Mak Yui Ming and Others v. Attorney General
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1. This was an appeal by three young illegal immigrants against the judgment of the Full Bench whereby it was ordered that:
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CACV000196A/1980 Habeas Corpus - procedure upon return of writ - broadcast announcement that identity cards must be applied for before specified date by illegal immigrants from China - Appellants heard announcement in Canton - thereafter they entered Colony illegally and applied for identity cards after hearing that announcement had been repeated - after they had lodged applications and been given receipts therefor by Commissioner of Registration they were arrested and removal orders made under s.19(1)(b)(ii) of Immigration Ordinance - announcement not intended to apply to persons not already in Colony when announcement first made - it did not constitute permission to be in Colony - receipts for applications for identity cards did not bind Director of Immigration - no estoppel preventing Director from considering cases on their merits. Dates of hearing: 8th, 11th, 20thand 25th May, 1981. Date of handing down judgment: 8th June, 1981 Jackson-Lipkin, Q.C., Rodway & R. Wu (K.K. & Winston Chu) for Appellants. Graham (Legal Department) for Respondent.
----------------- Coram: Sir Alan Huggins, V.-P., Leonard and Cons, JJ.A. Date of Judgment: 8th June 1981. ----------------- JUDGMENT ----------------- 1. This was an appeal by three young illegal immigrants against the judgment of the Full Bench whereby it was ordered that:
It is not clear to us how the matter originally came before the Full Bench, although Mr. Justice Zimmern states that it was "pursuant to a writ of Habeas Corpus granted by Mr. Justice Penlington". As I understand it, application was made to Mr. Justice Penlington in Chambers for leave to apply for a writ and the writ was in fact issued on 15th November 1980. A photostat copy of that writ is before us. A return was made two days later. According to the formal order drawn up after that hearing there was an adjournment of the "application for a writ of Habeas Corpus ad Subjiciendum". but that must be an error, for a writ had already been issued. What was adjourned was, presumably, the consideration of the return, counsel for the Applicants having indicated that he needed time to prepare his case. At the same time an order was made releasing the Applicants on bail. The order incorrectly showed the defendant in the proceedings to be the Attorney General, an error which has been repeated in other documents filed in the Full Bench and in this Court. 2. The return has, apparently, never been considered by Mr. Justice Penlington. Instead, the applicants sought from the Full Bench an order quashing the Writ of Habeas Corpus. The Full Bench did in fact make such an order. I say no more about that than that the reasons given by the Full Bench appear to me not to show that the writ was wrongly issued but to be directed more to the sufficiency of the return. However, at the hearing before the Full Bench an oral application was made for judicial review to quash the removal orders which had been made by the Director of Immigration under section 19(1)(b)(ii) of the Immigration Ordinance and detention orders made under section 32(3A). In the event orders of certiorari were refused. Although the provisions of Order 53 were not complied with in relation to the Applicants' application for judicial review, we thought that the best course was for us to treat the orders of certiorari as having been regularly made and to treat the appeal before us solely as an appeal against those orders. 3. The history of the matter is as follows. The three Appellants were in Canton on 23rd October 1980. On that day they heard a broadcast from a radio station in Hong Kong which was in the following terms:
It is conceded that the announcement was made with the authority of the Director of Immigration. The Appellants had been minded to come to Hong Kong and they took this announcement to mean that if they managed to reach the Colony without being caught by the security forces and if they registered an application for an identity card before midnight on the night of 26th/27th October they would be permitted to remain here. Accordingly they bought a boat and made their way in it to Lau Fau Shan without being detected. Having telephoned to the uncle of two of them, who was a resident in the Colony, they were told by him that he also had heard the broadcast. By this time they were, of course, immigrants from China who had entered Hong Kong illegally, in the words of the announcement. They then proceeded to Victoria Barracks and there registered their applications for identity cards well before the deadline was reached. 4. It must here be said that the announcement which had been broadcast was not entirely accurate in that it mis-stated the effect of the new law which had been passed. It was not the new law which meant that "all illegal immigrants from China who do not already have an identity card, or who have not applied for registration, must now do so - immediately" :it was a change in executive policy. The changes in the law merely made it easier to enforce the law. The existing law permitted the repatriation of illegal immigrants, but, for reasons which doubtless appeared to it sufficient, the Government had not sought to repatriate illegal immigrants from China who had succeeded in reaching the urban areas without detection. It was that policy which was changed. It was obviously intended that all those illegal immigrants from China who were in the Colony when the announcement was first made would be issued with identity cards and, although no promise was made to this effect, that they would not be proceeded against under section 13 of the Immigration Ordinance. It would seem that the Judges in the Full Bench understood it to be suggested that the announcement was also an invitation to persons who heard it abroad to try to outwit the security forces before the magic hour and to promise that, if they succeeded, they too would be issued with identity cards. Mr. Jackson-Lipkin disclaimed any such suggestion. Whether it was made or not, I am satisfied that the announcement was not reasonably capable of that interpretation, although the Appellants say that they so understood it. 5. Mr. Jackson-Lipkin before us has based his contention upon the continued publication of the announcement at hourly intervals until 11 p.m. on 26th October and the uncle's telling the Appellants after their arrival in the Colony that the same announcement was being repeated. In addition he relies upon what transpired at Victoria Barracks when they applied for registration. 6. When they first reported, the Appellants frankly admitted that they had entered the Colony illegally after 23rd October. They were interrogated and then issued with documents headed "Initial Application to Register for Identity Card". These certified that the Appellants had applied to be registered and were designed to be used as a temporary means of identification, the new legislation having made it an offence in effect, for any person who has attained the age of 15 years not to have with him at all times proof of his identity: section 17C. The forms issued to them stated that they were valid until 11th November and were signed on behalf of the Commissioner of Registration. It should be mentioned that the Commissioner of Registration is in practice the same individual as the Director of Immigration and that the Registration of Persons Offices form part of the Immigration Department. 7. In accordance with instructions given when they first reported, the Appellants returned to Victoria Barracks on 11th November. They surrendered the temporary identity forms and were required to complete documents headed "Application for an Entry Permit to remain in Hong Kong and Registration for Hong Kong Identity Card" as well as forms of Arrival Card such as are presented for completion by all persons entering the Colony legally. They were further interrogated and were handed what can best be described as "receipts for the application for registration". They also were signed on behalf of the Commissioner of Registration. It indicated the number of the "Future Identity Card" and the date before which they must be collected, namely 11th December. They further stated:
In addition they bore a stamp impression which I ought, perhaps, to mention, since it was referred to him one of the judgments below. There was no official translation, but it seems to be accepted that it read:
These receipts were in fact handed to them in "the Immigration Clearance Office at Victoria Barracks", so that the requirement to report there immediately was somewhat unnecessary. However, they were told to return the following day. This they did, believing, say that they would then receive their identity cards. In fact they were then arrested and on the 14th November the orders complained of were signed. 8. Before us the first point taken on behalf of the Appellants was that the orders were bad because the Appellants had before 14th November been given permission to remain in the Colony. It was contended that that permission was at least a temporary permission until 11th December (the last day indicated for the collection of their identity cards) if not permission to remain indefinitely. As much of the argument has been based, in the alternative, on estoppel, I have had some difficulty in distinguishing the evidence from which the permission is said to be inferred. As I understand it, reliance is placed initially upon the announcement itself, and it is submitted that that should fairly be interpreted not merely as giving an opportunity for those to whom it was addressed (who were said to include the Appellants by reason of its repetition) to have applications for registration considered, but as guaranteeing that identity cards would be issued to those who applied and that such persons were, by the announcement itself, being given permission to remain. Then it was said that the officers at Victoria Barracks at no time before 12th November arrested the Appellants, but twice told them to return, so that permission to remain might be inferred from their conduct. In support of the alternative argument it was said that the receipt for the application for registration constituted a permission to remain for the period during which the future identity card was collectable. I can accept none of these arguments. No doubt it was anticipated that the majority of those who applied for registration and satisfied the officials that they were persons within the class to whom the announcement was addressed would be allowed to remain, but the wording was clear : those who did not apply for registration would remain liable to repatriation. Nowhere was it said that those who did apply would necessarily be allowed to remain. Even less did it promise immunity from repatriation to persons to whom the announcement was not addreseed. To anyone who heard the announcement for the first time when within the Colony it might possibly appear that the announcement was addressed to him although he had arrived illegally after 23rd October, but no one who first heard it before his arrival could fairly understand that it applied to him, even if he heard it again after entering the Colony. It is altogether too absurd to suggest that the Government was holding out a carrot in the form of permission to remain with one hand, in order to encourage persons to enter illegally, and that at the same time it was putting up a barrier in the form of strong security forces with the other, in order to keep would-be illegal immigrants out. This was not a game but a deadly serious exercise to enable the authorities to take effective measure against a further influx of illegal immigrants, which was threatening to strangle the economy. Again, it was made very clear in the receipts for the applications for registration that the issue of identity cards was dependant upon clearance by the Immigration Department and nowhere in the documents was there anything to suggest that permission to remain either permanently or temporarily had in fact been given. Even if some such permission were to be found in the receipts for application for registration, those documents were signed by the Commissioner of Registration and not by the Director of Immigration. Nor was it suggested that any oral statement was made which could properly be interpreted as giving permission. Counsel did submit that the requests to fill in the Arrival Cards indicated that the Immigration Officers themselves thought that the Appellants had been given permission to remain. The argument runs like this. The request was made pursuant to section 5(4) of the Immigration Ordinance: that provision applied only where a person was not committing an offence under section 38(1)(b): therefore they must have been given permission. However, there was no evidence as to why the officers asked that the cards be completed and, although their conduct was consistent with the belief suggested, I am not persuaded that they necessarily so believed. Nor would their belief necessarily be justified. 9. Secondly it was contended that, even if permission to remain was not given in fact, the Director was estopped from denying that he had given permission. The difficulty in which the Appellants found themselves here was that the onus was on them to prove that the orders complained of were unlawful and not on the Director to show that they were lawful. Accordingly the Appellants were seeking to establish the unlawfulness by means of an estoppel. That they could not do. Moreover, I am unable to see that any estoppel could arise, for the Appellants have, since their arrival in the Colony, done nothing as a result of the announcement which they were not obliged by law to do. Section 3 of the Registration of Persons Ordinance required them to apply for an identity card and that is what they did. It hardly lies in their mouths to say that, but for the announcement, they would have disobeyed the law and refrained from applying. 10. When the case was called on 20th May for delivery of judgment Counsel drew our attention to the recent decision of another division of this Court in NG Yuen-shiu v The Attorney General Civil Appeal 1980 No. 188 and, with leave of the Court. Mr. Jackson-Lipkin addressed further argument to us in relation thereto. 11. In that case an illegal immigrant from Macau relied upon another public announcement, which had been authorised by the Secretary for Security and had been made in the first place by an Assistant Principal Immigration Officer. The announcement was originally made to members of a deputation of persons who likewise were illegal immigrants from Macau and who had gone to Government House to submit a petition to the Governor. The substance of the announcement, which was repeated in an appeal published in the newspapers, indicated that such persons should report to the Immigration Office, that they would not be arrested during the interviews which would then take place and that each case would be treated on its merits. The Appellant was, in breach of the promised immunity, arrested while he was being interviewed and subsequently a removal order was made against him under section 53A of the Immigration Ordinance without, as the Full Bench found, his having been accorded a reasonable opportunity of making representations. An application for orders of certiorari and prohibition were refused by that Court on the ground that the Director was under no duty towards an alien who had entered the Colony illegally to act according to the rules of natural justice, but prohibition was granted by the Court of Appeal. 12. First it has been contended that that decision was authority for disregarding what Mr. Jackson-Lipkin termed the wholly artificial distinction between members of different branches of the public service. As I understood him he was submitting that what Mr. Bridge did in his capacity as Commissioner of Registration was to be regarded as done also in his capacity as Director of Immigration. I find on support for that contention in the judgments. Secondly, it was argued that the decision adopted the concept of "legitimate expectation" as propounded by Lord Denning, M.R. In Schmidt v The Secretary of State for Home Affairs 1969 2 Ch. D. 149, 170. No doubt it did, but it remains for us to consider whether that concept has any application to a case like the present. In NG Yuen-shiu v The Attorney General the legitimate expectation was no more than that the Director would consider the Appellant's application upon its merits. The Court emphasized that nothing it had said in any way affected the discretion of the Director in the exercise of his discretion after the appellant had been heard. Here it is contended that the Director's discretion was fettered and that he must be regarded as either having given the Appellants permission to remain in the Colony or as having made a binding promise that permission would be granted. In my view this is a very different case, because the other deals with a matter of procedure and this with substantive rights. 13. There is another point of distinction. I am prepared to assume that the Appellants expected that they would be allowed to remain, but it does not necessarily follow that their expectation was reasonable or legitimate. I find nothing in NG Yuen-shiu v The Attorney General which compels me to say that one must disregard the fact that the Appellants heard the announcement before they left Canton. If they had heard it first when they were in Hong Kong, or if they never heard it at all and were simply members of the class to whom it was addressed, that case might arguably have given them some support in their efforts to establish that the announcement applied to them, but clearly the announcement did not, and was never intended to, apply to them. Furthermore, whilst I recognise that the announcement might, wrongly, have been taken by some to be in effect a positive undertaking, the case does not, in my view, support the contention that it was a positive undertaking. McMullin, V.-P. was naturally reluctant to conclude that the promise there made was, as it were, tongue in cheek, by which I understand him to have meant that it was a light-hearted deception. Here there could be no question of an attempt at deception at all: the announcement was not intended for the Appellants or those in a like position, even if one accepts the submission that each time the announcement was published it constituted a separate and distinct promise to those for whom it was intended. 14. The arguments addressed to us on behalf of the Appellants appear to me, with respect, to involve three different contentions, which were not always kept distinct:
I have endeavoured to give my reasons for rejecting all these contentions and would only add that nothing which was said in the course of the further argument persuaded me that the Appellants had any right in law or equity which prevented the Director from exercising his statutory duty under the Ordinance of fettered his discretion when he did so. 15. In the course of the argument Leonard, J.A. posed the question whether it would be lawful for the Director to give a blanket permission to a class of persons without considering the circumstances of each individual therein. Counsel did not pursue the matter. Leonard, J.A.: 16. I agree and have nothing to add. Cons, J.A.: 17. I agree with the conclusion expressed by the learned Vice-President and with the reasons he has given. 8th June 1981. Representation: Jackson-Lipkin, Q.C., Rodway & R. Wu (K.K. & Winston Chu) for Appellants. Graham (Legal Department) for Respondent. |