RE YUNG KWAN LEE AND OTHERS

FACV No. 1 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 1999 (CIVIL)

(ON APPEAL FROM CACV NO. 109 OF 1998)

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Between:

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J U D G M E N T

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Chief Justice Li:

1. I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Litton PJ:

2. I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Ching PJ:

3. I agree with the judgment of Mr Justice Bokhary PJ.

Mr Justice Bokhary PJ:

4. This is a habeas corpus case which involves a constitutional challenge. The appellants are in prison. It is submitted on their behalf that the statutory provision relied upon to justify their detention does not cover their situation or, alternatively, is unconstitutional. They are Hong Kong permanent residents who trafficked in dangerous drugs in Thailand. The Thai courts convicted them and sentenced them to various terms of imprisonment. They served part of their sentences in Thailand. Then, with their consent, they were transferred to Hong Kong to serve the remainder of their sentences here.

The Anglo-Thai treaty

5. All the transfers took place before the handover at midnight on 30 June 1997 when the People’s Republic of China resumed the exercise of sovereignty over Hong Kong. Each transfer was effected under prisoner transfer arrangements created by a treaty between the United Kingdom and Thailand. This treaty (“the Anglo-Thai treaty”) was signed on 22 January 1990 and came into force upon the exchange of instruments of ratification on 6 February 1991.

The 1984 Act and the Orders-in-Council

6. There was already in place a United Kingdom statute by which such treaty arrangements became part of the domestic law of the United Kingdom. This was the Repatriation of Prisoners Act 1984 (“the 1984 Act”). There were also already in place two United Kingdom Orders-in-Council (“the Orders-in-Council”) by which such treaty arrangements became part of the domestic law of Hong Kong as well. Both were made under the 1984 Act. They were the Repatriation of Prisoners (Overseas Territory) Order 1986 (“the 1986 Order”) and the Repatriation of Prisoners (Overseas Territory) Amendment Order 1987 (“the 1987 Order”). The 1986 Order extended the 1984 Act, with certain adaptations, to a list of British overseas territories. And the 1987 Order added Hong Kong to that list.

7. Shortly stated, the result of Hong Kong being added to that list was as follows. The Governor was empowered to issue warrants under the 1986 Order for the transfer of prisoners to and from Hong Kong and for the detention here of prisoners transferred to Hong Kong. He was also empowered to authorize others to issue such warrants.

8. Each appellant was transferred to Hong Kong and detained here under a warrant issued by the then Secretary for Security with the Governor’s authorization. That is how the appellants came to be detained here.

The length of the appellants' sentences

9. In Thailand the appellants received very long sentences: ranging from life imprisonment to 25 years' imprisonment before commutation, and from 50 years' imprisonment to 20 years' imprisonment after commutation. The appellants may have been sentenced considerably more severely than they would have been in Hong Kong if they had similarly offended here. But none of them received a sentence in excess of the maximum penalty for drug trafficking which Hong Kong law permits, which is life imprisonment as provided by s.4(3) of the Dangerous Drugs Ordinance, Cap. 134.

10. Moreover there now extends to the appellants, as Hong Kong prisoners, the benefit of Hong Kong law providing for the reduction of prison terms by parole, conditional release, remission or otherwise.

11. The appellants also retain the right to benefit from any reduction of sentence which Thailand may grant them. Section 6(2) of the Transfer of Sentenced Persons Ordinance, Cap. 513, provides that post-transfer reductions of sentence made by the transferring State are to be given effect by Hong Kong. The courts can of course be relied upon to redress the position in the event of any failure to comply with this provision. Indeed there is no suggestion that Hong Kong might fail to honour any further reduction of sentence which Thailand might make in the appellants’ favour. But the appellants say that it is uncertain whether Thailand continues to regard them as candidates for such reduction. It is, however, common ground that negotiations for fresh treaty arrangements for the transfer of prisoners between Hong Kong and Thailand have reached an advanced stage. If there is any real uncertainty in regard to persons already transferred, it seems unlikely that the fresh arrangements would fail to remove such uncertainty.

The Ordinance

12. Shortly before the handover, the legislature here passed legislation to fill the gap which would otherwise be left by reason of the Anglo-Thai treaty, the 1984 Act and the Orders-in-Council all ceasing to apply to Hong Kong upon the handover. Thus on 29 May 1997 the Legislative Council passed the statute which I have just mentioned, namely Transfer of Sentenced Persons Ordinance, Cap. 513 (“the Ordinance”) which came into operation on 6 June 1997.

13. The long title of the Ordinance states that its purpose is

"to make provision for the transfer between Hong Kong and places outside Hong Kong for persons detained in institutions by virtue of orders made by courts in the exercise of their criminal jurisdiction; and for matters incidental thereto or connected therewith.”

It is true that the Ordinance came into operation on 6 June 1997 when treaties like the Anglo-Thai treaty still affected Hong Kong. But it is obvious from the surrounding circumstances and the terms of the Ordinance that it looks essentially to the period after midnight at the end of that month. In other words, it looks essentially to the post-handover period when fresh treaty arrangements would be necessary for further transfers of prisoners to and from Hong Kong and for the detention here of further transferees to Hong Kong.

Section 10(1)

14. But what about persons like these appellants who had already been transferred to detention here? Section 10(1) of the Ordinance provides that:

“Where -

(a) a sentenced person is in custody in Hong Kong by virtue of a warrant issued under [the 1986 Order]; and

(b) the sentence to be served by that person has not expired on or before the date on which -

(i) any arrangements for the transfer of sentenced persons come into operation between Hong Kong and the place outside Hong Kong from which that person was brought into Hong Kong pursuant to the warrant; or

(ii) that Order ceases to be part of the law of Hong Kong, whichever first occurs,

then that warrant shall be deemed to be an inward warrant issued under this Ordinance on that date in respect of the unexpired portion of that sentence remaining to be served after that date …”

An “inward warrant” is a warrant providing for the transfer of a sentenced person to Hong Kong. That appears from ss 2 and 3(1)(a) of the Ordinance.

The issue: whether the appellants' continued detention is lawful

15. On 5 December 1997 habeas corpus proceedings were commenced on the appellants’ behalf seeking their release. Such release was sought on the basis that their detention became unlawful upon the handover when the Anglo-Thai treaty, the 1984 Act and the Orders-in-Council all ceased to apply to Hong Kong. The respondent detaining authority (most immediately in the form of the superintendents of the Hong Kong prisons in which the appellants are being detained but ultimately in the form of the Government of the Hong Kong Special Administrative Region) put s.10(1) of the Ordinance forward as the lawful justification for the appellants’ continued detention. The appellants countered by submitting that s.10(1) of the Ordinance did not cover their situation, alternatively, that it was unconstitutional.

16. This submission failed in both of the courts below. On 30 December 1997 Stock J refused to order the appellants’ release. Their appeal against such refusal was dismissed by the Court of Appeal (Nazareth VP and Liu and Mayo JJA) on 24 December 1998. By leave of the Court of Appeal (Nazareth VP and Liu and Leong JJA) granted on 9 February 1999, the appellants now pursue this final appeal, renewing their submission which had failed in both of the courts below.

17. So the issue before the Court is whether the appellants’ continued detention is lawful. This turns on the true construction of s.10(1) of the Ordinance and its constitutionality.

Construction

18. The first limb of the appellants’ submission goes to construction. Counsel for the appellants argued that s.10(1) of the Ordinance is to be read as covering only the 24-day period from 6 June 1997 (when the Ordinance came into operation) to the handover. As to what might cause the pre-handover legislature to enact such a provision for that 24-day period, counsel for the appellants said that the pre-handover legislature may have contemplated the making of fresh treaty arrangements within that period. For three reasons, I am unable to accept this argument. First of all, until the handover the Orders-in-Council applied, and there was simply no need for any provision like s.10(1) of the Ordinance prior to the handover. Secondly, there is nothing whatsoever to support the notion that anybody contemplated the making of fresh treaty arrangements during the 24-day period following 6 June 1997. Thirdly, the language of s.10(1) simply does not accommodate the argument.

19. It is axiomatic that no provision is to be read as authorizing any person’s detention unless such a reading is plain. So is it plain that s.10(1) of the Ordinance covers the appellants’ situation? In my judgment, it is. As I read the subsection, it is a tailor-made deeming provision which covers exactly the situation of transferred prisoners like the appellants and provides for their continued detention after the handover.

Constitutionality

20. Is such a provision constitutional? That is the question raised by the second limb of the appellants’ submission. The question divides itself into two parts.

Before handover

21. The first part has to do with the constitutionality or otherwise of s.10(1) of the Ordinance before the handover. That was when the constitutional instruments of Hong Kong were the Hong Kong Letters Patent 1917 to 1993 and the Hong Kong Royal Instructions 1917 to 1993.

22. It comes down to this. Article VII(1) of the Letters Patent provided that:

“The Governor, by and with the advice and consent of the Legislative Council, may make laws for the peace, order, and good government of the Colony.”

The formula “peace, order and good government” was a very wide one indeed. It is true that the law-making power of the pre-handover legislature did not include the power to make laws which were extra-territorial, repugnant to imperial legislation extending to Hong Kong, or inconsistent with the United Kingdom’s treaty obligations or the Bill of Rights. But subject to those limitations (none of which apply in the present case) such law-making power existed, as the Privy Council said in Rediffusion (Hong Kong) Ltd v. Attorney General [1970] HKLR 231 at p.244, “in the widest possible terms”.

23. The appellants contend that their release would not give the United Kingdom or Thailand any cause for complaint. Even assuming that to be so, it is still nothing to the point. For humanitarian reasons Hong Kong had an interest in enabling Hong Kong permanent residents imprisoned abroad to return here to serve their sentences in our own prisons rather than in foreign prisons. But it does not follow that Hong Kong’s interests, whether before or after the handover, would be served by having such convicted and sentenced criminals at large here before their sentences have been served. In my view, the pre-handover legislature were justified in considering it to be for the peace, order and good government of Hong Kong to leave it with a provision like s.10(1) of the Ordinance to cover the post-handover position of existing transferred prisoners like the appellants.

24. In my judgment, s.10(1) of the Ordinance was constitutional when enacted. So much for the past.

Since handover

25. In attacking the constitutionality of s.10(1) of the Ordinance since the handover the appellants rely on Articles 8, 28 and 153 of our present constitution the Basic Law.

26. Article 8 reads:

"The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.”

27. Article 28 reads:

“The freedom of the person of Hong Kong residents shall be inviolable.

No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited. Torture of any resident or arbitrary or unlawful deprivation of the life of any resident shall be prohibited.”

28. And Article 153 reads:

“The application to the Hong Kong Special Administrative Region of international agreements to which the People’s Republic of China is or becomes a party shall be decided by the Central People’s Government, in accordance with the circumstances and needs of the Region, and after seeking the views of the government of the Region.

International agreements to which the People’s Republic of China is not a party but which are implemented in Hong Kong may continue to be implemented in the Hong Kong Special Administrative Region. The Central People’s Government shall, as necessary, authorize or assist the government of the Region to make appropriate arrangements for the application to the Region of other relevant international agreements.”

29. The appellants’ arguments based on these provisions of the Basic Law run thus. First they argue that s.10(1) of the Ordinance contravenes Articles 8 and 153 in that it makes provision for the enforcement of a foreign penal law other than through the medium of a treaty. And then they argue that detention pursuant to warrants which had been issued under the Orders-in-Council but which are now, after the Orders-in-Council have ceased to apply, deemed to be warrants issued under the Ordinance is arbitrary or unlawful detention within the meaning of Article 28.

30. As I see it, these arguments are completely answered by the first sentence of the second paragraph of Article 153 of the Basic Law which, as we have seen, provides that “International agreements to which the People’s Republic of China is not a party but which are implemented in Hong Kong may continue to be implemented in the Hong Kong Special Administrative Region”. This carries into our constitution the promise in article XI of Annex I of the Sino-British Joint Declaration on the Question of Hong Kong made in Beijing on 19 December 1984 that “International agreements to which the People’s Republic of China is not a party but which are implemented in Hong Kong may remain implemented in the Hong Kong Special Administrative Region”.

31. The Anglo-Thai treaty is an international agreement to which the People’s Republic of China is not a party, and it ceased to apply to Hong Kong upon the handover. Any further prisoner transfers would of course require fresh treaty arrangements. But the Anglo-Thai treaty was being implemented in Hong Kong at the time of the handover. It was being implemented by means of s.10(1) of the Ordinance. The purpose of that provision is therefore a purpose expressly permitted by Article 153 of the Basic Law. The provision itself is therefore constitutional under the Basic Law, and is maintained by Article 8 thereof.

32. It follows from the foregoing that the detention for which the provision caters is not arbitrary, unlawful or for the purpose of enforcing a foreign penal law. It is detention for a Hong Kong purpose expressly permitted by the Basic Law.

33. In my judgment, s.10(1) of the Ordinance was constitutional when enacted prior to the handover and remains constitutional now.

Result

34. For the foregoing reasons, I hold that the appellants' continued detention is lawful, and would accordingly dismiss this appeal with costs (both sides having indicated that they accept that costs should follow the event). I would also order legal aid taxation of the appellants' own costs.

Lord Cooke of Thorndon NPJ:

35. I agree with the judgment of Mr Justice Bokhary PJ.

Chief Justice Li:

36. The Court unanimously dismisses this appeal with costs, and orders legal aid taxation of the appellants' own costs.