ASIF ALI v. DIRECTOR OF IMMIGRATION AND ANOTHER

ASIF ALI v. DIRECTOR OF IMMIGRATION AND ANOTHER

A period of custody pending trial, even if followed by conviction and imprisonment, is not to be treated for the purposes of s.2(4)(b) as 'imprisonment or detention pursuant to the sentence or order of any court'; s.67A does not convert non‑punitive remand into punitive imprisonment and therefore the respondent was...

Source-derived case information.

Citation
ASIF ALI v. DIRECTOR OF IMMIGRATION AND ANOTHER
Parties
Applicant (respondent): Asif Ali; 1st Appellant: Director of Immigration; 2nd Appellant: Secretary for Security
Court
Court of Final Appeal
Jurisdiction
Hong Kong
Judgment Date
25 March 2013
Case Number
FACV17/2011
Procedural Posture
Final Appeal (civil) to the Court of Final Appeal / Judgment on Appeal
Outcome
Appeal dismissed
Legal Topics
Right of Abode, Ordinary Residence, Deportation, Detention Pending Trial, Statutory Interpretation, Basic Law Article 24
Source Language
et
Immigration Law Constitutional Law Administrative Law Criminal Law Right of Abode Ordinary Residence Deportation Detention Pending Trial +2 more

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Parties

Asif Ali

Applicant (respondent)

Director of Immigration

1st Appellant

Secretary for Security

2nd Appellant

Procedural Posture

Final Appeal (civil) to the Court of Final Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether pre-trial custody that results in subsequent conviction and imprisonment falls within 'imprisonment or detention pursuant to the sentence or order of any court' in s.2(4)(b) of the Immigration Ordinance for calculating ordinary residence under Basic Law Article 24(2)(4)
  2. 2 Whether s.67A Criminal Procedure Ordinance renders pre-trial remand punitive or part of the sentence for the purposes of s.2(4)(b)
  3. 3 Compatibility of statutory qualifications in the Immigration Ordinance with Article 24(2)(4) of the Basic Law

Ratio Decidendi

A period of custody pending trial, even if followed by conviction and imprisonment, is not to be treated for the purposes of s.2(4)(b) as 'imprisonment or detention pursuant to the sentence or order of any court'; s.67A does not convert non‑punitive remand into punitive imprisonment and therefore the respondent was 'ordinarily resident' at the date of his verification application; appeal dismissed.

Court Disposition

Appeal dismissed

Orders

  • Appeal dismissed with costs