MOHAMMAD AKRAM v. THE SECRETARY FOR SECURITY

HCAL 47/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

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J U D G M E N T

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Introduction

1. The Applicant was born in Pakistan and came to Hong Kong in June 1992 to live here with his mother and step-father. In July 1992, he was permitted to remain in Hong Kong as a dependent. His mother later returned to Pakistan and passed away there in May 1995.

2. In June 1995, the Applicant was arrested in connection with an offence of the possession of an identity card belonging to another person. He was tried summarily for that offence in the magistrates court. He pleaded guilty to the offence and was sentenced to 6 months' imprisonment in September 1995. The facts of the case as found by the magistrate (after a "Newton" hearing) were as follows. The Applicant came to know of a Chinese male who used to rent a room to Pakistani men. The Chinese male gave the identity card in question to the Applicant and asked him to take it to a location to wait for some men and to sell it to them. The Chinese male lent $300.00 to the Applicant and took the Applicant's own identity card as security. When the Applicant waited at the location as told, the police came upon him and found the identity card in question in his trousers pocket.

3. The facts giving rise to this application can be summarized as follows:-

(a) on 22 December 1995, the former Secretary for Security ("the S for S") made a deportation order against the Applicant;

(b) by a letter dated 10 January 1996 from his solicitors, the Applicant lodged his objections and sought a review of that order;

(c) on 11 March 1996, the Chief Secretary invited the Applicant to comment on the S for S's comments by 1 April 1996; the Applicant sent those comments on 1 April 1996;

(d) on 14 January 1997, the Governor in Council considered the Applicant's case and his comments. On 27 May 1997, the Chief Secretary informed the Applicant that his appeal (to the Governor in Council) against the deportation order was rejected;

(e) on 25 August 1998, the Chief Secretary wrote to the Applicant asking for his comments on the S for S's comments by 8 September 1998;

(f) on 2 December 1998, the Chief Executive in Council confirmed the S for S's decision to deport the Applicant for life.

4. Leave to apply for judicial review was given to the Applicant by the High Court on 5 May 1998.

The Applicant's Grounds of Application

5. In the Amended Notice of Application for leave to apply for judicial review, the following grounds upon which relief is sought are relied upon:-

(a) in coming to the decision to deport the Applicant, the S for S took into account an irrelevant matter, alternatively, failed to take into account a relevant matter. This ground relates in short to the S for S's comments on the severity of the offence;

(b) the S for S failed to provide any or any sufficient reasons for his decision to deport the Applicant;

(c) the S for S erred in aggregating the provisions of s. 20(1)(a) and (1)(b) of the Immigration Ordinance, Cap. 115 when reaching his decision to deport the Applicant. The said matters contained in s. 20 should have been, but were not, considered separately;

(d) the S for S failed to properly take into account a relevant matter and/or his decision was Wednesbury unreasonable. This relates in short to the way in which the S for S dealt with the Applicant's case that his life would be in danger in Pakistan.

6. These grounds will be further examined in the following paragraphs.

Ground 1: The S for S's Comments on the Severity of the Offence

7. As stated earlier, the deportation order was made on 22 December 1995. Subsequently, by a letter dated 10 January 1996, the Applicant (through his then solicitors) raised certain points with the Chief Secretary. In a letter dated 11 March 1996 written for the Chief Secretary and addressed to the Applicant, the comments of the S for S were enclosed. This last document was headed "Comments on the Objection by Mr Mohammad Akram" and was dated February 1996 ("the 'Comments'"). The part of the "Comments" most severely criticized by the Applicant's counsel and important to this application is para. 6. It reads:-

"Notwithstanding the representations from Mr Akram ... the [S for S] made a deportation order ... In doing so, the [S for S] took into consideration the following factors - ...

(a) Mr Akram was convicted of ... He admitted under caution that he acquired the card for the purpose of selling it. This is a serious offence which can result in a maximum penalty for ten years' imprisonment. The criminality and gravity of the offence suggest that Mr Akram is of undesirable character. His deportation will be in the wider interest of the Hong Kong public; ... " (underline supplied).

8. It appears that the S for S has since resiled from that position. In a document called "Second Comments on the Objection by Mr Mohammad Akram" and dated 24 July 1998 ("the '2nd Comments'"), the S for S said:-

"As regards the mistake on the maximum penalty of the relevant offence, the [S for S] confirmed that the mistake played no part in his decision to deport Mr Akram as the documents on which he based his decision did not refer to the maximum sentence of the relevant offence. ... Although the wrong maximum sentence was quoted, ... the actual term of imprisonment imposed [was] correctly reflected in the documents" (see para. 6 thereof).

Further, in an affirmation of a Mr Yee Kan Keung (a Senior Executive Office of the Security Bureau) dated 10 June 1998, Mr Yee said:-

"The Director of Immigration made no reference at all to the maximum penalty of 10 years ... The [S for S] had not been misled in this aspect when making his decision to endorse the proposed deportation. The reference to the maximum penalty of 10 years was made only in the papers subsequently submitted ... Further, in the Deportation Order ... it was expressly stated in the recital that the Applicant ... had been found guilty ... of an offence punishable with imprisonment for not less then two years ... There is no indication that the [S for S] had placed his decision on the fact that the offence would attract a maximum penalty of 10 years ... " (see para. 3 and 4 thereof).

9. It is important to note that the S for S himself has not filed any evidence to reconcile the apparent direct conflict between what was expressly stated in para. 6 of the "Comments" and the statements appearing in the two subsequent documents. It is unknown who compiled the "2nd Comments" and it does not appear to have been signed by the S for S (or indeed anyone). It is also unknown whether Mr Yee has personal knowledge when he asserted "the [S for S] had not been misled in this respect", having only deposed that he was "charged with the conduct of these proceedings on behalf of [presumably the current] Secretary for Security" but did not say that he was involved in the original deportation process. For the above reasons, I do not consider that any weight should be attached to these two subsequent documents. There is therefore no basis for me to come to any other conclusion except that the erroneous maximum sentence was at least one of the matters considered by the S for S.

10. It is also apparent that the maximum sentence of the offence was important to the decision of the S for S. This is because not only was that matter expressly relied upon by him in para. 6(a) of the "Comments", he repeated the matter again in para. 10(e):-

"the deportation of Mr Akram was consequential to his conviction of a serious offence. The gravity of the offence is born [sic] out by the fact that it carries a maximum penalty of ten years' imprisonment".

11. S. 7A(1A) of the Registration of Persons Ordinance, Cap. 177 provides that the possession of an identity card which relates to another person can be an offence and the offender is liable:-

"(a) on conviction on indictment to ... imprisonment for 10 years; and

(b) on summary conviction to ... imprisonment for 2 years".

12. Based on the above, Mr Whitehead for the Applicant argued that because of the importance which the S for S apparently attached to this matter, his decision must have been vitiated by this error. Faced with what was obviously an error on the face of the record, Mr Coleman for the Respondent argued that:-

(a) it is factually correct that the maximum penalty prescribed for the offence was 10 years' imprisonment;

(b) further, the actual sentence imposed against the Applicant must have been of primary importance and the S for S had properly taken that into account;

(c) in the deportation order itself, the correct maximum sentence was referred to.

13. I shall deal with Mr Coleman's point (c) first. It is beside the point whether the deportation order itself set out the correct maximum sentence. The fact remains that the S for S has expressly (and erroneously) stated (in para. 6(a) and 10(e) of the "Comments") that one of the matters taken into consideration was the maximum sentence of 10 years' imprisonment. As stated earlier, I found as a fact that there was no proper evidence to show that this error was irrelevant to the S for S's decision-making process.

14. With respect to Mr Coleman, I also disagree with his point (a). The S for S set out the maximum sentence of 10 years' imprisonment purporting it to be the maximum sentence applicable to the Applicant. In para. 6(a) of the "Comments", he expressly stated that he took that maximum sentence into consideration. In para. 10(e) of the "Comments", he linked the maximum sentence of 10 years' imprisonment to the seriousness and gravity of the offence for which the Applicant had been convicted of. Thus, it was not simply (as Mr Coleman's point (a) suggests) a case of the S for S referring to the 10-year maximum as a general proposition.

15. Mr Coleman's point (b) fails to address the express statements of the S for S in para. 6(a) and/or 10(e) of the "Comments". When the S for S concluded that the offence which the Applicant was convicted of was a "serious offence", or an offence of "gravity", he did so clearly because of the 10-year maximum sentence.

16. For the above reasons, I agree with Mr Whitehead's arguments over this point. His alternative argument is that if the Court accepts that the S for S did not take into account the 10-year maximum sentence, the S for S failed to take into the (correct) 2-year maximum sentence. Since I already concluded that the S for S had taken into the (erroneous) 10-year maximum sentence, it is unnecessary to consider this alternative argument.

Ground 2: The S for S's Failure to Provide Reasons

17. In the course of his oral submissions, Mr Whitehead clarified that his argument relating to this point is that the S for S should have given his reasons for making the deportation order before, rather than after, objections had been raised by the Applicant. As stated above, the deportation order was made on 22 December 1995. The Applicant (through his solicitors) lodged his objections on 10 January 1996 pursuant to s. 53 of the Immigration Ordinance, Cap. 115. This statutory provision enables a person aggrieved by a decision, act or omission of a public officer under Cap. 115 to review that decision by lodging a notice in writing.

18. I consider Mr Whitehead was correct in not arguing that the S for S must invariably give his reasons either before (or at the same time as) the making of the deportation order. It is of course (at least) desirable that reasons for making a deportation order be given at such times so as to avoid any impression (or complaint) of any "tailoring" of the reasons. As outlined above, following the objections lodged on 10 January 1996, the S for S has given the "Comments" and "2nd Comments". The Applicant has (again correctly) not complained that the S for S had "tailored" (or had attempted to do so) his reasons as a result of receiving the Applicant's objections. Because of this fact, I find that the present case is distinguishable from In the Matter of a Judicial Review by PC17503 Lo Wing Tong, unrep., Civ. App. No. 62 of 1989. In the Court of Appeal decision, an affidavit filed to explain the decision made by a disciplinary board was rejected by the Court. The Court of Appeal observed that it was "to put before the Court some additional facts and matters relating to the decisions made in view of the assertions and criticisms made in the application for review. It has the unmistakable appearance of being professionally drafted ... " (see p. 11 of the transcript). It was in that context that the Court of Appeal said:-

"Surely it would be a most dangerous thing, after an award has been made which becomes of itself the foundation of a right, to allow any one to retain the power of explaining it away, or even of defeating it" (p. 14 of the transcript, citing Duke of Buccleuch v. Metropolitan Board of Works (1871-72) 5 LRHL 418); and

"We are concerned with the more old-fashioned context of private disciplinary proceedings where reasons have been given. In our view the interests of justice require that they should not be amended in the light of subsequent criticism. The person found guilty has a right to know where he stands at the conclusion of the proceedings" (p. 19 of the transcript).

19. I do not find those observations to apply to the present case. Having considered the contents of the "Comments" and "2nd Comments", I rather agree with Mr Coleman and consider that the principles set out in Calvin v. Carr [1980] A.C. 574 and Sea Dragon Billiards & Snooker Association v. Urban Council [1991] 2 H.K.L.R. 114 should apply, namely, that the subsequent proceedings cured any defect there might have been in the original enquiry (see p. 117A-F of the Sea Dragon case citing p. 589 of the Calvin case). Hence, although reasons were not given at the time of the making of the deportation order, this procedural defect was cured by the "Comments" and "2nd Comments".

Ground 3: Provisions of S. 20(1) of Cap. 115

20. S. 20(1) of Cap. 115 provides:-

"The [Chief Executive] may make a deportation order against an immigrant if -

(a) the immigrant has been found guilty in Hong Kong of an offence punishable with imprisonment for not less than 2 years; or

(b) the [Chief Executive] deems it to be conducive to the public good".

Under s. 63 of the Interpretation and General Clauses Ordinance, Cap. 1, that power was exercisable by the S for S.

21. Mr Whitehead submitted that the "Comments" show that the S for S had considered the 2 limbs of s. 20(1) of Cap. 115 cumulatively rather than separately: see para. 11 thereof. Mr Whitehead however accepted (correctly) that the S for S did not generally have to limit his consideration to the criminal conviction only (that is, under s. 20(1)(a)) but can properly also take into consideration other relevant matters (especially matters relevant to s. 20(1)(b)).

22. Mr Whitehead's real complaint in this case is that the S for S had indicated in the "Comments" that he had consulted both the Commissioner of Police and Director of Immigration before making his decision to deport the Applicant: see para. 9 of the "Comments". The consultation was expressly stated by the S for S to be related to the deportation of the Applicant "in the public's interest" (that is, under s. 20(1)(b)). The contents of the consultation however were never disclosed to the Applicant (and no reason was given for such failure) so that he was never given an opportunity to be heard on those matters.

23. Mr Coleman argued that the consultations might have been made by the S for S after the deportation order had already been made, relying on the manner in which the matters "Comments" were respectively set out. With respect to Mr Coleman, although this was an ingenious argument, I do not find that it was borne out by the document. The failure by the Respondent to adduce proper evidence to deal with this complaint made by the Applicant is also relevant to my conclusion on this point.

24. For the above reasons, I also agree with Mr Whitehead's arguments over this point.

Ground 4: The S for S's Treatment of the Applicant's Case

25. In the Applicant's hand-written submissions dated 1 December 1995, he said:-

"After my mother death [sic] I borrowed about HK$15,000.00 from bank ... and at the same time I also borrowed some money from people in Pakistan. ... I will not be able to repay all money ... If I am deported to Pakistan they [referring to the people in Pakistan] will kill me ... ".

This point was dealt with in the "Comments" when the S for S observed:-

"in an interview with an Immigration Officer, Mr Akram admitted that it was only his belief that his life would be in danger upon his return to Pakistan" (see para. 6(c) thereof).

It is also to be noted that in the Applicant's hand-written submissions sent to the Chief Secretary on 29 March 1996, he said:-

"There is no life guarantee in Pakistan because I have some enemies".

26. Mr Whitehead complained that that was an improper way of dealing with this part of the Applicant's case. He submitted that the S for S should have at least informed the Applicant of the importance of this matter to the Applicant's case. The S for S should also have investigated further, for example, by at least making more enquiry of the Applicant. Mr Whitehead relied upon the following cases on this point:-

(a) Wickramasena v. Griffin [1990] 95 A.C.R. 187;

(b) Minister for Immigration and Ethnic Affairs v. Teoh (1994) 121 A.L.R. 436.

27. I consider that the cases relied upon by Mr Whitehead are distinguishable for the following reasons. The Wickramasena case concerned a Sri Lankan consular officer. During his employment as such he received threats from persons in the Tamil community in Australia which he feared would be carried out on his return to Sri Lanka. He sought permanent resident status for himself and his family but the application was refused. The part of the judgment heavily relied upon by Mr Whitehead reads:-

"The second ground relied upon by the applicant is failure [by the Minister for Immigration, Local Government and Ethnic Affairs] to take into account relevant considerations. This ground focuses upon the non sequitur in para. 8 of Mr Howard's assessment, the submission being put that this assessment failed to address the matters put by Mr Wickramasena about threats made to him whilst he was employed in the Consulate.

If the matter stopped there I would uphold the present challenge on the ground of failure to take into account relevant considerations. I think that it is clear that the initial decision did not address the problem of the threats that were made to Mr Wickramasena ... However, the matter did not stop there. There was a reconsideration ... " (see p. 193, lines 25 to 35).

The Judge then went on to find that the matters had been fully considered in the making of the second decision by the Minister and dismissed the application. It is important to understand the factual context which prompted the above remark of the learned Judge. Earlier in the judgment he observed:-

"The initial report is dated 19 January 1988. ... The assessment report deals with Mr Wickramasena's fears for his safety. Reference is made to the general violence in Sri Lanka and in this context the following statement is made in para. 8: 'It is also noted that the applicant has not provided reasons to believe that he and his family would be subject to physical danger greater than that experienced by persons in a similar situation in Sri Lanka'.

Mr Howard turned, in para. 9, to the specific fear voiced by the applicant ... and then referred to the letter of the Department of Foreign Affairs and Trade ... There is nothing to indicate that the writer of the letter from the Department of Foreign Affairs and Trade was apprised of the fact or nature of these threats. His letter did not purport to deal with the matter of threats, but commented that he did not think there was a likelihood of revenge ... It certainly did not follow that the Department's letter disposed of the problem raised Mr Wickramasena ... I think that it is a fair comment that Mr Howard's assessment did not deal with that matter" (p. 189, lines 3 to 37).

28. Similarly, the Teoh case involved different facts and different considerations. The appellant was a Malaysian citizen who was married to an Australian citizen since 1988. There were 7 children in the family all of whom were Australian citizens, aged between 20 months and 12 years old. In November 1990 the appellant was convicted of various drug offences and was sentenced to 6 years' imprisonment. Between December 1991 and October 1992 his wife was also imprisoned for drug related offences. In the meantime, the children were placed in the State's care. The appellant was refused residency status in January 1991 and it was decided that an entry permit not be granted to him. There was material before the various decision-makers that the capacity of his wife to look after the family was impaired and he had a major role in keeping the family together. At the hearing of the appeal, the appellant added a further ground of procedural unfairness that "the respondent failed to make appropriate investigations into the hardship to [his] wife and her children were [he] refused resident status". The parts of the judgment relied upon by Mr Whitehead read:-

"Having regard to the material about the impaired capacity of the children's mother and the role of the appellant in keeping the family together, the question must surely have been raised whether the removal of the children's father to another country would deprive the children not only of a father and step-father, but would bring about the complete disintegration of the family unit.

Although it is in general not for the decision-maker to make out a case for someone seeking the exercise of a discretion in their favour, it has been recognised that there are occasions when the adequate consideration of a relevant matter necessarily involves the making of some inquiry as to the facts ... It should also be noted that a failure by a decision-maker to obtain readily available factual material likely to be of critical importance in relation to a central issue may lead to the conclusion that a decision has been unreasonably made ... " (p. 442, lines 31 to 42).

29. On the other hand, Mr Coleman submitted that the duty to investigation must be appropriate and depends on the factual circumstances of the case, relying on the following the passages in the Teoh case:-

"The obligation to inquire must surely be considered in the light of the extent and nature of the information already before the decision-maker. Was there insufficient information upon which to exercise the discretion?" (p. 463, lines 18 to 20).

30. I agree with Mr Coleman that whether or not the S for S:-

(a) was obliged to make some inquiry as to the Appellant's assertion that his life might be in danger in Pakistan;

(b) if the answer to (a) above is affirmative, has made adequate investigation in the present case,

is ultimately a matter of fact.

31. Having considered the circumstances of this case, I find that the S for S had discharged those duties. This is because:-

(a) the Applicant is, unlike the children in the Teoh case, an adult person who could reasonably be expected to be able to provide all the necessary information to the S for S;

(b) more importantly, the S for S has in fact, through the Immigration Officer, made investigation by interviewing the Applicant;

(c) the Applicant has during the interview admitted that the threat was based purely on his own subjective belief;

(d) the matter set out in sub-para. (c) above has not been challenged by the Applicant in his affirmations.

32. For the above reasons, I do not consider there is any substance in this ground.

Decisions of the Governor/Chief Executive in Council

33. S. 64 of Cap. 1 provides:-

"(1) Where any Ordinance confers upon any person a right of appeal or objection to the Chief Executive in Council, such appeal or objection shall be governed by rules made ...

(2) The conferring by any Ordinance of a right of appeal or objection to the Chief Executive in Council ... but no proceedings by way of mandamus, certiorari, prohibition, injunction or other order shall be taken against the Chief Executive in Council in respect of any such appeal or objection to the Chief Executive in Council or any proceedings connected therewith.

(4) The Chief Executive in Council ... may confirm, vary or reverse such decision or substitute therefor such other decision or make such other order as the Chief Executive in Council may think fit" (underline supplied).

34. Based on these provisions, Mr Coleman argued that:-

(a) the Applicant is precluded from challenging the deportation order, or the S for S's "Comments" or "2nd Comments";

(b) the Applicant is precluded from challenging the decisions made by the Governor in Council or by the Chief Executive in Council;

(c) in any event, whatever defects there were in the original deportation process, they were cured by the decisions made by the Governor in Council or the Chief Executive in Council.

35. I do not agree with Mr Coleman's point (a). S. 64(2) clearly provides that no order lies against "the Chief Executive in Council" only. There is no provision which bars the Courts from interfering with the decisions made by other public officers or public bodies. I therefore consider that s. 64(2) does not bar the Court from interfering with the deportation order made in this case.

36. As regards Mr Coleman's point (b), Mr Whitehead responded as follows. The deportation order was a nullity by reason of the defects he contended for. Thus, although the decisions on appeal of the Governor/Chief Executive in Council are not open to challenge, these decisions cannot exist on their own when the original deportation order has been shown (and found by the Court) to have been a nullity. In this connection, Mr Whitehead referred to Singh v. Secretary for Security (1996) 6 H.K.P.L.R. 440, 455H-I.

37. I consider it unnecessary to determine whether this subtle legal proposition of Mr Whitehead is correct because:-

(a) the Governor in Council merely decided on 27 May 1997 that the Applicant's appeal was rejected. The Governor in Council did not make a separate order from the one made by the S for S earlier. Hence, once the deportation order is found to be a nullity, there is nothing to which the decision to reject the appeal can "attach";

(b) as regards the later decision of the Chief Executive in Council of 2 December 1998, I agree with Mr Whitehead's argument that there is no jurisdiction for the making of such a decision, after the same matter has been disposed of by the Governor in Council in May 1997. No power has been conferred by s. 64 of Cap. 1 (or any other statutory provision which the Respondent relied upon) for the Chief Executive in Council (which in effect took over from the Governor in Council) to review, or to hear or consider an appeal from, his own decision. Although s. 7(1) of Cap. 1 provides that words and expressions in the singular include the plural, I consider that in the context of s. 64 of Cap. 1, the legislative could not have intended that an indefinite number of appeals can be lodged with the Chief Executive in Council, nor is the Chief Executive in Council obliged to hear and consider such appeals;

(c) finally, whatever the merits are in the legal proposition contended for by Mr Whitehead, I believe that the Respondent should be more concerned with the substantive justice and fairness of this case, rather than rely on any point arising simply from s. 64 of Cap. 1.

38. Mr Coleman also relied on the Applicant's earlier appeal to the Governor in Council as having "cured" any defects in the original decision to deport. I agree with Mr Whitehead's argument that since there is no reason given by the Governor (or the Chief Executive) in Council, nor was there any evidence regarding how the decision(s) was/were made, there is no basis for me to find that there was such fresh re-consideration as would "cure" the original defects.

The Applicant's Conduct: Delay and Misstatement

39. There is a section in Mr Coleman's written submissions which deals with "Misstatement of Facts". However, this was not pursued at the hearing and so there is no need to discuss this point further.

40. There is another section in Mr Coleman's written submissions which deals with "Out of Time". However, having been referred to R v. Criminal Injuries Board exp A [1999] 2 W.L.R. 934, Mr Coleman sensibly did not advance any argument on this point. There is therefore also no need to further discuss this point.

Conclusion on Liability

41. For the reasons set out above, I find in the Applicant's favour on liability and conclude that the deportation order is null and void.

Relief

42. Whether to grant the relief sought in these proceedings is a matter of discretion. No objection was raised by the Respondent specifically on this aspect. I consider that the circumstances of this case are such that I ought to grant the relief sought and there will be an order in terms of the relief sought in the Amended Notice.

Costs Order Nisi

43. There is no reason why I should not make a costs order nisi pursuant to Ord. 42 r. 5B(6). There is also no reason why costs should not follow the event. Costs of this application are to be paid by the Respondent to the Applicant to be taxed if not agreed. The Applicant's own costs are to be taxed in accordance with the Legal Aid Regulations.