Mak Yui Ming and Others v. Attorney General
Read the full judgment text of HCMP 1052/1980 on BabelCite. This High Court CFI judgment.
1. The three applicants in this matter came before us pursuant to a writ of Habeas Corpus granted by Penlington J. and directed to the Commissioner of Prisons and to the Chief Immigration Officer at the Victoria Immigration Centre.
Coram: Full Bench (Zimmern, J. & Mr. Commissioner Litton, Q.C.) Date of judgment: 18th December, 1980 ----------------- JUDGMENT ----------------- Zimmern, J.: 1. The three applicants in this matter came before us pursuant to a writ of Habeas Corpus granted by Penlington J. and directed to the Commissioner of Prisons and to the Chief Immigration Officer at the Victoria Immigration Centre. 2. By his return the Superintendent of Prisons certified that the applicants were detained by virtue of removal orders made under section 19(1)(b)(ii) and of orders for detention pending removal under section 32(3A) of the Immigration Ordinance signed by the Director of Immigration on the 14th November, 1980. 3. At the commencement of the hearing counsel for the applicants applied for leave to file an application for judicial review under Order 53 seeking an order of certiorari to quash the detention and removal orders. With the consent of the Crown we granted leave. 4. The bare facts of the matter are that the applicants and each of them crossed into Hong Kong from China illegally sometime after the 23rd October 1980, reported at the Special Registration Office at Victoria Barracks in the early hours of the 26th October 1980. They were told to return on the 11th November on which date they were told to return on the next day when they were detained and served on the 15th November with notice of the Removal Orders made against them on the 14th November. 5. It is now necessary to explain the Special Registration Office at Victoria Barracks. 6. On the 23rd October 1980 prior to the passing of the Immigration (Amendment) (No. 2) Ordinance by the Legislative Council the Governor made a statement that the then proposed legislation would radically change Hong Kong's traditional policy towards illegal immigrants from China including the ending of the so called "reached base" policy. He said under the Bill and if passed an illegal immigrant who reached Hong Kong after the 23rd would be liable to arrest anywhere in Hong Kong and removal. In order to avoid retrospective action the Government proposed that those illegal immigrants then at that moment in Hong Kong from China should be given a short period in which to register but they must do so within the next three days at a special registration office at Victoria Barracks to be set up. 7. So much for the background. As I understand the applicants it is their case that they were in Canton on the 23rd October 1980 where and when they saw and heard on television an announcement in Cantonese read out by a Hong Kong Immigration officer a statement the contents of which was exhibited to their affirmation. It reads:
By their affirmation they say they understood the statement to mean that if one could enter Hong Kong and register at a certain place before midnight on October 26 he would be granted Hong Kong citizenship. They accordingly took steps to try to get across to Hong Kong and succeeded in the early hours of the 25th October. They then reported at the Special Registration Office at Victoria Barracks within the time limit set by the Government. 8. It is submitted by counsel on their behalf, first, the announcement by an agent of the immigration officer covered all illegal immigrants from China not only those who were in Hong Kong on the 23rd October 1980. They were induced to come to Hong Kong by that representation and that after having arrived and heard the same representation on the television over and over again they were further induced to report at the Victoria Barracks. The Director of Immigration is therefore estopped from denying them the right of registration and from removing them. 9. Crown counsel submitted that estoppel cannot defeat a statutory discretion. 10. For myself on the facts of this case I see no necessity for going into academic arguments on the application of various types of estoppel or whether any estoppel can or cannot defeat a statutory discretion. 11. The very first line of the announcement made it clear that it was only directed to immigrants from China who had already entered Hong Kong albeit illegally. It was not a representation which applied to them who were then in their home in Canton. There was nothing in the language of the announcement which could have led them or anyone to believe that if they crossed the border illegally they would be accepted for registration as illegal immigrants. If they acted on the announcement in their own wrong belief they take the consequence of their own acts. I see no ground for any estoppel here. The court is being asked to condone a crime to found an estoppel on a representation which was never made to them. 12. Next it is said that by reason of the events at Victoria Barracks from the early hours of the 26th October to 12th November the Director of Immigration is estopped from denying that he had not authorised them to remain in Hong Kong under section 13 of the Immigration Ordinance. 13. On the evidence before us the sequence of events at Victoria Barracks were as follows:-
14. The body of the form reads in part:
ENDORSEMENT
15. It is submitted on their behalf that as each of the applicants has been given a future identity card number, they and each of them had been authorised by the Director of Immigration to stay in Hong Kong under section 13 of the Immigration Ordinance and accordingly Removal Orders could not be served on them on the 15th November after detention on the 12th November when they had been authorised in writing to collect their Identity Cards on the 11th December 1980. 16. I am quite unable to understand this argument. I can see nothing in the whole procedure which supports this contention. The first card and the form of 11th November 1980 were issued by the Registrar of Persons and not by the Director of Immigration. Though they might be the same person as we were told they are and grouped under one department it remains that same person exercises different statutory functions. The Director of Immigration has not so far as I can see authorised anyone of them to remain in Hong Kong under section 13 of the Immigration Ordinance. Even if he had there is nothing to show that they had been authorised to remain permanently. Their forms show that they had not obtained clearances from the Immigration Clearance Office nor is it suggested that they had been issued with Hong Kong Entry Permits by the Director of Immigration. Without these they could not have obtained identity cards. 17. The Director was no doubt exercising his statutory powers in accordance with government policy. That is a matter for him. I cannot see anything in this case in which his powers to issue the removal orders could be challenged or that his conduct ought to be subject to judicial review. 18. Let me also add that it has not been advanced on behalf of the applicants that they had a right to enter or to remain and reside within the jurisdiction other than by reason of their unfruitful encounters at Victoria Barracks. 19. It well might be that the applicants are suffering from a keen sense of disappointment in having missed the "last ferry" by only a few days. It also might well be that they are desirable characters but that is a matter for the Director and not for us. 20. I would quash the writ of habeas corpus and refuse the orders of certiorari sought. Representation: M. Jackson-Lipkin Q.C. & G. Rodway (K.K. & Winston Chu) for Applicants B. Barlow for Respondent
----------------- Coram: Full Bench (Zimmern, J. & Mr. Commissioner Litton, Q.C.) Date of judgment: 18th December, 1980 ----------------- JUDGMENT ----------------- Mr. Justice Zimmern has stated the background facts of this case and I need not repeat them here. There is no shadow of doubt that the Applicants landed in Hong Kong unlawfully. Unless they are able to show that they remained thereafter in Hong Kong with the authority of the Director of Immigration, they have committed an offence under section 38(1)(b) of the Immigration Ordinance. On 14th November, 1980 removal Orders were made by the Director of Immigration in respect of the Applicants under section 19(1)(b)(ii) on the ground that they have committed an offence under section 38(1)(b). In what way can it be said that the removal orders were unlawful? Mr. Jackson-Lipkin, as I understand him, puts his case on two broad grounds:
Authority to Remain A statutory discretion is vested in the Director of Immigration under section 13 of the Immigration Ordinance to authorize a person who landed in Hong Kong unlawfully to remain in Hong Kong. Mr. Jackson-Lipkin argues that whatever the Government policy might have been as regards illegal immigrants landing in Hong Kong after the 23rd October, the Director has a discretion, conferred by statute, to override such policy. Mr. Jackson-Lipkin puts his case in this way: The television announcements were repeated hourly throughout the 24th, 25th and 26th October; they were made with the authority of the Director of Immigration; the announcements have been understood and could only be understood as authorizing all illegal immigrants from China who registered at the special registration centre before mid-night on the 26th to remain in Hong Kong; accepting that the policy of the Hong Kong Government (as stated by His Excellency the Governor in Legislative Council) was to repatriate illegal immigrants who landed after the 23rd, nevertheless the Director by his "unequivocal statements" must be deemed to have exercised his statutory discretion in a contrary sense. This is a bold proposition and affects not only the three Applicants before us but every other illegal immigrant who landed after the 23rd October and managed to present himself for registration before mid-night on the 26th. We do not know how many similar cases there might be. Mr. Jackson-Lipkin's proposition does not depend upon whether the announcement was heard by the illegal immigrant concerned, nor does it matter how the announcement might have been understood by him. What counsel says in effect is this: The announcement by itself was an act done by the Director under the statute; it was in fact the authority of the Director under section 13 to every illegal immigrant from China to remain, provided he complied with one condition namely: To register before mid-night on the 26th. Mr. Barlow for the Crown says that the definition of Director is restricted and the announcements were not proved to have been made by the Director or, as Mr. Barlow would have added, the "Deputy Director" or an "Assistant Director", had he adverted to the definition section in the Ordinance. For my part I would not base my judgment on that narrow ground. The television announcements which counsel for the Applicants rely upon were not expressed in terms of an authorization. Nowhere does it say: "You are hereby authorized to remain in Hong Kong", conditionally or unconditionally. When first made on the evening of 23rd October the announcement could only have been understood to refer to those illegal immigrants who were already in Hong Kong; it stressed the importance of them having an Identity Card in consequence of the change in the law and it gave notice of the special arrangements for registration terminating at mid-night on the 26th. Views may differ as to whether the announcement might have been better worded when it was repeated on 25th and 26th October because no mention was made of the fact that the special arrangements were of no avail to those arriving illegally after the 23rd. But that is quite besides the point. Whatever view one might take of the wording of the announcement, I cannot see how the announcement could have amounted to an administrative act on the part of the Director, exercising a statutory discretion on a wholesale basis in complete contradiction to the policy of the Government. I would hold that the Director did no such thing. Counsel then developed a different argument along the same lines based upon the following facts:
Counsel argues that with such forms in their hands, particularly when all the other procedures enumerated above had been gone through, the Applicants naturally thought, and had every right to think that they had been given authority to remain in Hong Kong by the Director of Immigration. Counsel goes further and says that the cumulative effect of the steps taken amounted to an act of authorization by the Director under section 13 of the Immigration Ordinance. Let me examine the steps in more detail:
It is true that clauses (4), (5) and (6) of the form do contain statements which assume that the Identity Card would be issued. For example, clause (6) which states:
Perhaps it might have been kinder if the form had omitted clauses (4), (5) and (6) altogether because then the expectations of the Applicant concerned could not possibly have been aroused. But that would have entailed yet another form when the Immigration Clearance Office and Investigation Division endorsements have been obtained, and there may therefore be good administrative reasons why the sub-paragraph (iv) form was devised in this particular manner. Likewise, it might have been kinder if the form had a statement to the effect that the issue of the form in no way suggested that the Applicant would be permitted to remain in Hong Kong. But these are pure matters of administration which are beyond the competence of the court to judge. It is noteworthy that the sub-paragraph (iv) form is issued in the name of the Commissioner of Registration. It matters not that the office of Director of Immigration and Commissioner of Registration is filled by the same person: They are two different authorities, governed by different statutes. It would seem to me, on a plain reading of the sub-paragraph (iv) form, that its effect is unequivocal. No promise of any kind had been made; either with regard to the grant of authority to stay or with regard to the issue of an Identity Card. As regards authority to stay, it is not within the competence of the Commissioner of Registration. One would require very strong evidence indeed to support a suggestion that statements made by the Commissioner of Registration in such a form had the effect of an exercise of statutory discretion under section 13 of the Immigration Ordinance: discretion exercised only by the Director of Immigration within the meaning of that term in section 2 of the Immigration Ordinance. I would hold that the Director of Immigration has not exercised his discretion under section 13 in respect of any of these Applicants. I should add for the sake of completeness that what I have said above regarding the sub-paragraph (iv) form applies only to MAK Siu-fong and MAN Chiu-ying. The form which was handed to MAN Chiu-hoi (appropriate only for juveniles) is slightly different but nothing turns on this distinction. Estoppel I can deal with this question in brief. The Applicants' case is that having heard the television announcement in Canton on 23rd October they thought it meant that if they succeeded in entering Hong Kong and presenting themselves for registration at the special registration office in Victoria Barracks before mid-night on the 26th, they would be granted "Hong Kong citizenship". I cannot understand how that broadcast, heard in Canton, could have been so understood. Mr. Jackson-Lipkin then says the announcement heard in Hong Kong amounts to a representation that all those illegal immigrants in Hong Kong who registered before mid-night on 26th October, regardless of when they arrived, would be allowed to stay. Assuming the announcement was so understood, what conduct on the part of these Applicants did that representation induce? It cannot be to register. They would have done that anyway. That was the whole point of coming. So what was it? It could hardly be the case for the Applicants that, had they understood the announcement to apply only to those landing before 23rd October, they would have lied about the date of their arrival. The estoppel point really boils down to no more than this. On hearing the announcement in Canton, they thought they would be granted Hong Kong citizenship if they could evade the security forces, get to the urban area and beat the clock before mid-night on the 26th October. Their case is founded on an unlawful act: landing in Hong Kong unlawfully. I cannot see how in these circumstances an estoppel can arise in favour of the Applicants. Detention After the sub-paragraph (iv) forms were handed to the Applicants on 11th November, they were told to return on the 12th November. On 12th November they were further interviewed and then detained. On 14th November removal orders were made against them under section 19(1)(b)(ii) after which their detention was authorized under section 32(3A) pending removal. Mr. Barlow says that between the 12th and 14th the Applicants were detained under section 26(a). Mr. Jackson-Lipkin says that the detention between the 12th and 14th was unlawful because the Applicants could not have been detained for the purposes of inquiry, which are the only lawful grounds for the exercise of power under section 26, since all the inquiries had been made before the 12th November. I express no view as to this matter since that is not the issue before us now. I am satisfied that the removal orders were properly made and it must follow that the Applicants were lawfully detained pending removal. I too, would quash the Writ of Habeas Corpus and also the application for judicial review. Representation: Mr. Jackson-Lipkin, Q.C. & Mr. Rodway (K.K & Winston Chu) for Applicants Mr. Barlow, Crown Counsel, for Crown/Respondent |