Director of Immigration v Chong Fung Yuen

The respondent, Chong Fung Yuen (), was three years old at the time of the decision. His father Chong Kee Yan () and mother lived in Shanwei, Guangdong. They came to Hong Kong as temporary visitors on two-way permits in September 1997 to visit the father's own father Chong Yiu Shing (). Chong Fung Yuen himself was born soon after they arrived. Chong Yiu Shing applied for permanent residency on his behalf. At the time of Chong's birth, another major right of abode case had already been set in motion, and would eventually reach the CFA as Ng Ka Ling v Director of Immigration. Following the unfavourable ruling for the Director of Immigration in that case, the Chief executive of Hong Kong (then Tung Chee Hwa) sought and on 26 June 1999 obtained an interpretation of Articles 22(4) and 24(2)(3) of the Basic Law from the NPCSC. That interpretation referred to the Basic Law Preparatory Committee's legislative intent behind the whole of Article 24 in rendering its decision. On 24 December 1999, Judge Frank Stock of the CFI ruled in Chong's favour, stating that the provision of the IO in question derogated from his rights under BL 24(2)(1). The CFI addressed only the language of BL 24(2)(1) and not the NPCSC interpretation. The hearing was held in March, but the Court of Final Appeal refrained from issuing its decision until after the hearings on the latter two cases. ==Social effects==

As a result of the Chong decision, 2,202 children born in Hong Kong to mainland mothers since 1997 immediately became entitled to the right of abode; of their mothers, 232 were illegal immigrants, while 1,821 were overstayers. The ruling led to fears of an influx of mainland women seeking to give birth in public hospitals, as well as calls for the government to seek an NPCSC interpretation in order to prevent that outcome. Acting Secretary for Security Timothy Tong was quoted as stating that the Immigration Department would take steps to tackle the problem of mainland women entering Hong Kong illegally, which was expected to worsen as a result of the ruling. He stated that illegal immigrant and overstaying mothers would be deported to the mainland regardless of their children's right of abode. That year the Census and Statistics Department also began conducting a series of surveys entitled "Babies Born in Hong Kong to Mainland Women", targeting the parents of such babies. They achieved a response rate of above 80% during each of the survey periods. During the longest survey period, the fourth (from 6 January to 29 June 2010), they received surveys from the parents of 89% (14,685) of the babies born in Hong Kong to at least one mainland parent during the period under examination. Chong himself settled in Hong Kong, living with his paternal grandmother and grandfather, while his younger sister remained in Shanwei. He has a younger sister, born in 1993. Chong had few opportunities for reunions with his family, often seeing them just twice a year during Chinese New Year and summer holidays. His father moved to Hong Kong in 2009, but took up employment in Yuen Long and did not live with his son. In an interview in 2011, Chong, by then 14 and a Form 1 student in Tuen Mun, described being affected by internet users' taunts of him as a "locust" and a "criminal"; however, he was still comfortable revealing his background to people around him, including his classmates. ==Legal principles==

In the Chong decision, the Court of Final Appeal laid down an important principle of its approach to interpretation of the Basic Law. In Chong, the Court of Final Appeal held that 26 June 1999 NPCSC interpretation was only binding on BL 24(2)(3), and had no bearing on how to interpret BL 24(2)(1), the provision at issue in Chong. Thus, the court stated that it would interpret BL 24(2)(1) through the common law approach to interpretation. A literal reading of the law supported the contention that Chong Fung Yuen was entitled to the right of abode in Hong Kong. Basic Law Committee member Elsie Leung would later criticise the court for its approach to interpreting the Basic Law. Po Jen Yap of the University of Hong Kong also criticised the CFA for effectively treating the NPCSC interpretation as having a judicial rather than statutory character, as though it were a ruling by a higher court, and in his opinion misusing this characterisation to treat the preamble of the interpretation as a mere obiter dictum. Conversely, the Court of Final Appeal was criticised from another direction by Ling Bing of the Chinese University of Hong Kong, who felt that the court's statement that "the power of the Standing Committee extends to every provision in the Basic Law and is not limited to the excluded provisions referred to in art. 158(3)" overstated the NPCSC's BL 158 authority to interpret the Basic Law. Thomas E. Kellogg of Yale Law School sees this as an attempt to avoid political controversy, which aided in preserving the so-called "two-part referral test" established in Ng. That test, in the absence of any statutorily-specified mechanism to determine when the court should request interpretation from the NPCSC, established a high bar for such requests. He also praised the Chong decision for "aggressively protect[ing] the rights of the litigants involved". Yang Xiaonan analysed the CFA's reluctance to rely on extrinsic materials in Chong in terms of balance of power between the NPCSC and the CFA, as well as fairness to judicial review applicants: some documents which may aid in ascertaining the authentic intentions of the Basic Law's drafters are likely to be confidential and thus accessible only to the NPCSC, not to the CFA or to applicants. Excessive reliance on extrinsic materials could thus harm the authority and autonomy of the CFA. The CFA also stated, even where extrinsic materials may be considered in interpreting the Basic Law, courts should limit themselves to pre-enactment materials; Yang made analogies between the CFA's approach and the originalist approach to U.S. constitutional interpretation. He went on to analyse the CFA's actions in terms of the political climate in Hong Kong at the time: by emphasising the literalist tradition of common law, the CFA promoted predictability, a core value of the rule of law. As he stated, "if the CFA establishes advanced, mature and coherent methodologies, this may increase public support for the courts". Public support for Hong Kong courts puts pressure on the NPCSC, which as a political body rather than a judicial one takes into account the costs and ramifications of using its power of interpretation to overrule the CFA, including the possibility of damaging public confidence in the rule of law in Hong Kong. == References ==