FACV No. 14 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 14 OF 1998 (CIVIL)

(ON APPEAL FROM CACV No. 216 OF 1997)

_____________________

_____________________

_______________

J U D G M E N T

_______________

Chief Justice Li:

1. This judgment is the unanimous judgment of the Court.

2. Throughout history, residents in Hong Kong have had family ties in the rest of China. Since the Mainland began her open door policy, resulting in strong links with Hong Kong, these family ties have very much grown. By 1 July 1997, when the People's Republic of China resumed the exercise of sovereignty over Hong Kong, a number of Chinese nationals born on the Mainland have at least one parent who is a Hong Kong permanent resident with the right of abode here.

3. We are concerned in this appeal with their status as permanent residents of and their right of abode in Hong Kong. Questions involving the proper interpretation of the Basic Law are before us for the first time. These are questions of momentous importance for both the future of the people involved as well as the development of constitutional jurisprudence in the new order.

Terminology

4. We shall for convenience refer to the People's Republic of China as China; the Standing Committee of the National People's Congress as the Standing Committee; the Hong Kong Special Administrative Region as the Region or Hong Kong.

5. A reference to an Article is to the Article in the Basic Law. The text of the Basic Law does not number the sub-paragraphs of each Article. However, as is common practice, it is convenient to refer to the sub-paragraphs by numbering them. The second sub-paragraph of Article 24 will, for example, be referred to as Article 24(2).

6. The appellants in the first two appeals and the respondent in the third appeal were the applicants in the judicial review proceedings and will all be referred to as "the applicants".

7. The Director of Immigration of the Hong Kong Special Administrative Region will be referred to as "the Director". He is the respondent in the first two appeals and the appellant in the third appeal.

The constitutional framework

8. The Constitution of the People's Republic of China provides in Article 31:

" The state may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People's Congress in the light of the specific conditions."

9. The National People's Congress is the highest organ of state power and its permanent body is its Standing Committee. Article 57 of the Chinese Constitution. The National People's Congress and its Standing Committee exercise the legislative powers of the state. Article 58.

10. The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China was enacted pursuant to Article 31. It was adopted by the National People's Congress and was promulgated on 4 April 1990. It became the constitution of the Hong Kong Special Administrative Region upon its establishment on 1 July 1997 when China resumed the exercise of sovereignty over Hong Kong.

11. The preamble to the Basic Law states the establishment of the Region in accordance with Article 31:

".... and that under the principle of 'one country, two systems', the socialist system and policies will not be practised in Hong Kong. The basic policies of the People's Republic of China regarding Hong Kong have been elaborated by the Chinese Government in the Sino-British Joint Declaration."

12. Chapter I containing eleven articles states general principles. Article 1 provides that the Hong Kong Special Administrative Region is an inalienable part of the People's Republic of China. By Article 2, the National People's Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of the Basic Law. Article 5 provides that "the socialist system and policies" shall not be practised in the Region and that the previous capitalist system and way of life shall remain unchanged for 50 years.

13. The resumption of the exercise of sovereignty was dealt with by the Joint Declaration of the United Kingdom Government and the Chinese Government over the question of Hong Kong. This was signed on 19 December 1984 and came into effect on 27 May 1985 on the exchange of instruments of ratification. By the Joint Declaration, the Chinese Government declared its basic policies regarding Hong Kong as set out in paragraph 3 therein and as elaborated in Annex I thereof, that they will be stipulated in a Basic Law and that they will remain unchanged for 50 years.

The Basic Law

14. Article 24(1) of the Basic Law provides that residents of the Hong Kong Special Administrative Region shall include permanent residents and non-permanent residents.

15. The interpretation of Articles 24(2) and 24(3) is at the heart of this appeal. Article 24(2) provides that the permanent residents shall be the six categories of persons set out therein, 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; and

(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."

We are concerned with the third category and we shall refer to it as the third category in Article 24(2).

16. Article 24(3) provides that the permanent residents shall have the right of abode in Hong Kong and shall be qualified to obtain, in accordance with the laws of the Region, permanent identity cards which state their right of abode.

17. Article 24(4) provides that the non-permanent residents shall be persons who are qualified to obtain Hong Kong identity cards in accordance with the laws of the Region but have no right of abode.

18. Article 24 is the first article in Chapter III headed "Fundamental Rights and Duties of the Residents". After defining the residents in Article 24(1) and (2), comprising both permanent and non-permanent residents, Chapter III provides for their fundamental rights and duties including the right of abode in the case of permanent residents. These rights and duties are expressed as constitutional guarantees for freedoms which are of the essence of Hong Kong's civil society. It should be noted that only permanent residents have the right to vote and the right to stand for election in accordance with law. Article 26.

19. Article 39 in this Chapter is an important provision for the constitutional protection of individual rights. Article 39(1) provides: "The provisions of the International Covenant on Civil and Political Rights .... as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region". Article 39(2) provides that the rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law and that such restrictions shall not contravene the provisions of Article 39(1).

20. Chapter II of the Basic Law is headed: "Relationship between the Central Authorities and the Hong Kong Special Administrative Region". Article 22(4) therein provides:

" For entry into the Hong Kong Special Administrative Region, people from other parts of China must apply for approval. Among them, the number of persons who enter the Region for the purpose of settlement shall be determined by the competent authorities of the Central People's Government after consulting the government of the Region."

21. Chapter VIII is headed: "Interpretation and Amendment of the Basic Law". Article 158, dealing with interpretation, provides:

" The power of interpretation of this Law shall be vested in the Standing Committee of the National People's Congress.

            The Standing Committee of the National People's Congress shall authorize the courts of the Hong Kong Special Administrative Region to interpret on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region.

            The courts of the Hong Kong Special Administrative Region may also interpret other provisions of this law in adjudicating cases. However, if the courts of the Region, in adjudicating cases, need to interpret the provisions of this Law concerning affairs which are the responsibility of the Central People's Government, or concerning the relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the cases, the courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the Standing Committee of the National People's Congress through the Court of Final Appeal of the Region. When the Standing Committee makes an interpretation of the provisions concerned, the courts of the Region, in applying those provisions, shall follow the interpretation of the Standing Committee. However, judgments previously rendered shall not be affected.

            The Standing Committee of the National People's Congress shall consult its Committee for the Basic Law of the Hong Kong Special Administrative Region before giving an interpretation of this Law."

The Joint Declaration

22. The definition of permanent residents in Article 24 of the Basic Law had its origin in Part XIV in Annex I of the Joint Declaration which elaborated China's basic policies. Part XIV stated that the categories of persons set out therein shall have the right of abode and, in accordance with the law of Hong Kong, be qualified to obtain permanent identity cards, which state their right of abode. The first three categories later set out in Article 24(2) of the Basic Law were defined in Part XIV as:

"all Chinese nationals who were born or who have ordinarily resided in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region for a continuous period of 7 years or more, and persons of Chinese nationality born outside Hong Kong of such Chinese nationals."

23. Part XIV also contained the statement that:

" Entry into the Hong Kong Special Administrative Region of persons from other parts of China shall continue to be regulated in accordance with the present practice."

Hong Kong legislation

24. Following the Joint Declaration, which used the phrase "the right of abode" for the first time in relation to Hong Kong, the Immigration Ordinance, Cap. 115, has since 1987 contained a definition in section 2A of the right of abode enjoyed by a Hong Kong permanent resident as:

"the right -

(a) to land in Hong Kong;

(b) not to have imposed upon him any condition of stay in Hong Kong, and any condition of stay that is imposed shall have no effect;

(c) not to have a deportation order made against him; and

(d) not to have a removal order made against him."

The categories of persons who are Hong Kong permanent residents are set out in Schedule 1. A Hong Kong permanent resident would be issued with a permanent identity card. This is defined as an identity card which contains a statement that the holder has the right of abode in Hong Kong. See Section 1A of the Registration of Persons Ordinance, Cap. 177.

Immigration (Amendment) (No 2) Ordinance

25. Schedule 1 to the Immigration Ordinance prior to 1 July 1997, in prescribing the categories of persons who were Hong Kong permanent residents, did not follow the categories defined in Article 24(2) of the Basic Law. By the Immigration (Amendment) (No 2) Ordinance enacted by the Provisional Legislative Council on 1 July 1997 ("the No 2 Ordinance"), the old schedule was replaced by a new Schedule 1. Paragraph 2 of the new Schedule 1 provides:

"2. Permanent resident of the Hong Kong Special Administrative Region

A person who is within one of the following categories is a permanent resident of the Hong Kong Special Administrative Region -

(a) A Chinese citizen born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region if his 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.

(b) A Chinese citizen who has ordinarily resided in Hong Kong for a continuous period of not less than 7 years before or after the establishment of the Hong Kong Special Administrative Region.

(c) A person of Chinese nationality born outside Hong Kong to a parent who is a permanent resident of the Hong Kong Special Administrative Region in category (a) or (b) if the parent had the right of abode in Hong Kong at the time of the birth of the person.

(d) ...

(e) ...

(f) ..."

26. In relation to the category of permanent residents by descent, in para 2(c), the 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. The constitutionality of this requirement is challenged in a separate appeal before the Court. 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)."

27. It will be observed that 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.

Immigration (Amendment) (No 3) Ordinance 1997

28. On 10 July 1997, the Provisional Legislative Council enacted the Immigration (Amendment) (No 3) Ordinance ("the No 3 Ordinance"). It was deemed to have come into operation on 1 July 1997. Section 1(2). A scheme to deal with the category of permanent residents by descent in paragraph 2(c) of Schedule 1 was introduced. Under this scheme, a person's status as a permanent resident under paragraph 2(c) can only be established by his holding of -

"(a) a valid travel document issued to him and of a valid certificate of entitlement also issued to him and affixed to such travel document;

(b) a valid HKSAR passport issued to him; or

(c) a valid permanent identity card issued to him."

See section 2AA(1). Any person holding a valid HKSAR passport or a valid permanent identity card would already have established his right of abode. As stated above, the latter is defined as an identity card which contains a statement that the holder has the right of abode in Hong Kong. And one of the requirements for obtaining a passport is the holding of a permanent identity card. See section 3(2) of the Hong Kong Special Administrative Region Passports Ordinance, Cap. 539. So, although three documents are prescribed, the relevant one for a person claiming permanent resident status by descent is (a). He can only establish his status by holding a valid travel document and a valid certificate of entitlement affixed thereto. We shall refer to them as "travel document" and "certificate of entitlement" and such references should be taken as references to valid documents. The No 3 Ordinance contains a statutory form of the certificate of entitlement. It states:

"The holder's Right of Abode in the Hong Kong Special Administrative Region has been established. This certificate is valid only if it has been affixed onto a valid travel document issued to the holder of this certificate."

This statement emphasizes the requirement that it cannot stand on its own. To be effective, it must be affixed to a travel document.

29. Section 2AA(2) provides:

" (2) A person's right of abode in Hong Kong by virtue of his being a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1 can only be exercised upon the establishment of his status as such a permanent resident in accordance with subsection (1) and, accordingly, where his status as such a permanent resident is not so established, he shall, for the purposes of this Ordinance, be regarded as not enjoying the right of abode in Hong Kong."

So, where the person does not hold a travel document to which is affixed a certificate of entitlement, he is regarded as not enjoying the right of abode.

30. An application may be made to the Director for a certificate of entitlement. The application shall be made in such manner as the Director may specify by notice in the Gazette. See section 2AB(1) and (2). Section 2AB(4) expressly provides that such a notice is not subsidiary legislation. The effect of this provision is that the notice would not be subject to amendment by the Legislative Council pursuant to section 34 of the Interpretation and General Clauses Ordinance, Cap. 1. Where the Director is satisfied upon proof specified by him that the applicant is a permanent resident under para 2(c) of Schedule 1, he shall issue a certificate. Section 2AB(6). Where not so satisfied, he shall refuse the application, notify the applicant of the reasons and inform him of the right of appeal to the Immigration Tribunal.

31. Section 2AD deals with appeals. The Tribunal shall determine "on the facts of the case as it finds them" whether the appellant is a permanent resident by descent in para 2(c) of Schedule 1. Its decision shall be final. No application for judicial review can be lodged unless and until the Tribunal has made a decision. Section 2AE.

32. An applicant cannot appeal at any time when he is in Hong Kong. Section 2AD(3). Where a removal order has been made against him, he cannot appeal to the Tribunal against it on the ground that he has the right of abode. To bolster the scheme that he can only establish his status by holding a travel document affixed with a certificate of entitlement, section 53D(3) introduced by the No 3 Ordinance provides that the Tribunal shall not allow an appeal against a removal order on the ground that the appellant enjoys the right of abode by virtue of the status in para 2(c) of Schedule 1 unless his status has been established in the manner prescribed by section 2AA(1).

33. The No 3 Ordinance created new criminal offences including offences relating to the making of an application for a certificate of entitlement for reward, the making of false statements for the purpose of obtaining a certificate, forgery of a certificate and the use and possession of a forged or altered certificate. But the new offences were exempted from the retrospective provision and took effect only prospectively.

The Notice

34. The Notice dated 11 July 1997 and published on 16 July 1997 in the Gazette ("the Notice") notified that the Director has made the provisions set out therein. In relation to persons residing in the Mainland of China at the time of application, the Notice specified that his application for a certificate of entitlement must be made "through the Exit-Entry Administration of the Public Security Bureau in the district where he is residing". Para A(i). Further, the Notice stated that his application for an exit permit to Hong Kong and Macau made to the Exit-Entry Administration of the Public Security Bureau under the laws in force in the Mainland of China for settlement in Hong Kong may be regarded as an application for a certificate of entitlement. See para B. For the purposes of applying for a certificate of entitlement, a person who was ordinarily resident in the Mainland immediately before landing in Hong Kong shall be regarded as residing in the Mainland during his stay in Hong Kong (i) where he stays in Hong Kong without the authority of the Director after landing without permission, or (ii) similarly, where he has been given permission to land and is subject to conditions of stay after such landing. Para C. The Notice (para D) sets out requirements as to what statements and information an application has to contain. For persons residing outside China, the application has to be made through the Chinese embassy or consulate in that place or by post to the Director, and the postal route is provided for those residing in Taiwan or Macau. Para A(ii) and (iii).

35. The Notice referred to Mainland laws relating to applications for exit permits. Under Mainland laws, there are control measures governing Chinese citizens travelling to and from Hong Kong. The laws currently in force are Article 17 of the Law on the control of the exit and entry of citizens promulgated on 22 November 1985 and the Interim Procedures for the Administration of Chinese citizens on passage to and from the Hong Kong Region and the Macau Region for personal affairs promulgated on 25 December 1986. Exit approval is required. The Exit and Entry Administration of the Public Security Bureau is the organ responsible for issuing permits. What are known as one way permits are issued for those coming for settlement and a quota system is operated. Article 5 of the Interim Procedures provided:

" Mainland citizens departing on personal grounds for settling in Hong Kong/Macau shall be subject to examination and approval under the quota system in order to safeguard and maintain the economic prosperity and social stability of Hong Kong and Macau."

What are known as two way permits are issued for those travelling to Hong Kong for purposes other than settlement.

36. According to the affidavit evidence filed on behalf of the Director, the quota system for one way permits has been operated by the Mainland authorities for many years and the numbers have changed from time to time. The present quota is 150 per day. The position was put in such evidence as follows:

" .... The obtaining of .... the one way permit has remained the legal way for residents of the Mainland to exit the Mainland to settle here. The decision to grant one way permits is made by the relevant offices or departments of the BEEA [Exit and Entry Administration Bureau of the Public Security Ministry] at provincial, municipal or county levels. The Immigration Department takes no part in the queuing, the allocation and granting of one way permits, all of which are (and have always been) matters for which the BEEA is unilaterally responsible. In so far as the daily one way permit quota is concerned, although the authorities in the Mainland consult the Hong Kong authorities, the final decision rests with the authorities in the Mainland. In other words, it is not simply a question of the person being entitled to land or settle in Hong Kong under Hong Kong law. But rather, a Mainland resident wishing to land or settle in Hong Kong must satisfy the applicable Mainland laws regarding exit from the PRC as well."

The description of the organ involved in the affidavit evidence is slightly different from that in the Notice. We shall use that in the Notice and shall refer to it as "the Mainland Exit-Entry Administration". Such evidence referred to about 66,000 persons under the age of 20 who claim to be within the third category in Article 24(2) who had applied for one way permits as at mid 1997.

37. We note that Mainland laws require exit approval for Chinese citizens leaving the country. What is relevant here are the Mainland laws referred to above dealing with Chinese citizens travelling from the Mainland to Hong Kong, another part of China.

Operation of the scheme under the No 3 Ordinance

38. We shall now describe the operation of the scheme in relation to a Mainland resident claiming the status of permanent resident by descent under para 2(c) of the new Schedule 1 of the Immigration Ordinance.

(1) He has to apply to the Director for a certificate of entitlement through the Mainland Exit-Entry Administration in the district where he is residing in the Mainland. His application to the Mainland Exit-Entry Administration for a one way permit may be regarded as an application for a certificate of entitlement.

(2) After confirming the person's identity, nationality and the validity of his parents' marriage, the Mainland Exit-Entry Administration will send his application to the Director for processing. If the Director is satisfied, he will issue a certificate of entitlement. This will be sent to the Mainland Exit-Entry Administration.

(3) He is subject to the quota for one way permits determined and operated by the Mainland authorities. Upon the grant of the one way permit by the Mainland Exit-Entry Administration, his certificate of entitlement will be affixed by them to that permit. The one way permit is the valid travel document for him contemplated by the scheme introduced by the No 3 Ordinance.

(4) His status can only be established by his holding the one way permit affixed with the certificate of entitlement. Without this, he shall be regarded as not enjoying the right of abode. This is so notwithstanding that the Director is satisfied of his status as a permanent resident by descent and has issued the certificate of entitlement (which would be sent to the Mainland Exit-Entry Administration). Under the scheme, that certificate alone is insufficient to establish his status. It can only be established by holding a one way permit affixed with the certificate.

(5) He cannot come to Hong Kong to make his application. It must be made to the Mainland Exit-Entry Administration in the district in the Mainland where he is residing. If he is physically in Hong Kong, he is treated as residing in the Mainland during his stay in Hong Kong for the purposes of the scheme's operation. He cannot resist a removal order made under the Immigration Ordinance by producing evidence to establish his status. He can only establish that status by holding a one way permit affixed with a certificate of entitlement.

The applicants

39. The facts relating to the applicants can be shortly stated.

Miss Ng Ka Ling and Miss Ng Tan Tan (FACV No 14 of 1998)

40. They are sisters. They are 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. He had come in 1976. The applicants entered Hong Kong on 1 July 1997, otherwise than through an immigration control point. On 4 July 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. The Director failed to recognize their right. He arrested them and then released them on recognizances.

Mr Tsui Kuen Nang (FACV No 15 of 1998)

41. He is 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. He had come in 1962. The applicant entered Hong Kong on 1 July 1997, otherwise than through an immigration control point. On 3 July 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.

Miss Cheung Lai Wah (FACV No 16 of 1998)

42. She is 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. He had 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 15 July 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 recognise her right and arrested her. She was held in custody and was released on recognizance four days later on 19 July 1997.

The applicants' position

43. The two Ng sisters and Mr Tsui arrived in Hong Kong on 1 July 1997. Miss Cheung had arrived prior to that date. Apart from Mr Tsui, they are infants although their age is not material. We understand there are about 1,000 to 1,500 persons claiming to be permanent residents within the third category in Article 24(2) who had arrived prior to 10 July 1997.

44. As far as the Ng sisters and Mr Tsui are concerned, the Director accepts that they are permanent residents within the third category in Article 24(2). They are "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.

45. In the case of Miss Cheung, the Director contends that she is not a permanent resident within Article 24(2) on the ground 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).

46. The respective fathers had in fact resided in Hong Kong for a considerable length of time. Mr Tsui's father had come as early as 1962. Miss Cheung's father had come in 1967 and the father of the Ng sisters had come in 1976. Whilst the second category in Article 24(2) requires at least seven years' ordinary residence in Hong Kong, it should be observed that we are concerned with applicants whose fathers have resided here for much longer and have been a part of our community for a long time.

47. The applicants maintain that as they are permanent residents within Article 24(2), they 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.

The Director's position

48. The Director's position is that the applicants are subject to the scheme introduced by the 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.

49. This is notwithstanding that 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. Further, this is notwithstanding that the applicants had arrived before 10 July 1997 when no scheme existed. The Director maintains that the scheme still catches them because the No 3 Ordinance enacted on 10 July 1997 was deemed to have come into operation on 1 July 1997.

The judicial review challenge

50. The applicants instituted judicial review proceedings. They seek various declarations and orders quashing the Director's decisions. These are test cases.

The judge

51. The judge (Keith J) ruled in Miss Cheung's favour on the out of wedlock question. Apart from that ruling, he held against the applicants and dismissed their judicial review applications. [1997] HKLRD 1081. [1997] 3 HKC 64.

Court of Appeal

52. The applicants appealed to the Court of Appeal. In Miss Cheung's case, the Director appealed on the out of wedlock question with Miss Cheung cross appealing on her judicial review challenge.

53. The Court of Appeal (Chan CJHC, Nazareth and Mortimer VPP) upheld the judge. They heard the appeal and gave judgment in two parts. (1) They dealt with the issues arising on the No 2 and No 3 Ordinance [1998] 1 HKC 617. (2) They dealt with the issue on the legality of the Provisional Legislative Council [1998] 1 HKLRD 772, [1998] 2 HKC 382. On (1), they upheld the judge's conclusion on the No 2 Ordinance in Miss Cheung's favour and his conclusion in the Director's favour on the validity of the No 3 Ordinance. As to its retrospective provision, they (by majority) held it to be valid but not applicable to pre 1 July 1997 arrivals. On (2), they held they were bound by their earlier decision in HKSAR v Ma Wai Kwan David [1997] HKLRD 761, [1997] 2 HKC 315 (July 1997) that the Provisional Legislative Council was legally authorised.

54. Since the Court of Appeal's judgment, Mr Tsui was granted a one way permit and he left and re-entered Hong Kong on the strength of that permit. But nothing turns on this. For the purposes of this appeal, his position should be taken as at the time of his judicial review application when he did not hold a one way permit.

55. The Court of Appeal granted leave to appeal to this Court. In the case of Miss Cheung, it is the Director's appeal against the ruling on the out of wedlock question with Miss Cheung cross appealing. In the other cases, it is the applicants' appeal.

56. We were considerably assisted by the care with which the judgment of Keith J and those in the Court of Appeal, particularly that of Chan CJHC, were formulated.

The issues

57. The issues arising on this appeal are:

(1) Whether the Court of Final Appeal has 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 1 July 1997, is constitutional ("the retrospectivity issue").

(4) Whether para 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.

Representation

58. The applicants' representation in this Court and the courts below was funded from public funds by legal aid. As in the courts below, their case was presented by Mr Denis Chang SC and in relation to the Provisional Legislative Council issue by Mr Philip Dykes SC. The case of the Director of Immigration was presented by Mr Geoffrey Ma SC. We are indebted to them and their teams for their considerable assistance.

Constitutional jurisdiction of the courts

59. Before turning to the issues, it is important for us first, to state the position as to the constitutional jurisdiction of the courts in the Hong Kong Special Administrative Region and, secondly, to lay down the proper approach to the interpretation of the Basic Law.

60. The Region is vested with independent judicial power, including that of final adjudication. Article 19(1). The courts of the Region at all levels shall be the judiciary of the Region exercising the judicial power of the Region. Article 80.

61. In exercising their judicial power conferred by the Basic Law, the courts of the Region have a duty to enforce and interpret that Law. They undoubtedly have the jurisdiction to examine whether legislation enacted by the legislature of the Region or acts of the executive authorities of the Region are consistent with the Basic Law and, if found to be inconsistent, to hold them to be invalid. The exercise of this jurisdiction is a matter of obligation, not of discretion so that if inconsistency is established, the courts are bound to hold that a law or executive act is invalid at least to the extent of the inconsistency. Although this has not been questioned, it is right that we should take this opportunity of stating it unequivocally. In exercising this jurisdiction, the courts perform their constitutional role under the Basic Law of acting as a constitutional check on the executive and legislative branches of government to ensure that they act in accordance with the Basic Law.

62. What has been controversial is the jurisdiction of the courts of the Region to examine whether any legislative acts of the National People's Congress or its Standing Committee (which we shall refer to simply as "acts") are consistent with the Basic Law and to declare them to be invalid if found to be inconsistent. In our view, the courts of the Region do have this jurisdiction and indeed the duty to declare invalidity if inconsistency is found. It is right that we should take this opportunity of stating so unequivocally.

63. Under the Chinese Constitution (Articles 57 and 58), the National People's Congress is the highest organ of state power and its permanent body is the Standing Committee and they exercise the legislative powers of the state. So their acts are acts of the Sovereign. The jurisdiction of the Region's courts to examine their acts to ensure consistency with the Basic Law is derived from the Sovereign in that the National People's Congress had enacted pursuant to Article 31 of the Chinese Constitution the Basic Law for the Region. The Basic Law is a national law and is the constitution of the Region.

64. Like other constitutions, it distributes and delimits powers, as well as providing for fundamental rights and freedoms. As with other constitutions, laws which are inconsistent with the Basic Law are of no effect and are invalid. Under it, the courts of the Region have independent judicial power within the high degree of autonomy conferred on the Region. It is for the courts of the Region to determine questions of inconsistency and invalidity when they arise. It is therefore for the courts of the Region to determine whether an act of the National People's Congress or its Standing Committee is inconsistent with the Basic Law, subject of course to the provisions of the Basic Law itself.

65. This proposition gains added strength from the circumstance that the Basic Law was enacted to implement China's basic policies regarding Hong Kong to remain unchanged for 50 years as declared and elaborated in the Joint Declaration. Article 159(4) of the Basic Law provides that no amendment thereto shall contravene the established basic policies. The jurisdiction to enforce and interpret the Basic Law necessarily entails the jurisdiction stated above over acts of the National People's Congress and its Standing Committee to ensure their consistency with the Basic Law.

66. In HKSAR v Ma Wai Kwan David, which concerned the survival of the common law in the new order and the legality of the Provisional Legislative Council, the Court of Appeal (Chan CJHC, Nazareth and Mortimer VPP) held, accepting the Government's submission, that the Region's courts have no jurisdiction to query the validity of any acts of the National People's Congress since they are acts of the Sovereign. It was held that the jurisdiction of the Region's courts is a limited one to examine the existence (as opposed to the validity) of the acts of the Sovereign or its delegate. In our view, this conclusion of the Court of Appeal as to the jurisdiction of the Region's courts is wrong. The correct position is as stated above.

67. The basis of the Court of Appeal's conclusion was Article 19(2) of the Basic Law. That provides:

" The courts of the Hong Kong Special Administrative Region shall have jurisdiction over all cases in the Region, except that the restrictions on their jurisdiction imposed by the legal system and principles previously in force in Hong Kong shall be maintained."

The Government submitted in that case that prior to 1 July 1997 Hong Kong courts could not have questioned the constitutionality of legislation of the United Kingdom Parliament vis-à-vis that country's unwritten constitution or the Hong Kong Letters Patent, which was Hong Kong's constitutional document as a British colony. So, this was a restriction on the jurisdiction of the Hong Kong courts "imposed by the legal system and principles previously in force" envisaged by Article 19(2). After 1 July 1997, it applied equivalently to acts of the National People's Congress, so the Government argued. That submission was accepted by the Court of Appeal.

68. The analogy drawn with the old order was misconceived. Prior to 1 July 1997, Hong Kong was a British colony. According to the common law, the United Kingdom Parliament had the supreme authority to legislate for Hong Kong and the courts in Hong Kong could not have questioned that authority.

69. For the reasons already explained, the position in the new order is fundamentally different. Article 19(2) of the Basic Law provides for the limitation on the constitutional jurisdiction of the courts "imposed by the legal system and principles previously in force in Hong Kong". This cannot bring to the new order restrictions only relevant to legislation of the United Kingdom Parliament imposed under the old order.

70. We should point out that Mr Ma SC for the Director at the hearing before us did not maintain the submission made by the Government in HKSAR v Ma Wai Kwan David. He in effect accepts that the Region's courts have the jurisdiction we have stated to examine acts of the National People's Congress and its Standing Committee for inconsistency with the Basic Law and that the decision in that case, in so far as inconsistent with this position, was wrong.

71. We should also point out that in his judgment on the Provisional Legislative Council issue in this case, the Chief Judge stated that his views on the jurisdiction of the courts of the Region in HKSAR v Ma Wai Kwan David were expressed in the context of that case and cannot be understood to mean that National People's Congress' laws and acts would prevail over the Basic Law; the analogy he drew with the colonial courts in that case might not have been entirely appropriate; and that it might be that in appropriate cases, the courts of the Region do have jurisdiction to examine National People's Congress' laws and acts which affect the Region.

72. Any limitation on the courts' jurisdiction must be found in the Basic Law itself. As noted above, Article 19(2) refers to the maintenance of restrictions on their jurisdiction imposed by the legal system and principles previously in force. An example of this is in Article 19(3) which provides, inter alia:

" The courts of the Hong Kong Special Administrative Region shall have no jurisdiction over acts of state such as defence and foreign affairs. ....."

Article 158 also contains a restriction on the Court of Final Appeal's jurisdiction to interpret in the circumstances referred to therein provisions of the Basic Law "concerning affairs which are the responsibility of the Central People's Government, or concerning the relationship between the Central Authorities and the Region" and it obliges the Court to seek an interpretation of the relevant provisions from the Standing Committee of the National People's Congress. We shall deal with Article 158 when we come to the reference issue.

Approach to interpretation of the Basic Law

73. We must begin by recognizing and appreciating the character of the document. The Basic Law is an entrenched constitutional instrument to implement the unique principle of "one country, two systems". As is usual for constitutional instruments, it uses ample and general language. It is a living instrument intended to meet changing needs and circumstances.

74. It is generally accepted that in the interpretation of a constitution such as the Basic Law a purposive approach is to be applied. The adoption of a purposive approach is necessary because a constitution states general principles and expresses purposes without condescending to particularity and definition of terms. Gaps and ambiguities are bound to arise and, in resolving them, the courts are bound to give effect to the principles and purposes declared in, and to be ascertained from, the constitution and relevant extrinsic materials. So, in ascertaining the true meaning of the instrument, the courts must consider the purpose of the instrument and its relevant provisions as well as the language of its text in the light of the context, context being of particular importance in the interpretation of a constitutional instrument.

75. As to purpose, the purpose of the Basic Law is to establish the Hong Kong Special Administrative Region being an inalienable part of the People's Republic of China under the principle of "one country, two systems" with a high degree of autonomy in accordance with China's basic policies regarding Hong Kong as set out and elaborated in the Joint Declaration. The purpose of a particular provision may be ascertainable from its nature or other provisions of the Basic Law or relevant extrinsic materials including the Joint Declaration.

76. As to the language of its text, the courts must avoid a literal, technical, narrow or rigid approach. They must consider the context. The context of a particular provision is to be found in the Basic Law itself as well as relevant extrinsic materials including the Joint Declaration. Assistance can also be gained from any traditions and usages that may have given meaning to the language used.

77. Chapter III of the Basic Law begins by defining the class constituting Hong Kong residents including permanent and non-permanent residents and then provides for the rights and duties of the residents, including the right of abode in the case of permanent residents. What is set out in Chapter III, after the definition of the class, are the constitutional guarantees for the freedoms that lie at the heart of Hong Kong's separate system. The courts should give a generous interpretation to the provisions in Chapter III that contain these constitutional guarantees in order to give to Hong Kong residents the full measure of fundamental rights and freedoms so constitutionally guaranteed.

78. However, when interpreting the provisions that define the class of Hong Kong residents, including in particular the class of permanent residents (as opposed to the constitutional guarantees of their rights and freedoms), the courts should simply consider the language in the light of any ascertainable purpose and the context. The context would include other provisions of the Basic Law. Of particular relevance would be the provisions of the International Covenant on Civil and Political Rights ("the ICCPR") as applied to Hong Kong which remain in force by virtue of Article 39 and any relevant principles which can be distilled from the ICCPR.

79. What we have set out above cannot be and is not intended to be an exhaustive statement of the principles the courts should adopt in approaching the interpretation of the Basic Law. Constitutional interpretation, like other forms of interpretation, is essentially question specific. As and when questions of interpretation arise, the courts will address the challenges posed by the questions raised and develop principles as necessary to meet them.

80. We now turn to the issues.

The reference issue

81. Article 158 has been quoted in full earlier in this judgment. Article 158(1) provides that the power of interpretation of the Basic Law shall be vested in the Standing Committee of the National People's Congress. Article 158(2) provides that the Standing Committee "shall authorize" the courts of the Region "to interpret on their own, in adjudicating cases, the provisions of this Law which are within the limits of the autonomy of the Region". It is clear, as is accepted by both counsel, that this contains the constitutional authorization. The words "on their own", in our view, emphasize the high degree of autonomy of the Region and the independence of its courts.

82. But the jurisdiction of the courts of the Region is not limited to interpreting such provisions. For Article 158(3) provides that the courts of the Region "may also interpret other provisions" of the Basic Law in adjudicating cases.

83. But there is a limitation on this jurisdiction as far as the Court of Final Appeal is concerned. If the courts of the Region:

"in adjudicating cases, need to interpret the provisions of this Law concerning affairs which are the responsibility of the Central People's Government, or concerning the relationship between the Central Authorities and the Region, and if such interpretation will affect the judgments on the cases, the courts of the Region shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from the Standing Committee of the National People's Congress through the Court of Final Appeal of the Region."

Since it is the Court of Final Appeal which can make final judgments which are not appealable, this provision limits the Court of Final Appeal's jurisdiction. Where the conditions there prescribed are satisfied, the Court of Final Appeal has a duty to seek an interpretation of the relevant provisions from the Standing Committee.

84. Article 158(3) goes on to provide that when the Standing Committee makes an interpretation of the provisions concerned, "the courts of the Region, in applying those provisions, shall follow the interpretation of the Standing Committee. However, judgments previously rendered shall not be affected".

85. Article 158(4) obliges the Standing Committee to consult its Committee for the Basic Law before giving its decision on interpretation. This Committee was established by a decision of the National People's Congress on 4 April 1990. Under that decision, the Committee is a working committee under the Standing Committee. It consists of twelve members, six respectively from the Mainland and Hong Kong, including persons from the legal profession appointed by the Standing Committee. The Hong Kong members shall be nominated jointly by the Chief Executive, President of the Legislative Council and the Chief Justice of the Region.

86. Under Article 158, the power of the Hong Kong courts to interpret provisions of the Basic Law is "in adjudicating cases". It follows that the courts have no such power when not engaged in adjudicating cases. This reflects the well established principle in our system that the courts' role is adjudicative and not advisory. The power of interpretation of the Region's courts is as follows. Article 158 refers to:

(a) The provisions which are within the Region's autonomy; and

(b) Other provisions of the Basic Law. Within such other provisions are the two excluded categories: provisions which (i) concern affairs which are the responsibility of the Central People's Government; or (ii) concern the relationship between the Central Authorities and the Region. We shall refer to the provisions in (i) or (ii) as "the excluded provisions".

87. Under Article 158, the lower courts have the power to interpret (a) and (b) including the excluded provisions. The Court of Final Appeal has the power to interpret (a) and also the other provisions in (b) except the excluded provisions.

88. Thus, there is no limitation on the power of the lower courts to interpret all the provisions of the Basic Law. The only limitation is on the jurisdiction of the Court of Final Appeal. The language of Article 158(2) emphasizes the power of all courts of the Region to interpret "on their own" provisions which are within the limits of the Region's autonomy.

89. As far as the Court of Final Appeal is concerned, it has a duty to make a reference to the Standing Committee if two conditions are satisfied:

(1) First, the provisions of the Basic Law in question (a) concern affairs which are the responsibility of the Central People's Government; or (b) concern the relationship between the Central Authorities and the Region. That is, the excluded provisions. We shall refer to this as "the classification condition".

(2) Secondly, the Court of Final Appeal in adjudicating the case needs to interpret such provisions (that is the excluded provisions) and such interpretation will affect the judgment on the case. We shall refer to this as "the necessity condition."

90. In our view, it is for the Court of Final Appeal and for it alone to decide, in adjudicating a case, whether both conditions are satisfied. It is for the Court, not the National People's Congress, to decide whether the classification condition is satisfied, that is, whether the provision is an excluded provision. This is accepted by both counsel for the applicants and counsel for the Director.

91. If the classification is not satisfied, that would be an end of the matter. Even if the Court needs to interpret the provisions concerned and the interpretation will affect the judgment on the case, the necessity condition could not be satisfied since the provision in question would not be an excluded provision.

92. If the classification condition is satisfied, it is again for the Court of Final Appeal alone to decide whether the necessity condition is met in the case concerned.

93. If the Court of Final Appeal is satisfied of both conditions, it would be obliged to seek an interpretation of the relevant excluded provisions from the Standing Committee. It is significant that what has to be referred to the Standing Committee is not the question of interpretation involved generally, but the interpretation of the specific excluded provisions.

94. As referred to above, the Director accepts that Miss Cheung but for the born out of wedlock point and the other applicants are permanent residents within the third category in Article 24(2). Article 24(3) provides that permanent residents have the right of abode. Under the scheme introduced by the No 3 Ordinance, the applicants do not enjoy the right of abode unless they hold the one way permit issued by the Mainland affixed with a certificate of entitlement issued by the Director. The Director seeks to uphold the constitutionality of the No 3 Ordinance on the basis that Article 24 is qualified by Article 22(4). This provides that for entry into the Region, people from other parts of China must apply for approval. It further provides that the number of persons who enter the Region for the purpose of settlement shall be determined by the competent authorities of the Central People's Government after consulting the government of the Region. The Director argues that since the applicants are people from other parts of China within Article 22(4), the Mainland authorities must approve their entry into the Region and this provides the constitutional basis for the scheme requiring their exit approval in the form of the one way permit before the right of abode can be enjoyed.

95. Mr Ma SC for the Director points out that Article 22(4) is within Chapter II headed "Relationship between the Central Authorities and the Hong Kong Special Administrative Region". He submits that Article 22(4) is an excluded provision because it falls within both the excluded categories in Article 158. He submits that approval for exit concerns the responsibility of the Central People's Government and the movement of persons from the Mainland to the Region concerns the relationship between the Central Authorities and the Region. And on the Director's argument, the Court in adjudicating this case has to interpret Article 22(4). So in his submission, the classification and necessity conditions are both satisfied.

96. Mr Ma SC makes clear that the Director is not seeking a reference to the Standing Committee under Article 158, but that he must draw to our attention these submissions to enable the Court to consider whether a reference should be made. In our view, it is proper for Mr Ma SC for the Director to put these submissions to us since they relate to the Court's constitutional jurisdiction.

97. Although Mr Ma SC relies on both the excluded categories, for present purposes, we shall assume that Article 22(4) is an excluded provision on the sole basis that it concerns the relationship between the Central Authorities and the Region.

98. The crucial question before us is what test the Court should apply in considering whether the classification condition is satisfied.

99. Mr Ma SC submits that where (a) the Court is engaged in interpreting provision X (Article 24 in this case) which, being a provision within the limits of the Region's autonomy, is not an excluded provision but (b), it is arguable that provision Y (Article 22(4) in this case), which on its own is an excluded provision, is relevant to the interpretation of provision X, then the Court is obliged to make a reference under Article 158.

100. We are at the stage of considering whether the Court is obliged to make a reference under Article 158. At this stage, the Court is concerned with what is arguable and not with deciding the question of interpretation. That is a matter for the Standing Committee if a reference has to be made and a matter for the Court if a reference does not have to be made. Of course, an argument which is plainly and obviously bad would not be arguable. If the Court decides at this stage, that the point is unarguable, that would be an end of the matter as far as a question of reference is concerned. If the Court decides that it is arguable, the Court would then consider whether the classification and necessity conditions are satisfied. In the present case, it is arguable that an excluded provision (Article 22(4)) is relevant to the interpretation of a non-excluded provision (Article 24).

101. In deciding what test is to be applied in considering whether the classification condition is satisfied, a purposive interpretation has to be adopted. An important purpose of Article 158 is the Standing Committee's authorization to the Hong Kong courts including the Court of Final Appeal to interpret "on their own" the provisions of the Basic Law which fall outside the excluded provisions, particularly provisions which are within the Region's autonomy. This is an essential part of the high degree of autonomy granted to the Region.

102. In the light of that approach, we turn to the test. Provision X (Article 24 here), which is a provision within the Region's autonomy, must be interpreted in its context. The context naturally includes other provisions in the Basic Law which may be relevant to the construction of provision X in a number of ways. For example, they may qualify provision X and qualification may be by way of addition, subtraction or modification. Or they may lend colour to its meaning or provide a pointer to its construction. On Mr Ma SC's argument, once an excluded provision (Article 22(4) here) is so relevant, the matter would have to be referred to the Standing Committee. The subject of the reference would not be the interpretation of provision X because it is not an excluded provision; the suggestion seems to be that the subject of the reference would be the interpretation of the excluded provision so far as relevant to the interpretation of provision X. Such a reference would withdraw from the jurisdiction of the Court the interpretation of a provision (provision X) of the Basic Law which is within the limits of the autonomy of the Region. In our view, this would be a substantial derogation from the Region's autonomy and cannot be right.

103. In our view, the test in considering whether the classification condition is satisfied is that put by Mr Chang SC for the applicants. As a matter of substance, what predominantly is the provision that has to be interpreted in the adjudication of the case ? If the answer is an excluded provision, the Court is obliged to refer. If the answer is a provision which is not an excluded provision, then no reference has to be made, although an excluded provision is arguably relevant to the construction of the non-excluded provision even to the extent of qualifying it.

104. The test gives effect to both of the two main objects of Article 158, that of vesting interpretation of the Basic Law, particularly the excluded provisions, in the Standing Committee and that of authorizing the courts of the Region to interpret the non-excluded provisions, in particular to interpret "on their own" the provisions within the limits of the Region's autonomy.

105. It is, in our view, of considerable significance that Article 158 requires a reference to the Standing Committee of the interpretation of the relevant excluded provisions only. The Article does not require a reference of the question of interpretation involved generally when a number of provisions (including an excluded provision) may be relevant to provide the solution of that question.

106. Applying that test, in adjudicating this case, as a matter of substance, the predominant provision which we are interpreting is Article 24, which provides for the right of abode of a permanent resident, and the content of that right. That Article is the very source of the right which is sought to be enforced by the applicants in these appeals. That being so, the Court, in our view, does not have to make a reference, although Article 22(4) is arguably relevant to the interpretation of Article 24.

The constitutionality of the No 3 Ordinance issue

107. On this issue the key question is whether Article 22(4) qualifies the right of abode in Article 24(3). The judge held that it did. He said that this may be an example of the derogation from the Region's high degree of autonomy but it is one sanctioned by Article 22(4). In the Court of Appeal, Nazareth and Mortimer VPP agreed with this approach. Chan CJHC also held that there was a linkage between the two provisions but considered that its effect is that Article 22(4) imposed a restriction on the exercise of the right of abode when the person was still in Mainland China. If, contrary to the view taken by the judges below, on the proper interpretation of the Basic Law, there is no linkage between the two provisions, and Article 24 is not affected by Article 22(4), then there would be no constitutional basis for the No 3 Ordinance to the extent that it requires the permanent resident to hold the one way permit before he can enjoy the right of abode. This is accepted by Mr Ma SC for the Director. The requirement of the certificate of entitlement as verification of his claim is another matter.

108. It is important to emphasize once again that it is accepted by the Director that the applicants are within the third category of permanent residents in Article 24(2), subject to the born out of wedlock issue in the case of Miss Cheung. The Court is not here dealing with the definition of the class of permanent residents. What we are dealing with is the right of abode in Article 24(3) of persons who are undoubtedly permanent residents.

109. Article 24(3) provides that permanent residents "shall have the right of abode" in the Region. The Immigration Ordinance (section 2A) defines that right enjoyed by a permanent resident as the right to land, not to have any condition of stay imposed and not to have any deportation or removal order made against him. The right of abode as statutorily defined is similar to the concept of the right of abode in the common law which has been described as "the right ... to enter [the jurisdiction concerned] without let or hindrance when he pleased and to remain ... as long as he [wished]". See Director of Public Prosecutions v Bhagwan [1972] AC 60 at 74B. Thus, the right to enter or, as defined in the statute, the right to land, is an essential element of the right of abode.

110. We have concluded that having defined the class of permanent residents, a generous approach should be adopted to the interpretation of the constitutional provisions guaranteeing their rights. The right of abode is aptly described by Mr Chang SC for the applicants as a core right. Indeed without it and the right to enter which is an essential element, the rights and freedoms guaranteed can hardly be enjoyed, including in particular the right to vote and to stand for election. Applying the generous approach, the Court should, in our view, scrutinize with the greatest care any submission that Article 22(4) encroaches on that core right.

111. Article 24(3) confers the right of abode in unqualified terms on permanent residents. If the argument that Article 22(4) qualifies the right of abode in Article 24(3) is correct, the right of abode of persons who are undoubtedly permanent residents but who are residing on the Mainland is a most precarious one. The Region's constitution, whilst conferring the constitutional right of abode in the Region on the one hand, would have with the other hand subjected that right to the discretionary control of the Mainland authorities, that discretionary control being beyond the authority of the Region. The control by one way permits would relate to the determination of both the quota as well as allocation within the quota. Further, on this argument, there would be a difference in the constitutional right of abode between on the one hand those in the third category of permanent residents in Article 24(2) who are resident in the Mainland whose right would be qualified by Article 22(4) and those in the same category who are resident outside the Mainland whose right would not be so qualified on the other hand.

112. We cannot accept this argument. A generous approach has to be applied to interpreting the right of abode provision. Considering the language of Article 24 and Article 22(4), in our view, "people from other parts of China", including among them persons entering for settlement referred to in Article 22(4), do not include permanent residents of the Region upon whom the Basic Law confers the right of abode in the Region. Persons with permanent resident status under the Basic Law are not, as a matter of ordinary language, people from other parts of China. They are permanent residents of this part of China. Nor is it correct to describe them as persons entering for the purpose of settlement. Their status is that of permanent residents of the Region. They do not enter the Region for the purpose of settlement. They are permanent residents with the right to enter the Region and to remain as long as they wish.

113. In our view, full effect can be given to Article 22(4), according to its true interpretation, without any encroachment on the right of abode in Article 24. Article 22(4) does not apply to permanent residents of the Region. What it does apply to is the overwhelming part of the population on the Mainland who have no right of abode in the Region. They cannot enter the Region without approval notwithstanding they live in the country of which the Region forms part. It has been assumed, correctly in our view, that approval refers to approval of the Mainland authorities. Further, it provides that the numbers of persons entering the Region for settlement shall be determined by the competent authorities of the Central People's Government after consulting the Region's government.

114. Our conclusion is consistent with the purpose of the Basic Law of establishing the Region under the principle of "one country, two systems" with a high degree of autonomy. It is the responsibility of the Mainland authorities to grant approval to enter the Region to people in the country who are not permanent residents of the Region and to determine the numbers entering for settlement. The Region exercising a high degree of autonomy with its different system is obliged to admit people who under its constitution are its permanent residents with the constitutional right of abode. In our view, there is no derogation from the Region's autonomy sanctioned by Article 22(4).

115. To support his submission that Article 24 is qualified by Article 22(4), Mr Ma SC for the Director places some reliance on the Joint Declaration, Annex I, Part XIV, which elaborated China's basic policies. It set out the categories of permanent residents which we now find in Article 24(2) of the Basic Law. The same Part XIV later on stated that entry into the Region from other parts of China "will continue to be regulated in accordance with the present practice". The practice at the time of the Joint Declaration in 1984-85 relied on by Mr Ma SC was the practice of requiring exit permission for Mainland residents coming to Hong Kong. But there is no indication that the statement in Part XIV providing for the continuation of that practice was intended to apply to permanent residents and thereby qualify their right of abode clearly set out earlier in that Part. Accordingly, we do not consider that the Joint Declaration is of any assistance in this connection.

116. Apart from his fundamental submission based on Article 22(4), Mr Ma SC also puts the argument, although it is fair to say he put little weight on it, that having regard to the requirements of Mainland laws for exit permission to come to Hong Kong, Article 24(3) should be interpreted as subject to an implied restriction based on reasonableness that the Mainland laws regarding exit approval for coming to Hong Kong have to be complied with. This argument, if right, that a Mainland law provides a constitutional basis for restricting a constitutional right under the Basic Law, has far reaching implications.

117. In our view, it is wholly untenable and was rightly rejected by the judge and the Court of Appeal. Article 18(2) provides that national laws shall not be applied in the Region, except for those listed in Annex III to the Basic Law which shall be applied locally by promulgation or legislation by the Region. Article 18(3) provides that the Standing Committee may add to (or delete from) the laws in Annex III after consulting its Basic Law Committee and the Region's government. But Article 18(3) proceeds to limit the Standing Committee's power by providing that laws listed in Annex III "shall be confined to those relating to defence and foreign affairs as well as other matters outside the limits of the autonomy of the Region as specified by this Law". This Article restricting the application of Mainland laws is essential to the implementation of the "one country, two systems" principle. If Mr Ma SC's argument is right, it would provide a backdoor for the application of Mainland laws. In our view, there is no basis for this argument.

118. The Mainland laws requiring exit approval for Mainland residents coming to Hong Kong of course are and remain fully enforceable on the Mainland. But they cannot provide a constitutional basis for limiting rights conferred by the Basic Law.

119. It follows that the No 3 Ordinance is unconstitutional to the extent that it requires permanent residents of the Region residing on the Mainland to hold the one way permit before they can enjoy the constitutional right of abode.

120. However, it does not follow that the entire scheme introduced by the No 3 Ordinance is unconstitutional. One must distinguish between a permanent resident who enjoys the right of abode on the one hand and a person claiming to be a permanent resident on the other hand. It is reasonable for the legislature to introduce a scheme which provides for verification of a person's claim to be a permanent resident. In our view, the scheme, apart from the requirement of the one way permit, is constitutional as it cannot be said to go beyond verification. Therefore, the scheme is constitutional in requiring a claimant to apply for and obtain a certificate of entitlement from the Director and providing that his status as permanent resident can only be established by his holding such a certificate. Further, the provisions of the scheme whereby he must stay in the Mainland whilst applying for such a certificate and whilst appealing against any refusal of the Director to issue a certificate are also constitutional. He has a right to land as part of his right of abode as a permanent resident. But his claim to that status must first be verified.

121. In holding the scheme (apart from the one way permit requirement) to be constitutional as it is directed towards verification, we have taken into account that the Director must operate it lawfully in a fair and reasonable manner and that there are safeguards to which its operation is subject.

122. First, as a matter of statutory construction, the courts would import the requirement of reasonableness into a number of provisions for operating such verification scheme. For example, the Director may specify the manner in which an application for a certificate of entitlement shall be made by notice in the Gazette. Section 2AB(2)(a). But that power is to be construed as what he may reasonably specify. Secondly, if there is unlawful delay by the Director in coming to a decision whether to accept or reject an application, the person concerned, although in the Mainland, can invoke public law remedies in our courts. Thirdly, if the Director decides to refuse the application for a certificate, there is a statutory right of appeal to the Immigration Tribunal. This appeal safeguard is a full one. The Director is under a statutory duty to give reasons for his refusal. There is a period of 90 days within which to appeal. The Tribunal, whose decision the statute provides to be final, is under a duty to determine "on the facts of the case as it finds them" whether the person concerned is a permanent resident by descent and to allow the appeal where it determines that he is.

Severance

123. We consider that the unconstitutional parts of the No 3 Ordinance can be appropriately severed from the rest which is constitutional. The test is whether the constitutional parts are distinct from the unconstitutional parts so that what is unconstitutional may be severed from what is constitutional leaving what is constitutional intact. In our view, that question must be answered in the affirmative. The following parts are unconstitutional and should be excised. We shall refer to the objectionable parts by the section numbers in the Immigration Ordinance save where otherwise stated.

(1) Section 2A(1)

124. The words added, namely "subject to section 2AA(2)" are excised. After excision, section 2A(1) reads:

"(1) A Hong Kong permanent resident enjoys the right of abode in Hong Kong, that is to say he has the right -

(a) to land in Hong Kong;

(b) ....

(c) ....

(d) ...."

(2) Section 2AA(1)(a)

125. After excision, this provision reads as follows:

"(1) A person's status as a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1 can only be established by his holding of -

(a) a valid certificate of entitlement issued to him."

126. Apart from what is set out above, the other words in (a) are excised.

(3) Section 53D(3)(a)

127. Section 53D(3) was added by section 7 of the No 3 Ordinance. After excision, section 53D(3)(a) reads:

"(a) a valid certificate of entitlement issued to him."

128. Apart from what is set out above, the other words in (a) are excised.

(4) Schedule 1 to the Immigration Regulations

129. Section 10 of the No 3 Ordinance added Form No. 12 set out therein to Schedule 1. This is the form of the certificate of entitlement. The second sentence in the form is excised, namely:

" This certificate is valid only if it has been affixed onto a valid travel document issued to the holder of this certificate."

After excision, only the first sentence remains, namely:

" The holder's Right of Abode in the Hong Kong Special Administrative Region has been established".

130. We shall refer to the No 3 Ordinance and the scheme introduced by it as cut down by the excised parts as "the No 3 Ordinance as severed" and "the scheme as severed".

131. As far as the Director's Notice is concerned, although it is not subsidiary legislation, we can excise the parts which are objectionable following our conclusion on the issue of the constitutionality of the No 3 Ordinance. As we understand the position, the justification for involving the Mainland Exit-Entry Administration is the requirement under the scheme in the No 3 Ordinance for the one way permit which we have held to be unconstitutional. We do not know whether the Director wishes to involve them and whether they are willing to be involved as agent of the Immigration Department on the Mainland to facilitate applications for certificates of entitlement under the scheme as severed. We therefore strike out paras A(i) and B of the Notice. This leaves a gap in the Notice as to whom an application for a certificate of entitlement should be made by a Mainland resident. The Director would have to specify a new arrangement for them by notice. It is unobjectionable if it has to be made to an entity on the Mainland provided that it functions as an agent of Hong Kong's Immigration Department to facilitate applications for certificates of entitlement. Whether the Mainland Exit-Entry Administration is an appropriate entity for this purpose is for the Director and that Administration to consider.

The retrospectivity issue

132. The No 3 Ordinance enacted on 10 July 1997 was deemed to have come into operation on 1 July 1997 by virtue of section 1(2). The issue is whether this retrospective provision is constitutional. If not, section 1(2) would have to be excised from the Ordinance.

133. The judge and Mortimer VP held that it is valid and affects (i) pre 1 July 1997 arrivals as well as (ii) arrivals on and after 1 July and before 10 July 1997. Nazareth VP held that it is valid but does not affect (i). Chan CJHC held that it is invalid and therefore does not affect (i) or (ii). But their consideration of this issue proceeded on the basis of their conclusion that Article 24 was qualified by Article 22(4). We address this issue, however, on a different basis, having reached a different conclusion from them on the question of interpretation of the Basic Law. What we have to consider is whether the retrospective provision in the No 3 Ordinance as severed is unconstitutional.

134. Before 10 July 1997 when the No 3 Ordinance was enacted,, the permanent residents by descent who had arrived in Hong Kong had the constitutional right of abode. Indeed they had exercised it. They could not have been removed to the Mainland. The No 3 Ordinance as severed introduced a scheme whereby their status as permanent residents can only be established by their holding a certificate of entitlement and, without it, they are regarded as not enjoying the right of abode. They of course could not have held the certificate of entitlement before 10 July 1997. If the retrospective provision were constitutional, they would be regarded as not enjoying the right of abode. This would take away the constitutional right of abode they were already enjoying under the Basic Law. In our view, the retrospective provision is unconstitutional. Mr Ma SC for the Director accepts this on the basis that, contrary to his submission, the No 3 Ordinance is in parts unconstitutional.

135. We turn to consider a further ground relied on by Mr Chang SC for the applicants in support of his submission that the retrospective provision is unconstitutional.

136. Prior to 10 July 1997, permanent residents (such as the applicants who are accepted by the Director to be such within the third category in Article 24(2)) enjoyed the constitutional right of abode and were therefore entitled to land and remain. But if the retrospective provision in the No 3 Ordinance were constitutional, its operation would have involved them retrospectively in the commission of criminal offences. Under the scheme as severed, they must hold a certificate of entitlement. Without it, their status was treated as not established and they must be regarded as not enjoying the right of abode. So they had no right to land or remain and their doing so would constitute criminal offences under section 38 of the Immigration Ordinance. This provision prohibits landing or remaining without permission and contraventions are criminal offences.

137. Mr Chang SC argues that the retrospective provision which would render them guilty of such criminal offences is unconstitutional as contrary to Article 15(1) of the ICCPR.

138. The ICCPR as applied to Hong Kong remains in force by virtue of Article 39. Article 15(1) of the ICCPR provides:

" No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. ...."

Article 15(1) of the ICCPR is identical to Article 12(1) of the Hong Kong Bill of Rights Ordinance, Cap. 383. As Article 15(1) of the ICCPR applies to Hong Kong, it is appropriate that we refer to it.

139. Chan CJHC held that the retrospective provision contravenes Article 15(1) of the ICCPR and is unconstitutional. However, the judge and Nazareth and Mortimer VPP construed Article 15(1) of the ICCPR as prohibiting the prosecution and conviction of persons of criminal offences retrospectively but not as rendering the retrospective statutory provision invalid.

140. Article 15(1) of the ICCPR uses the words: "No one shall be guilty of any criminal offence". In interpreting it, it is important to bear in mind, as submitted by Mr Chang SC, that the ICCPR is an international covenant which speaks to states with different legal systems including ones which do not necessarily rely on legislation as a source of criminal law. Bearing that in mind, in our view, Article 15(1) of the ICCPR applicable by virtue of Article 39 does render the retrospective provision unconstitutional. In the context of our legal system, the prohibition against persons being held guilty of retrospective criminal offences does strike at the retrospective provision itself. This view is supported by Van Dijk and Van Hoof: Theory and Practice of the European Convention on Human Rights (3rd Ed) p 485-6 in relation to the equivalent provision in that Convention.

141. If the position were as held by the courts below, there may be unjust civil consequences for the persons concerned. They could then be said to have committed criminal offences and, although they could not be prosecuted or convicted, there may be adverse consequences in relation to, for example, the law of defamation and their being fit and proper persons in various contexts. On our conclusion, they would not be at risk of any such possible consequences.

142. Accordingly we excise from the No 3 Ordinance the retrospective provision, namely, section 1(2).

The birth out of wedlock issue

143. Para 1(2)(b) of Schedule 1, introduced into the Immigration Ordinance by the No 2 Ordinance, provides that where a child is born out of wedlock, the relationship of father and child is only taken to exist between them if the child is subsequently legitimated by his parents' marriage. The issue is whether this provision is constitutionally valid. It should be contrasted with the mother and child relationship provided for in para 1(2)(a), where there is no discrimination against a child born out of wedlock who is treated equally with one born in wedlock.

144. The test applicant is Miss Cheung. She was born out of wedlock. Her parents never married. Unfortunately, her mother died the day after her birth. If para 1(2)(b) were constitutional, the relationship of parent and child would be taken not to exist between her and her father. Consequently, she cannot qualify as a permanent resident by descent within para 2(c) of Schedule 1 as she would not be a person born of a parent who is a permanent resident. The Director accepts that she qualifies in all other respects.

145. The question is whether on the proper interpretation of the third category in Article 24(2), a child born out of wedlock is within it. If it is, para 1(2)(b) of Schedule 1 in excluding such a child would be unconstitutional.

146. We are here concerned with the interpretation of a provision defining the class of permanent residents. In approaching its interpretation, its context should be considered. The context includes other provisions of the Basic Law including Article 39 which provides that the ICCPR as applied to Hong Kong shall remain in force. Two principles appear from the context which are relevant. First, both the Basic Law and the ICCPR enshrine the principle of equality, the antithesis of any discrimination. See Article 25 of the Basic Law and Articles 3 and 26 of the ICCPR. In this connection, it should be observed that following a clear trend in recent years, Hong Kong domestic legislation usually treats illegitimate children on an equal footing with legitimate children. Secondly, Article 23(1) of the ICCPR recognises that the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

147. It is important to bear these principles in mind when interpreting the provision in question. It should be pointed out that if the Director's argument were right, there would be unequal treatment as between legitimate and illegitimate children and also as between the mother in relation to her illegitimate children and the father in relation to his illegitimate children. Further, whilst the categories of permanent residents in Article 24(2) do not achieve complete family union as spouses are excluded, on the Director's argument, the illegitimate children of fathers would not have permanent resident status by descent from their fathers and this would not be conducive towards achieving some measure of family union.

148. Bearing those principles in mind, it is in our view plain, considering the language of the third category in Article 24(2), that it covers persons born in as well as out of wedlock. The category is defined as "persons .... born .... of .... [permanent] residents" listed in the first and second categories. A person is born of such a resident whether he was born in or out of wedlock. A child born out of wedlock is no more or less a person born of such a resident than a child born in wedlock. That in our view is the plain meaning of this provision. It follows that para 1(2)(b) of Schedule 1 is unconstitutional in excluding, in relation to the father, a child born out of wedlock (save one subsequently legitimated by the marriage of his parents).

149. Mr Ma SC draws our attention to the fact that the ICCPR as applied to Hong Kong is subject to the reservations made by the United Kingdom upon signature and ratification of the ICCPR in May 1976. In relation to Hong Kong, the reservations included the right to continue to apply immigration legislation governing entry into, stay in and departure from Hong Kong and the acceptance of the ICCPR is subject to such legislation as regards persons not having the right to enter and remain in Hong Kong. But this, in our view, does not preclude the Court in interpreting the constitutional provision relating to the categories of permanent residents from considering the principles in the ICCPR which are part of the context.

150. Mr Ma SC for the Director relies on an agreement reached in the Sino-British Joint Liaison Group ("JLG") between the Chinese and United Kingdom Governments. We do not have the record of any such agreement. The evidence of it relied on by the Director is in a booklet on the right of abode in the Region published by the Immigration Department in April 1997. It contained a passage to the same effect as what is now legislated in para 1(2)(b) of Schedule 1 excluding a child born out of wedlock as far as a father is concerned save where legitimated by subsequent marriage of his parents. The booklet stated that it is compiled "on the basis of the existing immigration regulations and practices and the common view of the British and Chinese sides in the [JLG]".

151. Mr Ma SC relies on Article 31 of the Vienna Convention on the Law of Treaties. Article 31(1) of this Convention provides that "a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose". Article 31(3)(a) provides:

"There shall be taken into account, together with the context:

(a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions."

The Joint Declaration Annex I Part XIV stated that the persons now found in the third category in Article 24(2) shall have the right of abode. Mr Ma SC argues that the agreement reached in the JLG is a subsequent agreement and by virtue of Article 31 of the Vienna Convention, the interpretation of this part of the Joint Declaration should follow the subsequent agreement in the JLG and the Basic Law should be similarly interpreted.

152. The JLG was established by the Joint Declaration Annex 2 "in order to meet the requirements for liaison, consultation and the exchange of information". Its functions include that of conducting consultations on the implementation of the Joint Declaration (para 3(a) of Annex II). It shall be an organ for liaison and not an organ of power (para 6 of Annex II). Assuming that its functions include the making of a subsequent agreement between the two Governments regarding the interpretation of the Joint Declaration or the application of its provisions in terms of Article 31(3)(a) of the Vienna Convention, the agreement, in our view, does not affect the matter.

153. First, the basis on which the agreement was reached is uncertain. It may have been reached on the basis of a pragmatic solution to the matter and not as a matter of interpretation or application. It is doubtful whether the basis was interpretation or application as the booklet does not discriminate as far as the mother is concerned between a child born out of wedlock and one born in wedlock (Para 1(2)(a) also does not so discriminate). If the matter were interpretation or application, it is difficult to conceive of a proper basis for the distinction between the relationship with the father in contrast to that with the mother.

154. Secondly, even if the agreement reached were on the basis of interpretation or application, Article 31(3)(a) only provides that it shall be taken into account. Having done so, the Court can reach a different view. We consider that the conclusion we have come to is plainly correct.

155. Accordingly, we hold that para 1(2)(b) of Schedule 1 is unconstitutional. The judge and the Court of Appeal were correct in so holding. Applying the severance test, para 1(2)(b) should read:

"(2) The relationship of parent and child is taken to exist as follows -

(b) of a father and child, between a man and a child born to him in wedlock or ... out of wedlock. ..."

Apart from this, the other words in the provision are excised.

The Provisional Legislative Council issue

156. Mr Dykes SC who argued this issue for the applicants submits that the Provisional Legislative Council ("PLC") was not the legislature provided for in the Basic Law and was not a legally constituted body. Any legislation passed by it would only be valid if it satisfied the common law doctrine of necessity. He submits that the retrospective provision in the No 3 Ordinance does not and accordingly is invalid. Mr Ma SC for the Director submits that the PLC is a legally constituted body. He accepts that the PLC is not the Region's legislature provided for in the Basic Law. But the situation was that there would be no continuation of the pre 1 July 1997 legislature after that date, that is, there would be no "through train", to use the common expression. Mr Ma SC submits that the PLC set up in that situation was pursuant to the decision of the National People's Congress on 4 April 1990 and is consistent with that Decision and the Basic Law.

157. The relevant decisions are well known.

158. The Basic Law adopted on 4 April 1990 provides that the Region's Legislative Council shall be constituted by election. Article 68(1). Article 68(2) provides that the method for its formation shall be specified in the light of the Region's situation and in accordance with the principle of gradual and orderly progress. The ultimate aim is the election of all members by universal suffrage. Article 68(2). Article 68(3) provides that the specific method for its formation and its procedures for voting on bills and motions are prescribed in Annex II: "Method for the Formation of the Legislative Council of the Hong Kong Special Administrative Region and Its Voting Procedures". Article 69 provides that its term of office shall be four years except the first term which shall be two years. Annex II to the Basic Law provides for the method of its formation in the second and third term. As for the first term, it provides that it shall be formed in accordance with the "Decision of the National People's Congress on the Method for the Formation of the First Government and the First Legislative Council" of the Region.

159. That decision was adopted by the National People's Congress on 4 April 1990 ("the 1990 Decision") at the same time as the Basic Law. Paragraph 1 states that the Region's first Government and first Legislative Council "shall be formed in accordance with the principles of state sovereignty and smooth transition."

160. Para 2 provides:

" Within the year 1996, the National People's Congress shall establish a Preparatory Committee for the Hong Kong Special Administrative Region, which shall be responsible for preparing the establishment of the Region and shall prescribe the specific method for forming the first Government and the first Legislative Council in accordance with this Decision. ...."

161. Para 6 provides that the first Legislative Council shall be composed of 60 members, with 20 returned by geographical constituencies through direct elections, 10 members returned by an election committee, and 30 members returned by functional constituencies. It proceeds to provide that if the composition of the pre 1 July 1997 Legislative Council is in conformity with the relevant provisions of this Decision and the Basic Law, those of its members who uphold the Basic Law, pledge allegiance to the Hong Kong Special Administrative Region of the People's Republic of China, and who meet the requirements in the Basic Law, may upon confirmation by the Preparatory Committee, become members of the first Legislative Council. Para 6 concludes by providing that the term of office of the first Legislative Council shall be two years.

162. It is evident from the Basic Law and the 1990 Decision referred to therein that the expectation was that there would be a through train for the Legislative Council.

163. Changes were made to the electoral laws in Hong Kong for the 1995 election. The Chinese Government did not accept them and maintained that they were inconsistent with the Basic Law. The political dispute between the Chinese and the United Kingdom Governments over this matter is well known. In the result, there was no through train.

164. On 31 August 1994, the Standing Committee decided that there would be no through train for the Legislative Council and that the Preparatory Committee should be responsible for matters relating to the preparation of the establishment of the Region, prescribe the specific method for the formation of the First Legislative Council and organize it in accordance with the 1990 Decision.

165. On 24 March 1996, the Preparatory Committee decided to form the Provisional Legislative Council. It was to be elected by the Selection Committee for the First Government of the Region. It was to operate until the First Legislative Council of the Region was formed which should not be later than 30 June 1998. Its duties were specified including the enactment of laws "which are essential for the normal operation of" the Region and dealing with other matters apart from those specified that have to be dealt with by the Provisional Legislative Council before the formation of the First Legislative Council of the Region. On 5 October 1996, the Preparatory Committee adopted the method specified therein for the formation of the PLC. On 1 February 1997, the Preparatory Committee decided that the PLC should start functioning before 30 June 1997 and should confirm bills which have been passed upon the establishment of the Region.

166. Article 160 of Basic Law provides that upon the establishment of the Region, the laws previously in force in Hong Kong shall be adopted as laws of the Region except for those which the Standing Committee declares to be in contravention of the Basic Law. On 23 February 1997, the Standing Committee decided not to adopt a number of laws including the electoral laws for the 1995 Legislative Council.

167. On 14 March 1997, the National People's Congress resolved to approve the Working Report of the Preparatory Committee which referred to the formation of the PLC by the Preparatory Committee pursuant to the 1990 Decision.

168. On 23 May 1997, the Preparatory Committee adopted the specific method for the formation of the First Legislative Council of the Region. Its election was to be completed before 30 June 1998 and the Region should enact laws with respect to its election in accordance with the method. Subsequently, these laws were enacted by the PLC. Elections were held in May 1998 and the First Legislative Council took office in July 1998.

169. The Basic Law provided that the First Legislative Council should be formed in accordance with the 1990 Decision. That Decision conferred on the Preparatory Committee the authority to prepare for the establishment of the Region and to prescribe the specific method for forming the first Government and the first Legislative Council in accordance with that Decision. In our view, the formation of the PLC by the Preparatory Committee was within the 1990 Decision and, that being so, was consistent with the Basic Law. The ambit of the Preparatory Committee's authority in para 2 of the Decision was sufficiently wide for this purpose.

170. At the time of the 1990 Decision, the expectation was that there would be a through train. The term of the first Legislative Council was therefore two years. But the second part of para 6 of the 1990 Decision provided for a through train only if certain conditions were met. In the absence of a through train, the Preparatory Committee established the PLC with limited functions and for a limited time as an interim measure in order to fill the legislative vacuum before the first Legislative Council in accordance with the Basic Law and the first part of para 6 of the Decision could be formed. The PLC was not established as the first Legislative Council in accordance with the Basic Law, and the first part of para 6 of the Decision, as is accepted by Mr Ma SC for the Director. It was a body established for the very purpose of enabling the first Legislative Council to be formed. The formation of the PLC was therefore consistent with the Basic Law. The electoral laws enacted by the PLC, which were in conformity with the Preparatory Committee's decision in May 1997 on the formation of the first Legislative Council, enabled it to be formed by July 1998 in accordance with that decision.

171. Having regard to our conclusion that the PLC was a legally constituted body within the 1990 Decision and consistent with the Basic Law, we need not deal with Mr Dykes SC's argument based on the doctrine of necessity.

Relief

All three appeals (FACV Nos 14, 15 and 16 of 1998)

172. In each of the three appeals, we grant the following declarations and relief.

A(1) A declaration that the following parts of the Immigration Ordinance and Regulations are null and void and are excised therefrom:

(a) The words "subject to section 2AA(2)" in section 2A(1).

(b) The words in section 2AA(1)(a) other than the following words:

"(1) A person's status as a permanent resident of the Hong Kong Special Administrative Region under paragraph 2(c) of Schedule 1 can only be established by his holding of -

(a) a valid certificate of entitlement issued to him."

(c) The words in section 53D(3)(a) other than the following words:

"(a) a valid certificate of entitlement issued to him."

(d) The second sentence in Form No 12 of the certificate of entitlement in Schedule 1 to the Immigration Regulations, namely:

" This certificate is valid only if it has been affixed onto a valid travel document issued to the holder of this certificate."

(2) A declaration that paragraphs A(1) and B of the Notice dated 11 July 1997 and published in the Gazette on 16 July 1997 (G.No (E.) 21 of 1997) are null and void and are excised therefrom.

(3) A declaration that section 1(2) of the No 3 Ordinance is null and void and is excised therefrom.

(4) An order that there be no order as to costs and that the applicants' costs be taxed in accordance with the Legal Aid Ordinance and Regulations (including the costs of the applicant in the Director's appeal in FACV No 16 of 1998).

Miss Ng Ka Ling and Miss Ng Tan Tan (FACV No 14 of 1998)

173. We grant the following relief in this appeal.

B(1) An order that the applicants' appeal be allowed.

(2) An order that the following decisions of the Director of Immigration be quashed:

(a) The decision made on or about 4 July 1997 that the applicants be detained.

(b) The decision made on or about 4 July 1997 that the applicants be placed on recognizance.

(c) The decision made on or about 7 August 1997 refusing the applicants permission to land.

(3) A declaration that the applicants have as from 1 July 1997 been and are permanent residents of the Hong Kong Special Administrative Region within the third category in Article 24(2) of the Basic Law and as such entitled to enjoy the right of abode.

Mr Tsui Kuen Nang (FACV No 15 of 1998)

174. As we were informed by Mr Chang SC that there is no need for an order to quash the Director's decisions as he has now accepted that Mr Tsui is entitled to enjoy the right of abode, we grant the following relief in this appeal.

C(1) An order that the applicant's appeal be allowed.

(2) A declaration that the applicant has as from 1 July 1997 been and is a permanent resident of the Hong Kong Special Administrative Region within the third category in Article 24(2) of the Basic Law and as such entitled to enjoy the right of abode.

Miss Cheung Lai Wah (FACV No 16 of 1998)

D(1) A declaration that the words in para 1(2)(b) in Schedule 1 to the Immigration Ordinance other than the following words are null and void and are excised therefrom:

"(2) The relationship of parent and child is taken to exist as follows -

(b) of a father and child, between a man and a child born to him in wedlock or ... out of wedlock. ..."

(2) An order that the following decisions of the Director of Immigration be quashed:

(a) The decision made on or about 15 July 1997 that the applicant does not enjoy the right of abode in Hong Kong under Article 24(3) of the Basic Law.

(b) The decision made on or about 15 July 1997 to detain the applicant in custody.

(c) The decision made on or about 19 July 1997 requiring the applicant to enter into a recognizance.

(d) The decision made on or about 9 August 1997 that the applicant has to establish her status as a permanent resident under paragraph 2(c) of Schedule 1 to the Immigration Ordinance in the manner prescribed by Part 1B of the Ordinance before she can exercise her right of abode in Hong Kong.

(3) A declaration that the applicant has as from 1 July 1997 been and is a permanent resident of the Hong Kong Special Administrative Region within the third category in Article 24(2) of the Basic Law and as such entitled to enjoy the right of abode.

Representation: