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Cheung Kam Ping v. The Attorney General

Read the full judgment text of HCA 3885/1978 on BabelCite. This High Court CFI judgment was delivered on 11 April 1980.

1. The Plaintiff claims against the Attorney General as representing the Crown for declarations -

Case No.HCA 3885/1978
Court
High Court CFI
Date11 Apr 1980
Judge—
Case Document
100%Judiciary

HCA003885/1978

IN THE SUPREME COURT OF HONG KONG

High Court Action No. 3885 of 1978

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BETWEEN    
  Cheung Kam Ping Plaintiff
  and  
  The Attorney General Defendant

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Coram: Mr Commissioner Gittins, Q.C.

Date of Judgment: 11 April 1980

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JUDGMENT

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1. The Plaintiff claims against the Attorney General as representing the Crown for declarations -

  (1) That he is a Chinese resident within the meaning of the Immigration Ordinance, Cap. 11  
  (2) That a Removal Order dated 1st September 1978 is ultra vires -  
  (a) His Excellency the Governor,  
  (b) The Principal Assistant Secretary (Security) of the Hong Kong Government;  

2. The other 2 declarations claimed in the Statement of Claim were abandoned at the hearing.

3. No witness was called, all the facts being agreed.

4. Relevant facts are -

5. The Plaintiff was born in Macau on 23/4/49 and is of Chinese race.

6. He arrived in Hong Kong illegally aboard a fishing junk on 31/7/70.

7. He has resided in Hong Kong ever since, and from November 1970 he has been employed with his present employer Artland Porcelain Ware Company, and where he now holds the position of head of the design department.

8. On 25/4/78 he applied for a Hong Kong Identity Card. This caused inquiries to be instituted by the Immigration Department and on 1/9/78 a Removal Order was made against him under Section 19(1)(b) of the Immigration Ordinance.

9. He was arrested on 11/10/78, but was released on bail.

10. On 14/10/78 the Plaintiff petitioned the Governor in Council for the revocation of the Removal Order, but this was refused.

11. On 19/12/78 Li, J. granted the Plaintiff leave to apply for a Writ of Habeas Corpus ad subjiciendum, and adjourned the application until the determination of the present action.

12. Relevant sections of Cap. 115 are as follows:-

"19(1) Subject to subsection (2), 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 -

................................................................

  (b) a person who has committed or is committing an offence under section 38(1) or section 41, whether or not he has been convicted of that offence;  

................................................................."

  (2) A removal order shall not be made under subsection (1)(b) against a person who has the right to land in Hong Kong by virtue of section 8(1).  
  .........................................................."

"38(1) ....................... a person who -

  (a) being a person who by virtue of section 7 may not land in Hong Kong without the permission of an immigration officer, lands in Hong Kong without such permission; or  
  (b) having landed in Hong Kong unlawfully, remains in Hong Kong without the authority of the Director,  

shall be guilty of an offence and shall be liable on conviction to a fine of $5,000 and to imprisonment for 3 years."

"7. A person may not land in Hong Kong without the permission of an immigration officer unless -

  (a) he has the right to land in Hong Kong by virtue of section 8;  

.........................................................."

"8(1) The following persons shall have the right to land in Hong Kong, that is to say -

  (c) Chinese residents ................................."  

"2(1).............................

'Chinese resident' means an immigrant who -

  (a) is wholly or partly of Chinese race; and  
  (b) has at any time been ordinarily resident in Hong Kong for a continuous period of not less than 7 years; ......................"  

13. As to the contention that the Plaintiff is a "Chinese resident" within the meaning of the Ordinance and thus exempt from a removal order under Section 38(2), the Ordinance in Section 2(1) defines "Chinese resident" as Chinese immigrant who has been ordinarily resident in Hong Kong for a continuous period of not less than 7 years.

14. The Plaintiff is a Chinese immigrant and he has lived continuously in Hong Kong for upwards of 7 years. But has he been "ordinarily resident" here during his stay?

15. In In re Abdul Manan (1971) 1 W.L.R. 859 the Court of Appeal was concerned with the interpretation of the Commonwealth Immigrants Act 1968, S. 2(2) which provides -

  " The power to refuse admission shall not ............ be exercised on any occasion in respect of a person who -  
  (a) satisfies an immigration officer that he is ordinarily resident in the United Kingdom or was so resident at any time within the past two years ..............."  

The person involved was a Pakistani seaman who had illegally entered England when he deserted from his ship. Lord Denning, M.R. at 861 said -

  The point turns on the meaning of 'ordinarily resident' in these statutes. If this were an income tax case he would, I expect, be held to be ordinarily resident here. But it is not an income tax case. It is an immigration case. In these statutes 'ordinarily resident' means lawfully ordinarily resident here. The word 'lawfully' is often read into a statute: see, for instance, Adlam v. Law Society (1968) 1 W.L.R. 6. It should be read into these statutes. It is perfectly plain on the facts that Mr. Manan was not lawfully here at all. He was guilty of an offence when he deserted his ship. He continued to be guilty of an offence when he stayed here. He was continuously guilty of an offence under sections 4 and 4A of the Acts of 1962 and 1968. Paragraph 8 (2)(b) of Schedule 1 of the Act makes it plain that, as a deserting seaman who remains here after the ship has left port, he is to be treated as having been refused admission. He can be sent off again - without any time limit - whenever he is picked up and found as a deserting seaman. He certainly does not put himself in any better position by going abroad for a short time - as this man did - and then coming in and presenting himself to the immigration authorities. It is quite plain to me that Mr Manan has never been lawfully resident here; he does not qualify at all for the right which is given those who have been ordinarily resident here."  

16. I think that this authority is applicable to the present case and I hold that the Plaintiff was not ordinarily resident during his stay in Hong Kong within the meaning of Cap. 115.

17. It was argued on behalf of the Plaintiff that when he made his illegal entry into Hong Kong in 1970, the current Immigration Ordinance had not been enacted - it came into effect on 1/4/72 - that it had no retrospective effect, and that under the Immigrants Control Ordinance, Cap. 243 of the 1950 (Griffin) edition of the Laws of Hong Kong there was no provision in respect of Chinese residents.

18. I consider that this argument does not assist the Plaintiff. He claims to be a Chinese resident within Cap. 115 and therefore must invoke this Ordinance. This argument is therefore rejected.

19. I hold that the Plaintiff landed in Hong Kong unlawfully and remained in Hong Kong unlawfully.

20. The other contention of the Plaintiff is that the Removal Order dated 1/9/78 is ultra vires the Governor and the Principal Assistant Secretary (Security). Under Section 19(1)(b) the Governor may make a removal order against a person 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 he has been convicted of that offence. An offence is committed under Section 38(1) where a person who requires the permission of an immigration officer to land in Hong Kong, unlawfully lands in Hong Kong without such permission; or having landed unlawfully, remains in Hong Kong without the authority of the Director of Immigration.

21. I have held that the Plaintiff landed in Hong Kong unlawfully and remained in Hong Kong unlawfully. These acts constitute offences under Section 38(1). However Section 46(2) limits the time for the prosecution of such offences to 3 years from the time when the offences were committed. The offence of landing in Hong Kong unlawfully in 1970 is clearly outside the period during which a prosecution may be brought. As to the offence of remaining in Hong Kong unlawfully, Trainor, J. in the Attorney General v. Lo Pui-ling (1975) H.K.L.R. 141 at 151 said -

"           Section 38(1)(b) refers to two factors; a lawful landing in Hong Kong; and remaining without the authority of the Director of Immigration. It may be implied from that that a person might land in Hong Kong unlawfully but would not commit an offence under paragraph (b) of the subsection if he obtained permission to remain. In my opinion, therefore, it is only when the two elements exist that an offence has been committed; but when they do a complete offence has been established and a matter has arisen in respect of which an information may be laid. One of the elements is the remaining, but I am satisfied that that element is entire the moment it comes into existence. It may grow larger with the passing of time, but that is beside the point.  
            It follows from what I have just said that I do not consider the offence with which the respondents were charged to be a continuing offence. It has always been a matter of policy that lesser offences should be disposed of before they became stale. It has on the other hand long been the practice because of social policy to keep other offences fresh to ensure that people will comply with it. This has been done, as I said earlier by fixing penalties for each day of an infringement; hence the continuing penalty sections of the Bankruptcy and Companies Ordinances.  
            In the absence of clear language I would not hold an offence, otherwise subject to a time limit for prosecution, to be a continuing offence. No such language exists in the Immigration Ordinance. Indeed having regard to the powers given to His Excellency the Governor to deport a person who has committed, or is committing, an offence under Section 38(1) or section 41 whether he has been convicted or not one might find some support there for the argument that it was not the intention of the legislature to create a continuing offence.  
            I hold the offence with which the respondents were charged was complete in 1968, from whence time began to run."  

22. Lord Denning in his judgment in Manan's case cited above stated that the illegal immigrant continued to be guilty of an offence when he remained in the country, in that he was continuously guilty of an offence under section 4 of the Commonwealth Immigrants Act, 1962. This section provides -

"4(1) If any person being a Commonwealth citizen ...................

  (a) enters or remains within the United Kingdom, otherwise than in accordance with the directions or under the authority of an immigration officer .......................  

he shall be guilty of an offence; and any offence under this subsection, being an offence committed by entering or remaining in the United Kingdom, shall be deemed to continue throughout any period which the offender is in the United Kingdom, shall be deemed to continue throughout any period which the offender is in the United Kingdom thereafter."

23. The specific provision in the United Kingdom legislation for an illegal entering or remaining to be deemed to be a continuing offence is absent from Cap. 115.

24. Although the Lo Pui-ling case was a criminal case, the point at issue is the same as here; I respectfully adopt and follow Trainor, J.'s judgment that the offence of remaining unlawfully was committed in 1970 and is not a continuing offence. Therefore the Plaintiff cannot be prosecuted for the offence now.

25. Section 19(1)(b) empowers the Governor to make a removal order where the person has committed a section 38(1) offence whether or not he has been convicted of that offence. Where a person has not been convicted, I am of the opinion that the Governor's power to make a removal order is limited to situations where a prosecution can be brought. This cannot be done in the case of the Plaintiff, therefore I hold that the Removal Order made against him was ultra vires the Governor's powers under Section 19(1)(b) I declare accordingly. It was not ultra vires the Principal Assistant Secretary (Security) because he did not make the order.

26. It was also submitted on behalf of the Plaintiff that the Removal Order was made contrary to the rules of Natural Justice in that the Governor did not personally satisfy himself that the Plaintiff's case came within Section 19(1)(b) but acted on the advice of officers of the Immigration Department. The Governor, in the normal performance of his duties, would act on the advice of his officers. I hold that this principle applies to the Governor when he performs his functions under Section 19(1)(b); further that there has been no breach of the rules of Natural Justice in this case. Consequently, I reject the submission on this point.

27. I give judgment for the Plaintiff on paragraph 2 of the prayer in the Statement of Claim that the Removal Order dated 1/9/78 is ultra vires the Governor.

28. Costs of this action to the Plaintiff.

  (S.V. Gittins, Q.C.)
  Commissioner of the High Court

Representation:

Mr John Bleach (C.P. Lin & Co.) for Plaintiff

Mr M. Sinclair (Crown Counsel) for Defendant