SCMP Saturday, July 21, 2001
Boy wins landmark abode battle
MAGDALEN CHOW and SHIRLEY LAU
A three-year-old boy born in Hong Kong to mainland parents yesterday won a landmark battle against the Government when the Court of Final Appeal granted him the right of abode.
Chong Fung-yuen, born while his parents were in the SAR on two-way permits, was entitled to stay under Article 24(2)(1) of the Basic Law, five top court judges ruled unanimously.
However, in another key ruling delivered yesterday, the court denied the right of abode to mainland children adopted by Hong Kong couples.
The Chong Fung-yuen decision meant 2,202 children born in the SAR to mainland mothers after 1997 were entitled to the right of abode, the Government said last night.
Deputy Secretary for Security Timothy Tong Hin-ming said the administration was disappointed with the decision but would respect it. However, he declined to give a categorical undertaking that the Government would not seek a reinterpretation by Beijing relating to the decision.
Mr Tong said the Government would work with mainland security officials to guard against an influx of pregnant women after the ruling.
Fung-yuen's grandfather, Chong Yiu-shing, said last night his family was "overjoyed" at the news.
One of the adopted girls, Agnes Tam Nga-yin, 14, disappeared after the judgment, leaving a note at home telling her mother she did not want her to see her cry. However, she returned home to the family flat in North Point late last night to a tearful reunion.
"I don't know how to face the judgment. I still have to study," she said. "Now I can't stay here, but where can I go?"
In their ruling, Chief Justice Andrew Li Kwok-nang, Mr Justice Kemal Bokhary, Mr Justice Patrick Chan Siu-oi, Mr Justice Robert Ribeiro and non-permanent judge Sir Anthony Mason said the court should apply the common-law approach when interpreting the Basic Law.
"When the language of Article 24(2)(1) is considered in the light of its context and purpose, its clear meaning is that Chinese citizens born in Hong Kong before or after July 1, 1997, have the status of permanent residents," the Chief Justice said. "The meaning of the provision is not ambiguous, that is, it is not reasonably capable of sustaining competing alternative interpretations."
The Chief Justice brushed aside the Government's argument that granting right of abode to Chinese nationals would result in an influx of immigrants.
In the ruling on adopted children, Mr Justice Bokhary found against the Government, but the other four judges found that the phrase "born of" referred to a biological parent-child relationship.
Lawyers for the Director of Immigration had previously argued the court was duty-bound to seek, when necessary, reinterpretation of Article 24 from the Standing Committee of the National People's Congress. But the top court ruled the focus should be placed on the character of the article, rather than the facts of individual cases.
The court said the issues in the Fung-yuen and adopted children's cases did not require Beijing's reinterpretation as the relevant provisions neither concerned the central Government's affairs nor affected the relationship between the SAR and the mainland.
In a third judgment concerning non-Chinese nationals, the court ruled Pakistan-born Fateh Muhammad, 69, did not qualify for permanent residency under Article 24(2)(4) of the Basic Law because a four-year prison term he served had broken a seven-year period of residency.
Chief Justice Li, Mr Justice Bokhary, Mr Justice Chan, Sir Anthony and non-permanent judge Gerald Nazareth ruled expatriates could obtain abode status only if they had lived in the SAR for seven years immediately before making their application.