Tsui Kuen Nang v The Director Of Immigration

Cited as:[1999] 1 HKLRD 315; (1999) 2 HKCFAR 4
Court:Court of Final Appeal (Hong Kong)
Judgement Number:FACV15/1998
Judgment Date:29 Jan 1999
FACV000015/1998 TSUI KUEN NANG v. THE DIRECTOR OF IMMIGRATION

FACV000015/1998

FACV No. 14 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 14 OF 1998 (CIVIL)

(ON APPEAL FROM CACV No. 216 OF 1997)

_____________________

Between:
NG KA LING
NG TAN TAN
(infants by their father and next friend
NG SEK NIN)
Appellants
AND
THE DIRECTOR OF IMMIGRATION Respondent

_____________________

FACV No. 15 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 15 OF 1998 (CIVIL)

(ON APPEAL FROM CACV No. 217 OF 1997)

_____________________

Between:
TSUI KUEN NANG Appellant
AND
THE DIRECTOR OF IMMIGRATION Respondent

_____________________

FACV No. 16 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 16 OF 1998 (CIVIL)

(ON APPEAL FROM CACV No. 203 OF 1997)

_____________________

Between:
THE DIRECTOR OF IMMIGRATION Appellant
AND
CHEUNG LAI WAH
(an infant suing by her father and next friend CHEUNG MIU CHEUNG)
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: 6, 7, 8, 11 and 12 January 1999

Date of Judgment: 29 January 1999

_______________

J U D G M E N T

_______________

Chief Justice Li:

1. This judgment is the unanimous judgment of the Court.

2. Throughout history, residents in Hong Kong have had family ties in the rest of China. Since the Mainland began her open door policy, resulting in strong links with Hong Kong, these family ties have very much grown. By 1 July 1997, when the People's Republic of China resumed the exercise of sovereignty over Hong Kong, a number of Chinese nationals born on the Mainland have at least one parent who is a Hong Kong permanent resident with the right of abode here.

3. We are concerned in this appeal with their status as permanent residents of and their right of abode in Hong Kong. Questions involving the proper interpretation of the Basic Law are before us for the first time. These are questions of momentous importance for both the future of the people involved as well as the development of constitutional jurisprudence in the new order.

Terminology

4. We shall for convenience refer to the People's Republic of China as China; the Standing Committee of the National People's Congress as the Standing Committee; the Hong Kong Special Administrative Region as the Region or Hong Kong.

5. A reference to an Article is to the Article in the Basic Law. The text of the Basic Law does not number the sub-paragraphs of each Article. However, as is common practice, it is convenient to refer to the sub-paragraphs by numbering them. The second sub-paragraph of Article 24 will, for example, be referred to as Article 24(2).

6. The appellants in the first two appeals and the respondent in the third appeal were the applicants in the judicial review proceedings and will all be referred to as "the applicants".

7. The Director of Immigration of the Hong Kong Special Administrative Region will be referred to as "the Director". He is the respondent in the first two appeals and the appellant in the third appeal.

The constitutional framework

8. The Constitution of the People's Republic of China provides in Article 31:

" The state may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People's Congress in the light of the specific conditions."

9. The National People's Congress is the highest organ of state power and its permanent body is its Standing Committee. Article 57 of the Chinese Constitution. The National People's Congress and its Standing Committee exercise the legislative powers of the state. Article 58.

10. The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China was enacted pursuant to Article 31. It was adopted by the National People's Congress and was promulgated on 4 April 1990. It became the constitution of the Hong Kong Special Administrative Region upon its establishment on 1 July 1997 when China resumed the exercise of sovereignty over Hong Kong.

11. The preamble to the Basic Law states the establishment of the Region in accordance with Article 31:

".... and that under the principle of 'one country, two systems', the socialist system and policies will not be practised in Hong Kong. The basic policies of the People's Republic of China regarding Hong Kong have been elaborated by the Chinese Government in the Sino-British Joint Declaration."

12. Chapter I containing eleven articles states general principles. Article 1 provides that the Hong Kong Special Administrative Region is an inalienable part of the People's Republic of China. By Article 2, the National People's Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of the Basic Law. Article 5 provides that "the socialist system and policies" shall not be practised in the Region and that the previous capitalist system and way of life shall remain unchanged for 50 years.

13. The resumption of the exercise of sovereignty was dealt with by the Joint Declaration of the United Kingdom Government and the Chinese Government over the question of Hong Kong. This was signed on 19 December 1984 and came into effect on 27 May 1985 on the exchange of instruments of ratification. By the Joint Declaration, the Chinese Government declared its basic policies regarding Hong Kong as set out in paragraph 3 therein and as elaborated in Annex I thereof, that they will be stipulated in a Basic Law and that they will remain unchanged for 50 years.

The Basic Law

14. Article 24(1) of the Basic Law provides that residents of the Hong Kong Special Administrative Region shall include permanent residents and non-permanent residents.

15. The interpretation of Articles 24(2) and 24(3) is at the heart of this appeal. Article 24(2) provides that the permanent residents shall be the six categories of persons set out therein, namely:

"(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."

We are concerned with the third category and we shall refer to it as the third category in Article 24(2).

16. Article 24(3) provides that the permanent residents shall have the right of abode in Hong Kong and shall be qualified to obtain, in accordance with the laws of the Region, permanent identity cards which state their right of abode.

17. Article 24(4) provides that the non-permanent residents shall be persons who are qualified to obtain Hong Kong identity cards in accordance with the laws of the Region but have no right of abode.

18. Article 24 is the first article in Chapter III headed "Fundamental Rights and Duties of the Residents". After defining the residents in Article 24(1) and (2), comprising both permanent and non-permanent residents, Chapter III provides for their fundamental rights and duties including the right of abode in the case of permanent residents. These rights and duties are expressed as constitutional guarantees for freedoms which are of the essence of Hong Kong's civil society. It should be noted that only permanent residents have the right to vote and the right to stand for election in accordance with law. Article 26.

19. Article 39 in this Chapter is an important provision for the constitutional protection of individual rights. Article 39(1) provides: "The provisions of the International Covenant on Civil and Political Rights .... as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region". Article 39(2) provides that the rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law and that such restrictions shall not contravene the provisions of Article 39(1).

20. Chapter II of the Basic Law is headed: "Relationship between the Central Authorities and the Hong Kong Special Administrative Region". Article 22(4) therein provides:

" For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval. Among them, the number of persons who enter the Region for the purpose of settlement shall be determined by the competent authorities of the Central People's Government after consulting the government of the Region."

21. Chapter VIII is headed...

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