RE MICHAEL K OGUNADE

HCAL 29/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 29 OF 2005

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J U D G M E N T

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1.  This is an ex parte application by Michael K Ogunade (“the applicant”), who is now detained in Lai Chi Kok Reception Centre, for a writ of habeas corpus.

2.  This is already his second application for the writ.  His first application in HCAL 20/2005 was heard and refused by me on 8 February 2005.  I will not repeat here the background of the case, the grounds relied on by the applicant on the last occasion and the reasons for my decision, which were all dealt with in my judgment given on 8 February 2005.

3.  Suffice it to say that since the applicant’s last appearance before this Court, he has made three further applications for bail before Deputy High Court Judge Line on 22 February 2005, His Honour Judge Lok on 24 February 2005 and Nguyen J yesterday.  The applications were all dismissed and the applicant continued to be remanded in custody as before.  The criminal case has been set down for trial at the District Court from 21 April 2005 onwards.

4.  In the present application for a writ of habeas corpus, the applicant continues to maintain that he was a transit passenger at the material time and that the alleged offences took place on board the aircraft.  He therefore argues that the Crimes Ordinance (Cap. 200) and Immigration Ordinance (Cap. 115) had no application to the matters that are said to have given rise to the offences.  He further says that as the Immigration Ordinance does not apply to his case, there is and was no basis for his detention pending his removal under section 25 of the Ordinance (which he says does not apply to him in the first place), as has been ordered by the Principal Assistant Secretary for Security on 22 September 2004 pursuant to section 32(3) of the Ordinance.

5.  There is no merit in the present application.  As I said on the last occasion, whether the applicant has committed the offences that he is charged with is a matter for trial.  As to his liberty pending trial, the proper procedure for the applicant to secure his release whilst awaiting trial after he was first brought before the magistrate’s court was and is an application for bail.  In such an application for bail, the court would of course listen to what the applicant may have to say regarding the merits of the charges and his defence.  The applicant has made repeated applications for bail before the courts, and has raised similar arguments about his arrest and detention in Hong Kong and the charges that he is facing; the last one of these applications was heard only yesterday in the High Court.  All applications for bail were refused. 

6.  As I explained on the last occasion, the writ of habeas corpus is an extraordinary remedy which issues in cases where the ordinary legal remedies are inapplicable or unavailable: Archbold Hong Kong 2005, para. 3-2.  It has been said that the bail procedure is an “offspring” of habeas corpus, and a bail application is “nothing more than a simplified habeas corpus application”: Sharpe, The Law of Habeas Corpus (2^nd ed.) 134 (quoted with approval in HKSAR v. Siu Yat Leung [2002] 2 HKLRD 147, 151I-152A). 

7.  On the facts, no exceptional circumstances exist and there is simply no scope for an application for a writ of habeas corpus.

8.  As for the detention order dated 22 September 2004, that is not the only basis for the applicant’s current detention in Hong Kong.  He has been and is held in custody also because of the orders made in the magistrate’s court and the District Court remanding him in custody pending his next appearance/trial, he having been arrested and charged with criminal offences that are awaiting trial before the District Court.  As mentioned above, his repeated applications for bail have all failed.  There is no question of those court orders being unlawful (I am not implying for one moment that the detention order is unlawful – there is simply no need to deal with the applicant’s arguments in relation to it at all).  In this respect, the applicant’s position is no different from that of a local resident who is facing criminal charges and who has been denied bail pending trial by the court.

9.  The application is therefore dismissed with no order as to costs.