Case Summary and Analysis: Fateh Muhammad's Hong Kong Residency Appeal

CFA

Fateh Muhammad v Commissioner of Registration & Another Bokhary PJ

659

A

Fateh Muhammad and Commissioner of Registration & Another

Appellant

Respondents

B

(Court of Final Appeal) (Final Appeal No 24 of 2000 (Civil))
C

Li CJ, Bokhary and Chan PJJ, Nazareth and Sir Anthony Mason NPJJ 21–23 May and 20 July 2001
D

Immigration — permanent residence — ordinary residence requirement — being in prison or training or detention centre did not constitute “ordinary residence” within art.24 — Basic Law art.24 Immigration — permanent residence — persons not of Chinese nationality — under art.24(2)(4), period of ordinary residence must be “immediately before” permanent residence application — Basic Law art.24(2)(4) Words and phrases — “ordinarily resident” [Basic Law art.24(2)(4); Immigration Ordinance (Cap.115) s.2(4)(b), Sched.1 para.1(4)(b)]

E

F

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H

In 1998, X, a Pakistani-national, applied for a permanent identity card, claiming that he was a permanent resident under art.24(2)(4) of the Basic Law. Article 24(2)(4) provided “Persons not of Chinese nationality who have … ordinarily resided in Hong Kong for a continuous period of not less than seven years” were permanent residents. X had lived in Hong Kong since the 1960s, but between I 1994–97, had been in prison for non-immigration offences. Seven years had not elapsed since his release from prison. The lower courts held that he was not a permanent resident. X appealed. Held, dismissing the appeal, that: (1) The word “detention” as used in s.2(4)(b) of the Immigration Ordinance (Cap.115) was to be construed as covering only detention in a training or detention centre. (See p.644A–C.)

J

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HONG KONG LAW REPORTS & DIGEST

[2001] 2 HKLRD

(2) Subject to the possibility that an extremely short period of