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HCMP002592A/1988
1988 No. M.P. 2592
IN THE HIGH COURT OF HONG KONG
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HEADNOTE
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An application for habeas corpus was adjourned to an early date for a substantive hearing. The applicant (who had used a forged passport to obtain entry into Hong Kong) made an application for bail in the meantime under section 3 of the Habeas Corpus Act 1816, under which a judge has power to inquire into the truth of the facts set out in the return to the writ and, if it appears doubtful whether the facts are true or not, may grant bail to the applicant.
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HELD :
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(refusing the application) that on the facts the interest of the applicant in being freed from detention immediately was outweighed by the public interest in first seeing that proper inquiry was made into his case; and that (although it was not necessary to decide the point) there was some force in the submission that there is no power to grant bail at all if the judge's concern for the liberty of the subject is not caused by doubt as to the truth of the facts stated in the return but by doubts as to other matters. |
1988 M.P. No. 2592
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
MISCELLANEOUS PROCEEDINGS
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IN THE MATTER OF ROMEO SANTIAGO
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and |
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IN THE MATTER OF AN APPLICATION FOR A WRIT OF HABEAS CORPUS AD SUBJICIENDUM
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Coram: The Hon. Mr. Justice Godfrey in Court
Date of Hearing: 23rd December 1988
Date of Delivery of Judgment: 23rd December 1988
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JUDGMENT
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1. This is an interim application for bail, made on the first return date of an application by Romeo Santiago for the issue of a writ of habeas corpus which the parties are agreed I should adjourn to an early date for substantive hearing.
2. The question before me in the meantime is what, pending the hearing, is to be done about the fact that Mr. Santiago is presently in prison, detained there, by the authority of the Respondent, the Director of Immigration, since 24th June 1988. This is not an application made with any great promptitude, perhaps because Mr. Santiago was not fully apprised of his rights to make such an application as this to the Court, but, anyway, not made as soon as might have been possible.
3. But now it has been made (with my encouragement at the shortest notice) against the Director of Immigration, who claims to be lawfully detaining Mr. Santiago pending his removal from Hong Kong under Section 25 of the Immigration Ordinance. Section 32(3)(a) of that Ordinance provides:-
"A person in respect of whom a removal order under section 19(1)(b) is in force may be detained under the authority of the Director of Immigration or Deputy Director of Immigration pending his removal from Hong Kong under section 25. "
It is, I think, not necessary for me to refer to the detail of section 19(1) (b) or section 25. It is accepted that Mr. Santiago is a person in respect of whom a removal order (made on 25th August 1988) is now in force. However, the power conferred by section 32(3)(a) is a limited power. It is a power to detain the person in respect of whom a removal order is in force 'pending his removal from Hong Kong'.
4. The submission has been made, on behalf of Mr. Santiago, that in the circumstances of the present case (to which I shall now come) it cannot really be said that he is being detained "pending his removal". The difficulty is that Mr. Santiago claims to be a Filipino and entitled as such to return to the Philippines. The Director of Immigration is anxious to take such step as will insure that he does indeed return there. However, the Philippine authorities are unwilling, as at present advised, to accept that Mr. Santiago has the right to return to the Philippines.
5. The background to this impasse (which must be resolved, for no-one suggests Mr. Santiago can be kept in prison indefinitely) is that Mr. Santiago entered Hong Kong by the use of a forged Singaporean passport, a criminal offence of dishonesty to which he pleaded guilty and for which, on 14th July 1988, he was convicted and sentenced. His sentence has been suspended, and his detention, therefore, is exclusively due to the circumstances to which I have already referred.
6. Mr. Santiago (this is common ground) claims to have the benefit of a Philippine passport. I was told from the bar that he has in fact produced two Philippine passposts, not a phenomenon which engenders any great confidence that the circumstances in which he claims to be a Philippine national are genuine.
7. The Director of Immigration is anxious to remove Mr. Santiago to the Philippines. However, he is a guardian of the public interest which in cases of this sort must always be balanced against the interests of the individual concerned. It is only too easy in Hong Kong for someone who has no right to remian in Hong Kong to "go to ground" (if I may borrow the phrase used in argument before me by counsel on behalf of the Director of Immigration) and become untraceable.
8. On behalf of Mr. Santiago, it is suggested that provided he stays with the relative he claims to have in Hong Kong, there should be no real difficulty about this, and that he should be immediately released on bail. And it is said that it is an infringement of his human rights for him to be kept in detention in Hong Kong a moment longer, particularly with the immediate advent of the Christmas period which I understand from his counsel is a period of some significance for him.
9. On behalf of the Director of Immigration, it is contended that, on the true construction of Section 3 of the Habeas Corpus Act 1816, I have no power to grant bail to Mr. Santiago unless I form the view that there is something "doubtful" about the facts appearing from the return to the writ. I do not find it necessary to determine this point (although I will say it is one which seems to me to have some force) and I wish to make it clear that I do not see anything "doubtful" about the facts upon the return to the writ. The doubts that I do entertain are doubts which concern the length of time which Mr. Santiago has already spent (and will continue to spend) in prison, notwithstanding that he desires to go back to the Philippines; that the Director of Immigration wants to send him back to the Philippines; and that the sentence imposed on him here was a suspended sentence anyway.
10. Upon the whole matter, I think that for a matter of a few days (which is all it should be) the public interest ought to prevail. I propose to refuse this application for bail made before me today; but I would make it plain that any further application for bail would be one that I would entertain favourably, if it proves impossible, in the very near future, to obtain a speedy determination of this difficult issue. The issue is not of the making of the Director of Immigration but arises because of, on the one hand, the conduct of Mr. Santiago himself, and on the other, the time it is taking for the Philippine authorities conclusively to express a view as to whether Mr. Santiago should be received back in the Philippines or not. He has a wife there. The whole situation is extremely unsatisfactory. But, in proceedings between the subject and the Crown, it should always be remembered that both the subject and the Crown are entitled to a fair hearing; not just the subject alone. Until this matter can be gone into more fully, at the substantive hearing, than it has been possible to do on the very short notice of this application today given to the Crown, it seems to me it would be wrong to grant this application for bail; and it is for these reasons I refuse it.
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(G. M. Godfrey)
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Judge of the High Court
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Representation:
Mr. G.J.X. McCoy instructed by Messrs. Chan & Kong for the Applicant.
Mr. Bernad Whaley, Senior Crown Counsel, for the Respondent.
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