RE YUNG KWAN LEE AND OTHERS

1997, No.AL116

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H E A D N O T E

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Habeas Corpus - transfer and detention of prisoners pursuant to Treaty - change in exercise of sovereignty - lapse of treaty - lapse of Orders in Council - whether continued detention after 1 July 1997 lawful - Transfer of Sentenced Persons Ordinance.

The applicants were Hong Kong permanent residents who had each been sentenced to long terms of imprisonment in Thailand. They were transferred to Hong Kong to serve the balance of their sentences here pursuant to an international agreement between the Government of the United Kingdom and the Kingdom of Thailand. They were detained in prisons in Hong Kong before 1st July 1997 under warrants issued by the Governor. The power to issue the warrants was then conferred by the Repatriation of Prisoners Act 1984, as applied to Hong Kong by Orders in Council.

After 30th June 1997 the treaty no longer be applied to Hong Kong. The Orders in Council ceased to apply to Hong Kong on a date which was in issue in the case, but in any event not later than 30th June.

It was argued that in the absence of the underlying treaty and in light of the lapse of the Orders in Council, the detention of the applicants after 1st July 1997 was unlawful, and that the provision in the Transfer of Sentenced Persons Ordinance which came into effect in Hong Kong in June 1997 which deemed old warrants to be issued under the new legislation presupposed the continuation of an international arrangement by a replaced Hong Kong-Thai agreement.

Held :

1. The validity of the warrants issued, and detention pursuant to them, did not depend upon the continuation in force of the international agreement.

2. The provisions of section 10 of the Ordinance which deemed old warrants to be issued under the new legislation did not require, for the validity of the warrants and detention under them, the replacement of the lapsed agreement by a new Hong Kong-Thai agreement.

3. The continued enforcement of the sentence of a foreign court did not despite the absence of an existing treaty infringe the principle of non-enforcement of another country's penal laws, for that was a principle of international law which was subject to provisions enacted by local legislation, and the Ordinance constituted express authorisation for the continued detention of those who had previously been transferred to Hong Kong in accordance with the 1984 Act and the then current international agreement.

4. The original warrants, deemed to be issued under the Ordinance, authorised detention of each applicant for the term of his imprisonment "until release in accordance with relevant Hong Kong legislation or relevant international arrangements". Since each applicant was in detention whilst the term of his imprisonment had not expired, and since release had not been authorised by law or by international arrangement, the continued detention of each applicant was lawful.

1997, No.AL116

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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J U D G M E N T

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The Application

1. This is an application for the issue of writs of habeas corpus. The application is made by origination motion pursuant to an order made by Yam, J. on 5th December 1997. The Notice of Motion seeks an order that writs of habeas corpus should issue directing the Superintendent of Shek Pik Prison and the Superintendent of Stanley Prison to release the applicants. All applicants are represented, though not all have been present during argument, the solicitors for the applicants having suggested that for practical reasons it would suffice for their presence to be represented by one from each of the two prisons. Ms Li, S.C. on their behalf, has agreed that the matter should proceed on that footing.

2. There is a lack of clarity about the basis upon which the matter is now before the court. Section 22A(5) of the Supreme Court Ordinance as amended provides that upon an application for the issue of a writ of habeas corpus, the Court of First Instance must :

"... if satisfied that the application has substance, do either of the following 

(a) order the issue of a writ of habeas corpus directing the person having custody of the applicant to have the applicant brought before the Court at a specified time on a specified date and to certify to the Court the grounds for the applicant's detention;

(b) order the person having custody of the applicant to appear before the Court in order to justify the lawfulness of the applicant's detention."

Yam, J. did not order the issue of a writ, and it is agreed that it would have been unhelpful had I yesterday, when the matter came before me for argument with all parties represented, or were I today, to issue a writ requiring the Respondent to make a formal return to it. Instead, it has been agreed that the most practical way forward is that I should treat the learned judge as having made an order under subsection 5(b), and that I shall do.

3. In the event, I have had the advantage of submissions yesterday by the Solicitor, Mr Daniel Fung, S.C., on behalf of the Respondent, and by Ms Gladys Li, S.C., on behalf of all applicants.

4. There are 18 applicants, each of whom is detained in prison in Hong Kong serving a sentence imposed by a court in Thailand in respect of criminal offences committed within the jurisdiction of the courts of that country. The applicants were transferred to Hong Kong prisons to serve the balance of their sentences pursuant to arrangements and legislation designed to enable those convicted abroad to be imprisoned in their home, rather than in a foreign, jurisdiction. All the applicants were transferred to Hong Kong from Thailand before 1st July 1997, and it is said that changes in the law which took effect in Hong Kong upon, and even before, that date as well as the lapse on that date of the applicable international arrangement for the transfer of prisoners to Hong Kong from Thailand, mean that there is no lawful basis for their detention beyond that date.

The Applicants

5. Each applicant is a permanent resident of Hong Kong. Each has been sentenced to a long term of imprisonment by a Thai court for an offence of drug trafficking. Twelve applicants were sentenced to life imprisonment, but have had their sentences commuted to terms of 40 or 50 years. Of those who were not given terms of life imprisonment, sentences range, after commutation, between 20 and 30 years. There is some suggestion that the figures for the earliest date of discharge which I have been given may not be entirely accurate, but such inaccuracies as there may be have no impact upon this application. The figures which I am given state that the earliest date of discharge that any applicant may expect is the year 2004, and the latest such date is 2020. The date upon which each was repatriated to Hong Kong varies. The earliest date is February 1994; the latest June 1997. It is common ground that all the applicants have already served several years of imprisonment; an average I am told by the Solicitor, of 10 years, although Ms Li suggests the average to be much longer than that.

The International Agreement

6. Arrangements for the transfer of sentenced prisoners between the United Kingdom and her dependent territories on the one hand, and other countries on the other, were effected by multilateral as well as bilateral international agreements. The multilateral agreement of which mention has been made in these proceedings is the Council of Europe Convention in relation to the Transfer of Sentenced Persons, to which the United Kingdom was a signatory, and the provisions of which were extended to Hong Kong. It is not directly relevant to this application. What is relevant however is that in 1990, the Government of the United Kingdom entered upon a bilateral agreement for the transfer of prisoners with the Kingdom of Thailand ("the Agreement"). Instruments of ratification were exchanged on 6th February 1991 and the Agreement came into effect upon that date.

7. The Agreement states in its preamble that one of its objectives is to facilitate the successful reintegration of offenders into society. The flavour of the Agreement may be appreciated by the following of its provisions, namely :

1. The contracting parties were to inform all persons as were within the scope of the Agreement of the substance of it (Article 4(1) ) - no doubt so that those nationals who might benefit from it could avail themselves of its provisions.

2. There is a requirement that the act in the transferring state for which the prisoner is to be transferred to the receiving state constitutes an offence in both jurisdictions (Article 3(a) ).

3. The offender had to be a national of the receiving state, and the arrangements could only proceed with the consent of the prisoner affected (Articles 3(a) and 3(g) ).

4. In the case of fixed sentences, it was necessary that at least one year remained to be served at the time of the request for transfer (Article 3(d) ).

5. Every transfer was to be commenced with a written request through diplomatic channels (Article 4(2) ).

6. The transferring state was to retain exclusive jurisdiction regarding, inter alia, "the revision, modification or cancellation of the sentence." (Article 4(6) ); and if the transferring state reduced, commuted, or terminated the sentence, the receiving state shall, upon being notified of the decision give effect to that decision (Article 6(4) ).

7. The continued enforcement of the sentence after transfer was to be governed by the laws and procedures of the receiving state (Article 6(1) ); and

8. The receiving state was to be bound by the duration of sentence determined by the transferring state (Article 6(2) ).

8. By virtue of Article 9, the Agreement applied, in relation to the United Kingdom, to Great Britain and Northern Ireland and to Hong Kong and to any other territories to which the Agreement shall have been extended by mutual agreement.

9. It was further provided that the Agreement was to remain in force for five years from the date upon which it entered into force (in this event until 6th February 1996) and thereafter "until six months from the date upon which either party gives written notice to the other party of its intention to terminate it."

Domestic Application

10. Domestic effect was given to the Agreement by the application to Hong Kong, through Orders in Council, of the salient and suitably adapted provisions of the Repatriation of Prisoners Act 1984 ("the Act") enacted by the parliament of the United Kingdom. There were two such Orders in Council. One was made on 16th December 1986 and came into operation on 1st February 1987 ("the 1986 Order"); and the other was made on 21st October 1987, and came into force on 16th November 1987 ("the 1987 Order").

11. The 1984 Act provided that where the United Kingdom was party to an international arrangement providing for the transfer of a prisoner between the United Kingdom and a country outside the British Islands and, subject to the fulfillment of certain conditions, the Secretary of State of the United Kingdom "shall issue a warrant providing for the transfer of the prisoner into or out of the United Kingdom." (Section 1(1) of the Act.) The Act made provision for a number of necessary and ancillary matters.

12. Section 9 of the Act stipulated that :

"Her Majesty may by order in council make provision for extending the provisions of this Act, with such exceptions, adaptations and modification, as may be specified in the Order, to any Colony."

Provisions of the Act were then applied, suitably adapted, to a number of dependent territories by virtue of the Repatriation of Prisoners (Overseas Territories) Order 1986, and by the Order in Council dated 21st October 1987 Hong Kong was added to the list of territories to which the 1986 Order applied.

13. The effect of the 1986 Order was that where international arrangements applied to Hong Kong for the transfer of prisoners between Hong Kong and a country or territory outside Hong Kong, "the Governor shall issue a warrant providing for the transfer of the prisoner in or out of [Hong Kong]". (I note that the warrants in this case were issued by the Secretary for Security and that section 8 of the Act as applied to Hong Kong enabled the Governor to designate his functions under the Act to others, and it seems common ground - at least the point is not raised - that the Secretary for Security acted under proper authorization.) The prisoner's consent was a condition precedent to the issue of a warrant, but once given could not be withdrawn, and a purported withdrawal of the warrant was not to affect the validity of that warrant (Section 1(6) ).

14. Section 3 of the Act as modified by the Order provided as follows :

"3(1) The effect of a warrant providing for the transfer of the prisoner into [Hong Kong] from a place outside [Hong Kong] shall be to authorise 

(a) the bringing of the prisoner into the Territory from a place outside the Territory;

(b) the taking of the prisoner to such place in the Territory, may be specified in the warrant; and

(c) the detention of the prisoner in the Territory in accordance with such provisions as may be contained in the warrant, being provisions appearing to the Governor to be appropriate for giving effect to the international arrangements in accordance with which the prisoner is transferred."

So, section 3(1)(c) there provided in terms the legal authority for detention beyond the time of transfer.

1st July 1997

15. There was no need between 1991 and 1997 for Hong Kong's local legislature to enact provisions which enabled the Agreement to be operated domestically, for that had been accomplished by the Orders in Council. However, the resumption of the exercise of sovereignty over Hong Kong by the People's Republic of China on 1st July 1997 signaled a number of changes relevant to this application :

1. International arrangements made between the Government of the United Kingdom and other countries which had been extended to Hong Kong could not, in so far as they extended to Hong Kong, continue in force beyond 1st July. Fresh arrangements applying to Hong Kong but authorised or approved by the Government of the People's Republic of China had to be made, failing which there would be no international arrangement of which Hong Kong could avail itself. Pursuant to the provisions of the 1984 Sino-British Joint Declaration and agreements reached in the Joint Liaison Group established by the Joint Declaration, and with the approval of the Government of the People's Republic of China, Hong Kong entered upon a number of bilateral agreements on its own with third parties which were to continue in operation beyond 1st July 1997. But it is common ground that prior to 1st July 1997, no such fresh agreement was concluded with the Government of the Kingdom of Thailand in respect of the transfer of prisoners, and none has since been concluded.

2. A further significant consequence of the 1st July changes was that the 1984 Act and the Orders in Council ceased to have application to Hong Kong. The date upon which the Act and the Orders in Council cease to apply is a matter of dispute in this case, and one which I must later address.

3. In recognition of the facts that former international arrangements to which the United Kingdom was party and had applied to Hong Kong would no longer apply to Hong Kong, and that the Orders in Council applying the 1984 Act would lapse in effect by 1st July 1997, there was enacted, in May 1997, local legislation in Hong Kong primarily designed to cater for transfers of prisoners to and from Hong Kong after 1st July 1997, in other words after the date upon which the then current international arrangements ceased to apply to Hong Kong and the date upon which the 1984 Act ceased to apply to Hong Kong.

4. The Basic Law of the Hong Kong Special Administrative Region adopted by the National People's Congress, and promulgated by the President of the People's Republic of China in April 1990, came into effect on 1 July 1997. Ordinances in force prior to 1st July 1997 which contravened the Basic Law could not be maintained beyond that date.

The Ordinance

16. The Transfer of Sentenced Persons Ordinance ("the Ordinance") was enacted on 29th May 1997, and came into operation on 6th June 1997. It was obviously envisaged when enacted that fresh arrangements would be concluded between Hong Kong and third parties, with appropriate authorisation by the central government, much along the lines as those in place before 1st July 1997. The scheme of the Ordinance is much the same as was the scheme of the 1984 Act. The Ordinance envisaged that the Governor would, "pursuant to any arrangements for the transfer of sentenced persons" be entitled to issue warrants providing for the transfer of a sentenced person (see section 3). Legislators then knew that after 1st July 1997 for "Governor" would be read "Chief Executive" and indeed the Hong Kong Reunification Ordinance provided that any reference to "Governor" in laws previously in force shall, after 1st July 1997, be construed as a reference to the "Chief Executive of the Hong Kong Special Administrative Region". Section 5 of the Ordinance (i.e. the Transfer of Prisoner's Ordinance) stipulates that an inward warrant shall be sufficient authority for, inter alia, "the detention of the sentenced person in accordance with the terms of the warrant". Section 6 provides that the warrant may be revoked or varied, and further, that where the term of the sentence imposed on a transferred prisoner has been commuted or reduced, the warrant is to be varied or revoked accordingly.

17. Section 8 of the Ordinance requires the Secretary for Security to specify by notice in the Gazette the date upon which "any arrangements for the transfer of sentenced persons shall come into operation," but by subsection (3) it was stipulated that section 8 "shall expire immediately upon the expiration of 30 June 1997." The relevance of this unusual provision is a matter to which I shall shortly return.

18. There is a transitional provision, which is section 10 , subsection (1) of which provides :

"(1) Where

(a) a sentenced person is in custody in Hong Kong by virtue of a warrant issued under the Repatriation of Prisoners (Overseas Territories) Order 1986 (App. III, p.C1); 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, and the other provisions of this Ordinance (including section 6) shall be construed accordingly."

Section 11 of the Ordinance provided for a number of consequential amendments, one of which is at Schedule 2, paragraph 3 of the Ordinance which reads :

" The Repatriation of Prisoners (Overseas Territories) Order 1986 (App.III, p. C1), in so far as it is part of the law of Hong Kong, is amended, in Schedule 1, by adding -

'8A. Application

This Act shall not apply as between Hong Kong and a place outside Hong Kong where any arrangements for the transfer of sentenced persons, within the meaning of Section 2 of the Transfer of Sentenced Persons Ordinance (51 of 1997 Hong Kong), are in operation between Hong Kong and that place.' "

The Continued Application of the Ordinance

19. A number of matters of law are not in dispute. The first is that the Ordinance, although enacted before 1st July 1997, continued in force as law beyond that date. The second is that the Orders in Council did not.

20. Article 8 of the Basic Law provided that :

" 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."

21. Article 160 of the Basic Law provides that laws previously in force shall be adopted, "except those which the Standing Committee of the National People's Congest declares to be in contravention of [the Basic] Law." The Standing Committee of the National People's Congest has not declared the Ordinance to be in contravention of the Basic Law, and has, on 23rd February 1997, adopted the laws previously in force which include ordinances, although there is an important proviso or exception to that adoption, namely, those laws that contravene the Basic Law. I note, too, that section 7 of the Reunification Ordinance provides that ordinances previously in force and which have been adopted as the laws of Hong Kong shall continue to apply, and by section 5 of that Ordinance shall be construed with adaptations suitable to the new order.

22. So, subject only to the question whether the Ordinance, or part of it, contravenes the Basic Law - and there is such a suggestion in this case - the Ordinance survived the 1st July watershed.

23. In so far as it seems in the original written submissions on behalf of the applicants to have been suggested that section 10 of the Ordinance somehow contravenes Article 8 of the Basic Law because its only purpose is to give effect to Orders in Council - a suggestion not advanced in those terms by Ms Li - it would not be a suggestion with which I agree. It seems to me clear that the purpose of section 10 is to give authority for the continued detention of those who have committed crimes abroad and have availed themselves of a scheme by which they can serve their sentences here in Hong Kong. The fact that the original authority for their detention had its root in an Order in Council does not somehow invalidate the new piece of legislation enacted locally. Article 8 of the Basic Law expressly envisages that "ordinances" previously in force in Hong Kong will remain in force. In the event, the Ordinance is self-contained, does not require the importation of the Order in Council, and is an ordinance which was previously in force. Nor is there any instrument which prohibits the localisation of laws. Indeed the decision of the Standing Committee adopted on 23rd February 1997 with regard to the treatment of laws previously in force in Hong Kong, as well as legislative activity in the months leading to 1st July 1997, as well as the terms of the Reunification Ordinance, are replete with recognition of the need to localise laws "so as to bring them into conformity with the status of Hong Kong after resumption by the People's Republic of China of the exercise of sovereignty over Hong Kong." (Clause 4 of the Standing Committee Decision).

24. I accept however that the fact that the Standing Committee has not declared the Ordinance, or part of it, inconsistent with the Basic Law is not conclusive of the matter, for the decision of the Standing Committee does not purport to be exhaustive.

The Warrants

25. The form of the warrants issued in this case are the same. Each recites the international agreement, the fact that the Secretary for Security and the appropriate authority in Thailand, as well as the prisoner, have consented to the transfer; and the warrant then authorises the Commissioner of Correctional Services to take the prisoner into his custody; to bring him from Thailand to Hong Kong; to deliver him here to prison and to "detain the prisoner in accordance with this warrant for a term of [the term is stated] or until release in accordance with relevant Hong Kong legislation or relevant international arrangement."

Argument and Analysis

26. The respondent to this application says that the lawful authority for the detention of the applicants are the warrants originally issued between 1994 and 1997, and the provisions of section 10 and section 5 of the Ordinance.

27. The applicants concede that their detention in Hong Kong was originally lawful. They say, however, that since the lapse of the Agreement and the non-applicability of the Orders in Council, their detention has been and continues to be unlawful.

28. Although I recognise that it is for the respondent to justify the detention and to demonstrate that it is lawful, an examination and analysis of the applicants' arguments necessarily involves an examination of the relevant statutory provisions and the suggested justification in law for the continued detention of the applicants.

(1) Continuity of the agreement and validity of the warrant

29. I think it appropriate to begin by addressing a theme which, if I have understood it correctly, runs through Ms Li's argument, which is that the continuation of the international agreement, or a replacement of it, is a necessary precondition to the legality of continued detention of any prisoner transferred under the arrangements. Ms Li seeks to support her contention by reference to the Agreement itself as well as the wording of domestic legislation and the terms of consent given by prisoners who agreed to be transferred. The argument presupposes that, as a general principle, the continued validity of a warrant and detention pursuant to the terms of that warrant depends on the continuation of the international arrangement. I do not think that that is so. The validity of the original warrant and the continued detention under it, depends, in my judgment, on the validity of the warrant at the date of its issue. Leaving aside all questions of lapse by virtue of 1997 issues, it can never have been envisaged, either by the United Kingdom legislature or by the high contracting parties, that the lapse of the international agreement would render unlawful continued detention under a warrant which, when issued, was valid, and which by its terms authorised continued detention for the duration of the sentence imposed.

30. There is nothing in the Orders or in the Act or in the international agreement which suggests that in the event of the lapse of the Agreement, the efficacy of any warrant made before the date of the lapse is thereby affected. To imply a term that the validity of detention of someone transferred during the currency of an international arrangement runs for only so long as the arrangement remains in force, neither reflects the terms of the Agreement, nor sits comfortably with the evident intention of the contracting States.

31. The lapsed Agreement itself is said to run for but five years and beyond that at six monthly extensions. The detention which follows transfer to the receiving state is a detention which gives effect to a sentence passed by the judicial organs of the transferring state, in which judicial organs the receiving state has, by the very act of entering upon the international arrangement, expressed some degree of faith. The fact that there has arisen cause for the non-renewal of the international arrangement does not change the character or validity of the sentence passed during the currency of the Agreement and in respect of which the warrant was originally issued. If it were otherwise, the Agreement, and other agreements in the same category, would be denuded of their efficacy. It would mean, for example, that a prisoner sentenced to, say, 30 years imprisonment for a grave offence in the transferring jurisdiction, who was then transferred four years after the imposition of that sentence - (I note there are apparently minimum terms to be served in Thailand before transfer) - but nine months before the possible expiry of the arrangement would, if the arrangement were not renewed, be released having served but four years and nine months of his term. A release in such circumstances would contravene the requirements of the warrant and also the terms of the original treaty obligation, no less so because that treaty has lapsed. The lapse of the treaty means that in its absence and in the absence of ad hoc arrangements, there can be no future transfer of prisoners until such time as a fresh agreement is made. It does not mean that all obligations under past agreements fall by the way.

32. In this regard Ms Li, on behalf of the applicants, argues that the absence of an underpinning agreement renders nugatory the provisions of the applicable legislation, whether formerly the Order in Council or now the Ordinance, by which there is an obligation upon the Executive in Hong Kong to give effect to any commutation or revocation of sentence in Thailand. Under the lapsed Agreement, the obligation on the part of the receiving state to give effect to such commutations and reductions brings with it, she argues, an implicit obligation on the part of the transferring state to report reductions and commutations. Once the Agreement is lapsed, that obligation lapses. That argument, however, could apply to the continued detention after the lapse of the international agreement by mere effluxion of time, or mere non-renewal under its terms, the evident visualisation of which, by the contracting parties, I have addressed. And in any event the failure to notify the receiving party after the lapse of the Agreement, if it does constitute a breach of the Agreement - which I do not think it does (as to which more later) - would nonetheless constitute a breach of the Agreement no less so because it has lapsed.

(2) The Interpretation of Section 10

33. The Solicitor General contends that the lawful authority for the continued detention of the applicants is to be found in section 10(1)(b)(ii) of the Ordinance, and that a proper reading of that section does not presuppose the existence of an international agreement at the date the Order in Council ceases to operate. It is a provision, he says, which expressly envisages an interregnum between the lapse of the Agreement and the making of a new one.

34. Ms Li argues that this is to misconstrue section 10 and the whole scheme of the Ordinance. She says that the Orders in Council ceased to apply upon the coming into operation of the Ordinance, and that that is evident from the terms of section 8, section 11 and the third paragraph of Schedule 2. If that is correct, she continues, then the deeming provision was necessary to give statutory backing to an international arrangement still in force, since without the deeming provision, there would, in the absence of the Order in Council, the effect of which had been repealed, be no authority for continued detention pursuant to the international Agreement. What section 10 did not contemplate - so the argument runs - was a situation in which there would be no international arrangement in place. The fact that the currency of an applicable international arrangement was at all times contemplated by the Ordinance is evidenced, she says, by a reading of the Secretary for Security's address to the legislature in April 1997 when introducing the Ordinance, as well as by a study of the Ordinance itself and its many references to arrangements, not least the reference in section 3 to the condition precedent to the issue of a warrant, namely, that it be issued pursuant to an arrangement for the transfer of prisoners.

35. Ms Li has, however, a fall back position, which is this : that if contrary to her contention, section 10 is directed at a situation at which there is no longer an underlying international agreement, then it constitutes a provision which contravenes the Basic Law and therefore cannot subsist or prevail as law.

36. The argument goes thus. Section 10 would then deem something to be lawful which is inherently unlawful, since by virtue of section 3, an inward warrant cannot be issued absent the existence of an underlying international agreement. All that would then have been demonstrated by the respondent is compliance with a procedural requirement, namely, the issue of the warrant but not that the warrant has lawfully been issued. If that is what section 10 seeks to permit as a complete justification for detention, it is then, says Ms Li, a section which falls foul of the Basic Law, and that is demonstrated by the following route :

37. Ms Li takes me to the International Covenant on Civil and Political Rights, via the Basic Law. Article 39 of the Basic Law stipulates that :

"Article 39

The provisions of the International Covenant on Civil and Political Rights, ... as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article."

Article 9 of the International Covenant on Civil and Political Rights seeks protection of the right to liberty and security of the person. Article 9(1) provides :

" Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law." (Emphasis added).

38. Ms Li argues that if the first limb of her submission as to the proper interpretation of section 10 is not correct, then the procedure prescribed by law may have been demonstrated by the respondent to have been fulfilled, namely, the issue of a warrant pursuant to the deeming provision, but what, she asks, of the grounds for deprivation of liberty? She submits that in the absence of an underlying international agreement pursuant to which the warrant has been issued, there can be no valid ground for detention. And in further support of her contention that the validity of the warrant should presuppose a current underlying international agreement, she prays in aid a general principle of law that the courts of one jurisdiction will not aid in the enforcement of penalties imposed by another; at least they will not do so in the absence of an agreement between them with appropriate safeguards which permits such mutual assistance.

39. On Ms Li's first argument about the intention and proper interpretation of section 10, I am against her. It seems to me clear that section (10)(1)(b)(ii) envisages a situation in which the Order in Council no longer applied but where no new arrangement was in place. I agree with the argument of the Solicitor General that section 10(1)(b)(ii) and the provisions of the Schedule and section 8 otherwise make no sense.

40. I do not agree that the effect of section 11 and Schedule 2 is to bring the application of the Orders in Council to end as at the date of the commencement of the Ordinance, namely 6th June 1997, and I say that for the following reasons :

1) If the Orders in Council, and therefore the 1984 Act, cease to apply to the Agreement on 6th June 1997 - and it would follow therefore to all other agreements in the same category - the warrant would be deemed to have been issued on 6th June 1997. But if that were so, section 10(1)(b)(i) would be otiose. There would then be no need to deem a warrant to have been issued on the date of any new arrangements. Section 8 clearly envisages the gazetting of the date upon which arrangements "shall" come into operation. It applies, in other words, to arrangements which are to come into operation after 6th June 1997. But why then deem the warrant to come into operation after 6th June if the Ordinance has, as is suggested by the applicants, already deemed it to come into operation on 6th June? So, too, the argument advanced would make little sense of section 8(3) which provides that :

"This section shall expire immediately upon the expiration of 30th June 1997."

41. The scheme of section 10 and section 8 and section 11 make sense only if their combined effect and intention is interpreted as follows: that it was recognised that before 30th June 1997 there might come into operation new arrangements made as between Hong Kong - duly authorised - on the one hand, and a number of other places on the other. If so, the new law enacted in May, and to come into operation in early June, would apply. There would in the circumstances be no need to utilise the old domestic law, that is the Act as applied by the Order in Council; hence the repealing provision of section 11 and the Schedule. It was however necessary, in the circumstances, to be able with certainty to say when the notional new warrants would be said to come into effect; and for that reason there was enacted section 8. Yet there was no point in section 8 lasting longer than 30th June because that is the date, or perhaps 1st July was the date, upon which all remaining warrants would, by virtue of section 10(1)(b)(ii) be deemed to be issued since Orders in Council lapsed on that date. And to complete the mosaic, section 10(1)(b)(ii) was designed to cater for the situation where no new arrangements had come into operation by 1st July, and yet there were in custody prisoners who had been detained pursuant to old warrants ( warrants, that is, issued under the Orders in Council.

2) I am satisfied that the arrangements to which paragraph 3 of the Second Schedule refers are new arrangements yet to come into effect and not arrangements previously concluded by the United Kingdom Government and extended to Hong Kong.

42. The prime aim of the Ordinance was to cater for the new situation in which Hong Kong found herself, in particular, the fact that under proper authorisation, Hong Kong was to enter upon agreements applicable as between herself and another party, and none other. Previous arrangements extended by the United Kingdom to Hong Kong were, to use the Thai-UK Agreement as an example, for the purpose of the transfer of sentenced persons to Great Britain, Northern Ireland, to Hong Kong and to any other territory for the international relations of which the United Kingdom was responsible. The arrangements which the Ordinance defines in section 2 are arrangements "for the purposes of the transfer of a sentenced person or sentenced persons to Hong Kong from that place or to that place from Hong Kong", a narrower proposition altogether.

43. Beyond that, the suggested meaning of paragraph 3 of the Second Schedule would, for reasons I have already fully canvassed, make no sense of section 10. I note too that section 10(1)(b)(ii) speaks of arrangements when they come into operation, an implication perhaps that the Ordinance has in mind, when it refers to arrangements, the new and not the old category of agreement.

(3) Inherent Illegality

44. What of Ms Li's second or fall back position? Once one has construed section 10(1)(b)(ii) in the way I have, namely, that it is intended to apply to a situation in which there remains no current underlying agreement but where the warrant was issued pursuant to an agreement then current, it makes no sense to me then to say that the deeming provision deems only that the warrant has been issued, but that the warrant is unlawful because there is no current underlying agreement. Nor do I see in the situation anything inherently or intrinsically illegal or contrary to principle. It is not as if the original warrant which required and authorised the continued detention of these men to serve their full sentences was an unlawful warrant; and I have some while ago explained why it is that I am not at one with the argument that, as a matter of general principle, the continuation of the international agreement is a condition precedent to the legality of continued detention.

45. In so far as Ms Li prays in aid the principle of non-enforcement of another country's penal laws, citing in support Huntingdon v. Attrill [1893] AC 150 at 156 and 157, the principle to which she refers is a principle of international law which the courts will apply as a general rule. But that is not to say that they will apply it if in doing so they fly contrary to the express provisions of local legislation. Such rules apply, but only in so far as they are not inconsistent with the provisions enacted by local legislation - see Chung Chi Cheung v. The King [1939] AC 160, at 167 and 168 where this was said :

"It must always be remembered that so far at any rate as the courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our domestic law. There is no external power that imposes its rules upon our own code of substantive law or procedure. The courts acknowledge the existence of a body of rules which nations accept amongst themselves. On any judicial issue, they seek to ascertain what the relevant rule is and having found it, they will treat it as incorporated into the domestic law so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals."

And the point is that there is local legislation which expressly authorises the imprisonment in Hong Kong of those transferred here in accordance with the provisions of the Ordinance as well as the detention of those who had previously been transferred here in accordance with the 1984 Act and the international arrangement with Thailand.

(4) The Applicants' consent to transfer

46. Ms Li has also drawn to my attention various indicia which she contends demonstrate the extent to which the applicants were led to believe, before they gave their consent to transfer to Hong Kong, that the Thai-UK Agreement, or at least an enforceable international agreement in like terms, would continue whilst they remained imprisoned so that they could derive the benefit of its protection, not least such commutations of, or reductions in, sentence as might after their transfer be conferred. If the terms of the legislation are clear and render their continued detention lawful, I am not sure how it is that the point avails the applicants - save in so far as Ms Li suggests it is part of the factual matrix against which the Ordinance should be interpreted - unless it be suggested that there is some legitimate expectation on their part that they would be released if the treaty were allowed to lapse and was not replaced. Be that as it may, it is said that the agreement of the prisoners to their transfer was given on the expectation of continued arrangements between Thailand and Hong Kong. Given that the agreements were expressed to be for five years only in the first instance, and then at six monthly extensions thereafter, that is to my mind a difficult argument to sustain. I note too that section 6 of the Ordinance requires the Chief Executive to commute or reduce sentences to reflect commutations or reductions which have been made in Thailand. The point Ms Li makes, however, is that there remains no obligation upon the Thai authorities to notify Hong Kong of such reductions. But the Solicitor General's retort to that, which seems to me to be correct, is that there was no express obligation to that effect in the agreement itself.

47. In connection with the same point, Ms Li refers me to the terms of the consent given by the applicants to their transfer, and also to the information provided to them in order that they might provide consent which was informed. Each applicant gave consent : "to be transferred to Hong Kong under the agreement between the Government of the United Kingdom and the Government of the Kingdom of Thailand on the transfer of offenders ...". The short answer is that they were transferred under that agreement.

48. Paragraph 9 of the information given to the applicants before they consented to transfer states that :

"If for any reasons whatsoever the sentence originally imposed by Thailand ceases to be enforceable, the Hong Kong Government, as soon as they are informed of this, would release the prisoner from the sentence being served."

49. The contention is that this embraces the notion that once the agreement lapses the sentence ceases to be enforceable, presumably because there exists no mechanism by which the observance of the international obligations in relation to the sentence can be policed. Even if one were to read the information note as if it were a statute, this is not an interpretation of the note which I would endorse. Unless commuted or revoked or shown to have been passed without jurisdiction in Thailand, the sentence remains enforceable in Thailand, and the Agreement by Article 5 preserves in the Thai authorities exclusive jurisdiction over the sentences imposed there. The note quite clearly refers to enforceability in Thailand.

Conclusion

50. In addressing and analysing the arguments advanced on behalf of the applicants, I have provided my interpretation as to the effect and legality of section 10 of the Ordinance.

51. In my judgment, section 10 envisages the lacuna which now prevails, namely, that there will be those incarcerated at a time when there are no longer international arrangements in place, but who had been transferred when there were such arrangements.

52. The original warrants issued by virtue of powers conferred by the Orders in Council rendered lawful continued detention in Hong Kong after the repatriation of these applicants. As for the position upon the demise of the Orders in Council as they applied to Hong Kong, the position is, it seems to me, clear. An inward warrant issued under the Ordinance is lawful authority for the detention of a sentenced person in accordance with the terms of the warrant (section 5). And section 10 of the Ordinance deems warrants issued by the Governor under the power conferred by the Orders in Council to have been issued under the Ordinance. It follows that the warrant issued in the case of each applicant is therefore to be treated as if issued under the provisions of the Ordinance. I am satisfied that that deeming provision does not require that nonetheless there must be subsisting, at the date upon which the warrant is deemed to have been issued, an arrangement of the kind referred to by section 2. It further follows that the detention of each applicant, if in accordance with the warrants, is lawful. Those warrants authorised the detention of the applicant in each case for the term of his imprisonment as commuted "or until release in accordance with relevant Hong Kong legislation or relevant international arrangements". I find that release has not been authorised either by law or by international arrangement. Each applicant is in detention whilst the term of his imprisonment has not expired. I find that, in these circumstances, the detention of each applicant is lawful.

53. It follows from that finding that I am satisfied that the application has no substance in relation to any of the applicants, and accordingly the motion is dismissed.

[Submissions as to costs]

54. Ms Li invites me not to make the order which would normally follow, on the footing that the warrants issued and presented have not been varied pursuant to the provisions of section 6 of the Ordinance to reflect the reductions in the sentences which the Thai authorities have made.

55. The issue in this case was the legality or illegality of the detention of the applicants. The point raised by Ms Li is a side-product of this hearing and does not affect the issues at stake. It is in any event recognised by the authorities in the material before me that reductions had been made and that prisoners will be released in accordance with these reductions.

56. I should, however, say that Ms Li is correct in contending that the matter should not be treated lightly, and the warrants should be varied to reflect the recognition of the reductions that have already been given. But it does not affect the argument presented to me. In my judgment, I would not be justified in making any order for costs other than the normal order. Accordingly, I shall order the applicants to pay to the respondent the costs of and incidental to this application.