Chong Fung Yuen: Hong Kong’s Right-of-Abode Dispute over Children Born to Non-Permanent Residents

In episode 18 of Reasoned Talk , we discussed Ng Ka Ling and Chan Kam Nga. Those cases concerned the residence entitlements of mainland-born children of Hong Kong permanent residents—the children covered by the third category of permanent residents. In 1999, the Standing Committee of the National People’s Congress (NPCSC) issued its first interpretation of the Basic Law in response to the disputes arising from those cases. It became a defining event in Hong Kong’s early post-handover history.

Alongside these children was another group, smaller in number but even more controversial, commonly called shuangfei children: Chinese children born in Hong Kong whose parents are both non-permanent residents of Hong Kong. As more mainland women travelled to Hong Kong to give birth, the term became increasingly prominent in public debate.

The question was this: if both parents were only short-term visitors, could their child become a Hong Kong permanent resident simply by being born there and holding Chinese nationality? Article 24(2)(1) of the Basic Law contained no restriction based on the parents’ status, but the Immigration Ordinance then in force imposed an additional condition. That conflict ultimately came before the courts in the Chong Fung Yuen case.

A Grandfather’s Fight for His Grandson to Stay

In September 1997, less than three months after the handover, a mainland couple arrived in Hong Kong on Two-way Permits. Their son, Chong Fung Yuen, was born there on 29 September. His grandfather, Chong Yiu Shing, had settled in Hong Kong in 1978, but neither parent had the right of abode. They were visiting relatives. Their Two-way Permits—travel permits for mainland residents visiting Hong Kong and Macao—authorised temporary travel, rather than settlement in Hong Kong.

When Chong was born, his parents were still within their permitted period of stay. They subsequently obtained an extension until 24 November 1997. They did not leave by that date, however, and became overstayers. They were later located and repatriated to the mainland. Chong remained in Hong Kong in his grandparents’ care. Although he had been born there and his grandfather was a permanent resident, the Immigration Department did not recognise his right of abode. Under the Immigration Ordinance at the time, birth in Hong Kong alone was insufficient: at least one parent also had to be settled in Hong Kong or have the right of abode.

Chong Yiu Shing therefore brought judicial review proceedings on his grandson’s behalf. With legal aid, Gladys Li SC and Philip Dykes SC represented the boy. They argued that Article 24(2)(1) of the Basic Law expressly included Chinese citizens born in Hong Kong among its permanent residents, and that the Immigration Ordinance could not impose further restrictions on Chong’s right of abode. In their view, its additional parental-status condition contravened the Basic Law.

While the litigation was under way, the Immigration Department extended Chong’s permission to stay. For the time being, he could continue living with his grandparents. Whether he could remain permanently was for the courts to decide.

The Basic Law and the Immigration Ordinance

Let us begin with the legislation.

Chong claimed rights under the first category of permanent residents, set out in Article 24(2)(1) of the Basic Law: Chinese citizens born in Hong Kong before or after the establishment of the Hong Kong Special Administrative Region. Read according to its ordinary meaning, the provision required two things: birth in Hong Kong and Chinese nationality. Neither party disputed that Chong satisfied both. On his interpretation, he already met every condition the provision specified.

Paragraph 2(a) of Schedule 1 to the Immigration Ordinance, as applicable when Chong was born, imposed an additional requirement on a Chinese citizen born in Hong Kong: at the time of the child’s birth or at any later time, either parent had to be settled in Hong Kong or have the right of abode there. To be “settled” meant being ordinarily resident in Hong Kong without any limit on the period of stay. Visitors travelling on Two-way Permits did not meet that requirement. It was on this basis that the Immigration Department refused to recognise Chong’s right of abode.

Chong’s lawyers argued that the Immigration Ordinance could not narrow the categories of permanent residents established by the Basic Law. The Hong Kong government, by contrast, maintained that the Basic Law had to be read alongside Hong Kong’s immigration controls and the approval procedures for mainland residents travelling to the territory. If children born in Hong Kong to short-term visitors, overstayers, or even illegal entrants could become permanent residents, those controls might be affected. The government argued that restrictions based on the parents’ residence status were therefore implicit in the Basic Law.

The government also relied on another document. On 10 August 1996, the Preparatory Committee for the HKSAR adopted its Opinions on the Implementation of Article 24(2) of the Basic Law. In addressing the first category of permanent residents, the Opinions excluded children born to illegal entrants, overstayers, and people residing temporarily in Hong Kong. Chong’s parents, as temporary visitors, fell within that exclusion. Moreover, the NPCSC’s 1999 interpretation stated that the legislative intent of Article 24(2) was reflected in the Preparatory Committee’s Opinions. That interpretation directly addressed Article 22(4) and Article 24(2)(3). How its broader statement about legislative intent should apply to other categories consequently became an issue in this case.

The dispute thus centred on whether the Immigration Ordinance, the 1996 Opinions, and the relevant language in the 1999 interpretation could apply here and provide a legal basis for adding conditions to the first category of permanent residents.

Was a Reference to the NPCSC Required?

There was also a procedural dispute.

At the final appeal stage, the government argued that the Court should seek an NPCSC interpretation before deciding Chong’s residence status. Article 158 of the Basic Law provides that, when deciding a case requires interpreting provisions concerning affairs for which the Central People’s Government is responsible, or the relationship between the central authorities and the HKSAR, and that interpretation will affect the judgment, the Hong Kong courts must seek an NPCSC interpretation through the Court of Final Appeal before giving a final judgment that cannot be appealed. The government argued that recognising these children’s right of abode would have practical consequences for mainland immigration administration. It therefore concerned central affairs and the relationship between the central authorities and Hong Kong, satisfying the conditions for a reference.

Chong’s side argued that the provision defined Hong Kong permanent residents, a matter within the Region’s autonomy which Hong Kong’s courts could interpret themselves.

The Court of Final Appeal agreed with Chong. Its judgment explained that Article 158(3) required the Court to examine the character of the provision itself. The government’s proposed test instead focused on the practical effects of applying it. On that approach, most or even all provisions of the Basic Law might fall within the category requiring a reference as circumstances changed. The NPCSC’s power to interpret the Basic Law was also distinct from the courts’ duty to seek an interpretation in a particular case; this case concerned the latter. The Court concluded that the provision defining the first category of permanent residents fell within Hong Kong’s autonomy, so the Hong Kong courts had no obligation to seek an NPCSC interpretation in this case.

The government had compiled figures on the number of children concerned. In the 43 months from July 1997 to January 2001, 1,991 children fell within the disputed category—an annual average of about 555. The government acknowledged that these figures did not suggest that losing the case would immediately cause a large influx of mainland residents. On the evidence then before it, the Court considered that the judgment could not be said to pose a significant risk to Hong Kong.

Birthplace and Parental Status: The Court’s Decision

On 20 July 2001, the Court of Final Appeal dismissed the Director of Immigration’s appeal. All five judges agreed: Chong was a permanent resident under Article 24(2)(1) of the Basic Law and had the right of abode in Hong Kong. The Immigration Ordinance’s additional restriction based on his parents’ status contravened that provision. Both the Court of First Instance and the Court of Appeal had already ruled in his favour. By the time the litigation reached its final conclusion, Chong was still not yet four years old.

The Court compared the categories in Article 24. Subparagraph (3) expressly referred to the relationship between children and their parents. Subparagraph (5), dealing with children under 21 born in Hong Kong to residents listed in subparagraph (4), likewise expressly required a particular parental status. Subparagraph (1), by contrast, specified only birthplace and Chinese nationality; it did not require the parents to be settled in Hong Kong. For Chinese children of the kind concerned in this case, claiming status under subparagraph (3) after birth on the mainland and claiming it under subparagraph (1) after birth in Hong Kong involved different conditions. A difference in outcome based on birthplace did not make the provision ambiguous, still less justify adding new conditions. Those differences between the provisions supported Chong’s interpretation.

As for the Preparatory Committee’s 1996 Opinions and the relevant wording in the 1999 interpretation, the Court stressed that, in the absence of a binding interpretation of subparagraph (1), its meaning should be determined by common law methods, taking account of its text, context, and purpose. The Court was not reading words in isolation, nor denying the NPCSC’s interpretive authority. But once those methods established a clear meaning, external materials could not introduce restrictions that the language could not bear.

After the Judgment: Acceptance and Disagreement

For the Chong family, the end of the case meant that the child could finally stay without fear. According to the South China Morning Post the following day, his grandfather had told him the result, though he was unsure how much a boy so young could understand. The family were happy and relieved. They no longer had to worry that the child would be taken away.

On 20 July 2001, Acting Secretary for Security Timothy Tong expressed disappointment with the outcome but pledged to respect the judgment. Secretary for Security Regina Ip subsequently said that the government had no plans to seek an NPCSC interpretation in the case. It would accept and implement the ruling and strengthen cooperation with the mainland to address a possible increase in women travelling to Hong Kong to give birth.

On 21 July, a spokesperson for the NPCSC’s Legislative Affairs Commission expressed concern that the Court’s judgment was not entirely consistent with the NPCSC’s interpretation. A difference of understanding over the 1999 interpretation remained.

Hong Kong Bar Association chairman Alan Leong welcomed the government’s decision to respect the judgment, saying that it helped uphold the rule of law, judicial independence, and “one country, two systems.”

After the ruling, the government began handling comparable cases in accordance with it. Arguments about legislative intent and interpretive authority did not end, but the government did not then seek a new NPCSC interpretation to change the rule.

From Residence Entitlements to the Zero Quota Policy

In January 2002, the government told the Legislative Council that, according to Immigration Department records covering the period from the handover to 19 July 2001, 6,762 people would acquire the right of abode as a result of the Chong judgment. This excluded people whose births had been registered before the handover and who might also benefit. The Department arranged for those concerned to complete procedures confirming or correcting the permanent-resident status recorded in their birth registrations. The government subsequently pursued amendments to the Immigration Ordinance to bring its eligibility provisions into line with the final judgment.

In the years after the case, mainland women travelling to Hong Kong to give birth attracted growing public attention, and shuangfei children became a familiar term. Between 2006 and 2011, nearly 160,000 such children were born in Hong Kong. As they grew up, demand for public services extended from maternity wards to schools. The government needed to provide school places for eligible children, including these children, and arrange cross-border schooling for those living on the mainland. Local families worried about pressure on maternity beds and school places, while the government faced difficult decisions about allocating medical and educational resources. Children who had acquired resident status also needed those services. Rising numbers made policy responses increasingly urgent and repeatedly brought the Chong case back into public debate.

From 2013, the government implemented a “zero quota” policy. Public hospitals stopped accepting maternity bookings from non-local pregnant women, while private hospitals stopped accepting bookings from mainland women in the shuangfei category. Checks at immigration control points accompanied these measures to restrict travel to Hong Kong for childbirth. In March that year, the government made clear that it would continue maintaining the policy through administrative measures. These measures restricted arrangements for giving birth in Hong Kong; they did not themselves change the residence eligibility rule established by the Chong case. Even when a child had the right of abode, the parents did not automatically acquire the same status. Families could still find themselves living on opposite sides of the border.

Ten Years Later

When reporters interviewed Chong again in May 2011, he was a Form One student. Travel to Hong Kong for childbirth had become a matter of heated public debate, and some people online blamed him. He felt helpless in the face of those accusations. From early childhood into secondary school, his name had continued to appear in newspapers and public discussion. The proceedings his grandfather had brought on his behalf secured his right of abode, but also exposed him, years later, to blame he could never have anticipated.

That interview came almost ten years after the final judgment. When Chong’s grandfather first went to court, he wanted only for his grandson to be able to stay in Hong Kong. More than a decade after the proceedings began, the boy had stayed, grown up, and built a school life of his own. For this family, the case’s most immediate significance lay in those ordinary things.

This article is supplementary reading for Episode 18 of Reasoned Talk, “The ‘First Case’ of an NPCSC Interpretation: Who Interprets the Basic Law After Hong Kong’s Handover?” . The original episode examines the 1999 NPCSC interpretation and the relationship between final adjudication and final interpretive authority. This article follows the Chong Fung Yuen case to explore the right of abode of Chinese children born in Hong Kong and the judgment’s consequences for policy and family life.

Timeline

  • 1996-08-10: The HKSAR Preparatory Committee adopts its Opinions on the Implementation of Article 24(2), setting out its approach to the permanent-resident categories.
  • 1997-09-29: Chong Fung Yuen is born in Hong Kong while his parents are visiting lawfully on Two-way Permits. Neither parent is settled in Hong Kong or has the right of abode.
  • 1999-06-26: The NPCSC interprets Articles 22(4) and 24(2)(3). Its statement about the legislative intent of other categories later becomes part of the dispute in Chong.
  • 2001-07-20: The Court of Final Appeal unanimously dismisses the Director of Immigration’s appeal and confirms Chong’s right of abode.
  • 2002-01-23: The government informs the Legislative Council that 6,762 people in the relevant Immigration Department records will acquire the right of abode following the judgment, and explains the arrangements for confirming status and amending legislation.
  • 2013-01-01: The zero quota policy takes effect, restricting childbirth visits by the non-local pregnant women concerned through delivery bookings and immigration controls.
  • 2013-03-25: The government confirms that it will continue implementing the zero quota policy through administrative measures.
  • Chong Fung Yuen (庄丰源) — The child at the centre of the case, a Chinese citizen born in Hong Kong in 1997 and the respondent in the final appeal.
  • Chong Yiu Shing (庄曜诚) — Chong’s grandfather, who brought judicial review proceedings as the child’s next friend.
  • Andrew Li (李国能) — Chief Justice at the time, delivering the unanimous judgment of the five-member Court.
  • Gladys Li and Philip Dykes (李志喜、郭瑞熙) — Senior counsel representing Chong, arguing that local legislation could not add restrictions to the Basic Law’s eligibility criteria.
  • Timothy Tong and Regina Ip (汤显明、叶刘淑仪) — Acting Secretary for Security and Secretary for Security respectively, who responded to the judgment and the policy questions that followed.

Institutions and concepts

  • Right of abode and permanent residence — Article 24 identifies permanent-resident categories and confers the right of abode. The case concerns the child’s own status; it does not establish an automatic entitlement for the parents.
  • Shuangfei children — A public-discussion term for Chinese children born in Hong Kong whose parents are both non-permanent residents. It is not a separately named Basic Law category. Birth statistics must also be read according to their particular definitions of parental status and the mother’s place of origin.
  • The first and third categories — Subparagraph (1) concerns Chinese citizens born in Hong Kong; subparagraph (3) concerns Chinese children born outside Hong Kong to residents in categories (1) and (2). Their eligibility criteria are not interchangeable.
  • Settlement and temporary stay — Under the provisions at issue, settlement requires ordinary residence without a limit of stay. Visiting on a Two-way Permit does not itself meet that definition.
  • Interpretive authority and the duty to refer — The NPCSC’s interpretive power and the Court of Final Appeal’s obligation to seek an interpretation in a particular case are distinct questions.
  • Zero quota — An administrative policy governing arrangements for childbirth visits, rather than a direct amendment to Article 24’s permanent-residence criteria.
  • Director of Immigration v Chong Fung Yuen (FACV 26/2000; (2001) 4 HKCFAR 211; 20 July 2001) — The central case. The Court of Final Appeal held that Article 24(2)(1) contained no parental-status restriction of the kind imposed by the Ordinance, and that no reference under Article 158(3) was required. See the Department of Justice case summary .
  • Ng Ka Ling and Chan Kam Nga (Court of Final Appeal, 29 January 1999) — The background cases discussed in episode 18, concerning mainland-born children of Hong Kong permanent residents. Their circumstances differ from Chong’s birth in Hong Kong. See the episode 18 transcript for the background and subsequent NPCSC interpretation.
  • Basic Law Article 24(2)(1) — The direct basis of Chong’s claim. Comparison with subparagraphs (3) and (5) highlights the different treatment of parental status across the categories.
  • Basic Law Articles 22(4) and 158 — Address, respectively, approval for entry by people from other parts of China, and interpretive authority and judicial references.
  • Schedule 1, paragraphs 2(a) and 1(5), of the Immigration Ordinance as applicable in the litigation — Set out the additional parental-status condition and the meaning of settlement. The discussion concerns the historical provisions at issue.
  • The Preparatory Committee’s 1996 Opinions and the 1999 NPCSC Interpretation — Central documents in the legislative-intent dispute. The 1999 interpretation directly addressed Articles 22(4) and 24(2)(3). See the official Basic Law text and related instruments and the English text of the 1999 interpretation .