases, made removal orders in respect of some such claimants, and that led to another application for judicial review which features in these proceedings, and came to be known as the Lau Kong Yung case.

3. The Government of the HKSAR assessed the practical implications of the two judgments, and said that those implications on resources and services were alarming. The Government decided to seek an Interpretation by the Standing Committee of the National People's Congress ("NPCSC") of arts. 22(4) and 24(3) of the Basic Law. Article 22(4) of the Basic Law provides that for entry into the HKSAR, people from other parts of China must apply for approval and that the numbers who entered Hong Kong from the Mainland for the purpose of settlement was to be determined by Mainland authorities; but the Court of Final Appeal had decided that that did not include permanent residents, and that art. 22(4) - which was deployed as the suggested justification for the statutory requirement enacted on 10 July 1997 - did not therefore inhibit the entitlement of those who were permanent residents from enjoying or exercising their right of abode. Article 24 itself defines who shall be permanent residents. The validity of the time of birth limitation with which the court was engaged in Chan Kam Nga depended upon a construction of art. 24(2)(3), and the Court held that the article, properly construed, disregarded the time of birth.

4. The Interpretation was adopted by the Standing Committee on 26 June 1999 and announced that day. It said that the interpretation by the Court of Final Appeal of both articles was not consistent with the legislative intent; that the requirement of art. 22(4) to obtain approval for entry into the HKSAR included persons of Chinese nationality born outside Hong Kong of permanent residents who wished to enter, for whatever reason; and that art. 24(2)(3) meant that at least one parent must have become a permanent resident at the time of the claimant's birth in order for that person himself or herself to be a permanent resident.

5. To give effect to the Interpretation, the Legislative Council passed a resolution (see section 59A Immigration Ordinance) on 16 July 1999, reinstating the time of birth limitation; and, by a procedure prescribed by the Ordinance, the Director of Immigration in effect reinstated a procedure for Mainland residents who claimed right of abode which procedure, as before, was linked to the one-way permit, which procedure, to the extent of that linkage, had been struck down by the Court of Final Appeal.

6. In October 1999, the Lau Kong Yung case was heard by the Court of Final Appeal. At issue was whether the Standing Committee had the power to make the Interpretation and, if so, its effect. The Court of Final Appeal decided that the Standing Committee did have the power in law to make the Interpretation; that the effect of that Interpretation was that permanent residents by descent (under art. 24) were within art. 22(4) and subject therefore to the one-way quota system and, further, that in order to qualify as a permanent resident under art. 24(2)(3), at least one parent had, at the time of birth of the person concerned, to be a permanent resident. The Court said that the Interpretation was applicable from 1 July 1997, and that the Interpretation declared what the law had always been.

7. The events thus described received very wide publicity and were of keen interest to the community at large, and in particular to those Mainland residents, whether at any given time in Hong Kong or not, who hoped to establish claims as permanent residents. There had been but four applicants in Ng Ka Ling, and 81 in Chan Kam Nga. There were others who took the benefit of the judgments because they had joined in other cases in respect of which those two cases were by court order made representative or test cases; and still others who were the subject of undertakings by the authorities. But the proceedings with which I am concerned are launched by several thousands of those who, for a variety of reasons, were not named parties to Ng Ka Ling and Chan Kam Nga and in respect of whom such undertakings were not given. They are all Chinese nationals with at least one parent who is a permanent resident. Some were born before that parent became a permanent resident, some after. The applicants arrived in Hong Kong at different stages - some before 1 July 1997, some since. Many have been to Hong Kong several times. In most cases their last visit to Hong Kong was on a two-way permit, but many overstayed (and are still here), although there are some whose arrival was unlawful. Some applicants are now back on the Mainland. The respondent has, in respect of the representative applicants chosen for these proceedings, made removal orders in most cases, and where removal orders have not been made, has rejected claims made in Hong Kong that they are entitled to right of abode. It is these decisions that are challenged in these judicial review proceedings.

8. At issue is the effect in law of the Interpretation upon these applicants. They say that the judgments of January 1999 still inure to their benefit. They say that the effect of the Basic Law, and of the Interpretation, and of the common law, is that the judgments of January 1999 are unaffected by the Interpretation. The argument is that the judgments were final judgments in public law, represented by the Government of the HKSAR to be determinative of issues not merely between the named parties, but as between the Government of the HKSAR and all persons who fell within the same categories as did the claimants in those cases; that, on that footing, these applicants were encouraged to abstain from joining in those...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT