Re Chan Yuk Chun

HCMP000169/1987

IN THE HIGH COURT

IN THE SUPREME COURT OF JUSTICE

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Coram: Hon. Liu J. in Court

Date of hearing: 26 January 1987

Date of delivery of judgment: 26 January 1987

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JUDGMENT

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1. I need not trouble you, Mr. Strawbridge.

2. The Applicant is now under detention. He was born in China. He went to the Philippines in 1983. He visited China on 25th December 1986 with a travel document which purports to have been issued by the Immigration Authority of the Philippines. After a visit to China, he arrived in Hong Kong on the 29th December last year and he was refused permission to land. The Applicant was detained and charged on the 31st December 1986 under S.42(2) (b) and 42(4) of the Immigration Ordinance. He' is now facing two charges of allegedly using unlawfully obtained travel documents. The Applicant was duly brought before the learned Magistrate. He pleaded not guilty to both charges, applied for bail and was admitted to bail in sum of $10,000. The sum has since been paid. Despite bail having been so granted, the Applicant continued to be detained by Immigration Department.

3. The Applicant felt aggrieved and thereupon applied ex parte for leave in the High Court on 23rd January 1987. On his application for leave, a Writ of Habeas Corpus was issued by the High Court without ordering the release of the Applicant. The Writ so issue was directed to be returnable at 10 a.m. today before this Court. Directions given by learned judge specified, inter alia, service on the Attorney General and the Director of Immigration. Hence, the Writ together with the body of the Applicant was returned today before me.

4. The Return was duly read. The cause of detention is given as an authorization under S.32(1) (a) of the Immigration Ordinance by the Assistant Director of Immigration, dated 31st December 1986.

5. Some confusion was caused by paragraph 1 of the Applicant's affirmation in support, which refers to S.32(1A) of Immigration Ordinance.

6. In the light of the Return the contents of which and the language in which have not been challenged by counsel for the Applicant, it was conceded that the onus fell on the shoulders of the Applicant to show that the authorization for detention was invalid.

7. Counsel's submissions advanced on behalf of the Applicant were, at the inception, fairly wide-ranging, to say the least. Counsel was kind enough to finally specify the complaints of the Applicant on two fronts : First, it was said that the present detention of the Applicant was pursuant to Section 32(1) (a) which authorises the detention of a person for removal under Section 18 of the Immigration Ordinance. Section 18 relates to failure to obtain permission to land. Counsel argued that removal of the Applicant from Hong Kong would be tentamount to his premature removal from the jurisdiction of the court in which he is now facing two charges. Counsel contended that the decision of Director of Immigration so to remove the Applicant would, in effect amount to an unwarranted interference with the legal process and that since his removal could not be legitimate, the authorization for detention of the Applicant for the purpose of such removal could not be valid or lawful.

8. It is true that the Applicant's detention under S.32(1) (a) is pursuant to a decision to have him removed from Hong Kong, but we know not the precise time at which the Director proposes to remove the Applicant. There are at least three possibilities :

9. I posed these possibilities for counsel's consideration on the assumption that the decision to have the Applicant removed could, in circumstances, become intrinsically incompatible with the bail granted to him in the criminal proceedings before the learned Magistrate. With these three possibilities, if not more, I do not share the objection raised by counsel for the Applicant that the criminal proceedings against the Applicant must necessarily be frustrated by the Applicant's detention pursuant to the decision to have him so removed. Counsel's first submission therefore fails.

10. Further, counsel contended that whilst he conceded that the Director or Assistant Director had power to detain under S 32(1) (a), in the circumstances of the instant case, the discretion so to invoke his power had been wrongly exercised.

11. The Court was urged to override such wrongful exercise of discretion by way of supervision. The Applicant is obliged to adhere to the particulars in his affirmation. Counsel relied on paragraphs 1 and 10 in support of the Applicant's objection to the alleged wrongful exercise of discretion. Paragraph 1 even refers to a wrong sub-section. Paragraph 10 merely asserts that the detention is unlawful. None of the contents in paragraph 10 is specific enough to support the Applicant's present complaint of wrongful exercise of discretion, particularly under another sub-section 32(1)(a).

12. Even if I were to treat the Applicant as having sufficiently disclosed this limb of counsel's submissions, there would be nothing in the affirmation to enable me to ascertain what the real complaint is. It does not particularize as to how the discretion of the Assistant Director is said to have been improperly exercised. I have been invited to draw inferences from the material disclosed. No such inferences may, in my opinion, be so drawn. An application under Order 54 should not be left supported by oblique inferences from factual circumstances, which the court is invited to draw. Even if I were permitted here to examine the discretion of the Assistant Director, there would be absolutely no evidence to suggest that such discretion had been wrongly exercised.

13. Those being the only two specific grounds on which the Applicant relies, I can find no justification for quashing the Return made by the Assistant Director of Immigration as suggested by counsel for the Applicant.

14. At the conclusion, I was invited by Mr. Strawbridge to note that the Applicant's affirmation contains mere allegations. I noted accordingly.

Representation:

N.J. Strawbridge of the Attorney General's Chambers for the Respondent

Cheng Huan & Jason Pow instructed by M/S. William Au & Co. for the Applicant