Re John Caldwell Beveridge Qc

HCMP000603/1981

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Coram: Sir Alan Huggins, Ag. C.J.

Date of Judgment: 21st July 1981.

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JUDGMENT

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1. Counsel moves the Court on behalf of the Applicant, one of Her Majesty's Counsel in Britain, for admission as a member of the Hong Kong Bar. The application is opposed by the Bar Association and by the Attorney General on the ground that the Applicant does not have the residential qualification for admission required by the provisions of s.27(1)(a) of the Legal Practitioners Ordinance. In all other respects it is agreed that the Applicant is qualified and is a fit and proper person to be admitted.

2. On 19th June I ruled upon a question of interpretation and said I would give my reasons later. The matter was then adjourned to enable the Bar Committee to consider an affidavit tendered by the Applicant at the hearing. The question raised was whether the words "ordinarily resident in Hong Kong" meant anything more than simple physical presence within the Colony. A subsidiary question arose, whether, if simple physical presence was sufficient, such physical presence had to be completely uninterrupted or whether absence of a few days on holiday could be disregarded. I took the view that if simple physical presence were enough it would be proper, in reliance upon the word" ordinarily", to disregard any reasonable absence. However, I was satisfied that simple physical presence was not all that was required.

3. On the primary question I had no doubt that something more than physical presence was necessary. A useful starting point is an observation of the Lord President (Lord Clyde) in Reid v Inland Revenue Commissioners 1926 S.C. 589 at p.594:

"The expression 'resident in the United Kingdom' and the qualification of that expression implied in the word 'ordinarily' so resident are just about as wide and general and difficult to define with positive precision as any that could have been used."

Nevertheless, considerable assistance is to be obtained from later cases. Reid v. Inland Revenue Commissioners was cited in the Commissioners of Inland Revenue v. Lysaght 1928 A.C. 234 by Lord Warrington of Clyffe. He said at p.249:

"... the question of residence or ordinary residence is one of degree"

and in the same case at p.248 Lord Buckmaster said:

"A man might well be compelled to reside here completely against his will; the exigencies of business often forbid the choice of residence, and though a man may make his home elsewhere and stay in this country only because business compels him. yet none the less, if the periods for which and the conditions under which he stays are such that they may be regarded as constituting residence, as in my opinion they were in this case, it is open to the Commissioners to find that in fact he does so reside, and if residence be once established ordinarily resident means in my opinion no more than that the residence is not casual and uncertain but that the person held to reside does so in the ordinary course of his life."

4. How does one decide whether a person who has been held to reside in a particular place does so in the ordinary course of his life? In the Canadian case of Thomson v. Minister of National Revenue 1946 1 D.L.R. 689 Rand, J. thought that in Commissioners of Inland Revenue v. Lysaght the language of the plain man had been stretched to the breaking point. but at p.701 he went on to analyse the ingredients of residence and ordinary residence:

"The gradation of degrees of time, object, intention, continuity and other relevant circumstances, shows, I think, that in common parlance 'residing' is not a term of invariable elements, all of which must be satisfied in each instance. It is quite impossible to give it a precise and inclusive definition. It is highly flexible, and its many shades of meaning vary not only in the contexts of different matters, but also in different aspects of the same matter. In one case it is satisfied by certain elements, in another by others, some common, some new."

5. The expression "ordinarily resident" carries a restrictive signification and, although the first impression seems to be that of preponderance in time, the decisions on the English Act reject that view. It is held to mean "residence in the course of the customary mode of life of the person concerned" and it is contrasted with special or occasional or casual residence. The general mode of life is therefore relevant to a question of its application.

6. The leading authority on this matter is now Reg. v Barnet London Borough Council Ex parte Shah 1981 2 W.L.R. 86, which was concerned with the interpretation of s.1 of the Education Act 1962 and with the award of financial grants for attendance at English universities. In that context Ormrod, L.J., reading the judgment of the Divisional Court, said at p.91A:

"The phrase 'ordinarily resident' is used in a variety of legislative contexts. It has become, in fact, a point on a scale which ranges from mere presence in this country, through 'resident', 'ordinarily resident', 'habitually resident', to 'domicile' which is widely used to specify the nature and quality of the association between person and place, which brings the person within the scope of the particular enactment."

He went on to refer to a number of previous cases and then continued at p.92H:

"We think that the most significant point which emerges from this analysis is that the concept of 'ordinary residence' embodies a number of different factors, such as time, intention, and continuity, each of which may carry a different weight according to the context in which, and the purpose for which, the phrase 'ordinarily resident' is used in a particular statute."

Having considered the relationship of the various factors, he concluded at p.95C:

"In our judgment, therefore, an important, though not the only, element to be considered in ascertaining whether an individual is 'ordinarily resident' in the United Kingdom for the purposes of regulation 13(a), is the purpose of, or the reason for, his presence in the United Kingdom, and his intention in coming and remaining here. 'Why is he in this country?' is a relevant question. If the answer is for a specific or limited purpose, rather than the general purposes of living here he will not be 'ordinarily resident' within the meaning of this regulation."

7. Cicutti v Southern County Council 1981 1 W.L.R. 558 was another case under the Education Act 1962. In the course of his judgment the Vice-Chancellor, Sir Robert Megarry, said of Reg. v Barnet London Borough Council. Ex parte Shah:

""The Barnet case indicates that in the term 'ordinarily resident' the word 'ordinarily' is primarily directed not to duration but to purpose. The question is not so much where the person is to be found 'ordinarily', in the sense of 'usually' or 'habitually' and with some degree of continuity (as opposed to 'unusually' or 'extraordinarily'). but whether the quality of the residence is 'ordinary' and general. rather than merely for some special or limited purpose. No doubt there must be residence for a sufficient length of time and with a sufficient degree of continuity to be capable of supporting the contention that the residence is ordinary in its quality, but it is that quality of ordinariness which is of the essence, and not the duration or continuity."

8. The conclusion I reached was that the considerations material to the interpretation of the words "ordinarily resident" in s.27(1) of the Legal Practitioners Ordinance were substantially the same as those under the Education Act 1962. In so saying, I bore in mind that a material difference is the purpose of the two statutes: one is concerned with the qualification of a person to practise his chosen profession and the other with the grant of a bounty. However, I was satisfied that the Legislature intended something more than mere presence when it used the words "ordinarily resident" in s.27(1). At this stage I need to say no more.

18th July 1981.

9. Having heard further evidence and further argument I now have to decide whether the Applicant has established that he had been ordinarily resident in Hong Kong for a period of at least 8 consecutive months immediately prior to the date of his application, which was filed on 11th May 1981.

10. The Applicant came to Hong Kong on 4th September 1980 as counsel to a Commission of Inquiry and was admitted to limited practice under s.27(2)(b) of the Legal Practitioners Ordinance. Prior to that he had been in practice in London, but he also practised in Brussels, the Hague, New York and Ireland. Although of Australian nationality he went to England at the age of about 11 years and received most of his education there. He has been called to the Bar of New South Wales but has not practised in that State. He has a leasehold flat in London and at the time of his coming to Hong Kong for approximately 4-6 weeks, but hearings before the Commission continued until last month and he was forced to remain. He admits that he then had no intention of staying longer than the duration of the inquiry. As the inquiry dragged on he naturally settled down to making his stay as comfortable as possible and gathered around him things which he would not have required had his original expectations been realized. Then the thought came to him that he might qualify for admission to practise generally at the Hong Kong Bar, and he turned to the provisions of the Legal Practitioners Ordinance. He decided that it was arguable that his stay would constitute "ordinary residence" for the purpose of s.27(1)(e) and he wrote to the Bar Committee to ascertain their view as to his qualification. They took the view that he did not qualify and it is solely upon his alleged lack of residential qualification that this application has been opposed by the Attorney General and by the Bar Committee.

11. At the time of his writing to the Bar Committee the Applicant suggested that mere physical presence within the Colony was enough, but for reasons which I have already given I rejected that interpretation. The fact that that was the basis of his inquiry does not, of course, prevent him from setting up an alternative arguement if the facts support it.

12. I accept that a person's place of ordinary residence can change in an instant without his moving form his chair. Intention is one of the factors which has to be considered in deciding where a person is ordinarily resident, and in circumstances such as exist in the present case it inevitably constitutes an important factor. Motive is another related, but different, factor.

13. Counsel for the Applicant has placed much reliance upon the Commissioners of Inland Revenue v Lysaqht, but I think the tax cases are of little assistance. Although the House of Lords has asserted that for the purposes of the Income Tax Act no technical or special meaning attached to either the word "resident" or the phrase "ordinarily resident" and that they must be understood in their common sense, nevertheless Lord Sumner said at p.245:

"One thinks of a man's settled and usual place of abode as his residence, but the truth is that in many cases in ordinary speech one residence at a time is the underlying assumption and, though a man may be the occupier of two houses, he is thought of as only resident in the one he lives in at the time in question. For income tax purposes such meanings are misleading. Residence here may be multiple and manifold."

In the context of the Legal Practitioners Ordinance ordinary residence must, I think, be limited to one place, though a "nomad" may have no place of ordinary residence at all. The fact that the Applicant leases a flat in the United Kingdom does not conclude the matter, even though it is a residential flat and he may intend to live there when he goes to London. Nor would he fail to establish ordinary residence in Hong Kong simply because he intended to return to it and to make it his home when his work in Hong Kong is done. A tourist who came on a 2-day visit to the Colony and had the misfortune to be taken seriously ill here would find it difficult. though perhaps not impossible, to establish ordinary residence in spite of his being detained in a hospital for a year : one may reasonably assume that in the normal way he would be planning to leave as soon as his health permitted, so that his residence was not in the ordinary course of his life. However, if he found the view from his hospital bed so attractive that he decided not to leave upon his discharge, but to live on in Hong Kong for a substantial period, from that moment he could properly claim to be ordinarily resident in Hong Kong, whether or not he retained a domicile elsewhere. The word "home" is ambiguous and nothing is to be gained by asking where a person has made his home. The question "Why is he in this country?", which was asked by Ormrod. L.J. in Reg. v Barnet London Borough Council Ex Parte Shah, is more apposite. The present Applicant was, at least, for a large part of the eight months in question, here for the limited purpose of acting as counsel for the Commission. He says that he has regarded his suite in the Mandarine Hotel as his "effective" home. Many a government servant who has come to Hong Kong intending to remain for a period which could vary between 2 ½ years and 33 years has had to spend some months in a hotel. To some such persons Hong Kong has become home : to some it has not, but to all it has for a time become their place of ordinary residence as those words are generally understood. In this connection it seems to me to matter not that the words to be interpreted appear in a statute which confers the privileges and responsibilities of practice at the Bar and not a mere award of bounty. So long as the Applicant had in mind to return to the Untied Kingdom and to continue his London practice he was not, in my judgment, ordinarily resident in Hong Kong. It does not follow that, because a barrister accepts a brief to appear before a curt in Hong Kong for the purpose of that appearance becomes ordinary residence within the meaning of the statute. As Mr. Lee (on behalf of the Bar Committee) has pointed out, such an interpretation would be incompatible with the existence of subsection (2) of s.27, for every English barrister who came to Hong Kong would then be able to allege an intention to be ordinarily resident within the second limb of subsection (1). For such a person what is missing is the element of continuance. Under the first limb of subsection (1) what is of primary importance may perhaps best be described as "present motive", although future intention obviously comes into the picture. It may be that if the Applicant had foreseen the length of the inquiry and had from the beginning planned to stay at least 8 months, he could fairly claim to have set up his ordinary residence in Hong Kong from the moment he arrived. It is fatal to his application that he has not satisfied me that he formed any such intention at least 8 months before the date of his application, so that his motive for being in the Colony was not to live here "in the ordinary course of his life".

14. It was suggested that the words "ordinarily resident" have different meanings in the two places where they are found in s.27(1)(e). Mr. Yu rightly says that the presumption of similarity of interpretation is a weak one, but it nonetheless exists and I see nothing to justify my holding that it has been rebutted. Some persons may be able to qualify under both limbs of the paragraph, but the two limbs are clearly aimed at different classes. The second is exemplified by the applicant in Re Application for Admission as a Barrister 1975 H.K.L.R. 688. He came to Hong Kong and ten days later filed his application. It was found that he intended to be ordinarily resident. he having sworn that he intended, if allowed to do so, toreside in the Colony and to practise in it. An applicant under the first limb may have no intention of remaining in the Colony : his connection with Hong Kong is in the past and does not necessarily lie also in the future. Mention was made of an unreported case where the successful applicant had been found to be ordinarily resident although he admitted that he intended to leave Hong Kong almost at once and that he desired to acquire the qualification of barrister for the purpose of furthering his career in business. I do not think the nature of the ordinary residence was different in these cases. That is not to say that intention is immaterial to the first limb : the past residence became "ordinary residence" by reason of a past intention to make it so.

15. If there were any doubt in my mind, I would interpret the material words in the sense most favour able to the Applicant, but I have no doubt at all. If the Applicant wishes to practise generally in Hong Kong, ways are open to him but upon this application he has not fulfilled the requirements of s.27(1)(e) and his application must be dismissed.

21st July 1981.

Representation: