Muhammad has the wrong blood for permanent residence in Hong Kong
21 April 2000
The Court of Appeal gave its judgment in the case of Fateh Muhammad V. Commissioner for Registration on 20 April 2000.
We are concerned that the Basic Law has, yet again, been restrictively interpreted so that an expatriate, like Fateh Muhammad, who is the respondent to the case and who obviously made Hong Kong his home, cannot get permanent residence status in Hong Kong on account of him spending a short time in prison.
Fateh Muhammad is a Pakistani who has lived in Hong Kong for the last 35 years or so. He has paid taxes and contributed to society. Unfortunately, he was convicted of a criminal offence and served a prison sentence.
The court has said that the restrictions imposed in the Immigration Ordinance are constitutional in spite of the fact that such restrictions do not appear in Article 24 of the Basic Law.
Such restrictions include, among others, that
(A) All expatriates (i.e. non-Chinese) have been ordinarily resident in Hong Kong for "a continuous period of 7 years . . . immediately before" his application for the status of Hong Kong permanent resident [Para. (1)(4)(b) of Sch. 1 to the Immigration Ordinance]; and
(B) A person shall not be treated as ordinarily resident in Hong Kong 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 [Section 2(4)(b) of the Immigration Ordinance].
Such an interpretation does not, on the face of it, seem to be consistent with the generous and purposive approach in the interpretation of the Basic Law as adopted by the Court of Final Appeal in Ng Ka Ling v Director of Immigration which judgment was delivered on 29 January 1999. In that judgment, the CFA has been extremely reluctant to accept restrictions that were not found in the Basic Law. A constitutional right should not be easily taken away by a restrictive interpretation of a provision meant to confer rights.
We are also concerned that a non-Chinese resident who, for any reason is sentenced to a term of imprisonment will have his or her residence broken by serving a prison sentence. This could occur if the person were later bailed for the alleged offence and later acquitted. The rule seems to impact on the presumption of innocence which holds that no one is liable to conviction (and, hence, imprisonment), unless their guilt is proved beyond reasonable doubt. It would be grotesque if a person was detained for two or three days by order of a court before being granted bail and the detainee was later acquitted but his application for permanent resident status was denied because of such temporary detention.
If section 2(4)(b) of the Immigration Ordinance was constitutional, the period of imprisonment should have only been discounted rather than taking it as a break of the period of ordinance residence for the purpose of application for the status of permanent resident.
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