SUN JIE v. REGISTRATION OF PERSONS TRIBUNAL AND OTHERS

FAMV No. 20 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 20 OF 2006 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 320 OF 2004)

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D E T E R M I N A T I O N

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Mr Justice Chan PJ:

1.  The applicant is a Chinese citizen who came to Hong Kong to work for a state owned enterprise.  When his employment was terminated in December 1999, he had by then remained here continuously for 6 years and 4 months.  He was required to leave and he did.  But shortly after that, he returned to Hong Kong in transit to Nauru where he somehow obtained a Nauru passport.  With that passport, he came here again in March 2000 and then married a Hong Kong resident.  He has since remained in Hong Kong and applied unsuccessfully for permanent resident status alleging that he had never given up the intention to be ordinarily resident here, notwithstanding his short absence, and has altogether accumulated more than 7 years continuous ordinary residence in Hong Kong.

2.  Having failed before the Registration of Persons Tribunal, he was successful before Cheung J.  The judge’s decision was however reversed by the Court of Appeal.  The applicant now seeks leave to appeal to the Court of Final Appeal.

3.  The main ground of appeal is that the Court of Appeal had misinterpreted the term “ordinary residence” in the Immigration Ordinance, Cap. 115 (“the Ordinance”) in holding that absence from Hong Kong for a period during which the applicant did not have permission to stay in Hong Kong had broken the continuity of his ordinary residence for the purpose of acquiring permanent residence in Hong Kong.  It is submitted that this interpretation prevents the applicant, a law abiding non-resident, from accumulating the requisite period of residence and leaves him at the mercy of the Immigration Officer.

4.  We do not think this is a reasonably arguable ground of appeal.  The applicant was given permission to remain and hence to acquire ordinary residence in Hong Kong on the basis of his employment.  When his employment was terminated, he no longer had any permission to remain and his ordinary residence also came to an end.  In order to succeed, the applicant has to show that he falls within s.2(6) of the Ordinance.  It is clear that he does not.  His absence was not a merely temporary hiatus in a continuous period of ordinary residence.  This is because when he returned, he was permitted to remain on a completely different basis which the Registration of Persons Tribunal has found to be false.  There was no continuity between his residence here as an employee and his presence as a visitor permitted to remain as a result of his false representations.

5.  There is no merit in this application which is accordingly dismissed with costs.  The Applicant’s own costs will be taxed in accordance with the Legal Aid Regulations.

Mr Albert Yau (instructed by Messrs Hastings & Co. and assigned by the Legal Aid Department) for the Applicant

Registration of Persons Tribunal, the 1^st Respondent, absent

Mr Daniel Wan (instructed by the Department of Justice) for the 2^nd & 3^rd Respondents