ROBERT JOHN WALSH v. THE SECRETARY FOR SECURITY AND ANOTHER

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

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JUDGMENT

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The Background

1. On 22 April 1994, Mr Walsh was convicted of fraudulent trading and two counts of theft. He was sentenced to imprisonment for 4 years and 9 months and fined $250,000. The sentencing judge also ordered that Mr Walsh be disqualified as a director for a period of 9 years and 9 months. Mr Walsh appealed, and, on 28 March 1996, the Court of Appeal dismissed his appeal against the convictions, but reduced the imprisonment by one year.

2. On 22 June 1995, the Secretary for Security, Mr Peter Lai, signed a deportation order against Mr Walsh. Mr Walsh then applied for leave to bring that decision on judicial review. Leave was granted on 7 January 1997. The matter is now before me. Mr Dykes argued his case on two grounds; that there was a procedural unfairness and the decision was unreasonable.

Procedural Unfairness: The Facts

3. Mr Dykes says that Mr Walsh had the right to have extended to him the opportunity of being heard before the deportation order was made. Mr White head accepts this, but says that such an opportunity was given to Mr Walsh, which opportunity he declined to accept.

4. What happened was this: On 26 May 1994, a month or so after Mr Walsh was convicted, an Immigration Officer, Mr Wong, visited Mr Walsh in prison. Mr Wong reported the substance of his interview with Mr Walsh to his superior officer. Mr Walsh told Mr Wong that he had lodged an appeal against his conviction. Mr Wong told Mr Walsh that the purpose of his visit was to collect personal details "for our proposed deportation proceedings against him". Mr Walsh was cautious, and said that he would like to consult his solicitor "before he would enter into any dealings with government officials". Mr Wong reported that Mr Walsh said "that his case was in its appeal stage, therefore, any steps to take concerning the proposed deportation or actual deportation against him would be inappropriate, last, he would contest any such proposals." Mr Wong concluded his report by writing "I think there is very little we can do at this stage, though some elementary information relating to Mr Walsh are available in the AC file attached. I recommend to await the result of appeal initially."

5. Mr Wong's superior wrote a note on this report. It says "PI table this case for DAC [Deportation Advisory Committee] discussion. As regards subject's personal details and family background, we may rely on the information in the AC file".

6. On 30 June 1994, Mrs Walsh was interviewed by another Immigration Officer. She gave some personal and family details, and some reasons why she objected to the deportation of Mr Walsh.

7. On 8 July 1994, the DAC considered the matter. It was recorded in the note of the meeting that "Subject refused to give information on his family during cur prison visit". The recommendation of the Committee was "To go for deportation subject to confirmation of re-entry and appeal result".

8. On 18 July 1994, the Police recommended deportation.

9. On 31 May 1995, the Director of Immigration submitted an application for a deportation order against Mr Walsh to the Secretary for Security. The papers submitted to the Secretary included the information that "During an interview with an Immigration officer, Mr Walsh expressed that he would raise objection to his deportation at a later stage." The Secretary did not wait for any "later stage". As I have said, he made the deportation order on 22 June 1995.

Procedural Unfairness: Assessment of the Facts

10. On the basis of these facts, has Mr Walsh established that he was not given an opportunity to be heard?

11. It is not clear whether one of purposes of Mr Wong's visit to Mr Walsh on 26 May 1994 was to give Mr Walsh the opportunity to make representations about his deportation. Ostensibly, this was not a purpose, although, I have no doubt, if Mr Walsh had made such representations, they would have been received. What is clear, from a fair reading of Mr Wong's report is that Mr Walsh made the point that, because of his pending appeal, he thought that deportation was not appropriate at that stage. It is also apparent that Mr Walsh made it clear that he wished to contest any deportation. We do not know what Mr Wong said to Mr Walsh in reaction to Mr Walsh's attitude, but it is clear that Mr Wong thought the matter of deportation should await the result of the appeal; he said as much to his superior. So, it is reasonable to assume, Mr Wong did not convey to Mr Walsh that he should make any representations he wished to make then and there, because he might not have another chance.

12. That it is so that Mr Walsh at least implied that he wished to make representations at a later stage appears from the brief to Mr Peter Lai, where it is recorded that "During an interview with an Immigration officer, Mr Walsh expressed that he would raise objection to his deportation at a later stage." Having been told this, it seems to me that the attitude of a reasonable decision-maker should have been - "What later stage? Tell Mr Walsh that he must raise his objections now so that I may take them into account in considering an order." It must have been clear to Mr Lai that Mr Walsh wished to be heard. He should have been given the opportunity to have his say.

13. I conclude that Mr Walsh has established that he made it known that he wished to be heard. In these circumstances, he should have been told that the authorities were not prepared to await the outcome of his appeal, and that he should say what he wanted to say immediately so that a proper consideration of whether or not to deport could proceed. This was not done. It follows, in my view, that Mr Walsh was not given a proper opportunity to be heard.

The Consequence of Failure

14. In the ordinary course, the consequence of a failure to give a proper opportunity to be heard is that the decision is set aside so that the authority can consider any representations. But in this case, Mr Whitehead argues, we now know what Mr Walsh would have said to Mr Lai, and what he would have said could not possibly have made any difference to the decision. For this proposition Mr Whitehead relied on R v Chief Constable of the Thames Valley Police, ex parte Cotton [1990] IRLR 344. Mr Cotton was grossly overweight. It was made abundantly clear to him several times that, if he did not lose weight, he would be dismissed on the basis that he was not fitted to perform his duties. He did not lose weight. He was dismissed for this reason alone. He complained that he had not been given the opportunity to comment on the report relied upon in dismissing him. In the Court of Appeal, Slade LJ and Stocker LJ held that the judge below was justified in concluding that there would have been no substantial chance of anything Mr Cotton would have said on the report of altering the decision. When a judge is dealing with a case involving a very narrow area of decision-making, as in Cotton, this conclusion is understandable. In the circumstances of Cotton, it is difficult to think of anything that could be said that could possibly have altered the decision; Mr Cotton was overweight, he continued to be overweight after many warnings and there was nothing much more that could be said. But even in this case, Bingham LJ was unhappy about an approach on these lines for the strong reasons he gives. He expected that cases in which the court could be satisfied that representations would not make any difference would be "of great rarity". With respect, I agree with this. Certainly, in cases in which the decision-maker has a wide discretion, is required to conduct a balancing exercise between competing interests and must take into account the effect of his decision on third parties, it would be difficult for a court, without stepping over the boundaries of the court's function, to be satisfied that, whatever representations a person may wish to make, there is no substantial chance of these altering the decision. This must be especially so where a person is entitled, as here, to advance not only facts but arguments. How can a judge know what effect the advocacy of arguments would have on the decision-maker? Mr Whitehead says I know now what Mr Walsh would have said. It is so that Mr Walsh has, in some six lines or so, stated what he would liked to have said, but I doubt very much that Mr Walsh would have put his case in this stark way if he were presenting his case to the decision-maker. In particular, it may well be that Mr Walsh may wish to argue, as Mr Dykes has before me, that Mr Peter Lai should place much greater weight on the effect of his order on the minor child concerned.

15. I conclude that the decision must be quashed on this basis.

Unreasonableness

16. Having reached this conclusion, there is no need to consider question of the reasonableness of the decision. Indeed, a court can sensibly consider the reasonableness of a decision only in the context of the competing cases presented to the decision-maker. In this case, Mr Walsh did not present a case. It would be a futile exercise to consider whether Mr Lai's decision was reasonable in the light of the one-sided case presented to him.

Result

17. I grant an order of certiorari quashing the deportation order made against Mr Walsh.

Costs

18. The matter of costs has not been argued, but there seems no obvious reason why costs should not follow the event. I make an order nisi that Mr Walsh be paid his costs.