Top court rejects abode bid by Hong Kong-born girl

PUBLISHED : Tuesday, 26 February, 2013, 12:15pm
UPDATED : Thursday, 29 August, 2013, 4:13am

The Court of Final Appeal on Tuesday refused an application by an eight-year-old girl born locally to mainlanders to join the right of abode challenge mounted by foreign domestic helpers.

Liang Wing-ki and her mother, Li Yinxian, worried that her right of abode would be affected after the government said it would request the top court to ask Beijing to clarify an interpretation relating to the right of abode of different categories of people including Chinese nationals born in Hong Kong.

She filed documents with the top court last week, applying to intervene in the appeal.

Making the application to join the case, Philip Dykes SC, for Liang, said: “The right and obligation of this type of persons are engaged but their voices will not be heard in court.”

But Chief Justice Geoffrey Ma Tao-li said: “We do not accede to your application. We feel that the points you seem to argue are adequately covered and will be adequately covered.”

Ma said the lawyers for the government and the domestic helpers filed “hundreds and hundreds of pages” of documents to the court that cover the arguments advanced by the girl’s lawyer.

It also became clear for the first time what, exactly, the government wanted the top court to refer to Beijing for an interpretation.

This came after Ma said he was not clear about the content of the request and asked government lawyers to clarify.

David Pannick QC, for the government, said it was Article 158 of the Basic Law that the government wanted the court to ask Beijing for an interpretation on, and not Article 24, which deals with the permanent residence.

Article 158 stipulates the duty and situation where the top court must seek an interpretation of the Basic Law from Beijing.

Pannick said the government would ask the court to refer to Beijing a question of whether a statement included in a 1999 Beijing interpretation, which did not constitute the main issue of that interpretation, was part of the interpretation and therefore binding on the court.

In that interpretation, the Standing Committee of the National People’s Congress said that the legislative intent of the Basic Law article relating to permanent residency was “reflected” in the opinions made by the Preparatory Committee of the Hong Kong Special Administrative Region in 1996.

That committee gave the opinion that children born in Hong Kong to Chinese nationals would have right of abode only if at the time of their birth, at least one of their parents was living lawfully in Hong Kong. It also said foreigners allowed to stay in Hong Kong under a government policy would not be regarded as “ordinarily residing” in Hong Kong – one of the requirements that non-Chinese must satisfy to acquire permanent residency.

In a 2001 case, the top court ruled that the statement in question was not part of the interpretation, a ruling that was then agreed to by the government. As a result, the top court ruled that all children born in Hong Kong to Chinese nationals have the right of abode, regardless of their parents' status.

Pannick said the government would submit a draft question of the interpretation to court on Wednesday.