Local Issue of Human Rights

Human Rights Issues -- July 2001

CFA: Three significant abode-rulings (July 11, 2001) (Article 23)

The passing of the Chief Executive Election Ordinance (July 12, 2001) (Article 25)

CFA: Three significant abode-rulings (July 11, 2001) (Article 23)

The Court of Final Appeal (CFA) had ruled on the three right-of-abode cases. The Court determined that adopted children from Mainland China did not have the right of abode, while the children born in Hong Kong by Mainland parents have the right of abode instead. Besides, the third case was about the prisoner and the court ruled that the duration in jail were not involved in the years for claiming right of abode. The ruling were made by the Chief Justice Lee Kwok-nang, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ, Mr Justice Bokhary PJ

Details of each case were as followings:

(1) Adopted Children from Mainland China do not have the right of abode

The first case is about the adopted children from Mainland China. Miss. Tam Nga Yin, one of the appellants, was Chinese citizens born on the Mainland and was adopted in accordance with the Mainland law by her adopted parents who were Hong Kong permanent residents. At the time of her adoption, at least one of her adoptive parents was a permanent resident. The majority of the court ruled in favor of the appellant. Article 24(2)(3) states that persons of Chinese nationality born outside Hong Kong of those residents listed in category (1) and (2) are permanent residents. The question is whether adopted children belong to these categories. According to the judgement, the court stated that there was no interpretation by the Standing Committee of National People' Congress in Article 24(2)(3) in relation to adopted children. As it was not the concern affairs which are the responsibility of the Central People's Government or the relationship between the central authorities and Hong Kong, the CFA ruled that it can rule by itself under common law practice.

To qualify as a permanent resident under Article 24(2)(3), the person concerned must satisfy three requirements: (1) Must be a Chinese citizen. (2) Must have been born outside Hong Kong. (3) At least one of the parents must have been a permanent resident within Article 24(2)(1) or 24(2)(2) at the time of birth of the person concerned. The question is whether the relationship in the third requirement covers that arising from adoption.

The CFA ruled that the phrase "born … of" was not ambiguous that it plainly refers only to natural children and is incapable of sustaining an interpretation that adopted children are included. On the contrary, Mr Justice Bokhary PJ dissented the view. In his judgment, Art. 24(2)(3) includes adopted children and he would allow these appeals. He determined that the word "born" can be read as pertaining only to the place of birth and the word "of" as merely connoting the parent and child relationship. It would promote family unity, which is valued at every level in our society including the constitutional level.

(2) Children born in Hong Kong of Mainland Parents have right of abode

The second case was about Mr. Chong Fung-yuen, who was a Chinese citizen born in Hong Kong on 29 September 1997 after the establishment of the HKSAR on 1 July 1997, by Mainlander parents. The Director of Immigration, an appellant, argued that the respondent did not have right of abode because neither his father nor mother was Hong Kong permanent resident. It further argued that Article 24(2)(1) by necessary implication does not confer a right of abode on Chinese citizens who are born in Hong Kong by illegal immigrants, overstayers or people temporarily residing in Hong Kong.

The court unanimously ruled that the interpretation of the National People's Congress Standing Committee (NPCSC) was unrelated to that ruling. The court stated that the Director of Immigration relied on the statement in the Interpretation that the legislative intent of all other categories of art. 24(2) have been reflected in the Preparatory Committee's Opinions on the implementation of art. 24(2). However, it was not a binding interpretation of art. 24(2)(1) by the Standing Committee. Under the common law approach, the court stated that it had a duty to construe the language in art. 24(2)(1) in the light of its context and purpose in order to ascertain the legislative intent as expressed in the language. The meaning of the language is clear and not ambiguous, which straightly means Chinese citizens born in Hong Kong before or after 1 July 1997. As a result, the Director's appeal was dismissed. It implicated that children born in Hong Kong by mainland parents would have right of abode.

The authority worried that the ruling would lead to the large influx of illegal immigrants, overstaying or sharply increase of applying for two-way permits. According to the statistics of the Immigration Department, there are only 2,202 babies born in Hong Kong by illegal immigrants, overstayers and holders of two-way permits from 1997 to June 2001.

(3) Years in jail would not be counted for having right of abode

The third case was about whether the period in jail were counted for the years for staying in Hong Kong to apply for permanent residency. The appellant, Mr Fateh Muhammad, claimed to be a Hong Kong permanent resident with the right of abode here. He argued that he came within the category of permanent residents set out in art. 24(2)(4) which covers:

"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."

Mr Muhammad has lived in Hong Kong since the 1960s. However, he was in imprisonment from 27 April 1994 to 27 February 1997 serving a sentence for conspiracy. The Court of Final Appeal (CFA) ruled that the seven continuous years required by that article 24(2)(4) must come immediately before the time when an application for permanent resident status is made in reliance on those seven continuous years. Moreover, the period of imprisonment or detention does not count as ordinary residence.

As Mr Muhammad has not yet achieved seven years' ordinary and continuous residence in Hong Kong immediately before applying for such status, he did not have permanent resident status and his appeal was dismissed. Moreover, the CFA stated that the Director of Immigration still have discretionary power to decide whether to grant the permanent resident status to the applicants having seven continuous years' residency.

The passing of the Chief Executive Election Ordinance (July 12, 2001) (Article 25)

The Chief Executive Election Ordinance, which was one of the most influential ordinances of the Hong Kong political system, was passed yesterday by 36 votes of agrees and 18 votes of disagrees. The main issues of the case involved:

1. The Chief Executive would be elected by election committee with 800 members.
2. The voting day should be set on the first Sunday of 90 days prior to the day of appointment of the Chief Executive.
3. The candidate, who was affiliated with political party, must resigned from the party after s/he was successfully elected.
4. The nominator of the candidate should be known to the public.
5. A mechanism of resignation should be established.
6. An upper limit of election expenditure will be set later by subsidiary legislation.
7. The Central People's Government has the authority to dismiss the Chief Executive in accordance with the Basic Law and then the vacancy will be existed.

The passed bill was strongly criticized by the Democratic Party because the SAR Government actively delegated the authority of the Central People's Government to dismiss the Chief Executive of the SAR Government, which resulted in the serious exploitation of the Hong Kong SAR to exercise the high degree of autonomy enshrined in Article 2 of the Basic Law. Those democratic legislators even left the room together after the vote to demonstrate against the bill.

Non-affiliated legislator SC Audrey Eu, who had left during the meeting of the Drafting Committee to oppose the draft of the bill, criticized that the Basic Law merely stated that the Central People's Government has an authority to appoint the Chief Executive but not dismiss the Chief Executive. She also speculated whether the SAR Government actively invited the Central Government to infringe an autonomy of Hong Kong.

Moreover, in his column at Mingpao dated July 19 2001, SC Mr. Tong Ka-wah, the former chairman of the Hong Kong Barrister Association commented that the local government (Hong Kong SAR Government) did not have an authority to delegate a power to the central government (Central People's Government) to dismiss its own Chief Executive by common law practice. If the central government did have such authority, it should be clearly stated either in the constitution of the state or that of the region.

On the contrary, the Government had its explanation. Mr. Suen Ming-yeung, the Secretary for Constitutional Affairs, stated that the power of the Central Government to remove the Chief Executive was essential in order to prevent the Chief Executive from merely doing something in favor of the Hong Kong citizens while it was not welcomed by the Central Government.

Moreover, Mr. Tsang Yuk-shing, the chairperson of the Democratic Alliance for Betterment of Hong Kong (DAB), supported the Government's motion. He commented that as Basic Law had already stated that the Central authority could appoint and remove the senior officials, it implicitly implied that the same power should also be applied to the Chief Executive.

Hong Kong City University Professor and US citizen, Li Shaomin was deported to the US after being convicted of espionage in China. (15 July 2001) (Article 12)

After the telephone call between the US president and the President of Jiang Zemin, the case of Li Shaomin was settled by finding guilty of spying for Taiwan by a Beijing Court and he was ruled to be deported from Chinese boundary to the United States. The trial was held behind close doors and no details of his alleged crimes were told to the public. Mr. Li denied all the allegations by the court.

His deportation and return was a hot debate on the application of mainland court decision in Hong Kong and the definition of the Chinese boundary. Regarding to the geographical boundaries and sovereignty, Hong Kong is undoubtedly under the umbrella of China. Therefore, with reference to the court decision by which ordered Mr. Li should be expelled from Chinese boundary, it seemed that Mr. Li had the difficulty to be back to Hong Kong. But, due to the principle of One Country Two Systems, mainland court decisions cannot be applied to Hong Kong. The SAR government was in dilemma by whether it should allow Mr. Li back to Hong Kong and test the stand of the Hong Kong Government towards the "One Country, Two Systems" principle.

After the week of being convicted of espionage, Mr. Li was allowed to be back to Hong Kong by the Hong Kong Government and the City University also welcomed him to resume his teaching post.

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