V v. DIRECTOR OF IMMIGRATION

CACV9/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 9 OF 2006

(ON APPEAL FROM HCAL NO. 60 OF 2005)

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J U D G M E N T

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Hon Ma CJHC :

Introduction

1. Two interesting questions arise in the present appeal both in relation to recognizances that may be required to be provided under section 36(1) of the Immigration Ordinance, Cap.115 (“the Ordinance”).  The first question goes into the jurisdiction on the part of an immigration officer to require recognizances to be given, the second deals with the issue of the validity of recognizances that impose invalid conditions.

2. The relevant facts have been set out in the judgment of Chu J handed down on 25 November 2005 and are essentially these : -

(1) The Applicant (named ‘V’ in the proceedings by reason of his sensitive status) arrived lawfully in Hong Kong on 24 December 2000 as a visitor.  He was, like all visitors, given permission to remain in Hong Kong for a limited time.  His wife and three children joined him in April 2001 and they too were permitted to remain as visitors.

(2) On 4 January 2001, the Applicant applied to the United Nations High Commissioner for Refugees (“the UNHCR”) for refugee status, his main ground being that if he was forced to return to his home country, he would face the possibility of being tortured or even killed.  This torture claim was repeatedly made to the Director of Immigration (who is the Respondent in the present proceedings).

(3) Initially, the Applicant and his family were granted extensions of stay.  However, on 10 October 2002, their request for extension was refused and they were told to leave by 12 October 2002.  On 15 October 2002, the Applicant and his family surrendered themselves to the Immigration Department and were placed on recognizance.

(4) On 17 March 2003, the Director made a removal order against the Applicant under section 19(1)(b)(ii) of the Ordinance (contravention of conditions of stay) and he was detained at Victoria Prison three days later.  By a letter dated 26 March 2003, the Applicant was informed by the UNHCR that his application for refugee status had been refused.  A request for reconsideration was subsequently refused as well.

(5) On 31 March 2003, Amnesty International (on behalf of the Applicant) requested the Director of Immigration not to remove him until his torture claim had been fully investigated.  This the Director commenced to do on 14 January 2004.  This was pursuant to the obligation placed on him as a result of the decision of the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187.  In that case, it was held that where a person claimed to be a torture victim, he was not to be deported from Hong Kong until his claim had been thoroughly investigated by the authorities (in that case the Secretary for Security) who had to make an independent assessment even where the UNHCR had assessed a claim for refugee status.  This obligation was imposed on the Government both as a matter of fairness and pursuant to Hong Kong’s obligations under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“the CAT”).

(6) While the CAT screening was being carried out, on 30 March 2004, the Applicant commenced judicial review proceedings against the Director challenging the removal order that had been made against him on 17 March 2003 (this was HCAL 45 of 2004).  Reliance was placed on the Prabakar case.

(7) The Applicant then made an application for bail (as stated above he had been detained).  The application, which was opposed by the Director on grounds of public security, was heard by Hartmann J over the course of a 6-day hearing in which he had to decide issues of public interest immunity.  Even a Special Advocate was appointed.  Hartmann J ordered the release of the Applicant from detention but granted bail on terms in that the Applicant was required to : -

 “(a) provide the Court with an identifiable address where he shall stay after release;”

(b) report twice daily to the police, the first one being from 8 to 9 am and the second one being from 3 to 4 pm;

(c) stay on Hong Kong Island and not leave Hong Kong Island; and

(d) provide a surety.”

(8) On 28 September 2004, the Director rescinded the removal order that was the subject matter of the judicial review proceedings in HCAL 45 of 2004 but ordered that the Applicant be detained under section 32(2A) of the Ordinance pending a decision as to whether a fresh removal order should be made.  This course had already been intimated to the Applicant in a letter dated 22 September 2004 from the Department of Justice.

(9) Subsequent correspondence between the parties dealt with a number of matters, among them the disposal of the judicial review proceedings and the question of the Applicant being required to enter into a recognizance under section 36(1) of the Ordinance.  Despite the order made by the Director on 28 September 2004 to detain the Applicant, this was never carried out.

(10) On 19 October 2004, Hartmann J ordered by consent the discontinuance of the judicial review proceedings with costs against the Director.

(11) On 23 October 2004, the Director required the Applicant to enter into a recognizance on the following terms.  This was the recognizance that gave rise to the present proceedings.  The Applicant was required to : -

(a) provide a surety of $2,000 by a Hong Kong resident as guarantor;

(b) report to the Joint Recognizance Office of the Immigration Department once daily between 9:00 am and 10:00 am, Sundays and public holidays excluded;

(c) reside at a given address, namely, 3rd Floor, 120 Electric Road, North Point, Hong Kong; and

(d) not to leave Hong Kong Island.

(12) The CAT screening of the Applicant thereafter continued and remains ongoing.

The present proceedings

3. On 16 June 2005, the Applicant applied for leave to apply for judicial review of the Director’s decision to require him to enter into a recognizance.  The relevant decisions impugned were those dated 28 September 2004 and 23 October 2004 : see paragraphs 2(8) and (11) above.

4. As summarized by Chu J, the Applicant’s challenge was two-fold : -

(1) It was said that the Director’s decision to require the Applicant to enter into a recognizance was not lawfully made because the necessary conditions stipulated in section 36(1) of the Ordinance had not been fulfilled.  Specifically, the Applicant was not a person who at the time the decision was made was “liable to be detained” (see section 36(1)(b)).

(2) In any event, the conditions in the recognizance requiring the Applicant to reside at a specified address and not to leave Hong Kong Island (see paragraphs 2(11)(c) and (d)), which I shall refer to as the “impermissible conditions”, could not be lawfully imposed.

5. The Applicant sought declarations to the effect that both the decision to require the Applicant to enter into a recognizance in the first place and that requiring him to be subject to the impermissible conditions were unlawful.

6. Chu J, after analyzing the legal effect of sections 19, 32 and 36 of the Ordinance, held that the decision to require the Applicant to enter into a recognizance was lawful.  As regards the imposition of the impermissible conditions, the Judge accepted that they could not be lawfully imposed and accordingly made a declaration that these conditions were unlawful and of no effect.

The appeal

7. The Applicant now appeals the decision of Chu J and seeks effectively a declaration that the decision made by the Director to require the Applicant to enter into a recognizance in the first place was unlawful.  The same two grounds relied on before Chu J were advanced before us.  The issues in the appeal can therefore be condensed into the following questions : -

(1) Did the Director of Immigration have any grounds under section 36(1) to require the Applicant to enter into a recognizance?

(2) If he did, did the existence of the impermissible conditions render his decision unlawful?

8. Mr Philip Dykes SC, who appeared for the Applicant both in the Court below and before us, submitted, first, that the Director had no grounds to require the Applicant to enter into a recognizance and secondly, even if he did, the imposition of the impermissible conditions rendered the whole recognizance (and therefore the decision to require a recognizance) invalid.

9. Before dealing with these questions, I think it important first to set out the relevant statutory scheme.

The statutory scheme

10. For persons entering Hong Kong, permission is required to remain here unless that person comes within any of the situations set out in section 7 of the Ordinance.  Permission may be refused at the point of entry but for many visitors, permission will be given to enter and remain in Hong Kong although conditions of stay (usually permission to remain for a limited time and a prohibition on employment) will be imposed :  c.f. section 11.  It will be recalled that the Applicant was given permission to land and allowed to remain in Hong Kong (with several extensions) until late 2002 when a further request for extension was refused.

11. Where a person does not have any permission to land or remain in Hong Kong, a removal order may be made against him.  Section 19 of the Ordinance states : -

“19.   Power to order removal

(1) A removal order may be made against a person requiring him to leave Hong Kong -

(a) by the Governor if it appears to him that that person is an undesirable immigrant who has not been ordinarily resident in Hong Kong for 3 years or more; or

(b) by the Director if it appears to him that that person -

(i) might have been removed from Hong Kong under section 18(1) if the time limited by section 18(2) had not passed; or

(ii) has (whether before or after commencement of the Immigration (Amendment) (No. 4) Ordinance 1981 (75 of 1981)) landed in Hong Kong unlawfully or is contravening or has contravened a condition of stay in respect of him; or

(iia)  not being a person who enjoys the right of abode in Hong Kong, or has the right to land in Hong Kong by virtue of section 2AAA, has contravened section 42; or

(iii)  being a person who by virtue of section 7(2) may not remain in Hong Kong without the permission of an immigration officer or immigration assistant, has remained in Hong Kong without such permission.

(2) …..

(3) …..

(4) A removal order made against a person shall invalidate any permission or authority to land or remain in Hong Kong given to that person before the order is made or while it is in force.

(5) Where the Director makes a removal order he shall cause written notice to be served as soon as is practicable on the person against whom it is made informing him - 

(a) of the ground on which the order is made; and

(b) that if he wishes to appeal he must do so by giving to an immigration officer or immigration assistant written notice of his grounds of appeal and the facts upon which he relies within 24 hours of receiving the notice of the order.

(6) In this section ‘Director’ (處長) means the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration.”

In the case of the Applicant, section 19(1)(b)(ii) was relevant.

12. In some cases, it may be relatively straightforward for the Director to decide whether or not to make a removal order.  In others, the position may be more difficult and the Director may need some time to conduct investigations when considering whether or not to make a removal order.  The range of possible situations in which investigations may be required are so broad that they may require either comparatively little time or in some cases, a lot of time.  The Applicant’s position fell within the latter : the evidence indicates that the CAT screening will be very time consuming, particularly given the guidance provided by the Court of Final Appeal in Prabakar.

13. Accordingly, the Ordinance nowhere sets out a time limit within which the Director of Immigration must complete his consideration of whether or not a removal order should be made, although he must act at all times reasonably.

14. When the Director of Immigration is considering whether or not to make a removal order, he is given a number of options in dealing with the relevant person concerned.  He can, for example, do nothing and simply allow that person to remain in Hong Kong subject to conditions of stay.  But he is also empowered to detain that person if the circumstances so justify.  Section 32 of the Ordinance deals with the question of detention pending removal.  So far as relevant to the present case, it states : -

“32.  Detention pending removal or deportation

(1) …..

(1A) …..

(2) …..

(2A) A person may be detained pending the decision of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration as to whether or not a removal order should be made under section 19(1)(b) in respect of that person -

(a) for not more than 7 days under the authority of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration;

(b) for not more than a further 21 days under the authority of the Secretary for Security; and

(c) where inquiries for the purpose of such decision have not been completed, for a further period of 21 days under the authority of the Secretary for Security, in addition to the periods provided under paragraphs (a) and (b).

(3) …..

(3A) …..

(3B) …..

(3C) …..

(3D) …..

(4) …..

(4A)  The detention of a person under this section shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances affecting that person's detention including, in the case of a person being detained pending his removal from Hong Kong -

(a) the extent to which it is possible to make arrangements to effect his removal; and

(b) whether or not the person has declined arrangements made or proposed for his removal.

(5) …..”

15. Where the Director of Immigration is of the view that a person should be detained pending his consideration of whether a removal order should be ordered, section 32(2A) sets the maximum period of detention at 49 days.  Of course, in exercising the powers under this provision, the Director must be of the view that detention and the period of detention are reasonable in the circumstances.  This is an application of the Hardial Singh principles : - see Tan Te Lam and Others v Superintendent of Tai A Chau Detention Centre and Another [1997] AC 97, at 111; see also section 32(4A) of the Ordinance.

16. It was part of Mr Dykes’ submissions that somehow section 32(2A) effectively imposed a 49-day time limit on the Director to complete his consideration of whether a removal order should be made.  And if he could not complete the exercise by that time, he could not exercise the power to detain in section 32(2A).

17. Where a person is detained or liable to be detained, the Director as an alternative to detention may require that person to enter into a recognizance : - see section 36(1) of the Ordinance.  Section 36 states : -

“36.   Recognizance as alternative to detention

(1) An immigration officer and any police officer may require a person -

(a) who is detained under section 27, 32 or 34; or

(b) who, being liable to be detained under any of those sections, is not for the time being so detained,

to enter into a recognizance in the prescribed form in such amount and with such number of sureties as the Director or such police officer may reasonably require; and where a person who is so detained enters into such a recognizance he may be released.

(2) A person may be detained under section 27, 32 or 34 notwithstanding that he has entered into a recognizance pursuant to a requirement under subsection (1); and where such person is so detained otherwise than in consequence of or following a breach of the recognizance, the recognizance shall thereupon cease to have effect.

(3) If it appears to a magistrate on the application of the Director that any person may become liable to be detained under section 32(2), the magistrate may order that person to enter into a recognizance in the prescribed form in such amount and with such number of sureties as he thinks fit.

(4) The magistrate may order any person who wilfully fails to comply with an order under subsection (3) to be imprisoned for 6 months.

(5) A recognizance entered into pursuant to subsection (3) shall cease to have effect -

(a) where the person who has entered into the recognizance has been detained under section 32(2);

(b) where the person who has entered into the recognizance has a removal order or deportation order made against him;

(c) where it is decided that a removal order will not be made in respect of him;

(d) upon the expiration of 6 months from the date on which the recognizance was entered into or upon the expiration of the period for which the recognizance has been extended under subsection (6),

whichever is the earlier.

(6) A magistrate may, on application by the Director prior to the expiration of a recognizance entered into pursuant to subsection (3), extend the recognizance for such period not exceeding 6 months as the magistrate thinks fit.”

18. Mr Dykes submitted that the effect of section 36(1) when seen together with section 32(2A) was that even where detention or the requirement of entering into a recognizance was reasonable, nevertheless the maximum period for either measure was 49 days.  In the case of a physical detention, this is of course stipulated in section 32(2A) and there is no controversy as to that.  As regards the duration of a recognizance, Mr Dykes’ point really boiled down to this : since the imposition of a recognizance was alternative to a detention (and indeed, a recognizance could not be required unless a detention was in existence or justified), so there must be an exact match between recognizances and detentions, particularly as regards the duration of either.  The express reference made to sections 27, 32 and 34 when considering recognizances under section 36(1)) meant that the relevant time limits of detentions also applied to recognizances.  This, he submitted, was a process of necessary implication in the construction of these provisions.

19. I am unable to agree with the Applicant’s submissions here.  I agree with Chu J’s analysis and would only make some additional points : -

(1) Nothing in section 36 stipulates a time limit for the duration of recognizances granted by an immigration officer or police officer.

(2) There is also nothing in section 36, by necessary implication or otherwise, that equates the system of recognizances to that in relation to detentions.  In fact, one would have to say quite the contrary, as section 36 sets out the system for recognizances in some detail and is quite different to that governing detentions.

(3) One such difference can be found in the provisions of sections 36(3) to (6) where recourse may be had to a magistrate in ordering (on the application of the Director) a person to enter into a recognizance.  In such a situation, it should be noted that the time limits of a recognizance can be much more than 49 days : - see section 36(5).

(4) As a matter of principle, there is no justification to regard a detention and a recognizance in exactly the same way.  A detention involves a total deprivation of liberty.  Whilst it is true that a recognizance, by its reporting condition, places some inhibition upon liberty, it is of a different order altogether.

(5) In effect, Mr Dykes was saying that where the Director was considering whether or not to make a removal order, he could not require the person to enter into a recognizance, however justified, even on grounds, say, of security and however extensive his enquiries may have to be (as in the case of the Applicant), beyond 49 days.  He would effectively be confined to a period of 49 days within which to consider and decide on the making of a removal order.  In many cases, I daresay, this might well result in unfortunate consequences and even bad administration (for example, removal orders being determined too quickly in the absence of proper investigations).  As a matter of commonsense and principle, this must be wrong.  As stated above, nothing in section 36 (unlike section 32(2A)) stipulates any time limit.  I ought finally to add in this discussion that I have read in draft the observations of Stock JA.  I fully agree with them.

20. I now deal with the two questions raised in the present appeal.

Did the Director of Immigration have any grounds under section 36(1) to require the Applicant to enter into a recognizance?

21. In my view, the answer is Yes.

22. The Applicant’s position was that the Director did not have any grounds to require him to enter into a recognizance.  According to Mr Dykes, section 36(1)(a) was not engaged since at the relevant time, the Applicant was not in detention (as stated above, although a detention order had been made on 28 September 2004, this was never carried out :  see paragraph 2(9) above).  This was of course correct.  As for as section 36(1)(b), he submitted that the Applicant was not a person who was “liable to be detained”.

23. Mr John Bleach SC (for the Respondent) said that the Director did not seek to rely on section 36(1)(a) but submitted that the Applicant was a person who was “liable to be detained” for the purpose of section 36(1)(b).  This subsection therefore became the focus of the arguments.

24. Mr Dykes advanced two separate arguments to support the Applicant’s case : -

(1) The Applicant was not liable to be detained because at the time of the relevant decision, the Director must have realized that the CAT screening would take more than 49 days to complete.  It followed accordingly that given the time limit of 49 days for both orders of detention and recognizance, the Director could not reasonably have utilized section 36 in requesting the Applicant to enter into a recognizance.  In other words, no order under section 36(1) could reasonably be made when the Director knew full well it would take more than 49 days to consider whether or not a removal order should be made against the Applicant.  To exercise the power in such circumstances was unreasonable.

(2) Next, Mr Dykes argued that the Applicant was “liable to be detained” under section 32(2A) of the Ordinance (the only provision relied on) only if the Director was considering whether a removal order should be made.  According to him, in the present case there was no possibility of the Director even considering the making of a removal order until the CAT screening had been completed.  The making of a removal order was such a distant possibility well beyond the 49 days stipulated in section 32(2A) that it would simply not have been reasonable to detain the Applicant.

25. I am unpersuaded by these arguments : -

(1) I have already dealt with the Applicant’s arguments that the 49 days specified as the maximum period of detention under section 32(2A) is also the maximum period for the duration of any recognizance that may be required to be entered into : - see paragraph 19 above.  This disposes of the first of these points.

(2) As for the second argument, it is quite clear on the facts that the Director of Immigration was at the time he made his decision considering making a removal order against the Applicant.  The correspondence passing between the Director, the Department of Justice and the Applicant and his solicitors amply supports this conclusion.  The Applicant was a person who had breached his conditions of stay by exceeding the time that he was permitted to remain in Hong Kong.  But for the torture claim and the CAT screening, he might well have been removed.  Far from the Director only beginning to consider whether or not a removal order should be made once the CAT screening has been completed, it is more likely that the Director will actually make his decision when this process is completed.  I can do little better perhaps than to repeat what Chu J said in her judgment in this context : -

“ The truth of the matter is the applicant has since October 2003 been an overstayer.  He was to be removed under section 19(1)(b), but was not removed because of his torture claim.  Under section 32(1A) and (2A), he may be detained pending the decision as to whether a removal order should be made.  The Director had further on 28 September 2004 ordered that he be detained under section 32(2A) pending the decision on whether a removal order should be made.  Thus viewed, the applicant must be a person liable to be detained when he was put on recognizance on 23 October 2004.  The power under section 36 was therefore properly engaged.”

(3) I would finally add that even if it were the case (which I do not accept) that the Director might somehow be said to have acted improperly by seeking to detain the Applicant when he knew that the CAT screening process would take longer than 49 days, this would still make the Applicant “liable to be detained” for the purposes of section 36(1)(b) .  In other words, the power to detain is there even though it may not be a proper exercise of power to detain him : - see R (Khadir) v Secretary of State for the Home Department [2005] 3 WLR 1, at paragraphs 4 and 31.  I do not in any event accept it would be an improper exercise of power for the Director to have detained the Applicant even though he knew that the CAT screening process (and therefore his consideration of a removal order being made) would take more than the maximum 49 days detention he could impose.  If there existed good grounds to detain, then this decision would be justified, even though the maximum period of detention was 49 days.

26. I now move on to the second question.

If he did, did the existence of the impermissible conditions render the Director's decision unlawful?

27. It is common ground that the impermissible conditions were conditions that could not be lawfully imposed on the Applicant as part of the recognizance he entered into.  Chu J reasoned that by the reference in section 36(1) of the Ordinance to the Director being empowered only to require a person to enter into a recognizance “in the prescribed form”, the limits of the conditions that could be imposed on a person were those stipulated in the prescribed form.  Any other conditions could not be lawfully imposed.  Form 8, which is the prescribed statutory form, makes a reference only to the amount and number of sureties, and reporting requirements.  With respect to the Judge, her reasoning is impeccable and cannot be faulted.

28. Chu J was prepared, however, only to make a declaration that the impermissible conditions were of no legal effect.  The Applicant was not content with this and sought a declaration that by reason of the existence of the impermissible conditions, the whole of the Director’s decision to require him to enter into a recognizance in the first place was unlawful.  This was the order that the Applicant sought in his Notice of Appeal.

29. Reliance was placed by Mr Dykes on section 37(1) of Interpretation and General Clauses Ordinance, Cap.1 which states : -

“37.  Forms

(1) Where any form is prescribed by or under any Ordinance, deviations therefrom, not affecting the substance of such form, shall not invalidate it.

(2) …..”

30. The Judge having held that the impermissible conditions were more than just deviations, it therefore followed that the recognizance as a whole was rendered invalid.

31. I doubt this to be the effect of section 37 at all and Mr Dykes seemed to have accepted the proposition that where there were deviations in a statutory form that were substantial, this did not necessarily mean that the whole document was automatically invalidated.  Much depends on the context of course.  In a sense, the document was invalid inasmuch as the impermissible conditions were imposed but the effect was simply that the document took effect without those conditions.  As Mr Bleach submitted, there is no reason why the existence of invalid conditions should render the valid conditions also void.  There is no practical or commonsense reason for this.  Still less is there any justification to impugn as a whole the decision of the Director to require the Applicant to enter into a recognizance in the first place.  I agree with the Judge’s views contained in the following passage : -

“That said, however, I consider that a distinction should be drawn between the decision to require the applicant to be put on recognizance and the implementation of the decision, fine though the line may appear to be.  While the Director or his officer has no power to include extra conditions in the recognizance, it is within his power to put the applicant on recognizance as an alternative to actual detention.  The extra conditions attached to the recognizance are clearly void and of no effect, but that should not invalidate the recognizance that the applicant had entered into.”

32. In the course of his submissions, Mr Dykes also made reference to the penal sanctions that could be imposed on a person by a magistrate where he failed to comply with an order to enter into a recognizance : - see sections 36(3) and (4) of the Ordinance.  In my view, while it is one thing to say that no criminal liability will attach where a magistrate orders a person to enter into a recognizance with impermissible conditions, it is quite another to conclude that the whole recognizance is void, not merely the impermissible conditions or that the effect of these conditions is to render the decision to require a recognizance to be entered into, wholly invalid.

33. In my view, this second question is to be answered No.

Costs

34. For the above reasons, the appeal should be dismissed.  I would also make an order nisi that the costs of the appeal should be to the Respondent, such costs to be taxed if not agreed.

Hon Stock JA :

35. I agree with the judgment of the Chief Judge.  The argument that the power to impose a recognizance may last only so long as the maximum period prescribed for detention, is contrary to any purposive construction of the relevant provisions.  It would drive a coach and horses through the scheme.  All that a person seeking asylum – say, for present purposes, a bogus claim – would have to do is to present a highly complicated story to the authorities here, involving a number of different countries and a host of suggested witnesses, of whom inquiries might have to be addressed, and the scheme would be defeated.  The effect of Mr Dykes’ argument is that for practical purposes it would impose upon the Director a need to complete his inquiries and make a decision within 49 days; for once he is disempowered even to require a recognizance, he has no control over the applicant’s movements whatsoever.  But a decision in that time may be impossible and contrary to the claimant’s interests; and we cannot read such a requirement into the scheme.  If that had been intended the legislature would have said so.  And if at the outset of a particular exercise relating to a particular claimant for refugee status it is apparent that the inquiries are to take longer than 49 days, especially if they are to be fair to the claimant, what then?  According to Mr Dykes’ argument, the Director should not in such circumstances detain, let alone seek a recognizance, because the detention would be for a purpose outwith that authorized.  But what if the Director following this line of thought, then releases the claimant only to find two days later that there is irrefutable evidence that the claim is bogus but the claimant has melted into the population and cannot be found: the result is a power of control rendered nugatory on the basis of a wrong estimate of the likely length of the inquiry.  None of this makes practical sense and cannot have been intended.  The power to order a recognizance is not, as was argued, a power auxiliary to detention.  It is simply one course amongst others that can be taken.

Hon Yeung JA :

36. I agree with the judgment of the Chief Judge and Stock JA.  I have nothing to add.