Hong Kong Legal System

By Dr. Martin Lai (2025)

 Topic 4
Sources of Law
 Sources of Law
• Where do lawyers look to when they wish to ascertain what the law is on a
particular matter?
• Sources of law = Origins of laws

• In Hong Kong:
1. Basic Law
2. Legislation
3. Case Law and Common Law
4. Chinese Customary Law
5. National Laws of the PRC
1. The Basic Law
 Joint Declaration Annex I & The Basic Law
• The National People's Congress of the People's Republic of China shall enact
and promulgate a Basic Law of the Hong Kong Special Administrative Region
of the People's Republic of China […] in accordance with the Constitution of
the People's Republic of China,
• stipulating that after the establishment of the Hong Kong Special
Administrative Region the socialist system and socialist policies shall not be
practised in the Hong Kong Special Administrative Region
• and that Hong Kong's previous capitalist system and life-style shall remain
unchanged for 50 years.

• i.e. One Country, Two Systems

From topic 3
 Basic Law
• 1985: Formed
– Hong Kong Basic Law Drafting Committee  drafted the Basic Law
• 23 members from HK
• 36 members from the Mainland
– Hong Kong Basic Law Consultative Committee  canvassed views
• Members purely from HK
• April 1988: Published first draft (then 1st public consultation)
• February 1989: Published second draft (then 2nd public consultation)
• 4 April 1990: Adopted by the 7th National People’s Congress (NPC) of the PRC
• 1 July 1997: Came into effect
 Legal Validity of the Basic Law
• The Constitution of the People's Republic of China stipulates in Article 31:
– that the state may establish special administrative regions when
necessary. The systems to be instituted in special administrative regions
shall be prescribed by laws enacted by the National People's Congress in
the light of the specific conditions.

PRC Constitution (i.e., Rule of recognition)

Basic Law (i.e., mini-constitution)

Legislative Council

Prevention of Bribery Ordinance (many other ordinances …)

 Basic Law
• A written (mini-)constitution  composed of the rules and practices which
set out the system of government for the HKSAR

• Consists of the following sections -

1. The body of the Basic Law
• nine chapters with 160 articles;
2. Annex I
• the method for the selection of the Chief Executive of the HKSAR;
3. Annex II
• the method for the formation of the Legislative Council of the HKSAR
and its voting procedures; and
4. Annex III
• the national laws to be applied in the HKSAR.
 The body of the Basic Law (Nine chapters)
• Chapter I General Principles
• Chapter II Relationship between the Central Authorities and the Hong
Kong Special Administrative Region
• Chapter III Fundamental Rights and Duties of the Residents
• Chapter IV Political Structure
• Chapter V Economy
• Chapter VI Education, Science, Culture, Sports, Religion, Labour and Social
Services
• Chapter VII External Affairs
• Chapter VIII Interpretation and Amendment of the Basic Law
• Chapter IX Supplementary Provisions
 Laws in Force in HK
• Chapter II – Article 18
– The laws in force in the Hong Kong Special Administrative Region shall be
this Law, the laws previously in force in Hong Kong as provided for in
Article 8 of this Law, and the laws enacted by the legislature of the
Region.
– National laws shall not be applied in the Hong Kong Special
Administrative Region except for those listed in Annex III to this Law. The
laws listed therein shall be applied locally by way of promulgation or
legislation by the Region. […]

• What are “laws previously in force in HK” ?  go to article 8 of the Basic Law
 Laws in Force in HK
• Chapter I – Article 8:
– The laws previously in force in Hong Kong, that is, the common law, rules
of equity, ordinances, subordinate legislation and customary law shall be
maintained, except for any that contravene this Law, and subject to any
amendment by the legislature of the Hong Kong Special Administrative
Region.
 Interpretation of the Basic Law
• Basic Law  written text  could have different meanings
• Who has the power to authoritatively interpret the meaning of the legal
text?
– Vary from jurisdiction to jurisdiction
– In many common law systems  courts
– In mainland China  Standing Committee of the National People's
Congress (NPCSC)
– In HK  hybrid system
 Interpretation of the Basic Law
• Chinese Government Structure:

NPC  around 3,000 members

NPCSC  175 members Source: NPC of China
 Interpretation of the Basic Law
• Chapter VIII - Article 158
– The power of interpretation of this Law shall be vested in the Standing
Committee of the National People's Congress.
– The Standing Committee of the National People's Congress shall
authorize the courts of the Hong Kong Special Administrative Region to
interpret on their own, in adjudicating cases, the provisions of this Law
which are within the limits of the autonomy of the Region.
 Interpretation of the Basic Law
• Chapter VIII - Article 158 (continued)
– The courts of the Hong Kong Special Administrative Region may also
interpret other provisions of this Law in adjudicating cases. However, if
the courts of the Region, in adjudicating cases, need to interpret the
provisions of this Law concerning affairs which are the responsibility of
the Central People's Government, or concerning the relationship
between the Central Authorities and the Region, and if such
interpretation will affect the judgments on the cases, the courts of the
Region shall, before making their final judgments which are not
appealable, seek an interpretation of the relevant provisions from the
Standing Committee of the National People's Congress through the Court
of Final Appeal of the Region. […]
 Interpretation of the Basic Law
• The NPCSC has interpreted provisions in the Basic Law on five occasions:
Year Related to Basic Law

1999 Right of abode in HK arts. 22(4),

24(2) & 24(3)

2004 Election of the Chief Executive and art. 7 of annex I

members of the Legislative Council & art. 3 of annex II
2005 The length of term of office of a art. 53
replacement Chief Executive
2011 State immunity arts. 13 & 19

2016 Oath-taking for office art. 104

Source: The Five Cases of HKSAR Basic Law Interpretations by the PRC NPCSC in 1999,
2004, 2005, 2011 and 2016, 50 Chinese Law & Government 10 (2018),
[Link]
 Interpretation of the Basic Law
• Whether a matter is brought before the courts or not, the NPCSC would have
the power to interpret any provision of the Basic Law:
– On its own initiative or
– On request from the Chief Executive of the HKSAR (based on arts. 43 and
48(2) of the Basic Law)
Year Related to Initiated by*

1999 Right of abode in HK Chief Executive of the HKSAR

2004 Election of the Chief Executive and NPCSC

members of the Legislative Council
2005 The length of term of office of a Chief Executive of the HKSAR
replacement Chief Executive
2011 State immunity Court of Final Appeal

2016 Oath-taking for office NPCSC

 Interpretation of the Basic Law
• In the 2016 oath-taking case, the Court of Final Appeal (CFA) summarised
that:
– The NPCSC’s power to interpret the Basic Law derives from article 67(4)
of the Constitution of the PRC and is provided for expressly in the Basic
Law itself in article 158(1) and is in general and unqualified terms
– The exercise of interpretation of the Basic Law under PRC law is one
conducted under a different system of law to the common law system,
and includes legislative interpretation which can clarify or supplement
laws
– An interpretation of the Basic Law issued by the NPCSC is binding on HK
courts
– Such NPCSC interpretations declare what the law is and has always been
since the coming into effect of the Basic Law on 1 July 1997
 Amendment of the Basic Law
• Chapter VIII - Article 159
– The power of amendment of this Law shall be vested in the National
People's Congress.
– The power to propose bills for amendments to this Law shall be vested in
the Standing Committee of the National People's Congress, the State
Council and the Hong Kong Special Administrative Region. […]
– No amendment to this Law shall contravene the established basic
policies of the People's Republic of China regarding Hong Kong.
2. Legislation
 Sources of Law
• Where do lawyers look to when they wish to ascertain what the law is on a
particular matter?
• Sources of law = Origins of laws

• In Hong Kong:
Post 1997 legislation
1. Basic Law
2. Legislation English
3. Common law & Equity Pre-1997 legislation
HK
4. Chinese Customary Law
5. National Laws of the PRC
 Definition
• Legislation / Statute law : law made by or under the authority of the
legislature
Type England Hong Kong Hong Kong
Pre 1997 Post 1997
Primary Act Some English statues Ordinance
legislation (Crown + Parliament) applied in HK due to (enacted by
the Application of Legislative Council)
Ordinance English Law
(Crown alone) Ordinance (1966)

Ordinance
(enacted by local
legislature pursuant
to Letters Patent)

Secondary Legislations made by authority who has been given power by the legislature
legislation (e.g. rules / regulations / by-laws / orders / notices / proclamations/
instruments made under the authority of a primary legislation)
 Application of English Law Ordinance
(1966)
• Supreme Court Ordinances (1844, 1845, 1846 & 1873):
– Used 1843 as a cut-off date
– Did not draw distinction between statutory and common law English
rules

• Application of English Law Ordinance (1966):

– English rules of common law and equity continue to operate in HK
(irrespective of the date of their formation)
– Pre-1843 English Acts of Parliament would only apply if contained in the
“schedule”
– Post-1843 English Acts of Parliament would only apply if specifically
applicable to HK
From topic 3
 Hong Kong Legislation Post-1997
• Basic Law – Chapter II – Article 18
– The laws in force in the Hong Kong Special Administrative Region shall be
this Law, the laws previously in force in Hong Kong as provided for in
Article 8 of this Law, and the laws enacted by the legislature of the
Region.

Post 1997 legislation

Legislation English
Pre-1997 legislation
HK
 Hong Kong Legislation Post-1997
• One source of law

Type England Hong Kong Hong Kong

Pre 1997 Post 1997
Primary Act Some English statues Ordinance
legislation (Crown + Parliament) applied in HK due to (enacted by
the Application of Legislative Council)
Ordinance English Law
(Crown alone) Ordinance (1966)

Ordinance
(enacted by local
legislature pursuant
to Letters Patent)

Secondary Subordinate legislations Subordinate Subordinate

legislation legislations legislations
 Pre-1997 legislation
• 23 February 1997, NPCSC decided that:
– “provisions [in ordinance and subordinate legislation previously in force]
referring to any English law may continue to be applicable by reference
as a traditional arrangement pending their amendment by the HKSAR,
provided that they are not prejudicial to the sovereignty of the PRC and
do not contravene the provisions of the Basic Law”
• Basic Law – Chapter II – Article 18
– The laws in force in the Hong Kong Special Administrative Region shall be
this Law, the laws previously in force in Hong Kong as provided for in
Article 8 of this Law, and the laws enacted by the legislature of the
Region.
• Basic Law – Chapter I – Article 8:
– The laws previously in force in Hong Kong, that is, the common law, rules
of equity, ordinances, subordinate legislation and customary law shall be
maintained, except for any that contravene this Law, and subject to any
amendment by the legislature of the Hong Kong Special Administrative
Region.
 Pre-1997 Local Legislation “Not adopted” as being
contrary to basic law
• Another source of law

Type England Hong Kong Hong Kong

Pre 1997 Post 1997
Primary Act Some English statues Ordinance
legislation (Crown + Parliament) applied in HK due to (enacted by
the Application of Legislative Council)
Ordinance English Law
(Crown alone) Ordinance (1966)

Ordinance
(enacted by local
legislature pursuant
to Letters Patent)

Secondary Subordinate legislations Subordinate Subordinate

legislation legislations legislations
 Localization of Pre-1997 English legislation
• Might be a source of law

Type England Hong Kong Hong Kong

Pre 1997 Post 1997
Primary Act Some English statues Ordinance
legislation (Crown + Parliament) applied in HK due to (enacted by
the Application of Legislative Council)
Ordinance English Law
(Crown alone) Ordinance (1966) Some require
localization; enacted
as HK Ordinances
Ordinance
(enacted by local
legislature pursuant
to Letters Patent)

Secondary Subordinate legislations Subordinate Subordinate

legislation legislations legislations
 Adoption of Pre-1997 English legislation
• Basic Law – Chapter I – Article 8:
– The laws previously in force in Hong Kong, that is, the common law, rules
of equity, ordinances, subordinate legislation and customary law shall be
maintained, except for any that contravene this Law, and subject to any
amendment by the legislature of the Hong Kong Special Administrative
Region.

• Pre-1997 legislation contravenes basic law:

– repeal (e.g. Application of English Law Ordinance (1966)) or
– amend  adopt
3. Common law & Equity
 Diff. meaning of “Common Law”
• John Forrest Dillon (1831 – 1914) from the U.S.
• “The expression, "the common law," is used in various senses: (a) sometimes
in distinction from statute law; (b) sometimes in distinction from equity law;
(c) sometimes in distinction from the Roman or civil law […]”

common Law civil Law

common law Statute law

common law equity

From topic 2
 Joint Declaration & Laws Previously in force
• The Joint declaration itself
– The Hong Kong Special Administrative Region will be vested with
executive, legislative and independent judicial power, including that of
final adjudication. The laws currently in force in Hong Kong will remain
basically unchanged.
• Joint declaration - Annex I
– After the establishment of the Hong Kong Special Administrative Region,
the laws previously in force in Hong Kong (i.e. the common law, rules of
equity, ordinances, subordinate legislation and customary law) shall be
maintained, save for any that contravene the Basic Law and subject to
any amendment by the Hong Kong Special Administrative Region
legislature.

From topic 3
 Sources of Law in HK
• Basic Law – Chapter II – Article 18
– The laws in force in the Hong Kong Special Administrative Region shall be
this Law, the laws previously in force in Hong Kong as provided for in
Article 8 of this Law, and the laws enacted by the legislature of the
Region.
• Basic Law – Chapter I – Article 8:
– The laws previously in force in Hong Kong, that is, the common law, rules
of equity, ordinances, subordinate legislation and customary law shall be
maintained, except for any that contravene this Law, and subject to any
amendment by the legislature of the Hong Kong Special Administrative
Region.
 Application of English Law Ordinance
(1966)
• Supreme Court Ordinances (1844, 1845, 1846 & 1873):
– Used 1843 as a cut-off date
– Did not draw distinction between statutory and common law English
rules

• Application of English Law Ordinance (1966):

– English rules of common law and equity continue to operate in HK
(irrespective of the date of their formation)
– Pre-1843 English Acts of Parliament would only apply if contained in the
“schedule”
– Post-1843 English Acts of Parliament would only apply if specifically
applicable to HK
From topic 3
 Common Law & Equity not Frozen on 1st
July 1997
• Article 8 of Basic Law provides for the continue application of the common
law as it stood at 30 June 1997
• But common law that applies today is not frozen as at the date of the
handover, because:
– The operation of the common law has always involved development and
extension of the law by the courts and
– The Court of Final Appeal (CFA) can overturn previous decisions of
English Courts and its own decisions
 Precedents from other jurisdictions
• Basic Law – Chapter IV – Article 84:
– The courts of the Hong Kong Special Administrative Region shall
adjudicate cases in accordance with the laws applicable in the Region as
prescribed in Article 18 of this Law and may refer to precedents of other
common law jurisdictions.
• may = non binding on HK courts; a persuasive source

• Basic law:
– Does not give post-1997 English judicial statements greater status than
those in other common law jurisdictions (A Solicitor v The Law Society of
HK)
• In practice:
– Judges tend to give greater weight to English court judgements, perhaps
because:
• Such decisions more readily relate to issues argued before the HK
courts or
• The Anglo-centric nature of the legal education of most HK judges
4. Chinese Customary Law
 Chinese Customary Law
• After British occupation in mid of 19th century, some “Chinese law and
custom” remained:
– Chinese Imperial Codes + Local customary law
– Example 1 (Before 1971):
• In 1957, “[d]uring the illness of the original wife, Li Wanhua, Stanley
Ho (何鴻燊) married another wife in accordance with the laws of the
Qing Dynasty, who was the second wife, Lan Qiongying (藍瓊瓔).”
– Example 2 (Before 1995):
• In the absent of a will, land properties of a deceased will be passed in
the male line
• Legislation amendments:
– Marriage Reform Ordinance (1971)  On or after 1971, no man may take
a concubine
– New Territories Land (Exemption) Ordinance  abolished the above
“male line” only custom
 Sources of Law in HK
• Basic Law – Chapter II – Article 18
– The laws in force in the Hong Kong Special Administrative Region shall be
this Law, the laws previously in force in Hong Kong as provided for in
Article 8 of this Law, and the laws enacted by the legislature of the
Region.
• Basic Law – Chapter I – Article 8:
– The laws previously in force in Hong Kong, that is, the common law, rules
of equity, ordinances, subordinate legislation and customary law shall be
maintained, except for any that contravene this Law, and subject to any
amendment by the legislature of the Hong Kong Special Administrative
Region.
 Chinese Customary Law
• Article 8 of the Basic Law does not use the term “Chinese law and custom”
– “Chinese Imperial Codes” is excluded from operation in HKSAR
• The customary law surviving in HK on 30 June 1997 almost exclusively affects
family law generally and land in the New Territories
– But very little family law according to traditional concepts now exists
• Today:
– The main area of Chinese customary law which is still relevant deals with
land law in the New Territories (e.g., related to small houses in the New
Territories)
5. National Laws of the
PRC
 Article 18 of the Basic Law (full text)
• The laws in force in the Hong Kong Special Administrative Region shall be this Law,
the laws previously in force in Hong Kong as provided for in Article 8 of this Law, and
the laws enacted by the legislature of the Region.
• National laws shall not be applied in the Hong Kong Special Administrative Region
except for those listed in Annex III to this Law. The laws listed therein shall be applied
locally by way of promulgation or legislation by the Region.
• The Standing Committee of the National People's Congress may add to or delete from
the list of laws in Annex III after consulting its Committee for the Basic Law of the
Hong Kong Special Administrative Region and the government of the Region. Laws
listed in Annex III to this Law shall be confined to those relating to defence and
foreign affairs as well as other matters outside the limits of the autonomy of the
Region as specified by this Law.
• In the event that the Standing Committee of the National People's Congress decides
to declare a state of war or, by reason of turmoil within the Hong Kong Special
Administrative Region which endangers national unity or security and is beyond the
control of the government of the Region, decides that the Region is in a state of
emergency, the Central People's Government may issue an order applying the
relevant national laws in the Region.
 Annex III
When Basic Law came into effect:
• Resolution on the Capital, Calendar, National Anthem and National Flag of
the People's Republic of China
• Resolution on the National Day of the People's Republic of China
• Order on the National Emblem of the People's Republic of China Proclaimed
by the Central People's Government Attached: Design of the national
emblem, notes of explanation and instructions for use
• Declaration of the Government of the People's Republic of China on the
Territorial Sea
• Nationality Law of the People's Republic of China
• Regulations of the People's Republic of China Concerning Diplomatic
Privileges and Immunities
 Annex III
Added on 1 July 1997:
• Law of the People's Republic of China on the National Flag
• Law of the People's Republic of China on the National Emblem
• Law of the People’s Republic of China on the Territorial Sea and the
Contiguous Zone
• Law of the People’s Republic of China on the Garrisoning of the Hong Kong
Special Administrative Region
• Regulations of the People’s Republic of China concerning Consular Privileges
and Immunities
 Annex III
Added after 1 July 1997:
• Law of the People's Republic of China on the Exclusive Economic Zone and
the Continental Shelf
• Law of the People's Republic of China on the National Anthem
• Law of the People's Republic of China on Safeguarding National Security in the Hong
Kong Special Administrative Region
 Using National Security Law as an example
Article 23 of the HKSAR’s Basic Law:
• “The Hong Kong Special Administrative Region shall enact laws on its own to prohibit
any act of treason, secession, sedition, subversion against the Central People's
Government, or theft of state secrets, to prohibit foreign political organizations or
bodies from conducting political activities in the Region, and to prohibit political
organizations or bodies of the Region from establishing ties with foreign political
organizations or bodies.”
 Using National Security Law as an example
20 Dec 1999: The handover of Macau from the Portuguese Republic to the People’s
Republic of China
Macau’s Basic Law article 23:
• “The Macao Special Administrative Region shall enact laws, on its own, to prohibit
any act of treason, secession, sedition, subversion against the Central People's
Government, or theft of state secrets, to prohibit foreign political organizations or
bodies from conducting political activities in the Region, and to prohibit political
organizations or bodies of the Region from establishing ties with foreign political
organizations or bodies.”

20 Dec 99 Feb 09
Macau Handover Macau passed LSNS
 Using National Security Law as an example
• The HK government tried to implement Article 23 and introduced a National Security
Bill in the Legislative Council in 2003.

• But failed to obtain the endorsement of the LegCo.

• The Chinese mainland introduced its first National Security Law in 1993 (superseded
by a newer version in 2015).

• If the 2003 Bill were passed in HKSAR, then there would be different national security
regimes under one country in China

1 July 97 2003
HK Handover First attempt
 Using National Security Law as an example
28 May 2020: NPC made the Decision of the National People’s Congress on Establishing
and Improving the Legal System and Enforcement Mechanisms for the Hong Kong Special
Administrative Region to Safeguard National Security (hereinafter the Decision)

Confirmed the principle of high degree of autonomy.

Authorized the NPCSC to enact a National Security Law for HKSAR

Set out the scope of its authorization to the NPCSC with regard to the National Security
Law for HKSAR (i.e., prohibits four crimes)

1 July 97 2003 May 2020

HK Handover First attempt NPC’s decision
 Using National Security Law as an example
• 30 June 2020: The NPCSC passed the Law of the People’s Republic of China on
Safeguarding National Security in the Hong Kong Special Administrative Region
(hereinafter NSL)
• Added to Annex III of HKSAR’s Basic Law
• Prohibits: (1) secession, (2) subversion, (3) terrorist activities and (4) collusion with a
foreign country or with external elements to endanger national security

1 July 97 2003 May 2020 June 2020

HK Handover First attempt NPC’s decision NPCSC passed NSL
 Using National Security Law as an example
Article 65 of the NSL:
“The NPCSC has the ultimate authority to interpret the National Security Law.”

In HKSAR v Lai Chee Ying (2021), the Court of Final Appeal of the HKSAR held that:
“‘the legislative acts of the NPC and NPCSC leading to the promulgation of the NSL as a
low of the Hong Kong SAR, done in accordance with the provisions of the Basic Law and
the procedure therein, are not subject to review on the basis of any alleged
incompatibility as between the NSL and the Basic Law or the ICCPR as applied to Hong
Kong.’ By ‘the ICCPR as applied to Hong Kong’, it referred to the BORO: The courts have
accepted that ‘we have decided that there is no power to hold any provision of the NSL
to be unconstitutional or invalid as incompatible with the Basic Law and Bill of Rights.’”

1 July 97 2003 May 2020 June 2020

HK Handover First attempt NPC’s decision NPCSC passed NSL
 Using National Security Law as an example
In Mar 2024, the HKSAR government attempted to implement Article 23 of the Basic Law
again, and introduced the Safeguarding National Security Bill

Passed by the LegCo, and the Safeguarding National Security Ordinance took effect in the
same month

This is a local law of HK rather than a national law

There are two national security laws being implemented in the HKSAR

1 July 97 2003 May 2020 June 2020 Mar 2024

HK Handover First attempt NPC’s decision NPCSC passed NSL HKSAR passed NSO
 6. An Example of the
Interpretation of the Basic
Law: The Right of Abode Case
(1999)
 Timeline
19 Dec 1984 9 July 97
Signed the 26 Jun 99
Amended
Joint Interpretation
Immigration
Declaration by NPCSC
Ordinance Jan 99
Court of Final
1 July 97 Appeal made a
Handover decision

1982
Formal ? July 97 10 July 97 Hearings
negotiations on Ng Ka Ling Ng Ka Ling
the future of HK 10 Aug 96 arrived HK sued
began
Fourth Plenary Director of
& Meeting of the Immigration 21 May 99
Preparatory Chief Executive
Introduced the Committee for requested the central
“one-way the HKSAR of government to
permit” system the NPC interpret the Basic Law
 Permit for Proceeding to HK and Macao
• Before 1982: Many people from the mainland entered HK illegally
• 1982:
– Formal negotiations on the future of HK began  leading to the Sino-British Joint
Declaration in 1984
– Both the Chinese and British governments wanted to control the number of
immigrants  for mainlanders who wanted to migrate to HK, they had to obtain
a “Permit for Proceeding to Hong Kong and Macao” issued by the mainland
government
– The “Permit for Proceeding to Hong Kong and Macao” is also known as the “one-
way permit (單程證)”.
– Quota = 75 permits per day

“Three young illegal immigrants from China caught by a Hong Kong marine police patrol in Deep Bay, in November,
1979. Their raft is made of inflatable plastic cushions sewn together and covered with plastic bags.” Source: SCMP
Permit for Proceeding to HK and Macao

VS

One-way permit (单程证) Two-way permit (双程证)

Picture source: Baidu

 Sino-British Joint Declaration
• 19 Dec 1984: Signed the Joint Declaration
• Annex I Paragraph 14:
Right of Abode
• The following categories of persons shall have the right of abode in the Hong Kong
Special Administrative Region, and, in accordance with the law of the Hong Kong
Special Administrative Region, be qualified to obtain permanent identity cards issued
by the Hong Kong Special Administrative Region Government, which state their right
of abode:
– all Chinese nationals who where born or who have ordinarily resided in Hong Kong before
or after the establishment of the Hong Kong Special Administrative Region for a continuous
period of 7 years or more, and persons of Chinese nationality born outside Hong Kong of
such Chinese nationals;
– all other persons who have ordinarily resided in Hong Kong before or after the
establishment of the Hong Kong Special Administrative Region for a continuous period of 7
years or more and who have taken Hong Kong as their place of permanent residence before
or after the establishment of the Hong Kong Special Administrative Region, and persons
under 21 years of age who were born of such persons in Hong Kong before or after the
establishment of the Hong Kong Special Administrative Region;
– any other persons who had the right of abode only in Hong Kong before the establishment
of the Hong Kong Special Administrative Region.
 Sino-British Joint Declaration
• Annex I Paragraph 14 (continued):
Passports etc
• The Central People's Government shall authorise the Hong Kong Special
Administrative Region Government to issue, in accordance with the law, passports of
the Hong Kong Special Administrative Region of the People's Republic of China to all
Chinese nationals who hold permanent identity cards of the Hong Kong Special
Administrative Region, and travel documents of the Hong Kong Special Administrative
Region of the People's Republic of China to all other persons lawfully residing in the
Hong Kong Special Administrative Region. The above passports and documents shall
be valid for all states and regions and shall record the holder's right to return to the
Hong Kong Special Administrative Region.

Notes:
• The definitions were broad
• Later became Article 24 of the Basic Law
 Fourth Plenary Meeting of the Preparatory
Committee for the HKSAR of the NPC
• On 10 Aug 1996, the Fourth Plenary Meeting of the Preparatory Committee of the
HKSAR of the National People’s Congress adopted the “Opinions on the
Implementation of the Second Paragraph of Article 24(2) of the Basic Law of the Hong
Kong Special Administrative Region of the People’s Republic of China”

• The Opinions state that “基本法第二十四条第二款第（一）项规定的在香港出生的中国公民

，是指父母双方或一方合法定居在香港期间所生的子女，不包括非法入境、逾期居留或在
香港临时居留的人在香港期间所生的子女。”
• It means that, under article 24(2) of the basic law, “persons of Chinese nationality born in Hong
Kong” refer to children born while both parents or one of the parents is legally settled in Hong
Kong (i.e. either of their parent must be legally settled in HK at the time of their birth)
 The Handover on 1st July 1997
Basic Law Article 24
• “Residents of the Hong Kong Special Administrative Region ("Hong Kong residents")
shall include permanent residents and non-permanent residents.
• The permanent residents of the Hong Kong Special Administrative Region shall be:
1. Chinese citizens born in Hong Kong before or after the establishment of the
Hong Kong Special Administrative Region;
2. Chinese citizens who have ordinarily resided in Hong Kong for a continuous
period of not less than seven years before or after the establishment of the Hong
Kong Special Administrative Region;
3. Persons of Chinese nationality born outside Hong Kong of those residents listed
in categories (1) and (2);
[…]
• The above-mentioned residents shall have the right of abode in the Hong Kong
Special Administrative Region and shall be qualified to obtain, in accordance with the
laws of the Region, permanent identity cards which state their right of abode.
• The non-permanent residents of the Hong Kong Special Administrative Region shall
be persons who are qualified to obtain Hong Kong identity cards in accordance with
the laws of the Region but have no right of abode.”
 The Handover on 1st July 1997
• Amended the Immigration Ordinance on 1st July 1997

• Immigration (Amendment) (No 2) Ordinance:

– restricted permanent residency of persons born outside Hong Kong to "[P]ersons
of Chinese nationality born outside Hong Kong to a parent who is a permanent
resident of the Hong Kong Special Administrative Region [and also a Chinese
national], if the parent had the right of abode in Hong Kong at the time of the
birth of the person.”

• In the week following the handover, around 400 people (who entered HK without a
one-way permit) approached the Immigration Department and requested the
Department to grant them permanent residency based on Article 24 of the Basic Law

• The government refused to do so because it worried that many children born outside
of HK (e.g., born in the mainland) of HK permanent residents would claim permanent
residency based on Article 24 as well, and could enter HK without a one-way permit.
 9th July 1997
• HK further amended the Immigration Ordinance

• Immigration (Amendment) (No 3) Ordinance:

• "introduced the [Certificate of Entitlement] Scheme, provides that a person's status
as a permanent resident of the HKSAR under Article 24(2)(3) of the Basic Law can
only be established by his/her holding, amongst other things, a valid travel document
with a valid C of E affixed to it. In this connection, persons who were born in
Mainland China to Hong Kong residents and claim that they have the right of abode in
the HKSAR have to apply for a valid travel document and C of E before being admitted
to Hong Kong.”

• I.e. persons who were born in the mainland to HK residents have to first obtain a
Certificate of Entitlement  then seek the Chinese government to issue and attach a
one-way permit to his/her Certificate of Entitlement

• It also stated that This legislation has retrospective effect, as if it came into effect on
July 1, 1997  i.e., did not only affect people who entered HK after 9 July 97, but also
those who entered between 1 July and 9 July 97.
 Basic Law Article 22
• The requirement of one-way permit has its legal basis in Basic Law article 22:

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

• But conflicted with Basic Law article 24?

 Ng Ka Ling v Director of Immigration
• Ng Ka Ling (吳嘉玲) was born in the mainland
• Ng Ka Ling’s father was an HK permanent resident and her mother was a Mainlander
• In 1997, Ng Ka Ling was around 10 years old
• On 1st July 1997, the father helped Ng Ka Ling to enter HK “illegally” (i.e., without a
one-way permit)  the father tried to obtain permanent residency for Ng Ka Ling but
failed
• On 9th July 1997, HK amended its Immigration Ordinance (i.e., became Immigration
(Amendment) (No 3) Ordinance)
• On 10th July 1997, the father represented Ng Ka Ling and filed an application for
judicial review in the Court of First Instance, claiming that a recent amendment to the
Immigration Ordinance was unconstitutional (i.e., contravened with the Basic Law)

Source: TVB
 Court of Final Appeal
• Jan 1999, among other things, the CFA held that:
– The applicants (i.e., including Ng Ka Ling) were permanent residents of
HK
– “people from other parts of China” under Article 22 of the Basic Law
does NOT include children of HK residents (i.e., these children are not
subject to Article 22  hence they could enter HK without approval)
– Whether the parents of each applicant had obtained permanent resident
status in HK at the time of the applicants’ birth, and whether the
applicants have reached adulthood, are irrelevant to the applicants’
permanent resident status.
 Requested an interpretation of the Basic Law
• 21 May 99 - Chief Executive TUNG Chee-Hwa requested the central government to
interpret article 24 of the Basic Law

Source: China-US Focus

• The Secretary for Justice of HK Elsie LEUNG Oi-Sie commented that:
• “Under a common law system, there are generally two ways by which a ruling by the highest
court of appeal can cease to be good law. One is by a subsequent decision by the court itself in
another case; and the other is by a legislative amendment. In the case of Hong Kong, there is a
third possible way. If the court ruling involves an interpretation of provisions in the Basic Law,
the Standing Committee of the National People's Congress has the power to give its
interpretation of those provisions. This is provided for in Article 158 of the Basic Law. If the
Standing Committee interprets the Basic Law in a way that differs from the interpretation given
by the Court of Final Appeal, the court's interpretation will cease to be good law.”

Source: SCMP
 The NPCSC’s interpretation
• 26 Jun 99 - Interpretation by NPCSC
• “In view of the fact that the issue raised in the proposal concerns the interpretation
of the relevant articles 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 made on 29 January 1999, that
these provisions concern affairs which are the responsibility of the Central Authorities
and the relationship between the Central Authorities and the Hong Kong Special
Administrative Region, that the Court of Final Appeal, before making its judgment,
failed to seek an interpretation of the provisions from the Standing Committee of the
National People’s Congress in accordance with the provisions of Paragraph 3 in Article
158 of the Basic Law of the Hong Kong Special Administrative Region of the People’s
Republic of China and that the interpretation of the Court of Final Appeal is not in
conformity with the original legislative intent, the Standing Committee of the
National People’s Congress, after consulting its Committee for the Basic Law of the
Hong Kong Special Administrative Region, decides to give the following
interpretations to the relevant provisions in the Basic Law of the Hong Kong Special
Administrative Region of the People’s”
 The NPCSC’s interpretation
• 26 Jun 99 - Interpretation by NPCSC (continued)

• Article 22 applies to children of permanent residents of HK born in the mainland  it

is fine to require them to obtain a one-way permit before entering into HK
 The NPCSC’s interpretation
• 26 Jun 99 - Interpretation by NPCSC (continued)
• Regarding article 24(2):
• ““Persons of Chinese nationality born outside Hong Kong of those residents
listed in categories (1) and (2)” mean that those persons, at the time of their
birth, no matter whether they were born before or after the establishment of
the Hong Kong Special Administrative Region, whose parents or whose
fathers or whose fathers or mothers are Chinese citizens as provided for in
Category (1) or Category (2) of Paragraph 2 in Article 24 of the Basic Law of
the Hong Kong Special Administrative Region.”

• Made this interpretation based on legislative intent (i.e., the purposive approach of
statutory interpretation)  referred to the “Opinions on the Implementation of the
Second Paragraph of Article 24(2) of the Basic Law of the Hong Kong Special
Administrative Region of the People’s Republic of China” issued on 10 Aug 1996
– We covered this a few slides ago
 After the interpretation
• Article 158(3) of the Basic Law”
• “[…] 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.”

• i.e., Although NPCSC’s interpretation overturned the CFA’s decision in Ng Ka Ling v

Director of Immigration, it did not affect Ng Ka Ling’s permanent residency in HK

• Following the NPCSC’s interpretation, HK Legislative Council further amended the

Immigration Ordinance to encapsulate the interpretation.
 References
• Stefan Lo et al., The Hong Kong Legal System (2nd ed. 2020)
• Michael J. Fisher, Text, Cases, and Commentary on the Hong Kong Legal
System (2019)
• Peter Wesley-Smith, An Introduction to the Hong Kong Legal System (3rd ed.
1998)
• Constitutional and Mainland Affairs Bureau, The Basic Law (2007).
• 陳弘毅, 香港法概論（第三版 ）(2015)