Prem Singh v. Director of Immigration
Read the full judgment text of FACV 7/2002 on BabelCite. This Court of Final Appeal judgment was delivered on 11 February 2003 before Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ.
Constitutional law – right of abode – permanent resident status – non-Chinese nationals – Article 24(2)(4) of the Basic Law – Immigration Ordinance (Cap 115) Schedule 1 – whether the requirement that an applicant not be subject to any limit of stay is unconstitutional – whether ordinary law can make a constitutional status dependent on administrative discretion – Indian national entering Hong Kong in 1988 with valid travel documents – working as cook – application for unconditional stay on 24 October 1998 following Immigration Officer's advice – imprisonment for two weeks for indecent assault in May 1999 – Director's refusal of application – whether two weeks' imprisonment breaks continuity of ordinary residence – de minimis principle – whether application for permanent resident status was made on 24 October 1998 or 30 May 2000 – whether the time of application issue was abandoned in Court of Appeal – held that paragraph 3(1)(c) of Schedule 1 read with paragraph 1(5)(b) is unconstitutional as it makes a constitutional right dependent on administrative discretion – held that two weeks' imprisonment was not de minimis as the exclusion of imprisonment from ordinary residence is qualitative not quantitative – held that the application should be treated as made on 24 October 1998 as substance prevails over form in constitutional matters – appeal allowed – declaration of unconstitutionality – certiorari to quash Director's decisions – mandamus to determine application – costs to appellant – Legal Aid taxation.
Legal issues: Constitutionality of the unconditional stay requirement under Schedule 1 to the Immigration Ordinance · Whether two weeks' imprisonment breaks continuity of ordinary residence (de minimis) · Date of application for permanent resident status · Whether to entertain the time of application issue despite alleged abandonment in Court of Appeal
Outcome: Appeal allowed.
Cited by 39 cases · Cites 9 cases
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FACV No. 7 of 2002 IN THE COURT OF FINAL APPEAL OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION FINAL APPEAL NO. 7 OF 2002 (CIVIL) (ON APPEAL FROM CACV NO. 260 OF 2001) _______________________
_______________________ Court: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ Dates of Hearing: 14 - 16 January 2003 Date of Judgment: 11 February 2003 _______________________ J U D G M E N T _______________________ Chief Justice Li : 1.I agree with the judgment of Mr Justice Ribeiro PJ. Mr Justice Bokhary PJ : 2.From all over the world many persons not of Chinese nationality come to Hong Kong with valid travel documents, are given permission to enter and are then permitted to remain year after year. Article 24(2)(4) of our constitution the Basic Law provides such persons with a means by which to acquire Hong Kong permanent resident status, which carries with it the right of abode here. It enables them ? if they are permitted to enter and then remain long enough ? to acquire such status by ordinarily residing here for a continuous period of not less than seven years and taking Hong Kong as their place of permanent residence. They take Hong Kong as their place of permanent residence by ordinarily residing here for the requisite period and treating Hong Kong as their home indefinitely rather than for a limited period. Then all that they have to do is claim permanent resident status by applying for it in reliance upon having so resided here immediately before making that application. Once their claim is verified, they may enjoy their permanent resident status. This is all perfectly straightforward, as it should be. Any formalism, complication or subtlety by which a claim to a constitutional status or right can be denied or delayed would inevitably erode public confidence in the law. 3.Persons who eventually acquire permanent resident status by virtue of art. 24(2)(4) would have started off by having to rely on an exercise of administrative discretion in favour of permitting them to enter and then remain for a certain period. Thereafter they would have had to rely on successive exercises of administrative discretion in favour of permitting them to remain for further periods. But once they manage to bring themselves within the plain terms of art. 24(2)(4), their position ceases to be subject to administrative discretion and comes under constitutional protection. Verification only 4.The legal question of whether a person has permanent resident status is the province of the Basic Law to the exclusion of ordinary law which has no role in this legal question. In this area the role of ordinary law is confined to providing proper machinery for verifying the crucial facts. This brings me to Schedule 1 to the Immigration Ordinance, Cap. 115, which is headed "Permanent Residents of the Hong Kong Special Administrative Region". The relevant provisions of this schedule are paras 1, 2 and 3. Do these provisions serve the Basic Law's purposes or do they run counter to those purposes? Paragraph 2(d) poses no problem. It simply tracks art. 24(2)(4). But then we come to a word which is not in art. 24(2)(4). It is the word "settled". Paragraph 3(1)(c) says that a person seeking to establish Hong Kong permanent resident status under para. 2(d) must be "settled" in Hong Kong at the time of his declaration that he has taken Hong Kong as his place of permanent residence. 5.Does the introduction of the word "settled" purport to make a constitutional status subject to a condition which the constitution itself does not impose? To find out, we have to look at certain other provisions of Schedule 1. Paragraph 1(5) reads:
Constitutional rights / administrative discretion 6.Apart from the problem of its being tacked to the word "settled" which is not in art. 24(2)(4), the condition in para. 1(5)(a) that the person be ordinarily resident in Hong Kong seems innocuous in itself. But what about paras 1(5)(b) and 3(1)(c)? In order to enjoy their permanent resident status, people have to declare that they have taken Hong Kong as their place of permanent residence. But paras 1(5)(b) and 3(1)(c) combine to say that they cannot make such a declaration if they are subject to a limit of stay. Being conferred by the Basic Law, Hong Kong permanent resident status is a constitutional status. It carries, in particular, the three constitutional rights which the Basic Law reserves exclusively to Hong Kong permanent residents, namely the right of abode, the right to vote and the right to stand for election. By contrast, whether or not to lift a limit of stay is a matter for the exercise of the Director of Immigration's discretion under the Immigration Ordinance. 7.Can ordinary law make a constitutional status or right dependent upon a favourable exercise of an administrative discretion or, failing that, a successful administrative appeal or, failing even that, a successful judicial review challenge? In my view, such a state of affairs would be unconstitutional. As Lord Shaw of Dunfermline said in Scott v. Scott [1913] AC 417 at p.477:
Indeed the notion of any legal right, let alone a constitutional right, being downgraded to something which can be granted or withheld as a matter of discretion is repugnant to the rule of law. As Alexis de Tocqueville is quoted in RJ Vincent: Human Rights and International Relations (1986) at p.17 as having said:
8.Having the right of abode in Hong Kong, which right comes with Hong Kong permanent resident status, entitles a person to stay here without any limit. Therefore no limit on a person's stay in Hong Kong can co-exist with his or her enjoyment of the right of abode here. Any such limit would have been imposed under ordinary law, namely the Immigration Ordinance. But the right of abode is a constitutional right conferred and entrenched by the Basic Law. Basic Law rights and freedoms are neither dependent upon nor defeasible by ordinary law. Therefore no limit on a person's stay in Hong Kong can impede the verification of his or her acquisition of the right of abode here by ordinarily residing here for a continuous period of not less than seven years, treating Hong Kong as his or her home indefinitely rather than for a limited period and applying for permanent resident status in reliance upon having so resided here immediately before making that application. Limiting her client's constitutional challenge to no more than what is needed for the purposes of the case at hand, Ms Audrey Eu SC for the appellant submits that para. 3(1)(c) is such an impediment and is therefore unconstitutional. 9.I agree. Para. 3(1)(c) of Schedule 1 to the Immigration Ordinance is unconstitutional. There was, I should mention, some suggestion in the course of the argument that to so hold might make the Director prone to exercise his discretionary powers so as to prevent non-Chinese nationals from building up seven years' ordinary and continuous residence. I do not consider it appropriate to say in advance what the courts would do in a judicial review challenge to such behaviour. But there are two things that I will say. To begin with, I note in fairness to the Director that he himself has not said that he would behave in that fashion. And in any event, the position is simply this. The courts have to uphold the Basic Law no matter how anybody may react to our doing so. No other course is open to us. Upholding the Basic Law is the first thing that every member of Hong Kong's judiciary swears to do when he or she takes the judicial oath. The facts 10.I turn now to the facts of the present case. The appellant is an Indian national. In January 1988 he entered Hong Kong with a valid travel document. He lawfully took up employment here. In July 1996 he got married here. On 24 October 1998 he went to the Immigration Department in order to apply for an extension of stay based on new employment. At the Immigration Department a member of the Immigration Service asked him: "You change your job?" He replied "Yes". She then said to him: "On the application form you should say 'unconditional stay'. When you get your unconditional stay you can then apply for the right of abode." He filled in and submitted an application form accordingly. 11.That, Ms Eu submits as her primary point on the appellant's behalf, amounted to an application for permanent resident status. Even though this submission was not pursued before the Court of Appeal after having been rejected at first instance, I think that the circumstances of the present case are so very exceptional that we ought nevertheless to entertain the submission. The facts are clear, and leaving the point undecided would be most unfortunate. Failing his contention that the submission ought not to be entertained, Mr Joseph Fok SC for the Director of Immigration argued that on the merits the appellant cannot be taken to have applied for permanent resident status until 30 May 2000 when he sought verification of his eligibility for a permanent identity card. Substance over form: application made 12.Despite the skill with which Mr Fok advanced it, I am unable to accept that argument. Having laid down in art. 24(2) who shall be permanent residents of Hong Kong, the Basic Law then provides in art. 24(3) that they "shall have the right of abode in the Hong Kong Special Administration Region and shall be qualified to obtain, in accordance with the laws of the Region, permanent identity cards which state their right of abode". So permanent resident status carries with it the right of abode. Such status and right entitles a person to a permanent identity card stating that right of his or hers. As I said in Fateh Muhammad v. Commissioner of Registration (2001) 4 HKCFAR 278 at p.281 B-C in a judgment with which the other members of the Court agreed, a permanent identity card "signifies official recognition of the holder's Hong Kong permanent resident status with the right of abode here". A permanent identity card is not a source of or a pre-condition to, but is merely a badge of, permanent resident status and the right of abode. Such a card is a constitutional entitlement of all persons upon whom the Basic Law confers such status and right. It is impossible to say that you cannot apply for the status except by applying for the card. After all, you do not get the status because you have the card. It is the other way round. You get the card because you have the status. 13.On any view other than one so insistent on form over substance to the individual's disadvantage as to be unsuited to constitutional affairs, the appellant applied for permanent resident status when he submitted the application form which he submitted on 24 October 1998, and this application carried over to the time when he sought verification of his eligibility for a permanent identity card. By then he had made a declaration, which related back to 24 October 1998, that he had taken Hong Kong as his place of permanent residence. All that then remained for the Immigration Service to do was to verify the crucial facts. This brings me to Mr Fok's point based on s.2(4)(a)(ii) of the Immigration Ordinance which says that for the purpose of that Ordinance a person shall not be treated as ordinarily resident in Hong Kong during any period in which he remains in Hong Kong in contravention of any condition of stay. 14.The appellant had been granted an employment visa to enable him to work as a cook for a certain employer until 17 July 1999 or two weeks after the termination of his contract of employment with that employer, whichever came earlier. On 27 September 1998 the appellant left his employment with that employer. Mr Fok contends that two weeks thereafter i.e. on 12 October 1998 the appellant became an overstayer and ceased to be ordinarily resident in Hong Kong. To this contention Ms Eu makes a number of responses. I will mention two of them. One response which I will mention is that s.2(4)(a)(ii), which after all has penal implications, simply does not apply to situations like the present where the appellant dealt openly with the Immigration Service, and, with full knowledge of the facts, it invited him to apply for unconditional stay and the right of abode thereafter. The other response which I will mention runs thus. In any event, the appellant's stay had been enlarged and, as the Court of Appeal held in Sae-Ang Paisarn v. Director of Immigration [1989] 1 HKLR 205, such enlargement filled any gap in the total period of ordinary and continuous residence of the person concerned. Having invited the appellant to apply for unconditional stay and the right of abode thereafter, the Immigration Service then entertained the application which he made upon that invitation. And there is no justification in any context, let alone a constitutional one, for refusing to recognize that as an enlargement of the appellant's stay. 15.The Director has not yet applied his mind to what he would do in regard to s.2(4)(a)(ii) if the appellant's application for permanent resident status had indeed been made on 24 October 1998. Would the Director maintain his s.2(4)(a)(ii) point? And even if he did, would he exercise his discretion to enlarge the appellant's stay? The s.2(4)(a)(ii) point would not call for decision unless, looking at the matter afresh on the basis that the appellant had applied for permanent resident status on 24 October 1998, the Director nevertheless maintains the point and declines to exercise his discretion to enlarge the appellant's stay. At this stage, I would leave the s.2(4)(a)(ii) point to one side. 16.For the foregoing reasons, I would decide in the appellant's favour on the primary point advanced on his behalf by Ms Eu. Imprisonment 17.Nevertheless I propose to deal with the appellant's alternative point which was ably advanced by Ms Eu and ably opposed by Mr Fok. This is that despite the two weeks' imprisonment which the appellant served in 1999, he would have seven years' ordinary and continuous residence immediately preceding his application for permanent resident status even if he had not applied for such status until 2000. Ms Eu put this alternative point in two alternative ways. The first is that the two weeks do not prevent the whole period including those two weeks from being ordinary and continuous residence. And the second way is that the two weeks do not break the continuity of the period excluding those two weeks and bisected by them. The appellant is not relying on the inclusion of the two weeks in order to achieve a total of at least seven years. So either way would, if it succeeds, serve his purpose. 18.The abode claimant in Fateh Muhammad's case was sentenced to six years' imprisonment. Including the time which he spent in custody before he was sentenced and with one-third remission for good behaviour, he had been in prison for four of the seven years immediately preceding his application for permanent resident status. Such imprisonment, we held, meant that he could not be said to have been ordinarily resident in Hong Kong for a continuous period of not less than seven years immediately preceding his application for permanent resident status. But we left open the question of whether or not imprisonment for a shorter period would defeat an abode claimant. 19.Two passages should be cited from my judgment in that case, with which judgment the other members of the Court agreed. The first is at p.283 A-G, and reads:
20.The second passage is at pp 283J-284F, and reads:
21.Ms Eu cited the decision of the United States Supreme Court in Wisconsin Department of Revenue v. William Wrigley Jr Co. 505 US 214 (1992). She places reliance on two propositions stated in the judgment of the majority delivered by Scalia J. The first is at p.231 where it is said that the de minimis principle "is part of the established background of legal principles against which all enactments are adopted, and which all enactments (absent contrary indication) are deemed to accept". The second proposition is to be found at p.232 where it is said that "[w]hether a particular activity is a de minimis deviation from a prescribed standard must, of course, be determined with reference to the purpose of the standard". 22.Scalia J cites five decisions of the United States Supreme Court in support of the first proposition. In three of them (Industrial Association of San Francisco v. United States 268 US 64 (1925) at p.84, Abbott Laboratories v. Portland Retail Druggists Association, Inc. 425 US 1 (1976) at p.18 and Republic of Argentina v. Weltover, Inc. 504 US 607 (1992) at p.618) the instruments to which the de minimis principle was applied were federal statutes. But in the other two (Ingraham v. Wright 430 US 651 (1977) at p.674 and Hudson v. McMillian 503 US 1 (1992) at pp 8-10) the de minimis principle was applied to the United States Constitution itself. It was applied in those two cases to deny constitutional protection against the matters complained of, leaving such protection to ordinary law. The argument for applying it to accord constitutional protection must be at least as strong if not stronger. 23.I respectfully agree with both of the propositions stated by Scalia J in the Wisconsin case. In my view, the de minimis principle does operate in regard to the question whether a short term of imprisonment during a period of not less than seven years precludes a person's residence during that period from being ordinary and continuous within the meaning of art. 24(2)(4). This is most obviously so in respect of what I characterised in Fateh Muhammad's case (at p.283C) as "pointless deprivations of liberty". But it is so even in respect of proper sentences. Whether a particular term of imprisonment is de minimis is a question to be answered with regard to art. 24(2)(4)'s purpose. 24.The purpose of art. 24(2)(4) as a whole is to provide a means by which persons not of Chinese nationality who have entered Hong Kong with valid travel documents can acquire Hong Kong permanent resident status and therefore the right of abode here. These means have two components. One is having been ordinarily and continuously resident here for not less than seven years. And the other is taking Hong Kong as one's place of permanent residence in the way which I have earlier explained. The purpose of the first component in particular, which is the component to which the de minimis point is directed, is to confer these means upon, and confine them to, persons who have managed to build up residence of a certain nature and duration. 25.I regard the second way in which Ms Eu puts the de minimis point as the appropriate way of putting it. Do the two weeks prevent the whole period including those two weeks from being ordinary and continuous residence? If the question involved whether the two-week sentence is trivial as a sentence, I would regard it as impossible to say that it is not trivial. But what the question really involves is whether two weeks out of at least seven years are trivial as something put forward to deprive an individual of the benefit of art. 24(2)(4). This question is one of fact and degree. All the judges in the courts below have answered it negatively against the appellant. So would all my colleagues on this Court. And how I answer it does not affect the result, which is in the appellant's favour in any event. So even though I incline towards answering it affirmatively in the appellant's favor, I will not press my inclination to the point of answering such a question of fact and degree differently from the other eight judges who have considered this case in this Court and in the courts below. And I would therefore decide in the appellant's favour on his primary point alone. Conclusion 26.I would allow the appeal to:
27.Although I prefer to formulate the relief in the foregoing way, I am prepared to concur in the grant of relief in the terms favoured by the other members of the Court. 28.Finally I thank both legal teams for the assistance which I have derived from the arguments which they have prepared and presented so well. Mr Justice Chan PJ : 29.I agree with the judgment of Mr Justice Ribeiro PJ. Mr Justice Ribeiro PJ : 30.This appeal raises issues concerning the conditions which must be met before non-Chinese nationals qualify under Article 24(2)(4) of the Basic Law for the status of permanent resident, and so the right of abode, in the Hong Kong Special Administrative Region. The facts 31.The appellant is an Indian national. He first arrived in Hong Kong as a visitor in January 1988. In March of that year, he was granted permission to remain in Hong Kong to work as a cook. 32.Until 1998, his employment visa was renewed from time to time, with the appellant in each instance being granted permission to remain until a stated date. In the terminology of the Immigration Ordinance, Cap 115 ("the Ordinance"), he was made subject to a "limit of stay" on each occasion. Apart from two periods of absence which are not relevant, the appellant has been in Hong Kong since his first arrival. 33.In July 1996, the appellant got married in Hong Kong. His wife is a Filipino national who had come to work here as a domestic helper. On 13 November 1996, the appellant applied for permission to stay unconditionally on the basis that he had by then been ordinarily resident here for more than 7 years. However, he did not attend for interview as requested by the Immigration Department and his application was treated as cancelled. In November 1997, he repeated his application for an unconditional stay, this time through solicitors, but this was refused in May 1998. 34.The appellant's wife was, however, given permission in November 1996 to remain in Hong Kong as his dependant, subject to a limit of stay in line with his own. On 30 August 1999, they had a child. His wife and child both reside with him in Hong Kong. 35.In the course of his stay, the appellant has found himself in trouble with the law on a number of occasions.
36.At the hearing before the Court of Appeal, the court was told that on 17 April 2001, the appellant was convicted of assault occasioning actual bodily harm for which he was imprisoned for 3 months. He was further convicted on 20 June 2002 of wounding and of assaulting a police officer, being sentenced to a total of 5 months' imprisonment. 37.In 1995 and 1996, the appellant received warnings from the Immigration Department in relation to his conviction for assault to the effect that if he were again to be convicted of a criminal offence "or otherwise come to adverse attention" his application to continue his stay in Hong Kong would "have to be re-assessed". 38.Nevertheless, on 17 July 1998, despite his convictions in 1995 and 1997, the appellant was given permission to work at an establishment known as the Shalimar Club and to extend his stay in Hong Kong until 17 July 1999 or 2 weeks after termination of his contract of employment, whichever might be the earlier. 39.His employment with the Shalimar Club in fact came to an end on 27 September 1998. Accordingly, his permission to remain in Hong Kong expired two weeks later, on 12 October 1998. 40.Some 12 days after such expiry, on 24 October 1998, the appellant applied at the Immigration Department for permission to stay in circumstances which will require more detailed consideration later. He produced a letter dated 23 October 1998 from a restaurant known as the Curry Hut stating that he had been offered employment there as a cook. The application form which he submitted indicated that he was applying for an unconditional stay. 41.On 5 March 1999, the Immigration Department received a letter dated 23 February 1999 from a different prospective employer, namely, the Hong Kong Country Club. This letter stated that the Club wished to offer the appellant a job and asked on the appellant's behalf that he be given "a temporary employment visa ...... or a speedy process of [his] permanent residency so that [he] can start his employment at the Club as soon as possible." 42.The appellant was then asked to attend a further interview to establish his then employment status. This took place on 17 April 1999 and the appellant promised to return two days later with proof of his employment. However, he did not do so and, on 4 May 1999, the Hong Kong Country Club wrote to the Director of Immigration ("the Director") stating that it had decided not to employ him. This was dated the day after the appellant was sentenced to 2 weeks' imprisonment for indecent assault. 43.That conviction and sentence duly came to the Director's attention. Taking them together with other factors including the appellant's earlier criminal convictions, the Director decided, by letter dated 4 June 1999, to refuse the appellant's 24 October 1998 application. This is the first decision challenged as unlawful by the appellant. 44.Three further applications for extension followed.
45.On 24 August 1999, the appellant sought to have the Director's refusal of his application for unconditional stay re-considered. On 9 October 1999, the Director upheld his earlier refusal. This decision is the second sought to be challenged by the appellant. 46.The appellant's solicitors then wrote to the Director on 30 May 2000 claiming, and seeking verification of, permanent resident status for the appellant. This was refused on 14 June 2000 on the basis that the appellant did not qualify for such status. This refusal is the third decision under challenge. 47.The appellant's application for judicial review was rejected by Cheung J on 4 December 2000 (Unreported, HCAL 1379/2000) and the appeal dismissed by the Court of Appeal on 7 December 2001 (Unreported, CACV 260/2001). The issues 48.The relevant provisions of Article 24 of the Basic Law are set out as follows :-
49.It follows that BL24(2)(4) requires non-Chinese persons to satisfy three conditions if they are to qualify for permanent resident status. They must :-
50.It is common ground that the appellant was able to satisfy the entry requirement. However, his ability to meet either the seven year requirement or the permanence requirement is in dispute. The differences between the parties give rise to the following issues :-
The limit of stay issue 51.The Director contends that it is implicit in the permanence requirement as laid down by BL24(2)(4) that a non-Chinese applicant seeking to establish his right to permanent resident status must show, not only that he has formed the intention to take Hong Kong as his place of permanent residence, but also that he is not subject to any limit of stay preventing him, as a matter of immigration law, from staying here permanently. His permission to stay in Hong Kong must, in other words, be unconditional ("the unconditional stay requirement"). 52.This view reflects provisions currently enacted in the Ordinance which are obviously intended to operate as a statutory scheme for implementing BL24(2)(4).
53.The result of these statutory provisions is that an applicant is not "settled in Hong Kong" and so is unable to meet the permanence requirement (as reproduced in Schd 1, para 2(d) and elaborated as aforesaid) unless he is not constrained by any limit of stay when declaring his intention to make Hong Kong his place of permanent residence in the course of applying for permanent resident status. Therefore, when the Director rejected the appellant's application to have his limit of stay removed, the Director was effectively determining as a matter of discretion that, for the reasons mentioned above, the appellant should not be made eligible for permanent resident status. 54.Whether this statutory scheme faithfully implements BL24(2)(4) or whether, as the appellant contends, it is ( in respect of the unconditional stay requirement ( unconstitutional, has not been authoritatively determined. However, dicta tending in both directions can be found.
55.The occasion for the issue to be decided arises in the present case. I am persuaded by the submissions of Ms Audrey Eu SC, appearing for the appellant with Mr Kwok Sui Hay, that on the proper interpretation of BL24(2)(4), the unconditional stay requirement is unconstitutional. This conclusion flows from the language and structure of the relevant constitutional provisions. 56.It is well-established that a fair and reasonable statutory scheme for the proper verification of a person's claim to right of abode is constitutional and that until such claim is verified, the applicant does not enjoy the rights of a permanent resident: Ng Ka Ling & Others v Director of Immigration (1999) 2 HKCFAR 4 at 36; Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300 at 312. 57.In the present context, this is reflected by Schd 1, para 3(2) of the Ordinance (read subject to the requirements that the verification scheme be fair and reasonable and not exceed the verification function) which provides as follows :-
58.Accordingly, a non-Chinese person claiming the right to permanent resident status and hence a right of abode, must apply to the Director for his claim to be verified. In accordance with BL24(2)(4), the Director is entitled to seek evidence which would establish that the applicant satisfies the entry, seven year and permanence requirements referred to in paragraph 49 above. 59.In the Fateh Muhammad case, this Court rejected the argument that these three requirements could be satisfied quite independently of each other and at different times prior to the application for permanent resident status. It was held that whether an applicant satisfies the seven year requirement must be judged at the time when the application is made by reference to the period immediately preceding that application, as reflected in Schd 1, para 1(4)(b) of the Ordinance. It was also held that on the true construction of BL24(2)(4), a temporal linkage exists between the seven year and the permanence requirements so that they must be shown to be concurrently satisfied at the time the application for permanent resident status is made : (2001) 4 HKCFAR 278 at 285, per Bokhary PJ. That the seven year and permanence requirements are concurrent and are to be judged at the time of the relevant application, was not in dispute between the parties to the present appeal. 60.Bearing the aforesaid structure of the relevant provisions in mind, the wording of, and especially the tense employed in, the permanence requirement is important. BL24(2)(4) requires persons claiming the status to "have taken Hong Kong as their place of permanent residence". This means that an applicant, at the moment of putting forward his claim for verification by the Director, is required to point to facts which have already occurred permitting him to say that he has, starting at some point in time prior to the making of his application, already taken Hong Kong as his place of permanent residence. 61.It is true, as Mr Joseph Fok SC, appearing with Mr Daniel Wan for the Director, pointed out, that the notion of taking Hong Kong as a person's place of permanent residence imports the quality of a past, present and future commitment to establishing and maintaining a permanent residence in Hong Kong. It nevertheless remains the case that BL24(2)(4) recognizes that all the facts necessary to satisfy the permanence requirement are capable of coming into existence weeks, months or even years before the date of the application so that in putting the application forward, the claimant is able to say: "I have taken Hong Kong as my place of permanent residence" since a date in the past. 62.It will almost inevitably be the case that during that pre-application period, the non-Chinese applicant will have been subject to a limit of stay while building up his seven-year continuous period of ordinary residence. BL24(2)(4) therefore implicitly regards satisfaction of the permanence requirement as achievable at a time when an applicant is still subject to a limit of stay. 63.It follows that the Ordinance, in translating the Basic Law's permanence requirement into a condition that the applicant be "settled in Hong Kong" (Schd 1, para 3(1)(c)) and defining "settled" as requiring that the applicant be "not subject to any limit of stay in Hong Kong" (Schd 1, para 1(5)(b)), purports to impose a requirement which is incompatible with the requirements of BL24(2)(4). The Ordinance is therefore to that extent unconstitutional. While the Director may undoubtedly exercise his discretions as to whether a non-Chinese person should be allowed to enter Hong Kong and whether permission to remain should be extended, these discretions bearing on the entry and the seven year requirements respectively, the discretionary removal of a limit of stay forms no part of the permanence requirement. 64.The permanence requirement makes it necessary for the applicant to satisfy the Director both that he intends to establish his permanent home in Hong Kong and that he has taken concrete steps to do so. This means that the applicant must show that his residence here is intended to be more than ordinary residence and that he intends and has taken action to make Hong Kong, and Hong Kong alone, his place of permanent residence. The nature of the permanence requirement may be illuminated by contrasting the "taking of Hong Kong as a person's place of permanent residence" with merely ordinary residence in Hong Kong. 65.In Akbarali v Brent LBC [1983] 2 AC 309, Lord Scarman explains the ordinary and natural meaning of the words "ordinary residence". Adopting the approach in the tax cases Levene v Inland Revenue Commissioners [1928] AC 217 and Inland Revenue Commissioners v Lysaght [1928] AC 234, his Lordship (at p 343) stated that the concept :-
Elaborating on the term "settled purposes" Lord Scarman added (at p 344) :-
66.The permanence requirement in BL24(2)(4) demands more in at least two respects. The intention must be to reside, and the steps taken by the applicant must be with a view to residing, in Hong Kong permanently or indefinitely, rather than for a limited period. Such intention and conduct must also be addressed to Hong Kong alone as the applicant's only place of permanent residence. These are nonetheless requirements which can and must be met prior to the date of application for verification of permanent resident status, notwithstanding that the applicant is still, at that stage, subject to a limit of stay. Upon verification of an applicant's status, the limit of stay falls away as a matter of law and, in the normal course, any condition endorsed on the applicant's travel document would be expressly cancelled by the Director. The de minimis issue 67.Section 2(4)(b) of the Ordinance, provides that :-
68.As this Court noted in the Fateh Muhammad case (2001) 4 HKCFAR 278 at 283, provisions which exclude periods of imprisonment from qualifying as periods of ordinary residence have been on our statute books from 1971. It was held (ibid) that, provided one reads the word "detention" in that section ejusdem generis with "imprisonment" and therefore as applying only to detention in a training centre or in a detention centre, it was consonant with the ordinary and natural meaning of the words "ordinary residence" to exclude periods of imprisonment from that concept. Section 2(4)(b) was therefore constitutionally valid. 69.The Court, however, expressly left open the possibility that the de minimis principle might apply to trivial periods of imprisonment. This arose in the context of the challenge made to the constitutionality of section 2(4)(b), described by Mr Justice Bokhary PJ in the following terms:-
70.Mr Justice Bokhary PJ's response, introducing the possible application of the de minimis principle, was as follows :-
71.It is to be emphasised that this dictum addresses the suggestion that one day's imprisonment would suffice to trigger loss of continuity of ordinary residence. The other items on Mr Dykes's list were commented upon separately in the judgment. 72.Ms Eu seeks to argue nonetheless that the two week period of imprisonment relied on by the Director in this case as the basis for deciding that the appellant did not satisfy the seven year requirement ought to have been ignored as de minimis. 73.The maxim de minimis non curat lex (the law does not concern itself with trifling matters) is a common law principle of construction that applies unless a contrary intention appears: F A R Bennion, Statutory Interpretation (4th Ed, 2002) p 958. As this Court held in Chong Fung Yuen v Director of Immigration (2001) 4 HKCFAR 211 at 221-2, it is to the common law principles of interpretation that the courts look in construing the Basic Law. No intention to exclude the de minimis principle is detectable in the provisions of BL24(2)(4). The de minimis approach to construction is therefore in principle applicable to its interpretation. 74.Does the two week period of imprisonment in the present case come within the de minimis principle? While Cheung J did not expressly address that question, he decided (on the basis that the application for permanent resident status was made on 30 May 2000) that the imprisonment was sufficient to break continuity during the crucial period. The Court of Appeal, adopting the same date as the relevant date of application, considered but rejected the submission that de minimis applied. 75.In my judgment, the two week period of imprisonment in this case was not de minimis. Ms Eu sought to argue that the sentence brought about a trivial interruption because the period of two weeks represents a small fraction of the seven year qualifying period. However, the exclusion of periods of imprisonment from the ordinary and natural meaning of the words "ordinary residence" in BL24(2)(4) does not depend on the duration of such periods being substantial or on their amounting to a substantial fraction of the seven year qualifying period. The exclusion is qualitative. The incarceration, reflecting sufficiently serious criminal conduct to warrant an immediate custodial sentence, falls outside what could qualify as "the settled purposes" underlying a person's ordinary residence in the ordinary and natural sense of those words, referred to by Lord Scarman in Akbarali v Brent LBC [1983] 2 AC 309 at 344. It is this qualitative aspect of time spent in prison that has led to such periods being excluded from the concept of "ordinary residence" in successive statutory schemes and in the Basic Law. 76.I would be prepared to accept that the de minimis principle may apply, for instance, where a person, in a fit of temper, has acted in contempt of court and is sent down to the cells for a few hours or even overnight for his temper to cool and his contempt to be purged. But I would not be disposed to regard imprisonment of any greater substance as capable of engaging the de minimis principle. In the present case, the two week sentence was one of substance merited by the offence in all the circumstances. I see no basis for disregarding it for the purposes of BL24(2)(4) or section 2(4)(b). The abandonment issue 77.The conclusion that the period of imprisonment was not de minimis does not dispose of this appeal. This is because the seven year requirement does not exist in a vacuum, but is tied to the time when the application for verification of permanent resident status was made. As was decided in the Fateh Muhammad case (at p 285), the qualifying period for BL24(2)(4) purposes is the seven year period which immediately precedes that application, assessed at the time when the application is made. 78.As previously indicated, both Cheung J and the Court of Appeal proceeded on the footing that the application date was 30 May 2000. That is the position adopted by the Director. If correct, it would mean that the appellant cannot satisfy the seven year requirement since his imprisonment during May 1999 would have introduced a fatal discontinuity during the qualifying period. However, if, as the appellant seeks to argue, the true application date was 24 October 1998, the period of imprisonment post-dated and did not disrupt the appellant's achievement of the qualifying period. 79.The Director contends however that the time of application issue was abandoned in the Court of Appeal and that it should not be entertained in this Court. 80.It is clear that the issue was fully argued before Cheung J, his Lordship's decision being in the Director's favour. It is also clear that in the Court of Appeal, counsel then appearing for the Director plainly addressed the point, as Mayo VP noted :-
81.However, Mr Gerard McCoy SC, then appearing for the appellant, did not argue the time of application issue. He confined himself to the limit of stay and the de minimis arguments, advancing the latter on the assumption that the qualifying period was that immediately preceding 30 May 2000. Ms Eu was at pains to emphasise that she was making no criticism of Mr McCoy, explaining that he had been asked to step into the breach at extremely short notice after the unfortunate indisposition of Mr Dykes. Certainly this judgment intends no criticism of Mr McCoy. 82.This Court has held that where a point has been raised at trial but dropped in the intermediate court, it would be reluctant to consider the point in this forum unless there are exceptional circumstances and unless admitting the point in argument can be done without injustice : Wong Tak Yue v Kung Kwok Wai (1997-98) 1 HKCFAR 55 at 66; and Flywin Company Limited v Strong & Associates Limited [2002] 2 HKLRD 485. 83.In my view, the present case does fall within that exceptional class. The de minimis issue is so closely bound up with and dependent upon the time of application issue that it would be wholly unsatisfactory for the Court to proceed to judgment solely on the basis of the former while ignoring serious questions which have been shown to arise on the latter. 84.Mr Fok was fully prepared to argue, and did in fact argue, the issue. He had indeed argued it at first instance and the issue was adverted to by Mr Ma SC in the Court of Appeal, as well as canvassed in the parties' printed cases. No procedural or other injustice therefore flows from permitting the argument to be advanced before this Court. On the contrary, justice would not be served if the Court were to proceed to judgment solely on the de minimis ground if it should transpire that 30 May 2000 was incorrectly assumed to be the date when the application was made. The time of application issue 85.As noted above, the competing dates for the time of application issue are 24 October 1998 and 30 May 2000 respectively. On the evidence and on the face of the documentary record, no application expressly aimed at securing permanent resident status for the appellant was made until 30 May 2000. However, the appellant argues that but for the Director's unconstitutional adherence to the unconditional stay requirement, the application which he made on 24 October 1998 would have explicitly been for verification of his permanent resident status. Accordingly, it is argued, the earlier application should be taken to be the relevant application for the purposes of judging whether the appellant had satisfied the seven year requirement. 86.It is evident that at the times material to this appeal, including 24 October 1998, everyone concerned was acting on the basis of provisions which I would declare constitutionally invalid. Schd 1, para 3(1)(c) and para 1(5)(b) of the Ordinance required removal of any applicable limit of stay before an applicant could be found entitled to permanent resident status. A person seeking verification of such status would have been directed first to apply for an unconditional stay. If on 24 October 1998, this was what had in fact happened to the appellant, and if he and the Immigration Department had both in fact been processing what was known and intended to be the first step in his application for permanent resident status on the basis of his having met the seven year requirement, one would be driven to conclude that if the unconstitutionality of the requirement had then been appreciated, the appellant would instead have been making an unequivocal application for permanent resident status. On such facts, justice would require that the appellant be treated as if the unconstitutional requirement had not been introduced and accordingly, that his application on 24 October 1998 be treated as a permanent residence application. 87.What then is the factual position? The appellant first applied for an unconditional stay in November 1996. As Mr Fok correctly submits, this could only have been with a view to securing removal of the conditions of stay imposed on him and no more. That application could not have been intended as an application to verify his permanent resident status in the HKSAR since, in November 1996, the Region had not yet come into existence. Mr Fok submits that this is important since the 24 October 1998 application should be regarded as no more than a repetition or a plea for reconsideration of the application made in November 1996 as, indeed, later correspondence from the appellant states. 88.Furthermore, following upon refusal of the 24 October 1998 application on 4 June 1999, in each of the relevant subsequent applications, the appellant consistently specified that he was seeking an unconditional stay. Mr Fok submits that this shows that on 24 October 1998, the appellant knew precisely what he was doing, namely, applying solely and simply for an unconditional stay and not for permanent resident status. It was pointed out that a not insignificant number of persons do make applications for an unconditional stay without going on to apply for permanent resident status for various reasons of their own, highlighting the separate and distinct nature of the two applications. Taking all this into account, it was urged that the 24 October 1998 application should not be regarded as the relevant application for the purposes of reckoning the seven year qualifying period. 89.It is at this point that the circumstances in which the 24 October 1998 application was made require more detailed scrutiny. The appellant's affirmation describes what happened as follows :-
90.The Immigration Officer in question was Tang Mei Ping. She understandably does not have any recollection of the details of the interview with the appellant and is unable to dissent from the appellant's account of the interview. The form filled in by the appellant is in evidence. It is on a form designed for applications for extensions of stay which is also used for applications for an unconditional stay. That the appellant was seeking an unconditional stay appears from his writing "uncondition" (sic) as the reason for his application. The handwritten notation by the Immigration Officer confirms that the application was being processed as one for "unconditional stay" on the basis of the applicant having had seven years residence in Hong Kong. 91.The evidence therefore indicates that when the appellant first made his way to the counter at the Immigration Department on 24 October 1998 he may well have had no more than an extension of his working visa in mind. However, the Immigration Officer evidently realised that, given the length of his stay in Hong Kong, he might be eligible for permanent resident status. No doubt wishing to be helpful, she suggested to him that what he ought to be doing was to seek an unconditional stay as the first step towards obtaining permanent resident status. This was obviously a welcome suggestion and the appellant readily complied. 92.That this is what he intended to do receives support from the contents of the letter dated 23 February 1999 from the Hong Kong Country Club referred to at paragraph 41 above. It must have been the appellant who had informed the Club that his immigration arrangements were being processed. That the Club's letter refers to this as the processing of his "permanent residency" indicates that this is what the appellant must have said and what he believed was taking place. 93.The fact that from 24 October 1998 onwards, everyone kept referring to the appellant's application as one for an unconditional stay is, on the law as it stood, perfectly consistent with such application being the first step towards establishing an entitlement to permanent resident status. The evidence therefore clearly shows that on 24 October 1998 and thereafter, acting with the knowledge and at the suggestion of the Immigration Officer, the appellant was not merely seeking an unconditional stay but had initiated his application for permanent resident status under BL24(2)(4). 94.In Fateh Muhammad, this Court held (at 285) that the relevant qualifying period "must come immediately before the time when an application for Hong Kong permanent resident status is made in reliance on those seven continuous years." The application made on 24 October 1998 in the circumstances described above constitutes the relevant application for such purposes. Accordingly, as at 24 October 1998, the requisite qualifying period had not been interrupted by any period of imprisonment. His subsequent period or periods of incarceration do not bear upon his entitlement to permanent resident status judged at the time when the relevant application was made. The proper relief 95.On the basis of the foregoing conclusions, the appellant is entitled to an order quashing the three decisions challenged (referred to above in paragraphs 43, 45 and 46). The Court should also declare that 24 October 1998 is to be taken as the date on which the appellant made his application for verification of his permanent resident status. It is, however, much in issue as to what consequences should flow from such orders and what, if any, further directions or orders the Court should make. 96.In the ordinary course, the aforesaid orders should lead to the appellant's claim to entitlement to permanent resident status being remitted to the Director for his determination in accordance with the Court's decision. However, both parties have urged the Court instead to determine the appellant's entitlement to such status here and now. 97.In the first place, Mr Fok raises what may be called "the overstayer argument". He submits that remitting the matter back to the Director would be pointless since the inevitable result would be a decision that the appellant did not, as at 24 October 1998, meet the seven year requirement and so could not qualify for permanent resident status. On this basis, he urges the Court to dismiss the application. The argument runs as follows:-
98.Ms Eu advances two arguments in response.
99.In the Sae-Ang Paisarn case, a foreign national had applied for and was granted an extension to his limit of stay on three occasions after the limit of stay had expired. The Court of Appeal held that the immigration officer did have power to grant such post-expiry extensions and that, in doing so, each earlier contravention was cured, preserving the continuity of that appellant's ordinary residence. However, the Sae-Ang Paisarn decision is not authority for suggesting that any fresh permission to stay necessarily results in the waiver of any prior breach of a limit of stay. Whether the contravention is cured must depend on the terms upon which the subsequent permission to stay is given. 100.If, as occurred in the Sae-Ang Paisarn case, the Director is content simply to enlarge the period of permitted stay, allowing the applicant to remain for the same purpose and on the same terms, it would be difficult to avoid the conclusion that any earlier period of overstaying is waived. But it is equally open to the Director to grant subsequent permission to stay on terms which are not intended to fill in any earlier gaps or to condone any earlier contraventions. 101.The facts of the present case fall into the latter category.
102.Ms Eu's retrospective cure point therefore does not provide an answer to the overstayer argument. However, her extension point poses more serious problems for the Director. In the course of submissions and in answer to queries from the Bench, Mr Fok stated on instructions that where an applicant had lodged a relevant application while still within his limit of stay but where that limit of stay expired before processing of the application could be completed, the Director's policy was, as one would expect, to grant an extension pending completion of processing. This accords with what was stated by the Court of Appeal in the Sae-Ang Paisarn case. Kempster JA referred to the Director's "practice ...... of granting temporary extensions as a matter of course on receipt of timeous applications and pending considered determination": [1989] 1 HKLR 205 at 210, see also Yang CJ at 208. 103.However, it is not known what the Director's policy on extensions is or would have been on 24 October 1998 and whether an extension would have been granted given that the application was not made timeously, but 12 days after expiry of the applicant's limit of stay. 104.Ms Eu sought to argue that it is inconceivable that an applicant in the position of the appellant would not have been given an extension or that his status as a 12 day overstayer could responsibly be taken as the sole reason for denying his entitlement to permanent resident status. She therefore invited the Court to view verification of the appellant's entitlement to permanent resident status as inevitable, notwithstanding Mr Fok's overstayer argument. 105.I am unable to accept Ms Eu's argument. I am however of the view that it raises a real possibility that after due investigation of the circumstances of the appellant's late application in the light of prevailing Immigration Department policies, an extension could have been granted and so could have negated the overstayer argument. 106.Accordingly, I cannot accept either side's submissions as to the inevitability of the Director either rejecting or accepting the appellant's entitlement, as the case may be. Those arguments can only proceed on a purely hypothetical basis. What happened in fact was that, acting on a constitutionally flawed basis, the Director refused to lift the appellant's limit of stay on discretionary grounds relating to his criminal record, without further consideration of his claim to entitlement to permanent resident status. No thought has therefore ever been given to the facts, policies and decisions which would have been relevant if it had been appreciated that the application, made 12 days after expiry of the appellant's limit of stay, was for verification of his claim to permanent resident status, to be approached without the necessity for the prior discretionary removal of his limit of stay. There may well be relevant evidence to be adduced by one or both sides and relevant further representations to be made on various aspects of these matters. No such materials are before the Court, making it necessary for the Court to refer the appellant's claim to entitlement to permanent resident status to the Director for investigation and decision in accordance with this Judgment. 107.The same issues and conclusions attach to Mr Fok's submission that, on a hypothetically reconstituted processing of the 24 October 1998 application, the Director might well have come to the conclusion that the appellant could not meet the permanence requirement as implemented by Schd 1, para 3(1)(a)(iii) of the Ordinance, in that he might well have been unable to show that he had "a reasonable means of income to support himself and his family". Since this has never been investigated one again simply does not know what representations might have been made, what facts put forward or what prevailing policies applied in this context. I accordingly express no view on the merits of this submission or the overstayer argument, apart from the views expressed in paragraph 101 above. Conclusion 108.I would make the following Orders, namely :-
Sir Anthony Mason NPJ : 109.I agree with the judgment of Mr Justice Ribeiro PJ. Chief Justice Li : 110.The Court unanimously allows the appeal and makes the Orders set out in the Conclusion to Mr Justice Ribeiro PJ's judgment.
Representation: Ms Audrey Eu SC and Mr Kwok Sui-hay (instructed by Messrs Barnes & Daly and assigned by the Legal Aid Department) for the appellant Mr Joseph Fok SC and Mr Daniel Wan (instructed by the Department of Justice) for the respondent |
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