V v. DIRECTOR OF IMMIGRATION

HCAL 60/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 60 OF 2005

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DECISION

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1. By summons filed on 4 October 2005, the respondent, The Director of Immigration (“the Director”) applied for an order that: (1) the documents enumerated in Part 2 of Schedule I of the Affirmation of Lai Kwai Ho dated 20 September 2005 (“the Documents”) be protected from disclosure, (2) the Director be allowed to rely on the Documents at the substantive hearing of the judicial review application, and (3) a special advocate be appointed.

2.  Underlying the application is the Director’s claim of public interest immunity over the Documents, which is supported by a Certificate signed by the Chief Secretary for Administration.

3.  In respect of part of the Documents, the Director had also made a public interest immunity claim over them in HCAL 45/2004 and the claim was upheld by Hartmann J: see the Judgment handed down on 16 July 2004.  

4.  For the purpose of this application, I had been provided with the supplementary paragraphs to the Certificate from the Chief Secretary for Administration and the Documents, both of which were not available to the applicant.

5.  The applicant opposes the Director’s application on the basis that the Documents are irrelevant to the determination of the issues in the judicial review application.

6.  Mr Dykes SC has formulated the main issues in the judicial review to be:

(1) Whether the Director has the power to require the applicant to remain on recognizance when the maximum period of detention under section 32(2A) of the Immigration Ordinance, Cap.115 (“the Ordinance’) of 49 days has lapsed; and

(2) If the Director can do this, whether he can, when requiring the applicant to enter into a recognizance under section 36 of the Ordinance, include conditions in the recognizance that are not included in the prescribed form.

The conditions in the recognizance that the applicant says are beyond the Director’s power to impose include requiring the applicant not to leave the Hong Kong Island. 

7.  In a letter dated 6 October 2005 to the Department of Justice, the applicant’s solicitors indicated that the applicant would not be asking for disclosure of the Documents and there would be no issue of the appointment of a special advocate. 

8.  For the Director, the relevance of the Documents was explained in paragraph 4 of the Second Affirmation of Lai Kwai Ho in support of this application.  The relevant part reads as follows:

“Leading Counsel advised that the confidential materials relating to the facts of this case are relevant by way of example to the issue of the legislative intention of section 36 of Cap.115 empowering imposition of the bail conditions in individual cases restricting freedom of movement.  If court bail on terms becomes an ancillary issue it is necessary for the court to be aware of the relevant confidential and protected documents and the facts they contain.  Although the Applicant has not yet applied for court bail on terms up to today, our Leading Counsel is of the view that the relevant confidential and protected documents should be made available to the court in the substantial hearing.”

9.  In the Department of Justice’s letter dated 10 October 2005 dealing with the present application, it is further said that:

“… we have no doubt that the legislature intended powers as broad as were necessary to control illegal immigrants and overstayers who for one reason or another cannot be removed and have to physically remain for the time being in Hong Kong.  If for one reason or another such a person presents a threat to security to Hong Kong and to the peace, we have no doubt that he could be detained or remain liable to detention but restricted by such conditions, including geographical limitations that are reasonable in the circumstances of the case.” 

10.  At the hearing, Mr Marshall SC confirms that the Documents are relevant to the issue of the Director’s power to include conditions in the recognizance.  It is said that the Documents will “enliven the court’s considerations on statutory interpretation” and that “it will be irresponsible not to have the Documents”.

11.  Having read and considered the Documents, I have come to the conclusion that the Documents are not relevant to the substantive judicial review application.  Mr reasons are as follows.

12.  Firstly, whether the Director has power under section 36 of the Ordinance to include in the recognizance, conditions that are not specified in the prescribed form is admittedly a question of statutory interpretation.  Generally speaking, it is difficult to see how the facts of the case before the court will contribute to the understanding of the legislative intention.

13.  Secondly, the perceived threat or risk the applicant poses to the security and peace of Hong Kong may go to show why the Director considers it appropriate and necessary to make the recognizance subject to the conditions he has imposed.  However, what is in issue in the pending judicial review application is not the reasonableness or necessity of including conditions in the recognizance, including geographical limitation, but whether the Director has power under section 36 to impose those conditions.   

14.  Thirdly, the applicant’s solicitors had in correspondence indicated there was no intention to apply for court bail in these proceedings.  Mr Dykes SC makes the same point in his submissions.  Given the indication, the consideration of granting court bail on terms, to which the Documents may be relevant as mentioned in paragraph 4 of the Second Affirmation of Lai Kwai Ho, does not arise. 

15.  Fourthly, Mr Dykes SC indicates in his submissions that he is prepared to argue the judicial review application on the assumption that the applicant is a security risk to Hong Kong.  Mr Marshall SC however submits that this is not good enough.  It is said that the Documents will give the context and will “enliven the court’s considerations” on interpreting the section.  I am unable to understand the submission.  I cannot see how the details of or circumstances giving rise to the risk will assist the court in ascertaining the legislative intent and in determining the extent of the Director’s power under section 36.

16.  In conclusion, while prepared to accept that the Documents are proper subject matter of public interest immunity, I do not consider the Documents to be relevant to the determination of the judicial review application and have to be introduced at the hearing.  The appointment of a special advocate is therefore not necessary. 

17.  Accordingly, I dismiss the Director’s summons.  Adopting the normal rule of costs follow event, I make an order nisi that the costs of the application be to the applicant against the Director to be taxed if not agreed.  The applicant’s own costs are to be taxed under the Legal Aid Regulations.