Chief Justice Ma
This is the judgment of the Court to which each member has contributed.
In this appeal, it falls to the Court to consider the constitutionality of legislation which prevents persons who are not of Chinese nationality and who enter Hong Kong for employment as foreign domestic helpers from acquiring Hong Kong permanent resident status.
A. The central provisions and the decisions below
Article 24(2)(4) of the Basic Law provides for the acquisition of permanent resident status by persons not of Chinese nationality as follows:
Section 2(4)(a) of the Immigration Ordinance (“the Ordinance”), stipulates that certain categories of persons are not to be treated as “ordinarily resident” in Hong Kong. They are therefore not eligible to acquire Hong Kong permanent resident status and ineligible for the right of abode:
Thus, section 2(4)(a)(vi) disqualifies a person from outside who enters Hong Kong for employment as a foreign domestic helper (“FDH”) from building up, while so employed, the continuous seven year period of ordinary residence necessary for acquiring permanent resident status under Article 24(2)(4). This is the case however long such person’s actual period of residence in Hong Kong while so employed may be. It is the constitutionality of section 2(4)(a)(vi) that the appellants seek to challenge. The appellants contend that the restriction it imposes is inconsistent with Article 24(2)(4) and unconstitutional.
The appellants’ argument on unconstitutionality succeeded before Mr Justice Lam (as Lam JA then was), although Mr Domingo’s case was remitted to the Registration of Persons Tribunal for an issue concerning an alleged estoppel to be dealt with. However, the Court of Appeal upheld the constitutional validity of section 2(4)(a)(vi) and reversed Lam J’s judgment.
B. The FDH scheme
Since the mid-1970s, with greater affluence and increasing numbers of households where both spouses go out to work, there has been a growing demand by Hong Kong families for domestic helpers. The local supply of such labour was scarce, so FDHs have been recruited from many countries including the Philippines, Indonesia, Nepal, India, Pakistan, Thailand and Sri Lanka to meet the demand. The number of such FDHs in Hong Kong grew from 881 in 1974, to 28,951 in 1986, to 70,335 in 1990, and stood at 285,681 on 31 December 2010. It is therefore plain that FDHs represent a highly valuable and indeed essential workforce. Many FDHs have had multiple renewals of their contracts with the same employer and have forged close personal ties with the families in which they work.
The terms on which FDHs are admitted to work and reside in Hong Kong are and have always been highly restrictive and subject to control by the Director of Immigration. The process of hiring a FDH begins with an application by the prospective employer to the Director for a visa for the prospective FDH. Before granting a visa, the Director satisfies himself of the applicant’s financial capacity and ability to provide suitable accommodation. He also satisfies himself that neither employer nor FDH has previously proved unsuitable by breaking relevant laws, and so forth.
The employer and the FDH are required to enter into a standard-form contract which cannot be varied without the prior consent of the Director except in respect of certain matters of detail and except insofar as wages higher than the prescribed minimum may be agreed. The visa issued to the FDH specifies that he or she is admitted for employment as a domestic helper with the named employer under the specified contract.
A central feature of the arrangement is that permission to remain in Hong Kong is tied to the duration of each contract. On completion of the standard two-year term, the FDH is required to return to his or her own country of origin. If the contract is terminated prematurely, the FDH is not allowed to change employers, save in exceptional circumstances. A FDH without a current contract is required to leave Hong Kong within his or her approved limit of stay or two weeks after termination of the contract, whichever is the earlier.
A FDH wishing to continue in employment must sign a fresh contract and apply for a visa to return to Hong Kong on the strength of that contract. However, he or she is first required to return to the country of origin for a prescribed period of vacation before coming back to Hong Kong.
A second important feature of the arrangement is that the FDH is subject to highly restrictive employment conditions. The FDH can only engage in domestic work and has to work and reside in the employer’s residence designated in the contract. He or she cannot work elsewhere or for another employer. The employer must provide the FDH with accommodation and food during the term of the employment and pay for repatriation upon termination of the contract. In the case of death, the FDH’s remains and personal property have to be returned to the place of origin at the employer’s expense.
It is made clear in various documents, including the Explanatory Notes attached to the standard-form contract, that FDHs are not admitted to Hong Kong for settlement but permitted to enter and remain for specific employment and for a limited period. FDHs are not allowed to bring their dependents to Hong Kong for residence here.
The evidence is that these restrictive arrangements reflect the Government’s policy of allowing FDHs to enter and reside in Hong Kong for the particular purpose of meeting the shortage of domestic helpers in the labour market. That is the basis of their permission to enter and why they are prohibited from taking any other employment while here. They are not admitted for settlement in Hong Kong and are expected to maintain genuine links in their home country which is why, at the end of their contract, they must return home before taking up any fresh contract and why they not allowed to bring their dependents to Hong Kong for residence.
In contrast to the restrictive arrangements mentioned above, certain other persons not of Chinese nationality may be granted general employment visas on entering Hong Kong. The differences in the conditions of stay applicable to the two categories of employment were highlighted in the evidence as follows:
Standard-form two-year employment contract
Applicant to submit proof to show that he/she and the employer have entered into a contract of employment, not necessarily for two years.
Limit of stay
Permitted to remain in Hong Kong for two years or two weeks after termination of contract, whichever is earlier
In the first instance for one year, with a pattern
of extension of stay normally for two years plus two years plus three
Must return to place of origin for home leave
before commencing new contract
Change of employment
Not allowed to change employer when the contract is terminated prematurely, save in exceptional circumstances
May apply to change employment after the premature termination of employment contract and the application will be considered
Requirement to leave after termination
Must leave Hong Kong upon expiry of their limit of stay or within two weeks after termination of their contracts, whichever is earlier (i.e. the two-week rule)
Two-week rule not applicable (save in the case of those who are employed as cooks, to whom different considerations apply)
Bringing in dependants
Not allowed, save in exceptional circumstances
May apply to bring in spouse and unmarried dependent children under the age of 18
A person permitted to enter on a general employment visa (and who falls outside the other restrictive categories listed in section 2(4)(a)) may be treated as ordinarily resident and may therefore be eligible for eventual qualification for permanent resident status under Article 24(2)(4).
C. The parties
Ms Vallejos is a Philippine national and was born in the Philippines in 1952. She married another Philippine national in 1974 and they have five children, the youngest having been born in 1984. Her husband and four of her children remain in the Philippines while her eldest son lives in Ireland. She first came to Hong Kong to work as a domestic helper in August 1986 and has worked for the same employer since 2 February 1987 under a series of contracts. She returned to the Philippines when each contract expired and, on each occasion, her permission to return to Hong Kong as a FDH was renewed.
Mr Domingo is also a Philippine national born in the Philippines. He came to Hong Kong in 1985 to work as a domestic helper. Between 1987 and 2007, he worked for the same employer. In 1988, he married another domestic helper, Mrs Domingo, with whom he has had three children, all born in Hong Kong. On 14 November 2007, Mr Domingo was granted permission to remain in Hong Kong without any restriction on his employment, such date stated to be the starting date for calculating the length of his ordinary residence. He was, in other words, taken out of the category of FDH for section 2(4)(a)(vi) purposes and treated as ordinarily resident, eligible for eventual permanent resident status. Mr Domingo, however, claims that his entitlement to such status had already accrued and that he does not need to build up the qualifying period as from 14 November 2007, contending that section 2(4)(a)(vi) is inconsistent with Article 24(2)(4) and unconstitutional. The pending issue on estoppel relates to the effect of his accepting the aforesaid change of status stated to be effective only as from the 2007 date.
The Commissioner of Registration and the Registration of Persons Tribunal are named as the respective respondents in each case since the Commissioner refused each of the appellants verification of eligibility for a permanent identity card and since their appeals to the Tribunal were rejected.
D. The parties’ respective cases
The parties differ as to the meaning of “ordinarily resided” in Article 24(2)(4) and as to the method of arriving at such meaning. The appellants’ argument is simple. Mr Michael Fordham QC, appearing on their behalf, submits that the words “ordinarily resided in Hong Kong” found in Article 24(2)(4) have a well-established “natural and ordinary meaning” which is decisive. The words “ordinarily resided” in Article 24(2)(4) carry that meaning and apply to FDHs residing in Hong Kong so that they must be treated as ordinarily resident within the meaning of that Article. It follows that section 2(4)(a)(vi) is unconstitutional since it purports to exclude FDHs as a class from ever being treated as “ordinarily resident”.
Basing himself on Lord Scarman’s formulation in R v Barnet London Borough Council ex parte Shah, (to which we shall return), Mr Fordham submits that a person is “ordinarily resident” in Hong Kong according to the “natural and ordinary meaning” of those words if, quite simply, he or she is in Hong Kong, “living lawfully, voluntarily and for a settled purpose, as part of the regular order of life for the time being”. FDHs, so the argument runs, come within this well-established interpretation just as much as do other persons who come to live in Hong Kong for business, education or employment purposes and who have, unlike FDHs, been treated as ordinarily resident here. The purported exclusion of FDHs by section 2(4)(a)(vi) is thus inconsistent with Article 24(2)(4) and unconstitutional.
Lord Pannick QC, appearing for the Commissioner, advances two principal arguments in response. The first concerns the meaning of “ordinarily resided” in Article 24(2)(4). While he accepts Lord Scarman's formulation as a starting-point in construing those words, Lord Pannick does not accept that it is their sole meaning. In factually exceptional cases, he argues, the circumstances of the claimant’s residence in Hong Kong may be so out of the ordinary as to fall outside the concept of “ordinary residence” as generally understood and outside the appellants’ “natural and ordinary meaning”. He contends that the highly restrictive conditions applicable to FDHs place them in such an exceptional category so that excluding them from “ordinary residence” is consonant with Article 24(2)(4).
Lord Pannick’s second argument is that the Court should recognize that the Basic Law accords a margin of discretion to the legislature to define excepted or excluded classes of persons around the edges of the concept of “ordinary residence”. This, he says, is what the legislature has done in section 2(4)(a), continuing the role that it has traditionally played in helping to define, by identifying excluded classes, the concept of “ordinary residence” for the purpose of determining who is entitled to be treated as a Hong Kong permanent resident. He submits that the Basic Law should be taken to have adopted this approach as part of its promotion of continuity in the legal system after 1st July 1997. He argues that so long as the legislature respects and preserves a core meaning covered by Lord Scarman’s formulation and confines itself to exclusions around the margins of the “ordinary residence” concept, the Court should regard such enactments as consistent with Article 24(2)(4).
If and insofar as the Court may be in doubt as to the meaning of the concept as used in Article 24(2)(4), Lord Pannick submits that the Court should refer to extrinsic materials, including materials which came into existence after April 1990 when the Basic Law was promulgated, in aid of its interpretation of the Article.
Finally, if and insofar as the Court considers it necessary to consider the effect of the Interpretation adopted by the Standing Committee of the National People’s Congress on 26 June 1999, Lord Pannick submits that the Court would be bound under Article 158(3) of the Basic Law to refer to the Standing Committee two proposed questions concerning the meaning and scope of an “interpretation” made under Article 158(1).
We shall deal in the first place with the meaning of “ordinarily resided” in Article 24(2)(4) with a view to determining the compatibility or otherwise of section 2(4)(a)(vi) with that Article.
E. The meaning of “ordinarily resided” in Article 24(2)(4)
E.1 The importance of purpose and context
In much of the case-law in which the concept of “ordinary residence” is discussed, Lord Scarman's formulation has been adopted on the basis that it lays down “the natural and ordinary meaning” of those words and of cognate expressions such as “ordinarily resident”, “ordinarily resided” and so forth. In many instances, that formulation is likely to supply an appropriate meaning to be attributed to the term. The danger is, however, that describing it as “the natural and ordinary meaning” may be thought to suggest that any other meaning is “unnatural” or “extraordinary” and therefore inappropriate. But it would be an obvious error to think that “ordinary residence” can only have a single meaning whatever the factual and legal context.
This was recognized by Lord Scarman himself in Ex parte Shah in the very sentence containing his formulation:
Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that ‘ordinarily resident’ refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.
And in Fateh Muhammad v Commissioner of Registration, Mr Justice Bokhary PJ, writing for the Court, stated:
No single judicial pronouncement or combination of such pronouncements in regard to the meaning of the expression ‘ordinarily resident’ can be conclusive for the purposes of every context in which that expression appears.
E.2 The meaning of “ordinary residence” in various statutes
It should be noted that except for two cases decided by this Court, all the authorities cited to us were cases involving the construction of “ordinary residence” or cognate expressions as they appear in various statutes and not in constitutional instruments. Moreover, many of those statutes did not concern permanent resident status or citizenship claims. Thus, the Court was presented with a survey of cases where statutory provisions concerning “ordinary residence” were relevant to tax liability, eligibility for education grants, eligibility to stand for a District Board election, the court’s bankruptcy jurisdiction and the court’s matrimonial jurisdiction. The citation of such authority must obviously be approached with caution since, as one might expect, the approach to the meaning of the term “ordinary residence” in each case is conditioned by the content and legislative purpose of the statute in question, applied in differing factual contexts.
Two obvious illustrations may be found in the concept’s application for the purposes of determining the court’s bankruptcy and matrimonial jurisdictions. In Re Ip Pui Man Nina, the respondent, a Hong Kong permanent resident who claimed to spend two-thirds of her time outside of Hong Kong, sought to challenge the court’s bankruptcy jurisdiction, relying on section 4(1) of the Bankruptcy Ordinance which excludes presentation of a petition unless (among other alternatives) the debtor “at any time in the period of 3 years ending with [the day the petition is presented] has been ordinarily resident, or has had a place of residence, in Hong Kong”. Such a requirement – of ordinary residence of unspecified duration at any time during the preceding three years – obviously has a far lower threshold than Article 24(2)(4)’s requirement of a continuous seven year period of ordinary residence and reflects a statutory purpose wholly different from the purposes underlying the questions facing this Court. Ms Ip’s challenge failed since the Court found that she had, during the earlier part of the three year period, been ordinarily resident in Hong Kong.
The court’s matrimonial jurisdiction is founded inter alia on habitual residence in Hong Kong throughout the period of three years immediately preceding the date of the petition or application. In this context, “habitual residence” is treated as interchangeable with “ordinarily resident”. As Baroness Hale explained in Mark v Mark, the statutory purpose is to require the parties and their marriage to have a sufficiently close connection with the country to make it desirable that its courts should have jurisdiction to dissolve the marriage and thus to dissuade mere forum shoppers. The court approaches the concept of “habitual residence” in this connection considering the welfare and financial needs of the spouses and their children, and so forth – self-evidently considerations different from those which arise when examining whether a person is ordinarily resident for the purposes of Article 24(2)(4).
Furthermore, even where the statute employs “ordinary residence” in a provision relevant to immigration control and permanent resident status, the precise context in which the issue as to the meaning of the concept arises may vary, so that any attempt to extrapolate from such decisions to the meaning of “ordinarily resided” in Article 24(2)(4) must be treated with caution.
This is illustrated by Cheung Cheong v Attorney General and Director of Immigration v Ng Shun Loi. In both of those cases, persons who had been residing lawfully in Hong Kong had their stay here interrupted when they were detained for long periods (five and ten years respectively) on the Mainland by the Mainland authorities. When they eventually returned to Hong Kong (after absences of about 16 and 23 years respectively) they sought to argue that they had acquired the status of “Chinese resident” under Hong Kong law and were therefore exempt from removal orders. Ex parte Shah was relied on, as it were at one remove, the argument being that since their stay on the Mainland was involuntary, they had not become ordinarily resident there and that their ordinary residence in Hong Kong ought therefore to be regarded as having continued throughout the periods of their absence. Their arguments were not accepted although a similar argument, relying on Ex parte Shah in this roundabout fashion, succeeded in Lau San Ching v Apollonia Liufor the purpose of establishing the applicant’s eligibility to stand for election in District Board Elections, such eligibility requiring ten years ordinary residence immediately preceding nomination.
It is self-evident that although these are cases where Ex parte Shah was relied on in relation to establishing ordinary residence in Hong Kong, their factual context and the attempt to apply Ex parte Shah at one remove have little to do with the concerns of the present appeal.
E.3 The tax cases on which Ex parte Shah was founded
An analysis of Ex parte Shah may usefully begin by examining the two 1928 tax cases in the House of Lords on which it was founded, namely Levene v Commissioners of Inland Revenue and Inland Revenue Commissioners v Lysaght. Revisiting those decisions, it has to be said that it is somewhat surprising that Lord Scarman treated them as establishing “the natural and ordinary meaning” of “ordinary residence” for general purposes since they were actually decisions addressing quite particular statutory provisions applied to peculiar factual situations.
In both cases, the legal issue was whether the persons concerned were entitled to exemption from income tax on war loan interest under section 46 of the Income Tax Act 1918, as persons not ordinarily resident in the United Kingdom. The House of Lords were not engaged in considering the meaning of “ordinarily resident” in general, but only for the purposes of the Income Tax Acts, and their Lordships found guidance in a particular rule bearing on that expression. Thus, Viscount Cave LC pointed out in Levene that in the case of British subjects (which the persons concerned were):
.... regard must be had to r 3 of the General Rules applicable to all the schedules of the Income Tax Act, which provides that every British subject whose ordinary residence has been in the United Kingdom shall be assessed and charged to tax notwithstanding that at the time the assessment or charge is made he may have left the United Kingdom, if he has so left the United Kingdom for the purpose only of occasional residence abroad.
In each of the two cases, the British subjects concerned had initially been ordinarily resident in the United Kingdom; had then left the country; but had thereafter returned to England on a regular basis. In the case of Mr Levene, after leaving the country, he lived in various hotels in Europe but returned to England in the summer, again living in hotels, for about five months each year to obtain medical advice, to visit relatives, to make arrangements for the care of his mentally afflicted brother, to take part in Jewish religious observances and to deal with his income tax affairs. Mr Lysaght had retired as an active director of his company and gone to live in the Irish Free State where he owned a large estate, thereafter returning to attend monthly board meetings, living in hotels and spending a total of between 48 and 101 days in England in any one year.
Holding that findings of fact by the Commissioners could not be interfered with unless they were unsupported by evidence or otherwise vitiated by an error of law, their Lordships concluded that the findings of ordinary residence on the abovementioned facts could not be disturbed. Thus, in Levene, Viscount Sumner stated (reflecting the language of rule 3):
.... there was ample evidence before the commissioners to show that a man who left England to live abroad as he had been living here, and when warm weather came, returned to his native country and to his permanent associations, and in 1919 ‘left the United Kingdom for the purpose of occasional residence only.’
It was in this context that their Lordships approached “ordinarily resident” as encompassing “the way in which a man’s life is usually ordered”; or as connoting “residence in a place with some degree of continuity and apart from accidental or temporary absences”. It was the ordered regularity of their returning to England that justified a finding of ordinary residence. Thus, Viscount Sumner described Mr Levene as “a bird of passage of almost mechanical regularity”, adding:
.... Mr Levene continued to go to and fro during the years in question, leaving at the beginning of winter and coming back in summer, his home, thus remaining as before. He changed his sky but not his home. On this I see no error in law in saying of each year that his purpose in leaving the United Kingdom was occasional residence abroad only. The occasion was the approach of an English winter, and when with the promise of summer here that occasion passed away, back came Mr Levene to attend to the calls of interest, of friendship, and of piety.
Similarly in Lysaght, it was the regularity with which Mr Lysaght returned to England that his Lordship was referring to when Viscount Sumner stated:
I think the converse to ‘ordinarily’ is ‘extraordinarily’ and that part of the regular order of a man's life, adopted voluntarily and for settled purposes, is not ‘extraordinary.’ Having regard to the times and duration, the objects and the obligations of Mr Lysaght's visits to England, there was in my opinion evidence to support, and no rule of law to prevent, a finding that he was ordinarily resident, if he was resident in the United Kingdom at all. No authority was cited, which requires special consideration on this head.
We were also referred to the Canadian Supreme Court’s decision in Thomson v Minister of National Revenue, which proceeded on strikingly similar lines. The legal issue was whether Mr Thomson was liable to tax under the Income War Tax Act, section 9(1) of which provided:
There shall be assessed, levied and paid upon the income during the preceding year of every person
Mr Thomson was born in New Brunswick and had lived there until 1923, when he left and declared himself domiciled in Bermuda and built a house in North Carolina. He returned to New Brunswick for three consecutive summer seasons and then built a house there so his wife could be near her relatives in that Province. Since then he had spent an average of 150 days each year in Canada, leading him to argue that he was exempt from the tax because he was someone who was not residing or ordinarily resident in Canada, but had merely “sojourned” there for less than 183 days a year.
The Court was therefore not approaching the concept of “ordinarily resident” with a blank slate, but seeking to decide whether to characterise Mr Thomson as ordinarily resident as opposed to a mere sojourner. Not surprisingly, they held that he was no sojourner, Kerwin J stating:
The family ties of his wife, if not of himself, the erection of a substantial house, the retention of the servants, together with all the surrounding circumstances, make it clear to me that his occupancy of the house and his activities in Canada comprised more than a mere temporary stay therein.
Rand J, having cited the English tax cases mentioned above, stressed the importance of context in approaching the concepts of residence and ordinary residence, stating:
The gradation of degrees of time, object, intention, continuity and other relevant circumstances, shows, I think, that in common parlance ‘residing’ is not a term of invariable elements, all of which must be satisfied in each instance. It is quite impossible to give it a precise and inclusive definition. It is highly flexible, and its many shades of meaning vary not only in the contexts of different matters, but also in different aspects of the same matter. In one case it is satisfied by certain elements, in another by others, some common, some new. The expression ‘ordinarily resident’ carries a restricted signification, and although the first impression seems to be that of preponderance in time, the decisions on the English Act reject that view. It is held to mean residence in the course of the customary mode of life of the person concerned, and it is contrasted with special or occasional or casual residence. The general mode of life is, therefore, relevant to a question of its application.
Their Honours were therefore, like the House of Lords, concerned with a set of facts involving departure from the country followed by regular return visits. The regularity of Mr Thomson’s return, together with his having set up a house for his wife in New Brunswick provided the basis for rejecting the “sojourning” submission. This was the context for Estey J holding that:
.... one is ‘ordinarily resident’ in the place where in the settled routine of his life he regularly, normally or customarily lives. One ‘sojourns’ at a place where he unusually, casually or intermittently visits or stays. In the former the element of permanence; in the latter that of the temporary predominates. The difference cannot be stated in precise and definite terms, but each case must be determined after all of the relevant factors are taken into consideration, but the foregoing indicates in a general way the essential difference.
The question of ordinary residence therefore arose and was resolved in these tax cases in rather special circumstances. But Lord Scarman nevertheless drew heavily on those 1928 decisions, generalising from their specifics to the broad proposition that living in a particular country “for a settled purpose, as part of the regular order of life for the time being” was an essential feature of “ordinary residence”.
Leaving aside the detailed reasoning in those decisions, it is clear that a court’s orientation in construing a tax statute may be influenced by purposive considerations which are inapplicable in other contexts. Thus, the House of Lords was likely to have been anxious to avoid construing “ordinary residence” in a manner facilitating tax avoidance and for that reason gave the concept a wide meaning. That appears to be the view Rand J took of the English decisions. When commenting on Lysaght, his Honour stated:
.... it must, I think, be said that the language of ‘plain men’ was stretched to the breaking point to encompass the facts that had been found by the Commissioners to be residence.
Indeed, Viscount Cave LC had dissented in Lysaght, stressing the fact that Mr Lysaght had a permanent home in the Free Irish State and holding that the evidence did not support the Commissioners’ finding of ordinary residence.
E.4 What Ex parte Shah decided
Whatever misgivings one may have as to the basis supplied by the tax cases for Lord Scarman’s formulation in Ex parte Shah, that formulation is frequently resorted to when the meaning of “ordinary residence” in a statutory provision is sought: a person is thus often treated as “ordinarily resident” if he is living here “lawfully, voluntarily and for a settled purpose, as part of the regular order of life for the time being”. As previously stated, in many cases that may well be an appropriate reflection of the statutory intent.
However, having recognized that the statutory (or constitutional) purpose and the factual context have an important bearing on the meaning of “ordinary residence” in any particular case, the essential question is whether Lord Scarman's formulation is decisive, as the appellants contend; or whether, as the Commissioner argues, it is but a starting-point. How complete is the formulation’s coverage? Are there purposes and contexts which are not adequately addressed by the formulation so that a given set of facts may satisfy all its elements but may nonetheless justify the conclusion that the person or class of persons involved are not “ordinarily resident”? If so, the question which is vital to the outcome of this appeal is whether the circumstances of FDHs as a class present one such factual context when the words “ordinarily resided” in Article 24(2)(4) come to be interpreted.
To begin to answer these questions, it is necessary first to examine what precisely Ex parte Shah decided. This is clearly revealed if one compares the approach of the Court of Appeal with that of Lord Scarman for the House of Lords.
Ex parte Shah was a test case on whether foreign students studying in the United Kingdom were entitled to local authority education grants. The students in question claimed an entitlement under section 1(1) of the Education Act 1962 which imposed a duty on every local education authority:
.... subject to and in accordance with regulations made under this Act, to bestow awards on persons who –
A regulation made under the Act provided that there was no duty to bestow an award:
.... upon a person who has not been ordinarily resident, throughout the three years preceding the first year of the course in question, in the United Kingdom ....
In the Court of Appeal, Lord Denning MR accepted that if what was traditionally regarded as the natural and ordinary meaning of the words “ordinarily resident” were to be applied, a person would be held to come within that concept if he or she was “habitually and normally resident here, apart from temporary or occasional absences of long or short duration”. He noted that on that test, all the relevant students would qualify for a mandatory award. However, his Lordship regarded the Immigration Act 1971 as having made a crucial difference, rendering the traditional interpretation of “ordinarily resident” inapplicable. Lord Denning MR stated:
We must say what is the meaning of the words ‘ordinarily resident’ in the context of the situation brought about by the Immigration Act 1971. On this approach, it is my opinion that, whenever a boy comes from overseas on a student's visa, which is renewed every year, he is not to be regarded as ‘ordinarily resident’ here. He is allowed to enter on the terms that he or his parents or friends will pay all his fees and expenses whilst he is here, and that he will leave this country when his leave comes to an end. Such a boy is not ‘ordinarily resident’ here. No matter whether he goes home for holidays or not. No matter whether his parents are dead and he has no home to go to overseas. Suffice it that he has to leave at the end of his time, unless renewed.
In other words, Lord Denning MR considered the immigration status of the students created by the 1971 Act critical to deciding whether they were ordinarily resident and, since that status was not addressed if one simply applied the traditional “natural and ordinary meaning” of those words, his Lordship abandoned “natural and ordinary meaning” as an inadequate test of ordinary residence in the context and gave decisive weight to the claimants’ immigration status.
Eveleigh LJ adopted a similar approach. He stated that where a person seeks to claim a benefit from the state:
.... it will be necessary to show that he has the right or permission to live here in the manner which has led to the conclusion that he is living as any ordinary member of the community may live. On this basis I approach the cases before the court, and with the immigration legislation in mind.
Referring to one of the students in question, his Lordship concluded:
Hamid Akbarali came here for education. He had no right or permission to live here for all general purposes. Whatever his desire, his permission only extended to living here for the purpose of education. Such a limited purpose could not entitle him to be classed as being ‘ordinarily resident.’
Templeman LJ also gave decisive weight to the immigration status of the relevant students:
An overseas student has no right to remain in the United Kingdom after he has ceased to be a student, and is not ordinarily resident in the United Kingdom because he is resident in this country for educational purposes only, and not for the purpose of making a home indistinguishable from the home of those who are residing in this country for all purposes.
The vital difference in Lord Scarman’s approach involved his Lordship’s decision that (except where presence in the country was unlawful) the immigration status of the students under the 1971 Immigration Act was irrelevant for the purposes of the Education Act. He restricted the test to whether, in the three years immediately preceding the start of the educational course in question, each student’s residence in the United Kingdom came within his Lordship’s formulation of the natural and ordinary meaning of “ordinarily resident” which we have set out above.
Lord Scarman framed the issues thus:
Two questions of statutory interpretation, therefore, arise. The first is: what is the natural and ordinary meaning of ‘ordinary residence in the United Kingdom’....? The second is: does the statute in the context of the relevant law against the background of which it was enacted, or in the circumstances of today, including in particular the impact of the Act of 1971, compel one to substitute a special, and, if so, what, meaning to the words ‘ordinarily resident in the United Kingdom’?
His short answer was as follows:
The natural and ordinary meaning of the words has been authoritatively determined in this House in two tax cases reported in 1928. To the second question my answer is ‘No.’ The Act of 1962 and the Regulations are to be construed by giving to the words ‘ordinarily resident in the United Kingdom’ their natural and ordinary meaning.
Lord Scarman answered “No” to the second question because his Lordship and the other members of the House of Lords did not agree with the courts below as to the policy of the Education Act. The lower courts had concluded that enactment of the 1971 Immigration Act had changed the context in which the condition of ordinary residence in the Education Act 1962 was to be applied. The House of Lords disagreed. Lord Scarman traced the legislative policy back to section 81 of the Education Act 1944 which required local education authorities:
.... for the purpose of enabling pupils to take advantage without hardship to themselves or their parents of any educational facilities available to them .... (c) to grant scholarships .... and other allowances in respect of pupils over compulsory school age, including pupils undergoing training as teachers.
His Lordship stated:
The section set no limit, imposed no restrictions by way of nationality, origin, or sex. It was an integral part of an enlightened statute, the policy of which has governed educational provision ever since.
He pointed to the fact that immigration control measures had been introduced under the Commonwealth Immigrants Act 1962 and that the Education Act had been enacted in the same year, commenting:
It is inconceivable, and I refuse, therefore, to infer, that Parliament, in enacting the education statute, could have been unaware of the restrictions then being imposed for the first time on Commonwealth immigrants.
The natural and ordinary meaning test on Lord Scarman’s formulation was therefore firmly focussed on whether, in the three years preceding commencement of the relevant educational course, the student in question had lived in the United Kingdom “lawfully, voluntarily and for a settled purpose, as part of the regular order of life for the time being”, ignoring the conditions subject to which he had been admitted into the country. Lord Scarman stated:
Both courts .... agreed in attaching decisive importance to what the Divisional Court called ‘the immigration status’ of the students. ‘Immigration status,’ unless it be that of one who has no right to be here, in which event presence in the United Kingdom is unlawful, means no more than the terms of a person's leave to enter as stamped upon his passport. This may or may not be a guide to a person's intention in establishing a residence in this country: it certainly cannot be the decisive test, as in effect the courts below have treated it. Moreover, in the context with which these appeals are concerned, i.e. past residence, intention or expectations for the future are not critical: what matters is the course of living over the past three years.
His Lordship stated the applicable test as follows:
.... local education authorities, when considering an application for a mandatory award, must ask themselves the question: has the applicant shown that he has habitually and normally resided in the United Kingdom from choice and for a settled purpose throughout the prescribed period, apart from temporary or occasional absences? .... The relevant period is not the future but one which has largely (or wholly) elapsed, namely that between the date of the commencement of his proposed course and the date of his arrival in the United Kingdom. The terms of an immigrant student's leave to enter and remain here may or may not throw light on the question: it will, however, be of little weight when put into the balance against the fact of continued residence over the prescribed period - unless the residence is itself a breach of the terms of his leave, in which event his residence, being unlawful, could not be ordinary.
E.5 The limits of the decision in Ex parte Shah
So analysed, it becomes clear that the decision in Ex parte Shah is limited in at least two major respects. First, its scope or coverage is limited. Because of the view taken by the House of Lords of the legislative policy informing the relevant Education Act, their Lordships discounted as irrelevant any restrictive conditions affecting the students’ immigration status to their entitlement to a grant. On that basis, Lord Scarman fashioned as the “natural and ordinary meaning” of “ordinarily resident” a formulation which focuses solely on the students’ “course of living” over the three years immediately preceding the relevant educational programme, asking whether such course of living was lawful, voluntary and for a settled purpose, as part of their regular order of life for the time being. That may have made good sense in that context. However, in another case, the Court might well consider it highly relevant to the meaning of the words “ordinary residence”, used in a different context and for different statutory or constitutional purposes, to give full or even decisive weight to immigration status. The present case may well be such an instance.
The second limitation of Lord Scarman’s formulation is that it leaves open questions regarding the qualitative aspects of a person’s residence in the country. A person may indeed be able to show that he or she had lived lawfully, voluntarily and for a settled purpose, as part of the regular order of life for the time being in the country over a given period of time, but questions are bound to arise in some cases as to whether qualitative aspects of all or part of that period of residence are of such a character as to render it other than “ordinary residence”. The qualitative aspects of FDHs’ residence in Hong Kong are obviously of potential relevance.
In the context of Article 24(2)(4), the Court has already had to deal with qualitative aspects of “ordinary residence” to which the “natural and ordinary meaning” approach provides no answer. Thus, after entering Hong Kong lawfully, voluntarily and for a settled purpose, and living here for a substantial period as part of the regular order of his life, a person may be convicted of a crime and sentenced to a period of imprisonment before the seven-year period required by Article 24(2)(4) has been achieved. Section 2(4)(b) of the Ordinance provides that “a person shall not be treated as ordinarily resident in Hong Kong … during any period … of imprisonment or detention pursuant to the sentence or order of any court”. The question arose as to whether that exclusion is consonant with the meaning of “ordinarily resident” in Article 24(2)(4) properly interpreted.
In Fateh Muhammed the Court answered that question in the affirmative. Bokhary PJ, writing for the Court, regarded “serving a term of imprisonment, at least when it is not of trivial duration” as “something out of the ordinary”. He took as the object of the Court’s interpretation exercise, the need to determine whether the applicant had satisfied “a qualification prescribed by the Basic Law for attaining a valuable status and right, namely Hong Kong permanent resident status and the right of abode here” and held that “in such a context, there is a very strong case for saying that residence while serving a substantial term of imprisonment or detention in a training or detention centre is not ordinary residence”. The Court so held. As Ribeiro PJ pointed out in Prem Singh, it is the “qualitative aspect of time spent in prison that has led to such periods being excluded from the concept of ‘ordinary residence’ in successive statutory schemes and in the Basic Law.”
The Ordinance also supplements Article 24(2)(4) by introducing what has been called the “immediacy condition”. Schedule 1, paragraph 1(4)(b) provides:
For the purposes of calculating the continuous period of 7 years in which a person has ordinarily resided in Hong Kong, the period is reckoned to include a continuous period of 7 years .... for a person under paragraph 2(d), before or after the establishment of the Hong Kong Special Administrative Region but immediately before the date when the person applies to the Director for the status of a permanent resident of the Hong Kong Special Administrative Region.
Was the enactment of such a condition constitutional? No help on that question can be found in Lord Scarman’s “natural and ordinary meaning”. Indeed, he had no need to consider immediacy as a possible implication since regulation 13 expressly required the three year period of ordinary residence to precede the first year of the educational course in question.
Adopting a purposive approach to the interpretation of Article 24(2)(4), the Court in Fateh Muhammed affirmed the constitutionality of the immediacy requirement:
.... unless its wording simply cannot support such a reading, a purposive construction of art.24(2)(4) drives the Court to say that the seven continuous years required by art.24(2)(4) must come immediately before the time when an application for Hong Kong permanent resident status is made in reliance on those seven continuous years. In my view, the wording of art.24(2)(4) supports such a reading. Such support is to be found generally in the tenor of the provision and particularly in the implicit link between the twin requirements of seven years' ordinary and continuous residence and of having taken Hong Kong as one's place of permanent residence. In my judgment, the seven continuous years required by art.24(2)(4) of the Basic Law must come immediately before the time when an application for Hong Kong permanent resident status is made in reliance on those seven continuous years.
Another supplement to or elaboration of Article 24(2)(4) held by the Court to be valid involves the establishment of a fair and reasonable statutory scheme for the proper verification of a person’s claim to right of abode.
But a different legislative initiative was struck down as unconstitutional by the Court in Prem Singh. The Ordinance purported to make it a condition that a person should not be subject to a limit of stay when declaring his intention to make Hong Kong his place of permanent residence in the course of applying for permanent resident status. The Court held that such a condition was incompatible with the language and structure of the permanence requirement as laid down in Article 24(2)(4) and was therefore unconstitutional. The decision does not address the meaning of “ordinary residence”.
E.6 A general criticism of Lord Scarman’s approach
A more general criticism may, with respect, be made of Lord Scarman’s approach. Although as noted above, his Lordship qualified his formulation by acknowledging the importance of context, it will be recalled that Lord Scarman framed the issues as follows:
Two questions of statutory interpretation, therefore, arise. The first is: what is the natural and ordinary meaning of ‘ordinary residence in the United Kingdom’....? The second is: does the statute in the context of the relevant law against the background of which it was enacted, or in the circumstances of today, including in particular the impact of the Act of 1971, compel one to substitute a special, and, if so, what, meaning to the words ‘ordinarily resident in the United Kingdom’?
Such an approach (adopted by Mr Fordham in the present case) relegates context and purpose into second place, to be consulted after a “natural and ordinary meaning” has been identified. It does not accord with more modern approaches to statutory (and constitutional) interpretation. It involves asserting that the words in question bear a certain “natural and ordinary meaning” and then placing the onus on anyone seeking to advance a different meaning to establish some ground which compels acceptance of that different meaning to be adopted as a “special” meaning in substitution for the “natural and ordinary meaning” previously identified.
The Hong Kong courts do not nowadays accept such an approach. As Sir Anthony Mason NPJ pointed out in HKSAR v Lam Kwong Wai:
The modern approach to statutory interpretation insists that context and purpose be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity may be thought to arise (Medical Council of Hong Kong v Chow Siu Shek (2000) 3 HKCFAR 144 at 154B-C; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315 per Mason J (dissenting, but not on this point); CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384).
Lord Scarman’s natural and ordinary meaning approach is particularly unhelpful when interpreting words which have some flexibility of meaning. If one approaches the words “ordinarily resident” without trying to assign to them a priori some “natural and ordinary meaning”, but recognizing that they take their meaning from their context, it immediately becomes clear – as illustrated by the various examples discussed in Sections E2 and E3 – that the expression “ordinary residence” is open-textured as a matter of language and inherently capable of assuming different meanings in different contexts.
The open-textured and flexible nature of that expression may be contrasted, for instance, with the word “born” used in two of the other categories of entitlement to permanent resident status in Article 24(2): “Chinese citizens born in Hong Kong ....”; and “Persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2)”. The central triggering requirement in each of those categories is the event of birth – a concept which is much more closed and which admits of much less flexibility than the requirement of a continuous seven year period of ordinary residence under Article 24(2)(4). This was indeed the conclusion that the Court reached in Director of Immigration v Chong Fung Yuen. Incidentally, we should point out that we do not necessarily accept all that the Chief Judge stated in relation to Chong Fung Yuen in paragraphs 125 to 131 of the Court of Appeal’s judgment below.
E.7 The proper approach to interpreting “ordinarily resided” in Article 24(2)(4)
On the basis of the foregoing analysis, it is clear that the “natural and ordinary meaning” attributed by Mr Fordham to the words “ordinarily resident” in Article 24(2)(4) may serve as a starting-point but cannot be decisive. To be able to say of a person or class of persons that they live in Hong Kong “lawfully, voluntarily and for a settled purpose, as part of the regular order of life for the time being” may often justify the conclusion that they are ordinarily resident here, but that will not always be the case.
It is always necessary to examine the factual position of the person claiming to be ordinarily resident to see whether there are any special features affecting the nature and quality of his or her residence. If such features exist, one asks whether they result in that person’s residence being qualitatively so far-removed from what would traditionally be recognized as “ordinary residence” as to justify concluding that he or she is not “ordinarily resident”. This is necessarily a question of fact and degree and the outer boundaries of “ordinary residence” are incapable of precise definition. But the exercise is necessary since the meaning of “ordinary residence” in Article 24(2)(4) can only be considered in the factual context presented by the person claiming to come within the meaning of that concept.
In the present case, the Court must take as the factual context, the scheme whereby FDHs are allowed to enter and reside in Hong Kong subject to the highly restrictive conditions described in Section B above. Those are the facts that mark out FDHs as a class and characterise the nature and quality of their residence in Hong Kong while employed as such. Those facts must necessarily be at the centre of the Court’s deliberations when it considers whether it is congruent with the concept of “ordinary residence” as employed in Article 24(2)(4) to treat FDHs as a class as not ordinarily resident.
It is plainly within the intent of Article 24(2)(4) that the immigration status of persons claiming to come within that category must be taken into account in deciding whether they satisfy the seven-year ordinary residence requirement. This is indicated by the words of the Article itself. They define the category of non-Chinese nationals eligible for Hong Kong permanent resident status, as consisting of:
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 ....
Article 24(2)(4) is therefore addressing the situation of persons who need permission to enter Hong Kong and makes it a requirement that they enter with valid travel documents. The Article therefore commences defining eligibility for permanent resident status in this category by focussing on the point of entry into Hong Kong and laying down the requirement that entry has to be on the basis of a valid travel document. As is to be expected with a constitutional instrument, the Basic Law does not seek to define what does and does not constitute a valid travel document. It leaves it to the Director to determine, as a matter of immigration control, what travel documents to accept as valid for the purposes of entry.
Moreover, Article 24(2)(4) implicitly makes immigration control a constant feature in the process of building up eligibility when it stipulates a seven-year qualifying period. The drafters of the Basic Law would plainly not have assumed that a person entering Hong Kong would immediately be given permission to stay for seven or more years. One would naturally expect a person who does not have the right of abode to be allowed to enter subject to a limit in the duration of stay and subject to other conditions, such as whether taking up employment is allowed, etc, while in Hong Kong. It follows that it is implicit in Article 24(2)(4) that the continuous seven year period of ordinary residence can only be achieved subject to continuing immigration control.
It has rightly not been suggested that the imposition of such controls is in any way constitutionally objectionable. As was noted in Prem Singh, the Director may undoubtedly exercise his discretions as to whether a non-Chinese person should be allowed to enter Hong Kong and whether permission to remain should be extended, such discretions having a bearing on the entry and seven-year requirements. This is consistent with Article 154(2) which allocates constitutional responsibility for immigration control on the HKSAR Government and provides:
The Government of the Hong Kong Special Administrative Region may apply immigration controls on entry into, stay in and departure from the Region by persons from foreign states and regions.
In the exercise of this power, the Director may impose conditions on the entry of a person which will materially affect the quality of his residence in Hong Kong.
F. Are FDHs entitled to be treated as ordinarily resident?
Adopting the aforesaid approach, it is clear that prominent distinguishing features have an important bearing on the nature and quality of the residence of FDHs as a class in Hong Kong. Those features have been described in Section B of this judgment. By way of summary, each time a FDH is given permission to enter, such permission is tied to employment solely as a domestic helper with a specific employer (in whose home the FDH is obliged to reside), under a specified contract and for the duration of that contract. The FDH is obliged to return to the country of origin at the end of the contract and is told from the outset that admission is not for the purposes of settlement and that dependents cannot be brought to reside in Hong Kong.
It is clear, in our view, that these distinguishing features result in the residence of FDHs in Hong Kong being qualitatively so far-removed from what would traditionally be recognized as “ordinary residence” as to justify concluding that they do not, as a class, come within the meaning of “ordinarily resident” as used in Article 24(2)(4). It follows that in providing that they should not be treated as ordinarily resident, section 2(4)(a)(vi) is consistent with Article 24(2)(4) and constitutionally valid. We accordingly dismiss the appeals.
G. Matters which need not be addressed
Having arrived at the aforesaid conclusion, it is unnecessary to address Lord Pannick’s second argument which invites the Court to acknowledge a margin of discretion in the legislature to enact exclusionary categories.
Moreover, we have concluded that pursuant to the foregoing analysis, the meaning of “ordinarily resided” in Article 24(2)(4) interpreted in the light of its context and purpose is clear, plainly accommodating the exclusionary provisions of section 2(4)(a)(vi). There is accordingly no need and no legal basis for referring to any extrinsic materials in aid of interpreting that Article.
H. Reference to the Standing Committee of the National People's Congress under Article 158(3) of the Basic Law
H.1 The Commissioner’s request for a reference
Article 158 of the Basic Law states:-
We shall, in this judgment, refer to the Standing Committee of the National People’s Congress simply as the Standing Committee.
Following the decisions of this Court in Ng Ka Ling v Director of Immigrationand Chan Kam Nga v Director of Immigration, the State Council submitted a Motion to the Standing Committee requesting an interpretation of Articles 22(4) and 24(2)(3) of the Basic Law. The Motion was submitted after the Chief Executive of the HKSAR had provided a report to the Standing Committee.
An interpretation was made and this was adopted by the Standing Committee of the Ninth National People’s Congress at its Tenth Session on 26 June 1999. The interpretation, headed “The Interpretation by the Standing Committee of the National People’s Congress of Articles 22(4) and 24(2)(3) of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China” is annexed to this judgment. We shall refer to this as the 1999 Interpretation.
The Commissioner places considerable reliance on the 1999 Interpretation, focusing on the sentence in para 2:-
The legislative intent as stated by this Interpretation, together with the legislative intent of all other categories of Article 24(2) of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, have been reflected in the “Opinions on the Implementation of Article 24(2) of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China” adopted at the Fourth Plenary Meeting of the Preparatory Committee for the Hong Kong Special Administrative Region of the National People’s Congress on 10 August 1996.
The Commissioner relies on the Statement as part of his arguments on extrinsic materials. It was submitted that the Statement provided at least strong persuasive authority as to the legislative intent behind Article 24(2)(4) of the Basic Law. However, we have already held that there is no need to resort to extrinsic materials for the purposes of construing Article 24(2)(4).
As an alternative argument based on the Statement, the Commissioner further submits that the effect of the Statement was that it may well be binding on the Hong Kong courts by reason of Article 158 of the Basic Law. We use the expression “may well be” because although Lord Pannick did not invite this Court actually to hold ourselves that this was the effect of the Statement for the purposes of Article 158, nevertheless it was his submission that this was arguably the position. And for that reason, the meaning of the concept of an “interpretation” under Article 158, and therefore the meaning and effect of the Statement itself, were matters which ought to be referred by this Court to the Standing Committee for an authoritative interpretation. Lord Pannick, however, stressed that a reference would only be necessary if the issue of the true interpretation of Article 24(2)(4) using the common law approach, were determined against him.
There were perhaps two reasons why the Commissioner did not at this stage invite the Court, in the absence of an authoritative interpretation by the Standing Committee, to hold that the Statement was actually binding for the purposes of Article 158 (rather than just being persuasive, this being the argument based on extrinsic materials):-
A recognition of the point forcefully made by Mr Fordham that on a plain reading of the 1999 Interpretation itself, it was apparent that the only provisions that were interpreted were Articles 22(4) and 24(2)(3) of the Basic Law, as its title indicated. There were also numerous references in the body of that document to an interpretation of only those specific provisions of the Basic Law. Lord Pannick accepted that the Statement was an “incidental” construction of other provisions in the Basic Law, namely, the other categories in Article 24(2).
In Director of Immigration v Chong Fung Yuen, it was accepted by the Director of Immigration that the Statement was not binding on the Court as an interpretation made under Article 158.
Be that as it may, this Court was asked to seek an interpretation from the Standing Committee. The following questions were identified by the Commissioner:-
Before addressing the request to refer these questions, we must first consider the jurisdiction of the Court under Article 158.
H.2 The Court’s jurisdiction under Article 158 of the Basic Law
Article 158 is a specific provision governing the interpretation of the Basic Law. In this regard, only the Standing Committee and the Hong Kong courts are referred to. The Article sets out in clear terms the power of the Standing Committee to interpret provisions of the Basic Law and the effect of such interpretations. It also sets out the powers of interpretation of the Basic Law vested in the Hong Kong courts and makes provision for mandatory references by the Court of Final Appeal to the Standing Committee for authoritative interpretations of Basic Law provisions.
This Court has, on a number of previous occasions, discussed this Article, in particular in Ng Ka Ling v Director of Immigration, Lau Kong Yung v Director of Immigration, Director of Immigration v Chong Fong Yuen, Tam Nga Yin v Director of Immigration and Democratic Republic of the Congo v FG Hemisphere Associates LLC (No. 1). It is clear from the way this Court has treated it that Article 158 sets out what is a constitutional jurisdiction of the Court in relation to interpretation and reference.
As Article 158(1) makes clear, the power of interpretation of the Basic Law rests with the Standing Committee. This is derived from the general power of the Standing Committee to interpret laws under Article 67(4) of the Constitution of the People’s Republic of China. In Lau Kong Yung, this Court stated the power to be in “general and unqualified terms”, unrestricted by the remainder of Article 158. It is plenary in that it covers all articles in the Basic Law and may be exercised even in the absence of any legal proceedings.
Only the courts of the HKSAR are also given the power to interpret the Basic Law, but the ambit of this power is precisely defined and is not as wide as the general power vested in the Standing Committee:-
Under Article 158(2), the Hong Kong courts are authorized (this is a constitutional authorization) to interpret “on their own, in adjudicating cases, the provisions of [the Basic Law] which are within the limits of the autonomy of [the HKSAR]”. This limitation is, however, not critical because the first sentence of Article 158(3) makes it clear that the Hong Kong courts “may also interpret other provisions of [the Basic Law] in adjudicating cases”. It is therefore open to the Hong Kong courts to interpret all articles in the Basic Law.
The real limitations, however, imposed on the Hong Kong courts are two.
First, our courts can only become engaged in construing provisions of the Basic Law in the course of adjudicating cases. In other words, the role of our courts is to adjudicate and not give advisory opinions.
Secondly, as Article 158(3) states, where, in adjudicating cases, the Hong Kong courts need to interpret Basic Law provisions “concerning affairs which are the responsibility of the Central People’s Government, or concerning the relationship between the Central Authorities and [the HKSAR]”, then the Hong Kong courts “shall, before making their final judgments which are not appealable, seek an interpretation of the relevant provisions from [the Standing Committee] through the Court of Final Appeal”. The seeking of an interpretation from the Standing Committee in these circumstances is mandatory and it is the responsibility of the Court of Final Appeal. It is part of the Court’s “constitutional jurisdiction”.
Before the Court of Final Appeal can make a reference, it must be satisfied that two conditions (the “classification” and the “necessity” conditions) are fulfilled, both these conditions flowing from the language of Article 158(3) itself. They were described by Chief Justice Li in Ng Ka Ling in this way:-
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:
In looking at the classification condition, in determining whether a provision is an excluded provision, the Court will look at the character of the provision itself to see whether it concerns “affairs which are the responsibility of the Central People’s Government, or concerning the relationship between the Central Authorities and [the HKSAR]”. The Court will not look at the effect of the implementation of the provision in any given case in order to determine whether or not the provision is an excluded one: see Chong Fung Yuen and Tam Nga Yin.
Underlying any consideration by the Court whether or not to refer under Article 158 is the requirement of arguability. As was said by Chief Justice Li in Ng Ka Ling:-
We are at the stage of considering whether the Court is obliged to make a reference under art.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.
The arguability factor is implicit in Article 158(3) to ensure integrity in the operation of a reference. Otherwise, there will be a risk of potential abuse; all sorts of fanciful arguments could then be made just to seek a reference to the Standing Committee.
The seeking of an interpretation by the Court of Final Appeal (or, in common parlance, making a reference to the Standing Committee) is therefore a precisely defined duty under Article 158(3). It is mandatory in character: it is specifically limited in its application to the excluded provisions of the Basic Law and it applies only in the particular circumstances contemplated by that provision, that is, the conditions of classification, necessity and arguability. Then and only then the Court of Final Appeal must make a reference to the Standing Committee.
Nor is there any basis for otherwise implying a general power in the Court of Final Appeal to seek an interpretation from the Standing Committee. This conclusion follows from:
the fact that that Court of Final Appeal exercises the power of final adjudication as an element in the exercise of judicial power;
the responsibility of the courts of the HKSAR under Article 158(3) to adjudicate cases “on their own”, subject to the mandatory reference procedure under that article and to the application of Standing Committee interpretations under that article; and
the long established rule that a common law court cannot abdicate any part of its judicial function to any other body.
What is the effect of an interpretation made by the Standing Committee? Where an interpretation of a provision of the Basic Law is made by the Standing Committee under Article 158(1) pursuant to its plenary powers, it is of course binding on the courts. Where the Standing Committee has made an interpretation after a judicial reference under Article 158(3), that paragraph states the consequence as follows:-
… 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.
It should be noted that upon an Article 158(3) reference, the interpretation of the relevant provision or provisions by the Standing Committee will bind all courts in Hong Kong. It has the same binding effect as the exercise of the power of interpretation under Article 158(1). In short, the courts of Hong Kong are bound to follow an interpretation made by the Standing Committee whether under Article 158(1) or (3).
With these principles in mind, we turn to the question of a reference in the present case.
H.3 Determination of the Commissioner’s application for a reference
As stated earlier, Article 158 of the Basic Law sets out the constitutional jurisdiction of the Court in relation to both interpretation and reference. In deciding whether or not to refer, the court must be satisfied that both the classification and necessity conditions are fulfilled (as well as the arguability aspect). This is for the Court to decide and for it alone to decide . Lord Pannick confirmed that this was the position.
The classification condition is satisfied in the present case. Article 158 of the Basic Law is a provision that does concern the relationship between the Central Authorities and the HKSAR. There was no real dispute about this.
The necessity condition, however, is not. In the light of the conclusion this Court has reached on the issue of the true construction of Article 24(2)(4), a reference to the Standing Committee is simply unnecessary. As stated above, Lord Pannick addressed us on this basis. In our view, it is plainly the right approach.
The necessity condition not being satisfied, it is not necessary to deal with the arguability factor either. Accordingly, the request for a reference must be rejected.
The Appeals are accordingly dismissed. Any submissions as to costs should be lodged in writing within 14 days of the date of this judgment and any replies within 14 days thereafter.
16 JULY 2013
Justice Ribeiro PJ
This is the judgment of the Court as to costs. The appeals were dismissed and the parties have now lodged written submissions as to costs.
The Commissioner submits that costs should simply follow the event, the appellants having failed in their attempt to secure a declaration that Art 24(2)(4) of the Basic Law renders section 2(4) of the Immigration Ordinance’s disqualification of foreign domestic helpers from acquiring the right to permanent residence unconstitutional.
The appellants submit that the Commissioner should only get 60% of his costs because he failed on three of the four major arguments he had mounted. While he succeeded on (i) the construction of the words “ordinarily resident”, he failed on (ii) his “margin of discretion” argument; (iii) his submission that if in doubt as to the meaning of “ordinarily resident” in Article 24(2)(4), the Court should refer to extrinsic materials, including “the statement” in the 1999 Interpretation; and (iv) his contention that, to the extent that there was an arguable doubt as to whether “the statement” formed part of the 1999 Interpretation, the Court had to refer the question of the scope of an Interpretation under Article 158 to the NPCSC.
The appellant accuses the Government of having raised questions (iii) and (iv) for the “ulterior and collateral purpose of attempting to resolve the issue of babies born to Mainland parents in Hong Kong by way of overturning this Court’s 2001 interpretation” in Chong Fung Yuen.
We are unable to accept the appellants’ arguments. The Commissioner’s arguments were sequential. The Court did not reach points (ii) to (iv) because it was held that the appellants fell at the first hurdle. The Commissioner should not be penalised for advancing as his second point, on the margin of discretion argument. It was reasonably arguable and the Court did not find against the Commissioner on that point, but held that it was unnecessary for it to be decided (§90).
Nor do we think that raising points (iii) and (iv), constituted an abuse. They were advanced contingently relevant if and in so far as the Court considered it necessary to examine extrinsic materials and to decide whether “the statement” was part of the binding 1999 Interpretation. If the Court had been unable to dispose of the appeal on the basis of point (i) or point (ii), it may well have had to consider questions (iii) and (iv). Raising those points therefore involved no abuse.
In the circumstances, costs should follow the event and that the Commissioner should be awarded his costs.
The appellants also ask for a direction that there be a certificate for 4 counsel and that their costs be taxed in accordance with the Legal Aid Regulations. Given the importance of the case and the wide-ranging issues addressed in argument, we so direct.
A n n e x
(to main judgment)
THE INTERPRETATION BY THE STANDING COMMITTEE OF THE NATIONAL PEOPLE'S CONGRESS OF ARTICLES 22(4) AND 24(2)(3) OF THE BASIC LAW OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE'S REPUBLIC OF CHINA
(Adopted by the Standing Committee of the Ninth National People's Congress at its Tenth Session on 26 June 1999)
The Standing Committee of the Ninth National People's Congress examined at its Tenth session the "Motion Regarding the Request for an Interpretation of Articles 22(4) and 24(2)(3) of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China" submitted by the State Council. The motion of the State Council was submitted upon the report furnished by the Chief Executive of the Hong Kong Special Administrative Region under the relevant provisions of Articles 43 and 48(2) of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China. The issue raised in the Motion concerns the interpretation of the relevant provisions of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China by the Court of Final Appeal of the Hong Kong Special Administrative Region in its judgment dated 29 January 1999. Those relevant provisions concern affairs which are the responsibility of the Central People's Government and concern the relationship between the Central Authorities and the Hong Kong Special Administrative Region. Before making its judgment, the Court of Final Appeal had not sought an interpretation of the Standing Committee of the National People's Congress in compliance with the requirement of Article 158(3) of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China. Moreover, the interpretation of the Court of Final Appeal is not consistent with the legislative intent. Therefore, having consulted the Committee for the Basic Law of the Hong Kong Special Administrative Region under the Standing Committee of the National People's Congress, the Standing Committee of the National People's Congress has decided to make, under the provisions of Article 67(4) of the Constitution of the People's Republic of China and Article 158(1) of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, an interpretation of the provisions of Articles 22(4) and 24(2)(3) of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China as follows:
The provisions of category (3) regarding the "persons of Chinese nationality born outside Hong Kong of those residents listed in categories (1) and (2)" mean both parents of such persons, whether born before or after the establishment of the Hong Kong Special Administrative Region, or either of such parents must have fulfilled the condition prescribed by category (1) or (2) of Article 24(2) of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China at the time of their birth. The legislative intent as stated by this Interpretation, together with the legislative intent of all other categories of Article 24(2) of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, have been reflected in the "Opinions on the Implementation of Article 24(2) of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China" adopted at the Fourth Plenary Meeting of the Preparatory Committee for the Hong Kong Special Administrative Region of the National People's Congress on 10 August 1996.
As from the promulgation of this Interpretation, the courts of the Hong Kong Special Administrative Region, when referring to the relevant provisions of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China, shall adhere to this Interpretation. This Interpretation does not affect the right of abode in the Hong Kong Special Administrative Region which has been acquired under the judgment of the Court of Final Appeal on the relevant cases dated 29 January 1999 by the parties concerned in the relevant legal proceedings. Other than that, the question whether any other person fulfils the conditions prescribed by Article 24(2)(3) of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China shall be determined by reference to this Interpretation.
 Article 24(2)(5) addresses the position of the children of persons coming within Article 24(2)(4).
 Cap 115.
 Vallejos Evangeline Banao v Commissioner of Registration HCAL 124/2010 (30 September 2011); Domingo Daniel L v Commissioner of Registration HCAL 128/2010 (3 November 2011).
 Hon Cheung CJHC, Tang VP and Stock VP, Vallejos Evangeline Banao v Commissioner of Registration CACV 204/2011, (28 March 2012); Domingo Daniel L v Commissioner of Registration CACV 261/2011 (19 July 2012).
 With Ms Gladys Li SC, Mr P Y Lo and Mr Benson Tsoi.
  2 AC 309.
 With Mr Anderson Chow SC and Ms Eva Sit.
 Annexed to this judgment.
 See Section H. below.
 R v Barnet London Borough Council ex parte Shah  2 AC 309 at 343.
 (2001) 4 HKCFAR 278 at 283-284.
 Fateh Muhammad v Commissioner of Registration (2001) 4 HKCFAR 278; and Prem Singh v Director of Immigration (2003) 6 HKCFAR 26.
 Levene v Commissioners of Inland Revenue  AC 217; Inland Revenue Commissioners v Lysaght  AC 234; and Thomson v Minister of National Revenue  SCR 209.
 R v Barnet London Borough Council ex parte Shah  2 AC 309.
 Lau San Ching v Apollonia Liu  5 HKPLR 23.
 Re Ip Pui Man Nina  3 HKLRD 299.
 Mark v Mark  1 AC 98.
  3 HKLRD 299.
 One year in England and Wales under section 5(2) of the Domicile and Matrimonial Proceedings Act 1973.
 Matrimonial Causes Ordinance, Cap 179, section 3.
 Mark v Mark  1 AC 98, §33.
  HKLR 356.
  HKLR 798.
  5 HKPLR 23.
  AC 217.
  AC 234.
 Section 46:
|Where the Treasury have, before the commencement of this Act, issued or may thereafter issue any securities which they have power to issue for the purpose of raising any money or any loan with a condition that the interest thereon shall not be liable to tax or super tax so long as it is shown, in manner directed by the Treasury, that the securities are in the beneficial ownership of persons who are, not ordinarily resident in the United Kingdom, the interest of securities issued with such a condition shall be exempt accordingly.|
 At 224.
 Levene at 232 per Lord Warrington of Clyffe.
 Levene at 225 per Viscount Cave LC.
 Levene at 227.
 Lysaght at 243-244.
  SCR 209.
 At 214.
 At 231-232.
 Thomson v Minister of National Revenue  SCR 209 at 224.
 The approach of the Divisional Court was the same as the Court of Appeal’s on this issue.
 Local Education Authority Awards Regulations 1979, regulation 13.
  QB 688 at 720.
 At 721.
 At 722-723.
 At 723.
 At 729.
  2 AC 309 at 340.
 At 337.
 At 348.
 At 349.
 Although the UK Parliament disagreed and amended the regulation to remove any duty on local authorities to provide an award if any part of the three-year period in question has “been wholly or mainly for the purposes of receiving full-time education”. See R v Hereford and Worcester County Council, ex p Wimbourne The Times, 12 November 1983.
 (2001) 4 HKCFAR 278 at 283-284.
 (2003) 6 HKCFAR 26 at §75.
 (2001) 4 HKCFAR 278 at 285.
 Ng Ka Ling v Director of Immigration (1999) 2 HKCFAR 4 at 36; Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300 at 312; Prem Singh v Director of Immigration (2003) 6 HKCFAR 26 at §§56-57.
 (2003) 6 HKCFAR 26.
 Section E1.
  2 AC 309 at 340.
 (2006) 9 HKCFAR 574 at §63. Reiterated by Li CJ in HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568 at§§12-13.
 Article 24(2)(1).
 Article 24(2)(3).
 (2001) 4 HKCFAR 211 at 231-233.
 CACV 204/2011 (28 March 2012).
 (2003) 6 HKCFAR 26 at §63.
 (1999) 2 HKCFAR 4.
 (1999) 2 HKCFAR 82.
 This sentence was referred to by Lord Pannick in his submissions as “the Statement” – we are content to use the term in this judgment.
 See section G above.
 (2001) 4 HKCFAR 211.
 This is recorded at 217J-218A.
 (1999) 2 HKCFAR 4.
 (1999) 2 HKCFAR 300.
 (2001) 4 HKCFAR 211.
 (2001) 4 HKCFAR 251.
 (2011) 14 HKCFAR 95.
 At 323C.
 Lau Kong Yung at 324E-F per Chief Justice Li and 345E-F per Sir Anthony Mason. In his judgment, Chief Justice Li made reference to Hong Kong’s New Constitutional Order (Second Edition) by Professor Yashi Ghai at 198. Two Interpretations, in relation to, respectively, (a) Article 7 of Annex 1 and Article III of Annex II of the Basic Law; and (b) Article 53(2) of the Basic Law (adopted by the Standing Committee of the 10th National People’s Congress on 6 April 2004 and 27 April 2005), were given by the Standing Committee in the absence of any litigation.
 Ng Ka Ling at 29G.
 Ng Ka Ling at 30E.
 These are referred to as the “excluded provisions”: see Ng Ka Ling at 30F-G.
 This can be referred to as a “duty”: see Lau Kong Yung at 322H.
 Ng Ka Ling at 30H-I.
 Ng Ka Ling at 32C.
 At 30I-31B. It is right to point out that in relation to the classification condition, the Court in Ng Ka Ling added a rider that the Court also had to ask “as a matter of substance” what was “predominantly” the provision in the Basic Law that was sought to be referred for an interpretation: at 33D. Following the 1999 Interpretation, in Lau Kong Yung, the Court said that it may be necessary to revisit the “classification and necessity conditions and the predominant test in an appropriate case”: at 324H-I. These issues however, do not arise in the present appeal.
 At 229A-H.
 At 257I-J.
 At 32F-G.
 In Lau Kong Yung, the term “judicial reference” is used: at 322H.
 In saying this we recognize that the Court may arrive at its own interpretation of the relevant provisions in the Basic Law provided it does not arrive at a final view before reference: see Democratic Republic of the Congo v FG Hemisphere Associates LLC (No 1) (2011) 14 HKCFAR 95 at §§183, 223, 415.
 Basic Law, Articles 2, 19(1) and 82.
 Lau Kong Yung at 324D.
 See the remarks of Sir Anthony Mason in Lau Kong Yung at 345H-346B.
 Chong Fung Yuen at 223B.
 See para 103 above.
 Ng Ka Ling at 31C.
 See para 97 above.
Michael Fordham QC, Gladys Li SC, Mr PY Lo and Benson Tsoi (instructed by Barnes & Daly and assigned by the Legal Aid Department) for the appellants.
Lord Pannick QC, Anderson Chow SC and Eva Sit (instructed by the Department of Justice) for the 1st respondent.
all rights reserved