DIRECTOR OF IMMIGRATION v. NG SHUN LOI

1987, No. 2
(Civil)

HEADNOTE

________________

BETWEEN

__________________

Hunter, J.

1. On the 24th June of last year, the respondent Ng Shun-loi entered Hong Kong illegally. On the 1st August, a Notice of Removal was issued by the Director of Immigration upon the grounds that the respondebt had landed in Hong Kong unlawfully. The respondent appealed against that decision to the Immigration Tribunal. The matter came on before that Tribunal for hearing, on 11th August and they gave their decision on 17th October. The respondent's contention before the Tribunal was that he had the right to land. He founded upon section 8(1)(c) of the Ordinance as giving him the right to land because he was a Chinese Resident against whom no Deportation Order was outstanding. For that purpose, he says:- “I was a Chinese Resident. Look at section 2, I am wholly or partly of Chinese race; and I have been ordinarily resident in Hong Kong for a continuous period of not less than 7 years.”

2. In support of that contention before the Tribunal, he gave evidence in brief to this effect: He had been born before the war in Indonesia and he went to China in 1959 at the age of 22. He married in 1961 but found he could not adjust to life in Canton. In March 1962, he entered Hong Kong on foot. He then, in effect, free-lanced in the construction industry and particularly in carpentry for the rest of that year. In October of that year, he was in fact issued with an identity card. The first child was born in January 1963. In the light of that, he decided to return to visit his wife. He said he had been sending her a hundred dollars a month during the time he was in Hong Kong. In March 1963, he left Hong Kong having obtained a one month permit, intending to visit his wife for a matter of days. That one month permit, as I understand it, was one that gave him permission to return within a month and lapsed after the expiration of that month. Upon the evidence, there was no suggestion that he left behind anything which he could have called a home.

3. Upon his return to Mainland China, he asserted that the Authorities "took my I/D card and re-entry permit". He asserts that he was then confined in a Commune for ten years. There is a little confusion about the dates, because that would take him through to 1973, whereas in fact he says later that he was released from the rural area in 1978 when he was declared innocent. Then his first attempt to return to Hong Kong was made in 1979 and his successful attempt in June 1986. He certainly cannot claim that he had any permission to remain in Hong Kong and, as I say, he founded upon the proposition that he was a Chinese resident.

4. Having considered that evidence, the Tribunal came to this conclusion: "After hearing evidence from both parties and their submissions, the tribunal was satisfied that the appellant has continued residence in Hong Kong since obtaining his Identity Card in October 1962, the period of absence in China being enforced stay in China against the appellant's will and he was not able to return earlier. Appeal allowed as the appellant has the right to land in Hong Kong, being a person under section 8(1)(c) of the Ordinance, i.e. Chinese resident as defined in section 2(1)."

5. In fairness to the Tribunal, I should explain that they seemed to have founded, in arriving at their conclusion, upon a decision of Power J. in a case concerning a man named Cheung Cheong, given on 29th tlay 1986. There the judge seems to have accepted a proposition that a person who once could claim to have been ordinarily resident in Hong Kong, acquired a status akin to domicile which he took with him and retained if he went abroad, so long as he could show that he still hadthe intention to return, and had not abandoned that status. It was, as I understand it, a straight application of the principle of domicile or the second cousin to the principle of domicile. Applying that principle, he appears to have come to the conclusion that time still ran in favour of a person's claim to seven years residence under seatioh 2, eventhough during that period, he was incarcerated in prison in Mainland China. That decision was before the Tribunal and may well have prompted this finding.

6. That decision was given, on 17th October. Before the end of the month, on 21st October, another division of this Court overturned Power, J.'s decision. That decision of this court, as I read it was based upon the facts. They were able to conclude that the facts as put before Power, J. were not sufficient to establish the intention upon which he founded. They did not have to go into the relevance of intention in this field and they certainly did not examine the relevance of intention in any depth. Upon the assumption that it was relevant, they found on the facts that it did not sufficiently exist.

7. The question for this court is how far intention is relevant, because the whole of the finding of the Immigration Tribunal before us was based upon the proposition that because this respondent wished to return to Hong Kong during the whole of his 23 years in China, he could still be regarded as being ordinarily resident. in Hong Kong for the whole of that period. I am bound to say that one only has to state that proposition in those terms to see that it is a somewhat striking and far-reaching. The proposition amounts to this: If I want to be in A, I am in A notwithstanding that I am in fact in B.

8. What this court has had to in this case is to consider whether this proposition is valid in law or not. The governing authority now is the decision of the House of Lords in R. v. Barnet London Borough Council ex parte Shah[1] where a succession of courts in England, the Divisional Court, the Court of Appeal and the House of Lords, went exhaustively through all the cases, and they are numerous, on the meaning of the phrase "Ordinarily resident" used in a wide variety of Statutes and regulations in England. In the particular case before the House of Lords, they had to consider basically, the construction of a regulation which was a qualification on section 1 of the Education Act. Regulation 13 is in these terms:

"An authority shall not be under a duty to bestow an award in respect of a person's attendance at a course -

(a) upon a person ,who has not been ordinarily resident, throughout the 3 years preceding the first year of the course in question, in the United Kingdom."

In that case, all the local authorities founded upon that exception and declined mandatory grants upon the basis that the applicants were not ordinarily resident throughout the three years preceding the course's first year, in the United Kingdom.

9. In his speech in that case with which all the other Law Lords agreed, Lord Scarman goes through all relevant authorities. He cites in particular, from two decisions under the Income Tax Act of the House of Lords itself in 1928 Levene v. The Inland Revenue Commissions[2] and The Inland Revenue Commissioner v. Lysaght[3]. He gave approval to a definition of "ordinarily resident", adopting the natural and ordinary meaning of the words given by Lord Denning in that case in the Court of Appeal which was: "The words "Ordinarily resident" mean that the person must be habitually and normally resident here apart from temporary or occasional absences of long or short duration." Founding upon that and particularly upon a dictum of Viscount Sumner in Lysaght's case⁽³⁾ he came to this conclusion at page 343G:

“Unless, therefore, it can. be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that "ordinarily resident" refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.”

That is, in effect, the definition which he adopted.

          He then made three important comments. First he excepted presence which is unlawful. Then he adds this:

"There are two, and no more than two, respects in which the mind of the "propositus" (namely the respondent in this case) is important in determining ordinary residence. The residence must be voluntarily adopted. Enforced presence by reason of kidnapping or imprisonment, or of a Robinson Crusoe existence on a desert island with no opportunity of escape, may be so overwhelming a factor as to negative the will to be where one is." (emphasis added).

That is the first concession Lord Scarman makes as to the relevance of intent in his speech. It is very important to see how it is put and how limited it is. What he acknowledges is this: Where there is overwhelming compulsion, a person may not be ordinarily resident where in fact he is, which I read as meaning where in fact he is resident. He is drawing a distinction between residence under compulsion; and "ordinary" residence which is not under compulsion but voluntary. If you apply that to the facts of this case, it may suffice to show that the respondent was by reason of compulsion not ordinarily resident in Mainland China. It does not touch the proposition that he was resident in Mainland China. Still less does it give any support at all to the proposition that he was in fact resident somewhere else, namely, in Hong Kong.

10. The speech then goes on to deal with settled purposes which really comes down to this that there must be "a choice ot regular abode". He then goes on:

“The legal advantage of adopting the natural and ordinary meaning, as accepted by the House of Lords in 1928 and recognised by Lord Denning M.R. in this case, is that it results in the proof of ordinary residence, which is ultimately a question of fact, depending more upon the evidence of matters susceptible of objective proof than upon evidence as to state of mind ..………. The ordinary and natural meaning of the words supplies "a simple test." For if there be proved a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences, ordinary residence is established provided only it is adopted voluntarily and for a settled purpose.”

He repeats the same theme on several other occasions in his speech. In particular at page 345G, he says this:

"Further, the language of regulation 13 lays emphasis not on intention or expectation for the future which is implicit in the idea of permanence, but on immediate past events, namely the usual order of the applicant's way of life and the place where in fact he has lived during the three years preceding his projected course of further education."

He is quite specific in pointing out that the concepts associated with domicile, of intention and abandonment have little or no place when you are dealing with ordinary residence. Intention is of very limited significance indeed, when you are looking to the past, not to the future, when you are looking to the man's past way of life. He repeats much the same view, first of all at page 348E and then at p. 349C.

11. Those words constitute a very useful definition of how the court should approach the words “ordinarily resident”. There is always a danger of this sort of pronouncement being elevated into another Act of Parliament or Ordinance. So I wish quite specifically, to express my gratitude also to the definition given by Lord Denning in the Court of Appeal which was specifically approved by Lord Scarman. I add also the definition given by Eveleigh, L.J. in the Court of Appeal[4] which seems to me, with respect, to put in very clear and simple language precisely the same concept as Lord Scarman was later developing. Eveleigh, L.J. says this:

“A person is resident where he resides. So far, for the purposes of this case, there is little difficulty. When is he ordinarily resident? I think that is when he resides there in the ordinary way. That must be the meaning of the adverb. The expression is therefore contemplating residence for the purposes of every day life. It is residence in the place where a person lives and conducts his daily life in circumstances which lead to the conclusion that he is living there as an ordinary member of the community would live for all the purposes of his daily life.”

12. That seems to me a very simple description of the objective test which Lord Scarman advocated.

13. It seems to me that if you apply any of these tests to the facts presented to this Tribunal by this respondent, they admit of only one answer. I am quIte prepared to take the whole of the period, and any seven years in the period 1963 to 1986. Where was he living? The answer is “Mainland China”. That is where he was living in the ordinary meaning of the word. The only possible qualification which the element of incarceration could have brought about, was a suggestion that because he was there against his will, he was only resident, and not ordinarily resident in Mainland China. There is certainly nothing in that qualifieation to transpose his residence from Mainland China to Hong Kong.

14. I very much doubt whether on the evidence, that qualification is made out. I am personally attracted by the approach of Morton, J. (as he then was) in Re McKenzie[5] at p.77 where, interestingly, he approaches the matter in exactly the same way as Eveleigh, L.J. He asked the question, first of all, where was the lady resident? He then comes to the conclusion, without a moments hesitation, that the lady in that case was resident in England where she had been incarcerated in a lunatic asylum for over 50 years. He then says in effect, that though that compulsion is "overwhelming", he must also find that he was "ordinarily resident" there too. I suspect the same conclusion might have been drawn on the facts here. But that is neither here nor there.

15. What the evidence shows, in my judgment, is that this man was simply resident, query "ordinarily resident", in Mainland China if you look at his way of life during any part of this period. That is the only conclusion which can be reached upon the evidence which was advanced before the Tribunal.

16. So far as the position of this court is concerned, it seems to me that the governing authority here is Edwards v. Bairstow[6] rather than Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation[7]. We are dealing here with a judicial tribunal, not an administrative or executive authority. Applying the test suggested by Lord Radcliffe at page 36 in Edwards v. Bairstow⁽⁶⁾ the question may be whether "the facts found are such that no person acting judicially and properly instructed as to the relevant law could have come to the determination under appeal". He goes on :

“I do not think that it matters much whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination.”

He prefers the latter description and with respect, so do I. I think that the true and only reasonable conclusion on the evidence led before this Tribunal was that this gentleman was not a Chinese Resident and was not ordinarily resident in Hong Kong for the necessary 7 year period. For my part, therefore, I would allow this appeal.

Cons, J.A.

17. I agree with Mr Lord and add a few words of my own only because we are differing from more than one judge below. Each of them, from the tenor of their judgments would, I think, have approved the argument of Mr Necholas. That argument, as I understand it, is inevitably predicated upon the suggestion that ordinarily resident is a legal status which, having once been acquired, remains with its possessor until he or she abandons it. In that circumstance it would be a matter exclusively of his or her intention. With every respect, the speech of Lord Scarman in R. v. Barnet London Borough Council ex parte Shah⁽¹⁾ is emphatic that that is not the case. Intention plays a very minor part in the determination of ordinary residence, being limited to such light as it may shed upon the question of voluntary adoption or settled purpose. Ultimately it is no more than a question of fact. Absence, enforced or otherwise, will not necessarily disrupt a period of ordinary residence. The Tribunal will have to consider the particular circumstances of each individual case. In the present instance, the particular circumstances looked at in the light of what has been said, can lead to one and only one true and reasonable conclusion. I, too, would allow the appeal.

Macdougall, J.

18. I agree with what both My Lords have said, they have covered, the position admirably and I have nothing useful to add. I, too., would allow this appeal and would make the order sought by the applicant.