SUN JIE v. REGISTRATION OF PERSONS TRIBUNAL AND OTHERS

HCAL 186/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 186 OF 2002

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J U D G M E N T

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Background

1. Article 24(2) in Chapter III of the Basic Law provides that the permanent residents of the Hong Kong Special Administrative Region shall be, amongst others:

"Chinese citizens who have ordinarily resided in Hong Kong for a continuous period of not less than seven years before or after the establishment of the Hong Kong Special Administrative Region".

2. The same definition of a permanent resident can be found in paragraph 2(b) in schedule 1 to the Immigration Ordinance (Cap. 115), which sets out the definition of a "Hong Kong permanent resident" pursuant to section 2(1) of the Ordinance.

3. This application for judicial review raises the question of the meaning of a person "ordinarily residing" in Hong Kong for a "continuous" period of seven years.

4. The Applicant was born in the Mainland in 1968. On 6 September 1993, he arrived in Hong Kong pursuant to his employment by Chu Kong Shipping Company Limited, a local company. He was allowed by the Immigration Department to stay in Hong Kong and work for Chu Kong until 6 September 1994. From 10 August 1994 to 29 July 1999, the Immigration Department extended the Applicant's limit of stay in Hong Kong on a yearly basis, so that he could continue working for Chu Kong.

5. On 31 December 1999, the Applicant's employment with Chu Kong came to an end. He left Hong Kong and returned to the Mainland on that day.

6. On 10 March 2000, the Applicant arrived in Hong Kong as a transit passenger, holding a Chinese passport. He remained in Hong Kong for two days until 12 March when he left Hong Kong for Nauru.

7. On 15 March 2000, the Applicant was issued a passport of the Republic of Nauru under a different name (Alex J. Sun).

8. On 1 April 2000, the Applicant arrived in Hong Kong, holding his Nauru passport, and was allowed to stay in Hong Kong as a visitor until 8 April 2000. He left on 6 April 2000.

9. On 25 April 2000, the Applicant arrived in Hong Kong again, using his Nauru passport, and was allowed to stay in Hong Kong as a visitor until 2 May 2000.

10. On 27 April 2000, the Applicant married a Hong Kong resident (Madam Yu) at the Yuen Long Marriage Registry.

11. On 29 April 2000, the Applicant, on ground of matrimonial reunion, applied to change his immigration status to that of a dependant of his spouse. He did not reveal to the Director of Immigration that he had previously worked and lived in Hong Kong for over 6 years. He also applied for an extension of his stay in Hong Kong as a visitor whilst awaiting the Director of Immigration's approval of his application. Pursuant to his latter application (and subsequent applications), he was allowed to stay in Hong Kong as a visitor until 10 February 2001.

12. On 7 August 2000, the Applicant was notified that his application for a change of status had been refused.

13. On 29 September 2000, the Applicant through lawyers requested the Immigration Department to reconsider his application.

14. On 27 November 2000, the Immigration Department informed the Applicant that his application had been rejected again by the Department after reconsideration.

15. On 7 December 2000, the Applicant asked the Immigration Department once again to reconsider his application. On 10 January 2001, he was notified by the Department that his application had again been refused.

16. On 9 February 2001, the Applicant submitted an application for verification of eligibility for a permanent identity card to the Immigration Department. The application, unlike his previous application for a change of status by reason of his marriage to a Hong Kong resident, was based on his having (purportedly) ordinarily resided in Hong Kong for a continuous period of seven years.

17. On 28 August 2001, the Director of Immigration by letter informed the Applicant that his application for verification of eligibility for a permanent identity card had been rejected. The Director accepted that the Applicant had ordinarily resided in Hong Kong between 6 September 1993 and 31 December 1999 continuously, i.e. a period of almost 6 years and 4 months. However, the Director was essentially of the view that the continuous ordinary residence of the Applicant was fatally broken on 31 December 1999 when he returned to the Mainland upon the expiry of his limit of stay following the termination of his employment in Hong Kong. His absence thereafter from Hong Kong until his return on 10 March 2000 was not a period of temporary absence that could be disregarded for the purpose of continuous ordinary residence. Furthermore, the Director took the view that his presence in Hong Kong since March or April 2000 either on transit or as a visitor did not qualify as his ordinary residence in Hong Kong.

18. The Applicant appealed to the Registration of Persons Tribunal set up under section 3C of the Registration of Persons Ordinance (Cap. 177). After hearing, by a written Reasons for Decision (判案理由書) dated 22 July 2002 which was communicated to the Applicant by letter dated 6 August 2002, the Tribunal dismissed the appeal.

19. At the hearing of the present application for judicial review, the parties were content to use an English translation of the Reasons for Decision in Chinese for the purposes of the hearing. Paragraphs 30-32 of the same set out the Tribunal's reasons and conclusion:

"30.	(1)	In the present case, whether the Appellant was still ordinarily resident in Hong Kong since his departure in 1999 is a key issue for both parties concerned.
	(2)	In considering the issue, the Tribunal has considered in detail all the testimony, evidence and statements of the case as well as all the relevant legislation, legal principles and precedents.
	(3)	Since the Appellant's departure form Hong Kong on 31 December 1999, he, on each and every subsequent occasion, entered and stayed in Hong Kong as a visitor. Such status was different from the one he had when he was permitted by the Immigration Department to say in Hong Kong as an employee of Chu Kong Shipping Co. Ltd. during the period from 6 September 1993 to 31 December 1999. As the Appellant has entered Hong Kong as a visitor each time since 2000, his situation was different that of Tan Helen (i.e. the 2nd respondent of the case) in AG v The Registration of Persons Tribunal and Anor, HCAL No.5 of 1997. In that case, Tan Helen had left Hong Kong for one year or so after her departure on 12 March 1992 and later she was permitted by the Immigration Department to return to Hong Kong again as a domestic helper on 13 March 1993 (Tan Helen was permitted by the Immigration Department to stay in Hong Kong as a domestic helper during the period from May 1986 to 12 March 1992).
	(4)	The Tribunal has also considered that the Appellant still has valid registered residence in the Mainland China [see Exhibit 34.1].
	(5)	The Tribunal has also considered that the Appellant had, since 10 March 2000, stayed in Hong Kong for the following purposes, namely taking transit flights, or as a visitor or waiting for the results while the Immigration Department was considering or reconsidering his application or appeal for stay in Hong Kong.
	(6)	The Tribunal has considered all the relevant provisions of the Immigration Ordinance, in particular sections 2(4) and (6).
	(7)	After careful consideration, the Tribunal rules that on the facts of the case it finds, the Appellant is no longer ordinarily resident in Hong Kong after his departure on 31 December 1999, and that the Appellant's departure on 31 December 1999 was not considered as temporary absence from Hong Kong under Section 2(6) of the Immigration Ordinance. In addition, the Tribunal also rules that the Appellant was not ordinarily resident in Hong Kong during his stay in Hong Kong in the period from 10 March 2000 and after.
31.	(1)	The Tribunal rules that on the facts of the case it finds, the Appellant was only ordinarily resident in Hong Kong from 6 September 1993 to 31 December 1999 and that whole period totalled six years three months and twenty-six days.
	(2)	The Tribunal rules that the Appellant has not ordinarily resided in Hong Kong for a continuous period of seven years or more.
32.	In conclusion, after carefully considered all the testimony, evidence, statements of the case as well as all the relevant legislation, legal principles and precedents, the Tribunal is not satisfied that the Appellant can, on the balance of probabilities, prove he has ordinarily resided in Hong Kong for a continuous period of 7 years or more and his application is therefore dismissed."

20. The Applicant obtained leave to apply for judicial review from the Court of Appeal on 20 May 2003.

21. It is common ground between the parties in this application for judicial review that up to his departure on 31 December 1999, the Applicant had ordinarily resided in Hong Kong continuously since his first arrival on 6 September 1993. Furthermore, his employment with Chu Kong in Hong Kong was terminated against his wish to continue working and staying in Hong Kong. As a result of the termination of his employment and thus the expiry of his limit of stay, he had no choice but to return to the Mainland so as not to act in breach of his condition of stay. It was also accepted that right from the time when he was "forced" to return to the Mainland on the eve of the new millennium, he had the intention - which never changed - of returning to Hong Kong by all lawful means possible, so as to continue his residence in Hong Kong.

22. As far as his marriage to Madam Yu is concerned, that marriage was not accepted by either the Director of Immigration or the Tribunal as being a genuine one. The Tribunal dealt with the Applicant's marriage to Madam Yu in paragraph 24 of its Reasons as follows:

"24.	(1)	The Tribunal has carefully considered the testimony of the Appellant.
	(2)	The Appellant said that after he and Ms Yu Yin-ming had completed the registration procedures of their marriage on 27 April 2000, they had held a wedding banquet at a restaurant in Yuen Long. But when testifying at court, the Appellant said that he had forgotten the name of the restaurant and could only tell the Tribunal its location.
	(3)	When testifying at court, the Appellant also admitted that he made false representation in the interview notes recorded by the officials of the Immigration Department on 25 July 2000 [see Exhibits 51.1 to 51.6], including the information that he had lived in Nauru for 12 years and never been to Hong Kong before April 2000, and that his Chinese name was Sun Jie.
	(4)	If it is really out of true love that the Appellant married Ms YU Yin-ming, it is certainly impossible that he could have completely forgotten the name of the restaurant where they had held a wedding banquet only two-odd years after their marriage.
	(5)	In considering and assessing the Appellant's testimony, the Tribunal has fully considered the statements of the Appellant and the Respondent, including but not limited to an assessment of the testimony of both parties.
	(6)	After careful consideration, the Tribunal is not satisfied that the Appellant is an honest and reliable witness and therefore refuses to accept his testimony.
	(7)	The Tribunal refuses to accept that the marriage of the Appellant and Ms YU Yin-ming was bona fide. It is of the view that the only reason why the Appellant married Ms Yu on 27 April 2000 in Hong Kong was that he wanted to stay in Hong Kong by the marriage. It refuses to accept that the registered marriage of the Appellant and Ms Yu was based on true love."

23. That finding of the Tribunal was not challenged in this application for judicial review. However, Mr Yau, appearing for the Applicant, argued that, amongst other things, the Applicant's "marriage" to Madam Yu evidenced plainly the Applicant's intention to return to Hong Kong and resume his residence here despite the termination of his employment.

Immigration Ordinance s. 2(4) and (6)

24. It is convenient to set out at this juncture section 2(4) and (6) of the Immigration Ordinance:

"(4) For the purposes of this Ordinance, a person shall not be treated as ordinarily resident in Hong Kong -

(a) during any period in which he remains in Hong Kong - (Amended 122 of 1997 s.2)

(i) with or without the authority of the Director, after landing unlawfully; or (Amended 122 of 1997 s.2)

(ii) in contravention of any condition of stay; or (Amended 122 of 1997 s.2)

(iii) as a refugee under section 13A; or (Added 42 of 1982 s.2)

(iv) while detained in Hong Kong under section 13D; or (Added 23 of 1989 s.2)

(v) while employed as a contract worker, who is from outside Hong Kong, under a Government importation of labour scheme; or (Added 122 of 1997 s.2)

(vi) while employed as a domestic helper who is from outside Hong Kong; or (Added 122 of 1997 s.2)

(vii) as a member of a consular post within the meaning of the Consular Relations Ordinance (Cap. 557); or (Added 122 of 1997 s.2 Amended 16 of 2000 s.12)

(viii) as a member of the Hong Kong Garrison; or (Added 122 of 1997 s.2)

(ix) as a holder of a prescribed Central People's Government travel document; or (Added 31 of 2002 s.2)

(b) during any period, whether before or after the commencement of this Ordinance, of imprisonment or detention pursuant to the sentence or order of any court.

…

(6) For the purposes of this Ordinance, a person does not cease to be ordinarily resident in Hong Kong if he is temporarily absent from Hong Kong. The circumstances of the person and the absence are relevant in determining whether a person has ceased to be ordinarily resident in Hong Kong. The circumstances may include -

(a) the reason, duration and frequency of any absence from Hong Kong;

(b) whether he has habitual residence in Hong Kong;

(c) employment by a Hong Kong based company; and

(d) the whereabouts of the principal members of his family (spouse and minor children). (Added 122 of 1997 s.2)"

25. It should be noted that section 2(4)(a)(ix), which applies to a holder of a prescribed Central People's Government travel document like the one the Applicant used to hold whilst working for Chu Kong in Hong Kong, was only enacted in 2002, and therefore does not apply to the Applicant's case. Put another way, there is no question of a holder of such a travel document working in Hong Kong nowadays acquiring the status of a permanent resident of Hong Kong by virtue of his residence in Hong Kong whilst working here after the introduction of the subsection.

26. Furthermore, it should be noted that the exception relating to foreign domestic helpers (section 2(4)(a)(vi)) was only introduced in 1997, together with section 2(6) dealing specifically with the question of temporary absence from Hong Kong. This will be of some relevance when I come to deal with the authorities.

27. Both sides also accepted that although the Applicant left on 31 December 1999, he kept his rented flat in Hong Kong as well as his belongings there. He returned to Hong Kong in circumstances described above, and resumed, physically, his residence here. Despite his acquisition of a Nauru passport, for the purposes of his application to the Director, the appeal to the Tribunal and the present application for judicial review, he has been regarded as a Chinese citizen within the meaning of paragraph 2(b) in schedule 1 to the Immigration Ordinance.

Shah - ordinary residence

28. The case turns substantively on the meaning of "ordinary residence". The term has been authoritatively considered by the House of Lords in the leading case of R v Barnet L.B.C., ex p. Shah [1983] 2 AC 309. In that case, several foreign students studying in the United Kingdom applied under the Education Act 1980 for mandatory awards to finance their university studies. One of the qualification requirements for such mandatory awards was 3 years' ordinary residence in the United Kingdom. Essentially, it was argued against the students that they were not ordinarily resident in the United Kingdom during their years of studies there because their stays in the United Kingdom were subject to conditions of stay, and they were in the United Kingdom for a specific purpose. Furthermore, the United Kingdom was not their permanent home, and they were not staying in the United Kingdom as a general member of the community. All these and related arguments were rejected by Lord Scarman who delivered the leading speech. Some extensive quotations from that leading case are quite inevitable (at pp.340G, 341C/D-H, 342D-E, 343G-344G/H):

"Ordinary residence is not a term of art in English law. But it embodies an idea of which Parliament has made increasing use in the statute law of the United Kingdom since the beginning of the 19th century. ...

The words "ordinary residence" were considered by this House in two tax cases reported in 1928. In each, the House saw itself as seeking the natural and ordinary meaning of the words. In Levene v Inland Revenue Commissioners [1928] A. C. 217, 225 Viscount Cave L.C. said:

"I think that [ordinary residence] connotes residence in a place with some degree of continuity and apart from accidental or temporary absences."

In Inland Revenue Commissioners v Lysaght [1928] A. C. 234, 243 Viscount Sumner said:

"I think the converse to 'ordinarily' is 'extraordinarily' and that part of the regular order of a man's life, adopted voluntarily and for settled purposes, is not 'extraordinary.'"

In Levene's case Lord Warrington of Clyffe said, at p.232:

"I don not attempt to give any definition of the word 'resident.' In my opinion it has no technical or special meaning for the purposes of the Income Tax Act. 'Ordinarily resident' also seems to me to have no such technical or special meaning. In particular it is in my opinion impossible to restrict its connotation to its duration. A member of this House may well be said to be ordinarily resident in London during the Parliamentary session and in the country during the recess. If it has any definite meaning I should say it means according to the way in which a man's life is usually ordered."

It was urged upon your Lordships by counsel for Brent and Barnet Borough Councils (but not, as I understood her ultimate position, by counsel for the Shropshire County Council) that these two decisions of the House were authority only for a special meaning limited to the Income Tax Acts. The converse is the case. The true reading of the speeches delivered is that the House decided to construe the words in their tax context as bearing their natural and ordinary meaning as words of common usage in the English language: note particularly the words of Lord Warrington of Clyffe. ...

I, therefore, accept the two tax cases as authoritative guidance, displaceable only by evidence (which does not exist) of a subsequent change in English usage. I agree with Lord Denning M.R. that in their natural and ordinary meaning the words mean "that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration." The significance of the adverb "habitually" is that it recalls two necessary features mentioned by Viscount Sumner in Lysaght's case, namely residence adopted voluntarily and for settled purposes.

...

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.

There is, of course, on important exception. If a man's presence in a particular place or county is unlawful, e.g. in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence (even though in a tax case the Crown may be able to do so): In re Abdul Manan [1971] 1 W.L.R. 859, and Reg v Secretary of State for the Home Department, Ex parte Margueritte [1982] 3 W.L.R. 753, C.A. There is, indeed, express provision to this effect in the Act of 1971, section 33(2). But even without this guidance I would conclude that it was wrong in principle that a man could rely on his own unlawful act to secure an advantage which could have been obtained if he had acted lawfully.

There are two, and no more than two, respects in which the mind of the "propositus" is important in determining ordinary residence. The residence must be voluntarily adopted. Enforced presence by reason of kidnapping or imprisonment, or 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.

And there must be a degree of settled purpose. The purpose may be one; or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. This is not to say that the "propositus" intends to stay where he is indefinitely; indeed his purpose, while settled, may be for a limited period. Education, business or profession, employment, may be for a limited period. Education, business or profession, employment, health, family, or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.

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. Templeman L.J. emphasised in the Court of Appeal the need for a simple test for local education authorities to apply: and I agree with him. The ordinary and natural meaning of the words supplies one. 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.

An attempt has been made in this case to suggest that education cannot be a settled purpose. I have no doubt it can be. A man's settled purpose will be different a different ages. Education in adolescence or early adulthood can be as settled a purpose as a profession or business in later years. There will seldom be any difficulty in determining whether residence is voluntary or for a settled purpose: nor will inquiry into such questions call for any deep examination of the mind of the "propositus"."

29. The authority of the House of Lords' decision in Shah cannot be doubted. Lord Scarman's analysis of the natural and ordinary meaning of the words "ordinary residence" was specifically referred to with agreement by Ribeiro PJ in his leading judgment in Prem Singh v. Director of Immigration (2003) 6 HKCFAR 26, 51C-52C.

30. Mr Yau argued on behalf of the Applicant that based on the natural and ordinary meaning of the words "ordinary residence" as had been expounded by the House of Lords, the Applicant was no doubt - as had been conceded - ordinarily resident in Hong Kong continuously between 6 September 1993 and 31 December 1999. Moreover - and this is of crucial importance in the present case, Mr Yau contended that ordinary residence did not stop or break when, against his wish and out of no choice but to obey the law, the Applicant departed Hong Kong for the Mainland on 31 December 1999. Mr Yau argued that his temporary absence from Hong Kong thereafter until March or April 2000 did not break his ordinary residence in Hong Kong. Moreover, his physical residence in Hong Kong resumed in March or April 2000 and that physical residence indeed formed part of his continuous period of ordinary residence in Hong Kong. The requisite continuous period of seven years was accumulated on 6 September 2000, and thus his client became by law a permanent resident of Hong Kong.

The Helen Tan case

31. In support of his argument, Mr Yau heavily relied on an unreported decision of Sears J in the case of Attorney General v. The Registration of Persons Tribunal and Tan Helen No. AL5 of 1997 (29 May 1997) (the Helen Tan case). In that case, a domestic helper from the Philippines, who was partly Chinese, came to work in Hong Kong as a domestic helper in May 1986. On 12 March 1992, her employment contract was terminated and she was sent back to the Philippines in April 1992. She applied for employment in Hong Kong but was unsuccessful; then she applied for another domestic helper contract which was eventually approved. She returned to Hong Kong on 13 March 1993 and stayed in Hong Kong until (counting from May 1986) she was here for seven years. She thus applied for the status of a permanent resident of Hong Kong. It should be noted, as has been mentioned above, that at that time section 2(4)(a)(vi) of the Immigration Ordinance had not yet been enacted. Nor did we have section 2(6) of the Ordinance. The Registration of Persons Tribunal found in her favour thus:

"After hearing both parties and considering the evidence, we've come to the conclusion that on the particular facts of the case, it is more likely than not that the appellant's intention to settle has continued during the intervening period between 15th April 1992 and 13th March 1993. We are satisfied that the appellant has been ordinary resident in Hong Kong for the requisite period". (p.3)

32. The Commissioner for Registration took the matter, by way of judicial review, to the High Court. Sears J dealt with the application thus:

"Mr Shieh, appearing on behalf of the Commissioner of Registration accepts her ordinary residence from 1986 to 1992, however says that she was not ordinary resident during this period. He seeks to challenge this. First of all, he says in his application that it was an unreasonable decision[;] that has now been abandoned. It is clear that this particular Tribunal examined all of the matters and they came to the conclusion that although she had gone back to the Philippines, her intention remained that of being resident in Hong Kong and that she was trying to get back. She had tried to get back as a secretary, that was refused, but eventually has to come back as a domestic helper.

He therefore says that although they conceded that point is wrong, there is a point of law because the Immigration control practice by the Director of Immigration to Filipinas, either they are of Chinese race or just ordinary Filipinas, when their contracts finished, even though, for example, they had been seriously abused by their employer and therefore they have to leave him, they get 14 days and after that, they got to leave Hong Kong. That is a matter for the Director to decide whether people should stay here and it does not affect one's residence intention because the person might be able to get straight back again in a few days' time. Clearly, the Immigration status, in my judgment, is not decisive in deciding whether or not a person is ordinary resident, see for example the well known case of R v Barnet LBC, Ex. P. Shah [1983] 2 AC 309.

Mr Paul Lam's view, which was clearly set out in his written submission, that it is a relevant factor because if may be a factor that you weigh in the balance as to whether or not a person does have an intention to settle here. But, in my judgment, it is not a decisive factor.

The claim must be a claim lawfully made. This lady is lawfully in Hong Kong at the moment, she is not unlawfully here. She is lawfully here and she has made a lawful claim. Mr Shieh would have me accept that it is only a lawful claim when the Director of Immigration throughout the period has given permission to the person to be here. That, in my judgment, would lead to injustice. For example, a person who has been lawfully here for some 5 years and 9 months because of something to which she is not guilty of - she has not done anything wrong - has her contract terminated, and she has to leave Hong Kong. She has not done anything wrong, as I said like those people in the exceptions who were illegal immigrants or been in prison and she has to go back to Philippines and within a few days she is able to come back again. Mr Shieh described that as bad luck. Although they have been here for nearly 7 years and they are sent back because they cannot get a new contract here, that's their bad luck. In my judgment, people's right should not be dealt with in that sort of haphazard manner. Judges have a duty to ensure that people are dealt with fairly. In my judgment, the claim made by this lady was a lawful claim.

It was a question of fact whether she has been here as ordinary resident, it may be the tribunal listening to the evidence could have come to a different view, I do not know. But this tribunal looked at the matter very carefully, they came to the view that she had been here for the requisite period of time and having regard to the abandonment by the Attorney on the unreasonable point, in my judgment, the point of law does not prevail here. I would hold that this lady is entitled to have a permanent identity card and therefore refuse the relief sought by Commissioner of Registration and I dismiss his application." (pp. 3-5)

33. Mr Yau argued that the Helen Tan case is an authority for the proposition that termination of a person's employment in Hong Kong thus resulting in his having to leave Hong Kong so as not to breach his condition of stay does not necessarily break his ordinary residence in Hong Kong, provided that his intention - despite his "involuntary" departure (in the above sense) - is to keep his ordinary residence in Hong Kong and to return to Hong Kong by all possible lawful means so as to resume his physical residence here. Mr Yau also argued by reference to the facts in the Helen Tan case that an absence of almost one year of the maid in that case did not prevent the maid from keeping her continuous ordinary residence in Hong Kong during her absence.

34. Mr Marshall SC, appearing for the 2nd and 3rd Respondents, argued that the Tribunal in the Helen Tan case plainly reached a perverse decision on the facts of that case when it found that the maid was still ordinarily residing in Hong Kong despite the absence of a period of almost one year or, put another way, that she was continuously ordinarily resident in Hong Kong despite the one year absence. Mr Marshall argued that Sears J ought to have disturbed that finding by the Tribunal as Wednesbury unreasonable. Counsel also argued that at the lowest, the case was of little value in terms of authority because Sears J's decision was obviously premised on the Tribunal's finding (which the judge did not see fit to disturb). Counsel argued that the Helen Tan case must now be read subject to, not only the exception relating to foreign domestic helpers in section 2(4)(a)(vi), but more importantly, also section 2(6) which deals specifically with the question of temporary absence.

Haria

35. Mr Marshall also in the course of his very detailed submission referred me to the decision of the Immigration Appeal Tribunal (presided by its then Vice-President, Professor David Jackson of the University of Southampton, known for his work Immigration Law and Practice) in Secretary of State for the Home Department v. Haria [1986] Imm AR 165. In that case, at issue was whether the immigrant in question had been ordinarily resident in the United Kingdom for the last five years or more immediately prior to the date of her settlement in the United Kingdom. The applicant left the United Kingdom during the requisite five years period to live in Kenya where she originally came from for reasons of economic necessity. She maintained the intention to return to the United Kingdom at some future date. The Tribunal held on the facts that the mere intention was insufficient to found a claim to continuing ordinary residence in the United Kingdom. At p.168 of the report, the Tribunal held thus:

"In our view, regrettably on the facts, when Mrs Haria left this country and went to Kenya in 1977 she ceased to be ordinarily resident in this country. While there was a specific purpose in going and it would appear from the evidence the move was founded on economic necessity, this did not mean that the move was involuntary. Further, as Mr Curwen pointed out, there was little substantive contact with this country and certainly no evidence that the intention to return at some future date was anything more than an intention.

We differ with respect from the adjudicator in that in our opinion the "accepted family intention" together with the reason for the move to Kenya cannot found a continuation of the ordinary residence which was undoubtedly there prior to the departure in 1977. We find it impossible to say that on the facts during her absence from this country Mrs Haria remained in this country "for settled purposes as part of the regular order of her life for the time being". Looking at the whole history of Mrs Haria and her family there was not a sufficient degree of continuity of an abode in this country to say that she remained ordinarily resident here during the period of her physical absence from 1977 to 1979."

Lau San Ching

36. Both counsel also referred me to the case of Lau San Ching v. Liu, Apollonia (1995) 5 HKPLR 23, decided by Cheung J (as he then was). In that case, which concerned Mr Lau's right to stand as a candidate in a district board election, the question of Mr Lau's absence for a period of ten years from Hong Kong when he was imprisoned in the Mainland was the focus of argument and decision regarding whether he had been ordinarily resident in Hong Kong during that period of ten years. Cheung J summarised in his judgment the various principles that could be extracted from the judgment of Lord Scarman in Shah (at pp.30H to 32C). The learned judge held that the applicant could not have been ordinarily resident in the Mainland during his imprisonment there as residence must be voluntarily adopted. Considering his mode of life in Hong Kong prior to his departure for the Mainland in 1981 (immediately prior to his arrest and imprisonment), the applicant was ordinarily resident in Hong Kong during the relevant ten years period. His stay in the Mainland was of a temporary nature which did not negate his ordinary residence in Hong Kong.

37. Mr Yau sought to use that case to demonstrate that an absence of as lengthy a period as ten years would not affect a person's ordinary residence in Hong Kong if the absence was involuntary. He argued that in the present case, the Applicant's departure from Hong Kong was also "involuntary" in the sense that he had no choice but to do so, particularly bearing in mind that any breach of his condition of stay would, so Mr Yau accepted, break his continuous ordinary residence in Hong Kong by virtue of section 2(4)(a)(ii) of the Immigration Ordinance.

38. Mr Marshall referred to Lau San Ching, if I understand his argument correctly, essentially for the purpose of providing a contrast with the present case. In Lau San Ching, Mr Lau was absent from Hong Kong because under the law in the Mainland, he was liable to be imprisoned and he was indeed so imprisoned. Yet in the eyes of Hong Kong law, he was entitled to return and reside in Hong Kong at all times during his period of imprisonment in the Mainland (if he was allowed to do so by the Mainland authorities). And indeed upon his release from prison in the Mainland, he returned lawfully to Hong Kong to resume his physical residence here. Thus his ordinary residence in Hong Kong never broke despite his lengthy imprisonment in the Mainland.

39. Yet in the present case, when the Applicant left Hong Kong on 31 December 1999, much as he would like to return to Hong Kong if he could, whether "by hook or by crook" - as Mr Marshall has put it, he had no lawful or legitimate basis or foundation for the materialisation of his intention. Put another way, his so-called "intention" was nothing more than a mere fantasy or wishful thinking on his part.

Approach in judicial review

40. In the present context of an application for judicial review, in my judgment, the relevance of the above discussion lies in whether, in the correct application of the legal principles, there can be only one answer to the question of the Applicant's continuous ordinary residence in Hong Kong, based on the facts as found by the Tribunal or as accepted by the parties. If there can be only one answer, and the answer is in favour of the Applicant, then as a matter of logic, the decisions of the Director and the Tribunal against the Applicant must have involved a mistake of law or otherwise been Wednesbury unreasonable, which may thus be challenged on judicial review. If there can be only one answer and the answer is against the Applicant, then it seems to me that regardless of the validity of the actual reasons given by the Director or more importantly the Tribunal for their decisions, there is much to be said that this Court sitting in judicial review, should exercise its discretion refusing relief, for after all, ex hypothesi, both the Director and the Tribunal have reached the only possible and correct conclusion (regardless of the correctness of the reasons that they relied on).

41. However, if there can be more than one answer to the above question, one must examine the actual reasons and decision-making processes of the Director and the Tribunal to see whether any mistake of law has been made, or whether their decisions were otherwise Wednesbury unreasonable.

Commencement of ordinary residence

42. In my judgment, based on the authorities, in order for a person to commence ordinary residence in a place, there must be a marriage of physical residence and the requisite mental intention. Thus as has been extracted above, Lord Scarman said 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" (p.343 G/H).

43. As has been explained by Lord Scarman, the mental requirements are simply voluntariness and a settled purpose. But simply having the requisite mental element is insufficient unless the person also has physical residence in the place in question, in order for ordinary residence to commence in that particular place. A person who has never set foot in Hong Kong can never be ordinarily resident in Hong Kong regardless of how much he wants to reside here and how settled his intention to reside here for whatever purpose may be.

44. So much for the commencement of ordinary residence in a place. Once ordinary residence in a place has successfully commenced, its continuation may well require something different or less.

Continuation of ordinary residence and temporary absences

45. Thus, as has been accepted by both sides and recognised statutorily by the enactment of section 2(6) of the Immigration Ordinance, temporary (physical) absences from the place of ordinary residence would not prevent the continuation of ordinary residence in that place. Put another way, even during those periods when the person was not physically in the place in question, he would still be regarded as being ordinarily resident in that place. In my view, this can only be explained by reference to his continued mental intention in terms of voluntariness and a settled purpose. In other words, provided that during his absences, he still voluntarily chose and intended to reside in the place in question for a settled purpose, his physical absences would not matter.

46. In my view, the circumstances that section 2(6) refer to for determining whether there has been a cessation of continuous ordinary residence are no more than some of the circumstances that may be relevant in determining whether a person has lost the necessary mental element during his periods of absence from Hong Kong. Put another way, those circumstances, which may or may not all be relevant in a particular case, and there may be other circumstances that have not been listed in section 2(6) that are relevant, are simply matters that may, depending on the facts, have some evidential value in determining what the person's requisite mental intention is or was at the material time.

47. When a person leaves the place of ordinary residence, that could be due to his losing the requisite mental intention. That could also be due to some other reasons having nothing to do with his requisite mental intention. Section 2(6) is designed to assist one in differentiating between the two situations.

48. In fact, even if a person does not physically leave the place in question, he may still discontinue his ordinary residence in the place if he loses the requisite mental intention. But of course, by the nature of things, mental intention is something subjective and may be difficult to prove (or disprove), at least directly. If a person physically remains in the place where he has commenced his ordinary residence, it may be very difficult (depending on the facts of course) to tell that he has in fact lost the requisite mental intention for the continuation of his ordinary residence subsequently. But that is really a matter of evidence and proof, rather than a matter involving any general principle as such.

49. That being my view of the law, I do not see a prolonged period of absence from the place of ordinary residence as necessarily a bar to a claim of continuous ordinary residence. The case of Lau San Ching may be explained on that ground. Likewise, in my judgment, the Helen Tan case provides another example of such a type of situations.

50. More importantly, in my judgment, whether the person has or has not got a legal right, a good prospect or a reasonable chance of, or some legitimate basic for hoping of, returning to the place in question is only relevant to the extent that it may evidence whether the person still genuinely possesses the requisite mental intention after his departure. Thus at one extreme, a person leaving Hong Kong but armed with a new contract to work in Hong Kong with another employer in a month's time has a sure foundation and a most legitimate expectation for his returning to Hong Kong lawfully after his departure. In such a case, it would be extremely easy for that person to prove that when he left and during his short absence from Hong Kong, he retained the requisite mental intention of ordinarily residing in Hong Kong. Likewise, Mr Lau San Ching, when he was imprisoned in the Mainland, never lost his status as a permanent resident of Hong Kong or his right to reside in Hong Kong in the eyes of Hong Kong law, and it was not difficult at all for him to prove that in those circumstances he never lost his requisite mental intention of ordinarily residing in Hong Kong during his long years of imprisonment in the Mainland.

51. Take another example at the other end - a person who has to leave Hong Kong upon the expiry of his permission to stay here. Assume he has no alternative job offers and the chances of his getting another job offer to work in Hong Kong are remote. And assume also he has no other grounds for returning to Hong Kong apart from as a visitor. In that type of situations, by comparison, it would be much more difficult for him to prove that despite his departure from Hong Kong he still maintains and retains the requisite mental intention of ordinarily residing in Hong Kong, particularly as time goes by. Yet, in my judgment, even in that type of cases, to successfully establish the presence of a continued mental intention is not wholly impossible. Everything would depend on the facts and evidence.

52. That, in my judgment, provides the key to understanding the Helen Tan case. In that case, the Tribunal, having considered all the relevant facts and evidence, came to the conclusion that when the maid departed from Hong Kong for the Philippines, and when she stayed in the Philippines looking for jobs in Hong Kong to return, she never lost the requisite mental intention of ordinarily residing in Hong Kong. What happened was that: she claimed that she retained her mental intention; she referred to her efforts to find jobs in Hong Kong in order to return as evidence of her claimed mental intention; and she was believed by the Tribunal which made a finding to that effect. When the case came before Sears J, very correctly (if I may say so with respect) the learned judge refused to interfere with the finding of fact made by the Tribunal. The judge was obviously of the view that on the evidence before the Tribunal, it was entitled to reach such a finding, although as the judge also recognised, another Tribunal could have, based on the same evidence, come to a different view (p.5 of the judgment).

Voluntariness

53. At this juncture, I should say a word or two on the question of voluntariness, so as to avoid any possible confusion and misunderstanding. It should be remembered that in Shah, when Lord Scarman referred to voluntariness as part of the requisite mental intention or requirement for ordinary residence, his lordship was referring to a person's voluntarily choosing the United Kingdom as his place of abode for a settled purpose. If he did not voluntarily choose the United Kingdom as his place of abode, he did not have the requisite mental element for ordinarily residing in the United Kingdom. So for instance, if he was abducted to the United Kingdom, he was not residing in the United Kingdom voluntarily, and there was no question of his ordinarily residing in the United Kingdom.

54. However, in the present context of a person already ordinarily residing in a place, when one refers to voluntariness, one is referring to his departure from that place in which he has been ordinarily residing up to the moment of departure. So Mr Lau San Ching was "involuntarily" imprisoned in the Mainland and prevented from returning to his place of ordinary residence, and the Filipino/Chinese maid in the Helen Tan case left Hong Kong "involuntarily" so as to avoid becoming an overstayer. The same could be said in relation to the Applicant in the present case. In that type of situations, it would be easier for the person departing, or not returning (like Mr Lau San Ching), to establish by evidence that he or she never lost the necessary mental intention upon or after his or her departure. Again, "involuntariness" in the present sense goes to the question of evidence and proof only.

55. This leads me conveniently to the case of Haria. The key to understanding that case is that in that case the Tribunal found as a fact that Mrs Haria left the United Kingdom "voluntarily", though out of economic necessity. Furthermore, the Tribunal found that her intention to return to the United Kingdom was only an intention to return there "at some future date". In the meantime, she kept "little substantive contact" with the United Kingdom. In those circumstances, it was, with respect, entirely open to the Tribunal to find, as it did, that Mrs Haria was no longer ordinarily resident in the United Kingdom. That was because, on the evidence, she had lost the requisite mental intention of ordinarily residing in the United Kingdom. To say that whilst she was in Kenya, she still intended to reside in the United Kingdom for any settled purpose was, on the facts of that case, most artificial. The fact of her "voluntarily" leaving the United Kingdom was a most important piece of evidence (but not an absolute juridical bar) against her claiming to be still in possession of the requisite mental intention. Her case was quite far removed from both the case of Helen Tan as well as the present case.

Present case

56. Focusing on the facts as found by the Tribunal or as accepted by the parties in the present case, there can be no doubt that right from the moment of his departure up to his actual physical return to Hong Kong in March and April 2000 and beyond, the Applicant had the requisite intention of ordinarily residing in Hong Kong. Put another way, he never lost that mental intention despite his departure and physical absence from Hong Kong. Of his own volition, he regarded Hong Kong as his place of abode and that was a settled intention. Pausing here, I should add that so long as there is a settled purpose, that purpose can change provided that the new purpose is also a settled one. Moreover, as has been pointed out by Lord Scarman, there can be more than one settled purpose at any one time. So prior to the termination of his contract of employment, the Applicant's settled purpose was to reside in Hong Kong for work. But after the termination of employment, his settled purpose was, on the facts, simply to reside in Hong Kong and enjoy the way of life here. No doubt, after April, his stay in Hong Kong was also for the specific purpose of applying for a change of status because of his marriage. That his application eventually failed did not alter the fact that he had at that time a specific purpose on top of his general purpose.

57. On those facts, in my judgment, there can be only one correct answer, namely that the Applicant never lost the requisite mental intention of ordinarily residing in Hong Kong.

Immigration status

58. The Applicant's "immigration status" in March or April 2000 (and thereafter) is, in my judgment, quite irrelevant. As has been pointed out by Lord Scarman in Shah:

""Immigration status," unless it be that of one who has no right to be here, in which event presence in the United Kingdom is unlawful, means no more than the terms of a person's leave to enter as stamped upon his passport. This may or may not be a guide to a person's intention in establishing a residence in this country: it certainly cannot be the decisive test, as in effect the courts below have treated it. Moreover, in the context with which these appeals are concerned, i.e. past residence, intention of expectations for the future are not critical: what matters is the course of living over the past three years." (p.348 D-E)

59. In the present case, the immigration status of a "visitor" was the best status, as it were, that the Applicant could obtain lawfully from the Director of Immigration when he returned in April 2000, which status enabled him to return to and stay in Hong Kong to materialise his requisite mental intention of ordinarily residing in Hong Kong, by resuming physical residence here. That the status of a visitor prevented him from enjoying fully life in Hong Kong (such as employment or study) is, in my judgment, quite irrelevant to the question of ordinary residence in Hong Kong. For it must not be forgotten that one is here concerned with residence and ordinary residence. A person may be ordinarily resident in a place even though his stay in that place is subject to restrictions of all sorts. The foreign students in Shah no doubt could not work during their studies in the United Kingdom. Nor could they do, for instance, any business in the United Kingdom. All this did not prevent them from being regarded as ordinarily resident in the United Kingdom.

60. Likewise, that the Applicant has made an unsuccessful application for a change of status based on his (supposed) marriage to Madam Yu is neither here nor there. If anything, it shows how desperate the Applicant was to resume and maintain his physical residence in Hong Kong, in materialisation of his (uninterrupted) mental intention of ordinarily residing in Hong Kong.

61. The only real significance of the immigration status of the Applicant in the year 2000 was that he returned upon the permission, albeit a limited one, of the Director of Immigration, and therefore his stay in Hong Kong thereafter pursuant to the permission granted was not unlawful or illegal. Needless to say, if his return or stay had been unlawful, then whether under section 2(4)(a)(i) or (ii) of the Ordinance or under common law as explained by Lord Scarman in Shah, his residence in Hong Kong could not be regarded as ordinary residence. But that was not the case here.

Primary conclusion

62. In those circumstances, there can be no doubt that the Applicant was ordinarily resident in Hong Kong up to and beyond 6 September 2000, and by virtue of his continuous ordinary residence in Hong Kong for a period of seven years counting from 6 September 1993, the only conclusion that the Director and the Tribunal could have correctly reached, on the facts as found by them or as accepted by the parties in this application, was that the Applicant acquired his status as a permanent resident of Hong Kong on 6 September 2000.

63. For that reason, I am of the view that the decisions of the Director and the Tribunal were legally erroneous or otherwise Wednesbury unreasonable. In so far as they reached their decisions on the basis that the Applicant could not have continued his ordinary residence in Hong Kong when he departed Hong Kong on 31 December 1999 following the termination of his employment and when he departed with no reasonable prospects of returning to work in Hong Kong thereafter, they misdirected themselves on the law. Likewise, in so far as they reached their decisions on the view that since the Applicant was only in Hong Kong on transit or as a visitor in March or April 2000 and thereafter, he was not ordinarily residing in Hong Kong, they misdirected themselves on the law.

64. Their decisions must be quashed.

Fallback conclusion

65. If I am wrong with my conclusion that on the facts as found by the Director/Tribunal or accepted by the parties, there can be no other conclusion but that the Applicant continued to ordinarily reside in Hong Kong after 31 December 1999, and rather everything depends on the facts, I would nonetheless hold that the Tribunal's decision in finding that the Applicant was not ordinarily resident in Hong Kong after 31 December 1999 was Wednesbury unreasonable. Given my main conclusion, I would be very brief with this fallback conclusion of mine.

66. The Tribunal, in its lengthy Reasons for Decision, only gave several specific reasons for its decision in the passages extracted above. First, the Tribunal referred to the fact that the Applicant had a valid registered residence (or a household registration) in the Mainland (paragraph 30(4)). In my judgment, this was quite equivocal to the question that the Tribunal had to decide, given that a person can have more than one ordinary residence at the same time. Although the Tribunal did not say what weight, if any, it had given to this fact, the fact that it received a specific mention in the most brief reasons given by the Tribunal for its decision despite the length of the Reasons for Decision, would reasonably suggest that somehow the Tribunal placed significant weight on this fact.

67. Secondly, the Tribunal also referred to the fact that since March 2000, the Applicant had stayed in Hong Kong on transit or as a visitor (paragraph 30(5)). As I have explained above, on the high authority of Shah, immigration status is quite irrelevant to finding out the true purpose or intention of a person's stay and residence in a place.

68. Thirdly, the distinction that the Tribunal sought to draw between the present case and the case of Helen Tan (paragraph 30(3)) is a superficial one. The distinction that the Filipino maid returned to Hong Kong as a domestic maid whereas the Applicant returned to Hong Kong on transit or as a visitor is unsustainable because immigration status is quite irrelevant to the present enquiry.

69. Apart from these specific reasons, no further reason was given. There was a general reference to section 2(6) of the Ordinance (paragraph 30(6)) but there was no specific mention of how that section was applied in the circumstances of the case.

70. Likewise, there was a reference to the Tribunal's considering all the facts and evidence generally (paragraph 30(2)), but there was no specific discussion on the legal or factual issues involved or the reasoning of the Tribunal, which led to the conclusions that were simply stated as such towards the end of the Reasons for Decision.

71. In those circumstances, if I am wrong with my primary conclusion, I would nonetheless conclude that the Tribunal's stated reasons did not really support the conclusions that it reached. The conclusions were Wednesbury unreasonable in that wrong reasons and considerations were taken into account and relied on in reaching them. Under this fallback situation, the case must be remitted to the Tribunal for fresh consideration.

Outcome

72. Based on my primary conclusion, I order that the decisions of the Director of Immigration and the Tribunal be brought up and quashed. I make a declaration that the Applicant acquired the status of a permanent resident of the Hong Kong Special Administrative Region on 6 September 2000.

73. I also award the costs of the present judicial review proceedings to the Applicant; such costs are to be taxed if not agreed. I also order taxation of the Applicant's own costs in accordance with the Legal Aid Regulations (Cap. 91).

74. Finally, I would like to thank counsel for their very helpful and detailed submissions.