Lau Kong Yung v. Director of Immigration
Encyclopedia
Lau Kong Yung v. Director of Immigration was a 1999 right of abode case in the Hong Kong
Court of Final Appeal following closely on the heels of the landmark Ng Ka Ling v. Director of Immigration decision earlier that year. After Ng and the two prior actions in Lau, but before the case came before the CFA, the Standing Committee
of the National People's Congress
(NPCSC) of the People's Republic of China
issued an interpretation of the Basic Law which affected the rights of Lau and his fellow applicants. Lau thus became the first case in which the CFA had to take into account an NPCSC interpretation in applying the Basic Law.
made removal orders against them on the grounds that they had arrived in Hong Kong on two-way permit
s and subsequently breached their limit of stay, and did not hold certificates of entitlement to demonstrate their right of abode (which would include the right not to be subject to a removal order). They sued the Director in the Court of First Instance
to quash the removal orders, stating that the Director had acted unlawfully in refusing to consider other evidence that they had the right of abode.
, which overturned the CFI on 11 June 1999. Then on 26 June 1999, the NPCSC responded to a request of the Chief Executive of Hong Kong
and issued an interpretation of BL 24(2)(3) which effectively overturned the CFA's decision in Ng. The Director of Immigration, represented by Geoffrey Ma
, then appealed the CA's decision in Lau to the CFA. The short-term effect of the NPCSC interpretation was that Lau and his 16 fellow applicants were found not entitled to the right of abode in Hong Kong at that time; the more far-reaching effect was that the CFA ruled that the NPCSC's exercise of interpretation power was not dependent upon referral by the judiciary.
The court was unanimous in its opinion on the effects of the NPCSC's interpretation of Basic Law 24(2)(3). By majority, the court allowed the Director of Immigration
's appeal. Justice Andrew Li
wrote the unanimous opinion on the NPCSC interpretation issue, and the majority opinion on the appeal, while Justice Kemal Bokhary
wrote a dissenting opinion regarding the appeal. Unusually, in addition every other presiding judge on the case wrote a concurring opinion
stating they agreed with Li's opinion on the NPCSC interpretation, but laying out additional discussion.
Danny Gittings of the University of Hong Kong criticised Li's opinion on the NPCSC's powers of interpretation as "unnecessarily broad" and a "pre-emptive cringe". He suggested that Li could have simply concluded that the particular interpretation in question was lawful, rather than state that the NPCSC had no restrictions of any kind on its interpretive power, a ruling which far exceeded what was necessary to decide Lau. He criticised each of the judges of the CFA, including Bokhary, for being "willing to make such damaging concessions in order to avoid another confrontation in China". He analysed the court's decision as paving the way for the NPCSC's second interpretation of the Basic Law in connection with Donald Tsang's appointment as Chief Executive for two years in 2005
.
Gittings' colleague Albert Chen
was less pessimistic about the CFA's ruling. He admitted the possibility that frequent use of interpretation powers by the NPCSC could easily harm the autonomy of Hong Kong courts and public confidence therein. However, he pointed out that in Hong Kong, just as in other jurisdictions, constitutional law
comprises not just the "bones" of the written text itself, but also the "flesh" of constitional conventions
which "buil[d] upon practices, habits, customs, and legitimate expectations" and "evolve gradually to supplement the formal provisions". In Chen's view, the evolving constitutional convention in Hong Kong seemed to be that the NPCSC refrains from interpreting the Basic Law on its own initiative, but only does so when requested by Hong Kong's executive or judicial branches. The conditions for the judicial branch to request an interpretation is delineated by the Basic Law and the referral tests defined in Ng Ka Ling, while the executive branch itself refrains from requesting interpretation except with significant support from the legislature or public opinion.
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...
Court of Final Appeal following closely on the heels of the landmark Ng Ka Ling v. Director of Immigration decision earlier that year. After Ng and the two prior actions in Lau, but before the case came before the CFA, 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...
issued an interpretation of the Basic Law which affected the rights of Lau and his fellow applicants. Lau thus became the first case in which the CFA had to take into account an NPCSC interpretation in applying the Basic Law.
Background
Lau Kong Yung (劉港榕) and his 16 fellow applicants were mainland-born children of Hong Kong permanent residents and on that basis claimed to be entitled to the right of abode. The Director of ImmigrationDirector 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...
made removal orders against them on the grounds that they had arrived in Hong Kong 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 and subsequently breached their limit of stay, and did not hold certificates of entitlement to demonstrate their right of abode (which would include the right not to be subject to a removal order). They sued the Director 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...
to quash the removal orders, stating that the Director had acted unlawfully in refusing to consider other evidence that they had the right of abode.
Hearings and rulings
The CFI ruled for the Director on 30 March 1999. The applicants appealed to the Court of AppealCourt 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 overturned the CFI on 11 June 1999. Then on 26 June 1999, the NPCSC responded to a request of 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...
and issued an interpretation of BL 24(2)(3) which effectively overturned the CFA's decision in Ng. The Director of Immigration, represented by Geoffrey Ma
Geoffrey Ma
Geoffrey Ma Tao-li is currently the Chief Justice of the Court of Final Appeal of Hong Kong, who ranks second only to the Chief Executive of Hong Kong in the Hong Kong order of precedence....
, then appealed the CA's decision in Lau to the CFA. The short-term effect of the NPCSC interpretation was that Lau and his 16 fellow applicants were found not entitled to the right of abode in Hong Kong at that time; the more far-reaching effect was that the CFA ruled that the NPCSC's exercise of interpretation power was not dependent upon referral by the judiciary.
The court was unanimous in its opinion on the effects of the NPCSC's interpretation of Basic Law 24(2)(3). By majority, the court allowed 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...
's appeal. 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:...
wrote the unanimous opinion on the NPCSC interpretation issue, and the majority opinion on the appeal, while Justice Kemal Bokhary
Kemal Bokhary
Syed Kemal Shah Bokhary is a judge in Hong Kong. , he serves as one of the three Permanent Judges of Hong Kong's Court of Final Appeal.-Early life and family:...
wrote a dissenting opinion regarding the appeal. Unusually, in addition every other presiding judge on the case wrote a concurring opinion
Concurring opinion
In law, a concurring opinion is a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different reasons as the basis for his or her decision...
stating they agreed with Li's opinion on the NPCSC interpretation, but laying out additional discussion.
Outside views
Yangi Xiaonan criticised two points of Li's opinion on the issues of the NPCSC's power of interpretation. The CFA, in accepting the NPCSC's authority to interpret the Basic Law, stated that it arose from Article 67(4) of the 1982 Constitution of the People's Republic of China. However, the CFA also stated that the NPCSC interpretation, being of judicial character, had a retrospective effect and was thus applicable from 1 July 1997. Yang sees these two assertions as inherently contradictory: if the NPCSC's power of interpretation arises in the way that the CFA claims it does from the PRC constitution, then such interpretations should be of legislative rather than judicial character, and thus are non-retrospective. He also pointed out that Basic Law 158(3) explicitly states that NPCSC interpretations do not affect judgments previously rendered.Danny Gittings of the University of Hong Kong criticised Li's opinion on the NPCSC's powers of interpretation as "unnecessarily broad" and a "pre-emptive cringe". He suggested that Li could have simply concluded that the particular interpretation in question was lawful, rather than state that the NPCSC had no restrictions of any kind on its interpretive power, a ruling which far exceeded what was necessary to decide Lau. He criticised each of the judges of the CFA, including Bokhary, for being "willing to make such damaging concessions in order to avoid another confrontation in China". He analysed the court's decision as paving the way for the NPCSC's second interpretation of the Basic Law in connection with Donald Tsang's appointment as Chief Executive for two years in 2005
Hong Kong Chief Executive election, 2005
The Hong Kong Chief Executive election of 2005 was held to fill the vacancy of the territory's top office. Tung Chee Hwa submitted a resignation document to the Chinese government, and it was officially approved on 12 March. On 24 June, Donald Tsang was sworn in as the new Chief Executive on 16 June...
.
Gittings' colleague 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:...
was less pessimistic about the CFA's ruling. He admitted the possibility that frequent use of interpretation powers by the NPCSC could easily harm the autonomy of Hong Kong courts and public confidence therein. However, he pointed out that in Hong Kong, just as in other jurisdictions, constitutional law
Constitutional law
Constitutional law is the body of law which defines the relationship of different entities within a state, namely, the executive, the legislature and the judiciary....
comprises not just the "bones" of the written text itself, but also the "flesh" of constitional conventions
Constitutional convention (political custom)
A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. In some states, notably those Commonwealth of Nations states that follow the Westminster system and whose political systems derive from British constitutional law, most...
which "buil[d] upon practices, habits, customs, and legitimate expectations" and "evolve gradually to supplement the formal provisions". In Chen's view, the evolving constitutional convention in Hong Kong seemed to be that the NPCSC refrains from interpreting the Basic Law on its own initiative, but only does so when requested by Hong Kong's executive or judicial branches. The conditions for the judicial branch to request an interpretation is delineated by the Basic Law and the referral tests defined in Ng Ka Ling, while the executive branch itself refrains from requesting interpretation except with significant support from the legislature or public opinion.