The Commissioner for Registration v. The Registration of Persons Tribunal and Another
Read the full judgment text of HCAL 40/1999 on BabelCite. This High Court CFI judgment was delivered on 24 June 1999.
1. The is another case about the right of abode in Hong Kong. Previous cases have been about people of Chinese nationality. The twist in this case is that it is about a man who is not a Chinese national. He is a Pakistani who has lived in Hong Kong for the last 35 years or so. As in other right of abode cases, the question is whether rights given by the Basic Law have been cut down by the Immigration Ordinance. The other twist in the story is that, although some of the statutory provisions which
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HCAL000040/1999 1999 HCAL No. 40 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST ____________
____________ Coram: Keith J.A. (sitting as an additional judge of the Court of First Instance) in Court Dates of Hearing: 9 - 11 June 1999 Date of Handing Down of Judgment: 24 June 1999 _______________ J U D G M E N T _______________ Introduction 1. The is another case about the right of abode in Hong Kong. Previous cases have been about people of Chinese nationality. The twist in this case is that it is about a man who is not a Chinese national. He is a Pakistani who has lived in Hong Kong for the last 35 years or so. As in other right of abode cases, the question is whether rights given by the Basic Law have been cut down by the Immigration Ordinance. The other twist in the story is that, although some of the statutory provisions which are challenged in this case were only recently enacted, one of them was enacted a long time ago, well before the promulgation of the Basic Law. The nature of the proceedings 2. The case arises out of an application which Mr. Fateh Muhammad made to the Commissioner for Registration ("the Commissioner"). He applied for verification that he was eligible for a Hong Kong permanent identity card. In effect, he was applying for confirmation that he had the right of abode in Hong Kong: a Hong Kong permanent identity card can only be issued to a Hong Kong permanent resident, and it is only a Hong Kong permanent resident who has the right of abode in Hong Kong. The second paragraph of Art. 24 of the Basic Law sets out in six sub-paragraphs the various categories of persons who are to be regarded as Hong Kong permanent residents. For convenience, I shall refer to these six sub-paragraphs as Arts. 24(1)-(6). The category of Hong Kong permanent resident which Mr. Muhammad claimed he came into was the category referred to in Art. 24(4):
For the purposes of his application, Mr. Muhammad declared, on 9th May 1998, that he had taken Hong Kong as his place of permanent residence. 3. Having considered the facts of Mr. Muhammad's case, the Commissioner refused to confirm that he was eligible for a Hong Kong permanent identity card. On 29th June 1998, Mr. Muhammad made a formal application for such a card, but this was also refused. He appealed to the Registration of Persons Tribunal ("the Tribunal") against that refusal. Appeals are heard by two adjudicators. One was in favour of allowing the appeal. The other wanted to dismiss it. The relevant statutory provision provides for the outcome of an appeal in those circumstances to be in favour of the person claiming to have the right of abode in Hong Kong: see para. 3(2) of Sch. 4 to the Registration of Persons Regulations (Cap. 177). Mr. Muhammad's appeal was therefore allowed. There is no further appeal, and the only way in which the Commissioner could have his original decision restored was by an application for judicial review. It is that application for judicial review which is now before the court. Mr. Muhammad's background 4. The relevant facts relating to Mr. Muhammad can be shortly stated. Some of the facts come from the Commissioner's files. Others come from Mr. Muhammad himself. There is no reason to doubt what Mr. Muhammad says, and like the Tribunal, I proceed on the assumption that what he claims is not in dispute. 5. Mr. Muhammad was born in Pakistan in 1940. He came to Hong Kong in October 1962 on the strength of a Pakistani passport. He applied for, and was given, a Hong Kong identity card. He has been married twice. In 1967, he married a woman from Pakistan. His three surviving children from that marriage all live in Hong Kong. He married his current wife in 1976. She was born in Hong Kong. She has a daughter from a previous marriage, and they have a daughter of their own. However, the three of them live in India. 6. Apart from short periods (almost always for business), Mr. Muhammad claims to have left Hong Kong for any length of time only three times. The first was in 1967 when he left Hong Kong for a month or so in order to get married for the first time. The second was in 1976 when he left Hong Kong for a couple of months at the time of his second marriage. The longest time he has been out of Hong Kong was in 1985, when he spent six months in Pakistan following his father's death. 7. The basis on which Mr. Muhammad was permitted to stay in Hong Kong in the past is not material for present purposes. I merely note that in January 1989 he was allowed to stay in Hong Kong as a dependent of his second wife. That was his status when in February 1993 he was arrested and charged with criminal offences. He was remanded in custody until his trial. He was eventually convicted of two offences, and sentenced to terms of imprisonment. He was due to complete his sentence on 27th February 1997. However, a few days before that, the Secretary for Security ordered his deportation from Hong Kong, and on his release from prison he was detained pending his repatriation pursuant to the deportation order. He had been on recognisance when his application for a Hong Kong permanent identity card was refused and when his appeal from that refusal was allowed. The statutory framework 8. The categories of persons who were Hong Kong permanent residents prior to 1st July 1997 had been identified in Sch. 1 to the Immigration Ordinance (Cap. 115). That schedule had to be repealed and substituted by one which complied with, and implemented in detail, the provisions of Art. 24 of the Basic Law. Accordingly, a new Sch. 1 was substituted by section 5 of the Immigration (Amendment) (No. 2) Ordinance 1997 (No. 122 of 1997). There are four provisions in Sch. 1 which are relevant to the present case:
There is one other provision which is relevant to this case. Section 2(4)(b) of the Immigration Ordinance provides:
The issues 9. Mr. Muhammad's personal history shows that by the time he was arrested in February 1993 he had been living in Hong Kong for well over 30 years. It is true that he had had temporary absences from Hong Kong, but those temporary absences are unlikely to have prevented him from being regarded as ordinarily resident in Hong Kong during those years. However, para. (1)(4)(b) of Sch. 1 to the Immigration Ordinance requires him to have been ordinarily resident in Hong Kong for "a continuous period of 7 years ... immediately before" his application for the status of Hong Kong permanent resident. If his time in prison broke the continuity of his ordinary residence, the fact that the seven years' ordinary residence had to be immediately before 29th June 1998 (when he applied for a Hong Kong permanent identity card) prevented him from acquiring the right of abode in Hong Kong. Accordingly, the first issue in the case is whether the "immediately before" requirement in para. 1(4)(b) is compatible with the right of abode for non-Chinese nationals created by Art. 24(4) of the Basic Law. 10. If para. 1(4)(b) is found to be compatible with Art. 24(4), para. 1(4)(b) prevents Mr. Muhammad from acquiring the right of abode in Hong Kong because his time in prison broke the continuity of his ordinary residence. It is section 2(4)(b) of the Immigration Ordinance which provides that imprisonment or detention breaks the continuity of ordinary residence. Accordingly, the second issue in the case is whether section 2(4)(b) is compatible with the right of abode for non-Chinese nationals created by Art. 24(4) of the Basic Law. However, this issue only arises in the present case if it is found that para. 1(4)(b) is compatible with Art. 24(4). 11. If Mr. Muhammad was to be granted the status of Hong Kong permanent resident, he had to have been settled in Hong Kong on 9th May 1998 when he made his declaration that he had taken Hong Kong as his place of permanent residence. However, he was at the time subject to a deportation order. That meant that it could not be said, to use the language of para. 1(5)(b) of Sch. 1 to the Immigration Ordinance, that he was "not subject to any limit of stay in Hong Kong". It is therefore para. 1(5)(b) which prevented him from being regarded as settled in Hong Kong at the time he made his declaration. Accordingly, the third issue in the case is whether the requirement in para. 1(5)(b) that an applicant for the right of abode in Hong Kong be not subject to any limit of stay in Hong Kong is compatible with the right of abode for non-Chinese nationals created by Art. 24(4) of the Basic Law. However, this issue will not arise in the present case if para. 1(4)(b) and section 2(4)(b) are found to be compatible with Art. 24(4), because Mr. Muhammad would have failed to establish his status as a Hong Kong permanent resident by virtue of the lack of seven years' ordinary residence immediately before he made his application for the status of Hong Kong permanent resident. The "immediately before" provision 12. The Basic Law identifies the categories of persons who are to enjoy the right of abode in Hong Kong. Legislation may complement the rights granted by the Basic Law or provide for the way in which those rights are to be enjoyed. But the one thing which the legislature may not do is to derogate from the Basic Law. In other words, it must not enact legislation which has the effect of removing from persons the right of abode which, but for that legislation, Art. 24 gives them. The argument powerfully developed by Mr. Philip Dykes S.C. for Mr. Muhammad is that para. 1(4)(b) of Sch. 1 to the Immigration Ordinance takes away the right of abode in Hong Kong from those non-Chinese nationals whose seven years' ordinary residence in Hong Kong was not "immediately before" the date on which they applied for the status of Hong Kong permanent resident. 13. There are, of course, no express words of limitation in Art. 24(4). Thus, if para. 1(4)(b) is to survive the challenge to its compatibility with Art. 24(4), it is necessary to read Art. 24(4) as if it includes words of limitation which are not there. The courts must read Art. 24(4) as if it included such words of limitation if to do so is necessary in order to give effect to what those who drafted the Basic Law and the National People's Congress which adopted it had intended, i.e. to give Art. 24(4) a generous and purposive interpretation. Unfortunately, the Joint Declaration does not help in identifying what the statutory intention was, because Art. 24 does little more than reproduce the language of the Joint Declaration. Nor have I been referred to any travaux preparatoires explaining why the Joint Declaration and Art. 24(4) (or Art. 24(2), whose relevance I shall come to later) were couched in the particular language which was used. All I have to go on, therefore, in discerning what the statutory intention was is the language of Art. 24 and its context. 14. The six categories of persons who are entitled to the right of abode in Hong Kong all have a connection of some kind with Hong Kong. The nature and degree of that connection is defined by Arts. 24(1)-(6). Thus, Art. 24(1) relates to birth, Art. 24(3) relates to parentage and so forth. The nature and degree of the connection with Hong Kong required for non-Chinese nationals is set out in Art. 24(4). The nature and degree of that connection relate to two things which have happened in the past. First, they must have ordinarily resided in Hong Kong for a continuous period of at least seven years. Secondly, they must have taken Hong Kong as their place of permanent residence. Admittedly, this second requirement looks to the future as well as to the past. A non-Chinese national cannot have taken Hong Kong as his place of permanent residence if he did not intend to make it his home in the future. But the fact is that before being recognised as having the status of a Hong Kong permanent resident, a non-Chinese national has already to have taken Hong Kong as his place of permanent residence. 15. It is the coupling of the requirement to have taken Hong Kong as one's place of permanent residence with the requirement of seven years' ordinary residence which leads me to conclude that the drafters of the Basic Law had recent residence in Hong Kong in mind. That view was reinforced when I read the words of Art. 24(4) again. Even though no words of limitation appear in the text, the sense one gets of a linkage between the two requirements is strong. I have not overlooked Mr. Dykes' point that a linkage between the two requirements exists even if seven years' ordinary residence at any time in the past is sufficient: the greater the gap between the ending of the seven years' ordinary residence and the making of the claim that one has taken Hong Kong as one's place of permanent residence, the more difficult it would be to persuade the immigration authorities, as a matter of fact, that one has indeed taken Hong Kong as one's place of permanent residence. But the more I read the actual language of Art. 24(4), the more the two requirements seem to me to have been intended to be linked in terms of time, rather than as a matter of evidence. A non-Chinese national has to have taken Hong Kong as his place of permanent residence at a time when he is ordinarily residing in Hong Kong, and if his taking of Hong Kong as his place of permanent residence is a declaration of his current intention, that means that his ordinary residence in Hong Kong has to be current as well. 16. In addition, I take into account, as an aid to construction, the consequences of construing Art. 24(4) in the way for which Mr. Dykes contended. The canons of statutory construction, for example, encourage the court to find against a construction which would produce anomalies, since anomalies are unlikely to have been intended. One surprising result of adopting Mr. Dykes' reading of Art. 24(4) is that non-Chinese nationals, whose connection with Hong Kong could have ended decades previously, would acquire the right of abode in Hong Kong in old age if they were to decide then that they wanted to make Hong Kong their permanent home. I appreciate that it would be equally surprising if someone like Mr. Muhammad who has lived in Hong Kong for over 35 years would not have acquired the right of abode in Hong Kong. But that would not be as a result of the "immediately before" provision. It would be as a result of the continuity of his ordinary residence having been broken by his detention and subsequent imprisonment. But for that, he would have satisfied the requirement that his continuous period of at least seven years' ordinary residence had been immediately before he applied for the status of Hong Kong permanent resident. 17. Finally, I must deal with three further arguments developed by Mr. Dykes. First, Art. 24(1) relates to Chinese citizens who were born in Hong Kong. Other Chinese citizens are covered by Art. 24(2), which confers the right of abode on
The only difference between them and persons not of Chinese nationality in Art. 24(4) who have entered Hong Kong with valid travel documents is that the persons not of Chinese nationality must have taken Hong Kong as their place of permanent residence. Therefore, if the continuous period of seven years' ordinary residence required for Chinese citizens is construed as at any time before, rather than immediately before, they apply for the status of Hong Kong permanent resident, Art. 24(4) should be construed in a similar way. As it is, legislation has been enacted in Hong Kong which shows that both the provision in the Joint Declaration whose language was reproduced in Art. 24(2), and Art. 24(2) itself, have been interpreted as permitting Chinese citizens to qualify for the status of Hong Kong permanent resident if they had been ordinarily resident in Hong Kong for a continuous period at any time:
18. I cannot go along with this argument. I disagree with the premise on which it is based. I do not see why seven years' ordinary residence in Art. 24(2) should mean the same thing as seven years' ordinary residence in Art. 24(4). The true meaning of seven years' ordinary residence in Art. 24(4) is derived from its linkage with the need to have taken Hong Kong as one's place of permanent residence. Since that linkage is absent from Art. 24(2), it simply does not follow that the requirements of seven years' ordinary residence in Arts. 24(2) and 24(4) have to be construed in the same way. 19. Mr. Dykes' second argument proceeded on the assumption that the requirements of seven years' ordinary residence in Arts. 24(2) and 24(4) would be construed differently by the court. His argument was that the need for a non-Chinese national to have recent ordinary residence in Hong Kong, whereas a Chinese citizen only had to show ordinary residence in Hong Kong at any time in the past, amounted to discrimination between Chinese and non-Chinese nationals. That offended the legal principle of non-discrimination on grounds of national status embodied in Art. 26 of the International Covenant on Civil and Political Rights ("the ICCPR"), which Art. 39 of the Basic Law provides is to be implemented through the laws of the Hong Kong Special Administrative Region. 20. I do not comment on whether the different requirements of ordinary residence for Chinese and non-Chinese nationals constitute discrimination on grounds of national status. Although the courts of Hong Kong can strike down local legislation for its incompatibility with the Basic Law, Mr. Dykes did not suggest that the courts of Hong Kong could strike down a provision in the Basic Law for its incompatibility with the ICCPR. Had he done so, it would have been necessary to examine with some care the relationship between the Basic Law and those international instruments which apply to Hong Kong through the Basic Law itself and the Bill of Rights. 21. Thirdly, Mr. Dykes relied on other amendments made to the Immigration Ordinance in 1987 which related to ordinary residence. Thus, the ordinary residence requirement for a British citizen or a U.K. belonger to acquire the status of "resident British citizen" or "resident United Kingdom belonger" was not less than seven years' ordinary residence in Hong Kong for a continuous period at any time. Indeed, this definition of "resident United Kingdom belonger" had been in the Immigration Ordinance when it had originally been enacted in 1971. Mr. Dykes' reliance on these provisions suffered, in my view, from the same vice as his argument on Art. 24(2). The additional need for non-Chinese nationals to have taken Hong Kong as their place of permanent residence means that the requirement of ordinary residence in Art. 24(4) does not have to be construed so as to conform to the definitions in the Immigration Ordinance. 22. For these reasons, I have concluded that para. 1(4)(b) of Sch. 1 to the Immigration Ordinance does not contravene Art. 24(4) of the Basic Law. The "imprisonment or detention" provision 23. Art. 160 of the Basic Law provides:
Mr. Joseph Fok S.C. for the Commissioner argued that the courts of Hong Kong are not permitted to consider whether laws which were enacted prior to the establishment of the Hong Kong Special Administrative Region contravene the Basic Law if the Standing Committee of the National People's Congress has not declared them to contravene the Basic Law, unless for one reason or another their compatibility with the Basic Law was not considered by the Standing Committee. That argument is relevant to section 2(4)(b) of the Immigration Ordinance, the "imprisonment or detention" provision, which was in the Immigration Ordinance when it was originally enacted in 1971. On 23rd February 1997, the Standing Committee of the National People's Congress declared that the provisions in the Immigration Ordinance which related to the definition of Hong Kong permanent resident contravened the Basic Law, and were therefore not adopted as part of the law of the Hong Kong Special Administrative Region. No such declaration was made in respect of section 2(4)(b). 24. I do not think that Art. 160 has the effect for which Mr. Fok contended. Art. 160 does not expressly say that those laws which are not declared to be in contravention of the Basic Law are for that reason consistent with the Basic Law. Nor do I think that Art. 160 contains such an implication. Indeed, Art. 160 itself recognised that there may be laws which escaped the scrutiny of the Standing Committee. It goes on to provide:
I do not think that the reference to "any laws" can be construed as referring only to laws enacted after the establishment of the Hong Kong Special Administrative Region. Accordingly, Art. 160 recognises that laws enacted before the establishment of the Hong Kong Special Administrative Region can later be declared to be in contravention of the Basic Law, even if before the establishment of the Hong Kong Special Administrative Region the Standing Committee of the National People's Congress did not declare them to be. 25. I turn to section 2(4)(b) itself. Mr. Dykes argued that on its true construction the section only relates to imprisonment or detention for an immigration offence. I do not agree. That involves reading words of limitation into the section which are not there. I would be prepared to do that in order to give effect to what was intended, but I do not think for one moment that it was intended that the section should be limited in the way which Mr. Dykes suggested. Where a person resides is usually a matter of choice. But if someone is serving a sentence of imprisonment or is being detained pursuant to an order of the court, the choice of where that person resides is removed. The rationale of section 2(4)(b), I think, is to limit the period of ordinary residence in Hong Kong to those periods in which the person's residence in Hong Kong is not enforced residence, but the result of choice. Viewed in that way, it does not matter whether the imprisonment or detention is for an immigration offence or any other kind of offence: in either event, the person's residence in Hong Kong is enforced. 26. In the light of this construction of section 2(4)(b), Mr. Dykes contended that it was incompatible with Art. 24(4). Section 2(4)(b) can only be said to be incompatible with Art. 24(4) if it derogates from the requirement that a non-Chinese national has to have had a continuous period of not less than seven years' ordinary residence if he is to acquire the right of abode in Hong Kong. Mr. Dykes contended, as he had to, that the limitation in section 2(4)(b) on periods which might otherwise constitute ordinary residence derogates from that requirement. 27. Mr. Dykes' principal argument, as summarised in his supplemental written submissions, was:
In my view, this argument ignores what must be regarded as the rationale for section 2(4)(b), namely to prevent enforced residence in Hong Kong as amounting to ordinary residence. I acknowledge that in the case of Mr. Muhammad there is every reason to suppose that had he not been detained and subsequently imprisoned he would have continued to live in Hong Kong during the period. But the purpose of section 2(4)(b) was to prevent factual questions of that kind having to be addressed. 28. In addition, Mr. Dykes drew my attention to corresponding statutory provisions in the U.K. Thus, section 33(2) of the Immigration Act 1971 provides, so far as is material:
There is a similar provision in section 50(2) of the British Nationality Act 1981. And para. 9(1)(b) of Sch. 1 to the British Nationality Act provides:
I do not derive any assistance from these provisions. Different countries approach the problem of ordinary residence and absence from that country in different ways. I cannot assume that the rationale underlying the statutory provisions in the U.K. was the same as that underlying section 2(4)(b). Indeed, the different statutory language suggests that the legislature had a different rationale in mind. 29. For these reasons, I have concluded that the limitation in section 2(4)(b) of the Immigration Ordinance on periods which might otherwise constitute ordinary residence does not derogate from the requirement of seven years' ordinary residence. Accordingly, section 2(4)(b) does not contravene Art. 24(4) of the Basic Law. The "limit of stay" provision 30. My conclusion on the "immediately before" and "imprisonment or detention" provisions makes it unnecessary for me to decide whether para. 1(5)(b) of Sch. 1 to the Immigration Ordinance, the "limit of stay" provision, is compatible with Art. 24(4). However, there is a powerful argument for saying that para. 1(5)(b) is not compatible with Art. 24(4). Its effect is to make the right of abode in Hong Kong for non-Chinese nationals dependent on the Director of Immigration lifting any limit on the applicant's stay. The acquisition of the right of abode in Hong Kong is therefore dependent on the exercise of a discretion in the applicant's favour. Since Art. 24(4) confers the right of abode in Hong Kong on non-Chinese nationals who satisfy the ordinary residence requirement and the requirement to have taken Hong Kong as their place of permanent residence, it is strongly arguable that to impose a further hurdle for them to cross - namely, the exercise of a discretion in their favour - amounts to a derogation from the automatic right of abode in Hong Kong contemplated by Art. 24(4). 31. However, I do not believe that it would be right for me to reach a conclusion on this issue. Questions relating to the compatibility of domestic legislation with the Basic Law are questions of great importance in Hong Kong's new constitutional order. Individual cases should not be regarded as an opportunity for the court to decide all the issues which may arise from a particular provision in the Basic Law. Broadly speaking, a court should only decide those issues which have an impact on the case which it is trying. Accordingly, the compatibility of para. 1(5)(b) with Art. 24(4) will have to be decided on another occasion when the issue will be determinative of the litigant's rights. The extrinsic materials 32. At one of its plenary sessions in 1996, the Preparatory Committee for the Hong Kong Special Administrative Region expressed its opinion as to what "rules" should be made in Hong Kong to implement the provisions in Art. 24 relating to the categories of people who would become Hong Kong permanent residents. It is not possible to read its opinion as saying that non-Chinese nationals must not be subject to any limit on their stay in Hong Kong. But the Preparatory Committee certainly expressed the opinion that
These opinions were adopted by the Preparatory Committee. The fact that opinions were expressed on the implementation of Art. 24 - though not the opinions themselves - was referred to in a report submitted to the National People's Congress. That report was "approved" by the National People's Congress on 14th March 1997. 33. These opinions did not purport to be interpretations of Art. 24, at least not what we in the common law world understand interpretation to involve, namely to identify the legislative intention which lay behind Art. 24. The opinions merely purported to lay down the way in which the Preparatory Committee wanted Art. 24 to be implemented in Hong Kong. However, Mr. Fok has argued that, despite that, I should take into account the Preparatory Committee's opinions, and the approval of the report in which the fact that opinions had been expressed by the Preparatory Committee had been made, in determining whether the "immediately before" and the "imprisonment or detention" provisions are compatible with the Basic Law. They are, he argued, permissible interpretative tools. But Mr. Fok went even further. The Standing Committee of the National People's Congress has the paramount power of interpreting the Basic Law: see Art. 158 of the Basic Law and Ng Ka Ling v. Director of Immigration (No. 2) [1999] 2 HKCFAR 141. Under the mainland's law of legislative interpretation, the Standing Committee of the National People's Congress would be bound to give effect to the opinions of the Preparatory Committee in determining what interpretation to place on Art. 24. It would be wrong, argued Mr. Fok, for the courts of Hong Kong to interpret Art. 24 in a manner inconsistent with the way in which it would be interpreted by the body whose power of interpretation is paramount. 34. My instinctive reaction to these arguments was to reject them. In the courts of Hong Kong it is the canons of construction under Hong Kong law which have to be applied, even to the interpretation of the Basic Law. Some people would say that Mr. Fok's argument, if correct, went some way towards undermining the "high degree of autonomy" which Art. 12 of the Basic Law conferred on Hong Kong. However, legal judgment should be based on analysis, not instinct. Thus, if Mr. Fok's arguments are to be addressed, they should be addressed with the reasoned analysis that the clarity with which they were presented deserves. Having said that, Mr. Fok was content for these arguments not to be addressed, if even without the use of these extrinsic materials, the "immediately before" and the "imprisonment or detention" provisions were held to be compatible with the Basic Law. Since they have been held to be compatible with the Basic Law, there is no need for me to consider the relevance of these extrinsic materials. Conclusion 35. For these reasons, the Tribunal erred in law in allowing Mr. Muhammad's appeal. I therefore make an order of certiorari quashing the determination of the Tribunal allowing Mr. Muhammad's appeal against the refusal of the Commissioner to issue a Hong Kong permanent identity card to him. On the undisputed facts, Mr. Muhammad is not a permanent resident of the Hong Kong Special Administrative Region, and he does not have the right of abode in Hong Kong. I make a declaration to that effect. As in other right of abode cases in which other provisions of the Immigration Ordinance were said to be incompatible with the Basic Law, I do not think that it would right to make an adverse order as to costs. Accordingly, the order nisi I make as to costs is that there should be no order as to the costs of this application. Postscript 36. One important event has occurred since the Tribunal allowed Mr. Muhammad's appeal. The deportation order was withdrawn on 26th February 1999. Accordingly, provided that Mr. Muhammad is granted permission to stay in Hong Kong, and provided that no deportation or removal order is made in the future, he can continue to live in Hong Kong, and can continue to build up seven years' ordinary residence since his release from prison on 27th February 1997.
Representation: Mr. Joseph Fok S.C., instructed by the Department of Justice, for the Applicant. The Registration of Persons Tribunal was not represented and did not appear. Mr. Philip Dykes S.C. and Mr. Maurice Ng, instructed by Messrs. Peter Barnes & Co., for the 2nd Respondent.
On appeal by the 2nd Respondent to the Court of Appeal: Appeal dismissed with costs. Please refer to judgment CACV000272/1999. |
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