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: 4 March 2011 L Date of Handing Down Judgment: 28 June 2011 M M J U D G M E N T N N O O Hon Stock VP: P P The issue Q Q 1. Section 2(4)(b) of the Immigration Ordinance provides that a R R person shall not be treated as ordinarily resident in Hong Kong during any period of imprisonment or detention pursuant to the sentence or order of any S S court. T T U U V V 由此 - 2 - A A 2. The question which arises in this case concerns the effect of that B B provision upon a period of remand in custody pending a trial that results in a C conviction: is that period excluded from categorisation as a period of ordinary C residence? D D E Introduction E F F 3. This is an appeal from a decision of Andrew Cheung J (as he then was) on 25 March 2010 whereby he dismissed an application for judicial G G review. H H 4. The applicant’s case is that in February 2006, he made an I I application for verification of status as a permanent resident but that in May J 2007 that application was wrongfully rejected by the Director of Immigration. J In November 2007 the Secretary for Security issued a deportation order K K against him and in June 2008 refused to rescind that order. Since a Hong L Kong permanent resident enjoys the right of abode and that right carries with L it the right not to have a deportation order made against him, it was said that M M those two deportation decisions were also unlawful. So in July 2009 the N applicant filed an application for leave to apply for judicial review of those N three decisions. Leave was granted and it is the review of those decisions O O with which this appeal is concerned. P P Permission to stay Q Q 5. The applicant is a national of Pakistan who came to Hong Kong R R on 23 May 1997. He was then aged 16 years and was permitted to enter as a S S visitor. He has a father and siblings who reside in Hong Kong. T T U U V V 由此 - 3 - A A 6. In August 1997, his status was changed to that of a dependant of B B his father. His permission to remain on that basis was extended from time to C time, last expiring on 18 March 2006. C D D 7. It is common ground that but for the applicant’s detention and E subsequent sentence of imprisonment consequent upon the initiation of E criminal proceedings in late 2005, the applicant had by late March 2006 been F F ordinarily resident in Hong Kong for at least seven years. G G The criminal proceedings H H 8. In August 2004, there was a fracas between two groups in Tsim I I Sha Tsui. The applicant was a member of one of the groups. One of the J men was charged with two counts of wounding with intent. The applicant J testified for him in August 2005 and in the course of that testimony admitted K K that he was in fact the assailant. So in September 2005 he was arrested for L those two offences. L M M 9. He was at first placed on bail, with no reporting restrictions and N no requirement that he should not leave Hong Kong. But when the case was N transferred to the District Court on 25 November 2005, he was remanded in O O custody pending trial. On 30 March 2006, he was convicted after trial and P sentenced to 3 years’ imprisonment. P Q Q Correspondence R R 10. On 14 February 2006, that is to say whilst the applicant was in S custody awaiting trial, a letter was written in Urdu, signed by the applicant to S the Director of Immigration, the translation of which reads as follows: T T U U V V 由此 - 4 - A A “With due respect, it is requested that my name, Asif Ali [ID no. B provided] with place and date of issue, Hong Kong 2001. B Respected sir, I have not been granted an unconditional stay yet. And my visa is going to be expired on 18 th of March, next March. C C Either demanding an extension stay or an unconditional stay, in order to apply for Hong Kong permanent ID, I need your suggestions so D that I can rest on aside. I would be obliged to the Sir for this favour D or then send me a form which can solve out for me. I should be obliged to you for the rest of my life. I certify this declaration upon E E reading and listening and signed. F The entire content is a true statement. I put my signature having F read it, together with the witnesses. Thanks to you. Declarant” G G 11. The envelope was addressed to the Director of Immigration, H Right of Abode section and the reverse side of the envelope made clear that H the addressee was at Lai Chi Kok Reception Centre. I I 12. It is evident that the letter was received by the Right of Abode J J Section of the Immigration Department on 17 February 2006. K K 13. The reply came from the Information and Liaison Section and L L was dated 6 March 2006, addressed to the applicant at the Lai Chi Kok M Reception Centre. It read: M N “Thank you for your letter of 14-2-2006 which was received on N 17 February 2006. O Generally speaking, foreign nationals who are permitted to work, O study or reside in Hong Kong should apply for extension of stay within one month before the expiry of their limit of stay if they P P intend to continue residence in Hong Kong. Application for extension of stay should be submitted to the Extension Section (5/F Q Immigration Tower, 7 Gloucester Road, Wanchai, Hong Kong) or Q any Immigration branch office with the following documents: R (1) a completed application form ID 91; R (2) applicant’s travel document and HK identity card; S S (3) Sponsor’s travel document or Hong Kong Permanent Identity T Card; Sponsor’s undertaking of continuous sponsorship and T sponsor’s declaration of not absent from Hong Kong for more than 180 days in the previous 12 months and for dependant U U V V 由此 - 5 - A A spouse, applicant’s declaration of no change in matrimonial B relationship. B Application form for extension of stay (ID 91) could be downloaded C C at the following website [address given]. D The fee for extension of stay is HK$135. D In general, applications for extension of stay require the applicant to E submit the application and to collect the visa. The applicant must E be in Hong Kong at the time of application and collection of visa. Application by fax or e-mail is not acceptable. F F I hope you will find the above information useful.” G G 14. The applicant took no further steps and on 30 March he was, as H H I have indicated, sentenced to a term of three years’ imprisonment. I I 15. What happened next was that by letter dated 1 September 2006, J the Director notified the applicant that he was considering applying for the J applicant’s deportation because the conviction for wounding with intent led K K the Director to conclude that the applicant’s continued presence in Hong Kong L posed a threat to law and order. L M M 16. The applicant then instructed solicitors who, in October 2006, N asserted that the applicant was entitled to the right of abode in Hong Kong and N an application form entitled “Application for Verification of Eligibility for O O Permanent Identity Card” was forwarded to the Director in November 2006. P It was therein asserted that the period of ordinary residence in Hong Kong was P 21 August 1997 to 24 November 2005. With the application was a Q Q declaration that the applicant had taken Hong Kong as his place of permanent R residence. R S S 17. The internal records of the Immigration Department show that the Director took the view that the period from 25 November 2005 to 29 March T T 2006 was a period of detention and therefore constituted a break in continuity U U V V 由此 - 6 - A A of ordinary residence. It is interesting, but not conclusive, to note that one of B B the minutes in the file of the Department puts forward the view that there was C a weak basis upon which to suggest that the applicant’s letter of 14 February C 2006 was not an application for a permanent identity card. D D E 18. In a letter dated 22 January 2007, those acting for the applicant E asserted that the letter of 14 February 2006 should be taken as the application F F for verification of eligibility for a permanent identity card.