Lam Wang-shun v. Attorney General
Read the full judgment text of HCA 3067/1975 on BabelCite. This High Court CFI judgment was delivered on 19 February 1979.
1. The plaintiff is or was an illegal immigrant to this Colony. In August of 1975 a removal order was made against him under section 19(1)(b) of the Immigration Ordinance. He seeks by these proceedings to challenge the validity of that order. Section 19(1)(b) provides, so far as this case is concerned, that the Governor may make a removal order against a person, requiring him to leave Hong Kong, if it appears to the Governor that such person is a person who has committed or is committing an offe
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HCA003067/1975
----------------- Coram: Cons, J. Date of Judgment: 19 February 1979 ----------------- JUDGMENT ----------------- 1. The plaintiff is or was an illegal immigrant to this Colony. In August of 1975 a removal order was made against him under section 19(1)(b) of the Immigration Ordinance. He seeks by these proceedings to challenge the validity of that order. Section 19(1)(b) provides, so far as this case is concerned, that the Governor may make a removal order against a person, requiring him to leave Hong Kong, if it appears to the Governor that such person is a person who has committed or is committing an offence under section 38(1), whether or not that person has been convicted of that offence. Section 38 says this:-
It is clear that the plaintiff did not commit an offence against paragraph (a). He arrived here in 1969 and this Ordinance had not then been enacted. There was of course another ordinance then in force. It was the now repealed Immigration (Control and Offences) Ordinance originally passed in 1958. 2. The plaintiff, on his arrival, committed offences against section 3(1)(a) and (b) of that ordinance which is in turn not too dissimilar from the present. Counsel for the Crown has sought to import the terms of that previous ordinance into section 38 by reference to section 2(2) of the present. This says:-
I am unable to accept that submission. It is straining language too far to say that paragraph (a) is a reference to unlawful landing. Likewise the plaintiff did not on his arrival commit an offence against paragraph (b), and the case of The Attorney General v. Lo Pui Ling(1) is authority that paragraph (b) does not create a continuing offence but an offence that is committed, if at all, only on the day of arrival in Hong Kong. However, the operation of section 19(1)(b) is not limited to section 38(1). Section 67 provides for transitional provisions and the relevant provision can be found in paragraph 11 of the second schedule. This says:-
and I miss out the next few lines which are not relevant,
Section 43 provided that upon conviction under the ordinance an offender might also be expelled by order of the Governor. That was the nearest section to the present 19(1). Counsel for the plaintiff criticizes these provisions as retrospective in that by virtue of the limitation section under the old ordinance, a person who arrived here and managed to stay undetected for twelve months or more acquired a protective status. He could not be prosecuted and therefore could not be expelled. To rely now upon paragraph 11 would deprive him of that status. Counsel also relied upon the fact that these provisions no longer appear in the revised edition of our laws. They had been removed apparently as being expired, become spent or having had their effect. That removal as such, however, does not affect their validity and, in my view, they are still effective. I appreciate that they are called transitional provisions but no time limit is imposed and as I see it, so long as the effect of Lo Pui Ling's case is not overruled or removed by legislation, there will be a long period of transition. 3. The wording of that paragraph 11 is express and clear. It catches the plaintiff. He did contravene section 3 of the old ordinance and no order has been made under section 43(4) of that ordinance. But the matter does not end there. If it did, all those persons - and there must by now be many thousands of them whose initial entry to the Colony was illegal but who subsequently obtained the official permission to remain - would be at the risk of arbitrary removal for the rest of their lives. That would be a very real and constant threat to their personal security. I would not believe that to be the true intention of the legislature without its expression in the clearest of possible words. In their absence, I take the true object of the two sections with which I am concerned to be to deal with those who have been refused permission or those who for some reason of their own have not sought permission, possibly in the awareness that it would have been refused if they had. The sections are not aimed at persons who subsequently obtain permission. In that circumstance a permission must be taken to relate back to the time of entry. Alternatively, the immigrant may be deemed not to have landed like his counterpart in section 38(2) who arrives here having made some special prior arrangement with the Director. Counsel for the plaintiff based this part of his argument to some extent upon estoppel. I prefer to rely solely upon the true construction of the ordinance. I am not persuaded that estoppel can restrain the exercise of a statutory discretion and apart from that I have some doubt whether the plaintiff has established detriment to himself since the material time. 4. The question then is "Has the plaintiff at any time been given permission to remain?" In March 1971, he obtained an Entry Permit, and later in the same year a Re-entry Permit and a Certificate of Identity. However, these did not show a true permission for the issue was based upon the information supplied by the plaintiff, inter alia, that he had come to Hong Kong from Mainland China and that at that time he had already been here for some ten years. That information was deliberately false. The plaintiff says that at the end of 1972 he was called back to the Immigration Department and interviewed there by an officer who said that they had received information that the plaintiff in fact had come from Taiwan. The plaintiff admitted this and also that in 1971 he had only been here in Hong Kong for some two years and that his identity card and travel documents which he took with him to the interview were returned to him at the end of the interview with the words. "It is all right now, you can leave." The Crown does not accept that this interview ever took place. It has no record of it anywhere in its files. However, I am prepared to accept the fact of the interview and that an admission was made by the plaintiff that he came here not from China in 1960 but from Taiwan in 1969. If that were not so, I think it unlikely that at the initial interview in 1974 the plaintiff would, at the very beginning of the interview and without any prompting from the interviewing officer and without any intimation of what the Immigration authorities suspected, have volunteered a similar admission, but in view of the plaintiff's obvious propensity to say all right, whatever he thinks most suited to the particular occasion, I am not prepared to accept anything further. There is no dispute that the plaintiff was interviewed in May 1974. We have a full record in the document which is at page 107 in the agreed bundle. The plaintiff was then frank as to the true facts of his arrival, although he made an unconvincing attempt to gloss over his previous dishonesty. Again the plaintiff had taken his identity card and travel documents to the interview although by that time he had lost the original Entry Permit. This time the documents were retained by the Immigration officer and they were kept for approximately six months. During this period, one must assume that the Immigration Department made such enquiries as it thought fit and deliberated upon the results of those enquiries and upon what the plaintiff had admitted. The Department was then in full possession of the true facts. It returned all the documents to the plaintiff on or about the 4th of October. It made no comment. It imposed no condition. To my mind this can only indicate that at that stage the Director was giving the plaintiff authority to remain and in that case, adopting the construction I have placed upon the relevant sections of the Ordinance, there was no jurisdiction subsequently to make a removal order. 5. It was feared by counsel for the plaintiff that section 19(4) might prove a stumbling-block to his case. That subsection provides:-
I do not see any difficulty in this respect. If a removal order ought not to have been made, it ought not to have any invalidating effect. In view of the conclusion to which I have just come, it is not necessary for me to deal with an alternative argument put forward on the basis of natural justice. 6. The plaintiff has asked for a variety of declarations. I think it is sufficient to say that in the circumstances of this case, section 19(1)(b) does not give jurisdiction to make a removal order against the plaintiff and a declaration is granted accordingly. The plaintiff is to have the costs of these proceedings. Representation: Mr. A. Allman-Brown (Haldane & Co.) for plaintiff. Mr. G. Fuller and Mr. W. Leung, counsel for the Crown for defendant. (1) [1975] H.K.L.R. 141 |