UBAMAKA EDWARD WILSON v. THE SECRETARY FOR SECURITY AND ANOTHER

CACV138/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 138 OF 2009

(ON APPEAL FROM HCAL NO. 77 OF 2008)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Stock VP (givng the Reasons of the Court) :

1.  On 19 November 2010, we handed down judgment in this appeal and ordered that the appeal be allowed to the extent that we set aside the order of Reyes J which quashed the deportation order made against the applicant.

2.  By Notice of Motion dated 17 December 2010, the applicant applied for leave to appeal from our judgment pursuant to section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, on the ground that the questions involved in the appeal are ones which, by reason of their great, general public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

3.  At the conclusion of the hearing, we refused leave and indicated that we would hand down our reasons in due course.  These are our reasons.

4.  The Notice of Motion poses a total of 11 questions as the basis for leave but, before us, Mr Pun on behalf of the applicant proposed their substitution by the following questions:

“(1) Is the trying and imprisoning of a person on account of conduct in respect of which that person has already been tried and imprisoned for a substantial period of time capable of constituting cruel, inhuman or degrading treatment or punishment (‘CIDT’) within the meaning of Art 3 of the Hong Kong Bill of Rights (‘HKBOR’), under s.8 of the Hong Kong Bill of Rights Ordinance Cap. 383 (‘HKBORO’) and/or Art 7 of the International Covenant on Civil and Political Rights (‘ICCPR’) and/or customary international law and/or the common law of Hong Kong?

(2) Does a real practical risk of being subjected to CIDT and/or double jeopardy (whether or not it amounts to CIDT) in another jurisdiction render a person’s deportation to that jurisdiction pursuant to the Immigration Ordinance, Cap. 115 unlawful (including irrational in the public law sense)?

(3) In particular:

(a) Does Art 39 of the Basic Law, having regard to the UK reservation (‘the Immigration Reservation’) made by the UK Government when it ratified the ICCPR in 1976 permit, in material part, the full protection of the ICCPR or is the protection permitted restricted by the wording of the Immigration Reservation?

(b) Is the interpretation and/or legality of s.11 of the HKBORO affected by the answer to question (a) and, if so, how?

(c) Whatever the answer to question (a), do Art 14(7) of the ICCPR and/or Art 11(6) of the HKBOR protect against prosecution in another state?  If so, is such protection limited to prosecution for the same offence or for any offence arising out of the same facts?”

5.  The first question is in our judgment, not suitable as a basis for leave since it was not suggested by this Court that there could not be cases where the trial and imprisonment of a person on account of conduct in respect of which he or she has already been tried and imprisoned for a substantial period was capable of constituting cruel, inhuman or degrading treatment.  Indeed, in paragraph 89, Fok JA specifically said that the Court:

“ .... would not wish to rule out the possibility that, on the facts of a particular case, the mental suffering incidental to the imposition of a lawful sanction imposed in contravention of the rule against double jeopardy might be found to constitute inhuman treatment. Ultimately it may be a matter of fact and degree whether the imposition of a lawful sanction in such circumstances does amount to inhuman treatment ... ”.

6.  Furthermore, on the facts of this case, we do not think that the applicant’s contention that his deportation would subject him to cruel, inhuman or degrading treatment is reasonably arguable.  Finally, an answer to the question, even if “yes”, will be of little practical value since each case would have to be examined on its own particular facts.

7.  The second question covers two quite separate issues: the first, the risk of subjection to cruel, inhuman or degrading treatment and the second, the risk of subjection to double jeopardy.  The first limb of the question ignores the fact that this case turned upon the question whether, on its own facts, the deportation of the applicant would subject him to the real risk of cruel, inhuman or degrading treatment.  We found that on the facts no such risk was established.  Accordingly, the general question posed does not arise.

8.  As for the second limb of the question posed, we held that (a) notwithstanding the practical risk of double jeopardy, the act of deporting the applicant would not infringe his rights under ICCPR article 14(7) or BOR article 11(6); (b) double jeopardy could not be relied upon at common law to resist a deportation order; and (c) the decision to remove the applicant from Hong Kong to Nigeria was not irrational in the public law sense (issues 2, 4 and 5 in the judgment).  We are of the opinion that the applicant’s contrary contentions are not reasonably arguable.  In any event, the generality of the question is not apt as a basis for leave.

9.  The third question posed is a little difficult, with respect, to follow.  In the light of submissions by the respondent, Mr Pun reformulated the first part of the question as follows:

“(a) Does Art 39 of the Basic Law require the whole of the ICCPR to be applicable or enforceable in Hong Kong such that the Immigration Reservation entered by the UK Government when the ICCPR was originally extended to Hong Kong in 1976 is to be narrowly construed and/or is to be regarded as unlawful or invalid or no longer having any force and effect?”

10.  In its various components, the third question is intended to raise questions about the phrase “as applied to Hong Kong” in article 39 of the Basic Law and its meaning; whether the immigration reservation made by the UK Government in 1976 when it acceded to the International Covenant on Civil and Political Rights and applied it to Hong Kong was or remains a lawful reservation as a matter of international law or as a matter of domestic law; the scope of application of the immigration reservation as a matter of construction; and what consequentially is the effect of section 11 of the Hong Kong Bill of Rights Ordinance, which reflects the reservation.

11.  We have no doubt but that the correct interpretation of the phrase “as applied to Hong Kong” as used in article 39 of the Basic Law is a question of substantial importance but, that said, we do not think it appropriate in the circumstances of this case to grant leave on the basis of this issue.  That is because, first, we do not think it reasonably arguable that the phrase carries any of the meanings for which the applicant contended before us; secondly, because, for practical purposes, the question only arises in this case were the applicant to succeed on the issue of cruel, inhuman and degrading treatment or upon the issue of double jeopardy and we are of the opinion that he does not have a reasonably arguable case in either of those regards.  Therefore, the practical import of us granting leave on this question would be to place before the Court of Final Appeal a case which turns on an issue which, despite its importance in general, may well be thought not necessary to determine in this case.

12.  We accept, of course, that that Court may nonetheless consider it a question which deserves now to be addressed but in our judgment the circumstances suggest to us that it would be more appropriate for that Court to determine whether to take up the issue within the setting of this case.

13.  We should record the fact that Mr Chow SC has, quite properly, conceded the importance of the “as applied to Hong Kong” issue.  He did not oppose the application for leave, though he did take issue with the formulation of the questions articulated in the Notice of Motion and helpfully suggested certain reformulations.

14.  Nonetheless, for these reasons, we refused the application for leave to appeal.