全世界只有香港的終審法院法官可以由外國人擔任，而且可以是不吃人間煙火。
本案申請人後來更被揭發在廣州有物業，並有兩名兒子供養，並非其訛稱的孤苦零丁。可謂貪得無厭。
來港未滿七年可申請綜援上訴終審庭案，由上訴人孔允明向法援署
指定的代表律師：
資深大律師
陳文敏先生及大律師
潘熙先生（由法律援助署指派、鄧王周
廖成利律師行延聘）代表上訴人孔允明。
廖成利係民協，
協助孔婦申請法援的
蔡耀昌係民主黨，
陳文敏係港大法律系教授，即是戴耀廷老細。
當然上述律師是否 涉及包攬訴訟 在法律上是非常清晰：是沒有的。
http://legalref.judiciary.gov.hk/lrs/common/ju/ju_frame.jsp?DIS=90670&currpage=T
FACV No. 2 of 2013
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEALNO. 2 OF 2013 (CIVIL)
(ON APPEAL FROM CACV NO. 185 OF 2009)
_______________________
Between :
|
KONG YUNMING (孔允明) |
Appellant |
|
and |
|
|
THE DIRECTOR OF SOCIAL WELFARE |
Respondent |
_______________________
| Before: |
Chief Justice Ma, Mr Justice Ribeiro PJ,Mr
Justice Tang PJ, Mr Justice Bokhary NPJ,Lord Phillips of Worth
Matravers NPJ |
| Dates of Hearing: 18-19 November 2013 |
| Date of Judgment: 17 December 2013 |
________________________
J U D G M E N T
________________________
Chief Justice Ma:
1. For the reasons
contained in the Judgment of Mr Justice Ribeiro PJ, this appeal must be
allowed. The Government’s policy, which came into effect on 1 January
2004 requiring all recipients of Comprehensive Social Security
Assistance (CSSA) to have been a Hong Kong resident for at least seven
years, is not constitutional.
Mr Justice Ribeiro PJ:
2. In this appeal, it falls
to the Court to consider the scope and effect of the right to social
welfare conferred upon Hong Kong residents by Article 36 of the Basic
Law. It arises in the context of the applicant’s claim for benefits
under the Comprehensive Social Security Assistance (“
CSSA”) Scheme.
A. The appellant’s circumstances
3. The appellant (“
Madam Kong”)
is a native of Guangdong. She had previously been married but divorced
her first husband in 1983. There were two sons of that marriage and
they reside on the Mainland. In 2001, she met Mr Chan Wing, a Hong Kong
permanent resident, and married him in October 2003, having visited him
in Hong Kong on a two-way permit on several occasions. Mr Chan was not a
man of means. His health was not good and he had been a recipient of
social welfare since 1985.
4. Madam Kong worked on the
Mainland as a home helper for the elderly until 2005. She was unable
thereafter to find work and, when granted a one-way permit (“
OWP”)
by the Chinese authorities on 30 November 2005, she decided to come to
settle in Hong Kong with her husband. She arrived here on 21 December
2005, then aged 56, and was granted permission to remain for seven
years. She thereupon became a non-permanent resident of Hong Kong
within the meaning of Article 24 of the Basic Law.
[1]
5. Sadly, her husband (who
was aged 76) died on 22 December 2005, the day after she arrived in Hong
Kong. In consequence, she found herself homeless, since the Housing
Authority immediately repossessed her late husband’s public housing
unit. She was without family or friends in Hong Kong and was admitted
to a shelter for street sleepers.
6. On 20 March 2006, Madam
Kong applied for CSSA but was unsuccessful. Her application was
refused because the Government’s policy has, since 1 January 2004, been
that persons who have resided in Hong Kong for less than seven years do
not qualify for CSSA, save where, in exceptional circumstances, the
Director of Social Welfare (“
the Director”) waives that residence
requirement as a matter of discretion. The policy was aimed at
Mainland immigrants. Madam Kong’s case was not considered appropriate
for the exercise of that discretion and her appeal to the Social
Security Appeal Board against that decision was rejected.
B. The decisions of the Courts below
7. She was granted legal
aid and instituted judicial review proceedings to challenge the
Director’s decision to reject her CSSA application on the ground that
the imposition of the seven-year residence requirement is inconsistent
with Articles 25, 36 and 145 of the Basic Law, as well as Article 22 of
the Hong Kong Bill of Rights.
[2]
8. On 23 June 2009, Mr Justice Andrew Cheung (as Mr Justice Cheung CJHC then was) dismissed her application for judicial review.
[3] His Lordship’s decision was upheld by the Court of Appeal.
[4]
C. The CSSA scheme
C.1 The nature and purpose of CSSA
9. The CSSA scheme is a
non-contributory, means-tested social security scheme. It is
administered by the Social Welfare Department (“
SWD”) and is
non-statutory. The Government describes it as “a means-tested
safety-net benefit designed to ensure that people with limited or no
other sources of income have sufficient money to meet their basic
needs.”
[5]
It aims in particular to provide “a safety net for individuals or
families who are unable to support themselves financially because of
age, disability, illness, low earnings, unemployment or family
circumstances.”
[6]
10. As Mr Cheung Doi-ching,
[7]
giving evidence on the Government’s behalf, explains, the basic needs
“include food, clothing, fuel and light, rent and schooling expenses for
children ...” The Director sets a level of income which represents the
amount required to meet these essential needs and:
“The difference between the total assessable
monthly income of a family and its total monthly needs as recognised
under the Scheme in terms of various types of payment will be the amount
of assistance payable.”
[8]
C.2 The evolution of the residence requirement
11. At the end of World
War II, with China in the throes of a civil war, Hong Kong experienced a
massive influx of refugees which brought the post-war population of
about 600,000 in 1945 up to 1,600,000 at the end of 1946. The
population increased to 2,500,000 in 1956 and reached over 3,000,000 by
March 1960.
[9]
12. It was against that
background that the Social Welfare Office was established in 1948,
providing rudimentary relief in kind, primarily in the form of cooked
meals for the relief of refugees. As welfare assistance evolved, a
residence requirement of 10 years was established as a condition of
eligibility for public assistance.
[10]
In 1958, the SWD was formed and it provided shelter for the destitute
and continued to provide relief in the form of daily cooked meals and
dry rations.
[11] A year later, in 1959, the residence requirement was reduced to five years.
13. The inadequacies of
the system were recognized in a report on “Aspects of Social Security”
prepared by an Interdepartmental Working Party in April 1967, and in
March 1970, a Memorandum for the Executive Council
[12] pointed out that the then existing scheme:
“... does not enable the need to be met
adequately in a substantial proportion of cases. To some extent this is
because the levels of assistance are too low. Mainly, however, this is
because the form in which assistance is normally given, namely dry
rations, takes no account of either the basic household needs required
to maintain a minimum standard of living, or the special needs arising
from any particular disability suffered by a member of a family.”
14. The Memorandum
recommended a change of policy, arguing that “the stage of development
now reached by Hong Kong justifies a more liberal policy, and one which
more closely meets the needs of the indigent” and that, as the Working
Party had recommended, “public assistance, in the form of financial aid,
should be accepted as a responsibility of the Government to be met by
public funds” with the aim of relieving the destitute. It proposed
substituting cash grants on a means-tested basis for assistance in
kind. It is of particular present relevance that it also proposed that
the residence requirement be reduced to one year:
“The second proposal is that the present
criterion of a minimum period of five years’ residence in the Colony
should be reduced to one year, with the discretion of the Director of
Social Welfare to pay assistance to people who have not fulfilled this
condition, if, in their particular circumstances, he considers it
necessary having regard for other available sources of aid. The
residential criterion was established in 1948 at 10 years and reduced in
1959 to 5 years. The thinking behind the residential qualification was
that public assistance should not be made so freely available as to
attract a mass influx of new immigrants from China into the Colony. As a
result, voluntary agencies, including some which are subvented by
Government, have necessarily had to assume the responsibility for
assisting persons who do not have this residential qualification. The
situation regarding immigration has changed considerably in recent years
and it is believed that this residential qualification could safely be
reduced to one year, although for reasons associated with our external
relations it would be possibly unwise at the present time to remove it
entirely.”
[13]
15. As pointed out by Ms Polly Choy Bo Chun
[14]
on the Government’s behalf, the Governor-in-Council endorsed those
recommendations on 17 March 1970 and the Legislative Council’s Finance
Committee approved the necessary funding on 17 June 1970. The system
then put in place developed into the present CSSA scheme which was
introduced in its present form with effect from 1 July 1993.
16. From 1970 onwards,
one year’s residence was the residential condition of eligibility for
the benefit. It was only on 1 January 2004 that the new requirement was
adopted, resulting in Madam Kong having to wait seven years before
qualifying for CSSA. I shall return later to examine the terms upon
which the seven-year requirement was introduced and the Government’s
justification for its introduction.
D. The constitutional provisions relied on by Madam Kong
17. By Article 36, the Basic Law provides:
“Hong Kong residents shall have the right to
social welfare in accordance with law. The welfare benefits and
retirement security of the labour force shall be protected by law.”
18. It must be read together with Article 145 of the Basic Law which states:
“On the basis of the previous social welfare
system, the Government of the Hong Kong Special Administrative Region
shall, on its own, formulate policies on the development and improvement
of this system in the light of the economic conditions and social
needs.”
19. The focus of this appeal is on the right to “social welfare in accordance with law” as laid down by those two Articles.
20. The case as argued
below centred on the right to equality before the law and protection
against discrimination. Thus, reliance was primarily placed on Article
25 of the Basic Law which provides that “All Hong Kong residents shall
be equal before the law”; and on Article 22 of the Bill of Rights which
states:
“All persons are equal before the law and are
entitled without any discrimination to the equal protection of the law.
In this respect, the law shall prohibit any discrimination and guarantee
to all persons equal and effective protection against discrimination on
any ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other
status.”
[15]
21. Professor Johannes Chan SC, who appeared
[16]
for Madam Kong did not abandon the case based on equality, but submits
that the central complaint involves the Government’s adoption of the
seven-year requirement, whether framed as a contravention of Article 25
or of Article 36. Pursuing the case under Article 36 has the advantage
of dispensing with proof of the element of discrimination. If, as Madam
Kong submits, it was an infringement of her right to social welfare
under Article 36 for the Government to introduce the seven-year
residence restriction, her challenge succeeds without her having to show
that she was the victim of discrimination.
22. I shall accordingly
focus in this judgment on the allegation that refusal of Madam Kong’s
claim for CSSA benefit contravened her right as a Hong Kong resident to
“social welfare in accordance with law”.
E. The nature of the Article 36 right
23. As is true of many
constitutional provisions, Article 36 is in very broad terms, conferring
a constitutional right on Hong Kong residents “to social welfare in
accordance with law”. Apart from the CSSA scheme, which
[17]
forms the mainstay of social security in Hong Kong, the SWD provides a
wide range of services. They include family and children services;
services for the elderly; rehabilitation and medical social services;
services for offenders; services for community development; and services
for young people.
[18]
There is obviously room for argument as to whether all or only some
part of those services come, as a matter of law, within the concept of
“social welfare” for the purposes of founding a constitutional right
under Article 36. In my view, however, since the CSSA scheme aims to
provide a welfare benefit addressing basic, “safety net” needs – a
fundamental function of any social security system, such benefit is a
clear case coming within the Article 36 concept of “social welfare”. It
was not suggested otherwise. The question whether any other benefits
and services provided by the SWD also fit within that concept must be
left open. Other facets of the system operated by the SWD might well
give rise to different considerations and it should not be assumed that
what is said in this judgment can necessarily be extrapolated for
general application across the spectrum of services provided.
E.1 “In accordance with law”
24. Before examining the
substantive content of the Article 36 right, one argument raised on
Madam Kong’s behalf should be disposed of. Professor Chan endeavoured
to argue that restricting the pre-existing right to CSSA by imposing a
seven-year residence requirement was constitutionally invalid because it
had been effected administratively rather than by legislation. The
argument was that the new policy was therefore not “in accordance with
law”.
25. I am unable to accept
that argument. Article 145 recognizes and endorses the validity of
“the previous social welfare system” which consisted of a non-statutory
system of administrative rules and policies. Accordingly, reading
Article 36 together with Article 145, the intention of the Basic Law
must be taken to be that such administrative system – consisting of
rules that are accessible, systematically applied and subject to a
process of administrative appeal – is to be treated as a system
providing “social welfare in accordance with law” within the meaning of
Article 36.
26. Indeed, it is
difficult to see how the argument helps Madam Kong. If, contrary to the
view just expressed, it were correct to say that a purely
administrative system does not provide “social welfare in accordance
with law”, it would be difficult to see what rights are conferred by
Article 36.
27. A system of social
welfare catering for a wide range of clients in a wide range of
different circumstances may well be better served by the operation of
transparent and predictable administrative criteria rather than by
having to have each benefit spelt out through a legislative process.
28. The evidence also
shows that there was in fact very considerable interaction between
members of the Administration on the one hand, and the Legislative
Council; members of its Welfare Services Panel; and the Panel’s
Subcommittee; on the other, in relation to the new residence
requirement. There was therefore in fact a substantial measure of
public consultation and accountability. The funding of the social
welfare system as a whole is subject to approval by the Legislative
Council’s Finance Committee.
E.2 The Court of Appeal’s approach to the Article 36 right
29. The Court of Appeal
rejected Madam Kong’s argument as it was then put regarding the content
of the Article 36 right, namely, that it “confers upon all Hong Kong
residents a right to social welfare subject only to such restriction as
is limited by law; which is to say, statute law or common law formulated
with such precision as the occasion demands and which is accessible”.
[19]
30. Stock VP saw as
incurable defects in that argument, among other matters, its attempt to
confer a right to all forms of social welfare regardless of eligibility
criteria or level of benefit;
[20]
its tendency to ignore the sheer width and variety of social welfare
benefits in Hong Kong while “cherry-picking” the one CSSA facet;
[21] and its isolation of the Government’s social welfare obligations from its other cost-bearing social obligations and functions.
[22] I would respectfully agree with Stock VP in rejecting the argument so put.
31. His Lordship went on to ask rhetorically: “What then of Article 36?”
[23]
His answer was that it was “... strictly speaking, not necessary for
the purpose of the instant exercise to decide what article 36 does mean.
It suffices, for the present purpose, to conclude, as I do, that it
does not bear the meaning for which the applicant contends.”
[24] His Lordship, however, added:
“...But one might nevertheless venture to
suggest what article 36 read with article 145 envisage. With the
previous social welfare system as a base, they envisage the continuous
formulation and promulgation of policy in the realm of social welfare
for the benefit of Hong Kong residents – as opposed to visitors – in the
light of such economic conditions and social needs as prevail from time
to time, with the objective of developing and improving the system, it
being manifestly implicit that that objective can only be met if the
system be nurtured and sustained for the meaningful benefit of future
generations as well as the present. In order to meet these requirements
and in any event inherent in any such system, the right to social
welfare carries with it qualifying conditions. Hong Kong residents are
to enjoy that right, so long as they meet the qualifying conditions, for
the right itself includes the conditions. The conditions must be
lawful, so that conditions that are discriminatory are not permissible.”
[25]
32. With respect, I do
not think that an adequate approach. Its lays the emphasis entirely on
Article 145 and deprives Article 36 of any meaningful effect. It
focuses on the Administration’s role in formulating social welfare
policies, regarding it as free to define the eligibility and other
conditions for any particular benefit, provided only that such
conditions are not discriminatory. But that allows the equality rights
entirely to eclipse the welfare right. The equality guarantees derive
from Article 25 of the Basic Law and Article 22 of the Bill of Rights.
To say that the Administration cannot impose discriminatory eligibility
conditions gives effect to those guarantees. But it fails to attribute
any meaning to the first sentence of Article 36 which states: “Hong Kong
residents shall have the right to social welfare in accordance with
law”.
E.3 The content of the Article 36 right
33. Those words
unequivocally declare the Basic Law’s intention to create an independent
head of constitutional protection in the context of social welfare
rights. True it is that Article 36 does not – and obviously cannot –
descend into particulars as to specific welfare benefits or their
eligibility and other conditions. But that is because, like many other
constitutional provisions, Article 36 is intended to operate as a
framework provision. Read together with Article 145, it provides the
framework for identifying a constitutionally protected right to social
welfare: Once it is clear that an administrative scheme such as the CSSA
scheme has crystallized a set of accessible and predictable eligibility
rules, those rules may properly be regarded as embodying a right
existing “in accordance with law”, qualifying for Article 36
protection.
34. Article 145 supports
this view. It adopts the previous social welfare system as the basis
for the Administration’s formulation of policies after 1 July 1997 to
develop and improve that previous system in the light of economic
conditions and social needs. Article 145 therefore endorses the rules
and policies established under the previous system and, as discussed
above,
[26]
it implicitly regards them as rules established “in accordance with
law” and thus capable of constituting particular rights protected by
Article 36.
35. The relevant right
given constitutional protection by Article 36 in the present case is the
right defined by the eligibility rules for CSSA derived from the
previous system of social welfare and in existence as at 1 July 1997.
Crucially, this means that Article 36 confers constitutional protection
on the rules which laid down a one-year, and not a seven-year, residence
requirement as a condition of eligibility for CSSA.
E.4 Modifying rights protected by Article 36
36. Social welfare rights
which qualify as rights protected by Article 36 are subject to
modification pursuant to policies generated by the Government in
accordance with Article 145, as that Article plainly envisages. The
importance of a right being recognized as a social welfare right
protected by Article 36 is that any restriction subsequently placed on
that right is subject to constitutional review by the Courts on the
basis of a proportionality analysis (as Lord Pannick QC, appearing for
the Director
[27]
accepted). The Government was therefore entitled to change its policy
and to impose the seven-year requirement in place of the one-year
requirement. But it is also clear that such modification is subject to
constitutional review.
37. I pause at this stage
to dispose of an argument made on Madam Kong’s behalf which cannot be
accepted. It was submitted by Professor Chan that because Article 145
authorizes the Government to formulate policies “on the development and
improvement of this system in the light of the economic conditions and
social needs”, it can only make changes which improve welfare benefits
(in the sense of making them more generous) and cannot introduce a
“retrogressive” change by imposing a much longer qualifying period of
residence. But Article 145 does not address, let alone freeze, the
eligibility conditions or the level of any particular benefits. What it
does is to make it clear that the Government may formulate policies “on
the development and improvement of [the previous]
system”. Lord
Pannick rightly submitted that Article 145 does not preclude the
elimination or reduction of particular welfare benefits if that proves
necessary to develop, improve or maintain the sustainability of the
welfare system as a whole.
E.5 Constitutional review where rights are protected by Article 36
38. As this Court has
recognized, some rights are non-derogable and absolute, in which case,
no infringement is permitted and no question of proportionality arises.
[28]
But in other cases, it is well-established that the law may validly
create restrictions on constitutionally protected rights provided that
each such restriction can be justified on a proportionality analysis.
39. The starting-point is the identification of the constitutional right engaged
[29]
– Article 36 in the present case. The next step is to identify the
legal or administrative measure said to infringe or restrict that right –
the imposition of the seven-year residence requirement in the present
case (to which I shall return in greater detail). The Court then asks
whether that restriction pursues a legitimate societal aim and, having
identified that aim, it asks whether the impugned restriction is
rationally connected with the accomplishment of that end. If such
rational connection is established, the next question is whether the
means employed are proportionate or whether, on the contrary, they make
excessive inroads into the protected right.
[30]
40. In some cases involving fundamental rights such as freedom of expression or freedom of peaceful assembly,
[31] or rights bearing on criminal liability such as the presumption of innocence,
[32]
the Court has regarded the restriction as disproportionate unless it
goes no further than necessary to achieve the legitimate objective in
question. This is sometimes called the “minimal impairment” test.
Similarly, in discrimination cases, where the differentiating inroad is
based on certain personal characteristics sometimes referred to as
“inherently suspect grounds” such as race, colour, sex or sexual
orientation, the Court will subject the impugned measure to “intense
scrutiny”, requiring weighty evidence that it goes no further than
necessary to achieve the legitimate objective in question.
[33]
41. However, as the Chief Justice noted in
Fok Chun Wah v Hospital Authority,
[34]
“... it would not usually be within the province of the courts to
adjudicate on the merits or demerits of government socio-economic
policies”. Where the disputed measure involves implementation of the
Government’s socio-economic policy choices regarding the allocation of
limited public funds without impinging upon fundamental rights or
involving possible discrimination on inherently suspect grounds, the
Court has held that it has a duty to intervene only where the impugned
measure is “manifestly without reasonable justification”.
[35]
That is a test initially applied by the European Court of Human Rights
while according a broad margin of appreciation to member States in
setting and implementing their socio-economic policies.
[36]
As the Chief Justice points out, the margin of appreciation principle
has previously been adapted to apply in the context of our domestic law.
[37] It is appropriate similarly to apply the “manifestly without reasonable foundation” test in our domestic context.
42. Professor Chan sought
to argue that the challenged restriction in the present case should be
regarded as a measure that contravenes fundamental rights or engages
inherently suspect grounds of discrimination. I do not agree. The
Article 36 right to social welfare is not a fundamental right but a
right which intrinsically involves the Government setting rules
determining eligibility and benefit levels. It arises in an area where
the Courts acknowledge a wide margin of discretion for the Government.
As the Chief Justice pointed out in
Fok Chun Wah,
[38]
the adoption of a residence requirement as a criterion of eligibility
for social welfare benefits has often been upheld and is generally not
regarded as engaging any of the inherently suspect grounds.
43. Accordingly, in my
view, insofar as the disputed restriction in the present case is
rationally connected to a legitimate societal aim espoused by the
Government, the restriction will only be held to be disproportionate if
it is manifestly without reasonable foundation. I turn then to apply
these principles to the facts of the present case.
F. The right, the new restriction and the Director’s discretion
44. As we have seen, the
right protected by Article 36 is the administratively defined right of
Hong Kong residents who pass the means test and are not otherwise
disqualified, to obtain CSSA payments after having resided here for one
year. That was the established position as at 1 July 1997 when Article
36 took effect. There is no dispute that but for the seven-year
residence requirement, Madam Kong would have qualified for CSSA after
residing here for one year. Her income has at all material times fallen
below the level defined by the Director as necessary to meet basic
needs. The seven-year requirement therefore removed the safety net that
would otherwise have been deployed in her case.
45. It is important to
note the precise terms of the new restriction. At a meeting of the
Executive Council on 3 June 2003, the Council advised and the Chief
Executive ordered that with effect from 1 January 2004:
“To be eligible for CSSA, a person must have been a Hong Kong resident for at least seven years ...
[39]
Children aged below 18 are exempted from any prior residence requirement.
Current Hong Kong residents (i.e. those who
have become Hong Kong residents before the seven-year residence rule
comes into effect, viz. 1 January 2004 as proposed) [are also exempt
[40]].
In exceptional circumstances, assistance may be
granted at the discretion of the Director of Social Welfare (DSW) to a
person who does not meet the residence requirement.”
46. The new residence
requirement therefore does not apply to all new arrivals (the term used
by the Director describe immigrants who have not yet resided here for
seven years or more). Children under 18 (who had previously been
subject to the one-year residence requirement) and current Hong Kong
residents
[41]
who pass the means test therefore qualify for CSSA payments. So do
other new arrivals for whom the requirement is waived as a matter of
discretion. The guidelines for the exercise of that discretion laid
down by the Director are set out later in this judgment.
[42]
G. The Government’s purpose in adopting the seven-year rule
47. Turning to the next
stage of the analysis, it is necessary to ask whether the seven-year
restriction on the Article 36 right pursues a legitimate societal aim
and, having identified that aim, to ask whether the restriction is
rationally connected with the attainment of that end.
48. The restriction was recommended by the Task Force on Population Policy (“
the Task Force”) chaired by the then Chief Secretary, Mr Donald Tsang, in its Report issued on 26 February 2003.
[43]
49. It is worthwhile
emphasising that a purpose relied on to justify a restriction on a
constitutional right must be a legitimate societal aim. In other words,
it has to be an aim which furthers the legitimate interests of
society. The Government might simply state that it is cutting
expenditure with the aim of “saving money”. But saving money would not
in itself be a legitimate aim. The purpose and effect of the cut in
expenditure would have to be taken into account. If the cut in
expenditure meant that the Government was abdicating an important
responsibility which the government ought to discharge in the public
interest, the saving of money by that means would not be a legitimate
aim. To take an extreme example, it would not be a legitimate aim to
cut expenditure by say, halving the number of ambulances or fire
engines, thereby endangering public safety. In the present case, the
Government is not saying that its aim is simply to save money. It is
saying that the restriction was introduced to save money because such
savings are necessary to ensure the sustainability of the social
security system.
50. Thus, explaining the new seven-year rule to the Legislative Council’s Panel on Welfare Services (“
the Welfare Panel”) on 10 March 2004, the Director stated:
“The new residence requirement for social
security benefits was recommended by the Task Force on Population
Policy. Its aim was to provide a more rational basis for the allocation
of public resources in the light of rising social expenditure and
limited financial resources and to ensure the long-term sustainability
of the provision of social security benefits to the community.”
[44]
51. That is how the case has been argued. Andrew Cheung J noted that the Director’s submission was:
“... that the legitimate aim of the seven-year
residence requirement is to adopt a proper basis for the allocation of
finite public resources in the light of rising social expenditure so as
to ensure the long term sustainability of the provision of social
security benefits to the society as recommended by the 2003 Taskforce on
population.”
[45]
52. It was an argument that the Court of Appeal accepted. Stock VP stated:
“...ample justification has been provided for
the contention that in order to sustain the viability of the social
welfare system, the eligibility criteria required amendment. That was
the result of anticipated problems posed by an ageing population, a low
birth rate, by the fiscal deficit at the time of the decision, the
continuing flow of OWP holders with a concomitant absence of control of
immigration intake from that direction, decreasing emigration and the
fact that the scheme was a non-contributory one.”
[46]
53. In Mr Cheung’s Affirmation,
[47]
three related factors are said to contribute to the need for measures
to safeguard the system’s sustainability: (i) the policy of accepting
immigrants from the Mainland under the OWP scheme; (ii) Hong Kong’s
ageing population; (iii) the rise in expenditure on CSSA. The
Government regards the seven-year restriction as a rational response to
the sustainability problem so arising:
“Against the background of a serious fiscal
deficit and the implication of demographic trends and characteristics
identified in the [Task Force] Report, the Administration took the view
that there was a strong case for applying a uniform 7-year residence
requirement for providing heavily subsidized social services. In respect
of CSSA, the Administration considered a 7-year residence requirement
for new arrivals aged 18 or above to be a rational basis for allocation
of social resources ...”
[48]
54. Mr Cheung also puts forward certain other arguments championing the reasonableness of the rule, which I shall consider later.
[49]
I wish first to focus on the question whether a rational connection
exists between the avowed purpose of ensuring the financial
sustainability of the social security system on the one hand and the
seven-year residence requirement on the other. I propose to examine
each of the three factors said to underlie the sustainability problem
and consider whether they provide or contribute to a rational
justification for the seven-year restriction.
H. The OWP scheme
H.1 The problem
55. The Task Force Report
[50] explains the background and problem which had to be dealt with:
“Under Article 24(2)(3) of the Basic Law as
interpreted by the NPCSC Interpretation dated 26 June 1999, Mainland
children born to Hong Kong permanent residents have the right of abode
in Hong Kong provided that at least one of their parents have obtained
permanent resident status by birth or residence at the time of birth of
the children. In anticipation of the implementation of the Basic Law,
the daily OWP quota was increased from 105 to 150 in 1995 to facilitate
the entry of these children. The remaining places are allocated to
Mainland spouses and other OWP applicants with no right of abode who
generally have to wait for a longer time before they can settle in Hong
Kong. Currently, spouses in Guangdong have to wait for about seven to
eight years.
The discrepancy in the times of arrival in Hong Kong between the CoE children
[51]
and their Mainland parents often gives rise to separated families.
Concern has been expressed in the community about the various problems
that are believed to have resulted from this situation, problems such as
inadequate parental care, economic hardship if the Hong Kong parent has
to give up a job to look after the children, adverse impact on family
relationship, etc. As the number of new arrivals from the Mainland
continues to grow, the problem of split-families also grows. Many
Legislative Council Members, academics and opinion leaders whom we
approached have made the point strongly that the situation has to be
properly addressed and that a proper balance has to be struck between
orderly admission of new arrivals from the Mainland, both children and
spouses, and upholding family unity.”
H.2 Family reunion as the main source of population growth
56. To address this
problem, the Government, in cooperation with Mainland authorities,
adopted the OWP scheme. Mainland authorities issue OWPs in accordance
with Mainland law, permitting the exit of Mainlanders to Hong Kong for
settlement. As the Task Force Report explains:
“The OWP Scheme is a scheme devised primarily
to facilitate families with immediate members (spouses and children)
residing in the Mainland to be reunited in Hong Kong. OWP holders can be
broadly divided into two groups: children of Hong Kong permanent
residents with Certificate of Entitlement (CoE); and spouses and other
dependants. The CoE children are permanent residents and have right of
abode in Hong Kong. Spouses and other dependants who enter Hong Kong on
OWPs are non-permanent residents but may become permanent residents
after having ordinarily resided in Hong Kong for a continuous period of
not less than seven years.”
[52]
57. The OWP scheme has
become “the single most important immigration policy that shapes Hong
Kong’s demographic growth and composition”, accounting for some 93% of
population growth from 1997 to 2001.
[53] Applying the increased daily quota of 150,
[54]
about 55,000 Mainland immigrants are admitted each year. The Task
Force Report suggested that some 168,000 persons were in the queue
waiting for a OWP.
[55]
The Government has been content to maintain that rate of inflow. In a
press release issued upon publication of the Task Force Report on 26
March 2003, the then Chief Secretary stated:
“We respect the right of family reunion and the
Right of Abode conferred by the Basic Law, and we have concluded that
the present daily allocation of 60 within the 150 quota for children
with right of abode in Hong Kong is appropriate. ... For the time being,
the total daily quota of 150 will remain unchanged. The SAR Government
will liaise closely with the Mainland authorities with regard to the
numbers and the allocation among the categories. If there is evidence
that the demand falls, we will discuss with the Mainland authorities to
reduce the quota.”
58. Most new arrivals
entering under the OWP scheme are children with the right of abode in
Hong Kong and Mainland spouses coming to join spouses already resident
here.
[56] About half of the children tend to be under 18. So in 1996, 48% were aged 19 or below;
[57] and in 2002/03, 51.6% were 18 or below.
[58]
The adult OWP holders are usually wives of Hong Kong residents. Thus,
in 2001, 65% of all OWP holders entering Hong Kong were females, mostly
housewives.
[59]
59. It is the
Government’s policy to facilitate the integration of new arrivals in the
community and the Task Force Report points out that:
“...there are few significant differences in
university attendance between native-born children and the Mainlanders
who came to Hong Kong before the age of nine. It is only among the
‘older’ Mainland children who arrived in Hong Kong after the age of nine
that significant differences in university attendance exist. This
suggests that the younger an OWP applicant is admitted, the easier it
will be for him or her to adapt to Hong Kong’s education system.”
[60]
60. The OWP scheme
therefore favours younger children as immigrants and they are given the
largest sub-quota (60) of the 150 daily quota. They are likely to be
qualified to settle in Hong Kong before their parent (usually the
mother) on the Mainland (spouses separated for over 10 years being given
a sub-quota of 30). However, younger children obviously need parental
care. Since 2002, Mainland authorities have facilitated visits by
spouses to their families in Hong Kong by allowing them to apply for
two-way permits as and when they wish once they have applied for a OWP.
[61]
This effectively allows family reunion to take place while the Mainland
parent’s own OWP is pending. The Task Force Report recommended that
such spouses should be encouraged to take advantage of this to
familiarise themselves with Hong Kong conditions and to help themselves
decide whether to settle here.
[62]
H.3 How the OWP scheme bears on the seven-year requirement
61. It is evident from
the foregoing that no support for the CSSA seven-year requirement can
rationally be derived from any aspect of the OWP scheme. The humane and
laudable purpose of that scheme is the promotion of family reunion,
respecting the right of abode of children of Hong Kong permanent
residents under the Basic Law. It gives preference especially to
younger children because they integrate more easily. And realistically,
to provide them with adult carers, their Mainland parents, usually
their mothers, are encouraged to come to Hong Kong on two-way permits
pending issue of the OWP applied for, eventually settling here as Hong
Kong residents in their own right.
62. Where such a reunited
family is poor, having means-tested income which does not cover the
basic needs of its members, one would expect the social security scheme
to operate in harmony with the OWP scheme and so make CSSA benefits
available. While it may be that the one-year residence requirement has
to be accepted as the basic right to social welfare historically
defined, it would be wholly irrational, when viewed from the perspective
of the OWP scheme, to raise it to a seven-year requirement. Although
the Task Force Report contains considerable discussion of the OWP
scheme, it provides no rational basis for adopting the seven-year rule.
On the contrary, its logic demands the disapplication of that rule in
relation to OWP arrivals.
63. That logic has only
partly been respected. In line with encouraging younger immigrant
children to come, new arrivals under 18 years of age have been exempted
from the seven-year restriction, but – illogically – there is no such
exemption for Mainland parents who come to take care of them. It
follows that unless the operative restriction is waived as a matter of
discretion – a matter discussed further below
[63]
– such parents have to find some way to cope over a seven-year period
even though a means test has shown that they are without sufficient
income to meet their basic needs.
64. That
counter-productive aspect of the seven-year requirement has not escaped
members of the Welfare Panel. At its meeting held on 10 March 2003, Ms
Li Fung-ying is recorded as having stated that:
“... the seven-year residence requirement for
the CSSA Scheme [was] a policy marred with contradiction, as its having
the effect of deterring potential new arrivals to settle in Hong Kong
was at variance with the policy of family reunion.”
[64]
65. And after the
seven-year requirement had been in place for some four years, the
Sub-Committee appointed to review the arrangements for CSSA taking into
consideration the views of the public, service users and
non-governmental organisations providing welfare services, reported to
the Welfare Panel
[65] that deputations:
“...informed the Subcommittee that many
new-arrival single mothers faced great financial hardship for being
unable to meet the residence requirement. They were unable to find a
suitable employment because of their low educational attainment and the
need to take care of their young children. Given that these new arrivals
were not eligible for CSSA, they had to rely on their child(ren)’s CSSA
for a living.”
66. It is clear, to say
the least, that the OWP scheme provides no support whatsoever for the
Government’s alleged legitimate aim of ensuring the welfare system’s
sustainability and no support for the existence of any rational
connection between that aim and the impugned seven-year requirement.
The policies underlying the OWP scheme militate against that
restriction.
I. Hong Kong’s ageing population
67. The second factor
said to underlie the Government’s avowed legitimate aim is the need to
cater for an ageing population. The Task Force identified the problem
in the following terms:
“In 2001, Hong Kong’s total fertility rate
reached an extremely low level of 927 children per 1,000 women, well
below the replacement level of 2,100 children per 1,000 women. At the
same time, life expectancy at birth is projected to reach 82 for men and
88 for women in 2031, one of the longest in the world.
Hong Kong’s population is aging. A quarter of
its population is expected to be aged 65 or above by 2031. More
significantly, the size of the workforce will shrink as the prime
working age population declines.”
[66]
68. In every society, the
working age population economically supports children below, and the
elderly above, working age. The demographic pattern identified above
undoubtedly presents a serious long-term problem since it projects a
shrinking working age population having to support a growing number of
long-lived elderly dependents. The Task Force Report projects the
following dependency ratios from 2002 to 2031:
Year |
Child |
Elderly |
Overall |
2002 |
223 |
158 |
381 |
2006 |
203 |
162 |
365 |
2011 |
180 |
164 |
344 |
2016 |
178 |
198 |
376 |
2021 |
179 |
245 |
424 |
2026 |
180 |
313 |
493 |
2031 |
182 |
380 |
562 |
69. These figures
indicate the projected numbers of children (those under 15) and the
estimated numbers of elderly persons (those over 65) who will be
dependent on every 1,000 persons between the ages of 15 and 65. Thus,
in 2002, for every 1,000 persons aged between 15 and 65, there were
estimated to be 223 child dependents and 158 elderly dependents with a
total overall dependency ratio of 381. It was projected that over the
years, the child dependency ratio would decline while the elderly
dependency ratio would markedly increase from the year 2016 onwards.
70. This obviously has serious implications for the cost of caring for the elderly. The Task Force puts this as follows:
“One serious economic problem caused by an
accelerated increase in the number of elderly people in the population
is social security payments. The Government is committed to providing
financial assistance to elderly people in need. More than 600,000
persons aged 60 or above receive financial assistance through either the
CSSA or the Old Age Allowance (OAA). ... Total Government expenditure
in financial assistance for elders is estimated to be $11.8 billion in
2002-03, accounting for 5.4% of recurrent public expenditure and
representing an increase of 50% when compared to the $7.8 billion paid
out in 1997-98. The CSSA and OAA Schemes are funded entirely from
General Revenue and are non-contributory. Should the rate of payment and
eligibility for the OAA remain unchanged, it is estimated that by 2031,
the total payment for OAA alone will rise to $10.4 billion. That for
CSSA on elderly cases is estimated to leap-frog to $20.8 billion...
Another serious economic problem caused by an aging population is steep
increases in healthcare expenditure.”
[67]
71. The Government is
undoubtedly right to regard the problems of our ageing population as
serious and right to lay down policies aimed at mitigating those
problems with a view to ensuring the long-term sustainability of our
social welfare system. But what, if any, rational connection is there
between such mitigation and the impugned policy of excluding new
arrivals from receiving CSSA until they have resided here for seven
years? I do not think any such connection exists.
72. Given that one of the
root causes of the ageing population problem is Hong Kong’s low
fertility rate, and given that the OWP scheme has become “the single
most important immigration policy that shapes Hong Kong’s demographic
growth and composition”, with Mainland new arrivals accounting for 93%
of our population growth between 1997 and 2001,
[68]
a rational response to the ageing problem ought to involve encouraging
the entry of young immigrants to rejuvenate our population. This was
recognized by the Task Force which acknowledged that:
“...OWP holders, in particular young children,
have contributed significantly towards mitigating the negative effects
of low fertility and population aging by replenishing the dwindling
number of our younger age cohorts.”
[69]
73. As has already been
pointed out, the Government has only partially acted on that logic,
exempting those under 18 from the seven-year residence eligibility
criterion for CSSA, but applying the restriction to parents who arrive
to be reunited with and to care for such children. To that extent, far
from the seven-year requirement being a rational measure to mitigate the
ageing population problem (and thereby contributing to the
sustainability of our social security system), it is a
counter-productive and irrational measure.
74. The evidence
regarding social security payments to the elderly also belies any
rational connection between the new restriction and the Government’s
avowed aim of ensuring sustainability. The seven-year restriction does
not affect all elderly CSSA recipients, but only new arrivals who are
elderly. Such persons constitute only a small proportion of all new
arrivals. The elderly are given a relatively low priority and thus are
allotted a small sub-quota under the OWP scheme. Thus, the Task Force
Report
[70]
states that the 150 daily quota was allocated according to the
following sub-quotas: 60 for children with Certificates of Entitlement;
30 for spouses separated for over 10 years; 60 for persons in all other
categories, including spouses separated under 10 years; unsupported
children coming to join relatives in Hong Kong; persons coming to Hong
Kong to take care of their unsupported aged parents; unsupported elderly
people coming to join relatives in Hong Kong and persons coming to Hong
Kong to inherit legacies.
75. Of the relatively few elderly persons who do enter under the OWP scheme, only a small proportion
[71]
receive CSSA and Old Age Allowance. And even before the seven-year
requirement was introduced on 1 January 2004, there was already in place
a stringent requirement in respect of Old Age Allowance: to be
eligible, a person had to have resided in Hong Kong for not less than
five years since attaining the age of 60.
[72]
It follows that savings to CSSA expenditure that could be achieved by
raising the requirement to seven years for new arrivals would be minimal
and could hardly qualify as a response to the ageing population
problem, aimed at ensuring the sustainability of the welfare system.
J. The rise in CSSA expenditure
76. There is no doubt
that in the decade leading up to 1 January 2004, spending on CSSA had
risen sharply and that it was the Government’s duty to consider policies
aimed at ensuring its sustainability.
77. The first point to
note, leaving aside for the moment the seven-year restriction, is that
the Government did indeed confront the problem of steeply rising
expenditure and did take action aimed at safeguarding its
sustainability. The question which arises is whether, in the light of
those measures, there is any rational basis for regarding the seven-year
restriction on the Article 36 right as such a measure.
J.1 The December 1998 Report
78. The problem of
sharply increasing expenditure was recognized and subjected to detailed
consideration by an Inter-Departmental Steering Group chaired by the
Director, which published a report dated December 1998. The Report
stated:
“The current review was prompted by growing
public concern about the rapid growth in the CSSA caseload and its
expenditure, the high levels of CSSA benefit for larger families as
compared with market wages, and the sharp increases in the number of
people of working age turning to CSSA. There is also an increasing
perception that some people are abusing the system.”
[73]
79. Key figures and concerns were given as follows:
“(a) The CSSA caseload rose by 146% from 88,600 in September 1993 to 218,400 in September 1998.
(b) The CSSA expenditure increased by nearly three times from $2.4 billion in 1993/94 to $9.4 billion in 1997/98.
(c) The average monthly CSSA payments for households of four or more persons are now considerably higher than low-end wages.
(d) The number of ‘unemployment’ CSSA cases
increased over six times from 3,500 in September 1993 to 26,200 in
September 1998, representing 12% of the total CSSA caseload. During the
same period, the ‘single parent’ CSSA cases increased by 268% from 5,700
to 20,900, representing 10% of the total CSSA caseload.
(e) There have been increasing calls for the
Government to take more effective measures to prevent abuse of CSSA. A
special hot-line for reporting suspected CSSA fraud cases was set up by
the Social Welfare Department (SWD) in August 1998. Up to the end of
September 1998, it had received some 1,300 calls.”
The estimated CSSA expenditure for 1998/99 is expected to be
above $13 billion. The Government will spend much more on CSSA in the
years to come even if all the SG’s recommendations (see paragraph 8-29
below) are accepted and implemented.”[74]
80. The Steering Group
was therefore examining increases in CSSA expenditure over the scheme as
a whole, seeking to identify contributing factors and seeking ways to
bring such expenditure under control. There is no suggestion that CSSA
claims by new arrivals merited any special attention or that they were a
cause for concern.
81. The Steering Group
made a series of policy recommendations, applicable across-the-board,
mainly aimed at encouraging CSSA recipients to get jobs. To take one
example, the Report noted that CSSA payments made to larger households
resulted in per capita income that was larger than the per capita income
of non-CSSA households in the lowest expenditure group,
[75]
with the likely result that able-bodied persons would opt to remain on
welfare rather than getting a job. In response, the Report recommended
an across-the-board reduction in the standard rate of CSSA of 10% for
households with three able-bodied adults and children; and of 20% for
households with more than three such persons.
[76]
It contained a calculation of the percentage savings to be achieved by
such measures, ranging from a saving of 5% in single member households
to 17% in households with five members.
[77] That recommendation was implemented in June 1999.
[78]
Such a policy, creating disincentives against the development of a
culture of dependence, may readily be seen as rationally aimed at
ensuring sustainability.
J.2 Reduction in the standard rate
82. Another rational
response to concerns about mounting expenditure and sustainability was
the order of the Chief Executive in Council to reduce standard rates of
CSSA across-the-board by 11.1% to take effect on various dates in 2003
and 2004.
[79]
83. The Legislative
Council Brief described the problem faced as involving unacceptable
unabated growth in welfare expenditure. It noted that upward
adjustments had been made to standard rates by 6.5% in 1997-98 and 4.8%
in 1998-99.
[80]
However, as at December 2002, the total CSSA caseload was 266,571,
representing a year-on-year growth of 10.3%, with the “unemployed” CSSA
caseload having increased by 40.3% over the same period. This led to
the projection that the approved provision of CSSA in 2002-03 of $16
billion (already up 11.1% on actual the expenditure of $14.4 billion
in 2001-02) would be insufficient. It was also estimated that the
requirement for 2003-04 would be well in excess of $18 billion.
[81]
84. This was seen as a threat to the system’s sustainability:
“Firstly, against the general economic
situation and high unemployment, the number of families and individuals
requiring support by Government is bound to increase. To sustain this
safety net, we have to ensure our existing resources go further to meet
the increasing demand. Secondly, prices for goods and services have come
down considerably even as measured specifically by the SSAIP.
[82]
... Thirdly, the HKSAR Government is facing some unprecedented budget
deficits and of the Government is committed to restoring fiscal balance
by 2006-07 as announced by the Financial Secretary...”
[83]
85. The Government therefore decided to reduce the CSSA and SSA standard rates of payment:
“For fiscal reasons and to ensure that we could
continue to meet increase in demand, it is therefore proposed that the
CSSA and SSA rates should be adjusted downward; that the
over-adjustments in standard rates for able-bodied recipients under the
CSSA Scheme, and those of the non-means tested [Disability Allowance]
under the SSA Scheme should be recouped in one go through an 11.1%
reduction from June 2003 .... and for non-able-bodied CSSA recipients,
namely the elderly, the disabled and those medically certified to be in
ill health, the 11.1% reduction the standard rates will be effected in
two phases, first by 6% from October 2003, followed by the second phase
adjustment from October 2004.”
[84]
86. Again, in my view,
the rational connection between the sustainability objective and those
across-the-board reductions of the standard rates is plain to see.
J.3 The seven-year residence requirement
87. The Government’s case
in support of the seven-year requirement based on rising cost is
unfocussed and sparse. Mr Cheung points to rising public expenditure on
social welfare generally (reaching $32.8 billion in 2006-07), with
social security taking up the largest share (73%).
[85] He indicates how overall spending on CSSA has increased over the past decade:
“In 1993-1994, expenditure for CSSA amounted to
$2.4 billion. The upward trend in CSSA expenditure levelled off
slightly between 1999 to 2001 at around $13.6 billion, and began to rise
again in 2001-2002. In 2003-2004 Draft Estimates of Expenditure, the
Administration was seeking a provision of $17 billion for CSSA to meet
anticipated increase in demand. This is $780 million over the revised
provision of $16.3 billion on 2002-2003.”
[86]
88. He refers to new arrivals taking up CSSA benefits, stating:
“Between March 1999 and June 2002, it was
estimated that new arrivals on CSSA benefits rose from 14.3% to 16.6% of
all new arrivals.”
89. He then points out how expenditure on new arrivals has increased:
“The estimated CSSA expenditure on new arrivals
increased from $1,467 million (or 10.8% of total CSSA expenditure) in
1999-2000 to $1,728 million (or 12% of total CSSA expenditure) in
2001-2002.”
[87]
90. Those arguments are
quite inadequate. It is clear that spending on social welfare in
general, and on CSSA in particular, has risen markedly over the past
decade. But that says nothing to justify the impugned restriction
relating to new arrivals. In March 2003, the Director reported that
only 18% of new arrivals were on CSSA.
[88] And on the figures derived from the evidence,
[89] new arrivals have generally made up 12% to 15% of the total number of CSSA recipients:
Year |
Total of CSSA recipients |
New arrival CSSA recipients |
98/99 |
382,454 |
45,945 (12%) |
Mar 2000 |
370,231 |
45,477 (12.3%) |
Mar 2001 |
367,470 |
50,146 (13.6%) |
Mar 2002 |
410,998 |
60,982 (14.8%) |
Dec 2002 |
466,868 |
69,345 (14.9%) |
91. As we have seen, the
December 1998 Report of the Inter-Departmental Steering Group addressed
the problem of rapidly increasing costs without anywhere suggesting that
CSSA claims by new arrivals caused any particular problem or required
any measures to be taken. The overall increase in spending may
obviously be due to a whole range of factors. Thus, the 11.1%
across-the-board reduction of standard rates implemented in 2003 and
2004 was a response to an unacceptable increase in expenditure
attributable to upward adjustments subsequently thought to have been
excessive.
92. Nor is it helpful for the Government simply to point to the increase in CSSA expenditure in relation to
all
new arrivals. Without evidence as to the savings which the seven-year
restriction has achieved by excluding the segment of new arrivals
actually affected, it is very difficult to evaluate its rational
connection (if any) with the avowed objective of ensuring sustainability
of the social security system.
93. As emphasised above,
[90]
the precise terms of the seven-year residence requirement must be kept
in mind. By implementing the new rule, no savings are achieved in
relation to new arrivals under 18 years of age; new arrivals already
Hong Kong residents on 1 January 2004; and new arrivals who successfully
obtained a waiver of the residence requirement.
94. The importance of
those limits can be illustrated by considering the position in
2001-2002. In that year, the cost of CSSA was $14.4 billion for all
recipients. The cost of CSSA paid to all new arrivals was 12% of the
overall amount, namely, $1.7 billion. If the seven-year requirement had
then been in place, $964 million would have been paid in any event to
those under the age of 18.
95. As to the remaining
$764 million, those who were already Hong Kong residents in that year
would also have received CSSA despite the new rule, and savings would
have shrunk further when discretionary waivers were taken into
consideration. One would therefore have been left with savings in
respect of new arrivals affected by the seven-year rule which represent a
very small fraction indeed of the $14.4 billion overall expenditure on
CSSA for that year. It is true that in subsequent years, the number of
recipients who have not resided here for seven years would progressively
diminish. It nevertheless remains the case that the actual savings
would be proportionately reduced by payments made to residents in that
class for each year over the entire seven-year period.
96. As pointed out above,
the legitimate aim espoused is not merely saving whatever money might
be saved, but preserving the system’s sustainability. The relatively
insignificant level of savings achievable by implementing the seven-year
rule severely undermines the suggestion that the restriction was
genuinely intended to be, or functioned as, a measure rationally
designed to safeguard the sustainability of the social security system.
97. In fact, the
Government has acknowledged the immateriality of the savings achievable
by the seven-year requirement. In its information paper dated 2 January
2004, the day after the new rule took effect, the Government informed
the Welfare Panel’s Subcommittee that “Of the amount paid to the new
arrivals in 2002-03, $963 million were made to those aged 18 or above
and $1,068 [million] to those aged below 18.” Revealingly, the Paper
went on to state:
“The new residence requirements for CSSA are, however,
not driven by the need to reduce CSSA expenditure on new arrivals,
but by the need to adopt ‘the principle of seven-year residence
requirement’ for providing social benefits heavily subsidized by public
funds, as recommended by the Task Force on Population Policy, to ensure a
rational basis on which our public resources are allocated. The
Government remains committed to providing an effective and sustainable
safety net for the financially vulnerable.” (Italics supplied)
[91]
K. Other justifications put forward by the Government
98. The reference to the
so-called “principle of seven-year residence requirement for providing
social benefits heavily subsidized by public” quoted above recalls a
point made in the Task Force Report
[92] as an additional reason for the seven-year restriction, as follows:
“Chapter III highlights the anomaly that exists
in the eligibility criteria of various subsidized benefits in terms of
length of residence in Hong Kong. Among the major benefits, a
‘seven-year’ residence rule is applied to public rental housing
applicants (except children under the age of 18). In the case of CSSA, a
‘one-year’ residence rule is applied. No such rule is implemented for
users of public health and hospital services; they are not even subject
to means test.”
99. The Task Force Report went on to state:
“After careful consideration, the Task Force
considers that there is a strong case for removing the anomaly that
exists in the eligibility criteria for major subsidized benefits, and
for applying a uniform seven-year residence rule for providing all
heavily subsidized social services including CSSA and public healthcare
benefits. Eligibility based on a seven-year residence requirement
reflects the contribution a resident has made towards our economy over a
sustained period of time in Hong Kong. A seven-year residence is also
normally required for the grant of permanent resident status in Hong
Kong, for which additional rights are prescribed in the laws of Hong
Kong.”
[93]
100. These suggestions
[94]
of course have nothing to do with promoting the financial
sustainability of the social security system and do not provide any
support for the seven-year residence requirement as rationally connected
with the legitimate purpose proclaimed by the Government.
101. It is unclear
whether the Director advances such grounds as separate purposes
supplying independent legitimate aims capable of justifying the
restriction of the Article 36 right. If that is the intention, such
grounds are, in my view, so lacking in coherence that they cannot
properly serve as legitimate aims for the restriction. Alternatively,
if they do serve as such purposes, they are such insubstantial and
socially insignificant aims that the restriction of the Article 36 right
is a wholly disproportionate measure to achieve them, making it a
measure that is manifestly without reasonable foundation.
K.1 Uniformity of qualifying periods
102. The first of the
additional arguments mentioned above is the somewhat bizzare suggestion
that there is some intrinsic value in having uniform qualifying periods
for welfare benefits where such benefits are heavily subsidized by the
state. Symmetry for the sake of symmetry is hardly a legitimate aim.
Waiting times for public rental housing must obviously depend on the
stock of public housing available and a shortage may lead to the setting
of long qualifying periods. Why should those qualifying periods be
relevant to setting the eligibility period for CSSA payments intended to
meet the immediate basic needs of indigent individuals and families?
103. It is also hard to
understand why the absence of any residential requirement for access to
public health and hospital services should be regarded as “an
anomaly”. It would indeed be a dysfunctional public health system if a
person in need of urgent medical services were to be refused medical
assistance on the ground that he or she has not met some residential
qualification imposed simply to achieve “uniformity” with residential
qualifications adopted for wholly different purposes.
104. It is also
impossible to see how the seven-year qualifying period for permanent
resident status laid down by Article 24(2) of the Basic Law is
relevant. That seven-year period is essentially a qualifying period for
taking part in the government of the HKSAR. One has to be a Hong Kong
permanent resident to vote and stand for election;
[95] to become Chief Executive;
[96] to become a member of the Executive
[97] or Legislative
[98]
Councils; and so forth. It makes no sense to impose a like residence
requirement for CSSA applicants simply to achieve a seven-year symmetry.
K.2 Contribution towards our economy
105. Another strand of these additional arguments involves the suggestion that:
“Eligibility based on a seven-year residence
requirement reflects the contribution a resident has made towards our
economy over a sustained period of time in Hong Kong.”
[99]
106. This loses sight
of the persons whose eligibility is in issue and the circumstances in
which they find themselves. The evidence is that in 2002, in the 22-59
age group, 95% of new arrival CSSA recipients were women.
[100]
This pattern has continued so that new arrival recipients of CSSA are
overwhelmingly likely to be women; and likely to be Mainland spouses
reunited with their families in Hong Kong. They are likely to be
looking after children who have the right of abode, and are therefore
likely to be unable, or to have very limited capacity, to take up
outside employment. In playing their role, they make a valuable
contribution to our society, helping rejuvenate our ageing population,
helping to integrate children with right of abode into our community and
helping to avoid the socially disruptive consequences of split
families. They are persons who, on the Director’s own means test, are
unable to meet their basic needs. In such circumstances, it appears
arbitrary and manifestly unreasonable to exclude them from CSSA benefits
for seven years because of some notion that they should only receive
such benefits in exchange for seven years’ worth of contribution to our
economy.
107. But even where a
Hong Kong resident, having arrived as holder of a OWP, is unable to work
and is simply indigent, the idea of requiring him or her to contribute
to our economy for seven years before being allowed to draw CSSA makes
little sense. The realistic view is that such person will need to draw
upon, rather than make contributions to, our economic resources in the
same way as an indigent permanent resident does. It is illusory to
think that adoption of a seven-year eligibility criterion is somehow
going to turn such a person into a net contributor to the economy.
108. The idea of
requiring seven years’ contribution to the economy as a condition of
receiving CSSA is in truth a rejection of the principle, accepted in
Hong Kong since 1970, that social welfare is the responsibility of the
Government to be met by public funds. Government officials in charge of
social welfare have rightly rejected attempts to undermine that
principle.
109. This is
exemplified in two places in the December 1998 report of the
Inter-Departmental Steering Group. It will be recalled that the
Steering Group recommended the reduction of the standard rate for larger
households.
[101]
It had also been suggested that payment of standard rates to such
households should be capped. The Steering Group’s response was:
“We do not support this idea because by capping
the benefits payable to larger households, the basic needs of some
family members would not be provided for at all. This is against the
objective of the CSSA Scheme.”
[102]
110. They also referred
to a suggestion that CSSA for able-bodied unemployed recipients should
be cut off or reduced after a time limit of say, six months, so as to
encourage them to find employment. The Steering Group rejected that
suggestion stating:
“...we do not propose to terminate or reduce
assistance for able-bodied unemployed recipients after a time limit. A
balance has to be struck between ensuring incentives to work and the
guarantee of basic livelihood. If termination or reduction of benefits
was to be introduced and was seen as leading to undue hardship, it would
run the risk of undermining the fundamental function of our social
security system.”
[103]
111. Perhaps it is
because the seven-year residence requirement originated, not in a
specialist social welfare review, but as something of a side-wind
deriving from a long-term population policy study, that there has not
been proper recognition of the threat posed by the seven-year
restriction to those fundamental social welfare values – values which
have received constitutional acknowledgement in Article 36.
K.3 Fiscal deficit
112. Another point made
by the Government on a number of occasions in seeking to justify the
seven-year rule involves reference to the restriction being imposed a
“against the background of a serious fiscal deficit”:
“Against the background of a serious fiscal
deficit and the implication of demographic trends and characteristics
identified in the [Task Force] Report, the Administration took the view
that there was a strong case for applying a uniform 7-year residence
requirement for providing heavily subsidized social services.”
[104]
113. It is significant
that the deficit is put no higher than a “background” feature. It is
also significant that when Stock VP referred to this, he spoke of “the
fiscal deficit at the time of the decision”. Judicial notice may be
taken of the following figures derived from the annual accounts
published by the Government:
[105]
Year
HK$ millions |
Net Surplus /Deficit |
Operating revenue |
Operating expenses |
Expenditure on social security |
Exchange Fund surplus (deficit) |
| 2002-2003 |
(43,384) |
151,244 |
(210,727) |
(21,815) |
31,488 |
| 2003-2004 |
10,979 (restated) |
167,014 |
(212,188) |
(22,860) |
65,738 |
| 2004-2005 |
19,434 |
192,369 |
(207,827) |
(23,247) |
24,571 |
| 2005-2006 |
48,974 (restated) |
231,156 |
(206,907) |
(23,444) |
33,165 |
| 2006-2007 |
124,867 |
223,627 |
(208,318) |
(23,185) |
65,887 |
| 2007-2008 |
179,343 |
265,269 |
(218,835) |
(24,130) |
63,821 |
| 2008-2009 |
(133,103) |
250,609 |
(251,775) |
(27,466) |
(146,429) |
| 2009-2010 |
145,252 |
242,133 |
(251,376) |
(27,959) |
116,309 |
| 2010-2011 |
96,724 |
274,637 |
(247,132) |
(25,928) |
50,037 |
114. The figures show
that there was indeed a net deficit in the year ended 31 March 2003.
However, the figures indicate that the seven-year rule was not
introduced to cut spending so as to rein in that deficit. They also
show that such deficit was not a persistent feature of Government
finances. The figures suggest that the key determinants of whether
there would be a net surplus or deficit were the level of operating
revenue
[106] and the results of investments made by the Exchange Fund.
[107] Operating expenses
[108]
in general and spending on social security in particular were
relatively stable and rose at a comparatively modest rate in the
eight-year period after the deficit was incurred. Healthy surpluses
accrued in the five years following the deficit year as operating
revenues increased and the Exchange Fund performed positively. There
then accrued a substantial deficit in 2008-2009, very largely due to
poor Exchange Fund results, but that was reversed by a greater net
surplus in the following year, followed by another hefty surplus in the
subsequent year. The fiscal deficit in 2002-03 is therefore indeed no
more than a background feature in the discussion. It makes no
contribution to any justification of the seven-year rule.
L. Prior warning, charities and the Director’s discretion
115. Finally, I should
mention three arguments that the Director has advanced in aid of the
submission that the seven-year residence requirement is a reasonable
measure. As I understand them, they are put forward at the
proportionality stage of the argument. In other words, the Director’s
main proposition is that the seven-year requirement is justified as a
rational measure aimed at ensuring the financial sustainability of Hong
Kong’s social security system and that it is a reasonable policy because
any hardship flowing from the restriction is catered for, or at least
significantly mitigated, by the three matters to which I now turn.
L.1 Prior warning against coming to Hong Kong
116. First, the Director points out that the seven-year requirement has been widely publicised on the Mainland,
[109] the intention being that:
“... a stricter residence requirement for CSSA
would send a clear message to potential migrants that they should plan
carefully and ensure that they have sufficient means to support
themselves in Hong Kong.”
[110]
117. Making this point to the Welfare Panel, the Director stated:
“..., it is not unreasonable to expect the
sponsoring persons in Hong Kong to support their sponsored new arrivals,
or the new arrivals who are economically active to support themselves
with their own means in Hong Kong. As the proposed measures are to take
effect from a future date, potential new arrivals will have an
opportunity to make an informed decision on whether they would move to
Hong Kong for settlement taking account of all relevant considerations.”
[111]
118. This is a highly
unattractive approach. It amounts to telling potential immigrants who
have been granted OWPs: “If you are poor, stay home. You will be
ineligible for CSSA for seven years. So don’t come to Hong Kong unless
you can pay your own way or have someone who will support you.” As was
pointed out by a member of the Welfare Panel, it has “the effect of
deterring potential new arrivals to settle in Hong Kong” and is “at
variance with the policy of family reunion.”
[112]
It runs counter to the avowed policies of respecting the rights of
Mainland children with the right of abode; of promoting family unity; of
promoting immigration of Mainland children to rejuvenate our ageing
population when they are young and integrate more easily into our
society.
119. I do not think
this approach qualifies as a reasonable way to mitigate the hardship
suffered by those caught by the seven-year residence requirement.
L.2 Reliance on charities
120. The Government
also makes the argument that, if denied CSSA, new arrivals are able to
seek help from charitable institutions. Mention is made of charitable
trust funds which assist people in family crisis and temporary financial
hardship, mainly in the form of one-off grants; charities which provide
foodstuffs and hot meals; and charities which provide second-hand
clothing, furniture and appliances, and so forth.
[113]
It is self-evident that such charitable help can only be of a temporary
or emergency nature. It may supplement but cannot be a practical
substitute for CSSA.
121. More importantly,
the argument is in principle objectionable. It really amounts to the
Government abdicating its constitutional responsibility for social
welfare to private charities and trying to make a virtue of the
existence of such charities in the proportionality analysis. The Hong
Kong residents concerned find themselves destitute and eligible for
short-term or emergency help from charities because they have been
excluded from CSSA as a result of the Government’s adoption of the
seven-year requirement. It is exceedingly unattractive for the
Government then to shrug its shoulders and say: “Well, you can always
approach local charities as a supplicant for their goodwill”.
122. The primary
responsibility of the Government for social security and the subsidiary
role of voluntary agencies have been recognized since at least 1970
when, in a Memorandum for the Executive Council,
[114] the Government stated:
“It is highly desirable, both at present and
for future planning, that Government should be responsible for public
assistance, and that there should be a clear distinction between the
responsibilities of voluntary agencies in this and other social welfare
fields.”
123. I am unable to
regard possible reliance on charities as a reasonable proportionality
argument to be weighed in support of the impugned restriction.
L.3 The Director’s discretion
124. Thirdly, the
Director places heavy reliance on the existence of a discretion to waive
the seven-year requirement as softening the impact of any hardship that
may be caused by the restriction. Thus, Mr Cheung states:
“... members of the [Welfare Panel] were
informed that DSW would continue to exercise his discretion to waive the
residence requirement in cases of genuine hardship, if necessary, thus
making CSSA always available to the financially vulnerable in the
absence of other options.”
[115]
125. The evidence
shows, however, that it is clearly not the case that CSSA is “always
available to the financially vulnerable”. It is important to note the
qualifying words “in the absence of other options”. In fact, the
Government’s stance has been to treat the discretion as available only
in
exceptional cases. It has been quick to deem an applicant to have “other options”.
126. The exceptional nature of the discretion was envisaged by the Task Force from the outset:
“For exceptional cases, the Director of Social
Welfare, of course, will have discretionary power to grant CSSA on
compassionate grounds waiving the residence rule.”
[116]
127. And when, on 3
June 2003, the Chief Executive in Council made the Order that the
seven-year requirement be implemented with effect from the following
January, the fourth paragraph of the Order stated:
“In exceptional circumstances, assistance may
be granted at the discretion of the Director of Social Welfare (DSW) to a
person who does not meet the residence requirement.”
128. The Director has laid down guidelines
[117] for the exercise of the discretion in the following terms:
(a) In general, financial hardship alone does not merit exceptional treatment, especially in the case of able-bodied adults.
(b) The [relevant officer] can exercise
discretion to exempt a Hong Kong resident from the [seven-year] rule if
the applicant can satisfy all [emphasis supplied] the following criteria:
(i) having no or insufficient income to meet his/the family’s basic needs;
(ii) having no relative or friend to turn to for assistance;
(iii) no other forms of assistance being available to him/his family;
(iv) having suffered a substantial and unexpected change in circumstances beyond his/her family’s control;
[118]
(v) having genuine difficulty in returning to his country of origin or the place where he came from;
(vi) the total resources available to
him/his family, including any savings and other assets held by him/his
family and any CSSA payable to his family members, are not sufficient to
meet his/his family’s recognised needs under the CSSA Scheme for two
months.”
129. As paragraph (a)
makes clear, the discretion is only intended to operate in exceptional
cases and financial hardship alone generally does not qualify as
“exceptional” even if the applicant is destitute. He or she must satisfy
all six of the listed conditions. Two of those conditions stand out.
130. First, as we have
seen, the Director has made the argument in these proceedings that, if
denied CSSA, new arrivals are able to seek help from charitable
institutions. If that is the view generally taken by social welfare
officers, applicants for a waiver are likely to find condition (iii) –
the possible availability of other forms of assistance – an important
obstacle in many cases.
131. Secondly,
condition (v) – refusal of a waiver if the applicant is able to return
to where he or she came from – is important. Although the discretion is
held out as a measure mitigating hardship caused by the seven-year
residence requirement and relied on as demonstrating the proportionality
of that restriction, paragraph (v) places severe limits on the
discretion. It instructs social welfare officers to tell the applicant:
“Go back to where you came from,” unless the applicant faces “genuine
difficulty” going back.
132. I have described
[119]
as highly unattractive the Director’s practice of warning potential
immigrants who hold OWPs (other than exempted new arrivals) to stay home
and not to come to Hong Kong unless they are able to support
themselves, since it contradicts avowed policies of promoting family
unity for Mainland children with the right of abode; of rejuvenating our
ageing population, and so forth. Condition (v) operates in the same
vein. It involves abdicating responsibility for providing social
welfare assistance to indigent new arrivals who have become Hong Kong
residents and who are present in Hong Kong, unable to meet their basic
needs, telling them that they should leave Hong Kong and go back to
where they came from. A discretion that is subject to such a condition
does little to establish the proportionality of the seven-year
restriction of the Article 36 right.
133. The available
statistics tend to confirm that the discretion plays only a small part
in dealing with new arrivals who apply for CSSA but have not met the
residence requirement. Only a small proportion (ranging from 2.4% to
9%) of such applicants go on to apply for a discretionary waiver. A very
high proportion of those applicants (from 62% to 78%) then withdraw
their applications (one assumes on being told that they do not meet the
criteria), leaving a small number of live applications, most of which
are then approved. The figures are as follows:
|
2004-05 |
2005-06 |
2006-07 |
2007-08 |
| CSSA applications received not meeting residence requirement |
68,601 |
62,097 |
54,746 |
46,807 |
| Applications for waiver |
1,665 (2.4%) |
3,856 (6.2%) |
4,925 (9%) |
3,553 (8.5%) |
| Applications for waiver withdrawn |
1,299 (78%) |
2,892 (75%) |
3,480 (70%) |
2,221 (62%) |
| Applications approved |
230 |
843 |
1,383 |
1,307 |
| Applications rejected |
18 |
26 |
33 |
39 |
134. After the death of
her husband (who left her only $982.37) and having been made homeless,
Madam Kong survived by living in a shelter for street sleepers and
receiving some financial help in the form of one-off payments from
certain charities.
[120]
She was willing to work and had attended government training courses
with a view to finding employment. She had found sporadic casual jobs as
a cleaner (at $175 per day) and as a substitute security guard (at $200
per 12 hour shift). When she applied for a waiver, she explained that
her staying at the shelter was unsatisfactory because it did not open
until 5.30 pm, so that she had to sleep in a park if she had been on
night shift as a security guard. She submitted that she needed CSSA to
meet her housing needs “in order to have better rest before she could
find stable gainful employment”. She admitted owning a property on the
Mainland but explained that it was an illegal structure which was
occupied by her two sons who were themselves without means, and was not a
property that she could sell.
135. The Board applied
the guidelines in rejecting her application. It noted that financial
hardship alone does not merit exceptional treatment and found that the
death of her husband did not count as a “substantial and unexpected
change in circumstances beyond her control”, as she should have realised
that she could not depend financially on her late husband who was an
aged CSSA recipient suffering from chronic disease. It noted that she
had expressed confidence in being able to find a job but concluded that
after her husband’s death, as she had no relatives or friends in Hong
Kong, “it would be a better alternative for Madam Kong to return to her
native place”.
136. If the disposal of
Madam Kong’s application is anything to go by, the guidelines result in
applicants for a waiver facing a very high threshold indeed.
M. Summary and conclusions
137. I have reached the
conclusion that the seven-year residence requirement is an
unjustifiable contravention of the right to social welfare in accordance
with law, conferred by Article 36.
138. In seeking to
address basic, “safety net” needs pursuant to an accessible and
predictable set of administrative rules, the CSSA scheme clearly comes
within the Article 36 concept of a “social welfare” scheme established
“in accordance with law”. It receives Article 36 protection, and while
the Government has a wide margin of discretion, both in defining the
conditions and level of the benefit in the first place, and in making
any changes pursuant to policies developed in accordance with Article
145, such changes are subject to constitutional review.
139. Restrictions on
rights protected by Article 36 must pursue a legitimate societal aim and
must be rationally connected with the achievement of that end,
employing measures that do not make excessive inroads into the protected
right. If the restriction is not rationally connected to the avowed
legitimate purpose or if the inroads it makes into the protected right
are manifestly without reasonable foundation, the Court may declare the
measure unconstitutional.
140. In the present
case, the Government has claimed that the seven-year residence
requirement pursues the legitimate purpose of curbing expenditure so as
to ensure the sustainability of the social security system. In my view
that claim is not made out. The seven-year restriction conflicts with
two important social policies which are simultaneously embraced by the
Government, namely the OWP family reunion policy and the population
policy aimed at rejuvenating our ageing population. There is no
evidence as to the level of savings actually achieved and achievable as a
result of adopting the seven-year rule. On the contrary, everything
points to the actual savings being modest and of an order that cannot
sensibly be described as designed to safeguard the system’s
sustainability. The Government has indeed admitted that the new
residence requirement is not driven by the need to reduce CSSA
expenditure on new arrivals.
141. Other matters
identified as objectives promoted by the seven-year rule include a
search for uniformity in qualifying periods for heavily subsidized
benefits and a policy of withholding benefits until the applicant has
contributed to our economy for seven years. These are purposes that
either lack legitimacy as societal aims or are wholly insubstantial in
terms of societal interests. If the restriction has to rest on such
purposes, it must be viewed as a restriction that is manifestly without
reasonable foundation.
142. Many of the
Government’s arguments seek to sidestep the issue and fail to confront
the constitutional issue altogether. They abdicate responsibility for
addressing the right conferred by Article 36 on Hong Kong residents to
social welfare in accordance with law. They suggest that indigent newly
arrived residents should look to charities rather than the social
welfare system; that they should not have come here in the first place
without ensuring that they could support themselves; or, if already
here, that they should not receive any discretionary assistance to meet
their basic needs but should go home instead. These arguments do not
provide any justification for the restriction.
143. I do not doubt
that the Government adopted policies genuinely with the legitimate aim
of curbing expenditure on CSSA with a view to ensuring the financial
sustainability of the social security system. I readily accept that it
did take rational measures towards that end by reducing standard
payments in 1999 in relation to larger households and reducing standard
payments across-the-board in 2003 and 2004. But in my view, the
Director has not made good the proposition that the seven-year residence
requirement was rationally connected to the aforesaid legitimate aim.
If there was any rational connection, the restriction was wholly
disproportionate and manifestly without reasonable foundation, given its
contradictory policy consequences and socially insubstantial benefits.
144. I accordingly
conclude that the appeal must be allowed and that the seven-year
residence requirement must be declared unconstitutional, restoring the
pre-existing residence requirement of one year. There can, however, be
no constitutional objection to the Government’s exempting new arrivals
under the age of 18 from any residence requirement and the Order which I
would make does not seek to re-impose a one-year residence requirement
on new arrivals in that age group. It merely declares unconstitutional
the policy expressed in the words “To be eligible for CSSA, a person
must have been a Hong Kong resident for at least seven years” contained
in the first sentence of the Order made by the Chief Executive in
Council on 3 June 2003 to take effect on 1 January 2004.
[121]
145. I would also make
an order nisi that the Director pay Madam Kong’s costs here and below
and direct that any submissions as to costs be made in writing and
lodged with the Registrar within 21 days from the date of this judgment
and that any submissions in reply be lodged within 21 days thereafter,
in default of such submissions, the order nisi to stand as an order
absolute without further order. I would order the appellant’s costs to
be taxed in accordance with the Legal Aid Regulations.
Mr Justice Tang PJ :
146. I agree with the judgment of Mr Justice Ribeiro PJ.
Mr Justice Bokhary NPJ :
Judicial role in regard to socio-economic rights
147. This case is about
social welfare. Policy matters thereon are for the political branches
of government. But there is in Hong Kong a constitutional right to
social welfare. And the responsibility for enforcing constitutional
rights, socio-economic ones no less than other ones, rests with the
courts. In discharging this responsibility, it has to be recognized
that courts are not ideally equipped to undertake resource allocation.
At the same time, the courts cannot decline to intervene if the
legislative (or administrative) scheme in question fails to accord
people the basic necessities to which they are constitutionally
entitled. The approach formed by those two propositions is one at which
I arrive on principle. It is, however, worth noting that it happens to
be the approach adopted by the Federal Supreme Court of Switzerland in
V v. Einwohrnergemeine X und Regierunsgrat des Kantons Bern BGE/ATF 1211 1367, 27 October 1995.
CSSA and the residence requirement
148. The form of social
welfare concerned in the present case is Comprehensive Social Security
Assistance (commonly known as “CSSA”). It is non-contributory and
means-tested. Payments thereunder are made in cash. Its purpose is
that of enabling recipients to meet basic needs. The scheme under which
it is operated (which it is convenient to call “the CSSA scheme”) is an
administrative scheme, not a statutory scheme.
149. There is a
residence requirement for the receipt of assistance under the CSSA
scheme. This requirement applies to adults. It is that they must have
been a resident of Hong Kong for at least 7 years by the time of their
application for CSSA.
Question
150. Is that
requirement constitutional or unconstitutional? That is the question
now before this Court. The learned judges in the courts below (being
Andrew Cheung J in the High Court and Stock VP and Lam and Barma JJ in
the Court of Appeal) have concluded that the requirement is
constitutional. Their conclusion is disputed by the appellant Madam
Kong Yunming for whom Professor Johannes Chan SC and Mr Hectar Pun
appear. It is supported by the respondent the Director of Social
Welfare for whom Lord Pannick QC and Mr Abraham Chan appear. Such being
the legal representation, the rival submissions prepared and presented
have of course been of the highest quality.
Facts
151. Shortly stated,
the facts are these. Madam Kong was born in the Mainland in 1949. In
2003 she married a Hong Kong permanent resident. He had been a CSSA
recipient since 1985. In November 2005 she was granted a one-way permit
to come to Hong Kong in order to settle here. On 21 December 2005 she
arrived in Hong Kong for that purpose. Tragically, her husband, who had
been in ill-health, died on the following day. She tried to have
herself registered as the new tenant of the public housing unit which
had been allocated to him. But that was turned down. The Housing
Authority repossessed the unit. She became homeless, and was admitted
to a street sleeper shelter. All that she received from her late
husband’s estate was a sum of $982.37. She lived on charity.
152. On 20 March 2006
she applied for CSSA. Her application was turned down on the sole
ground that she did not meet the residence requirement, the Director of
Social Welfare refusing to exercise his discretion to waive that
requirement in her case. Her appeal to the Social Security Appeal Board
against this refusal was launched in June 2006, heard in October that
year and dismissed in the following month.
153. In 2008 she
commenced the judicial review proceedings by which she challenged the
constitutionality of the 7-year residence requirement. That is the
challenge which, having failed in the courts below, has now reached this
Court. The question of law on which the Appeal Committee granted Madam
Kong leave to appeal to this Court is framed by reference to equality
as well as the right to social welfare.
154. Cases like this
one seem to be seen by some people as contests between long-term locals
and Mainland arrivals. But they are not. Nor are they to be seen as
contests between the “haves” and the “have-nots” in our society. Cases
like this one are about – and only about – what an independent and
impartial judiciary will, after receiving and weighing full and rational
argument on both sides of the question, adjudge to be the true
constitutional position. That, no more and no less, is what cases like
this one are about.
Guarantees of equality
155. Under our
constitutional arrangements, equality is guaranteed by art. 25 of our
constitution the Basic Law. This article provides that “[a]ll Hong Kong
residents shall be equal before the law”. (As art. 24 of the Basic Law
provides, Hong Kong residents consist of permanent residents and
non-permanent residents: permanent residents having the right of abode
and being qualified to obtain permanent identity cards which state their
right of abode; and non-permanent residents being qualified to obtain
identity cards but having no right of abode).
156. A constitutional
guarantee of equality is also to be found in the Bill of Rights. Taken
word-for-word from art. 26 of the International Covenant on Civil and
Political Rights (“the ICCPR”) and entrenched by art. 39 of the Basic
Law, art. 22 of the Bill of Rights provides as follows:
“All persons are equal before the law and are
entitled without any discrimination to the equal protection of the law.
In this respect, the law shall prohibit any discrimination and guarantee
to all persons equal and effective protection against discrimination on
any ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other
status.”
157. It will be noticed
at once that those guarantees of equality are not confined to permanent
residents. Article 25 of the Basic Law speaks of
all residents, and art. 22 of the Bill of Rights speaks of
all persons.
Right to social welfare
158. Turning to the
right to social welfare, it, too, is not confined to permanent
residents. Article 36 of the Basic Law confers this right on Hong Kong
residents, not just Hong Kong permanent residents, saying this:
“Hong Kong residents shall have the right to
social welfare in accordance with law. The welfare benefits and
retirement security of the labour force shall be protected by law.”
Development and improvement
159. The development
and improvement of social welfare is an obligation placed on the
Government by art.145 of the Basic Law which reads:
“On the basis of the previous social welfare
system, the Government of the Hong Kong Special Administrative Region
shall, on its own, formulate policies on the development and improvement
of this system in the light of the economic conditions and social
needs.”
Economic conditions and social needs
160. As can be seen,
the expression “in the light of economic conditions and social needs”
comes immediately after the reference to the development and improvement
of the previous welfare system. I readily accept that economic and
social conditions can justify slowing down or temporarily halting such
development and improvement. What about new restrictions on the
availability of social welfare? If the new restrictions go to undoing
development and improvement introduced
after the coming into
effect of the Basic Law, then I think that a really serious economic
downturn might justify such restrictions. Can an economic downturn
justify moving the welfare systems backwards from where it had stood
when
the Basic Law came into effect? I would not rule that out but find it
difficult to see how any economic downturn can justify such a course
unless it is so dire as to bring about a situation not contemplated by
the constitution. If art. 145 of the Basic Law is less protective than
that, it would of little practical use.
Residence requirement made seven times more restrictive
161. The CSSA scheme
was introduced in 1973. From that time until 1 January 2004, the
residence requirement for the receipt of CSSA was one year. The CSSA
scheme with a one-year residence requirement is part of the “previous
welfare system” to which art. 145 refers. That is easy to see. The
Basic Law was promulgated and adopted on 4 April 1990 and came into
effect upon the handover on 1 July 1997. So the CSSA system with a
one-year residence requirement was in place when the Basic Law was
promulgated and adopted and when it came into effect. The one-year
residence requirement stood until it was turned into a seven times more
restrictive requirement of 7 years’ residence with effect from 1 January
2004. That was done by an order made by the then Chief Executive in
Council on 3 June 2003 following a recommendation put forward by the
Task Force on Population Policy in its report of 26 February 2003.
Residents and non-residents
162. Neither art. 36 nor art. 145 of the Basic law, each of which deals with the position of Hong Kong
residents, was engaged in the case of
Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409. That case was about the exclusion of
non-resident
women from receipt of subsidized obstetric services at public hospitals
in Hong Kong and about increases in the charges payable by them for
obstetric services at such hospitals. As can be seen from para. 90 of
the judgment in that case, what was upheld was the drawing of a line
between residents and non-residents. There was no question of treating
non-permanent residents as outside the protection of art. 36 or 145 of
the Basic Law.
163. A word should be said about art. 41 of the Basic Law, which reads:
“Persons in the Hong Kong Special
Administrative Region other than Hong Kong residents shall, in
assistance with law, enjoy the rights and freedoms of Hong Kong
residents prescribed in this Chapter”.
That was not treated by the Court in
Fok Chun Wa’s case to
mean that every right and freedom prescribed in Chapter III of the
Basic Law was enjoyed by non-residents. Article 41 of the Basic Law
calls for purposeful construction in the context of the Basic Law as a
whole. Upon such a construction, it will be seen at once that some
Chapter III fundamentals, for example freedom from torture, must by
their very nature and in conformity with international human rights
norms, extend to all persons present in Hong Kong. But that is not so
in regard to the right to social welfare.
Unwarranted retrogression
164. Even without
reference to the right to equality before the law, the requirement of 7
years’ residence for receipt of CSSA is unconstitutional. If necessary,
I would be prepared so to hold on the following basis. The introduction
of a 7-year requirement to replace the one-year requirement moved the
previous social welfare system backwards. It therefore runs counter to
art.145 of the Basic Law which, as far as that system is concerned,
contemplates progression and leaves no room for retrogression except in a
situation so dire as to lie beyond the contemplation of the
constitution. And no such situation has arisen. So the increase from
one year’s residence to 7 years’ residence amounts to unwarranted
retrogression and is therefore unconstitutional.
165. But I am content to hold that increase unconstitutional on another basis, being the one to which I now turn.
Unjustified distinction
166. We are in this case concerned with equality in regard to a socio-economic right. In
Social Rights Jurisprudence: Emerging Trends in International and Comparative Law
(ed. Malcom Langford) (2008) (Cambridge University Press) at the page
immediately preceding the table of contents, what Justice Albie Sachs of
the South African Constitutional Court said about socio-economic rights
when speaking at the Southern Methodist University School of Law in
1999 is quoted. He said:
“There is growing acceptance all over the world
that certain core fundamental values of a universal character should
penetrate and suffuse all governmental activity, including the
furnishing of the basic conditions for a dignified life for all.
I believe that 21st-century jurisprudence will focus increasingly on socio-economic rights.”
I respectfully share that perception and that belief.
167. Professor Chan was
in the company of Hong Kong’s leading constitutional lawyer, Professor
Yash Ghai, when they said two decades ago (in
The Hong Kong Bill of Rights: a Comparative Approach
(eds Johannes Chan and Yash Ghai) (1993) (Butterworths Asia) at p.5)
that “(i)n countries with an established tradition of constitutionalism,
the rule of law is acceptable because economic and social rights are
woven into the fabric of public law.” And their writings are in the
company of, for example, Robert Alexander:
The Voice of the People
(1997) (Weidenfeld & Nicolson) where it is said at p.196 that
“human rights…prevent the weakest going to the wall” and John P
Humphrey:
Human Rights and the United Nations (1984)
(Transnational Publishers) where it is said at p.2 that “[h]uman rights
without social and economic rights have little meaning for most
people”.
168. Socio-economic
rights are not alien to common law systems. Common lawyers may be
generally more familiar with civil and political rights than with rights
of a socio-economic nature. But as Professor Geraldine Van Bueren QC
demonstrates in “Socio-Economic Rights and a Bill of Rights – An
Overlooked British Tradition” [2013] Public Law 821, socio-economic
rights, too, have historical origins that can be traced back to medieval
times in the land where the common law came to life.
169. In recommending a
requirement of 7 years’ residence, the Task Force on Population Policy
said in para. 5.56 of its report of 26 February 2003 that:
“Eligibility based on a seven-year residence
requirement reflects the contribution a resident has made towards our
economy over a sustained period of time in Hong Kong. A seven-year
residence is also normally required for the grant of permanent resident
status in Hong Kong, for which additional rights are prescribed in the
laws of Hong Kong”.
That is followed by a footnote which says that those additional
rights include “the right to vote and to stand for election under
Article 26 of the Basic Law and to become the principal officials of the
HKSAR in accordance with Article 61”.
Departures from equality have to be justified
170. Departures from
equality have to be justified. The departure from equality brought about
by the requirement of 7 years’ residence cannot be justified. Its
effect – and its declared objective, too, it might be added – is
essentially to draw a distinction between permanent residents and
non-permanent residents in regard to the right to social welfare. This
distinction is drawn in the face of a constitutional guarantee which
extends to all residents without distinction. Even treating art. 145 of
the Basic Law as far less protective of disadvantaged people than I
consider it to be, by no standard of review, test or approach that
preserves rather than undermines constitutional guarantees can such a
distinction be justified.
Basic Needs
171. Nothing more has
to be said, but more could be said. We are, after all, concerned with
basic needs. On what basis do I say that the present case concerns
basic needs? I am prepared to say so on the basis that a right to
social welfare, if it is to have any meaningful content, must encompass
basic needs at the very least. But it is not necessary to proceed on
that basis if one prefers not do so, for the Government accepts that
CSSA is there to enable persons to meet their basic needs. The
requirement of 7 years’ residence would leave needy members of one
category of residents dependent on exercises of discretion or charity in
order to meet basic needs. Whatever else the Government may be saying
about Hong Kong’s resources, I do not understand the Government to be
going to the extreme of saying that those resources are in a state that
compels the imposition of a residence requirement of 7 years even though
that has the effect of excluding non-permanent residents from the right
to social welfare conferred by the constitution on all residents,
permanent and non-permanent alike.
172. As to the Task
Force on Population Policy’s reference to the right to become a
principal official, that right depends also, as one can see from art. 61
of the Basic Law, on being a Chinese citizen with no right of abode in
any foreign country. No one has suggested that it would be
constitutional to make that status a condition of receipt of social
welfare in Hong Kong.
ICESCR
173. Even though I am
of the view that Madam Kong should succeed without having to rely on the
International Covenant on Economic, Social and Cultural Rights (“the
ICESCR”), I propose to deal with this covenant, we having received full
argument on it.
174. In 2003, which is
the year before the residence requirement for the receipt of CSSA was
raised from one year to 7 years, the Hong Kong Government submitted a
report to the United Nations’ Committee on Economic Social and Cultural
Rights (“the CESCR”) in which this was said:
“It is true that there is no single law –
corresponding to the Hong Kong Bill of Rights Ordinance in relation to
the ICCPR that incorporates the ICESCR into Hong Kong’s domestic legal
order. However, ICESCR provisions are incorporated into our domestic law
through several Articles of the Basic Law (for example Articles 27, 36,
37 137, 144 and 149), and through provisions in over 50 Ordinances.
Those laws were listed in Annex 3 to the initial report, and are updated
at Annex 2A of the present report. We consider that specific measures
of this kind more effectively protect Covenant rights than would the
mere re-iteration in domestic law of the Covenant provisions
themselves.”
The Hong Kong Government said in Annex 2A of that report that
art. 39 of the Basic Law is the constitutional guarantee for art. 2 of
the ICESCR and that arts 36 and 145 of the Basic Law are the
constitutional guarantees for art. 9 of the ICESCR.
175. Article 39 of the Basic Law reads:
“The provisions of the International Covenant
on Civil and Political Rights, the International Covenant on Economic,
Social and Cultural Rights, and international labour conventions as
applied to Hong Kong shall remain in force and shall be implemented
through the laws of the Hong Kong Special Administrative Region.”
The rights and freedoms enjoyed by Hong Kong residents
shall not be restricted unless as prescribed by law. Such restrictions
shall not contravene the provisions for the preceding paragraph of this
Article.”
It will be observed that this article, too, speaks of residents and not only of permanent residents.
176. Turning to the two
articles of the ICESCR which the Hong Kong Government told the CESCR
are constitutionally guaranteed in Hong Kong, art. 2 reads:
“Each State Party to the present Covenant
undertakes to take steps, individually and through international
assistance and co-operation, especially economic and technical, to the
maximum of its available resources, with a view to achieving
progressively the full realization of the rights recognized in the
present Covenant by all appropriate means, including particularly the
adoption of legislative measures.”
And art. 9 reads:
“The States Parties to the present Covenant recognize the right of everyone to social security, including social insurance.”
What the CESCR said
177. Now let us look at
what the CESCR said about CSSA in general and the 7-year residence
requirement in particular. That was said on 13 May 2005 in the CESCR’s
concluding observations on economic, social and cultural rights in the
People’s Republic of China (including Hong Kong and Macao) for which the
reference is UN Doc E/C. 12/1/Add.107, §84. And this is what was said:
“The Committee is seriously concerned that
under the existing social security system, and in particular under the
Comprehensive Social Security Assistance (CSSA), the levels of benefit
are not sufficient to guarantee a decent standard of living and the many
low-income persons, in particular older persons, are not covered by the
scheme. The Committee is further concerned that new migrants are unable
to apply for CSSA due to the seven-year residence requirement.”
178. Coming from no
less a source than the CESCR, none of that is anything that an
international financial centre (as Hong Kong is recognized in art. 109
of the Basic Law to be) can feel comfortable to read about itself.
However that may be, the sufficiency or otherwise of benefit levels is
not before the Court in this appeal. But what the CESCR says about the
7-year residence requirement’s adverse effect on new migrants is
directly relevant in the present appeal, because it highlights the fact
that the requirement excludes for a long time a large class which the
relevant constitutional guarantees do not exclude at all.
Retrogressive in regard to basic needs and deliberately so
179. Such exclusion is
retrogressive. What makes it all the more serious is that it is
retrogressive in regard to basic needs and deliberately so. In this
connection, it is to be remembered that the CESCR had, on 14 December
1990, said this in its General Comment No.3, the reference for which is
UN Doc E/1991/23, §9:
“The principal obligation of result reflected
in article 2 (1) is to take steps “with a view to achieving
progressively the full realization of the rights recognized” in the
Covenant. The term “progressive realization” is often used to describe
the intent of this phrase. The concept of progressive realization
constitutes a recognition of the fact that full realization of all
economic, social and cultural rights will generally not be able to be
achieved in a short period of time. In this sense the obligation differs
significantly from that contained in article 2 of the International
Covenant on Civil and Political Rights which embodies an immediate
obligation to respect and ensure all of the relevant rights.
Nevertheless, the fact that realization over time, or in other words
progressively, is foreseen under the Covenant should not be
misinterpreted as depriving the obligation of all meaningful content. It
is on the one hand a necessary flexibility device, reflecting the
realities of the real world and the difficulties involved for any
country in ensuring full realization of economic, social and cultural
rights. On the other hand, the phrase must be read in the light of the
overall objective, indeed the raison d’être, of the Covenant which is to
establish clear obligations for States parties in respect of the full
realization of the rights in question. It thus imposes an obligation to
move as expeditiously and effectively as possible towards that goal.
Moreover, any deliberately retrogressive measures in that regard would
require the most careful consideration and would need to be fully
justified by reference to the totality of the rights provided for in the
Covenant and in the context of the full use of the maximum available
resources.”
180. Much the same
point is made in, for example, Sandra Liebenberg, “Needs, Rights and
Transformation: Adjudicating Social Rights” (2006) 17 Stellenbosch Law
Review 5 and Aoife Nolan, Bruce Proter and Malcolm Langford, “The
Justifiability of Social and Economic Rights: an Updated Appraisal”
CHRGJ Working Paper No. 15, 2007. In the “Right to Welfare” chapter of
Law of the Hong Kong Constitution
(eds Johannes Chan and C L Lim) (2011) (Sweet & Maxwell) – a book
cited by Lord Pannick in the course of argument (although not on this
point) – Professor Karen Kong put it like this (at p.798, para 25.040):
“As suggested by Sandra Leibenberg in relation
to South African court’s adjudication of social rights, ‘claims
involving a deprivation of basic needs should attract a high level of
judicial scrutiny’. Aoife Nolan et al. also commented, ‘[i]n general,
Government will be held to a stricter test in relation to available
resources when existing programs are cut than they might be with regard
to a simple failure to take positive steps to create programs or enhance
them.’ The stricter test will include imposing a heavier burden on the
Government to justify potentially retrogressive measures, and the need
to show that alternative measures had been carefully considered.”
Discretion
181. In seeking to
justify the raising of the residence requirement from one year to 7
years, the Government places some reliance on the Director of Social
Welfare’s discretion to waive the residence requirement. A discretion
to waive is also a discretion not to waive. It is not suggested that
the discretion would invariably, or even generally, be exercised in
favour of any person who, absent a waiver, would be driven to seeking
charity in order to meet her or his basic needs.
182. There is in any
event, an inherent and fundamental weakness in the Government’s
“discretion” argument. As Lord Shaw of Dunfermline said in
Scott v. Scott
[1913] AC 417 at p 477, to remit the maintenance of a constitutional
right to the region of discretion is to shift the foundations “from the
rock to the sand”.
Other benefits
183. Then the
Government places some reliance such other welfare benefits as a needy
person who is excluded from the CSSA scheme for want of 7 years’
residence, and who fails to obtain a discretionary waiver, might be able
to obtain. But since CSSA is designed to meet basic needs, what can
such other benefits really do, even if obtained, in the absence of CSSA?
Charity
184. And then the
Government places some reliance on such charity as such a person may be
able to obtain. As to that sort of argument, there is the decision of
the South African Constitutional Court in the case of
Khosa v. Minister of Social Development
2004 (6) 505. At para. 80 Mokgoro J spoke of the likely impact on a
group of persons excluded from the constitutional right to social
security. He said that such exclusion “is likely to have a severe
impact on the dignity of the persons concerned, who, unable to sustain
themselves, have to turn to others to enable them to meet the
necessities of life and are thus cast in the role of supplicants”. That
reflects the classic view. In the concluding section of the chapter on
“Rights, Freedoms and Social Policies” of his book
Hong Kong’s New Constitutional Order, 2
nd ed (1997) (Hong Kong University Press), Professor Yash Ghai quotes (at p.454) Alexis de Tocqueville’s statement that:
“There is nothing which, generally speaking,
elevates and sustains the human spirit more than the idea of rights.
There is something great and virile in the idea of rights which removes
from any request its suppliant character, and places the one who claims
it on the same level as the one who grants it.”
Not proportionate
185. A decrease in
expenditure on the CSSA scheme is a lawful objective. But just because
it is legitimate to do something, it does not mean that whatever is done
will be legitimate. The raising of the residence requirement from
one-year to 7 years, putting the burden of that increase on immigrants
so as in effect to exclude non-permanent residents from the right to
social welfare conferred by the constitution on all residents without
distinction has not been shown to be a proportionate means by which to
obtain that objective.
Conclusion
186. The one-year
residence requirement was part of the previous system on the basis of
which art. 145 of the Basic Law required the Government to formulate its
policies for the development and improvement of social welfare in the
light of economic conditions and social needs. We have not been asked
to hold that the residence requirement of one year had also been
unconstitutional, and I see no reason to do so. The raising of the
residential requirement from one year to 7 years, however, is, in my
judgment, unconstitutional for the reasons which I have given. I would
allow this appeal to declare that rise unconstitutional.
187. As to costs, I would order legal taxation of Madam Kong’s own costs. I would make an order
nisi
awarding her costs here and in the courts below, such order to become
absolute 21 days after the handing down of judgment in this appeal
unless an application has been made to vary that order. And I would
direct that in the event of such an application, costs he dealt with on
written submissions lodged according to a time-table for which the
parties, if not agreed thereon, should seek procedural directions from
the Registrar.
188. I end by thanking both legal teams for the excellent arguments prepared and presented.
Lord Phillips of Worth Matravers NPJ :
189. I agree with the judgment of Mr Justice Ribeiro PJ.
Chief Justice Ma :
190. By a unanimous
decision, this appeal is allowed. The Court also makes the declaration
referred to in paragraph 144 above and makes the orders as to costs set
out in paragraph 145 above.
| (Geoffrey Ma) |
(RAV Ribeiro) |
(Robert Tang) |
| Chief Justice |
Permanent Judge |
Permanent Judge |
|
|
|
| (Kemal Bokhary) |
(Lord Phillips of Worth Matravers) |
| Non-Permanent Judge |
Non-Permanent Judge |
Mr Johannes Chan SC and Mr Hectar Pun instructed by Tang, Wong &
Chow and assigned by the Legal Aid Department, for the Appellant
Lord Pannick QC and Mr Abraham Chan instructed by the Department of Justice, for the Respondent
[1] She was duly issued with a Hong Kong Identity Card on 28 December 2005.
[2] All set out in Section D of this judgment.
[3] [2009] 4 HKLRD 382.
[4] Stock VP, Lam and Barma JJ, cacv 185/2009 (17 February 2012).
[5] Legco Brief, 3 June 2003, HWF CR/3/4821/99(03) Pt 7, §3.
[6] Ibid, Annex C, §1.
[7]
Principal Assistant Secretary for Labour and Welfare (Welfare) 4 of
the Labour and Welfare Bureau, Affirmation 8 January 2009 (“
Mr Cheung’s Affirmation”), §16.
[8] Legco Brief, 3 June 2003, Annex C, §5.
[9] Mr Cheung’s Affirmation, §41.
[10] Ibid, §23.
[11] Ibid, §24.
[12] XCC (70) 14, For discussion on 17 March 1970.
[13] Exco Memo, 11 March 1970, §7.
[14]
Principal Assistant Secretary for Labour and Welfare (Welfare) 4 of
the Labour and Welfare Bureau, Affirmation 19 January 2011 (“
Ms Choy’s Affirmation”), §12.
[15] Reflecting Article 26 of the International Covenant on Civil and Political Rights.
[16] With Mr Hectar Pun.
[17]
With Social Security Allowance or “SSA” which provides largely
non-means-tested allowances for the severely disabled and the elderly:
Mr Cheung’s Affirmation §7(b).
[18] Mr Cheung’s Affirmation, §7.
[19] Court of Appeal §50 and §69.
[20] Court of Appeal §53.
[21] Court of Appeal §§55-60.
[22] Court of Appeal §§61-65.
[23] Court of Appeal §68.
[24] Court of Appeal §72.
[25] Ibid.
[26] In Section E.1.
[27] With Mr Abraham Chan.
[28] Ubamaka Edward Wilson v Secretary for Security
FACV 15/2011 (21 December 2012), involving for example, the prohibition
of torture and of cruel, inhuman or degrading treatment.
[29] See for instance
Catholic Diocese of Hong Kong v Secretary for Justice (2011) 14 HKCFAR 754 at §65-§66.
[30] See for example,
HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574 at §§36-44 on how the proportionality test operates.
[31] As in
Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229.
[32] As in
HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574; and
HKSAR v Ng Po On (2008) 11 HKCFAR 91.
[33] As in
Secretary for Justice v Yau Yuk Lung (2007) 10 HKCFAR 335 at §§19-22;
Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409 at §§77-78.
[34] (2012) 15 HKCFAR 409 at §66.
[35] Ibid at §§71 and 76.
[36] The Strasbourg and United Kingdom case-law is reviewed in
Humphreys v Revenue and Customs Commissioners [2012] 1 WLR 1545 at §§16-22.
[37] Fok Chun Wa v Hospital Authority (2012) 15 HKCFAR 409 at §63.
[38] Ibid at §72.
[39]
I have eliminated the words “and have resided in Hong Kong
continuously for at least one year immediately before the date of
application (absence from Hong Kong up to a maximum of 56 days during
the one-year period is treated as residents in Hong Kong)” from the
Order since the constitutionality of that additional requirement was
successfully challenged and not made the subject of an appeal by the
Director: see
Yao Man Fai George v The Director of Social Welfare CACV 153/2010 (17 February 2012) decided simultaneously with the present case by the Court of Appeal.
[40]
The words in square brackets replace wording which had also referred
to the condition of residence one year immediately before application.
[41] Provided that the adult residents had been here for at least one year.
[42] In Section L.4 below.
[43] Mr Cheung’s Affirmation, §45. It was endorsed by Finance Committee on 27 June 2003: Ms Choy’s Affirmation, §39.
[44] LC Paper No CB(2)1616/03-04(02), §11. Repeated in LC Paper No CB(2)1616/03-04(03), §2.
[45] Judgment §123.
[46] Court of Appeal §108.
[47] At §§52-54.
[48] Mr Cheung’s Affirmation, §55.
[49] In Sections K and L below.
[50] At §§3.25 and 3.26.
[51]
Children issued with a Certificate of Entitlement showing that they
are in principle entitled to right of abode and the status of a Hong
Kong permanent resident.
[52] At §2.17.
[53] Ibid.
[54] It had been 75 in 1982, 105 in 1993 and became 150 in 1995.
[55] Task Force Report, Summary of Recommendations, §8.
[56] Ibid, §9.
[57] Task Force Report, §2.21
[58] LC Paper No CB(2)1401/03-03(03), §24.
[59] Ibid.
[60] At §2.27.
[61] Minutes Welfare Panel Meeting on 10 March 2003, LC Paper No CB(2)1738/02-03, §13.
[62] At p ix.
[63] In Section L.3 below.
[64] Minutes Welfare Panel Meeting on 10 March 2003, LC Paper No CB(2)1738/02-03, §14.
[65] LC Paper No CB(2)871/07-08, 23 January 2008.
[66] Task Force Report, Summary of Recommendations, §§4 and 5.
[67] At §§3.6 and 3.7.
[68] Task Force Report §2.17.
[69] Task Force Report §5.3.
[70] At §5.4.
[71]
Of 69,345 new arrival CSSA recipients as at the end of December 2002,
6.8% were aged 60 and above: Mr Cheung’s Affirmation, §53.
[72]
LC Paper No CB(2)1401/02-03(03), §28 for discussion 10 March 2003. It
is paid to persons aged 65 – 69 subject to a means test, and to persons
aged 70 and above without means testing. Legco Brief HWF
CR/3/4821/99(03) Pt 7, §6.
[73] Executive Summary, §3.
[74] Executive Summary, §§4 and 5.
[75] Report, §47.
[76] Report §49.
[77] Executive Summary, §22.
[78] Mr Cheung’s Affirmation, §40; Legco Brief HWF CR 2/4821/58 (03) Pt 68, §11, 25 February 2003.
[79] Legco Brief HWF CR 2/4821/58 (03) Pt 68, 25 February 2003, §1.
[80] Ibid, §2.
[81] Ibid, §5.
[82] Social Security Assistance Index of Prices.
[83] Legco Brief HWF CR 2/4821/58 (03) Pt 68, §4, 25 February 2003.
[84] Ibid, §6.
[85] Mr Cheung’s Affirmation, §8 and §9.
[86] Mr Cheung’s Affirmation, §53.
[87] Mr Cheung’s Affirmation, §58.
[88] Minutes of Welfare Panel meeting on 10 March 2003, LC Paper No CB(2)1738/02-03, §7.
[89] LC Paper No CB(2)1401/02-03(03), for discussion 10 March 2003, Tables 1 and 4.
[90] In Section F of this judgment.
[91] LC Paper No CB(2)834/03-04(02)(Revised), §§8-9.
[92] At §5.55.
[93] Task Force Report, §5.56.
[94] Adopted by Mr Cheung in his Affirmation at §55.
[95] Basic Law Article 26.
[96] Basic Law Article 44.
[97] Basic Law Article 55.
[98] Basic Law Article 67.
[99] Task Force Report §5.56, adopted in Mr Cheung’s Affirmation, §55.
[100] LC Paper No CB(2)1401/02-03(03), §24 for discussion 10 March 2003.
[101] Section J.1 above.
[102] December 1998 Report at §48.
[103] At §§55 and 56.
[104] Mr Cheung’s Affirmation, §55.
[105] Available online at http://www.try.gov.hk/internet/eharch_annual.html.
[106]
Comprising taxes, rates and duties; rental income; fees and charges;
utilities; royalties and concessions; and other operating revenue.
[107]
The Exchange Fund’s results formed part of the category of
non-operating revenue/expenses which also included capital expenses;
land premia; net revenue from Home Ownership Scheme; interest and
investment income; actuarial loss and curtailment loss on pensions;
share of profits and losses of government business enterprises.
[108]
Comprising salaries, allowances and other employee benefits;
recurrent subventions; social security payments; depreciation and other
operating expenses.
[109] Ms Choy’s Affirmation, §§40-45.
[110] FCR (2003-04)33, for discussion on 27 June 2003, §17.
[111] LC Paper No CB(2)1401/03-03(03) for discussion 10 March 2003, §27.
[112] Minutes Welfare Panel Meeting on 10 March 2003, LC Paper No CB(2)1738/02-03, §14.
[113] LC Paper No CB(2)1616/03-04(03), §17.
[114] XCC (70) 14, For discussion on 17 March 1970, §5(f).
[115] Mr Cheung’s Affirmation, §59.
[116] Task Force Report, §5.57.
[117] In the Social Security Manual of Procedures, paragraphs C52 and C53.
[118] Failure to find or keep employment not usually being regarded as such.
[119] In Section L.1 above.
[120] She received $3,200 from the Rainbow Fund, $2,100 from the Apple Fund.
[121] Set out in Section F above.
