Re Ho Wing Man

HCMP003036/1984

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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In the Matter of HO Wing-Man and in the Matter of an application
for a Writ of Habeas Corpus ad Subjiciendum

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Coram: The Hon. Mr. Justice Mantell in Court

Date of Hearing: 14 November 1984

Date of Delivery of Judgment: 16 November 1984

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JUDGMENT

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1. This matter comes before me on notice of motion as the return of a Writ of Habeas Corpus ad Subjiciendum by which the Director of Immigration shows cause for the detention of HO Wing-man. The return to the writ states that HO Wing-man is presently ordered to be detained under the authority of the Secretary for Security as conferred by Section 32(2A)b of the Immigration Ordinance. No point has been taken on the form of the return to the writ, nor as to the fact that it has been made by the Director of Immigration or his deputy.

2. HO Wing-Man was released on bail by Order of Mr. Justice Jackson-Lipkin on the 5th of November this year which bail was enlarged by me without opposition from the Crown on the 14th of November. The order of detention expires today. Section 32(2A) of the Immigration Ordinance reads as follows:-

"A person may be detained pending the decision of the Director of Immigration or Deputy Director of Immigration as to whether or not a removal order should be made under Section 19 subsection lb in respect of that person

(a)	for not more than seven days under the authority of the Director of Immigration or Deputy Director of Immigration;
(b)	for not more than a further twenty-one days under the authority of the Secretary for Security and
(c)	where enquiries for the purpose of such decision have not been completed or a further period of twenty-one days under the authority of the Secretary for Security in addition to the period provided under paragraphs (a) and (b)."

The relevant portions of Section 19 subsection (1)(b)(ii) provide that a removal order may be made requiring a person to leave Hong Kong, if it appears to the Director of Immigration that that person has landed in Hong Kong unlawfully.

3. From reading the affirmation of Lee Shui Kee filed on the 13th November 1984 it appears that the applicant applied for a Hong Kong Identity Permit in 1981 which was issued on the 15th September 1981. The application was supported by a declaration of identity. There was good reason to suspect that this last document was forged and that it was untrue, as stated, that the applicant had come in from Macau in 1973 on an Entry-Permit issued in Hong Kong. For one thing no record exists of any such Permit ever having been issued. Although these suspicions existed from about November 1981, the applicant was not traced until 15th October 1984 when she applied for a Re-Entry Permit. She was arrested and first detained under Section 26(b) of the Immigration Ordinance. Subsequently that detention was enlarged by successive periods of seven and twenty-one days as provided for under Section 32(2A)(a) and (b).

4. The substantial argument is that Section 32(2A) (a) and (b) only gives the power to detain if one or more of the grounds for removal exist under section 19(1)b and the exercise of the discretion implicit in the use of the word 'should' and the power to detain are contingent upon the existence of such grounds. In this case, up to now at any rate, the Director of Immigration does not put this case any higher than saying that he has reason to suspect the existence of a ground for removal, namely that the applicant entered Hong Kong illegally: the grounds for suspicison being that because the declaration of identity was a forged document, it is to be inferred that the applicant had not been within Hong Kong over the period which she claims to have been here, and likewise that she had not entered initially with benefit of an Entry Permit. That ground for suspicion, of course, rests upon the eventual demonstration, if it be demonstrated, that the document of identity was indeed forged. Therefore, the argument proceeds, it cannot be said that it appeared to the Director of Immigration, that HO Wing-man has entered illegally, and therefore there was no power to detain.

5. The argument is met with the contention that construed liberally Section 32(2A) covers the case where enquiries are continuing to the end of establishing such a ground for removal. Reference is made to Section 32(2A)(c) which allows detention to be extended for a further twenty-one days "where enquiries for the purpose of such decision have not been completed". If that were all, I should be inclined to say that the applicant's contention is right. I cannot read Section 32(2A) as conferring the power to detain on no more substantial basis than, say, a reason to suspect a ground for removal. I take the reference to enquiries in Paragraph (2A)(c) to mean enquiries affecting the exercise of the discretion as to whether or not a removal order should or should not be made. I was not referred by Counsel on either side, however, to Section 32(1A). It reads:-

"Where consideration is being given to applying for or making a removal order in respect of a person, that person may be detained as provided for in subsection (2) or (2a), whichever is appropriate in the particular case."

That section seems to me to precisely cover the circumstances of the present cases. By reason of it, the applicant's argument must fail.

6. There is a second contention put forward namely that by virtue of seven years' ordinary residence and her Chinese race, the applicant cannot be removed as being a person entitled to land in Hong Kong. But ordinary residence means ordinary and lawful residence (see the Attorney General v. Cheung Kam Ping)⁽¹⁾ and lawfulness in turn depends upon whether or not she entered legally. Unresolved as that question may be, it does not go to the lawfulness or otherwise of her detention. The motion is dismissed. No order as to costs.

(1) [1980] H.K.L.R. 602

Representation:

Paul Tse instructed by James C.M. Tsang & Co. for Applicant.

Peter Graham, Crown Counsel for Attorney General - Respondent.