LAU OI MING v. DIRECTOR OF IMMIGRATION

HCAL 88/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO.88 OF 1999

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J U D G M E N T

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1. This is an application for leave to apply for judicial review. The decision originally under attack was that of the Director of Immigration not to grant bail and not to release the applicant on a recognizance. The papers were placed before Cheung J who ordered that the matter be presented orally with notice to the putative respondent.

2. The applicant comes from the Mainland, and is the director of a cosmetics company, registered and carrying on business in Hong Kong. He came to Hong Kong in 1992 with a Bolivian passport and acquired an employment visa, and was last permitted to remain here until 1998. There was conducted, at some stage last year, a search and the applicant was found in possession of false Japanese passports or passports with false particulars and he was prosecuted and in February 1999 was sentenced to nine months' imprisonment, from which imprisonment he was released in July this year, namely 12th July.

3. Whilst imprisoned, proceedings were instituted against him for sums allegedly due in respect of certain cosmetics goods supplied by his company. He is due to appear for trial on 29th September 1999 before the magistrate. He has been granted bail by the magistrate, I am told, with a surety and ordered not to leave Hong Kong, and to surrender all travel documents, and to reside at a particular address in Pokfulam, and to report to the police three times a week.

4. In anticipation of his release from prison in July, those acting for him wrote to the Director of Immigration asking that the immigrating authorities should place him on bail or recognizance after his discharge, but the Director said that recognizance would not be considered. Accordingly, when the applicant was released from Pik Uk on 12th July, he was transferred to Victoria Detention Centre, and detained under section 32(2)(A) of the Immigration Ordinance pending a decision whether or not to make a removal order under section 19.

5. The application was overtaken by events when it came before me yesterday, in that the Director has now made a removal order, so the original challenge to the decision to detain pending a decision whether to remove became academic. The application has now been amended, with leave, to challenge the decision to remove and the decision to detain pending removal. The removal order is said to be irrational because there is an order that the applicant should remain in Hong Kong, and it is said that that matter and the fact that it will be difficult or impossible for the applicant in effect to come back to Hong Kong for trial is a matter which should have been, but was not, taken into account when the removal order was made.

6. Further under attack is the decision to detain pending removal, rather than granting the applicant recognizance pending removal. It is said that if the applicant is not removed immediately to the Mainland, it would mean that he will be detained in Hong Kong until late September 1999, and that detention for that period of time is excessive, and therefore unlawful.

7. The test for the grant of leave is whether the applicant raises plausible or reasonable suggestions that on further investigation the decisions under challenge may be shown to be impeachable.

8. I am not prepared to say that that low threshold has not been crossed. Accordingly, on the undertaking by the solicitors for the applicant to file as soon as practicable the 2nd affirmation of Mr Chan Siu Chung, leave is granted to the applicant to apply for judicial review of the decision of the Director to make a removal order and his refusal to release the applicant on recognizance in the interim.

9. The applicant seeks bail pending the substantive hearing. The application for bail is opposed. I have jurisdiction to grant bail pending the substantive hearing. However, the application is refused. The applicant is a person with a lamentable record when it comes to false representations to immigration authorities, and an ability, on the evidence before me, to get his hands on false travel documents. The immigration authorities have every good reason to fear that this is a man who might seek to go to ground if he were released on recognizance within Hong Kong. They have every justification in seeking to ensure that he is removed, and removed only to such place or places to which removal can properly be effected.

10. It is said that the circumstances have not changed since the applicant was before the magistrate who granted bail. I do not think I am limited in my decision making on the question of bail by the question whether there are or are not new circumstances. But even if I were, the fact of the matter is that there are new circumstances - in the first place, a removal order has been made, and in the second place, there is evidence from the Bolivian authorities that travel documents which this applicant possesses or possessed from that nation are also false.

11. Conscious as I am of the fact that detention should not be for any longer than necessary and of the peculiar history of this case, I shall, whilst refusing bail, order that there be an expedited hearing of this substantive application and that it be certified as fit for vacation business. Half day reserved.