Re Chu Wing-hei

HCMP000168/1971

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

MISCELLANEOUS PROCEEDINGS NO.168 OF 1971

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Coram: Full Court (Rigby, C.J., Huggins & Pickering, JJ.)

Date of Judgment: 6th August, 1971.

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JUDGMENT

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Huggins, J.: Counsel moves for a writ of habeas corpus. The Applicant was arrested by the police on 8th June, 1971. There is uncontradicted evidence that he was not then informed of the reason for his arrest but it is alleged on behalf of the Commissioner of Police that he was taken into custody pursuant to s.50 of the Police Force Ordinance as being a person reasonably suspected of being liable to deportation from the Colony. On 9th June the Governor signed a Warrant for Arrest and Detention under the Deportation of Aliens Ordinance. The warrant was in Form 1 of the Schedule and at the top right hand corner of it appeared the note "[ss. 4(1) and 5(1)]". The operative words were:

On 19th June a Warrant for Further Detention was signed by the Governor in Form 4 of the Schedule. The operative words of that warrant were:

"Whereas CHU Wing Hei is detained ...... by virtue of a warrant issued by me under the provisions of the Deportation of Aliens Ordinance, and Whereas I am satisfied that the said CHU Wing Hei ought to be so detained for a further period in order that further inquiry may be made: Now therefore I do hereby order that the aforesaid warrant issued by me shall be in full force and effect for a period of seven days after the date on which it would save for this warrant expire".

Similar Warrants for Further Detention were signed on 25th June, 2nd July, 8th July, 16th July, 24th July and (so it is agreed, although this is not in evidence) on 29th July. At the top right hand corner of each warrant appeared the note "(s.5(2))". On 3rd August a Deportation Order was made by the Governor in Council in the following terms:

1. On 2nd July the Commissioner of Police stated in a letter that the Applicant was detained in police custody pursuant to a warrant issued under s.5(1) of the Deportation of Aliens Ordinance. An affidavit sworn by a Senior Inspector of Police on 29th July alleged that the Applicant had been held in his custody since 9th June "under and by virtue of warrants of Detention issued by the Governor of Hong Kong pursuant to ss.4(1) and 5(2) of the ... Deportation of Aliens Ordinance". In a corrective affidavit he alleged that "the said warrant" was in fact issued pursuant to s.5(1). The effect of a Warrant for Further Detention whether issued under s.5(1) or s.5(2) is to extend the original warrant, so that "the said warrant" would refer (correctly) to the warrant dated 9th June.

2. On or about 9th July an application was made to the Police for bail, but the application was refused on the ground that the Commissioner of Police had no authority to grant bail "as the arrest was made under s.3(1)(c) of the ... Ordinance dealing with summary procedure whereas s.4(9) of the said Ordinance deals with arrest for the purpose of enquiry only."

3. The Deportation Order was served on the Applicant on 3rd August (the day before this application was due to be heard) and thereafter the Commissioner of Police decided that the Applicant should be kept in custody pending his departure. He states the ground of that decision to be that -

There is no evidence that either the decision that he should be kept in custody or the reasons for that decision have been communicated to the Applicant. The Solicitor-General expressly disclaimed any attempt to argue that service of the affidavit of the Commissioner of Police upon the Applicant's solicitor constituted notice to the Applicant of the decision.

4. The present application is made pursuant to leave granted on 20th July.

5. The principal contention on behalf of the Applicant is that upon the expiry of fourteen days from 9th June the warrant of that date ceased to have effect because the subsequent Warrants for Further Detention were invalid. To understand this contention it is necessary to set out the material parts of the Ordinance. Sub-sections (1) and (2) of s.3 read:

Sub-section (1) provides what is known as "the summary procedure" and sub-s.(2) has reference to "the long procedure". Where the long procedure is to be followed the Ordinance makes provision under s.4 for the holding of an inquiry. It is common ground that the long procedure has been temporarily modified by virtue of the Emergency (Deportation and Detention) Regulations 1962, but even under the modified long procedure bail can be granted inter alios by the Commissioner of Police whereas if the summary procedure is adopted no provision is made for bail. Section 4 prescribes Form 1 as the form to be used where a person is to be arrested and detained under the long procedure. Section 5 then provides:

6. Counsel for the Applicant attacks the validity of the Warrants for Further Detention in two ways. First he submits that the original warrant (that dated 9th June) was issued under the summary procedure and that the subsequent warrants were not appropriate for the extension of a warrant under that procedure. Secondly he says that if, as he submits was the fact, the original warrant was issued under s.4 in pursuance of the long procedure then the Governor had no power at all to grant any extension.

7. On the affidavits it was by no means clear, in the opinion of this Court, under what provision the original warrant was issued. Form 1 is, under s.5(1), prescribed whichever procedure is adopted. The Solicitor-General submits that the statement in the warrant that "it has been made to appear to (the Commissioner of Police) that there are reasonable grounds for inquiry as to whether (the person named) should be deported" are as consistent with the summary procedure as with the long procedure. If that be so, then although it is so prescribed we cannot but think that the use of the same form is likely to cause confusion and puts the person named in the warrant at an unfair disadvantage: it leaves him in custody but with no indication of the basis of, and reason for, his continued detention. If, on the other hand, - and we think this is the true position - the summary procedure is appropriate only where the Governor has made up his mind to deport the person named and where, therefore, no further "inquiry" is necessary, then the form is positively misleading. We think this is the true position because s.3(1) clearly only contemplates that the summary procedure will be used where (a) the Governor in Council is already satisfied that the person named has been deported or banished from one of the specified territories, (b) where the person named has been convicted in the Colony of an offence or (c) where the Governor in Council has already made up his mind that it would be conducive to the public good to make summarily a deportation order against the person named. That being so no further inquiry can be necessary "as to whether (the person named) should be deported", the words appearing in Form 1: any such inquiry must be made before the summary procedure is adopted. Nevertheless as I have said, this form is prescribed and we cannot properly criticise its use in the present case whichever procedure was being adopted nor can any inference be made from its use as to which procedure it was intended to adopt.

8. In the circumstances we allowed oral evidence to be given of the procedure which was adopted and it is now clear from that evidence that the original warrant was issued pursuant to the summary procedure. It follows that the Governor had power under s.5(2) to extend that warrant and it only remains to decide whether he effectively did so. Once again counsel for the Applicant argues that the words of the form used (Form 4) were in appropriate in the circumstances of this case, since they stated that the Governor was satisfied the Applicant ought to be detained for a further period "in order that further inquiry may be made". He argues that those words are appropriate to a case where the long procedure has been adopted but inappropriate where the summary procedure has been adopted because no further inquiry is then required. Putting it in another way, he submits that where Form 4 is to be used for the extension of a warrant issued under the summary procedure the power given by s.5(2) to vary the form must be exercised and that the variation should include a reference to the necessity for further detention "in order that the proceedings may be completed", those being the words in s.5(1) (which authorises the use of Form 1 in cases under the summary procedure). Again, we think that such variation ought to be made, but the question arises whether failure to make such variation invalidates the Warrants for Further Detention in the present case. On behalf of the Applicant it is, I think, contended that, where the reason given in the recitals in a warrant for the issue of the warrant would not in the circumstances justify the issue of a warrant, any warrant which is in fact issued must be invalid although a sufficient reason for the issue of the warrant may have existed. The Solicitor-General, having founded his argument entirely upon the submission that further inquiry was as necessary where the summary procedure was adopted as where the long procedure was adopted, did not seek to argue that the warrant would be valid despite a mis-recital. We are satisfied that the Warrants for Further Dentention were invalid because they stated as the purpose of the Applicant's continued detention the making of further inquiry. As we have already indicated in relation to Form 1, the summary procedure may not be used where further "inquiry" is necessary: the only justification for further detention under the summary procedure is the completion of the proceedings. That means, for example, that if there is no transport immediately available to the deportee's own country or if the execution of the Deportation Order is not immediately possible because he is unfit to travel or has not been able to satisfy the health requirements for the journey, the Governor may extend the Warrant for Arrest and Detention until such impediment has been overcome. Contrary to the argument of the Solicitor-General no further inquiry "as to whether (the deportee) should be deported" is, ex hypothesi, necessary and any attempt to detain a deportee under the summary procedure for the purpose of inquiry into his activities (whether directed to him or to any other person) would be illegal. We emphasise that the only consideration which saves the original warrant in the present case is that s.5(1) allows the use of Form 1 without variation while s.5(2) expressly contemplates that Form 4 will be varied if it is inappropriate as it stands.

9. The Solicitor-General contends that even if the Warrants for Further Detention were invalid the present application should be dismissed because, he says, it is clear that since the making of the Deportation Order on 3rd August the Applicant has been lawfully detained. In our view that contention cannot succeed. The Deportation Order itself does not authorise the detention of the Applicant: a person under order of deportation may be allowed to remain at liberty up to the time he is required to leave the Colony. Only if the Commissioner of Police decides under s.8(2) that he must be detained is his detention lawful. Section 8(2) is in the following terms

"          If in the opinion of the Commissioner of Police it is necessary that such person should not remain at large pending the departure of such person from the Colony, such person, if on bail or otherwise at large may then be taken into custody, and if already in custody may be kept in custody, and shall be in either case deemed to be under lawful arrest and in lawful custody until he leaves the Colony or until the Commissioner of Police sees fit to order his prior release."

The Commissioner is of opinion that the Applicant should not remain at large but, as I have said, the Applicant was not informed that he was now detained pursuant to such a such decision. The Solicitor-General then said that it is unnecessary that the Applicant should be so informed. This, as it seems to us, - and the Solicitor-General was not in argument disposed to object to my choice of words - is tantamount to outlawry: although a person suspected of the most serious offence may not be arrested unless he is told at the time the reason for his arrest it is said that a person arrested pursuant to s.8(2) has no right to be informed why he is being arrested. The Solicitor-General agrees that as a matter of convenience he ought to be told (lest, for example, he assume that he is being wrongly arrested and try to escape), but he submits that failure so to tell him does not invalidate the arrest. Similarly he submits that where the deportee is already in custody it matters not whether the previous custody is lawful or whether he is told of the new ground for his detention. It is unnecessary for us to decide whether the lawfulness or unlawfulness of previous custody is material and therefore whether the law is as stated in CHIU Chun-keng v. Commissioner of Prisons⁽¹⁾ or as stated in Reg. v. Kulynycz⁽²⁾: it is sufficient for the purposes of this case that in our view even a deportee is entitled to be told of the ground alleged to justify his detention. The Solicitor-General relies upon a dictum in Reg. v. The Governor of Brixton, ex parte Soblen⁽³⁾ at p.301:

"It seems clear ... that by international law any country is entitled to expel an alien if his presence is for any reason obnoxious to it; and as incidental to this right, it can arrest him, detain him, and put him on board a ship bound for his own country."

We do not dissent from that, but we find in it nothing to support the view that a deportee can in England or in Hong Kong be arrested or detained without his being told the reason for his arrest or detention.

10. The conclusion we have come to is that while the Applicant was lawfully detained under the original warrant that warrant was not lawfully extended and that although the Applicant could have been lawfully detained as from 3rd August he has not been so lawfully detained. It follows that in our view the application succeeds and the Applicant is entitled to be released. There will accordingly be an order for his discharge forthwith and it is unnecessary to consider the arguments addressed to us on the question of bail.

11. Having commented on the wording of Forms 1 and 4 we would further express the view that Form 7 (the form of Deportation Order under the summary procedure) leaves much to be desired. Few deportees are likely to be acquainted with the provisions of the various subsections of s.3 and, unless they are, they will not know the basis of the order made against them. In our view the form should require that the precise ground upon which the deportation order has been made be set out clearly in the words of the relevant paragraph of s.3(1). Moreover, the reference to "discharge from prison", although appropriate where the deportee is presently serving a term of imprisonment and he is being deported under para. (b) of s.3(1), is likely in other cases to be misunderstood.

6th August, 1971.

Representation:

(1) (1950) 34 H.K.L.R. 65

(2) 1970 3 W.L.R. 1029

(3) 1963 2 Q.B. 243