–Alvin Y. H. Cheung, Barrister-at-Law, Sir Oswald Cheung’s Chambers, Hong Kong
In the Vallejos Evangeline Banao v Commissioner of Registration & Another judgment handed down on 25 March 2013, the Hong Kong Court of Final Appeal (“CFA”) held that, on a proper construction of article 24(2)(4) of the Basic Law, the constitutional document of the Hong Kong Special Administrative Region (“HKSAR”), foreign domestic helpers (“FDHs”) are not entitled to be treated as ordinarily resident in Hong Kong. However, the CFA declined to refer a question of interpretation to the National People’s Congress Standing Committee (“NPCSC”) under article 158(3). Although the judgment confirms the CFA’s existing jurisprudence on article 158(3) and rightly criticised the HKSAR Government’s attempt to make a reference under article 158(3) on matters unrelated to the Vallejos litigation, it leaves open more troubling questions about the interaction between article 158(3) and the NPCSC’s plenary jurisdiction under article 158(1).
Ms Vallejos, a Philippine national, had worked in Hong Kong as an FDH pursuant to the Immigration Department’s FDH policy since 1986. Her application for a permanent identity card (designating her as a permanent resident with the right of abode in Hong Kong) was refused on the basis of section 2(4)(a)(vi) of the Immigration Ordinance (the Ordinance). That subsection laid down a rule that a person shall not be treated as ordinarily resident in Hong Kong for the purposes of the Ordinance during any period in which that person was employed as a domestic helper from outside Hong Kong. Vallejos argued that the restriction contravened article 24(2)(4) of the Basic Law, which provides:
The permanent residents of the Hong Kong Special Administrative Region shall be …
(4) Persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region;
Vallejos succeeded before the Court of First Instance, but failed in the Court of Appeal.
Proceedings Before the CFA
Before the CFA, Lord Pannick QC (leading Mr Anderson Chow SC and Ms Eva Sit) advanced the following arguments:
1. First, on a common law approach to the phrase “ordinarily resided” in article 24(2)(4), the circumstances of the residence of FDHs were outside the concept of “ordinary residence” as ordinarily understood;
2. Second, the Basic Law accords a margin of discretion to the legislature to define classes of persons excepted or excluded from the concept of ordinary residence, and section 2(4)(a)(vi) of the Ordinance fell within that margin of discretion;
3. Third, if and insofar as the Court had any doubt as to the meaning of “ordinarily resided” in article 24(2)(4), it could refer to extrinsic materials. Such materials included the NPCSC’s interpretation of articles 22(4) and 24(2)(3) of the Basic Law following the Ng Ka Ling right of abode litigation (the 1999 Interpretation); and
4. Finally, if and insofar as it was necessary to consider the effect of the 1999 Interpretation, the CFA would be bound to seek an interpretation from the NPCSC concerning the meaning and scope of “interpretation” under article 158.
The CFA’s Ruling
The CFA, presided over by Chief Justice Geoffrey Ma, ultimately accepted Lord Pannick QC’s first argument. However, it went on to consider (obiter) whether a reference to the NPCSC was necessary. At paragraphs 100 to 107 it set out the principles governing its constitutional jurisdiction, which can be summarised in the following terms:
1. The NPCSC enjoys a plenary power of interpretation of all provisions of the Basic Law under article 158(1) of the Basic Law and article 67(4) of the Constitution of the People’s Republic of China;
2. The courts of the HKSAR are given a more limited power to interpret the Basic Law, under article 158(2)-(3). In particular, that power may only be exercised in the course of adjudicating cases;
3. Where, in adjudicating cases, the Hong Kong courts need to interpret provisions of the Basic Law “concerning affairs which are the responsibility of the Central People’s Government, or concerning the relationship between the Central Authorities and [the HKSAR]”, they are required to seek an interpretation through the CFA before making a final judgment which is not appealable;
4. Before making a reference, the CFA must be satisfied that the “classification condition” and the “necessity condition” are both fulfilled. However, before considering the classification and necessity conditions, it must first be satisfied that the question of interpretation is arguable;
5. The classification condition is that the relevant Basic Law provisions are “excluded provisions” – namely, they concern affairs which are the responsibility of the Central People’s Government, or concern the relationship between the Central Authorities and the HKSAR. In considering whether this condition is satisfied, the CFA looks to the character of the provision itself and not to the effect of its implementation;
6. The necessity condition is that the CFA needs to interpret the excluded provisions and such interpretation will affect the judgment on the case;
7. There is no ‘basis for otherwise implying a general power in the [CFA] to seek an interpretation from the [NPCSC]’; and
8. Any interpretation by the NPCSC, whether under its plenary jurisdiction under article 158(1) or pursuant to a reference from the CFA under article 158(3), is prospectively (but not retrospectively) binding on the Hong Kong courts.
The CFA went on to hold that the classification condition was satisfied in respect of the proposed questions, but that it was unnecessary to make the reference sought in light of its conclusions on the interpretation of article 24(2)(4).
Lingering Questions on article 158
The Vallejos judgment, in affirming the CFA’s previous jurisprudence on the requirements for an article 158(3) reference, makes plain that the CFA should not be treated as a conduit for making references based on “fanciful arguments” or on a general power to refer. This may be viewed as a response to the stated purpose of the reference sought by the Secretary for Justice, Rimsky Yuen SC. That purpose went well beyond the immediate confines of the Vallejos litigation and the right of abode of FDHs:
… DoJ [the Department of Justice] invites the CFA to consider seeking the NPCSC’s interpretation under BL [Basic Law] 158(3) to clarify the legal effect of the 1999 Interpretation because this is a relevant issue which needs to be resolved in the present case. The penultimate paragraph of the 1999 Interpretation stated that the legislative intent of all categories of BL 24(2) has been reflected in the “Opinions on Implementation of Article 24(2) of the Basic Law of the HKSAR of the PRC” adopted by the Preparatory Committee of the HKSAR in 1996. The legal status of the 1999 Interpretation and the 1996 Opinions of the Preparatory Committee and their binding effect therefore involve complex legal issues. If such issues can be clarified, DoJ considers that the clarification can facilitate a proper interpretation of the right of abode for all categories of persons under BL 24(2) including FDHs. …
… Finally, I would reiterate that the request by the DoJ for the CFA to consider referring to the NPCSC for clarifying the effect of the 1999 Interpretation under BL 158(3) would absolutely not affect the rule of law and judicial independence of Hong Kong. On the contrary, this measure would hopefully assist to resolve the right of abode issue of different categories of persons, including foreign domestic helpers and babies born to Mainland pregnant women. This is also consistent with the idea that I have emphasised in the past: that is to resolve the relevant issue under the legal system of Hong Kong.
The decision to seek NPCSC interpretation in respect of babies born to non-resident parents in Vallejos – a case which was entirely unrelated to the “Mainland pregnant women problem” – drew criticism from the Hong Kong Bar Association. A subsequent application by a Hong Kong-born child with Mainland-resident parents for joinder was rejected by the CFA. It now seems clear from the judgment in Vallejos that the CFA took a dim view of Mr Yuen SC’s stated purpose of reference.
However, Vallejos and its immediate aftermath reveal that two troubling questions concerning article 158 remain unanswered.
First, in confirming its previous jurisprudence on article 158, the CFA missed an opportunity to reconsider, or to give a more nuanced description of, the relationship between articles 158(1) and 158(3). In Lau Kong Yung, a differently constituted CFA rejected the submission that the NPCSC’s powers of interpretation under article 158(1) are restricted or qualified by articles 158(2) and 158(3), or by articles 2 and 19. Yet, in Ng Siu Tung & Others v Director of Immigration, the CFA accepted a similar argument in support of the conclusion that interpretations delivered under article 158(1) were only prospective in scope, notwithstanding the absence of express provision to that effect in article 158(1). It is difficult to see how the reasoning used to justify temporal limits on the NPCSC’s powers under article 158(1) does not also result in substantive limits. This is particularly so in light of the history of the NPCSC’s exercise of its concurrent power of interpretation. Of the three “abstract” interpretations made by the NPCSC to date, two were given to reverse or pre-empt judgments by the Hong Kong Judiciary. A concurrent plenary power of interpretation in the Lau Kong Yung mould therefore risks rendering the Hong Kong Judiciary’s independent powers of adjudication nugatory. In any event, as the Judicial Committee of the Privy Council has recognised in connection with its powers under section 4 of the Judicial Committee Act 1833, it is inappropriate for the Judicial Committee to exercise its powers under that section where their exercise will “short-circuit” ordinary trial and appellate procedures. The CFA’s failure to reconsider its article 158 jurisprudence, especially after the 1999 Interpretation, may result in the NPCSC seizing the initiative in interpreting article 158, to the detriment of the Hong Kong Judiciary.
Second, there remains the possibility that the HKSAR Government will seek an interpretation under article 158(1), notwithstanding the CFA’s judgment in Vallejos. The Secretary for Justice has not ruled out the possibility of the HKSAR Government making its own request for an interpretation. Such a reference will likely be perceived as undermining the authority of the Judiciary, if not its relevance. Vallejos may now have been decided by the Court of Final Appeal, but the underlying questions involving the Basic Law have by no means been resolved with finality.
 Unreported, FACV 19 & 20 of 2012 (25 March 2013) (“Vallejos III”) <http://www.hklii.hk/cgi-bin/sinodisp/eng/hk/cases/hkcfa/2013/17.html>. The Court of First Instance and Court of Appeal judgments are HCAL 124/2010 (30 September 2011) (“Vallejos I”) <http://www.hklii.hk/cgi-bin/sinodisp/eng/hk/cases/hkcfi/2011/642.html> and  2 HKC 185 (“Vallejos II”) respectively. I have adopted OSCOLA (4th edn) citation, with appropriate modifications.
 Vallejos was heard together with another appeal by Daniel Domingo. Mr Domingo, a Philippine national, was resident in Hong Kong pursuant to the FDH policy from 1985 to 2007, after which he was granted permission to remain in Hong Kong without any employment restrictions. Vallejos III, para 18. The differences in background facts are, however, not relevant for present purposes.
 Chapter 115, Laws of Hong Kong.
 Vallejos I and Vallejos II.
 Vallejos III, para 22.
 Vallejos III, para 23.
 Vallejos III, para 24.
 Vallejos III, para 24 and paras 93-99. The 1999 Interpretation was made pursuant to a request by the PRC State Council to interpret articles 22(4) and 24(2)(3) of the Basic Law. However, it contained a statement purporting to set out the legislative intent behind the entirety of article 24(2): Vallejos III, paras 94-95 and Annex.
 The cab-rank rule, under which a barrister is required to accept work in the field of his professed expertise regardless of the identity of the lay client, remains in place in Hong Kong. It is nonetheless of interest to note that Geoffrey Ma SC (as the Chief Justice then was) was the HKSAR Government’s leading counsel in the Ng Ka Ling litigation, which ultimately led to the first NPCSC interpretation.
 Vallejos III, paras 80-89.
 Vallejos III, para 102. See also Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300, 323B-324E (Li CJ), 341A-F (Ching PJ) and 345E-F (Sir Anthony Mason NPJ); Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211, 222A-C (Li CJ), and Yash Ghai, Hong Kong’s New Constitutional Order (2nd edn, Hong Kong University Press), 198.
 Vallejos III, para 103(1)-(3). See also Ng Ka Ling & Others v Director of Immigration (No 1) (1999) 2 HKCFAR 4 (“Ng Ka Ling I”), 30F-G (Li CJ).
 Basic Law of the Hong Kong Special Administrative Region, People’s Republic of China (中華人民共和國香港特別行政區基本法), article 158(3) and Vallejos III, paras 103(4) and 105.
 Vallejos III, para 103(4)-(5). See also Ng Ka Ling I, 30I-31B (Li CJ) and Lau Kong Yung, 324H-I (Li CJ).
 Vallejos III, para 103(7). See also Ng Ka Ling I, 32F-H (Li CJ).
 See n 14.
 Vallejos III, para 103(6). See also Chong Fung Yuen, 229A-H (Li CJ) and Tam Nga Yin & Others v Director of Immigration (2001) 4 HKCFAR 251, 257I-J.
 See n 14.
 Vallejos III, para 106.
 Vallejos III, para 107. See also Lau Kong Yung, 345H-346C (Sir Anthony Mason NPJ) and Chong Fung Yuen, 222F-I (Li CJ).
 Vallejos III, paras 110-112.
 Vallejos III, paras 104-106.
 Rimsky Yuen SC, Secretary for Justice, ‘SJ on foreign domestic helper’s case’ (Hong Kong, 13 December 2012) <http://www.doj.gov.hk/eng/public/pr/20121213_pr3.html> accessed 28 March 2013 (emphasis added).
 Hong Kong Bar Association, ‘The Necessity for Separate Legal Representation Arising from the Secretary for Justice’s Request to the Court of Final Appeal on the Right of Abode of Children Born in Hong Kong to Non-Hong Kong Residents from the Mainland China’ (Hong Kong, 14 February 2013) <http://hkba.org/whatsnew/press-release/20130214-%20SJ’s%20request%20for%20NPCSC%20interpretation%20in%20FDH%20case%20(E).pdf> accessed 28 March 2013.
 Austin Chiu, ‘Top court rejects abode bid by Hong Kong-born girl’ South China Morning Post (Hong Kong, 26 February 2013) <http://www.scmp.com/news/hong-kong/article/1158936/top-court-rejects-abode-bid-hong-kong-born-girl> accessed 28 March 2013.
 Lau Kong Yung, 322I-324E (Li CJ). See also Ng Ka Ling & Others v Director of Immigration (No 2) (1999) 2 HKCFAR 141, 142B-E (Li CJ). Articles 158(2)-(3) govern the circumstances in which the Hong Kong Judiciary may interpret the Basic Law: Basic Law, articles 158(2)-(3). Articles 2 and 19 provide, inter alia, that the HKSAR shall enjoy independent judicial power: Basic Law: Basic Law, articles 2 and 19.
 Ng Siu Tung & Others v Director of Immigration (2002) 5 HKCFAR 1, 24E-25E. The majority judgment by Li CJ, Chan and Ribeiro PJJ and Sir Anthony Mason NPJ expressly referred to provisions of the Basic Law vesting independent judicial power in the HKSAR (specifically, articles 80 and 82) in finding that a contrary construction of article 158(1) would compromise the CFA’s power of final adjudication.
 The NPCSC has, as of this writing, exercised its powers under article 158 four times since the creation of the HKSAR in 1997. The first abstract interpretation (the 1999 Interpretation) was given to reverse the Court of Final Appeal’s judgment in Ng Ka Ling I: Yash Ghai, ‘The NPC Interpretation and Its Consequences’ in Johannes M M Chan, H L Fu and Yash Ghai (eds), Hong Kong’s Constitutional Debate: Conflict Over Interpretation (Hong Kong University Press 2000), 199. A subsequent interpretation in 2005 concerning the duration of tenure of a replacement Chief Executive was sought by the HKSAR Government specifically to pre-empt judicial review proceedings: HKSAR Government, ‘CS makes statement on term of office of new CE’ (Hong Kong, 6 April 2005) <http://www.info.gov.hk/gia/general/200504/06/04060181.htm> accessed 28 March 2013. On the 2005 interpretation, see also Hong Kong Bar Association, ‘The Acting Chief Executive’s Request for NPCSC Interpretation of Article 53 of the Basic Law of the HKSAR’ (Hong Kong, 14 April 2005) <http://hkba.org/whatsnew/submission-position-papers/2005/re_New_CE_20050414_E.doc> accessed 28 March 2013. To date, the only interpretation made pursuant to a reference from the CFA under article 158(3) was made in connection with the FG Hemisphere litigation: see (2011) 41(2) Hong Kong Law Journal and Alyssa S. King, ‘The FG Hemisphere Case in Hong Kong: China’s Africa Policy in the Courts of its First Special Administrative Region’ 1 Journal of Dispute Prevention and Resolution (forthcoming) <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2216424> accessed 28 March 2013.
 3-4 Will 4 c 41.
 Chief Justice of the Cayman Islands v The Governor and the Judicial and Legal Services Commission  UKPC 39. See also Alvin Y. H. Cheung, ‘Of Pirates and Caymans: Lessons from the Privy Council for Interpretation of Hong Kong’s Basic Law’ (International Journal of Constitutional Law Blog, 26 January 2013) <http://www.iconnectblog.com/2013/01/of-pirates-and-caymans-lessons-from-the-privy-council-for-interpretation-of-hong-kongs-basic-law> (“Pirates and Caymans”) accessed 30 March 2013.
 The NPCSC criticised the CFA’s understanding of article 158(3) in the Preamble to the 1999 Interpretation: Preamble, 1999 Interpretation (Annex to Vallejos III). See also Lau Kong Yung, 324F-I (Li CJ).
 ‘CFA declines interpretation on babies born to Mainland residents, rules FDHs have no right of abode; Government does not promise not to request interpretation’ (終院拒為雙非居權釋法 判外傭無居港權 政府未允不自提釋法), Ming Pao (Hong Kong, 26 March 2013) (original in Chinese; author’s translation) <http://hk.news.yahoo.com/%E7%B5%82%E9%99%A2%E6%8B%92%E7%82%BA%E9%9B%99%E9%9D%9E%E5%B1%85%E6%AC%8A%E9%87%8B%E6%B3%95-%E5%88%A4%E5%A4%96%E5%82%AD%E7%84%A1%E5%B1%85%E6%B8%AF%E6%AC%8A-%E6%94%BF%E5%BA%9C%E6%9C%AA%E5%85%81%E4%B8%8D%E8%87%AA%E6%8F%90%E9%87%8B%E6%B3%95-211427415.html> accessed 30 March 2013; ‘FDHs ruled not to have right of abode, babies born to Mainland parents still not resolved’ (外傭判無居權 雙非仍未解決), Hong Kong Economic Times (Hong Kong, 26 March 2013) (original in Chinese; author’s translation) <http://hk.news.yahoo.com/%E5%A4%96%E5%82%AD%E5%88%A4%E7%84%A1%E5%B1%85%E6%AC%8A-%E9%9B%99%E9%9D%9E%E4%BB%8D%E6%9C%AA%E8%A7%A3%E6%B1%BA-224644167.html> accessed 30 March 2013.
 Hong Kong Bar Association, ‘Vallejos & Domingo v Commissioner of Registration – FACV 19, 20 of 2012’ (Hong Kong, 25 March 2013) <http://hkba.org/whatsnew/press-release/20130325_Vallejos_Domingo_v_Commissioner_of_Registration_FACV_19_20_of_2012_FINAL.pdf> accessed 28 March 2013.
 Pirates and Caymans.