CACV000195/1990
IN THE COURT OF APPEAL
1990, Nos. 194 and 195
(Civil)
EX-PARTS
IN THE MATTER of an application for leave to supply for Judicial Review and for a writ of Habeas Corpus ad Subjiciendum
AND
IN THE MATTER of MENG CHING HAI of Victoria Prison, Old Bailey Street, Hong Kong Detainee/Businessman
(Applicant/Appellant)
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Coram: Fuad, V.-P., Power & Penlington, JJ.A.
Date of Hearing: 23 January 1991
Date of Judgment: 23 January 1991
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JUDGMENT
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Fuad, V.-P.
1. These are appeals from decisions given by Bewley, J. on 6th December 1990 when he refused two applications brought, ex-parte, by the appellant Meng Ching Hai (a) for leave to apply for judicial review and (b) for a writ of habeas corpus.
2. The history of the matter goes back to 1989 and the whole story is told in a judgment handed down on 30th November last year (Civil Appeal Nos. 150 and 151 of 1990) when this Court (Fuad, V.-P., Clough, J.A. and Kaplan, J.) gave its reasons for dismissing appeals by the same appellant against the decision of Mortimer, J. given on 30th August 1990 whereby he rejected an application for judicial review brought by him, as well as his related application for a writ of habeas corpus. The grounds raised before Bewley, J. were quite different from those canvassed and decided in the appeals to which I have referred.
3. On 5th September 1989, the appellant pleaded guilty before a magistrate to two offences under section 42 of the immigration ordinance, Cap. 115 ("the ordinance"), and he was sentenced to concurrent terms of 9 months' imprisonment on each of the two charges.
4. Section 42(4) of the Ordinance provides that any person guilty of an offence under that section is liable, on summary conviction, to a fine of $20,000 and to imprisonment for 2 years. Section 20(1)(a) of the Ordinance gives the Governor in Council power to make a deportation order against an immigrant who is not a British citizen or a United Kingdom belonger if "[he] has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years."
5. As will, be seen, if the submission made by Mr. McCoy before Bewley, J., and repeated before us, is sound, it would mean that the Governor in Council had no power to make a deportation order against the appellant. It would therefore follow that he has been unlawfully detained under the authorization issued pursuant to section 32(3) of the Ordinance ever since his release from prison, having served his sentence with full remission, sometime in January 1990.
6. In the Notice required by RSC 0.53, r.3(2) the grounds for the reliefs sought were put in this way:
1.
That the said Deportation Order was made without jurisdiction as the Applicant was not a person who, pursuant to section 20(1)(a) Immigration Ordinance, Cap.115, had 'been found guilty of an offence punishable with imprisonment for not less than 2 years ', as the Applicant was convicted of a summary offence for which the maximum punishment was, pursuant to section 42(4)(b) Immigration Ordinance, Cap.115 '2 years imprisonment'.
2.
'Not less than 2 years' means more than 2 years imprisonment : s.71(1)(a) Interpretation and General Clauses Ord. Cap.l, Thompson v. Stimpson [1961]1 QB 195; In re Hector Whaling Ltd [1936] Ch 208, R. v. Turner [1910] 1 KB 346."
7. Submissions based on these grounds were rejected by Bewley, J. and the short note he made of his judgment reads as follows:
"Computation of period of notice is far cry from interpreting period of maximum sentence. In this context 'not less than 2 years' can only mean '2 years or more'. Leave refused."
8. Mr. McCoy held a difficult brief. I do not think that any reliance can be placed on section 71(1)(a) of the Interpretation and General Clauses Ordinance, or upon the authorities mentioned in the O.53, r.3(2) Notice. The section is inapplicable, and the cases not in point. We are not here, as the judge pointed out, concerned with the computation of time but simply with interpreting what is meant by the expression "not less than 2 years" when used in section 20(1)(a) of the Immigration Ordinance.
9. In my judgment, the words used by the legislature are precise and unambiguous and no task of interpretation is involved. It is only necessary for us to apply the words used in their ordinary sense. I respectfully agree with the judge that "not less than 2 years" means 2 years or more. With great respect to Mr. McCoy, it seems to me quite unreal to argue that the expression is not plain and that it might mean "2 years and more" or "more than 2 years". If the legislature had so intended it could have enacted that an immigrant would be liable to deportation if convicted of an offence punishable with imprisonment exceeding 2 years, but that is not what the legislature said.
10. As the Editors of the 1991 Supreme Court Practice observe in paragraph 53/1-14/8 on page 823:
"The purpose of the requirement of leave is to eliminate frivolous, vexatious and hopeless applications for judicial review without the need for a substantive inter pa rtes judicial review hearing; and to ensure, that an applicant is only allowed to proceed to a substantive hearing if the Court is satisfied that there is a case fit for further investigation at a full inter partes hearing.
11. It seems to me that the purpose of our O.53,.r.(3)(1) has been achieved in this case; the application for judicial review as rightly stopped in its tracks.
12. Mr. McCoy conceded that the submissions he would have made on the ex parte application for habeas corpus related to procedure (whether the judge had the right simply to reject it) and had no continued relevance if the Court were to conclude that leave was correctly refused for the application for judicial review. In these circumstances, I would dismiss the appeals.
Power, J.A.:
13. I concur, with nothing to add.
Penlington, J.A.:
14. I also agree that these appeals should be dismissed for the reasons given by Fuad, V.-P..
Representation:
Mr. G.J.X. McCoy and Miss Rebecca Li (M/s Poon & Dissanayake) for the Appellant