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Ng Ka Ling, et al. v. Director of Immigration

38 I.L.M 551

January 29, 1999

Court of Final Appeal of the Hong Kong Special Administrative Region

N/A

International Immigration Matters (specific to China/Hong Kong)

Kevin Fong - Notes and Comments Editor 

In Ng Ka Ling, et al. v. Director of Immigration, the Court of Final Appeal of the Hong Kong Special Administrative Region (“Court”) found that the four different respondents who had separately appealed their citizenship/residency status in the Special Administrative Region of Hong Kong following the return of Hong Kong to the Peoples’ Republic of China.

 

Background/Procedural History

 

This case results from three separate cases against the Director of Immigration for the Hong Kong Special Administrative Region (“Director”) which have been appealed to the highest court in the Hong Kong Special Administrative Region (“HK”).  At issue is the immigration and citizenship policies of certain Chinese citizens in HK after the People’s Republic of China (“PRC”) resumed sovereignty over HK on July 1, 1997.

The first appeal was from Miss Ng Ka Ling and Miss Ng Tan Tan, who were infant sisters who were Chinese nationals born on the Mainland.  By the time of their birth in 1987 and 1989 respectively, their father was a Chinese citizen who had ordinarily resided in Hong Kong for a continuous period of not less than seven years, having arrived in Hong Kong in 1976.  The applicants entered Hong Kong on July 1, 1997, other than through an immigration control point. On July 4, 1997, they reported to the Immigration Department to assert their right of abode under the third category in Article 24(2) of the Basic Law (see below).  The Director failed to recognize their right. He arrested them and then released them on recognizance.

The second appeal is from Mr. Tsui Kuen Nang, a Chinese national born on the Mainland.  By the time of his birth in 1978, his father was a Chinese citizen who had ordinarily resided in Hong Kong for a continuous period of not less than seven years, having moved to Hong Kong in 1962.  Mr. Tsui entered Hong Kong on July 1, 1997, other than through an immigration control point.  On July 3, 1997, he reported to the Immigration Department to assert his right of abode under the third category in Article 24(2).  The Director failed to recognize his right. He arrested him and then released him on recognizance.

The third appeal is by Miss Cheung Lai Wah, also a Chinese national born on the Mainland.  By the time of her birth in 1989, her father was a Chinese citizen who had ordinarily resided in Hong Kong for a continuous period of not less than seven years, having come in 1967.  She was born out of wedlock.  Unfortunately, her mother died the day after her birth. She came to Hong Kong on a two-way permit in December 1994 and has overstayed since January 1995.  On  July 15, 1997, she reported to the Immigration Department to assert her right of abode under the third category in Article 24(2).  The Director failed to recognize her right and arrested her.  She was held in custody and was released on recognizance four days later, on July 19, 1997.

All three cases were appealed to the highest court in HK, where the court considered them jointly.

 

Discussion

 

Article 24(1) of the Basic Law of HK states that residents of HK shall include both permanent and non-permanent residents.  Specifically, Article 24(2) provides that permanent residents shall be of six (6) categories of persons, 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;

(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.

 

Furthermore, in relation to the category of permanent residents by descent, in paragraph 2(c), the No. 2 Immigration (Amendment) Ordinance (“No. 2 Ordinance”) stipulates the requirement that the parent had the right of abode in Hong Kong at the time of the birth of the person.  Paragraph 1(2) of Schedule 1 defines the relationship of parent and child as follows: "The relationship of parent and child is taken to exist as follows - (a) of a mother and child, between a woman and a child born to the mother in or out of wedlock; (b) of a father and child, between a man and a child born to him in wedlock or, if out of wedlock, between a father and a child subsequently legitimated by the marriage of his parents; (c) of a parent and adopted child, between a parent and a child adopted only in Hong Kong under an order made by a Court in Hong Kong under the Adoption Ordinance (Cap. 290)."  In relation to a child born out of wedlock, this definition treats the mother differently from the father.  Whereas the relationship of parent and child is taken to exist between a woman and a child born to her out of wedlock, such relationship is taken to exist between a father and a child born to him out of wedlock only if the child is subsequently legitimated by his parents' marriage.

 

A.        The applicants' position

 

The two Ng sisters and Mr. Tsui arrived in Hong Kong on July 1, 1997.  Miss Cheung had arrived earlier.  As far as the Ng sisters and Mr Tsui are concerned, the Director accepted that they are permanent residents within the third category in Article 24(2), in that they were "persons of Chinese nationality born outside Hong Kong" who had at the time of their birth one parent (the father) who was a permanent resident under the second category in Article 24(2). The father was a Chinese citizen who had ordinarily resided in Hong Kong for a continuous period of seven years.

In the case of Miss Cheung, the Director contends that she is not a permanent resident within Article 24(2) on the grounds that she was born out of wedlock. But for this contention, the Director would accept that Miss Cheung is a permanent resident within the third category in Article 24(2). She, too, is a Chinese national born outside Hong Kong whose father was at the time of her birth a permanent resident within the second category in Article 24(2).    The applicants maintain that they are permanent residents of HK within Article 24(2), and have the right of abode as conferred by Article 24(3). Miss Cheung maintains that the fact that she was born out of wedlock should not affect her status as a permanent resident.          

 

B.         The Director's position

             

                        The Director's position is that the applicants are subject to the scheme introduced by the No. 3 Immigration Ordinance (“No. 3 Ordinance”).  Under the scheme, a person's status as a permanent resident by descent can only be established by holding a one way permit affixed with a certificate of entitlement. None of the applicants held such a permit, let alone a permit which was so affixed. By virtue of section 2AA(2) of the No. 3 Ordinance, they shall be regarded as not enjoying the right of abode. Under the scheme they cannot remain in Hong Kong. They have to go back to the Mainland and apply through the Mainland Exit-Entry Administration for a certificate of entitlement and their application to that Administration for a one way permit may be regarded as such an application. It is only when the person concerned holds a one way permit affixed with a certificate of entitlement that his permanent resident status could be established and, until so established, he shall be regarded as not enjoying the right of abode. Although the Director is satisfied that the applicants (apart from Miss Cheung) are permanent residents within the third category in Article 24(2), and Miss Cheung would also be a permanent resident within that category but for his contention based on the fact that she was born out of wedlock and that the applicants had arrived before July 10, 1997 when no scheme existed. The Director maintains that the scheme still catches them because the No. 3 Ordinance enacted on July 10, 1997 was deemed to have come into operation on July 1, 1997.

 

The Court addressed five (5) issues on appeal:

 

(1)        Whether the Court had the jurisdiction to interpret the relevant provisions of the Basic Law in adjudicating these cases or is bound to seek an interpretation of such provisions from the Standing Committee of the National People's Congress pursuant to Article 158 ("the reference issue").

 

(2)            Whether the No. 3 Ordinance introducing the scheme is constitutional and, if not, the extent to which the No. 3 Ordinance is unconstitutional ("the constitutionality of the No. 3 Ordinance issue").

 

(3)             Whether section 1(2), the retrospective provision in the No. 3 Ordinance, deeming it to have come into operation on July 1, 1997, is constitutional ("the retrospectivity issue").

 

(4)             Whether paragraph 1(2)(b) of Schedule 1 introduced by the No. 2 Ordinance is constitutional. The effect of this provision is that where a child is born out of wedlock, the relationship of parent and child is taken to exist between father and child only if the child is subsequently legitimated by his parents' marriage but not otherwise ("the birth out of wedlock issue").

 

(5)            Whether the Provisional Legislative Council was a legally constituted body ("the Provisional Legislative Council issue"). If not, it would follow that the No. 3 Ordinance enacted by that body would be unconstitutional.

 

 

1.            The reference issue: The Court found that it would have jurisdiction over this and other areas of Basic Law so long as two conditions were met: (1) that the Basic Law in question either: (a) concerned affairs which are the responsibility of the Central People’s Government; or (b) concerned the relationship between the Central Authorities and HK; and (2) that the Court’s adjudication of the question is needed or necessary to interpret any provisions at issue.  The Court found that both conditions were met, and that they had jurisdiction to decide on the matter at hand.

 

2.            The Constitutionality of No. 3 Ordinance: The Court decided that it was not the classification of the applicants as permanent residents, pursuant to Article 24(2), which was at issue, but rather whether they had a right to abode under Article 24(3).  The Court found that the No. 3 Ordinance was unconstitutional to the extent that it requires permanent residents of HK residing on the Mainland to hold a one-way permit before they were able to enjoy the constitutional right of abode, limited by the actual status of the person (i.e. if they actually were permanent residents, as opposed to just claiming a status of permanent residency).  Accordingly, the Court severed the unconstitutional parts of the No. 3 Ordinance.

 

3.            The Retrospectivity Issue: The Court held that by upholding section 1(2) of the No. 3 Ordinance, permanent residents, without holding a certificate of entitlement, could not be regarded as having a right to abode.  Since no one could have held the certificate of entitlement until July 10, 1997, and the No. 3 Ordinance was presumed to have been effected on July 1, 1997, then permanent residents would be criminally liable retrospectively.  Accordingly, the Court found that the offending section was unconstitutional and accordingly excised it.

 

4.            Birth out of Wedlock Issue: The language at issue (Paragraph 1(2)b of Schedule 1 of the No. 2 Ordinance) did not create any distinction between a child born out of wedlock from that of a child born in wedlock.  Instead, since the language focused on the relationship between the child and the mother.  For Ms. Cheung, this meant that, at law, there was no relationship between her and her father, as her mother had died at childbirth.  The Court found this treatment was unequal, and thus constitutionally invalid, and appropriately modified the language of Paragraph 1(2)b of Schedule 1 of the No. 2 Ordinance to include the relationship between a father and child born to him in wedlock or out of wedlock.

 

5.            The Provisional Legislative Council Issue: The Court found that the formation of the Provisional Legislative Council (“PLC”) by the Preparatory Committee was valid and consistent with Basic Law.  Subsequently, the Court found that the legislation passed by the PLC was valid and that applicants’ argument was not valid.

Conclusion

Ultimately, the Court applied their decision to the each of the applicants and found that they did, in fact, have permanent resident status in HK, as well as having the right of enjoyment of abode in HK. As more Chinese nationals who left HK before the handover begin to return to HK, this case helps establish a more defined status for their entry into the special region. A new set of issues, however, will arise in 2047, when HK law is supposed to revert back to Chinese law, instead of being a mix of both British, Hong Kong, and Chinese law.