Attorney General v. Cheung Kam-ping
Read the full judgment text of CACV 58/1980 on BabelCite. This Court of Appeal judgment was delivered on 22 August 1980.
1. This is an appeal by the Attorney General from the decision of Mr. Commissioner Gittins whereby a removal order made in respect of the plaintiff by His Excellency the Governor under section 19(1)(b) of the Immigration Ordinance was declared to be ultra vires.
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CACV000058/1980 Appeal by Attorney General - removal order made by the Governor under section 19(1)(b) of the Immigration Ordinance - whether ultra vires - "ordinarily resident" in section 2(1)(b) of the Ordinance means "lawfully ordinarily resident" - plaintiff no longer liable to prosecution for offence under s.38(1) by virtue of limitation provided by section 46(2) - whether plaintiff therefore not subject to removal under section 19 - majority decision allowing appeal.
----------------- Coram: McMullin & Li, JJ.A. and Power, J. Date of Judgment: 22 August 1980 ----------------- JUDGMENT ----------------- McMullin, J.A.: 1. This is an appeal by the Attorney General from the decision of Mr. Commissioner Gittins whereby a removal order made in respect of the plaintiff by His Excellency the Governor under section 19(1)(b) of the Immigration Ordinance was declared to be ultra vires. 2. The plaintiff is a Chinese craftsman who entered Hong Kong illegally on the 31st of July 1970 and has since remained in Hong Kong. It is conceded that he has done so without the authorization of the Director of Immigration. He has worked as head of the design department in the Artland Porcelain Ware Company since November 1970. On 25th of April 1978 he applied for a Hong Kong Identity Card and following inquiries by the officials of the Immigration Department the removal order was made on 1st of September 1971. 3. An application for habeas corpus was taken before Li, J.A. on 19th December 1978 and this was adjourned pending the institution of proceedings by the plaintiff. In these proceedings he sought among other relief a declaration in the terms eventually granted by Mr. Commissioner Gittins. 4. The learned Commissioner found that the plaintiff did not qualify as a "Chinese resident" within the meaning of the definition in section 2. He thus rejected the argument that as a "Chinese resident" the plaintiff had the right to land in Hong Kong under section 8(1) and was thereby protected from removal under section 19(1) of the Ordinance by virtue of the provisions of section 19(2) thereof. 5. In rejecting that argument the Commissioner relied upon the decision of Lord Donning M.R. in re Abdul Manan (1). That decision was exactly in point because under the legislation which the Court of Appeal in England was considering - the Commonwealth Immigrants Act 1968 - the relevant section section 2(2) contains the words "ordinarily resident" which occur in section 2(1)(b) of the Hong Kong Ordinance. 6. In the English case as in the present case the argument for the appellant was that the appellant was immune from removal from the territory concerned if it were shown that he had been "ordinarily resident" therein for a stated period - in the case of the Hong Kong legislation 7 years and in the case of the English legislation 2 years. This is, indeed, the keystone of the plaintiff's claim in the present case. 7. In Abdul Manan Lord Denning held that it was necessary to read into the English section the word "lawfully" in relation to the term "ordinarily resident". The Pakistani seaman in the English case, like the plaintiff in the present case, had entered illegally and had never been given permission to remain. The Master of the Rolls said: (page 861)
8. Having found that the plaintiff had landed and remained unlawfully in Hong Kong contrary to the provisions of section 38(1) the learned Commissioner went on to consider the limitation imposed upon the prosecution of such offences by section 46(2) of the Ordinance. He took the view that the offence under section 38(1) had been committed as soon as the plaintiff, having landed unlawfully in 1970, commenced the long period of residence extending over 10 years which the authorities now seek to terminate by this removal order. In so finding he followed the opinion of Trainor, J. in the Attorney General v. Lo Pui-ling(2). The basis of that decision was that the Legislature had not intended by section 38(1) to create a continuing offence. Since by the year 1980 the time limit for prosecution established by section 46(2) - three years - had long elapsed the plaintiff could no longer be prosecuted for an offence under section 38. 9. Mr. McCallough who appeared for the Attorney General on the appeal did not seek to dispute that the plaintiff is immune from prosecution as a result of the provisions of section 46. He has not sought to argue that the offence is in the ordinary sense a continuing offence. He strongly contests the learned Commissioner's conclusion however and to that I will return in a moment. Before doing so I think it advisable to take up this question of the nature of a continuing offence, a question which was touched upon in the argument before us, and which tended somewhat to obscure the issue with which we are primarily concerned. 10. In LEE Ma-leung v. The Attorney General(3) concerning an application for certiorari the Full Bench, consisting of two members of the present court, had occasion to consider the judgment of Trainor J. in A.G. v. LO Pui-ling. The court followed Trainor J. in holding that section 38(1) did not create a continuing offence. In giving the judgment of the Full Bench I referred both to the decision of Trainor, J. in LO Pui-ling and to the decision of Bridge, J. in Gurdev Singh v. The Queen(4) a case relied upon by Trainor, J. and I said (page 255):
11. Mr. McCallough for the Attorney General has sought to interpret this passage as meaning that the offence was, in effect, a continuing offence throughout the period of limitation which at the date when the plaintiff entered the territory stood at one year under the former legislation. From this he sought to argue that the act of remaining only became a completed offence at the end of the year following upon the unlawful entry so that the right to prosecute persisted for a further year thereafter. This would have had the important result - from the Attorney General's point of view - that, since the present Ordinance replaced the former Ordinance less than two years from the respondent's unlawful entry the remaining would not have been time barred as an offence when the new provisions against unlawful entry and remaining took over. Mr. McCallough proposed this as one answer to his opponent's contention that by the time the new provisions were enacted the respondent had acquired "a vested right" to remain in Hong Kong by effluxion of time under the former provisions. 12. I have some sympathy with counsel for I do not think that in LEE Ma-leung I expressed the matter as clearly as I ought to have done. What I intended to express in that passage was that the authorities relied upon did not suggest that the offence of remaining illegally within the territory did not persist as a prosecutable offence up to the conclusion of the limitation period from the moment when the offence had been completed by somebody who entered with the intention of staying. 13. It should be remembered that the Full Bench in LEE Ma-leung was dealing with the bold and ingenious contention, put forward by counsel for the immigrant, that because the offence had been completed upon the day on which the immigrant actually arrived in the territory therefore on the following day a person who assisted him to remain in the territory could not be guilty of aiding and abetting him to commit the offence. 14. In the circumstances of that case it may not seem too surprising that that argument was rejected. Nevertheless the substance of it - the non-continuing nature of the offence - underlies Mr. Mills-Owens' contentions on behalf of the immigrant in the present case. He has emphasised that there is no simple offence of unlawfully remaining in Hong Kong. Section 38 establishes in paragraph (a) of subsection 1 the offence of landing and paragraph (b) of that subsection creates an offence which, as Trainor, J. observed in LO Pui-ling, has two ingredients: landing and remaining. 15. It is important to counsel's argument that this point should be established since in his main argument, to which I shall presently come, he wishes to demonstrate a difference between the former legislation dealing with immigration and the present Ordinance and he is anxious therefore to support to the full the judgment of Trainor, J., as upheld in the Full Bench decision, to the effect that the offence under section 38(1)(b) is not a continuing offence either in respect of the landing or of the remaining after landing. 16. As I understood him Mr. McCallough suggests that in re LEE Ma-leung establishes a category of continuing offences which continue to be committed day by day up to the conclusion of the then one year limitation period. This proposition was, in its turn, important to his argument as a counter to Mr. Mills-Owens' main argument based on the difference between the older law and the new. I must confess that I did not find this part of Mr. McCallough's argument easy to follow. Either the offence is a continuing offence in the ordinary sense or it is not. If it is, it continues to be committed indefinitely up to the time of detection and indeed thereafter unless ended by deportation or absolved by administrative fiat. I cannot accept that the combined effect of the limitation section - section 45 - of the former Ordinance and the decision of the Full Bench in re LEE Ma-leung is, as it were, to double the stipulated limitation period. 17. Verney v. Mark Fletcher & Sons Ltd.(5) on which Mr. McCallough relies in this connection is not in my view of any assistance. The court there was considering the following words of limitation:
(Section 146(1) of the Factory and Workshop Act 1901). A particular inspector had found a fly-wheel of an engine in the respondents' factory to be insecurely fenced and he required them to fence it. That was in May 1905. In March 1908 he discovered the same defect and on two further visits in July 1908 he found that the defect had still not been rectified. It was argued that as the matter had come to his knowledge in 1905 a prosecution was barred. 18. To have acceded to that contention would have been, as Lord Alverstone C.J. points out at page 447, to confer on the respondents a charter to keep the fly-wheel unfenced forever. Moreover it appears to have been conceded on behalf of the respondents that under normal circumstances such an offence would be of a continuing nature. The purpose of the legislation was to see that factories were safely maintained and it is not altogether surprising that the argument did not succeed. Nevertheless the case affords a good example of the conceptual difficulty of associating an offence of a continuing nature with the idea of a time limit for prosecution. 19. However that may be, the language employed in section 46 of the Immigration Ordinance is materially different. This provides that the complaint or information may be laid in respect of an offence under section 38(1)(b) within "three years from the time when the matter of such complaint or information respectively arose". The matter or substance of the complaint, as it seems to me, is the illegal remaining after an illegal landing in Hong Kong. The substance of the complaint is not the discovery that such an illegal landing and remaining has occurred. If it were the latter then it might well be said that the offence must be of a continuing nature so that every time it is discovered it is a fresh offence. Because the offence created by section 38(1)(b) is of a two-fold nature, as Trainor, J. observed, there will be marginal cases which propose an imaginative difficulty in the way of deciding whether the offence committed is an offence under paragraph (a) or paragraph (b) of that subsection. I would think however that a commonsense approach to the circumstances of each particular case should readily establish what offence is to be charged. Where the circumstances show that some person has entered Hong Kong for the purpose of a shopping expedition but without the permission of an immigration officer and that it is his clear intention to depart from Hong Kong in a matter of hours or perhaps days it seems unlikely that, if he is to be charged with anything at all, he will be charged under paragraph (b). Where by contrast somebody is found to have established a homestead in the Colony and who, although unable to show any authority from the Director, is obviously intending to remain he will clearly be a candidate for treatment under paragraph (b) and although the prosecution will have to show also that he landed unlawfully that is, as it were, only a condition precedent to bringing home the matter in which the prosecution is particularly interested viz.: the unlawful remaining. The offence under paragraph (b) is not the offence of "landing and unlawfully remaining" but simply "unlawfully remaining having landed unlawfully". The nature of the offence of landing proposes no difficulty to the imagination for that is something accomplished in a moment of time and it conveys no suggestion of its being an offence of a continuing nature. But if it is an unlawful landing it infects every moment of remaining thereafter until permission is sought and obtained from the Director. Notionally, the casual shopper from across the border in Kwangtung who enters informally for an afternoon shopping spree is guilty of an offence equally under paragraphs (a) and (b). But if he was discovered by the authorities on his way back to his home place and if the authorities were minded to make an example of such a case then although notionally the provisions of paragraph (b) might be said to apply to him it would be very unlikely to be applied. 20. I concede that this way of reading section 38 tends to cloud the distinction between the offences created in paragraphs (a) and (b). I think however it is necessary to regard the paragraph (b) offence as being of a non-continuing nature in order to give force to what I believe to have been the Legislature's intention in creating a time limit for prosecutions in respect of such offences. I am fortified in this view by the fact that there is not in this legislation as there was in the legislation involved in several of the cases cited before us, which were also cited in the cases of LEE Ma-leung and LO Pui-ling, a positive deeming of similar offences to be of a continuing nature. This opinion is further fortified by the fact, for what it is worth, to which counsel drew to our attention in the present case that when amendments were proposed to the present Ordinance in 1977 the original bill contained such a deeming section which however does not appear in the law as it now stands although at the time of those amendments the time limit for prosecution was extended from two years to three years. 21. In finding that the Governor had exceeded his powers under section 19(1)(b) the learned Commissioner in the court below said
He had earlier held that the plaintiff had not only landed unlawfully but also had remained unlawfully in Hong Kong. He does not say that the mere elapsing of time has caused the remaining to become lawful yet I apprehand that such must be the reasoning behind his conclusion or else it would be very difficult to understand in view of the very clear words of section 19. Section 19 and section 38 however deal with quite different matters. Section 38 deals with the question of offences. It is concerned with criminal conduct and penal sanctions. Section 19 deals with the making of a removal order which has the character of a civil or administrative act and one would have thought that the phrase "whether or not he has been convicted of that offence" (section 19(1)(b)) makes it sufficiently clear that the power to pursue criminal sanctions is irrelevant to the making of a removal order. 22. For my own part I am satisfied that this conclusion of the learned Commissioner cannot be supported and indeed, as I understand him, Mr. Mills-Owens does not seek to support it although he has not expressly demurred to it. His principal argument is that the plaintiff cannot be removed because he has not committed an offence under this Ordinance. When the plaintiff entered the territory in 1970 the law in force in relation to such matters was contained in the Immigration (Control and Offences) Ordinance, Cap. 243. There is no provision in that Ordinance similar to section 19. The only power to make a removal order is contained in section 41(4) which gives the Governor a power to make an expulsion order but only upon conviction for one of the offences listed in subsection 1(a) of the Ordinance. Section 45 of the same Ordinance provides that the complaint or information must be laid in respect of any such offence within twelve months from "the time when the matter of such complaint or information respectively arose." By the 20th of July 1971 the plaintiff had completed twelve months of residence unmolested and therefore, counsel says, since he could no longer either be prosecuted or removed from the territory under that Ordinance he had acquired something in the nature of a vested right to remain. Since the Legislature had demonstrated by the manner of its legislation that the authorities were no longer to be concerned with the illegal act of somebody who had thus entered for a year it must be assumed that any such person who remained thereafter was regarded as remaining lawfully within the territory. 23. There was, of course, counsel conceded, also in existence at that time the Deportation of Aliens Ordinance, Cap. 240, which empowered the Governor (section 3(1)(c)) to make a deportation order against an alien if he deemed it to be conducive to the public good. The present plaintiff would have fallen within the definition of alien in that Ordinance. A close perusal of the provisions of that Ordinance and of the subject matter of the forms in the Schedule thereto would, counsel maintained, indicate that that Ordinance is primarily concerned with persons of an undesirable character whereas it is a matter of common assent in the present case that his client throughout his period of residence has been a citizen of the most admirable character. If it be conceded, the argument went on, that by the time the new Ordinance was introduced on the 1st April 1972 the plaintiff was irremovable under the old Ordinance and had acquired a lawful status as a resident of Hong Kong it would require the clearest possible language in the new law to show that that status was once again to be at risk. It was in this connection that counsel stressed particularly the fact that there is no section in the present Immigration Ordinance making "remaining" simpliciter an offence. Two elements are necessary, counsel says, to constitute an offence under section 38(1)(b): landing and remaining. Although his client concedes that he landed unlawfully in the first instance the criminal character of that landing has been atoned by effluxion of time and he has never landed unlawfully under the new Ordinance. 24. It is an appealing and ingenious argument and one to which in view of the background circumstances of this appellant, I would most willingly adhere if I felt that it could be sustained without doing damage to what I deem to be the clear language of the Ordinance. What counsel maintains is that his client is a Chinese resident within the meaning of that term in section 2 i.e. he has been ordinarily resident in Hong Kong for a continuous period of not less than seven years. Moreover, counsel says, he has been lawfully ordinarily resident since the elapsing of the one year limitation period in 1971 under the old Ordinance. As such Chinese resident he has the right to land in Hong Kong under section 8 of the present Ordinance. As a person with a right to land he is outside the provisions of section 7 which provides that a person may not land in Hong Kong without the permission of an Immigration Officer. He is therefore not caught by section 38 which applies only to persons who by virtue of section 7 may not land in Hong Kong without such permission. There are however other provisions which speak unfortunately against this deft exposition of the law. 25. Section 2(2) of the present Ordinance reads as follows:
26. Subsection 4 reads as follows:
These provisions are clearly intended as a bridge between the old law and the new. They are in the nature of transitional provisions intended, as I see it, to preserve to the authorities the right to take such action as they deem fit in respect of illegalities which have occurred prior to the introduction of the new legislation, and in particular to deal with such matters as unlawful entry under the former law. 27. If one now reads the material part of section 38 subject to the gloss supplied by subsection 2 of section 2 one arrives at something in the folliwing form:
28. It is conceded that the plaintiff did enter the Colony unlawfully in the first instance; it is conceded that he has never had the permission of the Director to remain. Although he is, by effluxion of time, immune from prosecution under the present Ordinance (as he had already become under the former Ordinance) his case nevertheless clearly falls within the executive powers of the Governor under section 19. 29. Mr. Mills-Owens argues that it is repugnant to justice no less than to the ordinary canons of construction of statutory law that one should be said to be guilty of an offence which contains two elements viz.: landing unlawfully and remaining without permission, when the first of those elements had occurred long before the introduction of the law creating the present offence and had moreover, he would maintain, been absolved under the old law, while the second element, the remaining is per se not an offence under the new. That point is not without appeal but once again the intention of the provisions to which I have already referred is too plain to allow it to succeed. The respondent has never had the permission or authority of the Director to remain whether before or after the introduction of the present Ordinance. Even if it be conceded that he was lawfully resident in the Colony between the 20th of July 1971 (when the time limit for prosecution under the old Ordinance had elapsed) and the 1st of April, 1972 (the date of introduction of the new Ordinance) that is a period of nine months only. What the plaintiff needs to show in order to establish himself as a Chinese resident under the law as it now stands is seven years of lawful ordinary residence. The words of subsection 4 of section 2 are plain: the period during which he has remained in Hong Kong after the introduction of the new Ordinance are not to count as ordinary residence. 30. In any case I do not think it can be said that the respondent had achieved the status of a lawful resident by the 20th of April 1971. During the following nine months he was undoubtedly immune from prosecution and expulsion under the Immigration (Offences and Penalties) Ordinance but that is not quite the same thing as acquiring lawful resident status. - The powers of the Governor under the then Deportation of Aliens Ordinance were very wide. One might hope that they would not have been employed in a case of the present kind where the purely ad misericordiam elements in the immigrant's favour seem exceptionally strong but I am not prepared to say that the disarming of the immigration law by effluxion of time could of itself have conferred immunity from deportation of an alien however admirable and law-abiding. Expulsion under the immigration law is a penal consequence of breach of that law; deportation is available for reasons of state which may be quite remote from any concern with crime or criminal sanctions. As Mr. McCallough pointed out the present Immigration Ordinance consolidates the former law but these two aspects are preserved within a single framework. Under section 20, which deals with deportation as distinct from removal, a person may be deported if the Governor deems that to be conducive to the public good or if that person "has been found guilty" of an offence i.e. an offence of any kind punishable by two years' imprisonment. Section 19 allows the making of a removal order if it "appears to the Governor" that such person "has committed" an offence even though he has never been found guilty of it. The "offence" referred to in section 19 is wholly concerned with unauthorized presence in Hong Kong. As I see it the "offence" in section 19(1)(b) has relevance only to the question of legitimacy of residence; that in section 20(1)(a) to undesirability of character or criminality in the ordinary sense. 31. If it be said that the Legislature cannot, without very clear words, have intended to render a man who had acquired immunity from prosecution under the former law liable once more to prosecution for his former offence under the new I can only say that I do not interpret the new provisions as having any such effect. The present limitation section limits the institution of proceedings under 38(i)(b) to a period of three years from the time when the subject matter of the complaint arose. Since the offences - whether of unlawful entry or of remaining after unlawful entry - are non-continuing offences the "matter" of them arose in the respondent's case as long ago as 1970. He is immune from prosecution equally under the new as under the old provisions. 32. I think it is clear that what the Legislature sought to establish by the combined effect of section 2(2), 19(1)(b) and 38(1)(b) is that anyone who had committed the offence of unlawful entry and had never had his residence legitimated could not claim to be a lawful resident merely because he could no longer be prosecuted. The object was not to create an offence which could not be prosecuted but rather to inhibit any claim to citizenship resting solely on length of residence. Liability to criminal prosecution seems to me to be irrelevant to the exercise of this power. If the respondent had entered Hong Kong in 1972 after the commencement of the present Ordinance he would now have over seven years of unmolested residence, five of them beyond the time limit for prosecution, yet clearly section 19(1)(b) would apply to him. The fact that these figures are actually ten years and eight years respectively affords no good ground for setting up a vested right to remain or for assuming that the Legislature intended that the reach of these bridging provisions was to be restricted to such persons as had not yet acquired immunity from prosecution at the date of coming into force of the present Ordinance. 33. It is true that subsection 2 of section 2 only purports to extend the meaning of "landing" in Hong Kong to include "landing in or entering" Hong Kong in contravention of the repealed Immigration (Control and Offences) Ordinance and no similar provision is made in respect of the word "remains", or its grammatical co-ordinates, which occurs also in paragraph (b) of subsection 1 of section 3 of the former Ordinance. I don't think that helps the respondent. The point which the Legislature wished to establish in section 38 was presumably that it was to be no answer to a charge that somebody had landed prior to the commencement of that Ordinance. Once it had established that an unlawful landing under the old law was to be a constituent element of the offence created by section 38 it follows as a matter of mere logic that it was also intended that all remaining within the Colony thereafter without the permission or authority of the Director was to constitute the other element in the new offence. 34. Indeed, if section 2 had provided that references to remaining in Hong Kong in the present Ordinance are references to remaining under the former Ordinance that would, if anything, have strengthened the argument for the respondent, the argument being that "remains" in section 38(1)(b) means "unlawfully remains" and the respondent - it would be said - could not be unlawfully remaining under the new law since his remaining had become lawful under the old. I have already given my reasons for doubting the validity of equating immunity from prosecution with residential legitimacy, but clearly the point is there to be made. It may be that in omitting reference to remaining from the "bridge" provisions in section 2 the Legislature was concerned to avoid such an inference and to employ the term in its simplest and widest sense in section 38 unembarrassed by any such subtlety of interpretation. 35. I have considered the decision of Cons, J. in LAM Wang-Shun v. A.G.(6) upon which Mr. Mills-Owens at least in part relies. I have little comfort in finding myself in conflict with his opinion but after the most earnest consideration I feel obliged to depart from it. In that case the learned judge takes the view that it would be "straining" the language of subsection 2 of section 2 of the present Ordinance to say that it has the effect of importing the terms of the former Ordinance into section 38. For the reasons I have given I believe the subsection has that effect. 36. There remains only the somewhat mysterious matter of the omission from the current edition of the Ordinance of the Schedule of transitional provisions which originally appeared in 1971 when the present Ordinance was first introduced. 37. There is much force in Mr. Mills-Owens' contention that we are now debarred by virtue of the provisions of section 15(4) of the revised edition of the Laws Ordinance from looking at any source other than the current booklet of the Immigration Ordinance issued under the authority of the Attorney General as the sole authoritative text to which is no longer annexed the Second Schedule with its transitional provisions. 38. The eleventh item in that Schedule undoubtedly makes it clear beyond doubt that section 19(1)(b) of the Ordinance covers the case of a person who had entered illegally under the old Immigration (Control and Offences) Ordinance or remained in contravention of the provisions of that Ordinance and that the provisions of the new Ordinance apply to such persons. For my own part I do not see that it was necessary to include such an item in the Schedule at all. Perhaps it was done for the avoidance of doubt, ex abundanti cautela. But in any case it appears to me that so far as unlawful entry is concerned everything that it is sought to do by that item in the Schedule is already sufficiently done by subsection 2 of section 2. For these reasons I would allow this appeal. 39. Before parting from this case I feel obliged to reiterate the sentiments I expressed at the outset. I do so with reluctance in the realization and indeed in the hope that there may be something in the background of the case of which I am not aware and which, did I know it, would help to explain why it was thought necessary to pursue this particular plaintiff in order to establish the principle. Mr. McCallough for the Attorney General who presented his case with admirable ability and fairness, made it clear that he was in no way concerned to stand over the policy which had launched the proceedings in the first instance. In view of what we have been told about the background of this plaintiff that was to my mind a very proper attitude for him to take. Of course, it is very important that principle should be established and maintained but that must surely not be at the expense of humanity and common sense. 40. Mr. Mills-Owens, understandably, at the commencement of his address stressed the blameless character of his client who is an artist in the decoration of porcelain, a skill in which we are told he has high standing. He has for ten years led a blameless life and has made what appears to be a very valuable contribution to the community in which he lives. He has throughout admitted that his initial entry into Hong Kong was unlawful but he has in no way led a fugitive or concealed existence. It was his own honest endeavour to regularize his position in view of an impending marriage which drew him to the attention of the officials concerned. Unlike many immigrants of recent years who have achieved citizen status and been issued with identity cards by outwitting the authorities and reaching the city and who have thereafter proved themselves a nuisance and a burden, this plaintiff appears to have everything to recommend him to the authorities as a peaceful, useful and worthy citizen. One would hope that even now with the principle vindicated - if it is vindicated - it is not too late for more humane considerations to prevail. Representation: McCallough, Crown Counsel for the appellant. Mills-Owens, Q.C. & Bleach, instructed by (C.P. Lin & Co.) for the respondent. (1) (1971) 1 W.L.R. 859. (2) (1975) H.K.L.R. 141. (3) (1979) H.K.L.R. 252 (M.P. No. 166 of 1979) (4) (1974) 1 All E.R. 26. (5) (1909) 1 K.B. 444. (6) (unreported) 1975 No. 3067.
----------------- Coram: McMullin, Li, JJ.A. & Power, J. Date of Judgment: 22 August 1980----------------- JUDGMENT ----------------- Li, J.A.: 41. This is an appeal by the Attorney General against the judgment of Mr. Commissioner Gittins to the effect that the Governor's power to make a removal order was limited to situations where a prosecution could be brought. The ground of appeal is that the learned Commissioner erred in law on this point. Learned counsel for the appellant contends that once the respondent has committed an offence against Section 38(1) of the Immigration Ordinance Cap. 115 (hereinafter referred to as Cap. 115) he is liable to such removal order being made against him irrespective of his being liable to prosecution or not. On the other hand the respondent served notice to support the judgment on the grounds that:
The undisputed facts are that on the 21st of July, 1970 the respondent entered Hong Kong without the permission of the Director of Immigration. His entry was then unlawful. He stayed on in Hong Kong all these years. In the meanwhile he obtained a job with the Artland Factory - a Hong Kong company - as a porcelain painter and designer. He has not otherwise infringed any law in Hong Kong. He met a girl whom he intended to marry and settle down in Hong Kong. For this reason he went to the Immigration Department to apply for permission to stay in Hong Kong and to obtain an identity card in 1978. Having considered his self disclosed unlawful entry into Hong Kong the proper authority recommended that a removal order be made by His Excellency and such order was made accordingly on the 1st of September, 1978. 42. On the 3rd November, 1978 the respondent issued a writ against the Attorney General asking for a declaration that the removal order was made ultra vires. Mr. Commissioner Gittins decided as aforesaid in favour of the respondent. Hence this appeal. 43. Having heard the argument of the learned counsel for both parties I come to the conclusion that the sole issue is whether the respondent had committed an offence against s.38(1) of Cap. 115. The argument that the respondent by 1978 had a right to land in Hong Kong is untenable. This has been so found by Mr. Commissioner Gittins in his well considered judgment. Up to September, 1978 the respondent cannot be recognized as an ordinary resident in Hong Kong. See In re Abdul Manan (1971) 1 W.L.R. 859. Further s.2(4) of Cap. 115 provides that:
This provision came into force on 1st April, 1972. As from that date the respondent has not been in a position to acquire a landing right in Hong Kong under s.8(1) of Cap. 115 since he has not been a Chinese resident within the meaning of the Ordinance Cap. 115. 44. I now come to consider whether the respondent has committed an offence either under s.38(1) or under s.3(1)(b) of the Immigration (Control and Offences) Ordinance Cap. 243 (hereinafter referred to as Cap. 243). This is important because the removal order dated the 1st September, 1978 was made pursuant to the provision in s.19(1)(b) of Cap. 115 which reads:
45. Section 38(1)(b) provides that:
46. Section 3(1)(b) of Cap. 243 provides as follows:
47. Thus the offence created either by s.38(1)(b) of Cap. 115 or s.3(1)(b) of Cap. 243 requires two elements namely: unlawful landing (or entry) and remaining without authority. Indeed, no offence was created for remaining in the Colony alone by either of these two subsections. It is contended by counsel for the appellant that the respondent entered the Colony as an illegal immigrant and "remains" in Hong Kong up to 1978 without the authority of the Director. Hence the offence. Thus it is essential to examine whether the offence so created, particularly having regard to the required element of "remaining", is a continuing offence. Having regard to the carefully considered judgment of Trainor, J. in The Attorney General v. Lo Pui-Ling and Another (1975) H.K.L.R. 141 and other authorities see also LAM Wang-shun v. The Attorney General in Case No. 3067 of 1975 and Singh (Gurdev) v. The Queen in (1974) 1 All E.R. 26 and Vaughan v. Biggs in (1960) 2 All E.R. 473, I am of the opinion that such an offence is not a continuing offence. I do not wish to lengthen this judgment by repeating what has fallen from the learned judges in the cited authorities. However, a short passage from the judgment of Bridge, J., as he then was, in the Singh case will illustrate my view. Having explained that an extended limitation of time given by the legislature to prosecute an offence as one of the indications that the legislature did not intend such offence to be a continuous offence. Bridge, J. said at p.31 as follows:
This passage is apposite to the present case in view of the provision in s.46(2) of Cap. 115 which provides:
There were similar provisions in Cap. 243, the law as it then stood when the respondent committed the offence. Section 45 of Cap. 243 provides:
In addition s.43(4) of Cap. 243 provides:
Thus when the respondent committed the offences in 1970 the power to expel him from this Colony or to remove him depended on the fact whether he was convicted of any offence under Cap. 243. There was a limitation as to time within which he could be prosecuted. That period at that time was twelve months only. Having regard to the aforesaid authorities and statutory provisions, I am of the opinion, as I have indicated, that the offence was not a continuing one and that when the respondent entered and remained in Hong Kong on the 21st July, 1970 both elements of the offence under s.3(1)(b) of Cap. 243 were complete. By the 21st July, 1971 he was no longer liable to prosecution let alone conviction. He could not be removed by virtue of the provisions in s.43(4) of Cap. 243. Thus as from the 21st July, 1971 the respondent was neither liable to prosecution nor could he be expelled on account of his contravention against s.3(1)(b) of Cap. 243. No matter what status the respondent had or had not acquired by then he could not be removed or expelled from Hong Kong under Cap. 243. 48. Counsel for the appellant refers us to s.2(2) of Cap. 115 which provides that:
He contends that by virtue of this subsection the offence created by s.38(1)(b) of Cap. 115 includes an unlawful entry relating back to the repealed ordinance Cap. 243 and therefore the unlawful landing of the respondent in 1970. He further argues that by virtue of his unlawful landing against s.3(1)(a) of Cap. 243 and his unlawful remaining in Hong Kong under s.38(1)(b) of Cap. 115 the respondent had committed an offence. On this point however I am of the opinion that what the legislature clearly intended was to insure that persons who had landed unlawfully and with regard to whom the limitation period under s.45 of Cap. 243 had not expired before Cap. 115 came into force would then be liable to punishment under s.38. Section 2(2) was meant to have application only to persons still liable to prosecution under the old ordinance i.e., offenders with regard to whom the previous limitation period had not lapsed. Is it conceivable that the legislature would have meant to make all persons who had, prior to the passing of the new ordinance, landed in Hong Kong with the intention of remaining without authority and who had not been prosecuted and were, by virtue of the expiry of the limitation section, not liable to prosecution no longer liable to expulsion and became a tolerated resident in Hong Kong between July 1971 and April 1972 suddenly "guilty of an offence" under the new ordinance? Surely if this grossly unjust result was intended it would have been spelt out in the most specific terms. I am satisfied that s.2(2) of Cap. 115 was intended to catch only those who were still liable to prosecution under the old ordinance and only such persons were, therefore, committing an offence under s.38(1)(a). Even if s.2(2) of Cap. 115 preserved the respondent's 'landing' against the provisions of Cap. 243 as if such were a landing against the provisions of Cap. 115 the subsection has not preserved the respondent's other element of the offence viz: "remaining". The respondent remained contrary to the provisions of Cap. 243 which have been repealed. The respondent had committed the act of remaining before Cap. 115 came into force. This being so the respondent was not committing an offence under s.38(1)(a) and the removal order was wrongfully made. 49. Learned counsel for the appellant further relies on the case of re LEE Ma-leung in (1979) H.K.L.R. 252 a decision by the Full Bench of which I was a member. In that case the applicant was convicted of aiding and abetting on the 24th of April, 1978 an illegal immigrant who entered and remained in Hong Kong in the night of 23rd April, 1978. The argument centred on the question whether the applicant could aid and abet an offence which had been completed the day before. This led to the question whether the offence created by s.38(1)(b) was a continuing offence. Having examined the relevant authorities My Lord the President of the Court who was also President of the Full Bench in that case said at p.255 as follows:
50. Counsel for the appellant relying on that passage of the judgment suggests that since that offence is "de die in diem" the respondent was guilty of an offence up to the 20th July, 1971. The respondent could be prosecuted up to the 20th July, 1972. By the 1st of April, 1972 Cap. 115 came into force. On this he develops the argument that the respondent had committed an offence under s.38(1)(b) when Cap. 115 came into force. I do not find favour with this contention which amounts to repeating the contention that the offence under s. 38(1)(b) is a continuing offence. I have already come to the conclusion that it is not. The remark 'de die in diem' throughout the entire limitation period up to its conclusion has been misunderstood by counsel for the appellant. There is nothing in that judgment to suggest that the offence committed by the respondent in July, 1970 rendered the offender liable to prosecution up to July, 1972. There is no provision in Cap. 115 to the effect that the legislature intended the provisions in Cap. 115 to have retrospective effect. If this argument were correct then the respondent would be liable to prosecution up to the 20th July, 1973 for an offence which he committed in 1970 - a period of three years. However, when Cap. 115 first came into force on the 1st April, 1972 the limitation period for prosecution of such an offence was limited to 2 years. Counsel's argument seemed to give effect to the law that such an offence could be prosecuted within a period of 3 years even on the 1st April, 1972. Such a period of 3 years was not made possible until the amendment to the Immigration Ordinance of 1971 in the year 1975/76. I can find no force in an argument that without expressed words an Ordinance can revive an offence the prosecution of which has already been time barred. The effects in the case of LEE Ma-leung are markedly different from those of the present case. Should it be absolutely necessary, I, speaking for myself, am of the opinion that this case should be reconsidered by the Court of Appeal in future. 51. Finally, learned counsel for the respondent points out that the transitional provisions which were part of Cap. 115, when it was enacted, were removed from the 1977 revised edition of the Ordinance which was the edition enforced at the time when the removal order was made against the respondent. He points to s.15(4) of the Revised Edition of the Laws Ordinance 1965 which provides as follows:
52. He further submits that the terms of Cap. 115 to which we must pay heed are those set out in the 1977 Revised Edition. The transitional provisions in s.66 and s.67 though present and enacted in the Immigration Ordinance No. 55 of 1971 were not included in the 1977 Revised Edition. For this reason the transitional provisions are no longer enforced and therefore it cannot be said that Cap. 115 be given any retrospective effect. 53. In reply counsel for the appellant contends that the transitional provisions provided in para. 11 of the schedule that s.19(1)(b) shall have effect as it if included reference to a person who has contravened s.3(1)(a)(ii) or (b) of Cap. 243. By virtue of this provision s.19(1)(b) had therefore to be read as follows:
Mr. Mills-Owens contends that since the transitional provisions had been deleted from the 1977 Revised Edition the aforesaid argument should not be allowed and should have no effect. He further submits that when acting under s.19 the Governor would look to see whether the person against whom a removal order was proposed to be made had committed an offence either under Cap. 115 or under the repealed Cap. 243. Counsel for the appellant contends to the contrary and suggests that Cap. 115 must be read as a whole together with the transitional provisions and that when this is done it is clear that an offence had been committed against s. 38 during the currency of the ordinance. It is contended again by Mr. Mills-Owens that when s.38(1)(b) speaks of having landed in Hong Kong unlawfully it clearly meant unlawfully after the enactment of Cap. 115. Thus, the respondent had therefore committed no offence under s.38(1). The crux of the matter is whether we should pay any attention to the deleted transitional provisions which were not included in the 1977 Revised Edition of the Ordinance. Learned counsel for the appellant suggests that we should. While conceding that the transitional provisions do not appear in the 1977 Revised Edition of Cap. 115 he argues that, they are, nonetheless, applicable. The Attorney General has power under s.15(1) of the Revised Edition of the Law Ordinance 1965 s.4(1)(a) of the said Ordinance only to omit such parts of the Ordinance which have spent or have had their effect. He says that the Attorney General of the day was clearly acting ultra vires when he removed the transitional provisions for they had not become spent or had had their effect as is clear from the facts of the present case. He refers to us to an article in Vo1. I No. 3 of the Hong Kong Law Journal at p.274 which suggests that in such circumstances the text of the revised editions could only be regarded as authorities in so far as the alterations made by the editor are within the powers conferred upon him. This view is both attractive and ingenious. However, it is clearly contrary to the express words of s.15(4) of the Revised Edition of the Law Ordinance 1965 which I am satisfied cannot be so easily overridden. We are bound by the words of s.15(4) of the 1965 Ordinance and must apply the law as it appears in the 1977 edition of Cap. 115. Thus we should not consider the transitional provisions at all. After all, the Attorney General must be the person who should know which provisions of any Ordinance or which part of any Ordinance have spent their force or have had their effect. There is always that rhetorical question that if he does not who does. It is certainly wrong to tailor the law to fit the facts of any case ex post facto. If there is the slightest merit in this argument there is a further rhetorical question to the effect that if the ignorance of the law is no defence how could ignorance of the law on the part of the leader of the Bar revive an offence. 54. For the aforesaid reasons I am of the opinion that the respondent had not committed any offence under s.38(1)(b) of Cap. 115. A removal order was made ultra vires. Accordingly the appeal must be dismissed. Representation: R.A. McCallough (Legal Department) for appellant Richard Mills-Owen, Q.C. & John Bleach (C.P. Lin & Co.) for respondent
----------------- Coram: MuMullin & Li, JJ.A. and Power, J. Date of Judgment: 22 August 1980 ----------------- JUDGMENT ----------------- Power, J.: 55. I have had the opportunity of reading the judgment of the learned President and find myself, except as to one matter, in agreement therewith. The only matter as to which I find myself respectfully unable to agree is as to the nature of the offences created by s.3(1)(b) of the repealed Immigration (Control and Offences) Ordinance, Cap. 243 and s.38(1)(b) of Immigration Ordinance, Cap. 115. I do agree that the sections do not create continuing offences in the ordinary sense however I am satisfied that they do create a continuing offence of a particular and limited kind. 56. To understand the nature of these offences one must in each case look to the limitation section. 57. Both offences have a static element, the entry in the case of the s.3(1)(b) of the repealed ordinance and the landing in the case of s.39(1)(b) of the other ordinance. Both offences also have a continuing element - the remaining without permission in both cases. In the context of both ordinances I am unable to persuade myself that the word "remain" can have ascribed to it any meaning other than its ordinary, and clear, meaning which indicates a continuing state of affairs. 58. I will deal first with s.3(1)(b) of the repealed Cap. 243. I fully appreciate the argument that in the usual case a period of limitation has a very limited application to a continuing offence. This is so because as the offender continues to commit the offence the period of limitation continues to run ahead of him. What then did the Legislature mean when it, by s.45, applied a period of limitation to the continuing offence created by s.3(1)(b). Section 45, as it stood at the time when the appellant entered the colony, said that:
59. It cannot be suggested that s.45 was not meant to apply to s.3(1)(b) for the words of the section clearly make it applicable to all of the offences created by the Ordinances. How then does the limitation section apply itself to this continuing offence? The answer lies in the fact that this is a continuing offence of a particular kind which has both a static element and a continuing element. I am satisfied that what s.45 lays down, as regards offences against s.3(1)(b), is that the offence must be prosecuted within twelve months after the time when the matter of the complaint or information respectively first arose. It seems to me clear that the Legislature intended that a person could only be prosecuted within the period of twelve months after he first committed the offence. This was not to say that he did not thereafter remain in breach of the first element and continue to be in breach of the second element, only that he could not be prosecuted for the offence. 60. The same result exactly, in my view, follows when one looks at an offence under s.38(1)(b) of Cap. 115 in the light of s.46(2). This section states that
61. I am satisfied that what this section lays down is that a prosecution for an offence under s.38(1)(b) must be launched within three years after the matter of the complaint or information first arose. 62. If the above view is correct, and I am satisfied that it is, there can be no question of any "vested right" arising by virtue of the appellant's resident in the Colony. Having taken this view I would clearly have come to the same conclusion, but for different reasons, as that which was arrived at in both Attorney General v. LO Pui-ling(1) and LEE _Ma-leung v. The Attorney General(2). I am satisfied that the appellant having entered unlawfully and having remained in the Colony without permission was still in breach of the provisions of s.3(1)(b) at the time when Cap. 243 was repealed by Cap.115. He could not, of course, have been prosecuted under s.3(1)(b) but he was, nonetheless, still in breach of both elements of the offence. This being so, given the application of s.2(2) indicated by the learned President and adopting his overall appraoch to s.38(1)(b) and s.19 of Cap.115, I am satisfied that the appellant was, after the coming into operation of Cap. 115, in breach of both elements of the offence created by s.38(1)(b) and was therefore, in the words of s.19, "committing an offence" under that section. He was, consequently, properly dealt with by the Governor when he made a removal order against him under s.19. The appeal must be allowed. I ally myself completely with the sentiments expressed by the learned President in the final paragraph of his judgment. Representation: McCallough, Crown Counsel for the appellant. Mills-Owens Q.C. & Bleach, instructed by (C.P. Lin & Co.) for the respondent. (1) (1975) H.K.L.R. 141. (2) M.P.No. 166 of 1979. |