Re Cheung Kam Ping

HCMP000634/1978

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Coram: Li, J. in Chambers

Date of Judgment: 19th December, 1978

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JUDGMENT

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1. This is a preliminary point taken by learned counsel for the Crown on an application for a Writ of Habeas Corpus by one CHEUNG KAM PING whom I shall refer to as the Applicant. The Applicant was born in Macau on 23rd April, 1949 but there is some slight dispute that he was, in fact, born on 23rd April, 1950. This difference does not affect the issue. He lived in Macau until 21st July, 1970 when he came to Hong Kong by an illegal means. In other words, he stole into Hong Kong and landed illegally. He lived in Hong Kong since then, found a job and made some advancement in life. He met a young lady whom he intended to marry in 1979. In April, 1978, on legal advice, he applied to the Immigration Department for an identity card with the obvious intention to regularise his position as a resident in Hong Kong. In that process he disclosed his illegal entry. On 1st September a removal order was made by His Excellency the Governor pursuant to the provisions of Section 19 subsection (1)(B) of the Immigration Ordinance. On On 11th October, 1978, the Applicant was arrested and detained for a short while. Notification of Intention to Remove him was served. On the same day the Applicant was released on bail on the condition of a surety of $20,000 and to report to the Immigration Department three times a week. Subsequently, he petitioned His Excellency the Governor to rescind the Removal Order without success. On 3rd November he was informed of the refusal and he immediately applied, ex parte, to this Court for leave to apply for Writ of Habeas Corpus before the full bench. On the same day he also caused a Writ to be issued to ask for certain declarations that he is entitled to live in Hong Kong and that he is a Chinese resident. The ex parte application was heard before me and bail was then extended on that day until the determination of his application before the full Court. Subsequently, by consent between the Applicant and the Crown, this application is transferred to a Court of a single Judge. This matter is before me now. However, before I am asked to hear arguments on the merit of this case a preliminary point is taken by learned counsel for the Crown. His contention is that the application is misconceived because the Applicant is not in custody in a sense that he is detained within a building or some other institution. In short, the contention is that as the Applicant is released on bail he is not in custody and the Writ of Habeas Corpus would not run against the Director of Immigration who has no custody of the body of the Applicant. English authorities are cited in support of this contention. The first one is the Queen v. Spilsbury reported in 1898 2 Queen's Bench 615. In that case the applicant was about to be removed under the Fugitive Offenders Act 1881. He applied for a Writ of Habeas Corpus. He also applied for an Order to admit him to bail. The learned Chief Justice, Lord Russell as he then was, said at page 621:-

"Mr. Sutton was counsel for the Crown put this point: supposing a defendant, being committed by the magistrate, is admitted to bail by this Court, how is he to apply for a habeas corpus seeing that he is already at large? I think there is really nothing in the point. He could apply for a habeas corpus before he was released on bail; but the language of s.5 of the Act is conclusive. That section provides that "where the magistrate commits the fugitive to prison he shall inform the fugitive that he will not be surrendered until after the expiration of fifteen days, and that he has a right to apply for a writ of habeas corpus, or other like process." These concluding words shew that, if the fugitive is committed to prison, he may apply for a writ of habeas corpus, or other like process, on grounds which go to the validity of the order for his return, and he would have the same right to apply if he were released on bail. Another point was taken, which raises a little more difficulty. It was suggested that if a man were admitted to bail, and he went away and declined to surrender, there would be no remedy except by estreating the recognizances, which would not have the effect of carrying out the intention of the Act; but in such a case it cannot be denied that the proceedings might be commenced de novo, and a fresh warrant issued, on which the accused could be arrested; this might no doubt cause delay, but the difficulty would not be insuperable. For these reasons, having carefully considered the different sections of the Act, and admitting that some difficulty might possibly arise in working out the procedure, I have come to the conclusion that the provisions of the statute are consistent with the recognition of the power of this Court to admit to bail in such cases as the present. This inherent power to admit to bail is historical, and has long been exercised by the Court, and if the Legislature had meant to curtail or circumscribe this well-known power, their intention would have been carried out by express enactment."

2. The learned Chief Justic in that case found his way out as the applicant applied not only for a writ of Habeas Corpus but also for an extension of bail pending his return so that the validity of the Order could be challenged. It may be said that the dictum referring to jurisdiction in the circumstances as obiter. The next case is to be found in Barnada v Ford reported in 1892 Appeal Cases 326. In that case Lord Watson said that in page 335 as follows:-

"Where it is shewn to the satisfaction of the Court that the person charged with unlawfully detaining a child or adult had de facto ceased to have any custody or control. I am of opinion that the writ ought not to issue. A man who parts with the custody of a child after he is served with the process of the Court, or who evades service in order that he may get rid of such custody, commits a plain contempt, for which he is answerable to the Court."

3. It is contended by learned counsel for the Crown that the words 'control' and 'custody' are synonymous. I am not inclined to think so for reasons which I shall explain later. However, I will come to the third case which is cited in support: In re Amand in 1941 2 King's Bench page 239. A person was arrested by the police as a deserter and he applied to issue for a Writ of Habeas Corpus. Viscount Caldecote, Chief Justice as he then was, said at page 249:-

"He is now on bail, but this makes no difference and we have to deal with the application as if he were still detained in custody. To justify his detention on British soil authority must be found in the law of this country, and the applicant's arrest and detention are, accordingly, said to be warranted by the Allied Forces Act, 1940, and an Order in Council made under that Act."

Counsel for the Crown contends that there was no evidence, in that case, to show whether the application was made while the applicant was on bail or while he was still under detention. Looking at the authorities as such there is some doubt as to the proposition whether a person while on bail may or may not apply for a Writ of Habeas Corpus to issue. In the case of the Queen v Spilsbury the issue was determined and decided on the wording of s.5 of the Fugitive Offenders Act whereas In re Amand the learned Chief Justice said it didn't really matter whether he was on bail or not and the Court would have jurisdiction to determine whether his detention intitially was lawful and under lawful authority. But one must be practical. It is observed that upon arrest the Applicant in the present case was granted bail on the conditions that he would produce surety in the sum of $20,000 and to report three times a week to the Immigration Department. When he was able to comply with these terms, he was certainly released on bail. He was no longer in physical custody of the Immigration authorities. However, can one be said that he is beyond control of the Immigration authorities? Without stretching one's imagination too far one can see that the very moment he fails to report to the Department three times a week he will be re-arrested for breach of those terms and for absconding. In that sense he is very much in control of the authorities concerned. Another situation may arise. Even if it is said that he may not make such an application while he is on bail all he need do is to fail to report to the Immigration Department. He would then have his legal adviser staying by his side day in and day out sleeping in the same room as he does night in and night out waiting for the inevitable moment to come. An officer of the proper authority would come to the Applicant and arrest him. His legal adviser would then have the application ready and say that now my client is in your custody under arrest. I now ask for leave to apply for a Writ of Habeas Corpus and hasten hot foot to a judge in chambers. The same process would then be renewed. For these reasons, I am quite convinced that even when the person is released on bail he is in law, under detention. He was released on bail only on certain conditions. He is very much in control of the proper authorities. For these reasons I rule that the preliminary objection must fail and that the Applicant is now free to argue his case on the merit in this application.

4. While I adjourn this hearing for a short while in order to consider the preliminary point learned Counsel for the Crown as well as learned Counsel for the Applicant came to see me in Chambers. I was given to understand that a writ has been issued against the proper authorities with the view of determining the Applicant's right to stay in the Colony. It has been served on the proper authorities and a hearing date will be set down for the purpose of this hearing. I was asked that should I rule in favour of the Applicant on the preliminary point there might be an application to adjourn this application sine dine pending the determination of the issue raised in the Writ of Summons against the proper authorities. If I should rule against the Applicant in this case on the preliminary point a similar application would be applied for and in addition an application for bail. As I have ruled in favour of the Applicant on the preliminary point I will then invite Counsel to inform me whether Counsel for the Applicant is going to apply for an adjournment to enable the matter to be tried in another Court. In taking this course in inviting Counsel so to inform me I am not trying, indeed, to shirk my duty. If they are willing to proceed with this application I will certainly entertain it. I also appreciate that this application is on affidavit evidence. In the other matter, I am certain the process would be more thorough and there will be evidence heard in Court. There will be discovery and the matter would be more thoroughly aruged on all points. For these reasons I now ask Counsel whether they would wish this application be adjourned or to proceed with the application.

Representation:

Mr. Bleach (C.P. Liu) for Applicant

Mr. R.A. McCallough (Legal Department) for Crown