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Cacv 87/2010 in the High Court of the Hong Kong

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Cacv 87/2010 in the High Court of the Hong Kong 由此 A A CACV 87/2010 B B IN THE HIGH COURT OF THE C C HONG KONG SPECIAL ADMINISTRATIVE REGION D COURT OF APPEAL D CIVIL APPEAL NO. 87 OF 2010 E E (ON APPEAL FROM HCAL NO. 75 OF 2009) F F G BETWEEN G ASIF ALI Applicant H H And st I DIRECTOR OF IMMIGRATION 1 Respondent I nd SECRETARY FOR SECURITY 2 Respondent J J K K Before: Hon Stock VP, Fok JA and Lam J in Court L Date of Hearing: 30 November 2011 L Date of Judgment: 30November 2011 M M J U D G M E N T N N O O Hon Stock VP: P P 1. We handed down judgment in this matter on 28 June 2011. The Q main issue was the effect of section 2(4)(b) of the Immigration Ordinance, Q Cap. 115 upon a period of remand in custody pending trial that results in a R R conviction and the question was whether that period was excluded from S categorization as a period of ordinary residence. We held that it was not S excluded. T T U U V V 由此 - 2 - A A 2. The respondent now seeks leave to appeal to the Court of Final B B Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance, C Cap. 484 on the basis that questions involved in the appeal are of great general C public importance or otherwise ought to be submitted to the Court of Final D D Appeal for decision. E E 3. The questions which are suggested to be involved are: F F (1) Whether upon the true construction of section 2(4)(b) of the G G Immigration Ordinance, Cap. 115, a period of remand in custody H H pending a criminal trial that results in a conviction and a sentence of imprisonment, or more generally a period of remand in custody I I pending a criminal trial, is within the meaning of the words “any J J period ... of imprisonment or detention pursuant to the sentence or order of any court” as they appear in that subsection; K K L (2) If the answer to Question 1 is “yes”, whether such construction of L section 2(4)(b) of the Immigration Ordinance is precluded by the M M decisions of the Court of Final Appeal in Fateh Muhammad v N Commissioner of Registration & Anor (2001) 4 HKCFAR 278 N and/or Prem Singh v Director of Immigration (2003) 6 O O HKCFAR 26; P P (3) If the answer to Question 2 is “yes”, what are the circumstances Q Q in which the Court of Final Appeal may depart from its previous R decisions, and whether the Court of Final Appeal should depart R from its previous decisions in Fateh Muhammad and Prem Singh S S in so far as the proper interpretation of section 2(4)(b) of the T Immigration Ordinance is concerned; T U U V V 由此 - 3 - A A (4) Whether, apart from and notwithstanding section 2(4)(b) of the B B Immigration Ordinance, a person who is remanded in custody C pending a criminal trial that results in a conviction and a sentence C of imprisonment, or more generally a person who is remanded in D D custody pending a criminal trial, is not to be regarded as E E “ordinarily resided” in Hong Kong during the period of remand for the purpose of paragraph 2(d) of Schedule 1 to the F F Immigration Ordinance (corresponding to Article 24(2)(4) of the G G Basic Law). H H 4. The main issue to which we have referred is in our opinion an I issue of significant general public importance and we are of the opinion that I leave should be granted on the basis of the first and fourth questions posed by J J the Notice of Motion. The second and third questions are, it seems to us, K subsumed in the first and fourth and, in any event, whether leave (if such leave K is necessary) should be granted in respect of those questions is more suitable L L for determination by the Court of Final Appeal. M M 5. Accordingly since, in our opinion, the first and fourth questions N N are clearly suitable for determination by the Court of Final Appeal, leave to O appeal is granted. O P P Q (Frank Stock) (Joseph Fok) (M H Lam) Q Vice-President Justice of Appeal Judge of the Court of First Instance R R Mr Hectar Pun instructed by Messrs Yip & Liu, assigned by Director of Legal S S Aid for the Applicant T T Mr Anderson Chow, SC and Ms Eva Sit, instructed by Department of Justice st nd for 1 Respondent and 2 Respondent U U V V .
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