LLB

The Chinese University of Hong Kong

Faculty of Law

LAWS1100 – Hong Kong Constitutional Law

TUTORIAL READING LIST & QUESTIONS

WEEK 4: CONSTITUTIONAL INTERPRETATION I

PRESCRIBED READING (please read these materials in the order listed below)

Article 158 and 159 of the Basic Law

Article 67 of the PRC Constitution

HKSAR v Ma Wai Kwan David [1997] HKLRD 761 [Read Chan CJ’s judgment (pp. 770-787)]

Ng Ka Ling v Director of Immigration (1999) 1 HKLRD 315 (“Ng Ka Ling 1”)

[Read Li CJ’s entire decision (starting on p. 12) except “The Provisional LegCo Issue” and “The
Birth Out of Wedlock Issue”]

Ng Ka Ling and Others v Director of Immigration (1999)1 HKLRD 577 (“Ng Ka Ling 2”)

The Interpretation of 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 [https://www.elegislation.gov.hk/hk/A106%21en.assist.pdf]

TUTORIAL QUESTIONS

a. True. Article 158(2) and 158(3)

b. False. 158(1), interpretation of this law shall be vested in the NPCSC, doesn’t limit to
a case being adjudicated by hk courts, mirrors art 67 of the PRC Constitution: NPCSC
has the power to interpret national laws
i. Only when hk courts request assistance  early proposal, not followed, the
NPCSC can interpret basic law anytime they want, while hk courts can only
interpret basic law when adjudicating cases
c. CFA. Article 158(3), through the CFA of the region, ‘before making their final
judgments which are not applicable’  implies CFA
d. Two issues, one within autonomy, one outside autonomy, must make judicial
reference? Maybe.
i. The court have to decide which provision is relevant, the main one that need
to be interpreted maybe under the authority of basic law
e. The NPCSC reversed the 4 applicants through its interpretation?
i. The CE scared a lot of people will come from mainland, the NPCSC then
overturned the decision
ii. The decision will not change for the applicants, only for future applicants
iii. The 4 applicants can exercise their right of abode
LLB

f. The NPCSC overturned the predominant provision test through its interpretation?
i. Ng ka ling 2 didn’t overturn the decision of NPCSC
ii. Predominant provision test  didn’t talk abt clearly, not necessarily
overturned
iii. the interpretation focuses much on the ratio of ng ka ling 1, did not focus on
question of jurisdiction
iv. in future cases, may say there’s problem with the test, but didn’t officially
overturn it

1. Do the HKSAR courts have the power to review acts of the NPC and NPCSC?

- Ms Li submits that the HKSAR courts have the jurisdiction and the obligation to examine and
interpret the Basic Law. Hence, they can examine the Basic Law and the acts of the NPC to
determine whether the NPC had properly established the Provisional Legislative Council and
whether that body conforms with the Basic Law and the NPC enactments.
- The courts can examine the decisions and acts to see if they are consistent with the basic policies
of the PRC as stated in the Joint Declaration.

- I would accept that the HKSAR courts cannot challenge the validity of the NPC Decisions or
Resolutions or the reasons behind them which set up the Preparatory Committee. Such decisions
and resolutions are the acts of the sovereign and their validity is not open to challenge by the
regional courts.
- Nor, in my view, can the HKSAR courts examine why the Preparatory Committee set up the
Provisional Legislative Council in exercising the authority and powers conferred on it by the NPC
to carry out the sovereign’s decisions and resolutions.
- However, I take the view that the HKSAR courts do have the jurisdiction to examine the existence
(as opposed to the validity) of the acts of the sovereign or its delegate.

2. Explain in your own words, the facts of Ng Ka Ling 1. On what basis did the HKSAR
government argue that the CFA should make a reference to the NPCSC? How did the
respondents counter this argument? What did the CFA decide on the issue of making a
reference?

- The appellants were Chinese nationals born on the mainland. They each had a parent
who was a hong kong permanent resident
- The director of immigration did not recognise their right of abode and arrested them
- One within the autonomy of hk, one within the central relationship
- The court did not referred to the NPCSC

- (a) the court is engaged in interpreting art.24 which, being a provision within the limits of
the Region’s autonomy, is not an excluded provision but; (b) it is arguable that art.22(4),
which on its own is an excluded provision, is relevant to the interpretation of art.24, then
the court is obliged to make a reference under art.158

- The predominant provision that they are interpreting is art.24, the very source of the
right which is sought to be enforced by the applicants in these appeals, does not have to
make a reference

- Duty to make ref if:

LLB

- (1) First, the provisions of the Basic Law in question: (a) concern affairs which are the
responsibility of the Central People's Government; or (b) concern the relationship
between the Central Authorities and the Region. That is, the excluded provisions. We
shall refer to this as "the classification condition".
- (2) Secondly, the Court of Final Appeal in adjudicating the case needs to interpret such
provisions (that is the excluded provisions) and such interpretation will affect the
judgment on the case. We shall refer to this as "the necessity condition."

- When there are two or more provisions, have the test, necessity condition not met in Ng
Ka Ling No.1
- Predominant provision test  since art.24 was the predominant provision, the one that
need to be interpreted for this case, for the result of the case, if within our autonomy, no
reference to the NPCSC
- If this test is applied, over time it increases/ decreases number of cases referred to
NPCSC?
 Decreases. The provision is within the autonomy, they will interpret themselves,
no need interpretation from NPCSC
- Art.158 lays down who can interpret the regional constitution
- We should only go to the NPCSC if the predominant provision is an excluded provision
- Ng ka ling very controversial, the government scared more people that falls under art.24,
cannot handle the sudden surge of population
- The PRC, criticized CFA on creating the predominant test

3. How did the HKSAR executive react to the CFA’s decision in Ng Ka Ling 1?
- HKSAR Chief Executive submitted report to PRC State Council, which asked the NPCSC
for an Interpretation.

4. What did the CFA say in Ng Ka Ling 2?

- The Court's judgment on 29 January 1999 did not question the authority of the Standing
Committee to make an interpretation under art.158 which would have to be followed by
the courts of the Region. The Court accepts that it cannot question that authority. Nor
did the Court's judgment question, and the Court accepts that it cannot question, the
authority of the National People's Congress or the Standing Committee to do any act
which is in accordance with the provisions of the Basic Law and the procedure therein.
- does not answer the question what if the npcsc acts outside the basic law

- did ng ka ling 2 changed anything in ng ka ling 1? CFA didn’t question the authority of
the NPCSC, yet unclear what is the ratio of ng ka ling 2
-

5. When should the CFA make judicial reference to the NPCSC under Art. 158 of the BL?

- (1) First, the provisions of the Basic Law in question: (a) concern affairs which are the
responsibility of the Central People's Government; or (b) concern the relationship
LLB

between the Central Authorities and the Region. That is, the excluded provisions. We
shall refer to this as "the classification condition".
- (2) Secondly, the Court of Final Appeal in adjudicating the case needs to interpret such
provisions (that is the excluded provisions) and such interpretation will affect the
judgment on the case. We shall refer to this as "the necessity condition."

6. What effect does the NPCSC’s Interpretation have on the applicants in Ng Ka Ling 1? What
effect does the Interpretation have on rule of law and constitutionalism in Hong Kong?

- Non-retrospectivity: “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.

- The court accepted that they cant question the authority, the court obey the interpretation
of NPCSC instead of their own decisions
- NPCSC made interpretations directly, makes the basic law less than the higher law, are
the final decisions of CFA is actually final? Stability of the legal system, a real destruction