IQBAL SHAHID AND OTHERS v. SECRETARY FOR JUSTICE

CACV 53 & 54/2009
CACV 53/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 53 OF 2009

(ON APPEAL FROM HCAL NO. 150 OF 2008)

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BETWEEN

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J U D G M E N T

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Hon Ma CJHC :

1.  The Applicants in these appeals (which emanate from judicial review proceedings) are all from Pakistan who seek asylum (under the provisions of the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol (“the Refugee Convention”)) or are making a claim with the Hong Kong Government as torture claimants (under the Convention Against Torture and Other Cruel and Degrading Treatment or Punishment 1984 (“the Torture Convention”)); some claim both. All have been prosecuted in the Magistrates’ Court for the offence of unlawful landing and remaining in Hong Kong contrary to section 38(1)(b) of the Immigration Ordinance, Cap. 115 (“the IO”).

2.  The issues before us include a consideration of the Respondent’s prosecution policy regarding asylum seekers and torture claimants (“the Prosecution Policy”). There is also to be determined an important issue regarding the legal effect of the recognizances which were required by the Director of Immigration from the Applicants pursuant to section 36 of the IO; specifically whether a recognizance under that provision amounts in law to authority from the Director of Immigration to remain in Hong Kong for the purposes of section 38(1)(b). I shall presently identify the issues more precisely. I should, however, first set out the relevant background.

Background

3.  The decision of the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 established an obligation on the Hong Kong Government to ensure that the highest standards of fairness be applied to persons who were torture claimants under the Torture Convention. Specifically, the Government was not to deport such claimants until a proper assessment of their claims had been undertaken. The practical effect of this decision has been for torture claimants (and, by indirect application of the Prabakar decision, asylum seekers under the Refugees Convention) to be able to remain in Hong Kong during the time their claims are processed. Claims for asylum under the Refugees Convention are processed by the United Nations High Commission for Refugees (through its office in Hong Kong), since Hong Kong is not a party to that Convention. Torture claimants under the Torture Convention, however, are processed by the Hong Kong Government, as that Convention applies to Hong Kong.

4.  The Applicants entered Hong Kong illegally on various dates in 2007 and 2008. Soon after they had done so, they either surrendered themselves to the Immigration Department or were arrested. As indicated above, each sought asylum or claimed to be a torture claimant under the Conventions referred to.

5.  Following their surrender or arrest, the Applicants were required by an Immigration Officer to enter into recognizances under section 36 of the IO (a provision I shall set out later in this judgment).   The form of the recognizances (following the prescribed form) was similar in every case. Each stated on its face that the relevant person was detained under section 32 of the IO and that he would have to pay the sum of $4,000 if he should fail to report to the Recognizance (Reporting) Office of the Immigration Department at the times stated in the recognizances.

6.  The recognizances also contained an attached Note in which it was stated : ‑

“1.  This Recognizance does NOT give the holder permission to remain in the Hong Kong Special Administrative Region.”

7.  In some of the recognizances (but not all), the Note also contained a condition “not to take up any employment unlawfully”.

8.  Subsequent to entering into the recognizances, the Applicants were, on various dates in 2008, then arrested for a second time. It is clear that the reason for these arrests was the fact that they were suspected of working in Hong Kong (the Applicants however deny that they were in employment).

9.  Each Applicant was then charged with having unlawfully landed and remaining in Hong Kong contrary to section 38(1)(b) of the IO. The Applicants (and many others like them) therefore faced the prospect of a trial in the Magistrates’ Court for this offence. This immediately brought into play the applicability of the Prosecution Policy (see paragraphs 17 to 21 below). However, at this point, before dealing with the relevant decisions (the subject matter of the present judicial review proceedings), it is convenient to identify relevant provisions in the IO and the Prosecution Policy that is germane to the issues to be determined.

Relevant provisions in the IO

10.  Section 38(1) of the IO states : ‑

“38. Prohibition of landing and remaining without permission, and

penalty for carrying illegal immigrant

(1)  Subject to subsection (2), a person who –

(a)  being a person who by virtue of section 7 may not land in Hong Kong without the permission of an immigration officer or immigration assistant, lands in Hong Kong without such permission; or

(b)  having landed in Hong Kong unlawfully, remains in Hong Kong without the authority of the Director,

shall be guilty of an offence and shall be liable on conviction to a fine at level 4 and to imprisonment for 3 years.”

11.  It is the words “without the authority of the Director” in section 38(1)(b) that fall to be considered in the present appeals.

12.  The Applicants’ case, on which I shall elaborate later, centers on the recognizances that were required of them. Essentially, it is argued that they constituted the requisite authority on the Director of Immigration’s part allowing the Applicants to remain in Hong Kong. Section 36(1) of the IO states : ‑

“36.  Recognizance as alternative to detention

(1)  An immigration officer and any police officer may require a person ‑

(a)  who is detained under section 27, 32 or 34; or

(b)  who, being liable to be detained under any of those sections, is not for the time being so detained,

to enter into a recognizance in the prescribed form in such amount and with such number of sureties as the Director or such police officer may reasonably require; and where a person who is so detained enters into such a recognizance he may be released.”

13.  As stated before, the Applicants were required by immigration officers to enter into the recognizances. It was stated on their face that they had been detained under section 32 of the Ordinance. The relevant provision, as all the parties have acknowledged, was section 32(2A), which states in part : ‑

“32.  Detention pending removal or deportation

(1)  …..

(2)  …..

(2A)  A person may be detained pending the decision of the Director of Immigration, the Deputy Director of Immigration or any assistant director of immigration as to whether or not a removal order should be made under section 19(1)(b) in respect of that person ‑ …..”

14.  It is clear then that the Applicants had been detained (and subsequently released on recognizance) pending the decision of the Director of Immigration as to whether or not a removal order should be made under section 19(1)(b) of the Ordinance. Section 19 sets out the power to order the removal of a person from Hong Kong.

15.  The Respondent places reliance on section 13 of the Ordinance : ‑

“13.  Authority for illegal immigrant to remain

The Director may at any time authorize a person who landed in Hong Kong unlawfully to remain in Hong Kong, subject to such conditions of stay as he thinks fit, whether or not he has been convicted of that offence, and section 11(5), (5A) and (6) shall apply to him as it applies to a person who has been given permission to land in Hong Kong under section 11(1).”

16.  It will be necessary to return to these provisions. For the time being and for the sake of completeness, I should also point out that : ‑

(1)  Section 13 is in the part of the Ordinance (Part III) dealing with the control of immigration.

(2)  Section 19 is part of the provisions in Part IV of the Ordinance dealing with the power to remove or deport persons.

(3)  Sections 32 and 36 are part of the provisions in Part VII dealing with detention.

(4)  Section 38 is in Part VIII which sets out provisions relating to offences and forfeiture.

The Prosecution Policy of the Secretary for Justice

17.  Following the decision in Prabakar which was handed down on 8 June 2004, the Secretary for Justice had to address the question of prosecutions under the IO against persons who were claiming asylum or who were torture claimants. While on the one hand, persons who had entered Hong Kong and remained here illegally were subject to prosecution for landing unlawfully and remaining in Hong Kong (the section 38(1)(b) offence), yet, on the other hand, it would be unfair and against the “highest standards of fairness” expected of the Government were persons (who were claiming asylum or who were torture claimants) to be exposed to the possibility of prosecution during the time they remained in Hong Kong while their claims were being processed. A balance therefore had to be reached.

18.  It was with this in mind that on 12 March 2007,a circular was addressed by the Acting Deputy Director of Public Prosecutions to all prosecuting counsel. This circular is headed “Legal Circular No.4 of 2007 Prosecution Policy towards Refugees, Asylum Seekers and Torture Claimants”, and has an introductory statement together with two Appendixes.

19.  Paragraph 1 of the introductory statement states : ‑

“  I attach at Appendix I, a paper setting out the prosecution policy forrefugees, asylum seekers and torture claimants.  Basically, an asylum seeker or torture claimant will not be prosecuted for an immigration offence relating to his claim, e.g. landing and remaining without permission, pending a determination by the relevant authorities.  If a charge has been laid, it will be adjourned.  If he commits an offence unrelated to his claim, such as theft or using a false instrument, he will be prosecuted for that offence alone.”

20.  Appendix I sets out the Prosecution Policy.   Paragraphs 7, 8 and 9 can conveniently be set out in full : ‑

“Prosecution Policy :

7.  The fact that a person is a refugee, asylum seeker or torture claimant will not lead to that person’s prosecution or detention in Hong Kong.  Making such claims is not an offence.  If the person is found to have committed an offence in Hong Kong, he may be liable to be prosecuted.  Most of these offences are immigration offences, e.g., entering Hong Kong illegally, overstaying.

8.  The present practice is a follows :

(1)  A person who seeks asylum, torture claim or both will not normally be prosecuted for an immigration offence, e.g., entering Hong Kong illegally, overstaying, until their claims and all appeal procedures have been concluded.  If a charge has been laid, the prosecution will apply for an adjournment,

(2)  Those persons will be prosecuted if they :

(a)  Commit a serious immigration offence, e.g., a passport racket,

(b)  Commit a non-immigration offence, e.g., robbery,

(c)  Commit an immigration offence which is not related to their claim, e.g., taking up illegal employment,

(3)  If there is a time limit for prosecution, a charge will be laid but an application will be made to adjourn the case until the conclusion of all appeal proceedings,

(4)  If the magistrate refuses to adjourn, prosecution will be considered on the merits of case,

(5)  If the claim is approved, prosecution will be dropped except for offences under para.8(2)above,

(6)  If the claim is rejected, prosecution will be considered on the merits on the case,

(7)  If a claimant commits an offence pending the resolution of his claim, legal advice will be sought.

9.  The above practice has been and will be consistently followed.  We believe that it strikes a balance between protecting the interest of the claimant and the prosecution of crimes.”

21.  In short, the policy was clearly to the effect that a person seeking asylum, claiming refugees status or claiming to be a torture claimant (although having landed in Hong Kong unlawfully and remaining here) would not “normally” be prosecuted for an offence such as that contained in section 38(1)(a) (entering Hong Kong illegally) or section 38(1)(b) (entering and remaining in Hong Kong illegally); or, if he is prosecuted, the prosecution would seek an adjournment of the proceedings.   This would be the position at least until the person’s claims were fully processed, including any appeals. This immunity or temporary immunity would not, however, apply to the prosecution for any other offence, whether an immigration offence or otherwise, which was not connected with that person’s being in Hong Kong for the purpose of his claim (for example, if the applicant committed a theft or was engaged in unlawful employment).

The relevant decisions

22.  In October 2008, owing to the large number of prosecutions of the Applicants and persons like them, it was decided by the Principal Magistrate of Shatin Magistrates’ Court (Mr Simon Jenkins) that two questions of law ought first to be determined by the Court as preliminary issues. In substance, the questions were first, the propriety of the prosecutions of the Applicants (and others like them) and whether they ought to be stayed by reason of the Prosecution Policy; secondly, whether it was a defence to the section 38(1)(b) offences that the Applicants had entered into recognizances pursuant to section 36 of the IO.

23.  The substantive hearing of these questions took place before Mr T H Casewell in November 2008.   In his Ruling made on 27 November 2008, the Magistrate identified the two questions to be determined by him as follows : ‑

“(i)  Whether a recognizance granted by the Director of Immigration can amount to an authority to a person to remain in Hong Kong for the purposes of section 38(1)(b) of Cap.115, and,

(ii)  Whether the defendants are being prosecuted outside of the policy for prosecution issued by the Secretary for Justice, and if they are, should a stay of proceedings for an abuse of process be granted.”

24.  After hearing submissions, the Magistrate reached the following decisions on the two questions : ‑

(1)  On the first question identified in paragraph 23, he said : ‑

“  I do find, in respect of this first preliminary question which I have articulated, that it is not possible for the defendants to successfully argue that the issue of a recognizance under section 36 of Cap.115, and their subsequent release under that Ordinance provides them with the authority of the Director of Immigration under section 38(1) to remain in Hong Kong, or provides them with a defence to that charge.”

(2)  On the second question, he concluded : ‑

“  I do find, on proper consideration of the prosecution policy, that these defendants are clearly being prosecuted within that policy.  As a result of that finding, there is no basis on which I could find that the prosecutions of these defendants is an abuse of process.

Those are my findings in relation to this matter, and by my findings the prosecutions should proceed, and that the individual cases against the defendants should be set down for trial.”

25.  I ought to make it clear at this point that when the Magistrate has referred to the prosecution being “within” the Prosecution Policy, this means in context that the prosecution is permitted, and that accordingly the immunity or temporary immunity (referred to in paragraph 21above) did not apply. In other words, the prosecutions could go ahead. It is these two decisions that form the subject matter of the present judicial review proceedings. The Applicants seek orders that these decisions be quashed, together with various consequential orders including an order that the prosecutions under section 38(1)(b) of the IO be permanently stayed.

The decision in the Court below

26.  The hearing before Wright J took place on 18 February 2009. The Judge was of the view that the Magistrate’s decision could, on analysis, be conveniently broken down into three issues : ‑

(1)  Were the prosecutions of the Applicants under section 38(1)(b) of the IO “within” the Prosecution Policy in the sense that the immunity from prosecution (as described in paragraph 21  above) did not apply?  [Issue 1].

(2)  If the prosecutions were not within the Prosecution Policy in the sense just identified, what would then be the consequence?  In particular, could the existing prosecutions of the Applicants be stayed as being an abuse of process?  [Issue 2].

(3)  Did the recognizances entered into by the Applicants under section 36 of the IO amount to an authority granted by the Director of Immigration to remain in Hong Kong for the purposes of section 38(1)(b) of the IO and therefore providing a defence to charges brought under that provision?  [Issue 3].

27.  In a judgment handed down on 2 March 2009, Wright J concluded as follows regarding these three issues : ‑

(1)  The prosecutions of the Applicants for the section 38(1)(b) offences were not within the Prosecution Policy.  This had the consequence that they enjoyed (or should have enjoyed) the immunity referred to in paragraph  21 above; in other words, they should not have been brought.

(2)  However, the Judge was of the view that it did not follow that the continuation of the prosecutions in the Magistrates’ Court constituted an abuse of process.  In this context, the Judge referred to the decision of the Court of Final Appeal in HKSAR v Lee Ming Tee& Another(2001) 4 HKCFAR 133.  Wright J concluded that although the prosecutions were “ill‑advised”, they were not oppressive.

(3)  On Issue 3, the Judge concluded that the effect of entering into a section 36 recognizance was that this did amount to authority being given by the Director of Immigration for the Applicants to remain in Hong Kong for the purposes of section 38(1)(b) of the IO, and that it followed that this constituted a defence to the charges brought under that provision.  The Judge was essentially of the view that it could just not be maintained that a person who had entered into a section 36 recognizance (with requirements of reporting to the Immigration Department at specified times) was not in Hong Kong without the authority of the Director of Immigration.  Quite simply, that person was required to be in Hong Kong (under penalty of the payment of the sum promised) and was allowed to be in Hong Kong (obviously pending the processing of his claims).

28.  Accordingly, the Judge ordered that the decisions made by the Magistrate on the two questions before him be quashed. No doubt as a result of the Judge’s view on Issue 2, it was further ordered by Wright J that the matter be remitted to Shatin Magistrates’ Court, so that the prosecutions could be dealt with in accordance with the findings of the Court.

The present appeal

29.  The Respondent has appealed the Judge’s decision. Essentially, the Respondent argues that the Judge’s conclusion on Issues 1 and 3 are wrong. The Applicants have cross‑appealed on Issue 2 : their objection is to the continuation of the prosecutions; while the Judge’s conclusions on Issue 3 would provide them with a defence to the charges laid against them, they sought a permanent stay.

30.  The issues before this Court are the same as before Wright J and, for my part, I am content to deal with these issues in turn.

Issue 1 : Were the prosecutions of the Applicants under section 38(1)(b) of the IO “within” the Prosecution Policy in the sense that the immunity from prosecution did not apply?

31.  I have already set out the Prosecution Policy and its effect in paragraphs 17 to 21 above. The Magistrate had agreed with the Respondent’s submission that as the Applicants were working illegally, they came within the exceptions to the immunity under that Policy, namely, they were caught by paragraph 8(2)(c) of Appendix I (see paragraph 20 above). Accordingly, the prosecutions of the Applicants were “within” the Prosecution Policy in the sense stated in paragraph 24 above.

32.  Wright J disagreed with this conclusion.  He was of the view that the prosecutions were outside the Policy. He was of the view that paragraph 8(2)(c) of Appendix I did not apply. Here, the Judge referred to a concession made by the Senior Assistant Director of Public Prosecutions before him that none of the Applicants had in fact committed any immigration offence as expressed in paragraph 8(2)(c).

33.  In my view, this issue can be disposed of quickly. The Applicants were all charged with the section 38(1)(b) offence, that is, remaining in Hong Kong without the authority of the Director of Immigration, having landed here unlawfully. For the Applicants seeking asylum or making a claim as torture claimants, this was precisely the type of offence that the Prosecution Policy specifically excluded from prosecution or, where charges had already been laid, the prosecution would apply for an adjournment. This immunity or temporary immunity applies to all the Applicants in the present appeals. Wright J was entirely correct in his conclusion that this was the position. As stated in paragraph 22 of his judgment, the Applicants “fell within the category of persons contemplated by the Policy who ‘normally’ would not be prosecuted until such time as their claims had been determined”.

34.  The qualification “normally” in paragraph 8(1) of Appendix I (see paragraph 20 above) does not assist the Respondent. It was not suggested that any circumstances existed for the policy not to apply to these Applicants.

35.  It was argued by MrPeter Duncan, SC (who did not appear below) that the intention of the Prosecution Policy was to exclude the benefit of the immunity or temporary immunity to those persons who committed those offences enumerated in paragraph 8(2) of Appendix I. Accordingly, so it was argued, since the Applicants had been engaged in taking up illegal employment, if it could be demonstrated that this was in fact the case, then they would not be able to enjoy any form of immunity from prosecution for the section 38(1)(b) offences.

36.  This argument is untenable. The true meaning and intent of the Prosecution Policy is, with respect, clear : ‑

(1)  It is clear from the wording of paragraph 8 of Appendix I, read as a whole, that the immunity provisions relating (for example) to the section 38(1) offences is not conditional on the Applicants not having committed those offences specified in paragraph 8(2) at all.

(2)  The meaning of paragraph 8 (see in particular paragraph 8(1)) is simply that no prosecution will be launched for offences such as those contained in section 38(1) until the claims (for asylum etc) and all appeal procedures from those claims, have been disposed of.  Or, where charges have already been laid, then the prosecution would seek an adjournment of the proceedings.  That paragraph also sets out what is to happen depending on whether or not the claims for asylum etc are successful.

(3)  The effect of paragraph 8(2) is that where offences are suspected of having been committed and theseoffences are not related to an applicant being present in Hong Kong during the time he is making an asylum or torture claim, then a prosecution can be brought for that offence (and that offence alone).  As the introductory statement to the circular setting out the Prosecution Policy states, “If he commits an offence unrelated to his claim, such as theft or using a false instrument, he will be prosecuted for that offence alone” (see paragraph 19 above).

(4)  In short, the policy is to grant the benefit of an immunity or temporary immunity only in respect of the immigration offence connected to the making of a claim for asylum or to be treated as a torture claimant (such as remaining in Hong Kong without the authority of the Director of Immigration) but not for any other offence.

37.  In the present case, as stated above, the Applicants were charged only with an offence under section 38(1)(b), and this was caught by the immunity provisions of the Prosecution Policy.   The fact that the Applicants were said to be involved in unlawful employment (see paragraph 8(2)(c) of Appendix I), even if true, was irrelevant because they were not charged with such an offence. Mr Duncan suggested that they could have been but this is of no consequence as the Applicants were not charged with any such offence.

38.  The conclusion I have reached does not depend on the concession that was made by counsel before Wright J (see paragraph 32above). As we have seen, paragraph 8(2)(c) of Appendix I does not come into it at all. Although Mr Duncan sought to withdraw the concession, it is not necessary to consider this.

39.  Finally on this Issue, I should perhaps just point out that the meaning of paragraph 8(2)(c) of Appendix I of the circular (see paragraph 20 above), when referring to the taking up of “illegal employment”, is clear as to what is intended to be covered. It simply covers the position of a person being engaged in employment when he is not entitled to be working in the first place. There is now a specific offence in the IO that deals with such a situation (see section 38AA which came into effect in 2009 after these Applicants had been arrested).

40.  The answer to Issue 1 is accordingly No. The present prosecutions did come within the immunity or temporary immunity under the Prosecution Policy. This is the same conclusion reached by Wright J.

Issue 2 : If the prosecutions were not within the Prosecution Policy in the sense just identified, what would then be the consequence? In particular, could the existing prosecutions of the Applicants be stayed as being an abuse of process?

41.  In the Court below and in the written submissions before us, the parties addressed the issue of consequences by reference to the question whether or not the prosecutions of the Applicants in the Magistrates’ Court constituted such an abuse of process that they ought to be permanently stayed.

42.  Wright J concluded that, given the exceptional nature of the remedy of a permanent stay, the proceedings against them ought not to be stayed. In reaching this conclusion, the Judge stated that a prosecution outside a prosecution policy was not per se oppressive (see paragraph 38 of the judgment). It was certainly not such an affront to the public conscience that a stay ought to be granted; it was, he felt, merely relevant towards sentence. Accordingly, the Judge ordered that the matter be remitted to the Magistrate to deal with in accordance with his findings.

43.  As stated above, the Applicants have cross‑appealed this part of the Judge’s order, seeking an order that the proceedings be permanently stayed.

44.  In my judgment, it was wrong that a question was posed for determination before the Magistrate in the form it was (see paragraph 23 above). Framed in the way it was, the question involved first, a consideration whether the prosecutions were within the Prosecution Policy and secondly, if not, whether this constituted an abuse. The first part is unobjectionable and proper; the second, in my view, not. The better approach would have been to address at the second stage the question of consequences, rather than to regard the choice as only between the existence of abuse (leading to an order for permanent stay) or the non‑existence of abuse (which would not have resulted in such an order).

45.  As all counsel eventually seemed to accept in these appeals, it did not follow that even if the prosecutions fell within the immunity provisions in the Prosecution Policy, the only choice then was as between a finding of abuse or one of non‑abuse, leading to orders for a permanent stay, or not, as the case may be. A reference to the terms of the Prosecution Policy in the present case (see in particular paragraph 8(1) of Appendix I – paragraph 20 above) showed that where an offence was caught by the immunity provisions contained therein, one of two consequences resulted : ‑

(1)  Where a prosecution had not yet been brought, it would not normally be brought until all claims for asylum etc and all appeal procedures had been concluded.

(2)  Where, on the other hand, a charge for the relevant offence had been laid, then the prosecution would apply for an adjournment.

46.  It has not been suggested by the Applicants in the present case that even if the present prosecutions enjoyed immunity under the Prosecution Policy, that the consequence should be a permanent stay rather than only that the prosecution should have applied for an adjournment. Eventually, both Mr Hectar Pun and Mr Newman Lam conceded that this was perhaps the most that their clients could expect.

47.  Given this realistic concession, Mr Duncan had no answer to it. Indeed, it is unanswerable. No submissions were made to us on the basis that in any event, even if the immunity provisions of the Prosecution Policy applied, the prosecutions ought nevertheless be permitted to proceed.

48.  Mr Pun and Mr Lam submitted that the Applicants ought therefore be entitled to an order compelling the Respondent to apply for an adjournment of the various prosecutions made against the Applicants. For my part, I would decline to make such an order. The Respondent now has the judgment of the Court on the question of the applicability of the Prosecution Policy to the charges laid against the Applicants (Issue 1) and can be expected to act accordingly. It may be that the Respondent might even consider withdrawing the prosecutions rather than seeking an adjournment, or perhaps even some other approach. I would not wish to bind the Respondent to whatever was considered to be the best approach. It is enough that the proceedings against the Applicants simply be remitted to the Magistrates’ Court to be dealt with as may be deemed appropriate, bearing in mind the findings of this Court.

Issue 3 : Did the recognizances entered into by the Applicants under section 36 of the IO amount to an authority granted by the Director of Immigration to remain in Hong Kong for the purposes of section 38(1)(b) of the IO and therefore providing a defence to charges brought under that provision?

49.  It is important at the outset to note the unusual course taken by the Magistrate to embark on determining a question of law that was not necessarily determinative of the proceedings before him. The Magistrate was simply asked to deal with one possible defence in the proceedings. I do not regard it as satisfactory that the matter proceeded in this way. It would have been much more preferable for the trial to have taken place when all aspects of the case (including all relevant facts) could be determined (and with the least disruption). If it was felt that the outcome of other prosecutions hinged on a decision on any particular issue, a test case could have been chosen.

50.  It was even more unsatisfactory once the issue was determined, for this to have been made the subject matter of judicial review proceedings. Time and again, the Courts have lamented the undesirability of breaking up the normal course of a criminal trial so as to allow discrete points to be separately litigated (whether by way of judicial review proceedings or otherwise), together with the inevitable delay and disruption this causes.

51.  In the present case, however, particularly given the consent of the Respondent to judicial review proceedings being utilized in this way and also that the prosecutions of the Applicants are unlikely to proceed (at least for the time being), I am content to address Issue 3. I would, however, warn against any such repetition in the future and in other circumstances, this Court might well have dismissed this aspect of the judicial review proceedings without hearing any argument on its substance.

52.  The question encapsulated in Issue 3 is a narrow one of law.   As I understand the question, it is simply this : does the mere fact that a person who has entered into a recognizance pursuant to section 36 of the IO amount to an authority by the Director of Immigration to remain in Hong Kong for the purposes of section 38(1)(b)? Does it come within the term “the authority of the Director” in section 38(1)(b) of the IO?

53.  It can instantly be seen that these questions do not address the issue of the full extent of available defences to a charge under section 38(1)(b). Nor can it since the only fact made available to us (and in the courts below) were the recognizances thatwere entered into by the Applicants. Indeed, in the Form 86A (as re‑amended) in the present proceedings, it is said that the questions raised for determination in the judicial review proceedings were distinct questions of law which required no further investigation into the facts. The question before us for determination is therefore a narrow one and is really one of statutory construction, specifically of the words “without the authority of the Direction [of Immigration]” in section 38(1)(b).

54.  Even without the benefit of authority (which, as will presently be seen, also militate towards the same conclusion), for my part, I find it extremely difficult to come to any view other than answering the question posed in the negative. In other words, the mere fact that a recognizance is required to be entered into under section 36 of the IO does not amount to an authority by the Director of Immigration to remain in Hong Kong for the purposes of section 38(1)(b) : ‑

(1)  The meaning of the words “without the authority of the Director” in section 38(1)(b) has of course to be seen in context.

(2)  The context, as the whole of section 38 makes clear, is to do with the landing and remaining in Hong Kong of persons other than those who have done so lawfully or with permission.

(3)  Section 38 sets out criminal offences, targetting persons who have landed in Hong Kong without permission (section 38(1)(a)) or, relevant in the present appeals, persons who have landed unlawfully in Hong Kong and who have remained here (section 38(1)(b)).  (In the previous paragraphs and indeed elsewhere in this judgment, I have referred to the unlawful remaining in Hong Kong.  This is shorthand for what is stated in section 38(1)(b), namely, remaining in Hong Kong “without the authority of the Director”).

(4)  In the context of landing and remaining in Hong Kong, and  specifically in relation to the authority that can be given by the Director of Immigration to remain in Hong Kong notwithstanding that a person has landed unlawfully here, in the absence of any definition of this term within section 38 (or indeed that Part – Part VIII dealing with “OFFENCES AND FORFEITURE” – of the Ordinance in which section 38 is contained), one has to go back to Part III of the IO, which is headed “CONTROL OF IMMIGRATION”.

(5)  Under Part III, section 13 deals precisely with the authority that may be given by the Director of Immigration regarding a person who has landed in Hong Kong unlawfully, to remain in Hong Kong.  This provision has already been set out in paragraph 15above.  Accordingly, in my view, section 13 of the IO is the provision that is directly relevant to any issue regarding the authority of the Director of Immigration in section 38(1)(b).  The authority given under section 13 is intended to regularize the unlawful landing and remaining in Hong Kong.

(6)  By way of comparison, I would draw attention to section 38AA(1) of the IO (to which reference has already been made in paragraph 37 above) which makes it clear that the reference to the authority of the Director of Immigration is a direct reference to section 13 : ‑

“38AA.  Prohibition of taking employment and establishing business, etc.

(1)  A person –

(a)  who, having landed in Hong Kong unlawfully, remains in Hong Kong without the authority of the Director under section 13; or

(b)  in respect of whom a removal order or a deportation order is in force,

must not take any employment, whether paid or unpaid, or establish or join in any business.”

While there is no reference in section 38(1)(b) to section 13, these two provisions (sections 38(1)(b) and 38AA) are closely connected : they both deal with the position of persons who have unlawfully landed and who remained in Hong Kong.  In my view, section 38AA reinforces the relevance of section 13 in construing section 38(1)(b).

(7)  Once it is accepted that the reference to “authority” in section 38(1)(b) can only mean the authority of the Director of Immigration to allow a person to remain in Hong Kong notwithstanding that that person has landed unlawfully, it can then readily be seen that a mere requirement to enter into a recognizance under section 36 cannot constitute that authority to remain.

(8)  To begin with, section 36 of the IO is operative only where a person (who has landed unlawfully) has been detained under sections 27, 32 or 34 (or liable to be detained under those provisions) : see section 36(1)(a) (see paragraph 12 above).  Section 27 deals with the position where a person is or can be detained pending an examination under section 4.  Section 32 (the operative provision in the present appeals) deals with where a person is detained or can be detained pending his removal or deportation.  Section 34 covers the position where a person is or is liable to be detained following his arrest on suspicion of contravening a condition subject to which a deportation order against him has been suspended (see section 54(3)) of the IO.

(9)  In none of these situations where a person is or is liable to be detained can it be said that a recognizance that has been required to be entered into under section 36, can or does amount to an authority to remain in Hong Kong following an unlawful landing.  Take the case of a detention under section 32 which applies where a removal or deportation may be involved.  In such a situation, it just cannot realistically be said that the Director of Immigration has authorized that person to remain in Hong Kong.  In fact, quite the opposite : the Director is detaining a person for the purpose of removing or deporting him from Hong Kong.  Here (and for that matter also where section 27 or section 34 is engaged), the Director is simply not authorizing a person to remain in Hong Kong.  The Director may be suffering a person to be physically present in Hong Kong pending some further investigation, proceedings or pending that person’s removal or deportation, but the Director is not authorizing that person to remain in Hong Kong.  Whether one uses the word “authority” or “permission” in this context, is immaterial.

(10)  I have already outlined the salient feature of the recognizances entered into by the Applicants in the present case (see paragraphs 5 to 7 above).  It will be recalled that paragraph 1 of the Note annexed to the recognizances in the present case, expressly stated that it did not give the holder permission to remain in Hong Kong.  This reinforces the conclusion referred to above and puts the matter beyond argument.  It was faintly suggested that such a note was invalid by reason of the decision of this Court in V v Director of Immigration [2006] 3 HKC 362 regarding impermissible conditions in a recognizance (in that case, the request to live at a particular address and not to leave Hong Kong Island).  Paragraph 1 of the Note in the present case is not a condition; it merely states the Director of Immigration’s position on the effect of the recognizance in not constituting permission to remain in Hong Kong.

55.  The conclusion reached above is also consistent with previous decisions of this Court : ‑

(1)  In Lai Yau Chik v Director of Immigration [2002] 3 HKLRD 375, the applicant in that case entered Hong Kong unlawfully in April 1979.  Pursuant to the “touch base” policy in force at the time (whereby illegal immigrants from the Mainland would not be repatriated if they could reach the urban areas in Hong Kong without being arrested), he applied for an identity card in May 1979.  He was given a “clearance endorsement” from the Immigration Department on 26 May 1979 pending his application.  Eventually, in July, he was provided with an entry permit formally allowing him to remain in Hong Kong.  In May 1995, the applicant made an application for a certificate of entitlement to right of abode in Hong Kong on the basis that he had ordinarily resided in Hong Kong for a continuous period of 7 years.

(2)  The issue for the Court was whether the applicant commenced his ordinary residence from May 1979 (as he contended, on the basis he had been permitted to remain in Hong Kong from 26 May 1979 under the clearance endorsement) or only from July 1979 (as the Director of Immigration submitted by reason of the entry permit being issued only then).  In resolving this issue, the Court had to consider whether the clearance endorsement amounted to an authority by the Director of Immigration to remain in Hong Kong for the purpose of sections 2(4)(a) and 13 of the IO.

(3)  The Court of Appeal held that it did not.  The Court followed the decision of Mantell Jin Re Wong Shu‑hung and the Immigration Tribunal [1985] HKLR 463 in analyzing that the authority of the Director of Immigration allowing a person to remain in Hong Kong under section 13 had to be a conscious determination on his part to regularize an unlawful landing in Hong Kong : see paragraphs 31 to 32 (at 384‑5).  In other words, while a person may be suffered or tolerated to remain in Hong Kong for certain purposes, an authority by the Director of Immigration under section 13 to allow a person actually to remain in Hong Kong notwithstanding an unlawful entry, was a more formal and deliberate determination.  A person who is “suffered” to remain in Hong Kong for the purposes of an examination under section 4 of the IO (and, I might add, an examination to determine his claim for asylum or as a torture claimant) is not to be taken as having been given permission to remain in Hong Kong : see Wong Shu‑hung  at 467A‑B.  Although Mantell J was in that case referring to the permission given by the Director of Immigration to a person to remain in Hong Kong for the purposes of what is now section 53A(1)(b) of the IO, this reasoning equally applies to an authority given by the Director under section 13.

(4)  In Ng Chun Hing v Director of Immigration[2001] HKCLRT 383, the Court of Appeal examined the status of recognizances under section 36 of the IO.  There, the plaintiffs (who were claiming injunctive relief against the Director of Immigration) argued that the period during which they were in Hong Kong constituted ordinary residence and was lawful since they had been required to enter into recognizances pending the determination of their claims for right of abode.  It was therefore necessary for the Court of Appeal to determine whether the recognizances entered into pursuant to section 36 of the IO constituted permission or authority on the part of the Director of Immigration for the plaintiffs to remain in Hong Kong.

(5)  At first instance, Deputy Judge Andrew Cheung (now Andrew Cheung J) was of the view that the Director had merely suffered the plaintiffs’ presence in Hong Kong pending the determination of their claim; they had not been permitted or authorized to remain here.  Woo JA agreed with this conclusion : see paragraphs 11 to 13 of the judgment.

(6)  Cheung JA also said this at paragraph 31 (394) : ‑

“  The issuance of recognizance is an administrative measure intended to provide an alternative to detention, and is wholly distinct from the granting by the Director of Immigration of permission to overstayers to continue to stay in Hong Kong lawfully…...”

56.  In my view, the authorities of the Court of Appeal referred to in the previous paragraph, although admittedly not dealing specifically with the meaning of “authority” under section 38(1)(b) of the IO, are nevertheless compelling in their analysis on the effect of section 13 and the effect of the recognizances under section 36. With respect to the judge, they were binding and could not be distinguished on the basis alone that they emanated from civil proceedings.

57.  The Applicants’ main argument (one which attracted Wright J) was essentially this : as a matter of commonsense, where a person had entered into a recognizance which effectively required him to report to an immigration officer on penalty of forfeiture of any sum of money paid as surety or of payment of a sum of money promised to be paid (as in the present case), it could not be said that he was not in Hong Kong “without the authority of the Director”; in other words, he was here with the Director’s authority. The Judge put the matter in the following way : ‑

“74.  That aside, the reality of the situation in these applications is that the applicants, having landed in Hong Kong unlawfully, could be held for a maximum period 49 days under the Ordinance whilst the Director made a determination as to their status and removal.  The applicants made their asylum/torture claims.  The Director, it seems to me, made a conscious decision ‑ presumably by applying a predetermined policy, which would necessarily be consistent with the policy on prosecution ‑ that the applicants would be able, to use a neutral verb, to remain in Hong Kong at least pending the outcome of the decision in respect of their asylum/torture claims.  In other words, whilst the Director enjoyed the power to make a removal order and to execute that order, he made a decision not to remove the applicants: he did not merely acquiesce in or suffer their continued presence.”

58.  In my judgment, this view cannot be supported : ‑

(1)  The analysis does not pay sufficient regard to the technical meaning of the words “the authority of the Director” in section 38(1)(b).  As stated above, they are a direct reference to section 13 of the IO.

(2)  Section 13 enables the Director of Immigration to regularize a person’s remaining in Hong Kong notwithstanding that person’s having landed unlawfully.

(3)  The requirement of entering into a recognizance under section 36 of the IO does not constitute any authority to remain in Hong Kong at all.  Recognizances are required to be entered into as an alternative to detention under section 32.  As we have seen, section 32 refers to detention or possible detention pending examinations and investigations (section 27), or pending removal or deportation (section 32), or after arrest for the purposes of inquiries as to whether there has been a contravention of any condition subject to which a deportation order has been suspended (section 34).  I reiterate the point that where a recognizance has been required of a person under any of these provisions, it simply cannot be said that the Director of Immigration is authorizing that person’s remaining in Hong Kong at all under section 13.  At best, that person’s presence is merely suffered or tolerated.

(4)  The Applicants’ argument also ignores the effect of the decisions referred to above, namely, Lai Yau Chik and Ng Chun Hing.

(5)  I have not derived much assistance from the decision of the English Immigration Appeal Tribunal in the case of Olanrewaju Taofeeq Makinde v Secretary of State for the Home Department [1991] Imm AR 469.  This decision was referred to by the Judge below and relied on by the Applicants.  There, a person who had been held in custody on criminal charges was arrested for overstaying during the time he was in custody.  A deportation order was therefore made against him.  It was said that the deportation was justified as he had remained in the UK, to use the words of the Home Secretary in the decision, “without authority”.  The Immigration Appeal Tribunal adopted a commonsense construction of the Home Secretary’s decision in concluding that the Home Secretary could not on the one hand say that a person was in the UK “without authority” when in fact it was by his authority that that person was held in custody : at 473.  I am of the view that this decision is not helpful in the present appeals in that the Tribunal was not in that case concerned with the meaning of “authority” in a statute; indeed the Tribunal was at pains to point out (as we were reminded by Mr Duncan) that it was not concerned with “any technical meaning that a word might have in immigration law” : see 474.

(6)  In the present case, we are concerned with the meaning of the words “the authority of the Director” in the IO itself,  particularly in the context in which section 38(1)(b) appears within the Ordinance.  This is far removed from the exercise that the Immigration Appeal Tribunal was carrying out in Olanrewaju.

59.  The fallacy in the Applicants’ approach can also be demonstrated by the following rhetorical questions. Where, say, a false claim for asylum is made but while the claim is being processed, the claimant remains in Hong Kong and is required to enter into a recognizance, can it really be said at any stage that during the time that the applicant for asylum was present in Hong Kong that the Director of Immigration had authorized his remaining in Hong Kong under section 13 of the IO? Or is the more appropriate analysis that the Director of Immigration, while not accepting or rejecting his claims for asylum, is merely tolerating or suffering his presence here? I daresay, as a matter of commonsense, many people would opt for the latter analysis. Were the analysis to be the former one, one could arrive at the somewhat absurd position where a bogus claim for asylum would benefit the wrongdoer in enabling him to remain in Hong Kong for the whole of the time he is on a recognizance, even to the extent perhaps of enabling him to find employment (since section 38AA(1)(a) prohibits employment only where a person has landed in Hong Kong unlawfully and remains here without the authority of the Director of Immigration).

60.  I can of course understand, with respect, the sympathy that the Judge may have had with these Applicants (and those in their position). Their protection, however, lies in the Prosecution Policy earlier discussed in this judgment.

61.  I conclude on this Issue by emphasizing the limited extent of it : see paragraphs 52 and 53 above. There may be other defences to a charge under section 38(1)(b), and of course cases will be fact sensitive. Where, for example, a person’s presence in Hong Kong is otherwise than voluntary, this may (and I put it no higher than that) amount to a defence to a charge under section 38(1)(b) : see Blackstone’s Criminal Practice 2010 at paragraph A4.3.

62.  The answer to the question posed in Issue 3 is accordingly No.

Conclusion

63.  At the end of counsel’s submissions, it was indicated to us by Mr Duncan that as far as the 1st Applicant in CACV 53/2009 was concerned, the appeal ought to be dismissed with no order as to costs. Similar orders have already been made prior to the appeal in relation to the 19th Applicant in CACV 53/2009, and the 3rd, 8th and 10 Applicants in CACV 54/2009 (the costs of these Applicants are to be taxed in accordance with the Legal Aid Regulations).

64.  Regarding the other Applicants in both appeals, for the above reasons, I would partially allow both appeals, dismiss the cross‑appeals of the Applicants, set aside the Orders made by the Judge below and make the following Orders in their place: ‑

(1)  The decision of the Magistrate, Mr T H Casewell, made on 27 November 2008 whereby it was held that the prosecution of the Applicants under section 38(1)(b) of the IO was within the Prosecution Policy, thatthey did not amount to an abuse of process and should proceed, be quashed.

(2)  That the various proceedings involving the Applicants be remitted to the Magistrate, Mr T H Casewell, or a different Magistrate of Shatin Magistrates’ Court to be dealt with as may be deemed appropriate.

65.  Finally, on the question of costs, notwithstanding the above Orders, it can be seen that in reality the Applicants and the Respondent have each succeeded on various arguments in these appeals. The Applicants have succeeded on Issue 1, but the Respondent has succeeded on Issue 3. On Issue 2, neither side has really succeeded. Doing the best I can, I would make an order nisi that there be no order as to costs in both these appeals and in the Court below. The Applicants’ own costs are to be taxed in accordance with the Legal Aid regulations.

Hon Yeung JA :

66.  I agree with the judgment of Ma CJHC and his proposed costs orders. I have nothing to add.

Hon Andrew Cheung J :

67.  I also agree.