Case Document

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CACV000260/2001

CACV 260/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 260 OF 2001

(ON APPEAL FROM HCAL 1379 OF 2000)

______________

BETWEEN
	PREM SINGH	Applicant

	AND

	THE DIRECTOR OF IMMIGRATION	Respondent

______________

Coram: Hon Mayo VP, Woo JA and Yeung J in Court

Date of Hearing: 27 November 2001

Date of Judgment: 27 November 2001

Date of Reasons for Judgment: 7 December 2001

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REASONS FOR JUDGMENT

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Hon Mayo VP (giving the reasons for judgment of the Court):

1.This is an appeal from a judgment of Cheung J (as he then was). He was hearing an application made by the applicant for the judicial review of various decisions made by the respondent.

2.The first decision complained of is the decision made by the respondent on 4 June 1999 refusing the applicant's application for unconditional stay. The second is his refusal on 9 October 1999 to review this decision.

3.The third is the respondent's decision made on 14 June 2000 finding that the applicant was not a permanent resident of Hong Kong under Art. 24(2)(4) of the Basic Law.

4.The applicant is an Indian national. He was born in India on 14 August 1964. He first came to Hong Kong in January 1988. Thereafter on 11 March 1988 he changed his status as he took up employment as a chef.

5.For the purposes of this appeal he has remained in Hong Kong since then. In June 1996 he married a Philippino national and a child was born to them on 30 August 1999.

6.The main problem which has been encountered relates to the applicant's criminal record.

7.Between November 1994 and January 1997 he had 3 relatively minor "brushes" with the law. None of these resulted in the imposition of a custodial sentence.

8.However on 3 May 1999 he was convicted of indecent assault and sentenced to 2 weeks imprisonment. He served this sentence.

9.The contention which has been advanced by the respondent is that the applicant's imprisonment had the effect of breaking the continuous period of 7 years residence referred to in Art. 24(2)(4) of the Basic Law prior to his application for permanent resident status.

10.So far as it is relevant Art. 24 reads:

"1. Residents of the Hong Kong Special Administrative Region ('Hong Kong residents') shall include permanent residents and non-permanent residents.

2. The permanent residents of the Hong Kong Special Administrative Region shall be:

(1) .....;

(2) .....;

(3) .....;

(4) Persons not of Chinese nationality who have entered Hong Kong with valid travel documents, have ordinarily resided in Hong Kong for a continuous period of not less than seven years and have taken Hong Kong as their place of permanent residence before or after the establishment of the Hong Kong Special Administrative Region;

(5) .....; and

(6) ......

3. The above-mentioned residents shall have the right of abode in the Hong Kong Special Administrative Region and shall be qualified to obtain, in accordance with the laws of the Region, permanent identity cards which state their right of abode.

4. The non-permanent residents of the Hong Kong Special Administrative Region shall be persons who are qualified to obtain Hong Kong identity cards in accordance with the laws of the Region but have no right of abode."

11.This Article needs to be read in conjunction with s. 2(4)(b) of the Immigration Ordinance, Cap. 115 which is in this form:

"(4) For the purposes of this Ordinance, a person shall not be treated as ordinarily resident in Hong Kong-

(a) .........

(b) during any period, whether before or after the commencement of this Ordinance, of imprisonment or detention pursuant to the sentence or order of any court."

12.It is relevant to add that when the respondent wrote to the applicant on 4 June 1999 informing him that his application had been refused he stated:

"Under existing policy, a temporary resident may be granted unconditional stay provided, inter alia, that he/her business or moral conduct is not in doubt nor is he/she known to associate with bad characters. In processing your application, we have taken into the information made available including your criminal conviction records from 1994 to 1999. Your case has been carefully considered and I regret to inform you that your application has been refused."

13.In considering this appeal it is necessary to take cognizance of a case which had a number of similarities to the instant case. This is the case of Commissioner of Registration v The Registration of Persons Tribunal and Anor [2000] 2 HKLRD 523 (the Fateh Muhammad case).

14.When the present case was heard by Cheung J the Fateh Muhammad case had been heard by the Court of Appeal and the Judge was bound by the Court of Appeal judgments.

15.In the most general terms Mr Muhammad who had resided in Hong Kong for a considerable time had been denied permanent residence status on account of the fact that he had been sentenced to 6 years imprisonment in 1994. The Court of Appeal had upheld the judgment of Keith JA (sitting as an additional Judge of the Court of First Instance) that Mr Muhammad was not entitled to be given permanent residence status.

16.Mr Muhammad appealed against these judgments and the Court of Final Appeal upheld the decisions of the Court of Appeal. It is accordingly necessary to consider the extent to which the circumstances of the present appeal differ from those obtaining in Fateh Muhammad.

17.The first point made by Mr Geoffrey Ma SC for the respondent is that the first two decisions referred to at the commencement of this judgment were not decisions refusing applications for verification of the applicant's status as a permanent resident. They were applications for unconditional stay.

18.The respondent has emphasized that these applications are entirely separate and distinct and dealt with by him in a different manner. The information sought in the application forms are different and they are processed by independent divisions within his Department. This is a matter of some importance as it has been held by the courts that the enjoyment of a right of abode should not be confused with the establishment of the right.

19.This was referred to by Rogers JA (as he then was) in the Fateh Muhammad case at p. 542:

"The requirement of establishing the status of permanent resident was considered in the case of Lau Kong Yung and others v. Director of Immigration (1999) 2 HKCFAR 300, [1999] 3 HKLRD 778. In that case, consideration was being given to the provisions of s. 2AA of the Immigration Ordinance. Those provisions are, of course, not applicable in this case. Nevertheless, there was no question that provisions regulating the manner in which the status of permanent resident could be established were upheld. Reference could be made, for example, to the Chief Justice's judgment at (1999) 2 HKCFAR 300 at pp. 318D-F and 328F-329E, [1999] 3 HKLRD 778 at pp. 794B-D and 804D-805C. A clear distinction is drawn between establishing the status and enjoying the rights which that status gives.

As pointed out above, the provisions of s. 2AA of the Immigration Ordinance are inapplicable in relation to persons claiming to be permanent residents under art. 24(2)(4) of the Basic Law (which is mirrored in para. 2(d) of Sched. 1 of the Ordinance). The mechanism for establishing a right under para. 2(d) is set out in para. 3 of Sched. 1. Paragraph 3(2) provides that a person does not have the status of a permanent resident under para 2(d) until his application has been approved by the Director of Immigration.

Whilst upholding the law insofar as it lays down a procedure for establishing a status, it is right to say that the procedures laid down for establishing the status cannot be used to alter the criteria required to be fulfilled to enjoy that status. The reason is simply that if a right is laid down in a constitutional document, it cannot be denied by subsidiary legislation."

20.We have no doubt that this is a correct statement of the law.

21.What then needs to be borne in mind is that the first two decisions complained of have to be considered separately from the third decision. It is only the third decision which relates to a claim being made by the applicant in connection with his status as a permanent resident of Hong Kong.

22.At the commencement of the hearing before us Mr McCoy SC applied to us to amend the grounds of appeal. This was not opposed by Mr Ma and we granted leave. The amended grounds read:

"1. That the learned Judge erred in applying the decision in Commissioner of Registration v Registration of Persons Tribunal [2000] 2 HKLRD 523 (CA) to conclude that any period of imprisonment, no matter how short, within the 7 years immediately preceding entitlement to permanent residence, debarred the Appellant from accruing 7 years ordinary residence in Hong Kong. The provisions of s. 2(4)(B) Immigration Ord and Schedule 1. (5)(a) and 3(c) are inconsistent with A 24(2)(4) Basic Law. See Fateh Muhammad v Commissioner of Registration FACV 24/2000, 20 July 2001.

2. That the administrative requirement, imposed as a matter of policy by the Director of Immigration, that a non-Chinese national seeking permanent residence must first have been settled in the HKSAR by having unconditional stay status, is an unlawful policy inconsistent with A 24(2)(4) Basic Law. Commissioner of Registration v Registration of Persons Tribunal [1999] 3 HKLRD 199, 212 per Keith JA (CFI), cf Ribeiro JA at [2000] 2 HKLRD 523, 557-559, cf Bokhary PJ in Fateh Muhammad."

23.Mr McCoy placed heavy reliance upon the judgment of Bokhary PJ in the Fateh Muhammad appeal. As it is important that the Judge's observations are considered in the context they were made it may be helpful to extract all of the judgment where the Judge was commenting upon the effect of a sentence of imprisonment on an application for permanent residence. This is from p. 5 of the Court of Final Appeal judgment with which the other members of the Court agreed:

"Imprisonment or detention

Section 2(4)(b) of the Immigration Ordinance, Cap. 115, provides that 'a person shall not be treated as ordinarily resident in Hong Kong ... during any period ... of imprisonment or detention pursuant to the sentence or order of any court'. This provision has been in the statute book since 1971. In challenging its constitutionality, Mr Philip Dykes SC for Mr Muhammad says that what it catches includes even: detention pending a trial which results in acquittal or the dropping of charges; detention due to mental illness; detention as a debtor; detention pending extradition which eventually fails; detention of an eventually acquitted person due to a refusal by a magistrate of bail which is then granted by a judge; and one day's imprisonment.

As to the last item in that list of Mr Dykes's, I would not like to think that such pointless deprivations of liberty are part of the Hong Kong legal scene. In any event, I would not preclude an argument, whether on the de minimis principle by which the law ignores trifles or on some other basis, that a term of imprisonment of that short duration would not defeat an abode claimant. The view might well be taken that such a short period of imprisonment does not interrupt the continuity of residence for the purpose of art. 24(2)(4) of the Basic Law and, accordingly, of s.2(4)(b) of the Immigration Ordinance.

Turning to the other items in Mr Dykes's list, I would exclude them from s.2(4)(b)'s ambit on this simple basis. In a provision like s.2(4)(b) 'detention' and 'order' must, in my view, be read as being of the same nature as 'imprisonment' and 'sentence' respectively. Accordingly the only kind of detention covered by s.2(4)(b) is detention in a training centre or in a detention centre. (The word 'order' in s.2(4)(b) is needed because, although s.4 of the Training Centres Ordinance, Cap. 280, speaks of a 'sentence of detention', s.4 of the Detention Centres Ordinance, Cap. 239, speaks of a 'detention order'.)

The expression 'ordinarily resident' is to be given its natural and ordinary meaning. What that meaning is depends on the context in which the expression appears. The courts have often had to grapple with the expression's natural and ordinary meaning in legislation eg. as in Levene v. Inland Revenue Commissioners [1928] AC 217 and Inland Revenue Commissioners v. Lysaght [1928] AC 234 (where liability to tax was concerned) and as in Reg v. Barnet LBC, ex parte Shah [1983] 2 AC 309 (where entitlement to educational allowance was concerned). Although residence and its nature can be highly relevant to the common law concept of domicil, it was pointed out by Lord Carson in Gout v. Cimitian [1922] 1 AC 105 at p.110 that the expression 'ordinarily resident' (found in that case in an Order in Council) could not be interpreted by the considerations which apply when determining domicil, and must be given its usual and ordinary meaning.

No single judicial pronouncement or combination of such pronouncements in regard to the meaning of the expression 'ordinarily resident' can be conclusive for the purposes of every context in which that expression appears. But as a starting point at least, Viscount Sumner's observation in Lysaght's case at p.243 that 'the converse to "ordinarily" is "extraordinarily" ' is, I think, of wide utility. Serving a term of imprisonment, at least when it is not of trivial duration, is something out of the ordinary. Of course it does not mean that a person in prison in any given jurisdiction is never to be regarded as ordinarily resident in that jurisdiction for any purpose. Certainly I would not be disposed to hold, for example, that the fact of being in prison somewhere would of itself render a person not ordinarily resident there when his being so would render him liable to tax.

The present context is a different and somewhat special one. For the question to which it gives rise is this. Does being in prison or a training or detention centre in Hong Kong pursuant to a criminal conviction which has never been quashed and a sentence or order which has never been set aside constitute ordinary residence here when seven years' ordinary and continuous residence here is a qualification prescribed by the Basic Law for attaining a valuable status and right, namely Hong Kong permanent resident status and the right of abode here? In such a context, there is a very strong case for saying that residence while serving a substantial term of imprisonment or detention in a training or detention centre is not ordinary residence. So in my judgment: (i) the answer to the question posed above is 'no'; (ii) art. 24 of the Basic Law is to be construed accordingly; and (iii) s.2(4)(b) of the Immigration Ordinance (construed in the way explained above) is therefore constitutional."

24.Mr McCoy submitted that the important point to be made from this passage was that the Court of Final Appeal was not closing the door to an argument that the mere imposition of a term of imprisonment automatically brought to an end a period of continuous residence in Hong Kong immediately prior to the application.

25.He claimed that it was clear that what the court had in mind was that a substantial sentence of imprisonment had to be imposed before this would arise. He went on to argue that a sentence of 14 days imprisonment was for all practical purposes the shortest term of imprisonment that was ever likely to be imposed.

26.According to him what was required was for the respondent to consider the application with a sense of proportion. He should weigh in the balance the amount of time the applicant had resided in Hong Kong prior to the commission of the offence in question and then go on to consider the gravity of the offence and all of the surrounding circumstances. To do otherwise would lead to injustice.

27.We do not agree. If the passage in Bokhary PJ's judgment is read in its correct context all that the Judge was doing was to leave open so far as it was possible situations which may arise of the type referred to by Mr Dykes SC in his submissions. He was certainly not saying that any term of imprisonment referred to in the section had to be a "substantial" term.

28.This is not surprising as the terms of s. 2(4)(b) are quite clear. As was pointed out by Mr Ma there was no suggestion in the subsection that any discretion was reposed in the respondent. This was in contradiction to the provisions contained in s. 2(6) where the respondent is required to consider whether a temporary absence from Hong Kong breaks the continuity of the residence.

29.Needless to say it is necessary to strictly construe the provisions contained in an ordinance and it is apparent that there is nothing in the observations made by Bokhary PJ in his judgment which in any way call in question this approach.

30.We are satisfied that the sentence of imprisonment which was imposed upon the applicant had the effect of bringing to an end his continuous residence in Hong Kong and that the respondent was not in error in making the third decision which was the subject of the judicial review.

31.We advised the parties at the conclusion of the submissions which were made on this ground of appeal of our decision. We also informed them that as this decision was determinative of the appeal we had formed the view we should not express our opinion on the issue raised in the second ground as any views expressed by us would only be obiter dicta.

32.The appeal is accordingly dismissed. We also ordered that the respondent was to have his costs and that the applicant's costs were to be taxed in accordance with the Legal Aid Regulations.