THAPA INDRA BAHADUR v. THE SECRETARY FOR SECURITY

CACV 375/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 375 OF 1999

(ON APPEAL FROM HCAL NO. 18 OF 1999)

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J U D G M E N T

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Keith JA (giving the judgment of the court):

Introduction

1. On 22 April 1998, the Applicant was due to complete terms of imprisonment which he was then serving. But he was not released. A deportation order had been made against him the previous day, and he continued to be detained pending his removal from Hong Kong. In due course, he applied for judicial review of the deportation order, contending that the deportation order should be quashed. That application was dismissed by Stock J, and the Applicant now appeals against its dismissal.

The facts

(i) The offences committed by the Applicant. The Applicant is a national of Nepal. He first came to Hong Kong in 1991. After a while, he was given permission to remain in Hong Kong and to work as a cook. Over the years, he was employed as a cook in a number of restaurants. When the last of those jobs came to an end, he was permitted to remain in Hong Kong as a visitor until August 1997, but it was a condition of that permission that he did not take up any employment in Hong Kong. That permission was granted to him in December 1996. However, the Applicant broke that condition. He took up employment as a cook at an Indian restaurant in Tsuen Wan. The Applicant was found working there when immigration officers raided the restaurant in August 1997. The Applicant subsequently pleaded guilty to the offence of contravening a condition of his permission to remain in Hong Kong, and he was sentenced to six months' imprisonment on that charge.

2. That was not the only charge which the Applicant faced. The restaurant at which he had been working in Tsuen Wan was unlicensed, but the proprietor had wished to operate it nonetheless. Accordingly, bogus contracts of employment were prepared, purporting to show that the Applicant and others were employed, or were to be employed, at other restaurants owned by the proprietor and his family. The Applicant presented the bogus contract relating to him to the immigration authorities later in December 1996 in support of his application for an extension of his permission to stay in Hong Kong. In doing so, he was falsely representing that he was to be employed at a restaurant other than the one in Tsuen Wan at which he really was going to work. That application was refused in January 1997.

3. Shortly afterwards, the Applicant presented another bogus contract to the immigration authorities in respect of another application for an extension of his permission to stay in Hong Kong. In doing so, he was again falsely representing that he was to be employed at yet another restaurant, which was again not the one at Tsuen Wan at which he was going, or had already begun, to work. It was in these circumstances that the Applicant also pleaded guilty to two charges of making false representations to an immigration officer. He was sentenced to six months' imprisonment on each of these charges, to be served concurrently with each other and with the sentence imposed for the offence of contravening a condition of his permission to stay in Hong Kong. All these sentences were imposed on 22 December 1997.

(ii) The events leading up to the deportation order. While the Applicant was serving his sentence, he was served with a notice informing him that the Director of Immigration was considering applying for his deportation under section 20(1)(a) of the Immigration Ordinance (Cap. 115) ("the Ordinance"). Section 20(1) of the Ordinance provides:

The notice specified the Applicant's convictions. The maximum term of imprisonment on each of the charges was 2 years' imprisonment, though the maximum term of imprisonment on the two charges relating to the making of a false statement to an immigration officer was 14 years' imprisonment (in the event of conviction on indictment). It has never been suggested that the power to make a deportation order was not activated in the Applicant's case.

4. The notice informed the Applicant that these convictions had led the Director of Immigration to conclude that the Applicant's continued presence in Hong Kong was undesirable. He was told that if he wished to make any representations in respect of that conclusion, he was to do so within 7 days. The Applicant availed himself of that opportunity by writing to the Immigration Department. He referred to the fact that he had been in Hong Kong for 51/2 years (in fact he had been in Hong Kong for over 6 years). He referred to the fact that he was "the breadwinner" for his family in Nepal, and that he would not be able to support them if he had to return to Nepal. Finally, he referred to the fact that if he had to return to Nepal he would be leaving behind in Hong Kong his "wife" (who was working in Hong Kong as a domestic helper) and their child. In fact, he was not married, but was living with a woman from the Philippines, by whom he had had a daughter who had been born in Hong Kong in March 1997. She also wrote to the Director of Immigration on the Applicant's behalf.

5. The Chief Executive had delegated his powers under section 20(1) to the Secretary for Security. On 16 April 1998, a paper was sent by the Director of Immigration to the Secretary for Security. At that time the Director of Immigration was Regina Ip and the Secretary for Security was Peter Lai. The paper was headed "Applications for Deportation Orders", and it related to the Applicant and one or more other persons, presumably other people who had been involved in the same case. The paper recommended the Applicant's deportation under section 20(1)(a). The relevant part of the paper was Annex C which related to the Applicant. Annex C referred to the offences which the Applicant had committed, and to the fact that the Applicant was living in Hong Kong with a domestic helper from the Philippines by whom he had a daughter. It also referred to something which the Applicant's partner had told an immigration officer when she had been interviewed, namely that since she had been working their daughter had always been taken care of by the Applicant's relatives in Hong Kong. Annex C concluded as follows:

This paper had been prepared by Mak Kwai Yun, an Assistant Director of Immigration. His responsibilities included making recommendations for deportation. It was accepted that Mrs Ip had had no personal contact with the Applicant's case while she had been the Director of Immigration.

6. Annex C was placed before Mr Lai along with a short paper from an officer in the Security Bureau recommending that the Director of Immigration's recommendation be adopted. Mr Lai decided to make the deportation order. It was dated 21 April 1998 (the day before the Applicant was due to be released from prison). The order required the Applicant to leave Hong Kong and prohibited him from being in Hong Kong at any time thereafter. That is the first of the three decisions challenged.

(iii) Subsequent events. Section 55(1) of the Ordinance empowers the Chief Executive to rescind a deportation order. He had delegated that power as well to the Secretary for Security. On 2 September 1998, the Applicant's solicitors wrote to the Secretary for Security and others applying for its rescission. Additional facts which were brought to the attention of the Secretary for Security were that the Applicant had had no previous convictions before pleading guilty to the immigration offences, that his partner had been in Hong Kong since "about 1989-90", that the Applicant had valuable skills which were lacking in Hong Kong because there was a shortage of skilled Nepalese and Indian cooks, that the Applicant had an outstanding offer of employment, that the reason why the proprietor of the restaurant in Tsuen Wan had been so keen for it to operate even though it was unlicensed was because a great deal of money had been spent refurbishing and equipping it, and that it had been the proprietor of the restaurant in Tsuen Wan who had prepared and presented the documents containing the false representations. It was said that the Applicant had known "that there might have been something fishy about the procedure", but he had trusted the proprietor and had relied on his experience in dealing with immigration matters. Finally, reference was made to his need to look after and support his "wife" and child, and it was suggested that his deportation amounted to "inhumane extra punishment" - meaning, no doubt, punishment in addition to that suffered by his earlier imprisonment.

7. The Applicant's solicitors' letter was considered by Mr Mak. He sent a memo dated 22 September 1998 to the Secretary for Security which summarised the representations made in that letter. He noted that, in the light of the facts which the Applicant had admitted at his trial, the Applicant could hardly now disclaim responsibility "for being ignorant of his employer's illegal acts". Mr Mak said that it was not unreasonable to view the Applicant as of "undesirable character" or to view his offences as serious. He pointed out that the Applicant's skills had not been regarded as sufficient to justify him being granted permission in December 1996 to work as a cook. He referred to the fact that the Applicant's partner had in fact been working as a domestic helper in Hong Kong since 1988 and that she had stated the previous February that her daughter would be going to the Philippines in November to be taken care of by her sister. Mr Mak concluded that in his view the gravity of the Applicant's offences outweighed any compassionate factors in his favour, and recommended that the petition for the rescission of the deportation order be rejected.

8. By this time, Mrs Ip had become the Secretary for Security. Both the solicitors' letter and Mr Mak's memo, together with Mr Mak's original paper, were considered by her. She decided to reject the petition. She set out her reasons for doing so in her affidavit. Those reasons followed closely the points made by Mr Mak in his memo, though she stated that she did not regard as important the fact that the Applicant's daughter was to be brought up in the Philippines. What she regarded as important was the fact that the Applicant and his family did not have the right to remain in Hong Kong permanently. Her decision to reject the petition was made on 26 September 1998, and that is the second of the three decisions challenged.

9. That was not quite the end of the matter. The Applicant had applied for legal aid to challenge the deportation order by judicial review. That application had been refused, and he had appealed against the refusal to a Registrar of the High Court. The Registrar was troubled by the fact that the Secretary for Security had never considered a letter from the Applicant dated 1 April 1998, which the Applicant claimed to have submitted in response to the original notice of the intention to apply for a deportation order. The Registrar suggested that the Secretary for Security might wish to reconsider her decision in the light of that letter. Although it looked as if the letter of 1 April 1998 had never been sent by the Applicant (and that what had been sent was a letter in identical terms dated 13 May 1998), the Secretary for Security decided to reconsider her decision in the light of that letter. In the event, she concluded that the letter contained no information which had not previously been considered, and on 12 November 1998, she confirmed the deportation order. That is the third of the three decisions challenged.

The arguments at first instance

10. By the time of the hearing before Stock J, it had been accepted that the letter of 1 April 1998 had never been sent, and an argument based on the fact that its contents had not been considered by the Secretary for Security when the first two decisions were made was abandoned. Another argument based on the alleged inequality of treatment between nationals of different countries was rejected by Stock J, and there is no appeal from his conclusion. The appeal relates to the two other arguments which Stock J rejected, namely that the second and third decisions were tainted by unconscious bias on the part of Mrs Ip, and that the decision to deport the Applicant in the light of all the facts was so unreasonable that the decision should not be allowed to stand

Bias

11. Mr Paul Harris for the Applicant accepted without reservation that the first decision of the Secretary for Security was not in any sense "an appeal" from "a decision" of the Director of Immigration that the Applicant should be deported. The paper from the Immigration Department was, as it made clear, at most a recommendation. Nor were the second or third decisions in any sense an appeal from the first decision of the Secretary for Security. Rather, the second and third decisions were decisions made pursuant to a delegated power which gave the Secretary for Security the opportunity to consider whether changed circumstances or circumstances which had not originally been brought to his attention made it appropriate for the deportation order to be rescinded.

12. Accordingly, the argument on bias proceeded on the following limited lines. The first decision of the Secretary for Security was made in the light of the recommendation made in the name of Mrs Ip when she was Director of Immigration. The second and third decisions of the Secretary for Security were the decisions of Mrs Ip herself. Although she had had no part to play in the making of the recommendation which had been made in her name, it is said that, in making the second and third decisions, she may have been influenced, albeit unconsciously, by a wish to uphold a decision which had been made in the light of the recommendation made in her name by an officer in her former department. It is said that she might have been unconsciously influenced by a desire not to be seen to disagree with such a recommendation out of an instinctive but misplaced sense of loyalty to such an officer.

13. The law on the impact which the possible bias of a decision-maker should have has been the subject of extensive judicial analysis in recent years. A divergence of opinion has emerged. In England, for example, the prevailing test is that laid down by the House of Lords in R. v. Gough [1993] AC 646. Whether a decision will be set aside for bias will depend on whether there had in fact been a real danger of bias on the part of the decision-maker. On the other hand, in Australia the prevailing test is that laid down by the High Court of Australia in Webb v. R. (1993-1994) 181 CLR 41. Whether a decision will be set aside for bias will depend on whether an informed and fair-minded member of the public might reasonably have suspected that the decision-maker had, or might have, pre-judged the case.

14. Mr Harris urged us, as he did Stock J, to follow the path taken in Webb. We doubt whether it would be legitimate for us to do that. The test in Gough was assumed to be the correct test by the Privy Council in an appeal from Hong Kong - Panel on Takeovers and Mergers v. Cheng Kai Man William [1995] 3 HKC 517 - and decisions of the Privy Council delivered before the resumption of sovereignty over Hong Kong by the People's Republic of China continue to be binding since the resumption of sovereignty on all courts of Hong Kong, save for the Court of Final Appeal. That is because decisions of the Privy Council represented part of the common law of Hong Kong. They were therefore part of the laws enforced in Hong Kong when the Basic Law came into operation and were preserved by Art. 8 of the Basic Law.

15. We therefore turn to consider whether, on the test propounded in Gough, the second and third decisions should have been quashed. The practical application of the Gough test was explained by Simon Brown LJ in R. v. Inner West London Coroner v. Dallaglio [1994] 4 All ER 139. On pp. 151e-152d, he set out nine propositions which he derived from Gough. They included the following:

Accordingly, the question to be asked in the present case is: is there a real danger that Mrs Ip was influenced (albeit unconsciously) to uphold the deportation order out of an instinctive but misplaced sense of loyalty to the officer in her former department who had made in her name the original recommendation that a deportation order should be made?

16. Questions of this kind are very much matters of impression: see the observations of Godfrey JA (as he then was) in Nam Pei (Holding) Ltd. v. The Stock Exchange of Hong Kong Ltd. [1998] HKLRD 910 at p. 917H-J. Our strong impression is that there was no real danger of Mrs Ip being unconsciously influenced by considerations of the kind advanced by Mr Harris. We regard the possibility that she upheld a decision made in the light of a recommendation of an officer in her former department out of an instinctive inclination loyally to support that officer as far too remote and fanciful for there to be a "real danger" that that is what happened.

17. We should add that, subject to one reservation, we think that the application of the test in Webb would have produced precisely the same result. A fair-minded observer, informed that Mrs Ip had not played any part in the original recommendation, would not reasonably have suspected that Mrs Ip, out of an instinctive but misplaced sense of loyalty to subordinates in her former department, might have unconsciously allowed that to influence her consideration on its merits of whether the deportation order should be rescinded. Our reservation relates to what the Webb test requires the fair-minded observer to be informed about. If it requires the fair-minded observer to be as informed as the court is, we believe that it cannot be said that the application of the Webb test would have produced a different result. But what if the fair-minded observer did not know that Mrs Ip had not played any part in the original recommendation? We doubt whether such an observer would have been regarded as an informed observer for the purpose of the Webb test. We do not think that the Webb test requires the hypothetical observer, endowed with the attributes of fair-mindedness, to know the law or to understand the internal workings of the process in which the decision challenged was made. But we do think that it requires the hypothetical observer to be informed of all the relevant facts. He would thus be presumed to know that Mrs Ip had not played any part in the original recommendation, and it follows that, in our view, the application of the test in Webb to the facts of the present case would have produced exactly the same result as the application of the test in Gough to the facts.

18. For these reasons, we are in entire agreement with both the reasoning and the conclusion of Stock J on the issue of bias, though before we leave the topic we should add one further matter. Before Stock J, it was contended by Mr William Marshall SC for the Secretary for Security that the argument on bias was simply not available to the Applicant. It was said that the rule against bias was simply one aspect of the rule of natural justice that a decision-maker should not have a personal interest in the outcome of the issue which he is deciding. Although the Applicant had been ordinarily resident in Hong Kong for over six years, he was nevertheless an alien, with neither the right to remain in Hong Kong nor any legitimate expectation that he would be permitted to remain in Hong Kong. Since the rules of natural justice only apply to decisions made about people who have either rights or legitimate expectations which need to be protected, the rules of natural justice were not engaged in the Applicant's case. The decision made in his case could only be attacked if bad faith was demonstrated. No question of bad faith had been demonstrated, because it had not been suggested that the bias (if that was not too pejorative a term to use) had been anything other than unconscious.

19. Stock J rejected that argument, and there is a Respondent's Notice on the issue before us. We do not propose to address that issue in this judgment for two reasons. First, it is unnecessary for us to do so in view of our conclusion on the merits of the argument on bias. Secondly, the arguments before us did not focus on this issue: Mr Harris concentrated on the merits of the argument on bias, and we did not call upon Mr Marshall to address us on the question of bias at all as Mr Harris had not persuaded us that there was a sufficient case on the merits which warranted a response from Mr Marshall.

Unreasonableness

20. It was contended on behalf of the Applicant that the decision to deport him, and the subsequent decisions not to rescind the deportation order, were so unreasonable that the decisions should not be allowed to stand. At the time when the decision to deport the Applicant was made, he had been in Hong Kong for over six years. He had to all intents and purposes made Hong Kong his home. During that time, he had spent five years working lawfully and supporting himself and his family. His offences, though serious, were not at the most serious end of the spectrum of immigration offences, and the need to preserve law and order by deporting him was out of all proportion to its devastating effect on the Applicant and his family. He would no longer be able to live in the place he had hoped to make his home. He would no longer be able to support his family in Nepal. And most important of all, his "right to a family life" would be affected.

21. It is important not to exaggerate this last point. The family would only be split up if the Applicant returned to Nepal and if his partner and daughter did not accompany him. Thus, the deportation order would not have prevented him from enjoying family life with them. As Stock J correctly pointed out, it would only have prevented the Applicant from enjoying family life with them in Hong Kong. He said:

We recognise, of course, the upheaval which would be involved if the Applicant's partner and their daughter were to move with him to Nepal. She would have to give up her employment in Hong Kong and live in an environment which would be strange and unfamiliar to her. We do not suppose that the Secretary for Security was insensitive to these considerations, but it would be wrong to characterise the decisions challenged as ones which had the effect of preventing the Applicant from enjoying a family life.

22. In these circumstances, a pivotal plank of Mr Harris' argument has no application to the present case. That was that where fundamental human rights are involved a lower threshold for intervention by the courts exists. In R. v. Ministry of Defence ex p. Smith [1996] QB 517 at p. 554D-G, Sir Thomas Bingham MR (as he then was) regarded the following test which had been formulated by counsel as "an accurate distillation" of the principles laid down by the House of Lords in R. v. Secretary of State for the Home Department ex p. Bugdaycay [1987] AC 514 and R. v. Secretary of State for the Home Department ex p. Brind [1991] 1 AC 696:

In giving the judgment of the Court of Appeal in R. v. Lord Saville of Newdigate (QBCOF 1999/0653/4), Lord Woolf MR agreed with Sir Thomas Bingham.

23. We have serious doubts as to whether this lower threshold applies to decisions made in the immigration or deportation fields. That is because section 11 of the Hong Kong Bill of Rights Ordinance (Cap. 383) excludes the application of immigration legislation from its ambit, and section 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, we agree with Stock J that 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, i.e. the fundamental right to a family life. The deportation order does not prevent him from living with his family. It simply prevents him from living with his family in Hong Kong. Moreover, it is noteworthy that the Applicant and his partner had in the past been content for their daughter to be looked after by the Applicant's relatives in Hong Kong and that the plan had been for the child to be cared for in the future by her aunt in the Philippines.

24. We turn, then, to whether, on the application of conventional principles, the decision to deport the Applicant was so unreasonable that the decision should not be allowed to stand. On that issue, Stock J said:

It is not possible, we think, to fault any of that.

25. Two further points were taken on the Applicant's behalf. The first related to the judge's treatment of Singh v. Secretary for Security (1996) 6 HKPLR 440. In that case, the court quashed deportation orders in respect of three men who had been sentenced to terms of imprisonment for offences of violence. In commenting on the Singh case, Stock J said:

This passage is criticised on two grounds. First, the Applicant in the present case was simply not someone who had been in Hong Kong "for a few months as a visitor". Secondly, it was said to be wrong to compare the Applicant's case with the deportees in the Singh case without taking account of the fact that the term of imprisonment imposed on them was 18 months' imprisonment, reflecting a far greater degree of criminality on their part.

26. We reject these criticisms of the judge. As for the first, the judge was aware that the Applicant had been in Hong Kong for a number of years. In the passage relied on, the judge was simply comparing the deportees in the Singh case with someone who had no grounds for complaining about his deportation. As for the second, the critical feature of the Singh case was that the deportation orders were not quashed because the decisions to deport were so unreasonable that they ought not to be allowed to stand. The deportation orders were quashed because (a) the Secretary for Security had been misled about a critical fact which was relevant to the balancing exercise which he had had to conduct, and (b) the deportees had not been given an opportunity to comment on the information with which the Secretary for Security had been provided. Stock J was simply saying, in our view rightly, that the Secretary for Security is required to consider each case on its own facts. While sympathetic consideration might be justified in one case, in another case it might not.

27. Secondly, section 20(5) of the Ordinance provides:

Thus, a deportation order can be for a limited or an unlimited period. In the present case, the Applicant's deportation was for an unlimited period. Two criticisms are made about that. First, in submissions to Stock J, Mr Marshall is said to have said that deportations in Hong Kong "are always made for life". It is contended that that would have been an unlawful fettering by the Secretary for Security of his or her discretion. Secondly, it is said that the judge "wrongly held that it was reasonable for the deportation order to be made for life, irrespective of its effects on the applicant's family". That was not quite what the judge was saying. 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. As Stock J said:

Again, we agree.

Conclusion

28. For these reasons, this appeal must be dismissed. At present, we see no reason why costs should not follow the event. Accordingly, the order nisi which we make as to costs is that the Applicant must pay to the Secretary for Security her costs of the appeal, and that the Applicant's own costs be taxed in accordance with the Legal Aid Regulations. However, since the Applicant was legally aided, we also direct that the order for costs in favour of the Secretary for Security should not be enforced without the leave of the court.