Director of Immigration v. Chong Fung Yuen
Encyclopedia
Director of Immigration v. Chong Fung Yuen was a 2001 case in the Court of Final Appeal, Hong Kong
. 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 regardless of the Hong Kong immigration status of their parents. The case touched on issues of interpretation of the Hong Kong Basic Law
, both common law
interpretation by courts
in Hong Kong as well as interpretation by the Standing Committee
of the National People's Congress
(NPCSC) of the People's Republic of China
. Professor Albert Chen
of the University of Hong Kong 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.
, Guangdong
. They came to Hong Kong as temporary visitors on two-way permit
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
in that case, the Chief Executive of Hong Kong
(then Tung Chee Hwa
) sought and on 26 June 1999 obtained a 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
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
, claiming to be a permanent resident with the right of abode under BL 24(2)(1). Gladys Li
represented Chong, while Joseph Fok represented the Director of Immigration. On 24 December 1999, 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
, which on 27 July 2000 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.
, 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
Timothy Tong
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 childrens' 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. That year the Census and Statistics Department also began conducting a series of surveys entitled "Babies Born in Hong Kong to Mainland Women", targetting 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
and did not live with his son. In an interview in 2011, Chong, by then 14 and a Form 1 student in Tuen Mun
, 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.
of the Basic Law. In Chong, the Court of Final Appeal held that the 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
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
would later criticise the court for its approach to interpreting the Basic Law. Po Jen Yap of the University of Hong Kong 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
.
Conversely, the Court of Final Appeal was criticised from another direction by Ling Bing of the Chinese University of Hong Kong
, 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
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[ing] the 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
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.
Hong Kong
Hong Kong is one of two Special Administrative Regions of the People's Republic of China , the other being Macau. A city-state situated on China's south coast and enclosed by the Pearl River Delta and South China Sea, it is renowned for its expansive skyline and deep natural harbour...
. Chief Justice Andrew Li
Andrew Li
Andrew Li Kwok-nang, CBE, GBM, JP is the former Chief Justice of the Court of Final Appeal of Hong Kong, a post he held from the 1997 Hong Kong handover until 31 August 2010 inclusive. He is succeeded by Geoffrey Ma.-Early life and education:...
, in the Court's unanimous opinion, affirmed lower court decisions that Chinese citizens
Nationality Law of the People's Republic of China
The Nationality Law of the People's Republic of China regulates citizenship in the People's Republic of China . Such citizenship is obtained by birth when at least one parent is of Chinese nationality or by naturalization....
born in Hong Kong enjoyed the right of abode regardless of the Hong Kong immigration status of their parents. The case touched on issues of interpretation of the Hong Kong Basic Law
Hong Kong Basic Law
The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, or simply Hong Kong Basic Law, serves as the constitutional document of the Hong Kong Special Administrative Region of the People's Republic of China...
, both common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
interpretation by courts
Judicial interpretation
Judicial interpretation is a theory or mode of thought that explains how the judiciary should interpret the law, particularly constitutional documents and legislation...
in Hong Kong as well as interpretation by the Standing Committee
Standing Committee of the National People's Congress
The Standing Committee of the National People's Congress is a committee of about 150 members of the National People's Congress of the People's Republic of China , which is convened between plenary sessions of the NPC. It has the constitutional authority to modify legislation within limits set by...
of the National People's Congress
National People's Congress
The National People's Congress , abbreviated NPC , is the highest state body and the only legislative house in the People's Republic of China. The National People's Congress is held in the Great Hall of the People, Beijing, capital of the People's Republic of China; with 2,987 members, it is the...
(NPCSC) of the People's Republic of China
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
. Professor Albert Chen
Albert Chen
Albert Hung Yee Chen is a legal scholar in Hong Kong. He was the immediate past Dean of the Faculty of Law of the University of Hong Kong, where he currently serves as the Chan Professor in Constitutional Law.-History:...
of the University of Hong Kong 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 ShanweiShanwei
Shanwei is a prefecture-level city in Guangdong province of Southern China, 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...
, Guangdong
Guangdong
Guangdong is a province on the South China Sea coast of the People's Republic of China. The province was previously often written with the alternative English name Kwangtung Province...
. They came to Hong Kong as temporary visitors on two-way permit
Two-way Permit
Exit-Entry Permit for Travelling to and from Hong Kong and Macao, , colloquially known as a Two-way Permit, , are issued to mainland Chinese as entry and exit travel document for purpose of travel to Chinese Special Administrative Regions of Hong Kong and Macau...
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
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.-List of Directors of Immigration:* J. Moore...
in that case, the Chief Executive of Hong Kong
Chief Executive of Hong Kong
The Chief Executive of Hong Kong is the President of the Executive Council of Hong Kong and head of the Government of the Hong Kong Special Administrative Region. The position was created to replace the Governor of Hong Kong, who was the head of the Hong Kong government during British rule...
(then Tung Chee Hwa
Tung Chee Hwa
Tung Chee Hwa, GBM was the first Chief Executive and President of the Executive Council of the Hong Kong Special Administrative Region of the People's Republic of China....
) sought and on 26 June 1999 obtained a 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
Legislative intent
In law, the legislative intent of the legislature in enacting legislation may sometimes be considered by the judiciary when interpreting the law...
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
Court of First Instance (Hong Kong)
The Court of First Instance is one of two courts in the High Court of Hong Kong. The court has unlimited jurisdiction in both civil and criminal matters...
, claiming to be a permanent resident with the right of abode under BL 24(2)(1). Gladys Li
Gladys Li
Gladys Veronica Li, Senior Counsel at the Hong Kong Bar with a busy constitutional law and human rights practice, is a founding member of the Hong Kong Civic Party. She began to take an interest in public affairs on her return to Hong Kong in 1982, after 10 years' practice as a barrister in England...
represented Chong, while Joseph Fok represented the Director of Immigration. On 24 December 1999, 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
Court of Appeal (Hong Kong)
The Court of Appeal deals with appeals on all civil and criminal cases from the Court of First Instance and the District Courts of Hong Kong. It is one of two courts that makes up the High Court of Hong Kong....
, which on 27 July 2000 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
Fateh Muhammad v. Commissioner of Registration
Fateh Muhammad v. Commissioner of Registration and Registration of Persons Tribunal was a 2001 case in the Court of Final Appeal, Hong Kong by a Pakistani migrant seeking the right of abode in Hong Kong...
(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
Pakistanis in Hong Kong
Pakistanis are part of the South Asian minority population in Hong Kong. The 2006 census stated that there were 11,111 Pakistanis in Hong Kong, accounting for 0.2% of the total Hong Kong population. Pakistanis occupied 3.2% of the total number of 342,198 ethnic minority populations...
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 immigrantsIllegal immigration
Illegal immigration is the migration into a nation in violation of the immigration laws of that jurisdiction. Illegal immigration raises many political, economical and social issues and has become a source of major controversy in developed countries and the more successful developing countries.In...
, 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
Secretary for Security
The Secretary for Security is the member of the Hong Kong Government in charge of the Security Bureau, which is responsible for public safety, security, and immigration matters....
Timothy Tong
Timothy Tong
Timothy Tong born in 1950, is the current Commissioner, Independent Commission Against Corruption 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.Tong studied at Diocesan...
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 childrens' 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. That year the Census and Statistics Department also began conducting a series of surveys entitled "Babies Born in Hong Kong to Mainland Women", targetting 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
Chinese New Year
Chinese New Year – often called Chinese Lunar New Year although it actually is lunisolar – is the most important of the traditional Chinese holidays. It is an all East and South-East-Asia celebration...
and summer holidays. His father moved to Hong Kong in 2009, but took up employment in Yuen Long
Yuen Long
Yuen Long , formerly Un Long, is an area and town located in the northwest of Hong Kong, on the Yuen Long Plain. To its west lie Hung Shui Kiu and Ha Tsuen, to the south Shap Pat Heung and Tai Tong, to the east Au Tau and Kam Tin, and to the north Nam Sang Wai.-Name:The Cantonese name Yuen Long 元朗...
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
Tuen Mun is a town 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 Hong Kong which can be dated back to the Neolithic period. In the more recent past, it was home to many Tanka fishermen who gathered at the Castle...
, 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 interpretationJudicial interpretation
Judicial interpretation is a theory or mode of thought that explains how the judiciary should interpret the law, particularly constitutional documents and legislation...
of the Basic Law. In Chong, the Court of Final Appeal held that the 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
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
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
Elsie Leung Oi-sie, GBM JP, was the Secretary for Justice of Hong Kong from 1997 to 2005, and was a member of the Executive Council of Hong Kong. She was succeeded by Wong Yan Lung, SC, on 20 October 2005.-Education:...
would later criticise the court for its approach to interpreting the Basic Law. Po Jen Yap of the University of Hong Kong 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
Obiter dictum is Latin for a statement "said in passing". An obiter dictum is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision...
.
Conversely, the Court of Final Appeal was criticised from another direction by Ling Bing of the Chinese University of Hong Kong
Chinese University of Hong Kong
The Chinese University of Hong Kong is a research-led university in Hong Kong.CUHK is the only tertiary education institution in Hong Kong with Nobel Prize winners on its faculty, including Chen Ning Yang, James Mirrlees, Robert Alexander Mundell and Charles K. Kao...
, 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 School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
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[ing] the 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
Originalism
In the context of United States constitutional interpretation, originalism is a principle of interpretation that tries to discover the original meaning or intent of the constitution. It is based on the principle that the judiciary is not supposed to create, amend or repeal laws but only to uphold...
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
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
. 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.