NG KA LUN v. COMMISSIONER OF POLICE AND ANOTHER

HCAL 1593/2020

[2021] HKCFI 1489

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1593 OF 2020

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D E C I S I O N

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1.  This is an application for judicial review of (i) the decision (“the Decision”) of the Commissioner of Police on 1 May 2020 to demand the Applicant to produce his proof of identity for inspection pursuant to Section 17C of the Immigration Ordinance, Cap 115 (“the Ordinance”), and (ii) Section 17C of the Ordinance.

2.  In the Form 86 dated 31 July 2020, the Applicant sought: (i) an order of certiorari to quash the Decision, (ii) a declaration that on its proper interpretation, the power under Section 17C(2) of the Ordinance to demand production of proof of identity for inspection can only be exercised for purposes connected with immigration control under the Ordinance, and (iii) alternatively, a declaration that Section 17C(2) of the Ordinance is inconsistent with Article 28 of the Basic Law of the HKSAR (“the Basic Law”) and Article 5(1) of the Hong Kong Bill of Rights (“HKBOR”), and Article 31 of the Basic Law and Article 8(1) and (3) of the HKBOR.

3.  Section 17C(2) of the Ordinance states as follows:

“A person who is required by subsection (1) to have with him proof of his identity shall on demand produce it for inspection by -

(a) any police officer;

(b) any immigration officer or immigration assistant; or

(c) any person or member of a class of persons authorized for the purpose by the [Chief Executive] by order published in the Gazette,

who is in uniform or who produces, if required to do so, documentary identification officially issued to him as proof of his appointment as a police officer, immigration officer, immigration assistant or, as the case may be, person authorized under paragraph (c).”

4.  On 4 August 2020, the Court granted to the Applicant leave to apply for judicial review on consideration of papers alone.

5.  On 14 May 2021, the parties submitted to the court a “Statement (Pursuant to Practice Direction SL 3 Para 23(1))” (“the Agreed Statement”) and a Draft Consent Order both dated 14 May 2021 with a view to the disposing of the present application by consent.

6.  The Agreed Statement states as follows:

“[1] On 1 May 2020 at a street counter on a footbridge connecting MTR Hung Hom Station Exit A1 and the Hong Kong Polytechnic University, the Applicant was asked by a police officer (‘the Officer’) to produce his Hong Kong identify card for inspection pursuant to section 17C(2) of the Immigration Ordinance (Cap.115) (‘the Decision’).

[2] On 14 May 2020, the Applicant made a complaint to the Complaints Against Police Office (‘CAPO’) against the Officer concerning, inter alia, the making of the Decision. As of the date of this Statement, investigation by the CAPO is ongoing.

[3] By a Notice of Application for Leave to Apply for Judicial Review (‘Form 86’) dated 31 July 2020, the Applicant sought leave to challenge the Decision and alternatively, the constitutionality of section 17C(2) of the Immigration Ordinance. In paragraphs 53 and 54 of the Form 86, the Applicant stated that given the application for judicial review involves issues of proper interpretation and/or constitutionality of section 17C(2) of the Immigration Ordinance, the procedure of making a complaint against an individual police officer is not a suitable alternative remedy.

[4] On 8 August 2020, leave was granted to the Applicant to apply for judicial review. On 18 August 2020, the Originating Summons for Judicial Review and the Form 86 were filed by the Applicant and served on the 1^st and 2^nd Respondents (collectively ‘the Respondents’).

[5] On 17 November 2020, the Respondents wrote to the Applicant inviting the Applicant to dispose of the present proceedings by consent as there was no dispute between the parties that the power under section 17C(2) of the Immigration Ordinance can only be exercised for purposes connected with immigration. Without the issue of the proper interpretation and/or constitutionality of section 17C(2) of the Immigration Ordinance, the handling of the complaint by CAPO would be the appropriate and suitable avenue for resolving the Applicant’s complaint against the Officer regarding the Decision.

[6] On 6 May 2021, the Applicant and the Respondents through their respective legal representatives agreed to dispose of the present proceedings in the terms as set out in the draft Consent Order annexed hereto.

[7] In light of such development, the Applicant and the Respondents hereby jointly apply and humbly request this Honourable Court to make an order in the terms set out in the draft Consent Order annexed hereto for the purpose of disposing [of] this application for judicial review.”

7.  The Draft Consent Order, so far as material, states as follows:

“[1] There be a declaration that, on proper interpretation, the power under section 17C(2) of the Immigration Ordinance (Cap 115) to demand production of proof of identity for inspection can only be exercised for purposes connected with immigration;

[2] The Applicant’s application for judicial review be allowed to the extent as set out in paragraph 1 above;

[3] Subject to paragraph 2 above, leave to the Applicant to discontinue these proceedings against the Respondents; and

[4] Respondents to pay 50% of the Applicant’s costs of the application for judicial review up to 17 November 2020 to be taxed on party and party basis if not agreed, and thereafter there be no order as to costs.”

8.  Both the Agreed Statement and Draft Consent Order are signed by solicitors for the Applicant and Senior Government Counsel (Ag) for the Respondents.

9.  The court is satisfied that the proposed declaration is correct in law, and the orders in the Draft Consent Order are proper orders to be made.

10.  Accordingly, the court makes an order in terms of the Draft Consent Order.