RE MICHAEL K OGUNADE

HCAL 20/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 20 OF 2005

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J U D G M E N T

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1.  This is an ex parte application by Michael K Ogunade (“the applicant”), who is now detained in Lai Chi Kok Reception Centre, for a writ of habeas corpus.

2.  The applicant is a foreigner.  He was arrested at the airport on 19 September 2004, whilst on transit in Hong Kong (the applicant maintains that he was actually on board his plane when he was arrested).  According to the record, he had been in police cusdody between 19 and 21 September 2004, before he made his first appearance at the Tsuen Wan Magistracy on 21 September 2004 (under Case No. TWCC 2866/2004).  No bail was granted.

3.  He has since been charged with three charges, namely possessing false instruments, contrary to section 75(1) of the Crimes Ordinance (Cap. 200), possessing a false travel document, contrary to section 42(2)(c)(i) of the Immigration Ordinance (Cap. 115) and possessing false instruments, contrary to section 75(2) of the Crimes Ordinance.

4.  On 18 November 2004, the applicant applied for bail in the High Court (HCMP 2969/2004).  His application was refused by Nguyen J.

5.  By order dated 4 January 2005, the charges were transferred to the District Court, and the magistrate who made the order appointed 25 January 2005 for the applicant to appear or be brought before the District Court.  The magistrate further remanded the applicant in prison custody pending his appearance in the District Court, pursuant to section 90(1)(b) of the Magistrates Ordinance (Cap. 227).

6.  On 25 January 2005, the applicant appeared before the District Court under Case No. DCCC 14/2005.  The applicant’s application for legal aid was still pending and two weeks were required for processing the application.  There was also an application by the prosecution to amend the charges.  His Honour Judge Lok hearing the case adjourned the matter to 15 February 2005 for mention.  According to the record, there was no bail application, and the judge remanded the applicant in custody pending his next appearance.

7.  On 28 January 2005, the applicant applied ex parte to this court for a writ of habeas corpus.

8.  In support of his application, the applicant essentially argues that as a transit passenger with no right or intention to enter Hong Kong, he has committed no criminal offences in Hong Kong.  He emphasises that he was on board his plane when he was arrested.  He argues that the Director of Immigration had no power to detain or arrest him.  He therefore claims that his detention in Hong Kong since September last year has been unlawful. 

9.  The applicant further says that he has now received further documents and statements from the prosecution and he says the prosecution’s evidence does not establish a case against him.  He says he has since his detention in Hong Kong lost contact with his family.  He also tells the Court that he has a health problem.

10.  In my judgment the present application is misconceived.  It is well established that the writ of habeas corpus is only available for current detentions and not to remedy a prior illegal detention that has ceased: Barnardo v Ford [1892] AC 326; see also Hong Kong Civil Procedure 2004, vol. 1, para. 51/1/1 and the cases referred to in the last paragraph on page 795. 

11.  Regardless of the merits of the applicant’s argument against his initial detention and arrest (on which I need express no opinion), there can be no doubt that once he has been brought before a magistrate’s court, his detention thereafter has been done pursuant to the orders of the magistrate’s court and the District Court (after the transfer), which remanded him in custody pending his next appearance.  His application for bail to this court was unsuccessful.  There is no question of the subsequent detention being unlawful.

12.  In any event, whether the applicant has committed the offences that he is charged with is a matter for trial.  As to his liberty pending trial, the proper procedure for the applicant to secure his release whilst awaiting trial after he was first brought before the magistrate’s court was and is an application for bail. 

13.  It must be remembered that the writ of habeas corpus is an extraordinary remedy which issues in cases where the ordinary legal remedies are inapplicable or unavailable: Archbold Hong Kong 2005, para. 3-2.  It has been said that the bail procedure is an “offspring” of habeas corpus, and a bail application is “nothing more than a simplified habeas corpus application”: Sharpe, The Law of Habeas Corpus (2^nd ed.) 134 (quoted with approval in HKSAR v. Siu Yat Leung [2002] 2 HKLRD 147, 151I-152A). 

14.  In my view, if the applicant now thinks, having received the latest documents and statements from the prosecution, that he really has a case for his release pending trial, he should follow the normal procedure and make a fresh application for bail, where all relevant factors, including (where appropriate) the merits of the charges he is facing, will be taken into account. 

15.  On the facts of the present case, I find no exceptional circumstances justifying his present application for a writ of habeas corpus.

16.  The application is therefore dismissed with no order as to costs.