Director of Immigration v. Chong Fung Yuen
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''Director of Immigration v. Chong Fung Yuen'' was a 2001 case in Hong Kong's Court of Final Appeal. Chief Justice Andrew Li, in the Court's unanimous opinion, affirmed lower court decisions that Chinese citizens born in Hong Kong enjoyed the
right of abode The right of abode is an individual's freedom from immigration control in a particular country. A person who has the right of abode in a country does not need permission from the government to enter the country and can live and work there withou ...
regardless of the Hong Kong immigration status of their parents. The case touched on issues of interpretation of the
Hong Kong Basic Law The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China is a national law of China that serves as the organic law for the Hong Kong Special Administrative Region (HKSAR). Comprising nine chapters, 160 ...
, both
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
interpretation by courts in Hong Kong as well as interpretation by the
Standing Committee A committee or commission is a body of one or more persons subordinate to a deliberative assembly. A committee is not itself considered to be a form of assembly. Usually, the assembly sends matters into a committee as a way to explore them more ...
of the
National People's Congress The National People's Congress of the People's Republic of China (NPC; ), or simply the National People's Congress, is constitutionally the supreme state authority and the national legislature of the People's Republic of China. With 2,9 ...
(NPCSC) of the People's Republic of China. Professor
Albert Chen Albert Chen Hung-yee (born 1957) is a Hong Kong legal scholar, specialising in constitutional law. He is the current Cheng Chan Lan Yue Professor in Constitutional Law and the Chair of Constitutional Law at the Faculty of Law of the Universit ...
of the
University of Hong Kong The University of Hong Kong (HKU) (Chinese: 香港大學) is a public research university in Hong Kong. Founded in 1887 as the Hong Kong College of Medicine for Chinese, it is the oldest tertiary institution in Hong Kong. HKU was also the f ...
describes the case as part of a "period of elaboration and consolidation of the regime of rights in the Hong Kong SAR", lasting roughly from 2000 to 2002.


Background

The respondent, Chong Fung Yuen (莊豐源), was three years old at the time of the decision. His father Chong Kee Yan (莊紀炎) and mother lived in
Shanwei Shanwei (), or Swabue is a prefecture-level city in eastern Guangdong province, People's Republic of China. It borders Jieyang to the east, Meizhou and Heyuan to the north, Huizhou to the west, and looks out to the South China Sea to the south. I ...
, Guangdong. They came to Hong Kong as temporary visitors on
two-way permit The Exit-Entry Permit for Travelling to and from Hong Kong and Macau (), colloquially known as a Two-way Permit () or EEP (Exit-Entry Permit) is issued to Chinese nationals with residency in Mainland China as a travel document for the sole purp ...
s in September 1997 to visit the father's own father Chong Yiu Shing (莊曜誠). Chong Fung Yuen himself was born soon after they arrived. Chong Yiu Shing applied for permanent residency on his behalf. At the time of Chong's birth, another major right of abode case had already been set in motion, and would eventually reach the CFA as ''Ng Ka Ling v. Director of Immigration''. Following the unfavourable ruling for the
Director of Immigration The Director of Immigration is the head of the Immigration Department of the Hong Kong Government, which is responsible for immigration issues and controlling entry ports into Hong Kong. Decisions to reject people from entering are made by fron ...
in that case, the
Chief executive of Hong Kong The Chief Executive of the Hong Kong Special Administrative Region is the representative of the Hong Kong Special Administrative Region and head of the Government of Hong Kong. The position was created to replace the office of governor of ...
(then
Tung Chee Hwa Tung Chee-hwa (; born 7 July 1937) is a Hong Kong businessman and politician who served as the first Chief Executive of Hong Kong between 1997 and 2005, upon the transfer of sovereignty on 1 July. He is currently a vice-chairman of the Chi ...
) sought and on 26 June 1999 obtained an interpretation of Articles 22(4) and 24(2)(3) of the Basic Law from the NPCSC. That interpretation referred to the Basic Law Preparatory Committee's
legislative intent In law, the legislative intent of the legislature in enacting legislation may sometimes be considered by the judiciary to interpret the law (see judicial interpretation). The judiciary may attempt to assess legislative intent where legislation ...
behind the whole of Article 24 in rendering its decision. Chong's case turned on Article 24(2)(1) of the Basic Law ("BL 24(2)(1)"), which states that permanent residents of Hong Kong include "Chinese citizens born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region", and Paragraph 2(a) of Schedule 1 to the Hong Kong Immigration Ordinance, which restricted that provision to persons whose "father or mother was settled or had the right of abode in Hong Kong at the time of the birth of the person or at any later time". Chong filed suit against the Director of Immigration in the
Court of First Instance A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accorda ...
, claiming to be a permanent resident with the right of abode under BL 24(2)(1).
Gladys Li Gladys Veronica Li, QC, SC (; born 1948), is a Barrister in England, a Senior Counsel at the Hong Kong Bar with a constitutional law and human rights practice, and a founding member of the Hong Kong Civic Party. Career Li began to take an int ...
represented Chong, while
Joseph Fok Joseph Paul Fok (, born 24 September 1962) is a Permanent Judge of the Hong Kong Court of Final Appeal. At 51 years and 28 days, he is the third youngest-ever judge to be appointed to the Court of Final Appeal, behind only Kemal Bokhary and And ...
represented the Director of Immigration. On 24 December 1999, Judge
Frank Stock Frank Stock, GBS (; born 15 June 1945) is a Non-Permanent Judge of the Hong Kong Court of Final Appeal. He was until 2014 a Vice President of the Hong Kong Court of Appeal. Early life and education Born in Southern Rhodesia (now Zimbabwe), S ...
of the CFI ruled in Chong's favour, stating that the provision of the IO in question derogated from his rights under BL 24(2)(1). The CFI addressed only the language of BL 24(2)(1) and not the NPCSC interpretation. The Director of Immigration appealed to the Court of Appeal, where on 27 July 2000 Vice-President Simon Mayo and Justices Arthur Leong and Anthony Rogers also ruled in Chong's favour, affirming the lower court's decision regarding the language of BL 24(2)(1) and additionally stating that the NPCSC interpretation did not address BL 24(2)(1) and thus had no effect on it. The Director of Immigration appealed for the last time to the CFA, which dismissed the appeal. ''Chong'' was one of three CFA cases relating to the right of abode that year, the other two being '' Fateh Muhammad v. Commissioner of Registration'' (which ruled that a foreign national's seven years of "ordinary residence" qualifying him to apply for permanent residence must immediately precede his application, thus disqualifying a Pakistani migrant who resided in Hong Kong since the 1960s but had recently served a four-year prison sentence), and '' Tam Nga Yin v. Director of Immigration'' (which ruled that mainland-born children adopted by Hong Kong parents did not thus gain the right of abode). The hearing was held in March, but the Court of Final Appeal refrained from issuing its decision until after the hearings on the latter two cases.


Social effects

As a result of the ''Chong'' decision, 2,202 children born in Hong Kong to mainland mothers since 1997 immediately became entitled to the right of abode; of their mothers, 232 were
illegal immigrants Illegal immigration is the migration of people into a country in violation of the immigration laws of that country or the continued residence without the legal right to live in that country. Illegal immigration tends to be financially upwa ...
, while 1,821 were overstayers. The ruling led to fears of an influx of mainland women seeking to give birth in public hospitals, as well as calls for the government to seek an NPCSC interpretation in order to prevent that outcome. Acting
Secretary for Security The Secretary for Security is the member of the Government of Hong Kong in charge of the Security Bureau, which is responsible for public safety, security, and immigration matters. The post was created in 1973 and since the Principal Offic ...
Timothy Tong Timothy Tong Hin-ming () born 12 July 1949, is a former commissioner for the Independent Commission Against Corruption of Hong Kong. Prior to that, he was Commissioner of Customs and Excise for the Customs and Excise Department of Hong Kong. ...
was quoted as stating that the Immigration Department would take steps to tackle the problem of mainland women entering Hong Kong illegally, which was expected to worsen as a result of the ruling. He stated that illegal immigrant and overstaying mothers would be deported to the mainland regardless of their children's right of abode. The calls to seek an NPCSC interpretation were ignored. In the coming years the increase in the number of mainland women giving birth in Hong Kong put strains on Hong Kong's health care system, from 2003 to 2008 jumping by a factor of 25. Beginning in 2007, the government began to adopt administrative measures to control public spending in the face of the influx; among other measures, this included tightened residency requirements on applications from
Comprehensive Social Security Assistance The Comprehensive Social Security Assistance (CSSA) scheme is a welfare programme in Hong Kong that provides supplementary payments to Hong Kong residents whose income is not sufficient to meet basic needs. History Historical overview The fi ...
. That year the Census and Statistics Department also began conducting a series of surveys entitled "Babies Born in Hong Kong to Mainland Women", targeting the parents of such babies. They achieved a response rate of above 80% during each of the survey periods. During the longest survey period, the fourth (from 6 January to 29 June 2010), they received surveys from the parents of 89% (14,685) of the babies born in Hong Kong to at least one mainland parent during the period under examination. Chong himself settled in Hong Kong, living with his paternal grandmother and grandfather, while his younger sister remained in Shanwei. He has a younger sister, born in 1993. Chong had few opportunities for reunions with his family, often seeing them just twice a year during Chinese New Year and summer holidays. His father moved to Hong Kong in 2009, but took up employment in
Yuen Long Yuen Long is a town in the western New Territories, Hong Kong. To its west lie Hung Shui Kiu (), Tin Shui Wai, Lau Fau Shan and Ha Tsuen, to the south Shap Pat Heung and Tai Tong, to the east Au Tau and Kam Tin (), and to the north N ...
and did not live with his son. In an interview in 2011, Chong, by then 14 and a Form 1 student in
Tuen Mun Tuen Mun or Castle Peak is an area near the mouth of Tuen Mun River and Castle Peak Bay in the New Territories, Hong Kong. It was one of the earliest settlements in what is now Hong Kong and can be dated to the Neolithic period. In the more ...
, described being affected by internet users' taunts of him as a "locust" and a "criminal"; however, he was still comfortable revealing his background to people around him, including his classmates.


Legal principles

In the ''Chong'' decision, the Court of Final Appeal laid down an important principle of its approach to interpretation of the Basic Law. In ''Chong'', the Court of Final Appeal held that 26 June 1999 NPCSC interpretation was only binding on BL 24(2)(3), and had no bearing on how to interpret BL 24(2)(1), the provision at issue in ''Chong''. Thus, the court stated that it would interpret BL 24(2)(1) through the
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
approach to interpretation. A literal reading of the law supported the contention that Chong Fung Yuen was entitled to the right of abode in Hong Kong. The court stated that "In the absence of a binding interpretation by the NPCSC, extrinsic materials cannot affect interpretation where the courts conclude that the meaning of the language is clear. It is clear if it is free from ambiguity, that is, it is not reasonably capable of sustaining competing alternative interpretations. The courts will not on the basis of any extrinsic materials depart from the clear meaning and give the language a meaning which the language cannot bear." The NPCSC itself expressed "deep concern" over the ruling in the case, stating that it did not fully correspond with their earlier explanations of the Basic Law and contrasting it unfavourably with earlier court decisions which made decisions according to those explanations. Basic Law Committee member
Elsie Leung Elsie Leung Oi-sie, GBM, JP (; born 24 April 1939) is a Hong Kong politician and solicitor. She was Secretary for Justice of Hong Kong from 1997 to 2005 and a member of the Executive Council of Hong Kong. Early life and education Leung was ...
would later criticise the court for its approach to interpreting the Basic Law. Po Jen Yap of the
University of Hong Kong The University of Hong Kong (HKU) (Chinese: 香港大學) is a public research university in Hong Kong. Founded in 1887 as the Hong Kong College of Medicine for Chinese, it is the oldest tertiary institution in Hong Kong. HKU was also the f ...
also criticised the CFA for effectively treating the NPCSC interpretation as having a judicial rather than statutory character, as though it were a ruling by a higher court, and in his opinion misusing this characterisation to treat the preamble of the interpretation as a mere ''
obiter dictum ''Obiter dictum'' (usually used in the plural, ''obiter dicta'') is a Latin phrase meaning "other things said",''Black's Law Dictionary'', p. 967 (5th ed. 1979). that is, a remark in a legal opinion that is "said in passing" by any judge or arbit ...
''. Conversely, the Court of Final Appeal was criticised from another direction by Ling Bing of the
Chinese University of Hong Kong The Chinese University of Hong Kong (CUHK) is a public research university in Ma Liu Shui, Hong Kong, formally established in 1963 by a charter granted by the Legislative Council of Hong Kong. It is the territory's second-oldest university and ...
, who felt that the court's statement that "the power of the Standing Committee extends to every provision in the Basic Law and is not limited to the excluded provisions referred to in art. 158(3)" ''overstated'' the NPCSC's BL 158 authority to interpret the Basic Law. Thomas E. Kellogg of
Yale Law School Yale Law School (Yale Law or YLS) is the law school of Yale University, a private research university in New Haven, Connecticut. It was established in 1824 and has been ranked as the best law school in the United States by '' U.S. News & Worl ...
sees this as an attempt to avoid political controversy, which aided in preserving the so-called "two-part referral test" established in ''Ng''. That test, in the absence of any statutorily-specified mechanism to determine when the court should request interpretation from the NPCSC, established a high bar for such requests. He also praised the ''Chong'' decision for "aggressively protect ngthe rights of the litigants involved". Yang Xiaonan analysed the CFA's reluctance to rely on extrinsic materials in ''Chong'' in terms of balance of power between the NPCSC and the CFA, as well as fairness to judicial review applicants: some documents which may aid in ascertaining the authentic intentions of the Basic Law's drafters are likely to be confidential and thus accessible only to the NPCSC, not to the CFA or to applicants. Excessive reliance on extrinsic materials could thus harm the authority and autonomy of the CFA. The CFA also stated, even where extrinsic materials may be considered in interpreting the Basic Law, courts should limit themselves to pre-enactment materials; Yang made analogies between the CFA's approach and the
originalist In the context of United States law, originalism is a theory of constitutional interpretation that asserts that all statements in the Constitution must be interpreted based on the original understanding "at the time it was adopted". This conc ...
approach to U.S. constitutional interpretation. He went on to analyse the CFA's actions in terms of the political climate in Hong Kong at the time: by emphasising the literalist tradition of common law, the CFA promoted predictability, a core value of the rule of law. As he stated, "if the CFA establishes advanced, mature and coherent methodologies, this may increase public support for the courts". Public support for Hong Kong courts puts pressure on the NPCSC, which as a political body rather than a judicial one takes into account the costs and ramifications of using its power of interpretation to overrule the CFA, including the possibility of damaging public confidence in the rule of law in Hong Kong.


References

{{Hong Kong Basic Law 2001 in case law 2001 in Hong Kong Hong Kong Basic Law Hong Kong immigration case law