Fateh Muhammad v Commissioner of Registration

Last updated
Fateh Muhammad v Commissioner of Registration
Court Court of Final Appeal, Hong Kong
Full case nameFateh Muhammad v. Commissioner of Registration and Registration of Persons Tribunal
Decided2001-07-20
Citation(s)[2001] 2 HKLRD 659
Transcript(s) Full text of judgment
Case history
Prior action(s)Commissioner for Registration v. Registration of Persons Tribunal and Fateh Muhammad, HCAL40/1999
Commissioner for Registration v. Registration of Persons Tribunal and Fateh Muhammad, CACV272/1999
Court membership
Judge(s) sitting Andrew Li, Kemal Bokhary, Patrick Chan, Gerald Nazareth, and Anthony Mason

Fateh Muhammad v. Commissioner of Registration and Registration of Persons Tribunal was a 2001 case in the Court of Final Appeal, Hong Kong by a Pakistani migrant seeking the right of abode in Hong Kong. The case concerned provisions of the Immigration Ordinance requiring that a non-Chinese national's seven years of "ordinary residence" qualifying him to apply for permanent residence immediately precede his application. The unanimous opinion, written by Justice Kemal Bokhary (himself of Pakistani background), ruled that those provisions were not inconsistent with the Hong Kong Basic Law. The ruling in the case temporarily disqualified the appellant from applying for permanent residency, though he was expected to qualify again a few years later.

Court of Final Appeal (Hong Kong) court with the final adjudication power on the laws of Hong Kong

The Hong Kong Court of Final Appeal is the final appellate court of Hong Kong. It was established on 1 July 1997, when China resumed exercising sovereignty over Hong Kong, replacing the Judicial Committee of the Privy Council as the highest judicial institution under Hong Kong law. With its constitutional role defined in the Basic Law of Hong Kong, the Court of Final Appeal exercises its judicial powers independent of interference. The Hong Kong Court of Final Appeal Ordinance and the Hong Kong Court of Final Appeal Rules set out the functions and procedures of the court.

Hong Kong Special administrative region of China

Hong Kong, officially the Hong Kong Special Administrative Region of the People's Republic of China, is a special administrative region on the eastern side of the Pearl River estuary in southern China. With over 7.4 million people of various nationalities in a 1,104-square-kilometre (426 sq mi) territory, Hong Kong is one of the most densely populated places in the world.

Pakistanis in Hong Kong are an ethnic minority in Hong Kong numbering 18,094 persons according to the 2016 Official Census. In the 2011 census 17,253 people held Pakistani nationality however this number has since decreased to 15,234 in the 2016 census

Contents

Background

Fateh Muhammad was a Pakistani migrant who had resided in Hong Kong since 1962. [1] He was sentenced to four years in prison in 1993 for conspiracy to utter forged banknotes. The Secretary for Security ordered that he be deported from Hong Kong upon completion of his sentence. Muhammad applied to the Director of Immigration for verification of eligibility for a Hong Kong permanent identity card; effectively, he sought to assert that he had the right of abode in Hong Kong and thus under Immigration Ordinance 2A(1)(c) could not be deported. The Director refused verification on the grounds that Muhammad had not been "ordinarily resident" in Hong Kong for the seven years immediately preceding his application for verification, because under IO 2(4)(b) time spent in prison is not considered "ordinarily resident". [2]

Uttering is a crime involving a person with the intent to defraud that knowingly sells, publishes or passes a forged or counterfeited document. More specifically, forgery creates a falsified document and uttering is the act of knowingly passing on or using the forged document.

Counterfeit money money that was created illegally

Counterfeit money is imitation currency produced without the legal sanction of the state or government usually in a deliberate attempt to imitate that currency and so as to deceive its recipient. Producing or using counterfeit money is a form of fraud or forgery. The business of counterfeiting money is almost as old as money itself: plated copies have been found of Lydian coins which are thought to be among the first Western coins. Before the introduction of paper money, the most prevalent method of counterfeiting involved mixing base metals with pure gold or silver. Another form of counterfeiting is the production of documents by legitimate printers in response to fraudulent instructions. During World War II, the Nazis forged British pounds and American dollars. Today some of the finest counterfeit banknotes are called Superdollars because of their high quality and likeness to the real US dollar. There has been significant counterfeiting of Euro banknotes and coins since the launch of the currency in 2002, but considerably less than for the US dollar.

Secretary for Security position of the Hong Kong Government

The Secretary for Security is the member of the Hong Kong Government in charge of the Security Bureau, which is responsible for public safety, security, and immigration matters.

Tribunal and lower courts

Muhammad appealed the Director's decision to the Registration of Persons Tribunal on 4 August 1998, which on 29 January 1999 allowed his appeal, ordering that a permanent identity card be issued to him. In doing so, it stated that IO Schedule 1 Paragraph 1(4)(b), which imposed the requirement that the seven years of ordinary residence qualifying a non-Chinese national to apply for permanent residence immediately precede the application, contravened the Basic Law and should be struck down. [Note 1] The Director withdrew the deportation order on 26 February 1999. [3]

However, the Director also appealed to the Court of First Instance. Justice Brian Keith found the impugned provisions to be consistent with the Basic Law and made an order of certiorari quashing the Registration of Persons Tribunal's order that Muhammad be issued with a permanent identity card. [2] Muhammad appealed to the Court of Appeal. Justices Simon Mayo, Robert Ribeiro, and Anthony Rogers on 19 April 2000 upheld the CFI's ruling. [2] The CA applied a purposive approach to interpreting BL 24(2)(4), and concluded that the three requirements therein for a non-Chinese national to become a permanent resident (entered Hong Kong with a valid travel document; has ordinarily resided in Hong Kong for a continuous period of not less than 7 years; and has taken Hong Kong as his place of permanent residence) should be completed concurrently. [2]

Court of First Instance (Hong Kong) court of the High Court of Hong Kong

The Court of First Instance is the lower court of the High Court of Hong Kong, the upper court being the Court of Appeal. Formerly the High Court of Justice of the Supreme Court of Hong Kong, it was renamed the Court of First Instance by the Basic Law after the transfer of sovereignty over Hong Kong from the United Kingdom to China.

Certiorari is a court process to seek judicial review of a decision of a lower court or administrative agency. The term comes from the name of an English prerogative writ, issued by a superior court to direct that the record of the lower court be sent to the superior court for review.

Court of Appeal (Hong Kong) court of the High Court of Hong Kong

The Court of Appeal of the High Court of Hong Kong is the second most senior court in the Hong Kong legal system. It deals with appeals on all civil and criminal cases from the Court of First Instance and the District Court. It is one of two courts that makes up the High Court of Hong Kong. Sometimes criminal appeals from Magistrates' Courts with general public importance are also dealt with in the Court of Appeal, either by referral by a single judge from the Court of First Instance, or upon granting of leave on application for review by the Secretary for Justice.

Court of Final Appeal

Muhammad appealed again to the Court of Final Appeal. His case was one of three CFA cases relating to the right of abode that year said to form part of a "constitutional crisis" in Hong Kong, the other two being Director of Immigration v. Chong Fung Yuen (which ruled that Chinese nationals born in Hong Kong were entitled to the right of abode regardless of the Hong Kong immigration status of their parents), and Tam Nga Yin v. Director of Immigration (which ruled that mainland-born children adopted by Hong Kong parents did not thus gain the right of abode). [4] The CFA delayed its ruling on Chong, which had been heard in March, until Fateh Muhammad and Tam Nga Yin had also been heard. [5]

On 20 July 2001 the CFA also ruled against Muhammad. [2] The CFA upheld the CA's observation that were the Basic Law's requirements for permanent residence is required to be satisfied concurrently, the law did not intend to confer the right of abode on people with tenuous connections to Hong Kong. The CFA also rejected the argument that the Immigration Ordinance's imposition of additional requirements on the timing of the period of seven years' "ordinary residence" was inconsistent with the Basic Law, instead stating that the Basic Law was silent on the matter and that it was "legitimate for the Ordinance to fill the gap". [1]

Reactions

Counsel for Muhammad attempted to argue that the relevant provisions of the Immigration Ordinance discriminated against people not of Chinese origin; this was unsuccessful. [6] The Hong Kong Human Rights Monitor in a press release accused the court of racism in interpreting the Basic Law more restrictively in Muhammad as compared to Ng Ka Ling v. Director of Immigration . [7] Acting Secretary for Security Timothy Tong was quoted as stating that he welcomed the ruling. [8]

Notes

  1. ↑ The Tribunal did not address IO 2(4)(b); the Court of First Instance in Vallejos v. Commissioner of Registration would strike down part of IO 2(4) as inconsistent with the Basic Law in 2011. That decision is under appeal.

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References

  1. 1 2 "Hong Kong SAR High Court -- Court of Appeal: Commissioner of Registration v. Registration of Persons Tribunal and Fateh Muhammad (permanent residency application by prisoner)", International Law In Brief, American Society of International Law, 2000-07-15, archived from the original on 2012-03-31, retrieved 2011-10-06
  2. 1 2 3 4 5 "Judgment Update: Fateh Muhammad v Commissioner of Registration & The Registration of Persons Tribunal" (PDF), Basic Law Bulletin (2): 21–23, 2001, retrieved 2011-10-06
  3. ↑ Commissioner for Registration v. Registration of Persons Tribunal and Fateh Muhammad, HCAL40/1999 , at para. 36
  4. ↑ Fokstuen, Anne R. (2003), "The 'Right of Abode' Cases: Hong Kong's Constitutional Crisis", Hastings International Comparative Law Review, 26 (265), retrieved 2011-10-04
  5. ↑ "Introductory Commentary" (PDF), Basic Law Bulletin (2), 2001, retrieved 2011-10-04
  6. ↑ Law, Anthony M. W. (December 2004), "Racial Discrimination and the Right to Equality", Hong Kong Lawyer, archived from the original on 2012-04-23, retrieved 2011-10-06
  7. ↑ Muhammad has the wrong blood for permanent residence in Hong Kong, 2000-04-21, retrieved 2011-10-06
  8. ↑ "HK Government Respects Court's Right of Abode Ruling", People's Daily, 2001-07-21, retrieved 2011-10-06
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