RE LAM YUK KUEN

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HEADNOTE

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Applicatons for an order under section 32(4)(b) of the Immigration Ordinance for the further detention of a person subject to a removal order in order to give evidence at a trial or facilitating inquiries into any offence or suspected offence should not be dealt with ex parte. A writ of habeas corpus was granted to an illegal immigrant who had been detained under an order that had been granted ex parte.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. On the 25th January 1990, I granted upon an ex parte application a writ of habeas corpus to the applicants Lam Yuk Kuen and Chim Lai Yui directed to the Superintendent of Victoria Prison to show cause against their detention under an order made by Judge Daniell in the Shatin District Court on the 16th January 1990. I also made an order granting leave to the applicants to apply for judicial review but the argument before me on the return date was confined to the writ of habeas corpus.

2. The facts reveal that the 1st applicant Lam Yuk Kuen who is aged 22 and the 2nd applicant her 2 year old daughter Chim Lai Yui, arrived in Hong Kong illegally from China on the 13th September 1989. On the 10th November 1989, the 1st applicant surrendered herself with her daughter to the police at the Yuen Long police station with the intention of being repatriated to China. Removal orders were made against the applicants on the 8th December 1989 under section 18(1)(a) of the Immigration Ordinance. Notice of the orders and information with regard to the filing of appeals were served on the applicants on the 12th December 1989, but no appeals were lodged.

3. I am told that removal orders in practice are carried out expeditiously. However, in this case, the Secretary for Security, on the 28th December 1989 authorised the detention of the applicants for a further period not exceeding 28 days under section 32(4)(a) of the Immigration Ordinance for the purpose of giving evidence at the trial of a man named Mok Chong-keung (Mok) who was charged with an offence of assisting the remaining of an unauthorised entrant in Hong Kong. No complaint is made against that authorisation.

4. Before the 28 day period was due to expire on the 18th January 1990, Judge Daniell made the order complained of on the 16th January 1990 upon an ex parte application by the Attorney General under section 32(4)(b) of the Immigration Ordinance, to take effect from the 19th January 1990 for the applicants to be detained for a further period of 21 days for them to give evidence in the trial of Mok. Section 32(4) reads as follows :-

 

"Notwithstanding subsections (1), (1A), (2), (2A), (3) and (3A), a person who is to be removed from Hong Kong under section 18 or 13E or in respect of whom a removal order or a deportation order is in force may be detained -

(a)	under the authority of the Secretary for Security for not more than 28 days; and
(b)	by order of a court on the application of the Attorney General for further periods, not exceeding 21 days upon any one application,

 

for the purpose of giving evidence at the trial of any offence or of facilitating inquiries into any offence or suspected offence."

5. The evidence in support of the application was set out in a pro forma affirmation made by Detective Senior Inspector YUM Kam-fai on the 11th January 1990 in which he refers to the fact that Mok was due to appear at Shatin District Court on the 16th January 1990 for plea and that the Crown would call both applicants to give evidence. The affirmation states that the applicants entered Hong Kong illegally on the 10th November 1989 and concludes in paragraph 7 as follows :-

"As the trial of the Defendant (s) at which the detainee (s) is (are) required to give evidence is yet to be fixed, I request this court to make an order pursuant to section 32(4)(b) of the Immigration Ordinance Cap. 115 for the detention of the detainee (s) for a further period of 21 days from 19.1.1990 that being the expiry date of the detention order made by the Principal Assistant Secretary for Security."

6. Mr McCoy, counsel for the applicants, submitted that the affirmation was not only misleading, but gave a wrong impression to the judge when he came to deal with the application. He said that the 2nd applicant, a child aged 2, could obviously not be a witness, that Mok had absconded before the 9th January 1990 when his case was due for mention in the District Court, and which was 2 days before the affirmation was made, and that the applicants' date of arrival in Hong Kong was incorrectly stated to be in November instead of in September. Further, as the ages of the applicants are not set out, he submitted that the affirmation gives the impression that the applicants are adults.

7. When Mok failed to appear in Court on the 9th January 1990, the case was adjourned to the 16th January 1990 when he again did not appear. The case was then further adjourned to the 6th February 1990 when Mok's surety has also been ordered to show cause why his recognizance should not be forfeited.

8. I have been informed that the 1st applicant did not come to know of Judge Daniell's order until the 20th January 1990.

9. Before I heard the application for leave on the 25th January 1990, an application had been made earlier that day by the applicants to Judge Daniell to review his order, but he declined to do so on the grounds that he had no jurisdiction. I do not have any reasons for his decision, and for the purposes of this judgment, it is unnecessary for me to determine whether he was right.

10. Upon the return date on the 30th January 1990, Mr Logan, counsel for the Attorney General, made an application for the hearing to be adjourned for a minimum of ten days which would be to a date after the 6th February 1990 with an undertaking that the applicants be released from detention if Mok should not appear on that date. I refused that application but adjourned the hearing until the following day so that Mr Logan could have time to prepare his case for he had had limited time having regard to the Chinese New Year holiday.

11. When the hearing resumed yesterday, the Crown's stance had changed for Mr Logan said that as it was unlikely that Mok would attend court on the 6th February 1990, he agreed that the applicants should be released from the detention imposed by Judge Daniell's order to enable them to be repatriated to China under the removal orders. Accordingly, he sought an order for the applications for habeas corpus to be dismissed with costs, but refused to concede that the detention of the applicants was unlawful.

12. After submissions by both counsel, I declined to accede to the Crown's application on the grounds that the object of a writ of habeas corpus is to determine whether the detention of the applicants was unlawful, habeas corpus not being a discretionary remedy in contrast to that of judicial review. Consideration was also given to the effect of Judge Daniell's order and to the practice of the Attorney General in releasing detainees before the maximum period of 21 days prescribed had expired without any reference being made back to the court. On this matter, I held that until the period had expired, the order was still effective unless and until it was varied or discharged.

13. Following my ruling Mr Logan sought a further adjournment in order to prepare his case which I refused whereupon I proceeded to hear argument on the merits.

14. Mr McCoy addressed me upon section 32 of the Immigration Ordinance which is concerned with the detention of persons pending removal or deportation and the strict construction placed upon the section by Godfrey J. in the case of Liew Kar-seng v. His Excellency the Governor-in-Council and Another [1989] 1 HKLR 607 where at 609 he had this to say: -

"..., once the authorities have had what, in all the circumstances of the case, is a reasonable time to resolve the matter, and yet (even though it be through no fault of theirs) the matter remains unresolved, then the detainee must be entitled to be released. This conclusion is dictated, as it seems to me, by an elementary understanding of the fundamental human rights of any individual in any civilized society, without any need to pray in aid any man-made law, whether national or international, valuable though such laws are as a protection against the abuse of power."

15. Whereas Mr McCoy contends that the making of an order under section 32(4)(b) amounts to a judicial function, Mr Logan submitted that it is administrative. Mr McCoy referred me to In re Wilson [1985] 1 AC 750 where at p.757 Lord Roskill said of a warrant committing a defaulter to prison :-

 

"....a magistrate's court when issuing that warrant is performing a judicial act and not only a ministerial or administrative act. That this is so was established nearly 150 years ago in Painter v. Liverpool Oi1 Gas Light Co. (1836) 3 Ad & E 433: see especially the judgment of Patteson J. at p.447, and in the present century in Rex v. Doherty, Ex parte Isaacs (1910) 74 JP 304, where Lord Alverstone C.J. giving the leading judgment in the Divisional Court, said :

 

'It is now too late for this court to hold that a warrant of commitment is not a judicial act .' "

 

Later on the same page Lord Roskill said :-

"A warrant of commitment involves the liberty of the subject, and in principle, the subject must not be deprived of his liberty save after the performance of a judicial act effected with judicial propriety."

16. I am satisfied that the judge in considering the application is performing a judicial act that calls for a judicial discretion to be exercised.

17. The nub of Mr McCoy's argument is that it is an elementary requirement of procedural fairness or natural justice that persons ordered to be detained in prison are entitled to be given prior notice of the hearing, details of its purpose and the right to be heard. In other words, unless the legislation is unambiguous or there are exceptional circumstances, such applications should not be dealt with ex parte. The Immigration Ordinance is silent as to whether an application can be made ex parte whilst the case of a detainee does not come within any category amounting to exceptional circumstances to dispense with these requirements.

18. Mr Logan in reply drew an analogy between the order for detention and the issue of a witness summons or subpoena. He went on to say that by Order 32, rule 6 of the Rules of the Supreme Court that applies in the District Court the court can set aside an order made ex parte which affords a sufficient safeguard to anyone adversely affected by an order.

19. In this case, the 1st applicant, a young mother with a child aged 2 was introduced by her husband in China to Mok who was paid $40,000 to bring her to Hong Kong. Subsequently as a result of difficulties that she encountered in Hong Kong she surrendered to the police. Her detention and that of her daughter was lawful until the making of the removal orders and for a reasonable time for their execution. No issue, as I have said, has been taken with regard to the decision of the Secretary for Security. Thereafter, it must have come as a shock to learn that she was to be detained for yet a further period, no notice of such an application having been served upon her or having been given any opportunity to make any representations to the court as to why that order should have been made.

20. Mr Logan emphasised that the legislation relating to detention under section 32 is peculiar to Hong Kong in order to deal with the very serious problems caused by the massive influx of illegal immigrants. Nevertheless, I cannot see any reason nor has one been proffered on behalf of the Attorney General why notice of an application for a further period of detention cannot be served on a detainee other than, of course, as a matter of inconvenience. The words of Lord Atkin which are referred to in another case cited by Mr McCoy General Medical Council v. Spackman [1943] AC 627 are particularly apposite where he said at p. 638 "Convenience and justice are often not on speaking terms".

21. In my judgment there was a clear breach of natural justice in not giving notice to the 1st applicant of the Attorney General's application thereby depriving her of an opportunity of being heard. It may be said that she has only been deprived of her liberty for a short time, but the section clearly provides for detention for further periods not exceeding 21 days upon any subsequent application so that the loss of liberty could continue indefinitely. In any event, the period of detention is quite irrelevant whether it be for five minutes or longer. Although the applicants are illegal immigrants, they are, whilst within the jurisdiction, entitled to the same protection of the law as any other person living in Hong Kong whether he is Chinese, British or any other nationality. Whether or not Judge Daniell was misled by the affirmation of the Detective Senior Inspector, is a matter for conjecture for he was the judge who was apparently seised of the matter throughout and had the summary of facts relating to the proceedings concerning Mok before him.

22. Criticism was directed by Mr McCoy to the use of pro forma affidavits in these applications made by the Attorney-General and in this context, he referred me to Cheung Cheong v. The Attorney General General [1987] HKLR 356 where Silke J.A. as he then was at p. 360 had this to say about the use by the Immigration Tribunal of a pro forma for their reasons for decision when he said:-

"It would seem that the practice has grown up of using a pro forma 'Reasons for Decision' wherein such facts as are found by the Tribunal are not set out. For myself, I would have thought it to be the duty of the Tribunal to, at least shortly, set out the actual facts which it finds and upon which it bases its determination. These matters affect the liberty of the individual and a man is entitled to know upon what basis the Tribunal finds against him."

23. Although not directly in point, in my view, it highlights the undesirability of using such a form in cases that involve the liberty of the subject. While I do not attach any blame to the individual concerned in this case who made the affirmation for it is a practice that has no doubt been followed for several years, it amounts to a sloppy way of presentation and can as in this case lead to mis-statements of fact. Indeed the practice for obtaining such orders appears to have amounted to little more than a rubber stamping exercise.

24. There were some other matters that were canvassed before me, but it is unnecessary for me to rehearse them in view of my decision.

25. In the result I am satisfied that the continued detention of the applicants pursuant to the order of Judge Daniell was unlawful. The applications for habeas corpus are therefore granted with the result that the applicants will be released from detention under that order. I will hear the parties on the matter of costs and upon any other applications.