COMMISSIONER OF REGISTRATION v. REGISTRATION OF PERSONS TRIBUNAL AND ANOTHER

HCAL 95/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 95 OF 1999

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J U D G M E N T

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1. This is an application by the Commissioner of Registration (the Commissioner) for a judicial review of the decision of the Registration of Persons Tribunal (the Tribunal) that the 2nd Respondent, Wong Wai Yin (the Applicant), has ordinarily resided in Hong Kong for a continuous period of not less than 7 years pursuant to the leave granted by Stock J on 31 July 1999.

2. On 18 August 1997, the Applicant submitted an application for a Hong Kong Permanent Identity Card for resident Overseas. His application was rejected by the Commissioner on the basis that he has not ordinarily resided in Hong Kong for a continuous period of not less than 7 years.

3. The Applicant appealed to the Tribunal against the decision of the Commissioner and the appeal was allowed.

4. The Tribunal concluded that the Applicant has ordinarily resided in Hong Kong for a continuous period of not less than 7 years.

5. The Commissioner considered the conclusion of the Tribunal to be erroneous and hence, the present application.

6. Under the Immigration Ordinance, a Hong Kong permanent resident enjoys the right of abode in Hong Kong and is entitled to be issued a Hong Kong Permanent Identity Card.

7. One class of Hong Kong permanent resident is defined as:

"A Chinese citizen who has ordinarily resided in Hong Kong for a continuous period of not less than 7 years before or after the establishment of the Hong Kong Special Administrative Region."

8. There is no dispute that the Applicant is a Chinese citizen. The only issue is whether he has ordinarily resided in Hong Kong for a continuous period of not less than 7 years when he applied for the permanent identity card on 18 August 1997.

9. The burden is, of course, on the Applicant to establish his right of abode.

10. The Applicant claimed to have entered Hong Kong illegally from Vietnam on 19 March 1974 and he applied for an Hong Kong identity card on 6 May 1975.

11. On 7 October 1975, the Applicant was convicted on his own plea of the offence of remaining in Hong Kong after having landed unlawfully without the authority of the Director of Immigration.

12. An entry permit was issued to the Applicant on 6 January 1975 with time limit of his stay in Hong Kong up to 5 January 1977. He was subsequently granted a number of extensions, the last of which entitled him to stay in Hong Kong up to 5 January 1983.

13. The Applicant left Hong Kong for France on 10 July 1982 and has not returned to Hong Kong ever since.

14. The Applicant claimed to have ordinarily resided in Hong Kong from 6 May 1975. Hence by the time he left Hong Kong for France on 10 July 1982, he had ordinarily resided in Hong Kong for more than 7 years.

15. The Applicant may well have been physically present in Hong Kong as from 6 May 1975, but that does not mean he had ordinarily resided in Hong Kong from that date.

16. There are clear authorities to the effect that unlawful residence in Hong Kong does not count as "ordinary residence" under the Immigration Ordinance (see judgment of Attorney General v. Cheung Kam Ping [1980] HKLR at p.602).

17. Although the Director was aware of the physical presence of the Applicant in Hong Kong in May 1975, there was no express permission allowing the Applicant to stay in Hong Kong nor could such permission be implied from word or conduct on the part of the Commissioner.

18. The Applicant entered Hong Kong illegally in 1974. His residence in Hong Kong was not regulated until 5 January 1976 when an entry permit and a Hong Kong identity card were issued to him.

19. Prior to 5 January 1976, the Applicant was residing in Hong Kong unlawfully without the authority of the Director of Immigration.

20. The Applicant's unlawful residence in Hong Kong was reinforced by his pleading guilty on 7 October 1975 to the offence of remaining in Hong Kong after having landed unlawfully on 23 September 1975.

21. On the undisputed evidence, the Applicant's lawful and ordinarily residence did not start until 5 January 1976 and he left for France permanently on 10 July 1982.

22. The Applicant had not ordinarily resided in Hong Kong for a continuous period of not less than 7 years when he applied for a permanent Hong Kong identity card.

23. The Applicant has not established his right of abode in Hong Kong and is therefore not entitled to be issued a Hong Kong permanent identity card.

24. The Tribunal in concluding as it did that the Applicant was entitled to be issued a Hong Kong permanent identity card fell into error on a point of law.

25. In the circumstances, the decision of the Tribunal that the Applicant has ordinarily resided in Hong Kong for a continuous period of not less than 7 years must therefore be quashed and I so order.

26. The matter is to be remitted to the Tribunal with the direction that the appeal by the Applicant should be dismissed.