WEERACHON SAE-IEO v. SECRETARY FOR SECURITY

HCAL 110/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO.110 OF 2002

---------------------

----------------------

-------------------------

J U D G M E N T

-------------------------

Introduction

1. The applicant in this matter is a Thai national. He was born in Thailand on 14 October 1973 and is now 29 years of age. He is unmarried. He has no children. In July 1991, when he was 17 years old, the applicant was granted permission by the Director of Immigration ('the Director') to take up residence in Hong Kong as a dependant of his mother. He has lived in Hong Kong since that time, his permission to remain being extended from time to time until the difficulties, which form the subject of this judgment, arose.

2. On 18 January 2001, at Eastern Magistracy, the applicant was convicted of two offences; first, possession of a dangerous drug, contrary to s.8(1) of the Dangerous Drugs Ordinance, Cap.134, and, second, breaching a condition of his stay in Hong Kong, contrary to s.41 of the Immigration Ordinance, Cap.115. In respect of the drugs offence, the applicant was sentenced to six months' imprisonment. In respect of the immigration offence, he was sentenced to two months' imprisonment. It was ordered that the sentences to be served concurrently.

3. On 18 April 2001, the respondent, the Secretary for Security, acting in terms of power delegated to her by the Chief Executive, made a deportation order requiring the applicant to leave Hong Kong and prohibiting him from returning at any time thereafter. Such an order is sometimes called an order of deportation for life. The order was made pursuant to s.20(1)(a) of the Immigration Ordinance on the basis that the applicant, who is not a Hong Kong permanent resident, had been found guilty of an offence publishable with imprisonment for not less than two years.

4. The applicant sought a rescission of the deportation order made against him. In terms of a letter dated 18 May 2001, that request was refused.

5. The applicant now seeks orders of certiorari to quash the two decisions of the Secretary for Security related to his order for deportation; that is, the original decision conveyed to the applicant in the letter of 18 April 2001 and the decision declining to rescind the order conveyed in the letter of 18 May 2001.

6. When the application to quash the two decisions first came before the court for hearing in February of this year, the applicant sought relief on two grounds only. They were to the following effect; namely, that

"(1) The decision of the Secretary for Security that the Applicant should be deported was not one that was open to a rational decision-maker in view of the imbalance between the threat posed by his continued presence in Hong Kong and the hardship which deportation would cause to him and innocent third parties.

(2) Alternatively, the decision of the Secretary for Security that the Applicant should be deported for life was not one that was open to a rational decision-maker in view of the imbalance between the threat posed by his continued presence in Hong Kong and the hardship which deportation would cause to him and innocent third parties."

7. As the matter could not be completed in the time allocated in February, it had to be adjourned part heard. During the adjournment, the applicant added three additional grounds which have been stated in the following terms in the applicant's amended papers :

"(3) The decision of the Secretary for Security not to rescind the deportation order was based on a mistake of fact in that it was based on an Immigration Department memorandum which stated that the applicant had shown no remorse for his offences. In fact no inquiries had been made into the attitude of the Applicant towards his offences and there was no material on which it could have been concluded that he did not show remorse. The only material available to the Immigration Department which could be regarded as relevant on this issue tended to indicate the opposite conclusion in that the applicant had pleaded guilty to each charge and he had attended the Immigration Department voluntarily on 20 December 2000 in an attempt to regularise his immigration position.

(4) The said decisions of the Secretary for Security were further irrational in that she failed to have regard to the facts that:-

(a) the Applicant's application of 6 September 1999 for an extension of stay as a dependent of his mother had been processed to the point where the applicant already had the Director's permission to remain in Hong Kong;

(b) the applicant's conviction for being in breach of his conditions of stay on 2 November 2000, to which he pleaded guilty on 18 January 2001, was therefore not soundly based;

(c) the applicant had in any event applied for a further extension of stay on 19 October 2000. This application was under consideration on 2 November 2000, the date of his alleged offence of remaining in Hong Kong without the permission of the Director of Immigration;

(d) the normal practice of the Immigration Department is to permit residents to remain in Hong Kong while applications for extension of stay in Hong Kong are under consideration. Under normal Immigration Department procedures the applicant would therefore have had the Director's permission to remain in Hong Kong during this period of processing of his application. For this reason also the applicant's conviction was not soundly based.

(5) Further or alternatively the matters referred to in Grounds 4(a), (b), (c) and (d) above meant that the Secretary for Security, in concluding that the applicant had committed an offence under Section 41 of the Immigration Ordinance, was making her decision on the basis of a mistake of fact."

The factual background

8. The several challenges contained in the applicant's amended papers require a detailed consideration of the history of the matter.

9. As I have said, the applicant was born in Thailand. Both his parents are Thai nationals. He was raised in the Thai culture and speaks the language. His parents divorced. In 1979, his mother came to Hong Kong. In 1989, she married a Hong Kong permanent resident, a Mr Yeung, and in 1999 she was granted right of permanent residence here.

10. In 1991, the applicant himself came to Hong Kong to be with his mother and siblings. He has resided in Hong Kong since that time, apparently sharing accommodation with his mother and step-father. The applicant has worked in Hong Kong as a casual labourer.

11. The applicant has his father and one brother still in Thailand. They are, of course, immediate family but seemingly the applicant has not kept in contact with them.

12. On 14 March 1997, the applicant was convicted of possession of a dangerous drug, contrary to s.8(1) of the Dangerous Drugs Ordinance, and was committed to a drug addition treatment centre. In light of that first conviction, the applicant received a notice from the Director dated 27 October 1997 stating that his conviction had been noted and reminding him that : "should you again be convicted in the courts on a criminal charge or otherwise come to adverse attention, your application to continue your stay in Hong Kong will have to be re-assessed."

13. The applicant, not having right of abode in Hong Kong and at all times residing here with the permission of the Director, has had to have that permission renewed from time to time. This means that he has been obliged, when each period of permitted stay has drawn to conclusion, to seek permission from the Director to remain for a further period as a dependant of his mother.

14. In January 1999, the applicant received an extension to what is commonly called his dependency visa. The extension was granted until 29 October 1999. Some six weeks before the expiration of that extension, on 6 September 1999, the applicant submitted a request to the Director for a further extension. There is nothing to suggest that the extension would not in the ordinary course of events have been granted. Indeed, a study of the internal documents of the Immigration Department reveals that a decision 'in principle' was made to extend the dependency visa for a further 36 months. The officer who made that decision, Mr Mak Pun Chung, has explained it thus :

" The application of 6 September 1999 was sent to me for processing on 13 September 1999. The standard procedure in processing extension of stay applications was that an immigration officer was required to make a decision in principle in respect of the applications based on the available information collected by the counter officer. I briefly considered the facts and background of the applicant and immigration decisions concerning his case. I then approved the case in principle on 17 September 1999 to :

'1. Extend his stay in Hong Kong as a dependant for 36 months.

2. Subject to the passport's validity.' "

15. The applicant was scheduled to return to the offices of the Immigration Department on 20 September 1999 with his travel documents to complete the process of obtaining permission to extend his stay. Mr Wong Wing Yin, a Senior Immigration Officer, who at the material time was serving in what is called 'the Extension Section', has said that

" If he [the applicant] returned on that date and the immigration officer then decided to extend his stay, the new condition and limit of stay would be endorsed accordingly on his passport." [my emphasis]

16. On a plain reading of that statement, it was for the officer who interviewed the applicant on 20 September 1999 to make the final decision whether or not to extend the applicant's permission to remain in Hong Kong, that decision being communicated to the applicant. Whether a favourable decision would still be made would depend on the continuing validity of the applicant's passport and on any information that had come to the attention of the officer concerning the applicant.

17. For the applicant, Mr Harris has contended that the approval 'in principle' endorsed on the applicant's file on 17 September 1999, standing on its own, constituted the Director's permission to remain. I do not see how that can be. In my judgment, that endorsement was nothing more than an internal note to the effect that the application appeared to be in order, that nothing was known to give rise to a refusal to extend but, of course, the final decision lay with the officer who interviewed the applicant and who would then be in possession of all necessary up to date information on the applicant. In common sense, I do not see how the approval 'in principle' can be read as anything more than that. Certainly the applicant was not told that his application had been approved 'in principle' and that all he needed to do was to present his passport for endorsement.

18. As it transpired, the applicant did not present himself at the Immigration Department on 20 September 1999 or in the days thereafter to be interviewed. In the result, a letter dated 29 November 1999 was sent to him by registered mail at his declared address. In part, that letter read :

" I refer to the abovenamed person's application for extension of stay in the Hong Kong Special Administrative Region. Your reply is still awaited. Unless I hear from you within two weeks, the application will be treated as cancelled." [my emphasis]

19. As there was no response to the letter, a decision was made by the Director on 15 December 1999 to treat the applicant's application for an extension to his dependency visa as cancelled. According to Mr Wong Wing Yin this-

" ... meant that in the event of the applicant surfacing and continuing to apply for an extension of stay, he would be required to apply afresh for extension of stay and the whole application process would be started over again."

20. Accordingly, from at least 15 December 1999 the applicant was in breach of his conditions of stay. He had no permission to remain in Hong Kong.

21. Some 10 months later, on 19 October 2000, an application for an extension of the applicant's dependency visa was filed by a person acting as the applicant's agent. The application stated that the applicant had been permitted to stay in Hong Kong only until 29 October 1999, the inference being that it was accepted that he had no permission to remain after that time.

22. Some 14 days later, in the early hours of the morning of 2 November 2000, the applicant was stopped and searched by police officers. He was found to be in possession of 0.15 grammes of a dangerous drug mixture containing 0.14 grammes of methamphetamine hydrochloride, the narcotic commonly called 'ice'. After his arrest, the applicant was released on bail, a condition of his bail being that he would return to court on 18 December 2000.

23. Mr Harris, who advanced every argument possible on behalf of the applicant, based much of his case on the fundamental contention that, having regard to the applicant's long-term residence in Hong Kong, and that in his case deportation would amount to exile, a decision founded on possession of less than one gramme of a dangerous drug was untenable. Indeed, in the course of his submissions he went so far as to say that no 'civilized' system would permit deportation for such a relatively minor infraction; minor, that is, when weighed against the consequences of removal from Hong Kong. But what Mr Harris in his indignation appeared to overlook is that quantities considered in the abstract reveal little. The real issue is the nature of the item being quantified. In this regard, our courts have held that even a very small quantity of the drug called ice can having a very deleterious affect. In perhaps the leading case on the subject, Attorney General v. Ching Kwok-hong (1991) 2 HKLR 125, Silke V.P. said :

"One-tenth of a gram of ice without re-use would be sufficient for three to four of what in the vernacular are called 'hits'. An ice addict needs far less of the substance than does a heroin addict. Ice call be used and re-used."

He continued, in assessing a guideline for sentence :

"We are persuaded that ice is a drug to be taken very seriously indeed. In ways it is more deleterious to its abusers, and to society in general, than is heroin ...

In our judgment, in that sliding scale, because of its highly addictive nature, its ease of manufacture and its intense effect, ice comes in at the same level, if not slightly above heroin."

24. In addition to the highly addictive nature of the drug must, of course, be added the fact that this was the applicant's second conviction for a drug offence, he having been warned that a second conviction would result in his permission to stay being re-assessed.

25. The fact of the applicant's arrest on 2 November 2000 became known to the Director and a letter dated 17 November 2000 was sent to the applicant requesting that both he and his mother, his sponsor, present themselves for an interview. There was no response to that letter and a second letter was sent on 8 December 2000.

26. On 18 December 2000, the applicant, who was on bail, was due to attend court in respect of the criminal charge against him of possession of dangerous drugs. But he did not attend court that day. In short, he breached his conditions of bail. A warrant for his arrest was issued.

27. The same day that the applicant failed to attend court, his agent contacted the Immigration Department to make an appointment. That appointment was set for 20 December 2000.

28. On that date, the applicant went to the Immigration Department and presented two statements explaining why he had not earlier sought an extension of his dependency visa. The one statement (in translation) read :

" I should have come to the Immigration Department before 29 October 1999 to apply for the extension of my visa and should have obtained it two weeks later. However, as my passport was lost, I could not come to your office to collect the visa. Not until August 2000 [nine months later] could I finally find my passport. Not knowing what to do then, I had to find a friend for help before I could finally come to your Department on 19 October 2000 to process the extension application for staying in Hong Kong. Please accept my apologies and consider my application. Thank you."

29. As I have said, a warrant of arrest had been issued for the applicant's failure to attend court and he was arrested at the Immigration Department on the day that he attended for his interview; that is, on 20 December 1999.

30. Nearly a month later, on 18 January 2001, the applicant pleaded guilty to and was convicted of two offences. As I have said earlier, the first offence was one of possession of a dangerous drug, contrary to s.8(1) of the Dangerous Drugs Ordinance, the second offence was breaching a condition of his stay, contrary to s.41 of the Immigration Ordinance. Conviction of the first offence made the applicant liable to imprisonment for three years. Conviction of the second offence made him liable to imprisonment for two years.

31. On 8 February 2001, the Director of Immigration advised the applicant in writing that he was considering applying for the applicant's deportation pursuant to s.20(1)(a) of the Immigration Ordinance on the basis that his two criminal convictions had led him to conclude that the applicant's 'continued presence in Hong Kong poses a threat to law and order'.

32. The applicant submitted representations to the Director of Immigration requesting not to be deported. A memorandum from the Director of Immigration to the Director for Security dated 11 April 2001 summarises the applicant's representations in the following terms :

"(a) He has no friends or relatives in Thailand. Although his natural father and eldest brother are staying in Thailand, he has lost contact with them since he was eight years old;

(b) All other members of his family are now living in Hong Kong. He wants to live here with them, to take care of his aged mother and the children of his sister; and

(c) Although he only works as a casual labourer in Hong Kong, it is considered a decent job and he can make his living here. If he is deported to Thailand, he has to start everything from the beginning and it will be difficult for him to find a job or a place to live. He requests for a chance to remain in Hong Kong."

33. The applicant's mother made a plea on behalf of her son, saying that he was essentially a good person but lacked the wit to fend for himself in Hong Kong. In this regard, she said :

" I asked the police why they arrested my child again. They told me that he had failed to show up for his court case trial on the date of 18th. When I asked my child why he had not attended his court hearing, my child told me that he did not know how to go, therefore he did not go and he thought it probably was not very important and would not be any problem. His brain does not think smart like a normal person's brain, he is unable to make good decisions. He is mentally handicapped. When I visited him in prison and explained to him that he had committed several offences, he was scared and asked me to help him. He did not know how to go to the court and did not know how to do. He could not think therefore he did not go. But in fact, my child is a good person. His brain does not think very much but he has never hurt everyone."

In her plea, the mother said that, if the applicant was allowed to remain in Hong Kong, she and the other family members would provide all necessary support for him. She said that if her son was deported to Thailand, there would be nobody to assist him there other than his 80 year-old grandmother who was herself dependant on others.

34. As the mother had made assertions concerning her son's mental capabilities, the Director of Immigration sought advice from the medical officer at the prison where the applicant was completing his sentence. The Director was informed that the applicant himself had not sought treatment in respect of any mental problems and that there was nothing on record to suggest that he was mentally handicapped in any way. It seems, however, on a reading of the mother's letter, that she was not suggesting that her son suffered from any mental illness as such or was handicapped by being retarded but rather that he was slow witted and in that regard had problems coping - without the active assistance of his family - with the crises that had faced him.

35. Further to the recommendation by the Director of Immigration, the Secretary for Security made an order for the applicant's deportation. It was made pursuant to s.20(1)(a) of the Immigration Ordinance, s.20(1) reading -

" The Chief Executive may make a deportation order against an immigrant if -

(a) the immigrant has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years; or

(b) the Chief Executive deems it to be conducive to the public good."

An 'immigrant' is defined in s.2 of the Ordinance as meaning any person who is not a Hong Kong permanent resident.

36. In terms of s.55 of the Immigration Ordinance, the Chief Executive (or the Secretary for Security acting in terms of her delegated power) may rescind a deportation order. The applicant asked for a rescission of the order against him but that course of action was not recommended by the Director of Immigration. In his recommendation to the Secretary for Security, the Director remained of the view that the applicant was a repeat offender whose offences were serious in nature. He was of the view that it would not be 'in the public interest' to allow the applicant to remain in Hong Kong. As to any hardship that the applicant would suffer if deported, he also remained of the view that, 'being young and able-bodied' he would not suffer undue hardship in re-establishing himself in his home country.

37. By letter dated 18 May 2001, the Secretary for Security informed the applicant that she had reviewed his case but, having considered all the circumstances, was unable to accede to his request to rescind the order for deportation.

The Secretary for Security's reasons for ordering deportation

38. In her affidavit of 7 October 2002, the Secretary for Security set out what she considers to be her delegated responsibilities in terms of s.20(1) of the Immigration Ordinance and why it was in the present case that she made her decisions in respect of the applicant.

39. As to her understanding of the nature of s.20(1) of the Immigration Ordinance, the Secretary for Security said :

"The power to deport aliens prior to 1st April 1972 when the new Immigration Ordinance Cap 115 came into force lay in the Governor in Council on the basis that the continued presence of the proposed deportee in Hong Kong was incompatible with or not conducive to the public good. That ground remains in section 20(1)(b). The rationale of section 20 (1)(a) is also based upon what is conducive to the public good and the legislature has set a defined limit in terms of commission of a serious offence by the proposed deportee which triggers the availability of the deportation power. The criterion for a serious offence is that it is one punishable with imprisonment for not less than two years."

40. In respect of the applicant's assertion that her decision to deport the applicant for life was irrational, the Secretary for Security commented :

"I am well aware that the law provides for deportation for periods less than life. When the Director recommends that there be deportation 'for life' or even if there is no recommendation 'for life' or any other period, it is my practice to consider whether any other period is appropriate. In my view if the public protection is from a person who has committed an offence or offences it will be likely that I will favour 'for life'. This reflects both the continuing need for public protection and the fact that deportation is not a punishment. There is power to seek a rescission of the deportation order if the deportee is no longer a threat to public order or for any other reason. The fact remains that an alien deportee has no claim upon Hong Kong for re-entry. In such circumstances if a person I ordered to be deported for a short period it is quite likely to be misunderstood as a representation that he or she will be allowed to re-enter at the end of that period."

41. In respect of her reasons why she considered the applicant should be deported, the Secretary for Security stated :

" I was satisfied on the facts of his conviction and the punishment imposed that the Applicant had come within the ambit of the deportation power of section 20(1)(a) of the Immigration Ordinance and that the offence of possession of a dangerous drug was a serious one which in the public interest required his removal from Hong Kong for life for the protection of Hong Kong and its residents." [my emphasis]

In respect of relevant mitigatory factors, she said :

" I am sensitive to the fact that most of the Applicant's immediate family members live in Hong Kong and that he had resided in Hong Kong since July 1991 and for a considerable period of time. I also take into account the disruption to the Applicant and his family and the challenges that he will face in Thailand."

She continued :

" The Applicant is a young man and should have little difficulty in re-entering Thai society. Although the Applicant claimed that he needed to take care of his aging mother, he provided nothing to back up this claim. Furthermore, in none of her submissions did the Applicant's mother claim that she relied upon the Applicant. Rather, the opposite appeared to be the case, the mother submitted that she would change the Applicant to be a good person. Nor did the Applicant appear to earn sufficient income to substantially contribute to the family. Therefore, although I was sensitive to the fact that the Applicant would be removed from most of his immediate family members in Hong Kong, this factor did not outweigh my concerns for the safety of Hong Kong and its residents."

As to the applicant's mental condition, the Secretary for Security noted :

"The medical officer at the Hei Ling Chau Correctional Institution, where the Applicant served his sentence, had been consulted by the Immigration Department. The Immigration Department was told that they had found nothing to suggest that the Applicant was mentally handicapped nor had he requested any treatment for mental problems.

The Secretary for Security concluded by saying :

"However, on balance, I was not satisfied that those factors [the factors of potential hardship] outweighed the need to protect Hong Kong and its residents. The Applicant had previously been convicted of a similar offence and had been given a chance at that time. The second conviction confirmed that the Applicant did not respect the laws of Hong Kong and as an alien should not be allowed to remain here."

42. Concerning her decision not to rescind the deportation order, the Secretary for Security said in her affidavit that the applicant had provided no new material or information to support his request.

A consideration of the nature and extent of the Secretary for Security's delegated powers

43. In the present case, it is not disputed that the exercise of discretion conferred by s.20(1)(a) of the Immigration Ordinance was lawfully brought into being. The applicant was (and remains) an immigrant; that is, a person who is not a Hong Kong permanent resident, and he has been found guilty of two criminal offences, both of which are punishable on summary conviction with imprisonment for not less than two years. What is disputed, however, is the manner in which the discretion, lawfully activated, has been exercised by the Secretary for Security.

(a) Before granting a deportation order must there be a threat to law and order?

44. In Singh and Others v. Secretary for Security (1996) 6 HKPLR 440, Keith J (as he then was) considered the manner in which the discretion conferred by s.20(1)(a) may lawfully be exercised. Mr Harris, for the applicant, relied heavily on that judgment, arguing that it defines the manner in which in all but exceptional cases the discretion must be exercised.

45. The applicants in that case were Indian nationals who had been sentenced to imprisonment for offences of wounding. There was intelligence available to the Secretary for Security that the applicants were all members of a gang who, if released back into Hong Kong society, would seek revenge on another gang with whom there had been a long-standing feud. It was believed that they therefore presented a threat to law and order, that threat being one of gang fighting on the streets. The applicants, however, had all lived in Hong Kong for a number of years and all of them were married with children. It followed that their deportation would visit hardship not only on themselves but also on innocent parties; that is, their wives and children. For the applicants, it was argued inter alia that the Secretary for Security's exercise of discretion in terms of s.20(1)(a) had been unlawful in that there had been a failure to take into account the hardship that would be visited not only on the deportees but also on their families.

46. Within those factual parameters, Keith J came to a number of findings, more particularly

(a) That the purpose of a deportation order under s.20(1)(a) is to remove from Hong Kong an immigrant who poses a threat to law and order;

(b) That, in exercising a discretion under s.20(1)(a), the adverse effect on that person and on innocent third parties, in particular his or her family, is a relevant consideration;

(c) That accordingly "the making of a deportation order involves striking a balance between the threat which is posed by the potential deportees continued presence in Hong Kong and the hardship which deportation would cause to him and innocent third parties" : see page 450 of the judgment.

47. It will be seen that the applicant's first challenge in these proceedings - that the Secretary for Security failed rationally to balance the threat posed by his continued presence in Hong Kong and the hardship which deportation would cause to him and innocent third parties - is taken in almost identical terms from Keith J's finding cited in paragraph 46(c) above.

48. I have stressed that Keith J came to his findings in the context of a specific factual matrix. Within that matrix, I am in respectful agreement with his findings. I confess, however, that, on a boarder canvass of principle applicable to all cases in which the discretion contained in s.20(1)(a) is exercised, I am concerned that too much emphasis may be placed by litigants on the statement that the purpose of a deportation order under s.20(1)(a) is to remove an immigrant who poses a threat to law and order. I am concerned that it may be argued as it has been in the present case that in all cases, unless a threat to law and order can be identified, a decision to deport pursuant to s.20(1)(a) will be unlawful. In my view, while invariably no doubt a threat to law and order on the part of a potential deportee will be a relevant factor, it is going too far to say that, in looking to why, if at all, a person should be removed from Hong Kong, the exercise of discretion pursuant to s.20(1)(a) is to be restricted to this one matter. The plain wording of the legislation cannot be so fettered.

49. This is not to suggest that Keith J came to a conclusion that the exercise of discretion pursuant to s.20(1)(a) is to be fettered in the manner I have described. I am satisfied he did not. It is correct that he defined the purpose of a deportation order in the following general statement (at page 449) :

"The purpose of a deportation order under s 20(1)(a) is to remove form Hong Kong foreigners who poses a threat to law and order."

But while that definition met the factual imperatives of the case before him, it is important to note that Keith J did not look to supporting authority nor to an analysis of the legislation itself in order to make it a principle of general application. While a number of common law authorities were cited, they were employed to support the finding that, in the exercise of a discretion pursuant to s.20(1)(a), hardship is (or may be) a relevant factor to be placed into the scales. In this regard, Keith J said (at page 449) :

" If I did not have local practice and high authority from overseas to guide me, I suspect that my flight path might have taken me towards excluding hardship as a relevant consideration. But practice and precedent suggest otherwise. The practice in Hong Kong is for hardship to be taken into account. I say that because in this very case the Secretary for Security has himself said on affidavit that hardship was one of the considerations taken into account. As for precedent, there are two lines of relevant authority:

(i) In a series of cases in the Court of Appeal in England, it has been held that when a judge at the conclusion of a criminal trial is considering whether to recommend a convicted defendant for deportation, he is obliged to take into account the effect which deportation would have on (a) the defendant himself (see R v Walters (1977) Current Sentencing Practice, K1-5HO1 referred to in Blackstone's Criminal Practice 1993 #E18.3), and (b) innocent third parties, in particular his family (see R v Nazari [1981] WLR 1366, R v Cravioto (1990) 12 Cr App R (S) 71 and R v Odendaal (1992) 13 Cr App R (S) 341).

(ii) It has been held that administrative decisions which effect the family unit in general, and children in particular, and have consequences for their future welfare should take the effect of those decisions on them into account. Gaudron J in the High Court of Australia in Minister for Immigration and Ethnic Affairs v Teoh (1994-95) 183 CLR 273 reached that view by a trail mapped out by the common law, but both she, other members of the court in that case and the Court of Appeal in New Zealand in Tavita v Minister of Immigration [1994] 2 NZLR 257 also reached that view by the application of international conventions.

It is plain, therefore, that I would be swimming against the tide of modern authority if I ruled that hardship was not a relevant factor to be taken into account in determining whether a deportation order should be made under s 20(1)(a)."

It would be wrong, therefore, to suggest that Keith J looked to the English scheme in order to suggest that, as a matter of general principle, the purpose of a deportation order made under s.20(1)(a) is restricted to the removal from Hong Kong of immigrants who pose a threat (i.e. a continuing threat) to law and order. In canvassing English authorities he was looking to the question of hardship.

50. In looking generally to the manner in which the exercise of discretion pursuant to s.20(1)(a) of the Immigration Ordinance may lawfully be exercised, it is helpful, I think, to look first to the English statutory scheme and to contrast it with the Hong Kong scheme. The core of the English scheme is to be found in s.3(5) and (6) of the Immigration Act 1971 and is to the following effect -

"(5) A person who is not a British citizen is liable to deportation from the United Kingdom if -

(a) the Secretary of State deems his deportation to be conducive to the public good; or

(b) another person to whose family he belongs is or has been ordered to be deported.

(6) Without prejudice to the operation of subsection (5) above, a person who is not [a British citizen] shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so."

51. The English provisions are to be contrasted with s.20(1) of the Hong Kong legislation which, for convenience, I cite again :

" The Chief Executive may make a deportation order against an immigrant if -

(a) the immigrant has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years; or

(b) the Chief Executive deems it to be conducive to the public good."

52. The Hong Kong legislation has no equivalent to s.3(6) of the English legislation which states that an immigrant (to use the Hong Kong terminology) who has attained the age of 17 is liable to deportation by the order of the Secretary of State if -

(a) he has been convicted of an offence for which he is liable to imprisonment, and

(b) on his conviction he is recommended for deportation by a court of competent jurisdiction, invariably the court which has heard the criminal matter.

53. It will be seen that s.3(6) of the English scheme involves a two stage process in bringing about a deportation. First, a court, after a 'full inquiry' into the case (see, for example, Nazari [1980] 1 WLR 1366 at 1373) must make a recommendation that a convicted person be deported. Second, the Secretary of State must then decide that an order should be made. The two exercises of discretion are not identical. The exercise of discretion by the courts is a judicial exercise. The exercise of discretion by the Secretary of State is an executive exercise. As was said in Nazari by Lawton LJ, all a court does when it makes a recommendation for deportation is to indicate to the Secretary of State that in the opinion of the court it is to 'the detriment of the country' that the offender should remain; the final decision is for the Secretary of State who may take into account a broader range of matters such as the personal circumstances of the person concerned and the political situation in the country to which he will have to be returned.

54. As to the exercise of discretion by the English courts pursuant to s.3(6) in determining whether or not a recommendation should be made, the underlying principle was stated as far back as 1980 by Lawton LJ in Nazari :

"First, the court must consider ... whether the accused's continued presence in the United Kingdom is to its detriment. This country has no use for criminals of other nationalities, particularly if they have committed serious crimes or have long criminal records. That is self-evident. The more serious the crime and the longer the record the more obvious it is that there should be an order recommending deportation. On the other hand, a minor offence would not merit an order recommending deportation."

55. In Spura (1988) 10 Cr App R (S) 376, a case concerning the deportation from the United Kingdom of an EEC citizen, Henry J (in the Court of Appeal) reviewed the authorities, particularly as they related to a relevant EEC directive, and concluded, (as expressed in the headnote) :

" Both the European Directive and the principles of natural justice required that before a recommendation was made, there should be a full enquiry into the circumstances and reasons should be given for the recommendation. While there might be cases where the test might be satisfied by something less than a propensity for law breaking, for the purpose of the present case what had to be shown to justify the recommendations was conduct on the part of the defendant that showed a genuine threat of continued law breaking."

While the test applied in that case was whether the potential deportee showed a 'genuine threat of continued law breaking', it was conceded that this was not the exclusive test.

56. In Cravioto (1990) 12 Cr App R (S) 71, at 75, Macpherson J (in the Court of Appeal) adopted the same test, subject to the caveat that it was the appropriate test in that particular case :

"The balance that has to be struck in this case, as we see it, is between that possibility that he may commit further crime balanced against the harm that may be done to innocent third parties." [my emphasis]

57. In Okelola (1992) 13 Cr App R (S) 560, at 562, French J (in the Court of Appeal) looked not specifically to whether, in recommending deportation, the Court of First Instance should have identified a threat to law and order but instead returned to the wording employed by Lawton LJ in Nazari; namely, whether continued presence would be to the United Kingdom's detriment :

" In the judgment of his Court, although the offences of which this appellant was found guilty demonstrate, it is true, a reprehensible lack of honesty and principle on his part, especially bearing in mind that the professes to be a minister of religion, none the less he has no previous history of offending apart from the minor matter to which reference has been made, nor can it be said that by reason of the offences of which he was found guilty his continued presence here would be to this country's detriment." [my emphasis]

58. It is to be emphasised, of course, that, even if the test of balancing a threat to law and order against harm to be done to the potential deportee and innocent third parties has a central place in the exercise of a judicial discretion by the English courts, the Secretary of State, who must make the final decision, is not so restricted. In Goremsandu v. Secretary of State for the Home Department [1996] Imm AR 250, at 254, Stuart-Smith LJ (in the Court of Appeal) contrasted the difference between the exercise of judicial and executive discretion under the English scheme :

" In my judgment, it is open to the Secretary of State to decide that some offences are so serious, in the sense that they are sufficiently repugnant to the generally accepted standards of morality, that the continued presence in the community is unacceptable, irrespective of a propensity to commit further offences of a similar character. If that is so, the only question that arises is whether a decision of the Secretary of State and the Immigration Appeal Tribunal can be attacked on the grounds of Wednesbury unreasonableness ..."

59. In contrast to the English scheme, the Hong Kong scheme makes no provision for a two stage process. In my judgment, it is clear from a reading of s.20(1)(a) that the Hong Kong legislature has itself defined what offences are serious enough to merit deportation; namely, offences punishable with imprisonment for not less than two years. The English scheme - s.3(6) - speaks only of an offence punishable by imprisonment; no term of imprisonment is specified. In Hong Kong, therefore, the legislature having defined criminal conduct of sufficient seriousness to merit deportation, the exercise of executive discretion pursuant to s.20(1)(a) is triggered by a conviction for any such conduct.

60. But how lawfully may that executive discretion be exercised? As I have said, it is not to be restricted to balancing a threat to law and order against harm to the individual and his or her family. If that balancing exercise is one which has to be carried out by the courts under the English scheme, it is not certainly not one which has to be carried out by the Secretary of State : his executive discretion is far broader. Why then should executive discretion in Hong Kong be restricted to the parametres of judicial discretion under the English scheme? A reading of our legislation can lead to no such conclusion. In my judgment, the exercise of executive discretion pursuant to s.20(1)(a) must be governed by the requirements of public policy. Considered in that broad perspective, the question may be asked : do Hong Kong's best interests justify an order for deportation? Or, to express it another way, are there grounds in the public good to justify such an order. See, for example, MacDonald's Immigration Law and Practice (5th Ed.), page 713 at 15.12 and 15.13.

61. In the first instance judgment in Bahadur v. Secretary for Security, unreported HCAL 18/1999, at 22, Stock J (as he then was) effectively, if indirectly, stated the principle that the many and varied factors that fall under the umbrella of the requirements of public policy are to be taken into account when a determination is to be made pursuant to s.20(1)(a) :

" In the present case we have a person who had no right of abode in Hong Kong; who was permitted to enter for a limited purpose, namely, employment, and was told in December 1996 that that purpose was at an end. He was therefore in Hong Kong for only so long as the immigration authorities would allow, and it was a clear condition of the permission given that he should take no employment. Yet he not only breached that condition, but he also practised a fraud on the immigration authorities. How can it then be said that no reasonable person exercising powers under the Immigration Ordinance in this small territory with peculiar and well known immigration problems, and with many thousands wishing to join their families who are living in Hong Kong how could it be said that no reasonable Secretary for Security could have said to this man : you are no longer welcome in Hong Kong, and we do not want you to come back?"

62. Compassionate circumstances relevant to the potential deportee must, of course, be taken into account. The requirements of public policy demand no less. But the point at issue is that the exercise of executive discretion pursuant to s.20(1)(a) is not restricted on the one side of the scales to considering the 'threat to law and order' posed by a potential deportee.

(b) The level of scrutiny to be employed by the courts

63. In the course of his submissions, Mr Harris was at pains to emphasis the profound consequences that a deportation of the applicant will have upon him personally. The applicant, although he works as a casual labourer, is emotionally dependent on his family in Hong Kong while he has lost touch with his immediate family in Thailand : his father and one brother. Even though he may not be classified medically as being mentally handicapped, his lack of worldly wit will render him that much more vunerable. But it is also to be remembered that the applicant is physically healthy, unmarried and without children. He is returning to the country where he grew up.

64. In the circumstances, in my judgment, the applicant being an immigrant with no claim on Hong Kong, there has been no substantial interference with the applicant's human rights sufficient to warrant a heightened scrutiny by the courts according to the test distilled in R v. Ministry of Defence, ex parte Smith [1996] QB 517, at 554 :

"The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above."

65. That the conventional Wednesbury test is to be employed has been stated by the Court of Appeal in Bahadur v. Secretary for Security [2000] 2 HKLRD 113, on appeal from the first instance judgment of Stock J, when, referring to the test stated in ex parte Smith (supra), Keith JA said (at 125) :

" We have serious doubts as to whether this lower threshold applies to decisions made in the immigration or deportation fields. That is because s.11 of the Hong Kong Bill of Rights Ordinance (Cap.383) excludes the application of immigration legislation from its ambit, and s.12 limits the operation of art.9 of the International Covenant on Civil and Political Rights in its application to deportation decisions. In any event, even if the lower threshold applies, ... it has not been engaged in the present case. That is because the deportation order would not have involved an interference with the applicant's human rights, ie the fundamental right to a family life."

66. In the circumstances, I am satisfied that, in looking to the decisions of the Secretary for Security in the present case, conventional Wednesbury principles apply.

(c) Must there be always an assessment of an appropriate period of deportation?

67. It has been contended that the decision to deport the applicant for life as opposed to some lesser period was a decision which no reasonable decision maker could have made. In this regard, Mr Harris, for the applicant, made extensive reference to the judgment of the Federal Court of Australia, General Division, in Minister for Immigration and Ethnic Affairs v. Pochi 31 ALR 666, particularly to citations taken from common law authorities concerning the often harsh consequences of deportation. In this latter regard, the Federal Court cited with approval the words of Douglas J, speaking for the majority of the US Supreme Court in Bridges v. Wixon (1945) 326 US 135 :

" ... Though deportation is not technically a criminal proceeding, it visits a great hardship on the individual and deprives him of his right to stay and live and work in this land of freedom. That deportation is a penalty at times a most serious one cannot be doubted."

That being the case, said Mr Harris, and the harsh consequences being so obvious in the present case, the Secretary for Security had to make it a material part of her weighing exercise whether a specific period of deportation would better meet the justice of the matter than a deportation for life. As Mr Harris expressed it : "the penalty should fit the crime".

68. But, while the consequences of deportation may, depending on the circumstances of each case, be described as penal, it has been said on numerous occasions that deportation does not constitute punishment for an offence. See, for example, Attorney-General for Canada v. Cain & Gilhula [1906] AC 542 (cited with approval in Pochi at 669) :

" The power of expulsion is in truth but the complement of the power of exclusion. The deportation of an unwanted immigrant (who could have been excluded altogether without any infringement of right) is an act of the same character: it is a measure of protection of the community from undesired infiltration and is not punishment for any offence."

69. In the first instance judgment of Bahadur, Stock J dealt with essentially the same argument as that submitted by Mr Harris. In rejecting the argument, he observed :

" It is said that a decision could have been made to deport the applicant for but a few months and that a life's deportation was unnecessary. This, again, is unrealistic and ignores the immigration status of the applicant at the date of his deportation and the actual circumstances of this case. In the normal case of someone whose deportation is warranted because he has committed a criminal offence in Hong Kong, deportation is not a sentence or punishment which is there to fit the crime. Deportation is triggered because the territory has decided that it no longer welcomes that particular visitor, wants him to leave, and does not want him as a visitor again. Whilst it is open to the host territory to say to a visitor in a certain instance that it requires the visitor to leave only for so long as a particular threat exists, that is an event which will arise unusually. A deportee is, as a rule, not entitled to expect some finite period to his deportation according to the circumstances of his case. Normally, he is not welcome back, and that means what it says. It is open to him to ask in the future to be allowed to come back (section 55), and he is allowed to ask that the host country holds its hand on his proposed expulsion (section 54), but in the absence of the most exceptional circumstances, a person in the applicant's position cannot be heard to say that he should have been deported for only six months, or 12 months."

[my emphasis]

On appeal, this dicta was approved, Keith JA saying (at pages 127/128) :

"... What the Judge was saying was that deportation is not a temporary measure. It is not like a sentence of imprisonment, at the end of which the offender is free to resume his normal life. Deportation is the consequence of a decision that an immigrant is no longer welcome in Hong Kong and will not be welcome in Hong Kong in the future. Accordingly, although there is power to deport someone for a limited period, that is not a power which would normally be exercised ...

Again, we agree."

Consideration of the individual grounds of challenge

70. Having set out the history of this matter and stated what I consider to be the applicable principles of law, I have little difficulty in determining the several grounds of challenge advocated by Mr Harris. Whatever sympathy there may be for the applicant's personal predicament he has after all lived in Hong Kong now for more than 10 years - I can find no substance in any of the grounds of challenge. I shall briefly state my reasons.

(a) First ground

71. It was contended that there exists such an imbalance between the threat posed by the applicant's continued presence in Hong Kong and the hardship which deportation would visit on him and innocent third parties that the decision to deport him was for that reason not open to a rational decision-maker. But, as I have said earlier - see paragraphs 44 to 62 supra - the test is not restricted to weighing the threat to law and order against the hardship which would be visited on the deportee and innocent third parties. The test is broader. Once the exercise of discretion under s.20(1)(a) is activated, the Secretary for Security asks herself whether Hong Kong's best interest justify an order for deportation. In determining that question, all relevant factors are to be considered. Potential hardship to an applicant and innocent third parties will invariably be one of the factors that the Secretary for Security takes into account. She did so in the present case. But as she said, she was not satisfied that the factors bearing on hardship 'outweighed' the need to ensure the protection of Hong Kong and its residents. It was not an easy decision. But, as Stock J observed in Bahadur :

" The immigration authorities in Hong Kong are daily faced with difficult immigration decisions which involve the removal of those who have family members in Hong Kong. Each case has its own story, and its own genuine compassionate circumstances, and many decisions will effect the splitting of families or the withholding of children from the care of their parents."

72. Looking to all the relevant factual issues, I fail to see how it can be said that, in weighing the best interests of Hong Kong against potential hardship to the applicant, the scales were so manifestly in favour of the applicant that the decision to order his deportation was Wednesbury unreasonable.

(b) Second ground

73. The second ground is alternative to the first. It is to the effect that the imbalance posed by the applicant's continued presence in Hong Kong and the hardship which deportation would visit on him and innocent third parties was such that it was not open to a rational decision-maker to deport him for life.

74. The principles to be applied in considering whether deportation should be permanent or for a finite period have also been considered earlier in this judgment : see paragraphs 67 to 69 supra. As I read it, it is now settled that deportation is the consequence of a decision that a person in the position of the applicant is no longer welcome in Hong Kong and will not be welcome in the future. Accordingly, although there is power to deport someone for a limited period, it is a power not normally exercised; indeed, as Stock J expressed it in Bahadur in the absence of exceptional circumstances, a person in the applicant's position cannot be heard to say that he should have been deported for a limited period only.

75. Do exceptional circumstances exist in the present case? The Secretary for Security spoke of none and I confess that I can find none that take the matter so far our of the normal that, in a mitigatory sense, they must be described as exceptional.

(c) Third ground

76. The third ground alleges that the decision of the Secretary for Security was founded on a material mistake of fact. The mistake flows from the suggestion that the decision was 'based' on a comment made in an Immigration Department memorandum that the applicant had shown no remorse for his offences.

77. Assuming for the purposes of argument that this comment did constitute a material mistake of fact, it must nevertheless be demonstrated that the comment was before the Secretary for Security when she made her decisions. But the comment was never before her. It was a comment contained in an internal memorandum which those tasked with advising the Secretary for Security chose not to refer to in their advice. The evidence shows that the Secretary for Security was entirely ignorant of the comment when she made her decisions.

78. Mr Harris argued that, by some means of bureaucratic osmosis, the comment nevertheless so coloured the general advice given that to all intents it was therefore before the Secretary for Security. On a reading of the relevant papers, I can find nothing in this argument.

(d) Fourth ground

79. The fourth ground is focused on the circumstances surrounding the applicant's conviction under s.41 of the Immigration Ordinance for remaining in Hong Kong without the permission of the Director. Mr Harris contended that the Secretary for Security, in order to reach a rational decision, was obliged to have regard to certain of these circumstances but failed to do so.

80. Mr Harris submitted that it was incumbent upon the Secretary to take into account the fact that the applicant's application for an extension of stay made on 6 September 1999, while never finally approved, had been processed to the point where in substance permission to remain had been granted. The existence of this permission, he said, placed in doubt the correctness of the applicant's conviction. It is true that, as part of the internal processing of the applicant's application, his file was endorsed to the effect that approval 'in principle' had been granted. But, for the reasons given earlier see paragraphs 14 to 17 supra - I do not consider that this preliminary decision 'in principle' amounted in any way whatsoever to a permission to remain granted by the Director to the applicant. That being so, I can find no reason why the endorsement on the applicant's file should have placed his conviction in doubt or why the Secretary for Security should have had the matter brought to her attention before reaching her decision to deport the applicant.

81. Mr Harris also referred to the fact that on 19 October 2000 the applicant, having been in Hong Kong without permission for some nine to 10 months, submitted an application to be allowed to remain. That application, said Mr Harris, was under consideration on 2 November 2000, the date of the applicant's alleged offence of remaining unlawfully in Hong Kong. It is 'normal' when such applications are made, said Mr Harris, for the Immigration Department to permit the applicants to stay in Hong Kong pending determination of the applications. Under 'normal' procedures, the applicant would therefore have had permission to remain, a fact which of itself placed his conviction for remaining unlawfully in Hong Kong in doubt. That too, he suggested, should have been made known to the Secretary for Security before she reached her decision.

82. There was no evidence before me as to what is or is not 'normal' in the circumstances described by Mr Harris. But what is clear is that, having failed to attend at the Immigration Department on 20 September 1999 to complete the necessary formalities, the applicant was warned in writing that unless he presented himself within two weeks his application would be treated as cancelled. He failed to answer that warning. From about 15 December 1999 he was therefore unlawfully in Hong Kong and if he wished to legalise his position he had to commence proceedings de novo, as if seeking his original permission to land. The fact that some 10 months after he began living unlawfully in Hong Kong he submitted a fresh application was manifestly not treated by the Director of Immigration as automatically, if only provisionally, resuscitating his permission to remain and I am at a loss to determine how, in the circumstances, such a form of automatic resuscitation could be implied. To suggest any such implication would mean that anybody unlawfully in Hong Kong, no matter for how long, would be able to claim automatic provisional permission to remain simply by lodging an application. The proposition, in my view, needs only to be stated to be refuted.

(e) Fifth ground

83. This ground is simply an extension of the fourth ground, the proposition being that, in concluding that the applicant had committed an offence under s.41 of the Immigration Ordinance, the Secretary for Security was acting on a mistake of fact. I reject that contention. The applicant was found guilty of the offence in the magistracy; the conviction was not appealed and therefore stands. The Secretary for Security was entitled to accept the fact of the conviction. It was not for her to go behind it. In any event, on the grounds propounded by Mr Harris, I can find no reason to conclude that the conviction was anything other than correct in law.

Conclusion

84. For the reasons given, the application is dismissed. Costs are awarded to the respondent.