FIDELIS AHUWARAEZEAMA EMEM v. SUPERINTENDENT OF VICTORIA PRISON

1998, No.HCAL26

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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J U D G M E N T

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Background

1. This is an application for the discharge from custody of the applicant pursuant to the issue on Saturday, 9th May this year, of a writ of habeas corpus. I comment in passing that it would have accorded more with established practice had I either adjourned the matter for the application for the issue of the writ to being heard on notice, or directed the application to be made by originating summons.

2. A return to the writ was read in court on Monday this week, that is 11th May. The respondent to the writ, that is the Director of Immigration, asked for time to file evidence and the applicant himself had not filed any evidence, although those acting for him had. The matter was therefore adjourned to today.

3. There are some facts in dispute, but the following facts are not. The applicant is a national of Nigeria. He first came to Hong Kong in August 1997. His passport shows that since then he has entered and left Hong Kong on many occasions, going to the Mainland and back. He came into Hong Kong on 26th August, and went out on 20th November. He came in on 21st November, and went out on 20th December. He came in on 22nd December, and went out on 5th January. He came in on 6th January, and went out on 12th January. He came in on 15th January, and went out on 18th January. He came in on 21st January, and went out on 30th January. He came in on 31st January, and went out on 9th February. He came in on 13th February, and went out on 22nd February. He came in on 1st March, and went out on 8th March. He came in on 13th March, and went out on 16th March. He came in on 17th March, and went out on 20th March. He came in on 28th March, and went out on 3rd April. He came in on 4th April, and went out on 10th April. And then he tried to enter again on 16th April. That is when he was refused entry.

4. He says he runs a business and has been sourcing goods for clients in Nigeria.

5. His attempted entry to Hong Kong on 16th April 1998 was his 14th since August 1997 - his 13th since late November 1997. All previous attempts had been successful. He has a bank book in Hong Kong which he has exhibited to his affidavit in support of his application, and it shows that the largest amount of money in it from 17th November 1997 to 6th April 1998 was HK$386.15, although on 7th April there was an injection of funds to the tune of HK$1,900.

6. On 16th April 1997 he returned, crossing the border from Shenzhen through or at Lo Wu, seeking entry to Hong Kong. He was however refused entry by the Immigration Officer and he was then detained pending removal to Nigeria.

Complaints

7. Not only does he object to that detention, but he says that he does not want to go to Nigeria and ought to have been permitted to recross the border and go back to Shenzhen, or he ought to have been permitted to go to Macau where he says he had visa free access. So he says that his detention was, in the circumstances described, unlawful.

8. Complaint is also made of the length of his detention, and it is argued that since such detention as may be permitted by the Immigration Ordinance must be limited to detention for only such time as is reasonably necessary to carry out removal, he has been detained for far too long, so that continued detention is unlawful.

9. The return to the writ dated 11th May 1998 contends that the detention is lawful because the applicant is detained pending removal from Hong Kong under the provisions of section 18 of the Immigration Ordinance, and by virtue of an authorisation issued under section 32(1)(a) of the Ordinance.

The Legislation

10. Section 4 of the Immigration Ordinance provides that an Immigration Officer may examine any person on his arrival or landing in Hong Kong, and a person who is so examined may be required by the Immigration Officer or an Immigration Assistant to submit to further examination.

11. Section 11 of the same legislation stipulates that an immigration officer may, on an examination under section 4(1)(a) of a person who by virtue of section 7(1) may not land in Hong Kong without the permission of an immigration officer or immigration assistant, give such person permission to land in Hong Kong but an immigration officer only may refuse him such permission. It is common ground that this applicant is a person who, by virtue of section 7(1), may not land without permission.

12. Section 18 of the Ordinance provides that an immigration officer may remove from Hong Kong in accordance with section 24 a person who, pursuant to an examination under section 4(1)(a), is under section 11(1) refused permission to land in Hong Kong.

13. Section 24 provides that where a person is to be removed from Hong Kong under section 18, an immigration officer may give directions for the removal of such a person to a specified country. And "specified country" under section 2 of the Ordinance means a country or territory of which a person who is to be removed from Hong Kong is a national or a citizen.

14. It is common ground that the applicant is a national of Nigeria.

The Return to the writ

15. The superintendent of the prison in which the applicant is held says in his Return that the applicant is detained pending removal under section 18 and by virtue of an authority issued under section 32(1)(a) of that Ordinance signed by Mr Tang Man Kit, Senior Principal Immigration Officer, and transmitted by a memorandum dated 21st April 1998, and the authority for the detention which is exhibited to the return reads as follows:

"Whereas Mr EMEM Fidelis Ahuwaraezeama is a person who is to be removed from Hong Kong under Section 18 of Immigration Ordinance.

In exercise of the powers conferred by Section 32(1)(a) of the Immigration Ordinance, I, TANG Man-kit, Senior Principal Immigration Officer, authorize the continued detention of the said Mr EMEM Fidelis Ahuwaraezeama for a period of not more than two months commencing on 16th day of April 1998.

Mr EMEM Fidelis Ahuwaraezeama was detained for not more than 48 hours from 16th day of April 1998 under the authority of the Immigration Officer, CHAN Hok-man and verbal authorization for his continued detention is given by me at 1250 hours on 18th April 1998.

Dated this 20th day of April 1998."

The Order for Detention

16. Section 32(1)(a) of the Immigration Ordinance provides as follows:

"A person who is to be removed from Hong Kong under section 18 may be detained until he is so removed, and may be so detained for not more than 48 hours under the authority of an Immigration Officer and thereafter under the authority of the Director."

It is accepted by Mr Harris on behalf of the applicant that Mr Tang Man Kit was duly and properly delegated to exercise the power under section 32 on behalf of the Director. It is the legality of the exercise of the power in this case that is challenged.

17. In evidence filed by the Director of Immigration, it is said that when he arrived on foot from Shenzhen in the afternoon of 16th April the applicant had $34 on him, though he claimed to have much more by far in a bank here; that he had a return ticket to Nigeria at his hotel in Hong Kong, although he did not want to return there; and that he could prove no business conducted there. The evidence is that he asked to be allowed to return to the Mainland and there seek a new visa. The Shenzhen authorities were contacted and told about the applicant's personal and travel document details, about the refusal to allow him to land here, and that he only had $34 on him. His admission to the Mainland was refused. So the applicant was refused entry into Hong Kong and detained pending removal. On 18th April, further detention, as I say, was authorised by the Senior Principal Immigration Officer for a further period of two months.

Argument and analysis

18. Now the purpose of an application of habeas corpus is to determine whether there is lawful authority for a detention. It is not to determine the reasonableness of any decision or whether there has been some failure to observe the rules of natural justice. Those are matters properly within the realm of judicial review.

19. It seems perfectly plain to me that the superintendent of the prison holds the applicant under an authorisation lawfully made. The applicant sought to enter Hong Kong. He was lawfully refused permission so to do. That being the case, an immigration officer was by law entitled to have him removed and to have him removed to a specified country, and to this specified country in this particular case, and to detain him pending removal. The sections of the Ordinance to which I have referred conferred those respective powers, and the underlying facts were sufficient to give rise to the right to exercise those powers.

20. Mr Harris says, however, that the power to detain in section 32 carries with it a requirement that it is not to be employed arbitrarily and that it is implicit within the power that it may be employed only when necessary. The question of arbitrariness and necessity arises, in my judgment, in the context of the exercise of powers already given. In other words, it goes to the reasonableness of the exercise of the power, and not to the question whether the power exists in the first place.

21. But, even if I were to approach it in the manner suggested by Mr Harris, in my judgment it gets the applicant nowhere on the facts of this case. There was nothing in this case which, in my judgment, is shown to have been arbitrary about the exercise of the power to detain. The applicant had been refused entry into the Mainland. It is said that that was unfair and inappropriate because he should have been allowed to cross and make his application there on the other side of the border. That was one way to do it. But on the facts of this particular case there was nothing at all unreasonable, let alone Wednesbury unreasonable (and we really are here straying well into judicial review) about the manner in which the matter was approached. It is said that the immigration officials on the other side of the border were misled about the money the applicant had at his disposal. But the applicant had in fact only $34 on him. There is nothing even today which is other than very nebulous evidence to suggest that he had anything else, save for $1900 in the bank. The truth of the matter is that he had in fact, as matters transpire, no return air ticket for I am told, in his own affidavit filed for the purpose of these proceedings, that he had allowed it to expire. He no doubt produced nothing of substance to the immigration authorities to show business conducted here, and subsequent checks cast grave doubt on his story. Indeed he has produced very little of any substance to this court, even though asked to provide support of evidence in the business ventures in which he at first says he was engaged. All he can show for his many trips since August 1997 of his business ventures is a suggested order dated 11th May 1998, for handkerchieves though I accept, as he says, that it is difficult in the circumstances in which he finds himself to gather documents together. He has been back and forth and back and forth time and time again, and I do not think that the authorities on the Mainland were at all misled.

22. So if this were an application for judicial review and even if arbitrariness and unreasonableness were relevant for the purpose of this application, no such arbitrariness or unreasonableness has, in my judgment, been shown. On the contrary, I think the evidence which I have before me shows a responsible and common sense attitude on behalf of the immigration authorities.

23. Now Mr Harris says that be all that as it may, the power to detain is one that lasts only for so long as is reasonably necessary to effect the purpose of removal. He prays in aid the principle to which reference is made by Woolf J (as he then was) inR v. Governor of Durham Prison, Ex parte Hardial Singh [1984] 1 WLR 704, that there is implicit in such a power to detain a limitation to a period which is reasonably necessary for the attainment of the objective, in this case, the removal to a specified country. What is reasonable will depend on the circumstances of the case. In that particular case the judge held that unless the Home Office produced evidence within three days to show that the applicant was about to be deported, the court would order his release.

24. In this case, the applicant was detained on 16th April. The evidence is that inquiries were then made about his claim to an air ticket, his claim to have something like US$25,000 in a bank account and his claim that he could be supported by friends here. That took a few days to check and the result of the checks were such that his story was not accepted.

25. I am also told that on 22nd April public funds were made available for him to be flown to Nigeria on 1st May, but the applicant did not want to go, so the matter was reconsidered. A second flight was arranged for 11th May. Then Macau was mentioned by the Legal Aid Department on the applicant's behalf as to a possible place for him to be admitted, but enquiries as to his chance of being admitted there were not in the result favourable to him.

26. I do not think, in the circumstances, that he has been detained for an unduly long time. In any event a greater part of the detention period lies at his own door. By the time he came before me on the habeas corpus application, he was on the very brink of going. I have no reason to suppose that he will, after this application's determination, be further detained for any longer than is absolutely necessary and reasonable.

Conclusion

27. In conclusion I say this. I am here to examine the legality of the detention and that is all. Once it is shown that the underlying facts for the exercise of the powers existed, then that is the end of the matter. And they clearly did exist. The applicant's detention was, I am satisfied, within the power of the Immigration Officers to authorize, and the Superintendent holds the applicant pursuant to an authorization lawfully executed.

28. On the question of arbitrariness, if it arises, I am against the applicant's case and I am also against the applicant in his argument on delay.

29. The detention is lawful.

30. In the circumstances, the application for his release must fail and the writ is discharged. The Respondent will have her costs of this application.

31. On the question of stay pending possible appeal, although I am conscious of the fact that this is a matter which affects the liberty of an individual, in my judgment this is an application so entirely devoid of merit that I see no justification for ordering a stay and I decline to do so. It is of course open to the applicant to go to the Court of Appeal to seek an order of stay.

(F. Stock)

Judge of the Court of First Instance,
High Court.