Commissioner of Registration v. Registration of Persons Tribunal and Others

HCAL 1740/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 1740 OF 2000

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Coram: Hon Hartmann J in Court

Date of Hearing: 8 December 2000

Date of Judgment: 8 December 2000

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J U D G M E N T

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1. The 2nd Respondent in this matter is a Chinese national. He was born in Fujian Province in 1951 but now resides in the Philippines. In 1998, through the Chinese Embassy in Manila, he made an application for the issue to him of a Hong Kong permanent identity card. That application was rejected by the Applicant. The 2nd Respondent then appealed to the Registration of Persons Tribunal. He was successful in that appeal.

2. The 3rd, 4th and 5th Respondents are the children of the 2nd Respondent. Through their father they too sought Hong Kong permanent identity cards. They too had their applications rejected by the Applicant but were successful before the Tribunal.

3. It is the Applicant's contention that the Tribunal, the 1st Respondent, was wrong in law when it found for the 2nd Respondent and his children. It is for that reason that the Applicant, by way of judicial review, now seeks to quash those decisions and have the matters remitted back for reconsideration in accordance with law.

4. Before considering the merits of the matter, it should be said that the 1st Respondent, in keeping with convention, has chosen not to be represented. As for the 2nd Respondent and his children, I am told that they have been contacted by telephone and advised of today's hearing. As they all live in the Philippines they have, however, declined to attend. In the result, only counsel for the Applicant has appeared to argue the matter.

A consideration of the Immigration Ordinance.

Section 2A of the Immigration Ordinance, Chapter 115, ('the Ordinance') gives to a Hong Kong permanent resident the privilege of right of abode. This means that a permanent resident has the right to land without conditions being imposed on his stay and is protected from being removed from the SAR.

5. But who may claim to be a permanent resident? Section 2 of the Ordinance defines a permanent resident as a person who belongs to a class of persons identified in Schedule I to the Ordinance and in this regard, paragraph 2 of Schedule I reads:

"A person who is within one of the following categories is a permanent resident of the Hong Kong Special Administrative Region -

(a) A Chinese citizen born in Hong Kong -

(i) before 1 July 1987; or

(ii) on or after 1 July 1987 if his father or mother was settled or had the right of abode in Hong Kong at the time of his birth or at any later time.

(b) A Chinese citizen who has ordinarily resided in Hong Kong for a continuous period of not less than 7 years before or after the establishment of the Hong Kong Special Administrative Region.

(c) A person of Chinese nationality born outside Hong Kong before or after the establishment of the Hong Kong Special Administrative Region to a parent who, at the time of birth of that person, was a Chinese citizen falling within category (a) or (b)."

6. The 2nd Respondent made his application in terms of paragraph 2(b) of the Schedule while his children made their applications in terms of paragraph 2(c). None of the children were born in Hong Kong. The eldest was born in Fujian Province, the younger two were born in the Philippines. But if the father was able to prove that he fell within one of the categories listed in paragraph 2 then, through him, the children earned their entitlement. The claims of the children, therefore, rest entirely on the success or failure of their father's claim.

7. As for the father, it was necessary for him to demonstrate that, as a Chinese citizen not born in Hong Kong he had nevertheless resided here at some time for a continuous period of 7 years.

8. It is not disputed that the father has lived in Hong Kong for a period of time well in excess of 7 years. The records indicate that he first came to Hong Kong in or about mid 1965 and only left Hong Kong in October 1980 since when he has been ordinarily resident in the Philippines. The problem, however, is that the father spent much of his time in Hong Kong serving terms of imprisonment imposed by the Hong Kong courts. This is of direct relevance because section 2(4)(b) of the Ordinance states the following:

"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."

9. Any period of imprisonment, therefore, is not to be counted towards the required 7 years of ordinary residence. But does any such period of imprisonment merely interrupt the acquisition of the necessary time or does it, in practice, cancel any period of time acquired prior to the imprisonment so that the person upon release, must start again from 'day one'? The Tribunal made a finding that imprisonment merely interrupted (or suspended) the acquisition of residence and it is that finding which is challenged by the Applicant as being wrong in law. In this regard, in its stated reasons, the Tribunal said:

"We do not agree with Mr Ho that the interpretation of Section 2(4)(b) of the Immigration Ordinance is that once a person is in imprisoned then his period of residence in Hong Kong for the purpose of the ordinance shall become invalidated in whole and that the person has to start all over again in accumulating the 7 years period. We are of the view that a person is entitled to accumulate his period of residence again after his imprisonment or detention pursuant to any sentence or order of any court unless there is evidence to the contrary that the person's intention to reside in Hong Kong has changed and that he has discontinued to reside in Hong Kong."

10. However, when the Tribunal came to this finding, it does not (on the face of the papers) appear to have been made aware of the dictum in the Court of Appeal judgment in The Commissioner of Registration v. The Registration of Persons Tribunal and Anor [2000] 2 HKLRD 523. The judgment related to a Pakistani national; that is, an alien national, and not a Chinese national. But the finding of the court, in my view, is one of general application in that it relates to the correct interpretation of the phrase: 'has ordinarily resided in Hong Kong for a continuous period of not less than 7 years' when that phrase is read with the provision in section 2(4)(b) of the Ordinance related to imprisonment. At page 557 of the judgment, Ribeiro JA (as he then was) said the following:

"The requirement is that there must be a "continuous" seven-year period of ordinary residence before one can claim permanent resident status. Since s.2(4)(b) prescribes that a period of imprisonment does not count as a period of ordinary residence, it follows that someone may be able to point to periods of ordinary residence occurring before and after the period spent in prison. However, I find it impossible to see how, in such a case, those two separated periods of ordinary residence can nevertheless be said to be in any sense "continuous". The second respondent is simply unable to meet Sched.1 para.1(4)(b)'s requirement of proving that he was ordinarily resident over the required continuous period immediately before the date of his application."

11. In my judgment, that would appear to cover the point in issue in this present matter. Clearly, what must be demonstrated by an applicant who has undergone periods of imprisonment in Hong Kong is that, without any interruption occasioned by incarceration, he or she has nevertheless resided in the SAR for 7 years. Put succinctly, what must be demonstrated is that either before or after incarceration or in one continuous period of time between incarcerations the Applicant has ordinarily resided in the SAR for a period of not less than 7 years.

12. That being the law, I am satisfied that the Tribunal, in giving its reasons, did so in error. As a consequence, my orders are as follows:

1. That there be an order of certiorari to remove into this court and to quash the three decisions made by the 1st Respondent.

2. That there be an order of mandamus obliging the 1st Respondent to reconsider its decisions in accordance with law.

3. That, by consent, there be no order as to costs.

Representation:

Miss Michelle Chan, of Department of Justice, for the Applicant

1st Respondent, Registration of Persons Tribunal, in person. (will not attend)

2nd Respondent in person, absent

3rd Respondent in person, absent

4th Respondent in person, absent

5th Respondent in person, absent