THAPA INDRA BAHADUR v. THE SECRETARY FOR SECURITY

HCAL 18/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 18 OF 1999

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J U D G M E N T

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1. In April 1998 the Secretary for Security, in the exercise of powers delegated by the Chief Executive, decided to make an order deporting the applicant from Hong Kong for life. The applicant asked the Secretary for Security to rescind that order but that application was rejected in September 1998. Further submissions were made, and the Secretary for Security was asked to reconsider the decision, but after reconsideration the Secretary for Security decided, in November 1998, to uphold the original decision, so that the deportation order stood. In March 1999, this court gave the applicant leave to apply for judicial review of all three decisions, and this is the hearing of that application.

Background

2. The applicant is a national of Nepal. He first came to Hong Kong in December 1991, and was given an employment visa which enabled him to work as a cook in a curry restaurant. Between that date and late 1996, he worked in two such restaurants. His last employment came to an end in November 1996. He then applied to the authorities to be permitted to change his employment but that application was refused. He petitioned the Secretary for Security against that refusal but that petition was rejected. He was, however, as from 16 December 1996, permitted to remain in Hong Kong as a visitor but it was a condition of that permission that he did not take up employment in Hong Kong.

3. It is common ground that he breached that condition and he took employment with a Mr Fu who owns restaurants in Hong Kong. One of the restaurants owned by Mr Fu was called the Indian Curry Restaurant. It had no food licence but much had been spent in establishing it, and the owners were anxious to operate it nonetheless and to employ the applicant and others. So bogus contracts were drawn purporting to show that the applicant and others were employed, or were to be employed, at other restaurants owned by Mr Fu or his family. Armed with one such false contract, the applicant approached the immigration authorities in December 1996 and applied for an extension of stay here, falsely representing that he was to be employed to work in the Hung Kee Restaurant owned by Mr Fu. The application was refused in January 1997.

4. In February 1997, another false contract was drawn for the purpose of pursuing his application, this time naming yet another restaurant but, according to the summary of facts agreed by the applicant in proceedings in the magistracy, he, the applicant, was informed that it was not a real contract, and that upon the approval of his application for a work visa which Mr Fu anticipated, the applicant would still have to work in the Indian Curry Restaurant.

5. In August 1997, the immigration authorities raided the Indian Curry Restaurant in Tsuen Wan and found the applicant and others working there. He was arrested and so was Mr Fu, and they were all prosecuted. The applicant pleaded guilty to a charge of breaching the condition of stay imposed on 16 December 1996, namely, that he should not take up employment; and also to two charges of making false representations to an immigration officer, namely, that he was to be employed in the restaurants named in the contracts when he well knew otherwise. On 22 December 1997, he was sentenced by the magistrate to six months' imprisonment.

Steps towards deportation

6. On 2 February 1998 and whilst he was still in prison, he was served with a document entitled "Notice of consideration of deportation", by which he was informed that the Director of Immigration "is considering applying for your deportation under section 20(1)(a) of the Immigration Ordinance", and the convictions in the magistracy were specified. It was said that those convictions had led the Director to conclude that the applicant's continued presence in Hong Kong was undesirable. He was told by that notice that if he wished to make any representations in respect of the Director's conclusions, he was to do so within seven days. The notice bore a signature over the words : "for Director of Immigration".

7. The applicant made written representations, praying in aid the fact that he had been in Hong Kong for some years; and he said that he had a wife and child here and that it was impossible to leave them. He was not in fact married but lived then, as he still does, with a domestic helper of Philippine nationality, a lady named Ms Dadap, by whom he has a daughter. The daughter was born in Hong Kong in March 1997. Ms Dadap also wrote to the Director on behalf of the applicant.

8. On 1 April 1998, the applicant wrote another, lengthier, letter to the Director of Immigration, again beseeching the Director to allow him to stay and to allow him to find another employer, with the assurance that he would not make the same mistake again.

9. On 16 April 1998, there was addressed a paper, signed "Director of Immigration", to the Secretary for Security. At that date the Secretary for Security was Mr Peter Lai. The Director of Immigration was then Mrs Regina Ip. The paper is headed "Application for Deportation Orders". It relates to the applicant and one or more other persons, no doubt concerned in the same case. The paper recommends the applicant's deportation under section 20(1)(a) of the Immigration Ordinance. It begins :

" The Director of Immigration considers the continued presence of Messrs ...and Thapa to be undesirable. The Director of Immigration has confirmed that their offences are punishable with imprisonment for not less than two years. It is therefore recommended that upon their release from prison, these persons be deported for life. The Secretary for Security will be asked to consider whether this recommendation should be approved and deportation orders made under section 20(1)(a) of the Immigration Ordinance."

Section 20(1) of that Ordinance provides as follows :

"(1) The Governor may make a deportation order against an immigrant if-

(a) the immigrant has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years; or

(b) the Governor deems it to be conducive to the public good."

The Chief Executive has delegated that power to the Secretary for Security.

10. Annexed to the position paper are the facts of the applicant's case, as well as a number of remarks, such as that the applicant is not a permanent resident nor does he otherwise enjoy the right of abode here. It is there said that in making the recommendation the Director has taken into account all the circumstances of the applicant's case, including his family considerations and the representations which he had thus far made. But, it concluded :

"The Director of Immigration considers that [the applicant] has an undesirable character and the gravity of the offences outweigh any compassionate factors which may be in his favour and that it will not be in the public interest to allow him to remain in Hong Kong."

That recommendation was submitted by Mr Mak Kwai Yun, who was then and still is an Assistant Director of Immigration. Recommendations for deportation are his province within that Department. Mrs Ip, it is not disputed, had no personal contact with the case whilst she was Director of Immigration.

11. The recommendation found favour with Mr Peter Lai, the Secretary for Security, for he made the deportation order on 21 April 1998. The reason cited for the order was that the applicant was not a Hong Kong permanent resident and had been found guilty of an offence punishable with imprisonment for not less than two years. The order required him to leave Hong Kong and prohibited him from being in Hong Kong at any time thereafter.

12. There was no coincidence about the date of the order, for it preceded by one day the date of the applicant's release from prison. Upon his release, he was placed in detention pending deportation. He was only served with the deportation order in July 1998, though nothing in this application turns on that.

Events after the order

13. On 1 September 1998, Mrs Regina Ip assumed office as Secretary for Security.

14. By a letter dated 2 September 1998, solicitors on behalf of the applicant applied for rescission of the deportation order. Section 55 of the Ordinance empowers the Chief Executive to rescind a deportation order. The letter was addressed to the Chief Executive, the Secretary for Security and the Director of Immigration. The solicitors said that the applicant had no previous convictions, and that Mr Fu was known to be the prime mover in the offences which had been committed; that the applicant had valuable skills lacking in Hong Kong; and that he needed to look after his wife and child, and suggested that "the decision constituted inhumane extra punishment" - meaning, no doubt, punishment in addition to that suffered by his earlier imprisonment.

15. Mr Mak of the Immigration Department considered this request and wrote a memorandum to the Secretary for Security dated 22 September 1998, stating that, given the facts which the applicant had admitted at the magistrates' court, the applicant could hardly now suggest that he was unaware that his employer's acts were illegal. It was, said Mr Mak, not unreasonable to suggest that the applicant was of undesirable character and that his offences were serious. Mr Mak did not accept that there was a shortage of the skills possessed by the applicant, pointed out that the applicant and Ms Dadap were not married, and that Ms Dadap was here, in Hong Kong, for only so long as she was employed and that she had, in any event, said that she intended to send her daughter to the Philippines. It was said, again, that the offences outweighed the compassionate circumstances of the case and the recommendation was that the petition for rescission of the deportation order be rejected. And it was. On 26 September 1998, the Secretary for Security, Mrs Ip wrote to those acting for the applicant saying that she did not find sufficient justification to rescind the order.

16. The matter did not end there, for the case then came before a registrar of this court on an appeal against the refusal to grant the applicant legal aid, and what troubled the registrar was the apparent fact that the Secretary for Security had never considered the letter from the applicant dated 1 April 1998. The Secretary for Security said that she had never received it. The suggestion was made by the registrar that the Secretary for Security might wish to reconsider her decision in the light of that letter. This the Secretary for Security agreed to do, but it made no difference to her decision. Again, prior to that decision, she was presented with a memorandum by the Director of Immigration, dated 23 October 1998, which stated that the letter of 1 April 1998 had never been received and that in any event it provided no information not previously considered. On 12 November 1998, the Secretary for Security confirmed the decision to deport.

Grounds

17. The applicant now advances three grounds upon which he contends the decisions should be set aside.

1. Bias

The complaint

18. This complaint is directed at the second and third decisions under challenge, that is, the September decision not to rescind the deportation order, and the November decision which followed the reconsideration requested by the applicant. Both these decisions were made by Mrs Ip. The argument bases itself on the fact that Mrs Ip was the Director of Immigration when the Immigration Department recommended to the Secretary for Security in April 1998 that the applicant be deported, and the contention is that for Mrs Ip then to be the adjudicator of the request to rescind and the request to reconsider is unsatisfactory for there must arise a real danger of bias or an appearance of bias. It is suggested that by sitting in judgment in relation to the decisions subsequent to the deportation decision itself, she was then a judge in her own cause. The analogy drawn is with that of an appellate judge who has sat on an appeal having been party to the case at first instance. It is accepted that Mrs Ip had no direct part to play in the deportation recommendation when she was Director of Immigration but nonetheless, the argument runs that her thought process when she took decisions in this case as Secretary for Security must or might have been coloured by a subconscious or actual loyalty to those in her former Department.

Natural justice : The arguments

19. The greater proportion of the argument in this application has been devoted by counsel on both sides to the question whether decisions of the kind under challenge are subject to the rules of natural justice, of which the rule against bias is one. The respondent would have me say that the rules of natural justice, including the rule against bias, are inapplicable to a case such as the present. If he is right about that, then that is the end of this ground of complaint. Mr Harris, for the applicant, argues that the rules do apply, and has further invited me not to follow the bias test stipulated by the House of Lords in R. v. Gough [1993] AC 646; adopted by the Privy Council in a Hong Kong case, Panel on Takeovers & Mergers & Another v. Chang Kai Man, William [1995] 3 HKC 517; and since applied in Hong Kong in Nam Pei (Holdings) Ltd. v. The Stock Exchange of Hong Kong Ltd. [1998] 2 HKLRD 910 - that is, the test whether there was shown a real likelihood or danger of bias. He would rather this court follow the path taken in the High Court in Australia in Webb v. R. [1994] 181 CLR 41, namely, whether there would in the circumstances be a reasonable suspicion of bias on the part of a fair minded and informed member of the public.

20. Given my conclusion on the facts in the application of either test, I am much tempted to put the issues thus raised on ice, but lest a different view be taken of that assessment of the facts, I shall address the question of law.

21. The respondent's case is that bias is an aspect of natural justice; that natural justice is available only to those with rights or legitimate expectations, and that this applicant was at all material times but a mere alien in Hong Kong, a person with no call on Hong Kong, so that the decisions in this case, being of a purely administrative nature, in a realm where the immigration authorities and the Chief Executive have the widest of discretions, allow no room for the application of the rules of natural justice, save only where bad faith is demonstrated.

22. Mr Harris says in response that the decisions taken were not purely administrative but were quasi judicial; that they indeed affected the rights of the applicant, which he classified as fundamental rights, in particular the right to a family life, and that in any event the rules of natural justice apply to any administrative decision unless it is clear from the statutory context that the rules are not intended to apply. He relied, for example, on the deportation case of R. v. Secretary of State for the Home Department ex parte Santillo [1981] 1 QB 778, a decision cited in the Hong Kong case of Singh v. Secretary for Security [1996] 6 HKPLR 440, suggesting clearly that deportation cases imported the demands of natural justice.

Inappropriate distinctions

23. It is, in my judgment, no longer helpful to decide whether the rules of natural justice - or, to use the phrase more commonly applied now, the duty to act fairly - are to be applied by reference to classification of the function as administrative, or judicial, or quasi judicial. It is a distinction said at least as long ago as Schmidt v. Secretary of State for Home Affairs [1969] 2 Ch 149, 170 as being one that was no longer valid; and in R. v. Gaming Board for Great Britain ex parte Benaim and Khaida [1970] 2 QB 417 to be a heresy that had been scotched in Ridge v. Baldwin [1964] AC 40, and to be a distinction away from which the courts should steer. So, too, in McInnes v. Onslow-Fane [1978] 1 WLR 1520, Megarry V-C viewed natural justice as a "flexible term which imposes different requirements in different cases ... capable of [application] to the whole range of situations indicated by terms such as 'judicial', 'quasi judicial' and 'administrative'" (see page 1530); and the editors of de Smith, Woolf and Jowell's Judicial Review of Administrative Action, 5th Edition are firm in the contention that procedural fairness is no longer restricted by distinctions between judicial and administrative functions, or between rights and privileges (see page 401).

The dependent right or interest

24. Problems encountered by the courts in practice tend to be concerned more with the content of procedural fairness in the circumstances of a particular case and the statutory framework in which such a case operates, rather than with the issue whether there is imported any duty of fairness at all. de Smith suggests that the situation has now been reached whereby "whenever a public function is being performed there is an inference, in the absence of an express requirement to the contrary, that the function is required to be performed fairly." (see page 405). That said, it does not follow that every decision by an official is subject to such a duty, and there are some duties, particularly those where speed is of the essence, or in the performance of certain policing functions, where to imply or require a duty first to receive representations, for example, would be nonsensical.

25. For present purposes, the threshold would be that the person asserting a duty of fairness must establish that he has some right or interest or legitimate expectation personal to him that warrants the extension of such a duty to him. That, in essence, is how it was put in Schmidt :

"... It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say." (per Lord Denning at page 170)

26. In Kioa v. West [1985] 159 CLR 550, Mason J (as he then was) said, at page 582, that :

"It is a fundamental principle of the common law doctrine of natural justice expressed in traditional terms that generally speaking when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case to be made against him and to be given an opportunity of replying to it. ... The reference to 'right or interest' in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation as well as to proprietary rights and interest."

He went on, at page 584 :

"The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness in the making of administrative decisions which affect rights, interest and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention."

27. The question posed, and answered, in cases concerning aliens is whether the alien who is refused permission to enter a country or who is removed when he has no such permission, has rights which are susceptible to protection, and the answer in general is 'no'. As P. P. Craig puts it ("Administrative Law", 3rd Edition, page 323) : "... the common law has not proved a great source of procedural protection for aliens".

28. Mr Harris has suggested that it is inappropriate to term those in the position of the applicant an "alien", and I understand him to say that that is a nationality law concept not applicable to Hong Kong, and that therefore the cases which emphasise the poverty of aliens in terms of procedural rights are of no application in Hong Kong law.

29. I do not think that the label is important. What is important is the status of an applicant at any given time as someone who either has no right to be in Hong Kong, or who has conditional or limited permission to be here. It is the absence of any enforceable right or interest, that is at the heart of those cases which move the courts in such instances to the very periphery of the supervisory spectrum. The analogy drawn in Schmidt by Widgery LJ (at page 173) was with that of landlord and tenant :

"... The position is exactly the same as that of a man who takes a lease ... for three months and wishes to renew it for a further period: the landlord can reject his application out of hand. No question of natural justice or anything of the kind arises, because there is no right ... which can be infringed. ..."

Once that is understood, the suggestion that the cases are of no use because they refer to 'aliens' reveals itself as a non-point, and it matters not for present purposes whether we call an applicant an alien or, whether on the other hand, we call him a person who has no right to remain in Hong Kong for a moment longer than was conferred by a permit given by the immigration authorities.

30. The principle in Schmidt has regularly been applied in Hong Kong to the case of unlawful entrants, or to those who have overstayed. It was approved by the Court of Appeal in Ng Yuen Shiu [1981] HKLR 352, 360. In 1993 the Court of Appeal, upon applications for judicial review by illegal immigrants of decisions by the Director of Immigration refusing them permission to stay in Hong Kong, held that as a general rule an illegal immigrant did not have a right to a hearing before the making of a removal order nor was there an obligation imposed upon the Director to consider each case on humanitarian grounds (see R. v. Director of Immigration ex parte Chan Heung Mui [1993] 3 HKPLR 533). Ho Ming Sai v. Director of Immigration [1994] HKLR 21 was a case of removal of two illegal immigrant daughters who came to Hong Kong to care for their schizprehic father. That Court of Appeal was unanimous in following the essence of Schmidt; Litton JA (as he then was) pointing out that there was no question of anyone needing to make out a case against the applicants before ordering their removal to the mainland, and Godfrey J (as he then was) saying that there was no room for a review on the ground that there was a failure to proceed in accordance with natural justice. Godfrey J emphasised the distinction between what a court might, on the one hand and as a matter of sympathy, wish for an applicant facing personal hardship or upset, and what, on the other hand, was dictated by law, and in that case, following the principles in Ng Yuen Shu and Schmidt, he noted that the applicants had "... no right, and no legitimate expectation of being allowed to stay here". The essence of the problem which faced the two applicants in that case was that there was no right or interest upon which they could erect those procedural benefits which otherwise would have flowed in their favour.

31. But that is not to say that once it was established that an applicant had no right of entry or no right to remain after entry had been granted, that the exercise of a statutory power in relation to that person was entirely immune from supervision :

"... Of course, those on whom administrative powers are conferred are not altogether immune from judicial review. On the contrary. It behoves every civil servant entrusted with administrative powers always to remember the judge at his elbow. ... Certainly, the court would be prepared to intervene in the event of any misuse by the Director of Immigration of his power under s. 13. If he were to abuse his power illegally (e.g., by refusing to consider an exercise of his powers in favour of an illegal immigrant unless bribed to do so) or irrationally (e.g., by refusing to consider an exercise of his powers in favour of any illegal immigrant of Chinese race or nationality) the court would intervene. But, further than that, I do not believe the court would or should go." (per Godfrey J in Ho Ming Sai, page 30)

Deportation and natural justice

32. Mr Harris argues that deportation is an altogether different matter, for it is a more draconian measure calling therefore, he contends, for a more active role by the courts, not least when it affects family life.

33. The authorities illustrate that the issue is not that black and white.

34. The Aliens Order of 1919 empowered the Secretary of State in the United Kingdom to make a deportation order against an alien if he deemed it to be conducive to the public good. It was contended that the Home Secretary could not lawfully make the order without holding an enquiry. In R. v. Leman Street Police Station Inspector ex parte Venicoff [1920] 3 KB 72, it was held that it was not for the court to pronounce whether the making of the order was or was not for the public good and further that ：

"... in dealing with a regulation such as that with which we are now concerned the value of the order would be considerably impaired if it could be made only after holding an inquiry, because it might very well be that the person against whom it was intended to make a deportation order would, the moment he had notice of that intention, take care not to present himself and would take steps to evade apprehension. I therefore come to the conclusion that the Home Secretary is not a judicial officer for this purpose, but an executive officer bound to act for the public good, and it is left to his judgment whether upon the facts before him it is desirable that he should make a deportation order. ..."

35. It is this decision upon which Mr Marshall, SC, for the respondent appears to place, albeit not on its own, considerable reliance. It is, however, a judgment which merits a qualification or a note. It was a case heard 18 months after the cessation of the hostilities of the First World War and, as the editors of de Smith say (at para.7/019), the courts then showed "an understandable reluctance to scrutinize the exercise of essential powers in such a way as to make it more difficult for the government to govern", and it was hard to persuade the court that emergency powers were subject to an implied qualification that persons adversely affected by their exercise were entitled to prior notification and an opportunity to be heard. Secondly, it must be noted - and the relevance of the distinction will soon become apparent - that that court was addressing a right to be heard before the making of a deportation order.

36. That said, the passage of years did not change the attitude of the courts to procedural safeguards for aliens before the making of a deportation order, as is evident from the decision in R. v. Governor of Brixton Prison ex parte Soblen [1963] 2 QB 243. The rationale for that view, expressed in Venicoff, was repeated in Soblen, that much of the object of the order would be defeated if the rules of natural justice were imported before the making of a deportation order. It was, however, said Lord Denning (at page 298) :

"... a question whether, after a deportation order is made and before it comes to be executed ... an alien may not in some circumstances have a right to be heard. ..."

So, too, in Schmidt did Lord Widgery suggest that deportation orders might import different considerations from those engaged when considering mere rights of entry, because deportation involved so much more of an interference with the deportee's person.

37. I think it can be safely assumed, and the courts have all along moved on the assumption, that the legislature intended in the case of the refusal of entry to those who have no right to enter, and in the case of the removal of illegal immigrants, or of those without the right of abode and whose permission to remain has expired, that generally speaking, the rules of natural justice will not apply. That has for long been the law and there is nothing in the Immigration Ordinance that detracts from the accepted approach. Nor do I see any provision or scheme within the Ordinance which demonstrates an intention to circumvent the rationale for not affording a proposed deportee the right to make representations before the making of a deportation order.

38. But that is not to say that after the making of such an order the right is intended in all circumstances and in all cases to be excluded. The power to deport, unlike the power to make a removal order, is vested in the Chief Executive. It may be invoked against the person who has been ordinarily resident in the territory for many years, so long as he or she is not at the time a person who has the right of abode here, whereas in the case of those considered to be undesirable immigrants, a removal order cannot be made if the person has been ordinarily resident in this region for more than three years. And it is to be recalled that there are extensive powers to detain deportees in custody pending deportation, although I acknowledge that there is also a power to detain those who are the subject of removal orders. There is not under section 20 the power to make a deportation order on the sole ground that a person is a prohibited immigrant. If an order were available on such a statutory ground, then I think there would be no room for the application of the rules of natural justice. But I would hold that under the Immigration Ordinance the rules of natural justice are not as a general rule excluded in the case of those against whom a deportation order has been made, particularly where the deportee has been lawfully landed and such permission as he has to remain in Hong Kong has not expired at the date the deportation order is made. However, what the content of the rule will require or what fairness will require in a particular case will depend upon the statutory limb under which the order is made, the status of the person in respect of whom the order is made, and the facts of the case.

39. So, where an order is made on the ground that the Chief Executive deems a deportation order to be conducive to the public good (see section 20(1)(b) of the Immigration Ordinance) and he deems it to be for the public good because, say, of matters personal to the deportee, such as his suggested conduct, character or connections, then in my judgment, the Chief Executive or his delegate will have the duty to put to the proposed deportee the reasons behind the order that has been made and afford to him an opportunity to put his own case. There will, however, be cases at the other end of the spectrum in which a minimalist approach will suffice.

This case

40. This particular case is one in which the applicant, though a mere visitor at the date of the deportation order, had also been ordinarily resident in the territory for some five years before he fell foul of the law. There is, in this case, no live issue about the right to make representations or the failure to give reasons. The applicant knows, and has always known, full well why he was to be deported and indeed it so happens in this case that he was told that even before the order was made, there being no risk in this case of evading deportation because he was notified of the possibility of the order whilst still in custody. He made copious representations, and the representations were considered.

41. The aspect of natural justice which is at hand is that of bias. Mr Marshall would have the court say that the rules against bias do not apply to the deportation of a mere visitor. Indeed, he went so far as to say that sections 20 and 55 of the Ordinance do not attract the rules against bias at all. I do not agree. In my judgment, a requirement that there be no bias accords with the most minimalist of approaches and is, in any event, but an aspect or extension of the requirement against bad faith, and it is a requirement which I would hold applies in this particular case.

42. In relation to his argument that these sections do not import the rules against bias, I have two further comments. First, that the question is never whether a statutory provision conferring powers of this kind imports the rules of natural justice, but rather whether the legislation excludes them. Secondly, he suggests as a material consideration that the administration can be trusted to exercise their powers in good faith. No doubt administrators generally do seek to exercise their powers conscientiously and in good faith, but the argument is unattractive. It is an argument which, if taken to its logical end, would dictate that the court should not have supervisory control over administrative action at all. It is too late to make that suggestion.

This case, and bias

43. The question then is whether bias has been established in this case. It is not argued that Mrs Ip was in fact biased in this case. It is said that the circumstances were such that there was a real danger of bias (in the sense of a real possibility of bias), or that there would be a reasonable suspicion of bias on the part of a fair minded and informed member of the public. I am invited to change the course which has been followed by Hong Kong courts hitherto, and apply the latter test. I have to say that I find some difficulty in following any significant difference for practical purposes between the two tests. The latter test is often summarised as a test which looks at the appearance of bias. But that can be misleading. The latter test presumes that the suspicion of bias rests not with the idle observer, but with the informed observer, and furthermore that the suspicion is a reasonable one. Now, if the observer who has the facts, and is therefore informed, reasonably then suspects bias, it is but a short step, I would think, to a conclusion that there was in fact a real possibility of bias. Nonetheless, assuming there may, in a particular case, be a practical difference between the two tests, I do not feel at liberty to apply the test which has been applied by the Australian courts and discussed in Webb. The Gough test was considered and applied by the Privy Council in an appeal from Hong Kong in the Panel on Takeovers & Mergers & Anr. v. Cheng Kai Man, William [1995] 3 HKC 517 decision, a decision since followed by Godfrey JA sitting as a judge of the Court of First Instance in Nam Poei Holdings Ltd. v. Stock Exchange of Hong Kong Ltd. [1998] 2 HKLRD 911. The test is now part of the law of Hong Kong, and was so immediately before 1 July 1997, confirmed as such by the court which was then Hong Kong's highest court. Until the test is changed by Hong Kong's highest court, if ever it is, it seems to me that the Gough test must continue to be applied here. In any event, the application of the Webb test, if I may call it that, would not alter my conclusion.

44. It is not, I think, apt to describe the Director of Immigration, in submitting papers to the Chief Executive (or Secretary for Security as his delegate) recommending deportation, as a party to proceedings. The Chief Executive is entrusted with the duty of deciding whether persons in the categories covered by section 20 of the Ordinance should be deported, and in the exercise of that duty it is necessary for facts and for relevant considerations to be put to him. Who else can reasonably or best perform that function of assisting the Chief Executive but the Director of Immigration as the repository of information about a prospective deportee's immigrant status? The position in principle is, I think, not much different from that of a subcommittee whose function it is to conduct preliminary investigations, to marshall facts, and, if it is thought by the subcommittee to be warranted, to forward the facts to the committee charged with a particular function or duty, with a recommended course of action. In such cases, it is not assumed that a member of the subcommittee is disqualified from then sitting on the parent body when it makes its decision, although the circumstances of a particular case may warrant such disqualification. If the proceedings before the parent body are in effect an appeal from the recommendation of the subordinate body, then different considerations would no doubt apply.

45. There are a number of reasons why in this particular case there arises no risk or danger of bias on the part of the Secretary for Security when she took her decisions in September and April. The original decision of the Secretary for Security, Mr Peter Lai, was not a decision made upon some sort of appeal from the Director of Immigration. Nor did the paper from the Director of Immigration itself constitute a decision. She was not in any event privy to the investigation of the case by her department when she was Director of Immigration, or when the Secretary for Security took his decision in April 1998. Nor was the decision which she was asked to make in September 1998 an appeal from the decision of the Secretary for Security of April 1998. Rather it was an application under section 55(1) of the Ordinance which reads as follows :

"55. Rescission of deportation order

(1) The Governor may rescind the deportation order made against any person, but the rescission of the deportation order shall not affect the power of the Governor to make another such order against that person. ..."

46. Section 55 provides for a new and entirely separate application, no doubt designed to include applications by those who, after deportation, wish to return by reason of some change in circumstance. I think that it is quite unrealistic to suggest that a Secretary for Security who has previously been the Director of Immigration might, despite her absence of contact with the processing of a particular case, nonetheless be materially influenced by some sense of loyalty to those in her former department to make a decision which he or she might not otherwise make. If the argument held good, then all policy secretaries would be disqualified from being party to any decision-making process initiated by a department in which that secretary had once worked. Indeed, at its root, it presupposes that a policy secretary has not the gumption to disagree with a colleague.

47. In short, I am satisfied that there arose in this case no real possibility of bias such as would warrant the quashing of the two decisions made by Mrs Ip.

2. Unreasonableness

48. It is next contended by the applicant that the decision to deport him for life was manifestly unreasonable. I have not used the term 'Wednesbury unreasonable' because, once again, I am invited to say that there is a new test, a test to be applied where fundamental rights, such as the right to a family life are at stake, and Mr Harris has shown me a case, R. v. Lord Saville of Newdigate & Others ex parte A, Times Law Report, 22 June 1999, to such effect. In such cases, it is said that the correct test is whether a reasonable body on the material before it could have reasonably concluded that the interference with human rights was justifiable. I do think that this is the case in which to analyse in any depth the proposition which is put to me. In the first place, I do not think that this is the type of case to which the decision in Savill applies. The Divisional Court of the Queen's Bench Division there said that "... where the decision involved possible interference with fundamental human rights" (and the rights there affected were the right to life and rights of personal security) "and required anxious scrutiny, the court would adopt a more interventionist role and its review of the decision was more stringent and intensive" than in other cases. In so far as Mr Harris prays in aid the right to a family life, that right must be looked at in actual context. The true question is whether and if so, to what extent, the applicant had a right to a family life in Hong Kong. If and in so far as that right in Hong Kong existed, it was in any event to terminate in July 1998 when his permit to remain expired. He could thereafter have had no call on the immigration authorities to be allowed to stay on the footing, on its own, that he had family in Hong Kong. If there was before that, in April 1998, a right to a family life which the Secretary for Security was bound to take into account, it extended for practical purposes only to that very limited extent. Furthermore, the right which he enjoyed to be with his family in Hong Kong until July 1998 was itself conditional upon his not taking employment. But he then breached that condition and thereby forfeited that right.

49. The decision is not in any event Wednesbury unreasonable, and is also one which a reasonable body administering Hong Kong's immigration laws could, on the material before it, have reached. It matters not, in other words, as far as I am concerned which test is applied, for the result is the same.

50. The immigration authorities in Hong Kong are daily faced with difficult immigration decisions which involve the removal of those who have family members in Hong Kong. Each case has its own story, and its own genuine compassionate circumstances, and many decisions will effect the splitting of families or the withholding of children from the care of their parents. The sad facts of Ho Ming Sai are but one example. In the present case we have a person who had no right of abode in Hong Kong; who was permitted to enter for a limited purpose, namely, employment, and was told in December 1996 that that purpose was at an end. He was therefore in Hong Kong for only so long as the immigration authorities would allow, and it was a clear condition of the permission given that he should take no employment. Yet he not only breached that condition, but he also practised a fraud on the immigration authorities. How can it then be said that no reasonable person exercising powers under the Immigration Ordinance in this small territory with peculiar and well known immigration problems, and with many thousands wishing to join their families who are living in Hong Kong - how could it be said that no reasonable Secretary for Security could have said to this man : you are no longer welcome in Hong Kong, and we do not want you to come back? What is more, the family unit in this case, which is so emphasised in support of the applicant's argument is not itself imbedded in Hong Kong. The lady with whom the applicant lives is here on limited contracts, and will be permitted to remain for so long as her employment visa lasts. It is not suggested that she has the right of abode in this territory.

51. In the course of his argument on the question of unreasonableness, Mr Harris has taken me to a number of other cases. One such case was Singh v. Secretary for Security [1996] 6 HKPLR 440, where Keith J (as he then was) ruled that the making of the deportation order required the striking of a balance between the threat posed by the potential deportee's presence in Hong Kong and the hardship which deportation would cause him and innocent third parties. Mr Harris said that the balance struck in the present case was manifestly warped. It is not suggested that compassionate factors were not taken into account. If that were the suggestion, that is clearly contraverted by the evidence. But, in any event, the weight to be given to compassionate circumstances and the weight to be given to the fact and circumstances of an offence which triggers the operation of section 20(1)(a) of the Ordinance will themselves depend on a number of factors. Persons like the applicants in Singh whose families had been ensconced here for many years and who had themselves been living in Hong Kong for 12, 16 and 22 years respectively, might reasonably expect more sympathetic consideration in the deportation context, even though convicted of an offence of violence, than a person who is here for a few months as a visitor and commits an offence, the nature of which is a fraud on the authorities. Nor does it help to take the court, as I was taken, to a decision in Australia where the court quashed a determination to deport a man who had been sent to prison for six years for a drugs offence, and to say that by comparison this applicant's offence was much less serious. Each country has its own legislative regime and its own immigration problems, and Hong Kong is a small territory with large immigration problems.

52. It is said that a decision could have been made to deport the applicant for but a few months and that a life's deportation was unnecessary. This, again, is unrealistic and ignores the immigration status of the applicant at the date of his deportation and the actual circumstances of this case. In the normal case of someone whose deportation is warranted because he has committed a criminal offence in Hong Kong, deportation is not a sentence or punishment which is there to fit the crime. Deportation is triggered because the territory has decided that it no longer welcomes that particular visitor, wants him to leave, and does not want him as a visitor again. Whilst it is open to the host territory to say to a visitor in a certain instance that it requires the visitor to leave only for so long as a particular threat exists, that is an event which will arise unusually. A deportee is, as a rule, not entitled to expect some finite period to his deportation according to the circumstances of his case. Normally, he is not welcome back, and that means what it says. It is open to him to ask in the future to be allowed to come back (section 55), and he is allowed to ask that the host country holds its hand on his proposed expulsion (section 54), but in the absence of the most exceptional circumstances, a person in the applicant's position cannot be heard to say that he should have been deported for only six months, or 12 months.

3. Unequal Treatment

53. There is said to be a policy under which Vietnamese asylum seekers -those who have been screened out as non-refugees - are not deported if they are convicted of a criminal offence and receive a sentence of six months or less. This is said by the applicant to place Vietnamese asylum seekers in a position more favourable than those in Hong Kong without the right of abode against whom deportation orders are made. It follows, so the argument goes, that in taking decisions to deport or to rescind deportation orders, the Chief Executive, or the Secretary for Security as his delegate, is having regard to a policy which is unlawful, in that nationals of some countries are deported when imprisoned for six months but that nationals of other countries are not, and that such differentiation contravenes Article 25 of the Basic Law which provides that all Hong Kong residents shall be equal before the law. The suggested policy to which the applicant makes reference came to light because of papers in the possession of the applicant's solicitors in another case altogether.

54. The evidence filed by the respondent does not make clear, as one might have expected, what the policy is in relation to Vietnamese asylum seekers and deportation, but I gather that they are indeed treated differently for deportation purposes from persons who have been landed under section 13 of the Immigration Ordinance. Arguments have traversed the application of Articles 24 and 25 of the Basic Law, and whether the applicant is a resident for the purpose of those articles, and I have been asked to cogitate reservations in the Bill of Rights, to consider the International Covenant on Civil and Political Rights as applied to Hong Kong when it comes to immigration legislation, and to chew over much more besides. But there is no need in this case to go into all of that. The evidence is that there is no distinction in policy towards aliens lawfully present in Hong Kong and who have committed offences here. "Whatever nationality an alien is", explains Mr Mak of the immigration authorities, "whether Nepalese, Vietnamese, or for example, from the United Kingdom or from the United States of America, if they commit an offence punishable with two years' imprisonment, they are liable to be deported. There is no policy that aliens of one nationality lawfully here, are not deported if the actual sentence is six months' imprisonment or less and they are of previous good character. Should a Vietnamese national be lawfully admitted to the HKSAR on an employment visa as a Vietnamese chef and later as a visitor to the HKSAR and he commits an offence for which the sentence is six months imprisonment and he is of previous good character he is equally, in terms of applicable policy, as liable to deportation as the applicant in this case."

55. Mr Mak, who makes this affirmation, has traced the case to which the applicant's solicitors referred. It was the case of a person not landed in Hong Kong but admitted under the special framework of Part IIIA of the Immigration Ordinance. His removal, or her removal, was to be effected under section 13E of that Ordinance. It would appear that in respect of such a person, there was, or is, indeed a policy of not deporting if the offence was met with a sentence of six months' imprisonment or less. But this applicant is not within that category of person for whom Part IIIA was a special regime. Under that regime, there is provision for summary removal under section 13E of those screened out. Others from Vietnam who are landed in Hong Kong under section 13 of the Immigration Ordinance will be treated, if the question of deportation arises, in accordance with policies no different from that applied to the case of the applicant. The special arrangements for those who entered under Part IIIA of the Ordinance are too well known to require articulation in this judgment, and the argument raised by the applicant in this regard is one which simply does not compare like with like. There is in fact no discrimination within the relevant class of prospective deportees, and the argument accordingly fails.

56. There was a fourth ground within those advanced in the original application for leave to apply for judicial review, namely, that the representations of the applicant dated 1 April 1998 were not considered by Mr Lai when he made the decision to deport. That ground has been abandoned, because it is accepted that the letter containing those representations seems never to have left the place of the application's detention.

Conclusion

57. In the circumstances, I find that the decisions which are the subject of the attack in this judicial review were made lawfully, and that there exists no valid ground upon which to make an order of certiorari to quash them or any of them. The applications (including an application for a declaration) are accordingly dismissed. There will be a costs order nisi that the applicant shall pay the respondent's costs of and occasioned by this motion.

The Bundle of Documents and Practice Directions

58. I take this opportunity of reminding practitioners of the text of Direction 1.9.3 of the Constitutional and Administrative Law List Practice Directions :

"The bundle should be properly indexed, and dividers should be used. The preparation of bundle should not simply be the mechanical reproduction of materials. Thought should be given to the format which would be of greatest use to the judge. In most cases it will be more convenient for the exhibits to be in a separate section of the bundle. In that event the exhibits should follow each other chronologically (without the front or back sheets), i.e. in the order in which they came into existence, rather than the order in which they were produced as exhibits, and should be accompanied by an index identifying the exhibit by page and exhibit number. In any event, to enable the judge to find quickly a document referred to in an affidavit, the number of the page which the document can be found should be marked at the side next to the appropriate part of the affidavit."

The bundle prepared in this case by those acting for the applicant had no regard to that Direction. Indeed, had they set out to disobey it in every detail, they could not have fared better. There was simply placed into one bundle a series of affirmations with exhibits attached; the index failed to identify even a single key document; the exhibits followed no chronological order of any kind; and in between affidavits and their exhibits were thrown a letter here, and a summons there, and a couple of notices of application.

59. I would like to think that practitioners who present bundles in that sort of condition would change their ways if they knew how difficult it is for a court to prepare for a case, then to follow a case, and then to work on the judgment, when faced with such an unhelpful bundle of documents.

60. Practitioners should please take note that henceforth, in cases within this List, the presentation of a bundle in this condition is likely to result in an adjournment with a requirement that the costs thrown away be borne by the solicitors personally.