Liew Kar-seng v. His Excellency the Governor-in-council and Another

HCMP002505/1988

1988, No. M.P. 2504 & 2505

IN THE HIGH COURT OF HONG KONG

HEADNOTE

The applicant was the subject of a deportation order made on 21st October 1988 and was detained under the Immigration Ordinance "pending his removal" from Hong Kong. The deportation order had been made on the basis that his re-entry to Malaysia (of which he claimed to be a citizen) was assured. On 10th December 1988 the applicant applied for the issue of a writ of habeas corpus. At that stage the Malaysian authorities had not accepted his claim to be entitled to return to Malaysia; but he was still detained "pending his removal" there. By 22nd December 1988, when his application was heard, the Malaysian authorities had still not accepted his claim to be entitled to return to Malaysia.

HELD : (1)    The power to detain a person the subject of a deportation order "pending his removal" from Hong Kong could not be lawfully exercised after the expiration of what, in all the circumstances of the case, was a reasonable time in which to effect the detainee's removed;

(2)     In the present case, by 22nd December 1988 such a reasonable time had expired;

(3)     The application accordingly succeeded, and an order should be made for the release of the applicant from detention.

Per curiam : If the facts on which a deportation order is made by the Governor-in-Council are falsified by subsequent events, the case should be placed before the Governor-in-Council again, with a view to that body re-considering the matter and (if thought fit) revoking the deportation order.

1988, No. M.P. 2504 & 2505

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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BETWEEN

Coram: The Hon. Mr. Justice Godfrey in Court

Dates of Hearing: 22nd & 23rd December 1988

Date of Delivery of Reasons for Judgment: 17th January 1989

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J U D G M E N T

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1. On 30th April 1988, Liew Kar-seng ("the Applicant") came to Hong Kong from Malaysia. Shortly afterwards he was charged with an offence under s.18B(1)(b) of the Theft Ordinance, Cap.210 (the details are immaterial). On 27th June 1988, he pleaded guilty to this offence and was accordingly convicted. He was sentenced to 9 months imprisonment; he could have received, from a Court of competent jurisdiction, a sentence of up to 10 years imprisonment for his offence.

2. On 6th October 1988, a paper was put before the Governor-in-Council in support of a proposal for the making of a Deportation Order against the Applicant under section 20(1)(a) of the Immigration Ordinance, Cap.115. The paper included a statement to the effect that the Applicant was born in 1959 in Malaysia and that he, his wife, two children, parents, and four siblings all resided in Malaysia. It also included a categorical statement that the Applicant's re-entry to Malaysia was assured. The Director of Immigration, at that stage, had good reason to believe that that was so.

3. Accordingly, on 21st October 1988, the Governor-in-Council made a Deportation Order against the Applicant. Under that Order, the Applicant was liable to be deported from Hong Kong to Malaysia on the completion of his sentence of imprisonment.

4. Also on 21st October 1988, however, the Commissioner for Malaysia wrote to the Director of Immigration about the Applicant, indicating (for the first time) that Malaysia did not accept the Applicant as a Malaysian citizen, and stressing that the Applicant was not regarded as eligible to be issued with any form of travel document to return to Malaysia.

5. By 31st October 1988, the Applicant had completed his sentence (allowance being made for remission of sentence for good conduct). That date, the day for his release from his sentence of imprisonment, came and went, without the Applicant's release; for at that stage, the Applicant was a person in respect of whom a Deportation Order was in force and accordingly, the Secretary for Security had power (which he exercised), under s.32(3) of the Immigration Ordinance, to detain the Applicant pending his removal (my emphasis) from Hong Kong.

6. On 9th November 1988, the Commissioner confirmed to the Applicant's solicitors what he had told the Director of Immigration, and said that he was referring the Applicant's case to immigration authorities in Malaysia.

7. On 24th November 1988, the Director of Immigration told his correspondent in Malaysia that, pending the execution of the Deportation Order, the Applicant "would be detained until his re-entry to Malaysia is assured".

8. On 10th December 1988, the Applicant applied for the issue of a writ of Habeas Corpus and for a judicial review of the decision to deport him. He was given leave to move the Court for appropriate relief. The hearing was fixed for 22nd December 1988.

9. On 14th December 1988, the Director of Immigration told his correspondent in Malaysia that the Malaysian authorities had advised, informally, that the Applicant was not a Malaysian citizen.

10. On 19th December 1988, the Acting Political Adviser made an attempt to persuade the Commissioner for Malaysia to agree to the Applicant's return to Malaysia; and, on 20th December 1988, a senior officer of the Department of Immigration deposed that "it is anticipated that this approach will be successful. However if it is not the Applicant will be physically returned to Malaysia". That does not mean, as I understand it, that it is or ever has been the intention of the Hong Kong Government to force the Government of Malaysia to accept the Applicant. It means that the Director of Immigration intended to put the Applicant on a plane to Malaysia as he has power to do under s.25 of the Immigration Ordinance) and to hope for the best. This is unsatisfactory. There would be no sense in putting the Applicant on a plane for Malaysia, in the absence of any reasonable prospect of the Malaysian authorities accepting him. What is the right answer to the problem?

11. I start by examining the words "pending his removal" which I have already emphasised and which are crucial to the proper exercise of the power to detain the Applicant.

12. A power to detain a person who is the subject of a Deportation Order "pending his removal" from Hong Kong means just that. If the authorities say: "We will not remove the detainee" or "We cannot remove the detainee" or "Heaven knows when we will be able to remove the detainee" (compare the observations of Mr. Justice Harman in Smith v. Hamilton [1951] Ch 174, at p.182) then, in my judgment, they cease to hold the detainee "pending his removal" and the Court can and should intervene to secure his release from detention.

13. But if the authorities say "We are sorry; we cannot remove you just at the moment but we are doing our best to do so" then, in my judgment, they continue to hold the detainee "pending his removal"; and the Court cannot and should not intervene unless it considers that there is no real prospect of the authorities ever succeeding within what, in all the circumstances of the case, the Court considers a reasonable time, in deporting the detainee. It will occasionally happen that the best that the authorities can do is simply not good enough. If, after what, in all the circumstances of the case, is a reasonable time, the suthorities have tried their best and failed, the matter cannot be allowed to rest there; for otherwise the detainee could remain in detention indefinitely, even for the whole of the rest of his life. No civilized system of jurisprudence could permit that. The power of detention is given to the immigration authorities only in order to enable the machinery of deportation to be carried out; and (like Mr. Justice Woolf in R v. Governor of Durham Prison, ex parte Singh [1984] 1 All ER 983) I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose.

14. In my judgment, 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. It is not in fact contended, in the present case, on behalf of the immigration authorities, that there are no limits to the powers conferred by the Immigration Ordinance to detain a person in respect of whom a Deportation Order is in force "pending his removal" from Hong Kong; and Counsel for the immigration authorities was, I think, disposed to accept the proposition that the continued detention of a person in respect of whom a Deportation Order is in force cannot be justified after the expiration of what, in all the circumstances of the case, was a reasonable time in which to execute the Deportation Order.

16. In the instant case, the hopes of the immigration authorities that the Government of Malaysia will accept the return of the Applicant to Malaysia have not been fulfilled; and I have come to the conclusion, on the evidence, that there is no reasonable prospect that they ever will be. The only honest answer that could be given, in the instant case, to the question: "When will you be able to remove the Applicant to Malaysia?" is "Heaven only knows". That being so, I find that, by 22nd December 1988, in continuing to hold the Applicant in detention purportedly "pending his removal" from Hong Kong, the immigration authorities were acting in excess of the powers conferred on them by s.32(3) of the Immigration Ordinance.

17. On 22nd December 1988, the Applicant came before me. For the reasons set out in this judgment, I decided, on 23rd December 1988, that his application for Habeas Corpus should succeed, and that he should be released from detention immediately. His continued detention was unlawful.

18. The Governor-in-Council must be able to revoke a Deportation Order made on erroneous assumptions of fact. When the facts on the basis of which the Deportation Order was made turn out to be incorrect, the immigration authorities should, in my judgment, then put the matter before the Governor-in-Council again, with a view to a re-consideration by that body of the original decision to make the Deportation Order, in the light of the facts now known. I would hope that, once persuaded that there was no prospect of the Deportation Order being executed within a reasonable time, the Governor-in-Council would decide to revoke it.

19. As for the Applicant, his application for Habeas Corpus has succeeded, and he has now gone free. I decided on 22nd December 1988 that I need not deal with his application for a judicial review of the decision to deport him, and I do not propose to consider this aspect of his case any further.

Representation:

Mr. G.J.X. McCoy instructed by Messrs. Chan & Kong assigned by Director of Legal Aid for the Applicant.

Mr. W.R. Marshall, Deputy Crown Solicitor and Mrs. A Cabrelli, Senior Crown Counsel for the Respondent.